NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: MKS [2018] NSWCATGD 42 Hearing dates: 22 November 2018 Date of orders: 22 November 2018 Decision date: 22 November 2018 Jurisdiction: Guardianship Division Before: J C Simpson, Senior Member (Legal) E Love, Senior Member (Professional) Emeritus Professor P J Foreman, General Member Decision: The application for a guardianship order is dismissed after hearing. Catchwords: GUARDIANSHIP – application for a guardianship order – application dismissed RESTRICTIVE PRACTICES – definition and nature of restrictive practices – relationship between restrictive practices and NDIS – whether practice is a restrictive practice Legislation Cited: National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth), rr 6, 9 Cases Cited: Nil Texts Cited: NSW Government, Department of Family and Community Service, Restrictive Practices Authorisation Policy (June 2018) Category: Principal judgment Parties: 009: Guardianship Application MKS (the person) NES (applicant) Public Guardian Representation: Nil File Number(s): NCAT 1999/00066702 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. MKS is a 52-year-old woman with severe intellectual disability who lives in a group home run by a disability service provider. 2. MKS has previously been under guardianship of family members but the most recent guardianship order lapsed in 2011. 3. Now, NES, mother, applied for a guardianship order. This was on the basis of advice from the disability service provider who felt that guardianship may be needed in relation to consent to the use of a seat belt guard when MKS is travelling in a service vehicle. 4. Also very involved in MKS' life are her father, MZS, and sister, KAX. What did the Tribunal have to decide? 1. We had to decide: 1. Does MKS have a disability which prevents her from being able to make some important life decisions? 2. Should we make a guardianship order and if so, what order should we make? Decision 1. It was clear that MKS' severe intellectual disability prevents her from being able to make important life decisions. 2. What prompted the application was the new National Disability Insurance Scheme (NDIS) Quality and Safeguarding Regime and a view that the consent of a guardian may be required for the seat belt guard. 3. A recent submission for a restrictive practices authorisation within disability service provider described the use of the seat belt guard as follows: "[MKS] impulsively attempts to undo the seatbelt and stand up or try to reach to another passenger whilst travelling in a motor vehicle. [MKS] does not understand the requirement to keep seatbelt on and danger and consequences associated to removing it whilst travelling in the motor vehicle. The buckle guard has been in place since 2008. Identified risk from behaviour: serious injury to herself, other passengers and driver, legal consequences - not wearing seat belt and transporting passenger without seatbelt on." 4. From the evidence of Ms Z, team leader, and family members in the hearing, we obtained a clear picture that MKS very much enjoys vehicle outings, readily accepts the seatbelt guard being put on and does not attempt to remove it or show any distress from it being on. Five days a week, she is transported to and from a day program with other residents in the service van with each of them going to a different day program. MKS' parents are very closely involved in her life and are strong advocates for her. They see the seatbelt guard as a necessary safety measure. NES noted that MKS is not able to stand up unsupported. 5. Under the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth), "regulated restrictive practices" are defined to include "mechanical restraint, which is 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": r 6. 6. Here, the seat belt cover is being used to control MKS' behaviour albeit for safety and legal compliance rather than behavioural purposes. We saw the seatbelt guard as a mechanical restraint under the NDIS regime. 7. The NDIS safeguarding regime includes various safeguards on the use of restrictive practices including that any state authorisation legislation or policy must be complied with: r 9. 8. In NSW, the Department of Family and Community Service has issued a Restrictive Practices Authorisation Policy 2018 which calls for the consent of guardian for mechanical restraint. However, the policy includes an exception where "restraint is being used as part of risk management or safety unless the person or someone else is objecting". 9. The policy also specifically says that a seat belt buckle cover is not a restrictive practices if the person does not object and the cover is being used to address "non-purposeful risk" actions by the person. We take "non-purposeful risk" actions to mean actions that are taken without appreciation of the risks involved. 10. The interplay between the above two exceptions is not very clear but we saw both of them as satisfied in MKS' situation. The restraint is used for safety purposes, to address non-purposeful risk and MKS does not object to it. 11. In these circumstances, consent from the guardian was not required by the interplay of the NDIS rule and the NSW government policy. 12. MKS' family are active advocates for her and the combination of evidence from them and Ms Z and the behaviour support plan provided a positive picture of the lifestyle and support that MKS is receiving. 13. In all of these circumstances, we saw no need for the formality and intrusion of a guardianship order. Who took part in the hearing? 1. The following people participated in the hearing: 1. Ms NES, mother 2. Mr MZS, Father 3. Ms KAX, sister 4. Ms Z, group home team leader (by phone) ********** 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: 13 February 2019