NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: KJN [2020] NSWCATGD 94 Hearing dates: 15 September 2020 Date of orders: 15 September 2020 Decision date: 15 September 2020 Jurisdiction: Guardianship Division Before: J Moir, Senior Member (Legal) M E Burke, Senior Member (Professional) Decision: The guardianship order for KJN made on 6 May 2019 has been reviewed. The order now is as follows: 1. QZT of [Address removed for publication.] is appointed as the guardian. 2. This is a continuing guardianship order for a period of three years from 6 May 2019. 3. This is a limited guardianship order giving the guardian custody of KJN to the extent necessary to carry out the functions below. FUNCTIONS: 4. The guardian has the following functions: a) Accommodation To decide where KJN may reside. b) Health care To decide what health care KJN may receive. c) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where KJN is not capable of giving a valid consent. d) Services To make decisions about services to be provided to KJN. e) Restrictive Practices To give or withhold consent as to whether the restrictive practice of mechanical restraint should be used to influence KJN's behaviour. CONDITIONS: 5. The conditions of this order are: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring KJN to an understanding of the issues and to obtain and consider her views before making significant decisions. b) Restrictive Practices Condition The guardian may only consent to the use of the types of restrictive practices permitted under this order to influence KJN's behaviour: (i) as a last resort to prevent KJN harming herself or others; and (ii) in accordance with a behaviour support plan which has been developed by a behaviour support practitioner after having conducted a functional behavioural assessment upon KJN, and which is reviewed at least every 12 months and/or reviewed as soon as practicable if there is a change in circumstances which requires the plan to be amended. Catchwords: GUARDIANSHIP – requested review of guardianship order – participant in the Lifetime Care and Support Scheme – restrictive practices function – mechanical restraint – use of seatbelt in wheelchair while in the community – attempts to stand up in wheelchair – risk of falling – scheme policy and NDIS rules – risk management strategy – order varied to promote welfare and interests of subject person Legislation Cited: Quality of Care Principles 2014 (Cth) Guardianship Act 1987 (NSW), ss 4, 14(2) Cases Cited: IF v IG [2004] NSWADTAP 3 Texts Cited: Nil Category: Principal judgment Parties: 005: Requested Review of Guardianship Order KJN (the person) QZT (applicant, appointed guardian, enduring guardian) Public Guardian Representation: Nil File Number(s): NCAT 2015/00386577 Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal's proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 65. REASONS FOR DECISION REQUESTED REVIEW OF GUARDIANSHIP ORDER Background 1. KJN is a 98-year-old woman who lives in her own home in regional NSW, with full time live in care. KJN is a participant in the Lifetime Care and Support Scheme, having sustained a traumatic brain injury as a pedestrian in 2010 and her full time care is funded via this scheme. KJN has also been diagnosed with dementia. KJN has supportive children, and her son, QZT has been appointed as her guardian by this Tribunal since 2015. QZT is also his mother's attorney under an enduring power of attorney. 2. Most recently the Tribunal reviewed the guardianship order on 6 May 2019, appointing QZT as guardian for three years with authority to make decisions for KJN regarding her accommodation, health care, services and to consent to her medical and dental treatment. 3. QZT has since made an application to the Tribunal asking for that order to be reviewed, and varied to include authority for the guardian to consent to paid carers using a seatbelt when transporting KJN in her wheelchair in the community. He indicates that as is classified as a restrictive practice – mechanical restraint, he has been told that it requires the consent of a guardian. 4. These reasons for decision arise from the hearing of this application. The hearing 1. The hearing was held by telephone and the Tribunal spoke with QZT, Mr Z, Behaviour Support Practitioner and Ms Y, Occupational Therapist. The Tribunal called to speak with KJN but it was evident that she was not able to hear or understand what the call was about because of the extent of her cognitive impairment and the Tribunal did not persist for long. There was no objection to the hearing proceeding without her participation. The Tribunal noted that KJN's presentation was consistent with the evidence regarding the extent of her disability and was satisfied that it was consistent with her interests to proceed without her involvement. What did the Tribunal have to decide? 1. On reviewing the current guardianship order at the request of QZT, the Tribunal may confirm, vary, suspend, revoke, renew or renew and vary the order. QZT has requested the Tribunal to review the current guardianship order for KJN because the guardian needs to be able to provide consent to the use of a seatbelt when KJN is travelling in her wheelchair, as this is regarded as a form of mechanical restraint. 2. Accordingly, the question to be considered by the Tribunal is what functions should now be given to the guardian? Should the guardian be able to make decisions about the use of restrictive practices? 1. The Tribunal must consider all of the following matters set out in s 14(2) of the Guardianship Act 1987 (NSW) before making decisions in reviewing a guardianship order: 1. the views (if any) of: 1. the person; 2. the person's spouse; 3. the person's carer; and 1. the importance of preserving the person's existing family relationships; 2. the importance of preserving the person's particular cultural and linguistic environments; and 3. the practicability of services being provided to the person without the need for the making of such an order. 1. These matters have no hierarchy or weighting and each is a mandatory consideration. However the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Guardianship Act. When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3). 2. The Tribunal was given a copy of a current Behaviour Support plan for KJN, prepared by Mr Z. This notes that KJN can at times try to stand up when she is sitting in her wheelchair, and as she is not independently mobile, this puts her at risk of falling. Using a seatbelt across her lap whilst she is in the wheelchair out in the community with support workers reduces the risk of this occurring. 3. The introduction of the National Disability Insurance Scheme (NDIS) and the NDIS Quality and Safeguards Commission, has led to greater regulation of the use of practices by service providers funded under the NDIS which restrict the rights, including the freedom of action of participants in the NDIS. Such practices are called "restrictive practices" and are divided into a number of categories of restraint: environmental, chemical, mechanical, physical and seclusion. Previous decisions made by this Tribunal have determined that where the person receiving the service is not able to consent on their own behalf to the use of a restrictive practice, consent must be obtained from an appropriately authorised guardian. The Aged Care sector has a similar approach, contained in the Quality of Care Principles 2014 (Cth), with classification of restrictive practices of "chemical restraint" and "physical restraint". This applies in relation to people who are residents in residential aged care as a well as those receiving funded aged care services in the community. 4. KJN is not a client of the NDIS, nor does she receive aged care services. Instead her care is provided via the Lifetime Care and Support Scheme. At the hearing the Tribunal was advised that icare, the organisation under which the Lifetime Care and Support Scheme has a policy regarding the use of "restrictive practices" for clients of that scheme. [Footnote omitted for publication.] The definitions align to the one which applies to the NDIS. The definition of "mechanical restraint" is as follows: "The use of a device to prevent, restrict, or subdue a person's movement for the primary purpose of influencing a person's behaviour but does not include the use of devices for therapeutic or non-behavioural purposes." 1. The policy goes on to say (at 8.2) that consent to a practice must be given by the person themselves, or if that is not possible, then from a properly authorised guardian. It states that consent is not required in the event that the: "restraint is being used as part of risk management for safety, unless the person or someone else is objecting to the practice or strategy." 1. At the hearing the Tribunal was told that KJN can fall asleep sitting in her wheelchair (and other chairs), and that sometimes when she wakes, she is startled and can act in an agitated way, trying to stand up. This does not seem to be a conscious decision to try and stand and go somewhere. The Tribunal noted that it seemed the use of the seatbelt in those circumstances was a risk management strategy for KJN's safety. The hearing participants agreed that they shared this view, but that icare did not. 2. The Tribunal was told that icare advised the agency providing KJN's care that the use of the seatbelt in the wheelchair is mechanical restraint and that it cannot be utilised until proper consent has been obtained. In contrast to the process employed by the NDIS Quality and Safeguards Commission, whilst the practice does require approval by a Restrictive Practices Panel, this does not occur until consent has been given by a guardian. As a consequence, whilst those around her try to address the issue, KJN has not been taken into the community since the beginning of the year, although this is something that she enjoys. QZT said that although family do not need to seek this approval to use the seatbelt in the wheelchair, they have not taken her out either because they would be accompanied by her paid carers. 3. The Tribunal was advised that Mr Z and Ms Y had raised this issue with icare a number of times, but the response has consistently been that the practice is mechanical restraint and consent from a guardian is required, hence this application. 4. KJN's welfare and interests are the Tribunal's paramount consideration. The Tribunal noted the evidence that because it has not been possible to use the seatbelt in the wheelchair KJN has not been able to engage in an activity she enjoys for around nine months. The Tribunal clarified that this is not because of the restrictions imposed by COVID-19 pandemic. 5. Although the Tribunal considered that the use of the seatbelt in the circumstances could be legitimately regarded as a safety measure, this is not the view help by icare. In the interests of ensuring that KJN is not disadvantaged by further delay, the Tribunal decided that it is consistent with her interests and welfare to give the guardian authority to consent to the use of restrictive practice of mechanical restraint. 6. The Tribunal decided on the basis of the evidence that the order should therefore be varied and the guardian given authority to consent to the use of restrictive practices (mechanical restraint) for KJN, in addition to the other functions already in the order. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 May 2022