NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: UBH [2019] NSWCATGD 3 Hearing dates: 21 January 2019 Date of orders: 21 January 2019 Decision date: 21 January 2019 Jurisdiction: Guardianship Division Before: J Claridge, Senior Member (Legal) L Houlahan, Senior Member (Professional) L Porter, General Member (Community) Decision: 1. A guardianship order is made for UBH. 2. WQI of [Address removed for publication.] is appointed as the guardian. 3. This is a continuing guardianship order for a period of 14 months from 21 January 2019. 4. This is a limited guardianship order giving the guardian(s) custody of UBH to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following function: a) Restrictive Practices To make decisions about the following restrictive practices: The administration of PRN Medication as described in UBH's Positive Behaviour Support Plan dated February 2018. CONDITIONS: 6. The conditions of this order are: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring UBH 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: i) The administration of psychotropic medication to address behaviours of concern within the context of the implementation of a comprehensive positive behaviour intervention and support program (or within the context of positive programming addressing UBH's lifestyle and skills development needs). Catchwords: GUARDIANSHIP – application for a guardianship order – guardianship order made – appointment of private guardian RESTRICTIVE PRACTICES – definition and nature of restrictive practices – relationship between restrictive practices and NDIS – chemical restraint Legislation Cited: Guardianship Act 1987 (NSW), ss 3(1)–(2), 4, 14(1)–(2), 15(3), 17(1), 18(1)–(2) National Disability Insurance Scheme Act 2013 (Cth), s 9 National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth), r 6 Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: 001: Guardianship Application UBH (the person) WQI (applicant) Public Guardian Representation: Nil File Number(s): NCAT 2018/00341922 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 (s 65, Civil and Administrative Tribunal Act 2013 (NSW)). REASONS FOR DECISION Background 1. UBH is 44 years old and lives in supported accommodation in Northwest Sydney, managed by a disability service provider. 2. UBH receives informal support from her sister WQI. 3. It is reported that UBH has an intellectual disability. 4. On 7 November 2018, the Tribunal received an application for guardianship for UBH by WQI. Written evidence 1. Accompanying the application is PRN medication protocol dated 4 June 2018, submission for restricted practice authorisation dated 2 October 2018, positive behaviour support plan dated 19 February 2018, reports dated 18 December 2018, 4 June 2018, 6 November 2017, 17 January 2017, 18 July 2017, 9 May 2017, 16 July 2018, by Dr Z, psychiatrist and safety plan dated 17 January 2018. GUARDIANSHIP 1. In determining an application for guardianship, the Tribunal must consider: * Is the person who is the subject of the application someone for whom the Tribunal could make an order because he/she has a disability which prevents him/her from being able to make important life decisions? * Should the Tribunal make a guardianship order and if so, what order should be made? * Who should be the guardian? * How long should the order last? Is UBH someone for whom the Tribunal could make an order? 1. By s 14(1) of the Guardianship Act 1987 (NSW) ('the Act'), we have power to make a guardianship order for a person if we are satisfied that he/she is "a person in need of a guardian". 2. A person in need of a guardian is "a person who because of a disability is totally or partially incapable of managing his or her person": s 3(1) of the Act. The disability must restrict a person in one or more major life activity to such an extent that he or she requires supervision or social habilitation: s 3(2) of the Act. 3. UBH has an intellectual disability, diagnosed when she was five years old. She was also diagnosed with schizophrenia and bipolar disorder in 1992. Dr Z in report dated 4 June 2018 states that: "My diagnosis is still rapid cycling bipolar disorder with prominent depressive episodes leading to confusion and regression." 4. We had a number of reports and other documents available to us, which consistently indicate that UBH has diagnoses of intellectual disability and mental illness. These reports state that UBH cycles between periods of well-being, where she is able to carry out many activities of self-care and times when these tasks are too difficult for her to manage without full assistance. 5. There is no evidence to contradict the available professional evidence and the reported observations of UBH's sister and support workers. UBH has an intellectual disability and this coupled with chronic schizophrenia and bipolar disorder restricts UBH in at least one major life activity to such an extent that she requires supervision. We are satisfied that UBH is a "person in need of a guardian". Should the Tribunal make a guardianship order and what order should be made? 1. Before making a guardianship order, we must have regard to all of the following matters set out in s 14(2) of the Act: 1. the views (if any) of: 1. the person, and 2. the person's spouse, and 3. the person's carer and 1. the importance of preserving the person's existing family relationships, and 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. Additionally we must observe the general principles listed in s 4 of the Act. Among other things, this requires that in deciding whether to make a guardianship order, we must endeavour to restrict UBH's freedom of decision making and freedom of action as little as possible. As far as possible we should enable UBH to be self-reliant in matters relating to UBH's personal, domestic and financial affairs. At the same time, we must also aim to protect UBH from neglect, abuse and exploitation. The paramount consideration at all times is UBH's welfare and interests. 2. We have been asked to appoint a guardian with authority to consent to restrictive practices for the administration of psychotropic medication on a PRN basis to help UBH when she cannot sleep and becomes confused and agitated. Dr Z has prescribed Valium. 3. The Act does not define restrictive practices. 4. Generally, however, a restrictive practice has been viewed as any practice or intervention that restricts a person's rights, freedom of movement or access to objects. Restrictive practices are generally used to manage challenging behaviour. 5. The application has been brought today as a result of the introduction of the National Disability Insurance Scheme (NDIS) and the implementation of the NDIS Quality and Safeguarding Framework (Framework), which underpins that scheme. 6. Under the Framework, states and territories are responsible for the authorisation of restrictive practices used by registered NDIS providers and behaviour support practitioners. 7. Section 9 of the National Disability Insurance Scheme Act 2013 (Cth) defines restrictive practices as 'any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with disability'. 8. Since 1 July 2018, registered NDIS providers in NSW are regulated by the NDIS Quality and Safeguards Commission and are responsible for ensuring that proper consent is obtained for the use of restrictive practices. 9. Rule 6 of the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) states that a restrictive practice is a regulated restrictive practice if it involves, relevantly for today's hearing: 1. chemical restraint, which is the use of medication or chemical substance for the primary purpose of influencing a person's behaviour. It does not include the use of medication prescribed by a medical practitioner for the treatment of, or to enable treatment of, a diagnosed mental disorder, a physical illness or a physical condition. 1. In determining if a practice is a restrictive practice for which informed consent is required we must balance the right to autonomy of the person with the need to manage challenging behaviours in the interests and welfare of that person. We consider these practices in light of the lawfulness of the practice as well as the context, nature, degree and purpose of the restrictions to ensure that the person's rights are not breached. 2. We were provided with a positive behaviour support plan prepared for UBH, which indicates that medications have been used in relation to her care, particularly when experiencing psychosis. 3. UBH currently takes Clozapine and Lithicarb which are prescribed by Dr Z and Dr Y, both psychiatrists, for the treatment of both schizophrenia and bipolar disorder. Because of the nature of bipolar disorder, PRN medication is prescribed for periods of depression and regression. 4. Valium is prescribed to manage UBH's behaviour, when she is unable to sleep. Valium is to be given to UBH on a PRN basis. Ms X stated that staff at the group home are reluctant to give UBH Valium and it was last used eight months ago. Ms X advised, however, that the plan is now to administer Valium when needed. Ms X stated that there is a PRN protocol in place. 5. Ms X stated that UBH's behaviour support plan will be reviewed by the end of January 2019. It is intended that the new plan will include the use of Valium on a PRN basis. UBH's medications will also be reviewed and her current dosage of Lithicarb may increase. 6. UBH attended the hearing. She was not able to participate in a meaningful way. We were therefore unable to obtain UBH's views. 7. UBH receives support from her sister WQI, who is recognised as her Person Responsible. WQI attends appointments with her sister and has consented to the prescription of psychotropic medications for UBH. WQI stated that she intends to continue in this role. 8. Valium has been prescribed to be used for the purpose of influencing UBH's behaviour when she cannot sleep and becomes agitated and confused. Staff at the group home, where UBH lives, try to use other strategies to manage her behaviour when she is unable to sleep. Valium is only used when these strategies are not successful. It is not prescribed to treat a diagnosed illness or other condition. Because of this we consider its use a restrictive practice for which informed consent is required. UBH is unable to consent and we have therefore decided to appoint a guardian with authority to make decisions about the use of psychotropic medications on a PRN basis. Who should be appointed as the guardian? 1. We have to be satisfied that any person appointed as a private guardian meets the following requirements under s 17(1) of the Act. He/she must: 1. have a personality generally compatible with the personality of the person under guardianship, 2. have no undue conflict of interest (particularly financial) with those of the person and 3. be able and willing to exercise the functions of the order. 1. We are not able to appoint the Public Guardian as a person's guardian if there is a private person who can be appointed: s 15(3) of the Act. 2. The applicant proposes that she be appointed as UBH's guardian. 3. WQI has a close relationship with her sister, which was evident at the hearing. The documentation submitted for the hearing states that family is very important to UBH. WQI attends appointments with Dr Z and is in frequent contact with her sister and staff at the home where she lives. 4. WQI stated that she is both willing and able to act as her sister's guardian. Ms X supports the appointment of WQI as guardian for UBH. 5. We are satisfied that WQI meets the requirements to be appointed UBH's guardian. How long should the order last? 1. An initial continuing guardianship order can generally be made for a period not exceeding 12 months: s 18(1) of the Act. Section 18(2) of the Act sets out the circumstances in which an initial order for more than 12 months can be made. UBH satisfies the relevant criteria. 2. We note that UBH's behaviour support plan will be reviewed before the end of January and will be in place for 12 months. We have decided to make a reviewable 14 month order so that a new plan will be in place at the time of the review hearing. ********** 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: 12 February 2019