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Chapter 7 - The functions and powers of guardians

Contributed by Nick O'Neill and Carmelle Peisah and current to 1 July 2019

7.1 Introduction

This chapter sets out the functions or powers given to guardians by legislation in the States and the two Territories. It also discusses the functions or powers commonly given to guardians when they are appointed by tribunals as well as less commonly given functions or powers.

In addition, the chapter discusses the duties of guardians and the matters that tribunals are barred by legislation from appointing guardians to make decisions about. It suggests that those duties and matters legislated for in some States and the Australian Capital Territory apply equally, as a matter of common law, to guardians in the other States and the Northern Territory where they are not legislated for.

7.2 The function or powers given to guardians and the duties that go with them

The functions or powers that may be given to guardians are described by different words in the different legislation of the different States and Territories. In order to clarify the terms used in the rest of the chapter, it is useful to set out the way in which those functions or powers are given by the relevant legislation.

7.2.1 New South Wales

In New South Wales, guardians are given functions. A plenary guardian has all the functions that a guardian has at law or in equity, while a limited guardian has one or more of those functions as set out in the order. (1) In New South Wales, a plenary guardian has custody of the person under their guardianship to the exclusion of all others while a limited guardian has custody of the person under their guardianship to extent set out in the order. (2) Both plenary and limited orders may contain conditions. (3)

7.2.2 Victoria

In Victoria, guardians are given powers and duties. A plenary guardian has all the powers and duties a plenary guardian would have if they were a parent and the person under their guardianship were their child. (4) A limited guardian has such of those powers and duties as are specified in the guardianship order. (5) Nevertheless, some of these powers are set out in the Guardianship and Administration Act 1986 (Vic) as follows:
  1. to decide where the person under guardianship is to live, whether permanently or temporarily,
  2. to decide with whom that person is to live,
  3. to decide whether that person should or should not be permitted to work and, if so, the nature or type of work, for whom they are to work and related matters,
  4. to consent to any health care that is in their best interests , subject to limitations on this power elsewhere in the Act, and
  5. to restrict visits to them to the extent necessary in their best interests and to prohibit visits by any person if the guardian reasonably believes that such visits would have an adverse effect on the person under guardianship. (6)

7.2.3 Queensland

In Queensland guardians may exercise power for a personal matter, that is make all decisions about the personal matter "and otherwise exercise the power". They may, to the extent authorised by the order appointing them, do anything in relation to a personal matter that the person under guardianship could do if they had capacity. (7)

The statutory list of personal matters that Queensland appointed guardians may make decisions about is not exhaustive. It contains the first four powers in the Victorian list, and the fifth power in the Victorian, the access power, has been held to be a "personal matter" in Queensland. (8) The Queensland list also includes:
  1. deciding whether the person under guardianship applies for a licence or permit,
  2. day-to-day issues, including, for example, diet and dress,
  3. deciding whether to consent to a forensic examination of the of the person under guardianship,
  4. making decisions about a legal matter not relating to their financial or property matters.(9)
The statutory "functions and powers" of guardians in Queensland will be returned to later in this chapter as those provisions set out responsibilities and duties of guardians that are relevant to guardians in the other States and Territories. (10)

7.2.4 Western Australia

In Western Australia guardians are given functions. A plenary guardian has all the functions in relation to the person under their guardianship that are, under the Family Court Act 1997 (WA), vested in a person in whose favour has been made:
  1. a parenting order which allocates parental responsibility for a child,
  2. a parenting order which provides that a person is to share parental responsibility for a child,
as if the person under their guardianship were a child lacking in mature understanding. However, a plenary guardian does not have the right to chastise or punish the person under their guardianship. (11) A limited guardian has one or more of the functions of a plenary guardian that are set out in the guardianship order. (12)

As in Victoria, some of these powers are set out in the Guardianship and Administration Act 1990 (WA). The first four functions are the same as the first four powers in Victoria, but Western Australian guardians have, as plenary guardians, or may be given as limited guardians, the following functions:
  1. to decide what education and training the person under their guardianship is to receive,
  2. to decide with whom that person is to associate,
  3. as the next friend of that person, commence, conduct or settle any legal proceedings on their behalf, except proceedings relating to their estate, and
  4. as the guardian ad litem of the represented person, defend or settle any legal proceedings taken against the person under their guardianship, except proceedings relating to the estate of that person. (13)
These functions, together with the Victorian powers, will be discussed later in the chapter as they are functions that, with reservations in some cases, may be exercised in at least some of the other States and Territories. (14)

Also, the Guardianship and Administration Act 1990 (WA) sets out a list of things a guardian cannot do. (15) This issue will be discussed later in this chapter. (16)

In Western Australia if an occupier or a person in charge of premises refuses to allow the guardian to enter those premises where the person under their guardianship is present, the guardian may apply to the State Administrative Tribunal (WASAT) for a warrant to enter those premises in order to perform any function in relation to the person under their guardianship or to discover whether the person under their guardianship is on those premises. (17)

7.2.5 South Australia

In South Australia, guardians are given powers. A guardian with full powers has all the powers that a guardian has at law or in equity, while a limited guardian has one or more of those powers as set out in the guardianship order. (18) In addition, the South Australian Civil and Administrative Tribunal (SACAT) may direct that the person under guardianship live with a specified person or in a specified place or it may empower the person's guardian to make decisions about the placement or detention of the person under their guardianship. (19) This matter is taken up later in this chapter. (20)

7.2.6 Tasmania

In Tasmanian legislation is virtually identical with the Victorian Act. It provides that guardians have powers and duties. A "full" guardian has all the powers and duties which a full guardian would have in Tasmania if they were a parent and the person under guardianship were their child. (21) A limited guardian has such of those powers and duties as are specified in the guardianship order. (22) Some of these powers are set out in the Guardianship and Administration Act 1995 (Tas). (23) They are the same powers as are set out in the Guardianship and Administration Act 1986 (Vic). (24)

7.2.7 Australian Capital Territory

In the Australian Capital Territory, guardians are given powers, namely the powers that the ACT Civil and Administrative Tribunal (ACAT) is satisfied are necessary or desirable for the guardian to have in order to make decisions for the person under guardianship in accordance with the decision-making principles. (25) Again, as in Victoria, Western Australia, Tasmania and the Northern Territory, some of the powers of a guardian are set out in the Guardianship and Management of Property Act 1991 (ACT). The first five of these are effectively the same powers as those set out in the Guardianship and Administration Act 1986 (Vic). (26) The final power is to bring or continue legal proceedings for or in the name of the person under guardianship. (27)

Also, the Guardianship and Management of Property Act 1991 (ACT) sets out a list of powers that a guardian cannot be given. (28) This list will be set out and discussed later in this chapter. (29)

As already noted in Chapter 6, the Public Advocate has an obligation, if appointed as the guardian, to endeavour to find a suitable (private) person to be appointed as the guardian of the person under the Public Advocate's guardianship. If such a suitable person is found, the Public Advocate is required to apply to ACAT for the appointment of that person as guardian. (30)

7.2.8 Northern Territory

In the Northern Territory it is the Northern Territory Civil and Administrative Tribunal (NTCAT) that appoints guardians. However, instead of giving guardians powers and duties, it gives them authority in relation to personal matters or financial matters or both.

Personal matters are matters relating to the personal affairs, including health care, or lifestyle. The Guardianship of Adults Act 2016 (NT) sets out examples of personal matters. These matters are dealt with in detail in relation to personal matters in Chapter 6.10.7.

Chapter 6.10.7 deals only with the content of guardianship orders made for personal matters. But NTCAT may also appoint guardians for financial matters or for personal and financial matters. The appointment of guardians both personal and financial matters is dealt with in detail in Chapter 6.10.1 to 6. However in the rest of this chapter, we cover the authorities, as well as the duties and responsibilities of all guardians whether they are given authority for personal or financial matters or both.

Under the Act, a financial matter is a matter relating to the property or financial affairs of the person the subject of the guardianship order. As with personal matters, the Act sets out a non-exclusive list of examples. (31) These are:
  1. receipt and payment of money.
  2. banking.
  3. property ownership, including ownership of real estate.
  4. investment and management of assets.
  5. carrying on a trade or business.
  6. insurance for the person the subject of the guardianship order or their property.
  7. legal matters relating to a financial matter. However, this does not include exercising the person's rights as an accused person in relation to criminal investigations or criminal proceedings, including assessments and proceedings under Part 10 of the Mental Health and Related Services Act (NT).
As set out in Chapter 6.10.7, the Guardianship of Adults Act (NT) requires NTCAT to specify in a guardianship order, the personal and or financial matters for which the guardian has authority. There is no distinction between full (plenary) orders and limited orders made in the Act. (32)

7.3 Duties and responsibilities of guardians

When an adult person accepts an appointment as a guardian they take on a set of duties and responsibilities that are either found in the legislation of the State or Territory they are appointed in, or are likely to be held to be applied to them as a matter of common law. These duties and responsibilities are set out below.

7.3.1 Guardians must apply the legislative principles

Guardians must apply the general principles set out in the legislation under which they are appointed, including any relevant more particular principles. (33) For example, in Queensland, if given powers in relation to health matters, they must apply the health care principle. (34) In the Northern Territory, when a guardian is exercising authority under the Guardianship of Adults Act (NT), they must act in accordance with the guardianship principles set out in the Act. (35) Those principles are set out in Chapter 6.10.4.3. In addition, guardians in the Northern Territory are specifically obliged by the Guardianship of Adults Act (NT) to comply with the guardianship order, any other order of NTCAT and the Act. (36) In addition, they must cooperate with any other agents for the person the subject of the guardianship order to enable them all to properly exercise their authority. (37)

7.3.2 Guardians must act honestly and with reasonable diligence

Guardians must exercise their functions or powers honestly and with reasonable diligence to protect the interests of the person under their guardianship. This is stated in terms in the Queensland Act, but applies to guardians in all States and Territories. (38) In the Northern Territory, the obligation is to act honestly and with care, skill and diligence. (39)

7.3.3 Guardians must act in the best interests of the person under their guardianship

This central aspect of a guardian's duty or responsibility is stated best in the Western Australian Act, following on from the Victorian Act, but it applies to guardians wherever appointed. Guardians are required, subject to any direction given to them by the body appointing them, to act according to their opinion of the best interests of the person under their guardianship.

While their obligations as guardians may extend beyond this in particular cases, guardians act in the best interests of the person under their guardianship if they act as far as possible:
  1. as an advocate for the person under their guardianship,
  2. in such a way as to encourage that person to live in the general community and participate as much as possible in the life of the community,
  3. in such a way as to encourage and assist that person to become capable of caring for themselves and of making reasonable judgments in respect of matters relating to their person,
  4. in such a way as to protect that person from abuse, exploitation or neglect,
  5. in consultation with that person, taking into account, as far as possible, their wishes, as expressed, in whatever manner, or as gathered from their previous actions,
  6. in the manner that is least restrictive of the rights, while consistent with the proper protection, of that person,
  7. in such a way as to maintain any supportive relationships that that person has, and
  8. in such a way as to maintain that person's familiar cultural, linguistic and religious environment. (40)
The Victorian and Tasmanian Acts set out the best interests responsibilities of guardians in the same way. They refer to the first five actions set out above and state that a guardian must act (at all times in Tasmania) in the best interests of the person under guardianship. (41) In the Northern Territory, these matters are now covered by the Guardianship of Adults Act 2016 (NT) requiring guardians to comply with the guardianship principles. (42)

The New South Wales Act imposes a clear obligation on guardians to give paramount consideration to the welfare and interests of those persons under their guardianship. (43)

While the advocacy role of a guardian is not stated in terms as being part of a guardian's duties in the other States and the Australian Capital Territory as it is in Victoria, Western Australia, Tasmania and the Northern Territory, it is understood as an obligation implied into every function or power given to a guardian that the guardian may advocate as appropriate for the person under guardianship in relation to that function or power.

The Guardianship Board of Western Australia and it successor, WASAT, both recognise that the role of a guardian includes not only the making of decisions but also acting to assert and protect the rights and interests of those under guardianship against third parties and making representations on their behalf and that this is consistent with the obligation of guardians to act in the best interests of those under their guardianship. (44)

Since the coming into force of the Guardianship of Adults Act 2016 (NT) in 2016, guardians in the Northern Territory are required to act as advocates for those under their guardianship in relation to those personal and financial matters they have been given authority in relation to. (45)

To this issue of the guardian acting to promote the interests of the person under guardianship, sometimes, often at the end of life, there is not agreement between the Guardian and health professionals about what is in the person's interests. It is important to note that doctors have ethical obligations not to give harmful, burdensome, unnecessary or inappropriate treatment to a person even if they or their substitute decision-maker want it. We also deal with these issues at greater length in Chapter 14.

7.3.4 A guardian's obligations and the views of the person under guardianship

This question is discussed in relation to tribunals in Chapter 6.11.5.

In New South Wales guardians are under a duty to take the views of the person under guardianship into consideration, but they are not bound by them. (46) The guardian must give paramount consideration to the best interests of the person under guardianship. (47) In Victoria, Western Australia, Tasmania and the Northern Territory this obligation is an element of acting in the best interests of the person under guardianship. The person under guardianship must be consulted and their wishes gathered either from current expression or from previous actions. (48) Those wishes are to be taken into account, as far as possible. However, there are extra provisions in Victoria, Tasmania and the Northern Territory which will be returned to shortly.

The effect of the New South Wales and Western Australian provisions is that guardians are substitute decision-makers for the people under their guardianship. Their role is not to make substituted judgments but to consider or take into account the views of the person under their guardianship and, having done so, to make decisions in the best interests of those persons, but without being bound by their views.

In Victoria, Tasmania, the Northern Territory the obligations of guardians when carrying out their powers and duties come from two sources. The first being a general principle applying when any function, power, authority, discretion, jurisdiction and duty conferred or imposed by the relevant Act is being exercised or performed so that:
  1. the means which is the least restrictive of the person with a disability's freedom of decision and action as is possible in the circumstances is adopted,
  2. the best interests of that person are promoted, and
  3. the wishes of that person are, wherever possible, given effect to. (49)
In 1989 Hart J sitting in the Victorian Administrative Appeals Tribunal held that the requirement to promote the best interests of the person with the disability prevailed over the other two requirements. (50)

The second is a specific direction to guardians requiring them to act in the best interests of the person under their guardianship. (51) However, they are told that they act in the best interests of the person under their guardianship if they act, wherever possible and among other things, in consultation with that person taking into account, as far as possible, the wishes of that person. (52)

Despite the different wording in the relevant legislation, and the internal conflict between the provisions within them, the effect of the Victorian, Tasmanian and the Northern Territory provisions is the same as those in New South Wales and Western Australia, namely that guardians are substitute decision-makers for those under their guardianship. Their role is not to make substituted judgments where to do so would be to act contrary to the best interests of those under their guardianship, but to consult with and take into account the views of the person under their guardianship and, having done so, to make decisions in the best interests of those persons without being bound by their views.

The relevant legislation in Victoria and Tasmania contains a specific section setting out how guardians are to exercise their authority. That section states that they must act in the bests interests of those under their guardianship and advises them that they do so, among other things, by consulting with that person and, as far as possible, taking into account their wishes. (53) Because it applies specifically to guardians, it must prevail, in relation to them, as a matter of statutory interpretation, over the general provision which requires that every function, power, authority, discretion, jurisdiction and duty conferred or imposed by the relevant Act is to be exercised or performed so that the wishes of the person under guardianship are, wherever possible, given effect to. This is particularly so because the same general provision also requires guardians to exercise their powers or perform their duties so that the best interests of the person under their guardianship are promoted. (54)

Those two obligations are sometimes in conflict; however they are resolved in the section which sets out how guardians are to exercise the authority given them by the order appointing them. In this regard it should be noted that each year in Australia, a number of people with decision-making disabilities have guardianship or administration orders made in relation to them as the evidence shows they need such orders in part at least because they lack insight into the problems confronting them and demonstrate this by expressing views which, if given effect to, would be seriously detrimental to their own interests. For example, people with dementia often deny they have problems managing at home. They may forget that they have had falls and/or deny they have medical problems or need medication. Often they ask to be "left alone". To heed these wishes would be to expose them to risk and neglect which would be detrimental to their own interests.

Furthermore, the long established common law policy behind the protective jurisdiction of the Australian Supreme Courts is that of protecting adults with decision-making disabilities and promoting their best interests because of their inability to do those things on their own behalf, despite their ability to express opinions. For all these reasons it is suggested that the relevant legislation in Victoria, Tasmania and the Northern Territory is not intended to be read as importing the requirement of substituted judgment to prevail over a guardian's obligation to act in the best interests of the person under their guardianship, disregarding their views when necessary.

Guardians in Queensland are in a similar, but not identical, situation. They must recognise and take into account the right of the person under guardianship to participate, to the greatest extent practicable, in decisions affecting their life, including the development of policies, programs and services for them. Guardians must also take into account the importance of preserving, to the greatest extent practicable, the right of those under their guardianship to make their own decisions. Consequently, they must give those under their guardianship any necessary support and access to information, to enable them to participate in decisions affecting their lives and, to the greatest extent practicable, seek and take into account the views and wishes of those under their guardianship. Also, when performing a function or exercising a power a guardian must do so in the way that is least restrictive of the rights of the person under their guardianship.

Furthermore, Guardianship and Administration Act 2000 (Qld) provides that guardians must use the principle of substituted judgment, but in a limited way only. If it is reasonably practicable to work out what the views and wishes of the person under guardianship would be from their previous actions, or from their views and wishes expressed orally, in writing or in another way, including by conduct, then a guardian must take into account what they consider would be those views and wishes. Nevertheless, guardians must perform their functions or exercise their powers in a way that is consistent with the proper care and protection of those under their guardianship. (55)

This means that substituted judgment is not to trump the requirement that guardians, when performing their functions or exercising their powers under the orders appointing them, must do so in a way that is consistent with the proper care and protection of those under their guardianship. If the position were otherwise, it would be pointless appointing guardians in Queensland for adults with proven impaired capacity who were nevertheless articulate and stating that they wished to continue with activities that were inconsistent with their the proper care and protection.

In the Australian Capital Territory the wishes of the person under guardianship, as far as they can be worked out, must be given effect to, unless making a particular decision in accordance with those wishes is likely to significantly adversely affect the interests of the person under guardianship. Even if giving effect to that person's wishes is likely to significantly adversely affect their person's interests, the guardian must, nevertheless, give effect to those wishes as far as possible without significantly adversely affecting the interests of the person under guardianship. It is only when those wishes cannot be given effect to at all that the guardian can (and must) act, in a way unencumbered by those wishes, to promote the interests of the person under their guardianship. (56)

Through these provisions, the Guardianship and Management of Property Act 1991 (ACT) puts substituted judgment before best interests placing guardians in the Australian Capital Territory in the difficult position of either standing by while people under their guardianship with impaired decision-making capacity suffer unnecessary detriments to their interests or ignore the clear words and intention of the Act and step in to prevent this happening.

In South Australia when making decisions about the person under guardianship, guardians must, as the paramount consideration, give consideration to what, in the guardian's opinion the wishes of the person under guardianship would be in the matter if they were not mentally incapacitated. Guardians are required to do this only to the extent that there is reasonably ascertainable evidence on which they can base such an opinion. (57) However, they must seek and consider the present wishes of the person, unless it is not possible or reasonably practicable to do so. (58)

The South Australian requirement divides into two parts. Under the first part it requires guardians to gather evidence, if they can, of the views of the person under their guardianship. Then, from that evidence, consider, as the paramount requirement, what the wishes of the person under their guardianship would have been in relation to the matter to be decided if they had not been mentally incapacitated. What appears to be required is the ascertainment of the pre-incapacity views of the person under guardianship. Where the pre-incapacity views of the person under their guardianship are not discoverable, this requires an element of guesswork on the part of the guardian as to those views, but does not appear to require the guardians to make substituted decisions to give effect to any presumed views.

The second part requires the guardian to obtain the current wishes of the person under their guardianship about the matter to be decided, unless it is neither possible nor reasonably practicable to do so, and to give consideration to, but not be bound by those wishes.

As from 28 July 2016, the Guardianship of Adults Act (NT) replaced the Adult Guardianship Act 1988 (NT). In doing so, the 2016 Act required all guardians (and NTCAT) to exercise their decision maker's authority under the Act in the way that the guardian reasonably believed was in the best interests of the person under their guardianship. Further, in determining what was in that person's best interests, the guardian was required to seek to obtain the current views and wishes of the person under guardianship, as far as it is practicable to do so, to take into account all relevant considerations and weigh up the relevant considerations, giving each of them the weight that the guardian reasonably believes is appropriate in the circumstances. (59)

Further, in determining what is appropriate in the circumstances, the guardian must ensure that their decision maker's authority is exercised in a way that:
  1. is the least restrictive of the freedom of decision and action as is practicable, of the person under their guardianship;
  2. provides the person under their guardianship with as much support as is practicable to make the their own decisions. (60)
To assist guardians to take only the relevant considerations into account, the Act provides a non-exclusive list of 14 relevant considerations. (61)

7.3.5 Guardians must act as required by terms of the order appointing them

Guardianship orders may contain functions or powers stated in standard terms or in terms drafted to meet the particular needs of the person under guardianship. They may contain conditions or be subject to directions. Consequently, when exercising their functions or powers, guardians must exercise them as required by the terms of the order appointing them. (62)

Any action taken, decision made, consent given, document executed or thing done by a guardian in the performance of the functions vested in them by the order appointing them or implied from or ancillary to that order has effect as if it had been taken, made, given, executed or done by the person under guardianship and that person was of full legal capacity. This point is specifically made in the relevant legislation in New South Wales, Tasmania, Victoria and Western Australia. (63) However, it is stated a little differently in the Australian Capital Territory where any act or omission of a guardian under the Guardianship and Management of Property Act 1991 (ACT) has effect as if it were an act or omission of the person under guardianship and that person was of full legal capacity. (64) Guardianship of Adults Act (NT) states the matter more generally. It states that any act done, or omission made, by a guardian in the exercise of their authority has effect as if it were done or made by the person under their guardianship when that person had full legal capacity. (65)

The approach in the Guardianship and Administration Act 2000 (Qld) is different. When it is necessary or convenient to exercise a power, a guardian may sign a document as guardian and the document is as effective as it would have been if it had been signed by the person under guardianship with capacity to sign the document. Also, the guardian may exercise any of the powers given in the guardianship order in their own name. If a guardian does this, their action is as effective as if it had been done in the name of the person under guardianship. This implies that a guardian, in taking action under the guardianship order appointing them, acts with the same effect as the agent of the person under guardianship with full authority to take the actions they have taken. (66)

The Guardianship and Administration Act 1993 (SA) does not deal with the question, but a guardian appointed by SACAT stands in the shoes of the person they are appointed to make decisions for and their decisions are, in effect, decisions of the person under their guardianship.

The legal and practical effects of the decisions and actions of guardians on behalf of the person under their guardianship help explain why guardians are subject to a range of obligations and responsibilities placed on them.

7.4 Restrictions on the functions or powers of a guardian

While tribunals and courts in Australia have wide powers to make guardianship orders, it does not follow that they have the power to appoint guardians as substitute decision-makers for every area of personal decision-making. Some matters are so personal, such as the decision to marry and some involve the exercise of a personal right that must be exercised only by the person themselves. Such rights may not be exercised on behalf of the person if they have lost capacity and they are lost or in abeyance if the person loses capacity to exercise them. Examples are the right to marry and the right to vote in an election. This matter has been recognised in Western Australia, the Australian Capital Territory and the Northern Territory where there are statutory restrictions that preclude a guardian from doing certain things. In the Australian Capital Territory these are:
  1. the power to discipline the person under their guardianship,
  2. to vote in an election for the person under their guardianship,
  3. to make a will or other testamentary instrument for the person under their guardianship,
  4. to consent to the adoption of a child on behalf of the person under their guardianship,
  5. to give a consent to a marriage on behalf of the person under their guardianship,
  6. to give a consent required for a prescribed medical procedure for the person under their guardianship. (67)
In Western Australia guardians of adults are specifically denied the right to chastise or punish the person under their guardianship. The other things they cannot do are expressed in similar terms to those in the Australian Capital Territory Act. (68)

There have been decisions by the Supreme Court of New South Wales and VCAT indicating a reluctance to extend the range of the powers and functions of guardians so that they may make substitute decisions for those under their guardianship in relation to matters arising in the course of criminal proceedings or related proceedings. Underlying this reluctance is the view that such decisions are for the accused or convicted person alone, regardless of their capacity to understand the issues involved and make a reasonable judgments in relation to them. (69)

In the Northern Territory these civil and criminal law matters are taken up and restated in the Guardianship of Adults Act (NT). As already noted in 6.10.7, in the Northern Territory a guardian is not authorised to:
  1. exercise the person under their guardianship's right to vote in a Commonwealth, Territory or local government election or referendum;
  2. make or give effect to a decision about:
    1. the care and wellbeing of any child of the person under their guardianship's; or
    2. the adoption of a child of the person under their guardianship's;
  3. make a decision about the person under their guardianship:
    1. marrying or divorcing; or
    2. entering into or ending a de facto or sexual relationship; (70)
  4. make, vary or revoke any of the following for the person under their guardianship's:
    1. a will; (ii) a power of attorney;
    2. an advance personal plan, or anything (by whatever name) having a similar effect in another jurisdiction; (71)
  5. exercise the person under their guardianship's rights as an accused person in relation to criminal investigations or criminal proceedings, including assessments and proceedings under Part 10 of the Mental Health and Related Services Act(NT).
Note the list of decisions a decision maker cannot make includes matters not included in Chapter 7 at 7.4, while 7.4 includes matters that are not included in the above list. We suggest that the matters substitute decision-makers cannot make decisions about discussed above and in Chapter 9.4.6 should be matters that a substitute decision-maker cannot make a decision about anywhere in the country.

As will be seen in Chapters 12 and 15, there are special legislative provisions relating to sterilisation and selected other kinds of medical treatment that either prevent or circumscribe a guardian's capacity to act as a substitute decision-maker in relation to those treatments.

7.4.1 No power to discipline person under guardianship

Only in New South Wales can guardianship orders be made, and come into force, for those who are still minors namely those who are at least 16 years but not yet 18 years of age. (72) In the other States and Territories the legislation applies to those who are 18 years and above. As already noted in 7. 4, the guardianship legislation of the ACT and Western Australia specifically denies a guardian the power to discipline or chastise a person under their guardianship. In any event it is not appropriate for a guardian to discipline another adult. Guardianship is not that kind of relationship. Also, a guardian who disciplined a person who was under their guardianship would be acting contrary to the principles set out in the guardianship legislation throughout Australia and contrary to the principles stated in or the policy behind all the recent legislation in Australia relating to people with disabilities. The view of the courts has long been that the jurisdiction exists for the benefit of the incapable person. (73) To accept that a guardian could be empowered to punish or to authorise others to punish the person under their guardianship, would be contrary to the history of the jurisdiction.

7.4.2 No power to vote in an election for the person under their guardianship

The right to vote is a right given expressly by legislation, according to the terms of that legislation. Subject to arguments about constitutionality in the Commonwealth at least, the right can be removed or denied by that legislation. The Commonwealth Electoral Act 1918 (Cth) provides that a person who, by reason of being of unsound mind, is incapable of understanding the nature and significance of enrolment and voting is not entitled to have their name placed on or retained on any roll or to vote at any Senate election or House of Representatives election. (74) The right is personal and cannot be transferred to another person.

7.4.3 No power to make a will or other testamentary instrument for the person under their guardianship

As noted in Chapter 4, a person must have will-making capacity before they can make a will. They must meet the test in Banks v Goodfellow. (75) Also as noted in Chapter 4, in each State and Territory the Supreme Court may grant leave to any person to apply to the Court for it to make, alter or revoke a will, in the specific terms approved by the Court. (76) While statutory wills can be made, they may be made only by the processes administered by Supreme Courts. The power to make them is not given to guardians. Except as varied by the legislation allowing for statutory wills, the right to make a will is personal and cannot be transferred to another person.

Again, adoption is a matter covered by State and Territory legislation, and principles relating to the best interests of the child being considered for adoption. Adopting a child imposes great responsibilities and obligations on the adopting parent. Because of these considerations, adoption is not something that a substitute decision-maker can consent to on behalf of another person.

If a person lacks the capacity to consent to marry, that is the end of the matter, no court, tribunal or substitute decision-maker can consent, on their behalf, to a person lacks the capacity marrying. (77)

7.5 The functions/powers of guardians

In a 2018 case, the Deputy President of NCAT for the Guardianship Division pointed out that the determination of the parameters of the functions of guardianship in NSW is a matter of interpretation for the institutions vested to exercise the jurisdiction of the Guardianship Act 1987 (NSW), namely the Supreme Court and NCAT. Consequently, it is only through the orders and judgements of the Court, or the orders and reasons for decision of NCAT, that valid interpretation of the meaning or parameters of the functions granted to guardians in NSW can be sourced.(78) However, that does not preclude research, discussion and debate about what functions/powers should be recognised in law or equity as the functions/powers of a guardian (including as different from the functions/powers of an administrator/financial manager); and the content and extent of those functions/powers. Also, the views and determinations of the Courts and tribunals in the other States and Territories vested with guardianship jurisdiction are highly relevant to those discussions, debates and determinations.

7.5.1 Advocacy

As already noted, in Tasmania, Victoria, Western Australia and the Northern Territory, advocating for the person under guardianship is set out in the relevant legislation as one of the ways of acting in the best interests of the person under guardianship. (79) In any event, guardians are expected advocate in the best interests of those under their guardianship in relation to the matters they are given the function or power to make decisions about. Nevertheless, it is sometimes necessary to appoint a guardian with a specific advocacy function. (80)

7.5.2 Accommodation

In Queensland, Tasmania, Victoria, Western Australia, the Australian Capital Territory and the Northern Territory, plenary guardians or limited guardians given the authority by the relevant tribunal or court may decide where the person under their guardianship is to live. (81) In New South Wales guardians have this function and in South Australia guardians have this power because it is a function or power that a guardian has at law or equity. (82) The power to make this decision is very frequently given to guardians. (83)

The view taken in New South Wales at least is that the giving of this function to a guardian authorises them to decide where the person is to live, and for either the guardian, or others acting under their direction, to take the person to that place of residence and to keep them safely there. This form of the accommodation function allows guardians, family-member carers or paid service providers to use normal practices to keep the premises appropriately locked and to provide safe boundaries to the property. This includes introducing complex gate opening devices aimed at preventing children, people with dementia or people with other forms of cognitive impairment either entering unsafe parts of the property or leaving the property unsupervised when they lack the capacity to look after their own safety. The exercise of this form of the function also allows nursing and other staff in hospitals, aged care facilities and similar places where accommodation, day care and associated support services when they are providing services to people with decision-making disabilities to use normal nursing techniques of diversion and engagement of the person to draw them away from situations in which they may inappropriately or unsafely leave the premises. Should such people leave the premises, their carers can guide, direct or help them back to the premises where they are being cared for. They may use methods which may involve touching, but not the use force. Common sense, acting in the best interests of the person to protect them from harm and to preserve their dignity is required in these circumstances.

If a person for whom a guardian is being or has been appointed cannot be kept at a place of accommodation without the guardian and those responsible for the person's care and safety having greater authority to control the person, the guardian can be given a stronger form of accommodation function or power in the order appointing them and giving them their functions and powers. However, this order must be explicit as to the extent of the function or power it gives. Also, the function or power may be given only if it promotes the best interests of the person under guardianship.

In 2016 in the Northern Territory, the Guardianship of Adults Act 2016 (NT) introduced compliance orders. (84) They appear to cover the issues raised in the last paragraph. Compliance orders are dealt with in more detail in Chapter 6.10.7.2.

The form of order used in New South Wales empowers the guardian to authorise others to take the person under guardianship to a place of accommodation, to keep them there and to bring them back to that place of residence should they leave it. The Guardianship Act 1987 (NSW) provides that the guardian, a person authorised by the guardian or particular persons or a class of persons specified in the order may be empowered to take such measures or action as are specified in the order so as to ensure that the person under guardianship complies with the decision of the guardian. (85) Any person who takes any measure or action specified in the order in the reasonable belief that they are empowered by the order to do so and the measure or action is in the best interest of the person under guardianship, and it is necessary or desirable in the circumstances to take that measure or action, is protected from legal action.(86)

In a 2003 case, the then Queensland Guardianship and Administration Tribunal took the same approach in a case involving an adult with a moderate level of intellectual disability who had exhibited aggressive and destructive behaviours over a period of time despite the trialling of many strategies to minimise those behaviours.(87) The question for the Tribunal was whether it could make a guardianship order empowering the guardian to determine where the person under guardianship may live, to keep them at that place of residence and bring them back to that place of residence should they leave it. And, in addition, to require them to undergo examination and treatment by a doctor, including a psychiatrist, using the minimum force necessary and reasonable to carry out the treatment.

The Queensland Tribunal noted that it could appoint a guardian after finding that the incapable person did not have the capacity to make decisions for themselves. The Tribunal also noted that guardians can make decisions, in the best interests of those under guardianship even if that was contrary to the stated views of those under their guardianship.

The Tribunal also stated that the guardianship regime is not simply a "substitute decision making regime" but a regime which must operate in the "best interests of the adult" and, as such, allows guardians to make decisions which may restrain or contain the person under guardianship if that is in their best interests. (88) Consequently, the person under guardianship could be held, diagnosed and treated against their stated views as a result of a decision of their guardian in the exercise of a function or power given to the guardian in a guardianship order.

It is worthy of note that when in a 2015 case the Public Advocate of Victoria asked VCAT for advice about a guardian's power to make decisions about accommodation, VCAT advised that the power given to the guardian to make decisions about accommodation included power for the guardian to decide that the person the subject of the guardianship order live in a locked facility which they may leave only under supervision. (89)

Where the person under guardianship has behavioural problems, arising from their whole of life or acquired decision-making disability, this form of the accommodation function may need to be supported by a behaviour intervention and support plan. This matter is taken up later in this chapter. (90)

There are similar provisions in the Tasmanian and Victorian legislation. (91) It is respectfully suggested that those provisions can be used for the same purpose in those States as it is in New South Wales.

In South Australia SACAT has a specific statutory power to make orders of this kind. (92) This matter was put to the test in 2018 and 2019 when Stanley J of the Supreme Court of South Australia dealt with an application for a writ of habeas corpus, and his judgment was upheld by the Full Court of the Supreme Court.(93)The evidence was that the person the case was about had dementia with frontal deficits, possibly vascular in origin (Vascular Dementia) or alternatively a frontal variant of Alzheimer's disease, of at least moderate severity. In Stanley J's opinion the person did not have the capacity to make decisions about his own health, health care, safety and welfare; nor did he have the capacity to make decisions about his own lifestyle, including where he would like to live. Stanley J found that the person was a person with mental incapacity for whom SACAT could appoint a guardian.(94)

Stanley J noted that common law conferred a general power upon a guardian to exercise control over a person the subject of a guardianship order; but that that position had been altered in South Australia because the power to decide where the person the subject of the guardianship order is to reside was conferred exclusively by s 32(1)(a) of the Guardianship and Administration Act 1993 (SA) on SACAT. SACAT could not confer power on the guardian to decide where the person the subject of the guardianship order is to live.(95)

The Full Court of the Supreme Court upheld Stanley J's decision.(96)

The guardian or another person may apply and the application may be heard at the same time as the application for the appointment of a guardian. SACAT may make an order directing the person under guardianship to live with a specified person or in a specified place or with such person or in such place as the guardian from time to time thinks fit. SACAT may authorise the detention of the person in the place where they are to reside.

It is SACAT that authorises the detention. It may also, by order, direct where the person under guardianship may reside and with whom, but it may leave either or both those decisions to the guardian.

While the order is in force, SACAT may also authorise the person's care providers to use such force as may be reasonably necessary for the purpose of ensuring the proper medical or dental treatment, day-to-day care and well-being of the person.

SACAT cannot make any of these orders unless it is satisfied that the health or safety of the person under guardianship or the safety of others would be seriously at risk if the order was not made. However, the provision cannot be used to allow or authorise the detention of a person under guardianship in a correctional institution or any other place in which persons charged with or convicted of offences may be detained or in any part of an approved treatment centre under the Mental Health Act 1993 (SA) that is set aside for the treatment of those with a mental illness.

The guardian or a member of the police force may enter any premises and take the person under guardianship to the place in which they are to be placed or detained, but may use only such force as is reasonably necessary for the purpose. Also, the person in charge of the premises in which the person under guardianship is being detained may take such action as is reasonably necessary to prevent the person under guardianship from leaving the premises or for bringing them back to the premises should they leave without lawful authority or excuse. There are legal protections for those acting in good faith under this provision. See also Chapter 6.6.10.

The District Court of South Australia has held that a guardian cannot use the authority given them under this provision to direct that the person under their guardianship be taken to a particular place of accommodation and held there overnight in emergency situations. The guardian may direct that the person be detained in the place in which they will reside, but may not direct that they be taken occasionally to a particular place of residence as it could not be said that that they were residing there. (97) Whether a guardian could direct that a person under their guardianship be detained temporarily in a particular place under this provision pending finding a permanent placement for them is an open question. It is a fact situation that is significantly different from that ruled upon by the District Court.

To help make these placement and detention provisions effective, the South Australian Act allows a member of the police force who has reasonable cause to believe that a person who is being detained in any place under such an order is unlawfully at large, without warrant, to enter any place in which the police officer believes on reasonable grounds that the person under guardianship may be and apprehend them, using only such force as is reasonably necessary for the purpose, and return them to the place in which they are being detained. (98)

There is a specific offence in South Australia of, without lawful authority or excuse, removing from the place in which they are being detained a person who is being detained there pursuant to powers conferred under the Guardianship and Administration Act 1993 (SA). Aiding or abetting the person under guardianship to leave that place unlawfully is an offence also. (99)

7.5.3 Health Care

Health care and medical and dental consent are different but related functions. The health care function or power authorises the guardian to take the initiative in deciding on and seeking out appropriate health care for the person under their guardianship. It gives the guardian a proactive role. As the then New South Wales Guardianship Tribunal pointed out in a 2007 case:

The health care function allows a guardian to make decisions in relation to the choice of appropriate health care for a person under guardianship, the provision of that health care and for general health care planning. A guardian, exercising a health care function could, for example, determine that the person under guardianship should consult a specialist medical practitioner or a general practitioner. Differing treatment modalities can be chosen. A guardian might decide between surgical or non-surgical care, traditional/Western medicine or alternative/complementary approaches, therapeutic or curative treatment or palliative care. (100)

The Tribunal went on to note that:

Health care planning is an important part of a guardian's role under the health care function. A health care plan can map out an approach to treatment and may contain general directions about treatment options. Health care planning affords a significant opportunity for a guardian to advocate on behalf of a person with a disability in relation to their health care needs. It can also be of particular importance for people in end of life situations, when a decision is made about adopting a therapeutic approach or a palliative approach to health care. Health care planning which addresses end of life issues is often referred to as advance care planning. (101)

The Tribunal also distinguished advance care planning from the making of an advance directive, something a guardian has no power to make for a person under their guardianship.

The health care function contrasts with the more reactive medical and dental consent function or power which authorises the guardian to seek out needed medical or dental treatment and to give consent to it and to give or refuse consent to medical or dental treatment proposed for the person under their guardianship by others. In New South Wales the medical and dental consent function is exercised under Part 5 of the Guardianship Act 1987 (NSW), but the health care function is not. (102)

In a 2008 case decided by O'Connor DCJ, as President of the then New South Wales Administrative Decisions Tribunal, the then Guardianship Tribunal had given the Public Guardian a health care function to determine what health care and major and minor medical treatment the person the guardianship order was about may receive. (103) The function specifically included the authority to make end of life care decisions including advance care planning. Because of a decision in an earlier case before the Administrative Decisions Tribunal, O'Connor DCJ was asked to determine whether the Public Guardian had power to approve an advance care plan or palliative care plan for a person who was the subject of a guardianship order that permitted life-sustaining treatment to be withdrawn. (104)

O'Connor DCJ noted that in the case of unconscious or incompetent patients, the duties imposed on doctors to provide treatment, including life-sustaining treatment, rested on consideration of what was in the patient's best interests for the purpose of preservation of life. However he continued:

But the law recognises that clinical judgments are involved, and that there is no need to continue treatments which are therapeutically ineffective, or are extraordinary, excessively burdensome, intrusive or futile. The law does not assume that a patient's best interests are served by extending the patient's life by whatever means are available and for as long as possible. (105)

In his opinion, the Guardianship Act 1987 (NSW) did not fetter a guardian in a way that is inconsistent with the ordinary law, and because a plenary order bestowed on the guardian 'all the functions of a guardian of that person that a guardian has at law or in equity', a specified function in a limited guardianship order, whether it is health care function or another function, should be interpreted in accordance with what is permitted by law or in equity in relation to the particular kind of function that is specified. However he particularly noted that:

The only difference between the rights enjoyed under the law as between an autonomous individual with capacity, and a guardian responsible for a person without capacity, is that the guardian must always act according to best interests considerations whereas the autonomous individual, in the exercise of free will, may make decisions which, objectively, appear to be against his or her best interests. (106)

While the Guardianship Tribunal's (now NCAT's) authority comes from the Guardianship Act 1987 (NSW) and not the common law as does much of the Supreme Court's authority, the functions that NCAT may give to a guardian can be to the full extent of the law's understanding of the scope of a guardian's power to make substitute decisions. However, NCAT cannot give, and functions must not be performed in a way that infringes the boundaries set by common law and equity. Also, in the case of a limited guardianship order, guardians must not perform the functions given them in a way that transgresses the terms of the order. (107)

Consequently, O'Connor DCJ was of the view that a guardian could make health care decisions consistent with the principles that have been developed by the general law, and that the current law recognised that a guardian's health function could involve the making of decisions about the withdrawal of life-sustaining treatment. (108)

In the 2007 case, BAH, the then Guardianship Tribunal took a view not dissimilar to the view taken in relation to the stronger, more specific, accommodation function discussed at 7.5.2 above. It considered that a general health care function was not sufficient authority to allow a guardian to make end of life health care decisions, including advance care planning and continued:

The Tribunal is able to give a guardian an end of life health care function, if the Tribunal is satisfied that a patient is in an 'end of life' situation. This can only be determined after a comprehensive assessment of the patient's circumstances, including a thorough and impeccable investigation of the person's medical situation, including their clinical needs, treatment options and prognosis. Family members and others with a genuine concern for the patient's welfare, should be consulted and the views and wishes of the patient considered. In addition, evidence must also demonstrate that the appointment of a guardian is necessary and that the patient would benefit from having a guardian to make decisions about end of life health care. (109)

The Tribunal went on to note what was expected of a guardian in these circumstances. It pointed out that a guardian:
  1. Must take into account the views of the person,
  2. Have regard to the other general principles of the Guardianship Act 1987 (NSW), including the importance of preserving family relationships,
  3. Canvass the views of family members and significant others before any end of life health care plan is considered.
As the Public Guardian was aware that Ms BAH was opposed to medical intervention in general, it must balance those views carefully against considerations relating to her welfare and best interests. (110)

The Tribunal also noted that:

A guardian with an end of life health care function can be a strong advocate for a person with a disability. Important questions can be asked. For example, in Ms BAH's case, a guardian might ask whether a person without a disability, in a similar situation to Ms BAH, would be offered the same health care plan as has been proposed for her. A guardian with a health care function can ensure that health care decisions and health care plans are made to facilitate the best available care and support for the person under guardianship in light of that person's individual needs and their views and wishes. (111)

In a 2018 case in which the facts of the case, and the question of whether or not the general health care function was sufficient authority for a guardian to consent to an end of life care plan or a not-for-resuscitation type health plan, or whether a more specifically worded function was necessary to support decisions relating to the withdrawal of medical treatment, were thoroughly considered.(112) NCAT took the view that it was in the best interests of those who are unable to make their own decisions on these matters that, as far as possible, it should follow a consistent approach to authorising guardians to make such decisions. As the more recent decisions of its predecessor tribunal and itself had endorsed the view that a guardian with a general health care function was authorised to consent to the withdrawal or withholding of treatment, it decided to take the same approach and appointed the parents of the person the subject of the application as his joint guardians with the function of making health care decisions for their son in a context in which end of life decision-making was very relevant.(113)

As Powell J of the Supreme Court of New South Wales pointed out in a 1986 case, by reference to textbook writers from the late 19th and early 20th centuries, a long established role of a guardian is to see that every care is taken to promote the bodily health and mental improvement of the person under their guardianship and to see that they have good medical advice. It is the duty of a guardian to make all necessary arrangements for the care and treatment of the person under their guardianship. (114)

Starting in the 1980s, all six States have created comprehensive statutory schemes for dealing with substitute consent to medical and dental treatment for adults unable to give a valid consent to their own treatment. In 2009, the Australian Capital Territory adopted such a scheme. (115) The roles of the tribunal appointed guardians are set out in these schemes. While neither of the two territories have comprehensive schemes, it is clear that the relevant tribunal can appoint a guardian as a substitute decision-maker for medical and dental treatment in all the States and Territories of Australia. The authority of guardians to give substitute consent for health care action (consent to treatment by a practitioner of a health profession) in the Northern Territory is discussed briefly below.

This is a function or power that is regularly given to a guardian. The details of how the function or power is to be carried out in each State and the Territory are set out in Chapter 12.

In many cases, the statutory schemes overcome the need for a guardian to be appointed as a substitute decision-maker in relation to medical and dental treatment because they provide for statutorily authorised substitute decision-makers. Nevertheless, there are some situations in which guardians need to be appointed for this purpose. Common examples of this are where there is conflict among the statutorily authorised substitute decision-makers as to the treatment to be provided to the person unable to give a valid consent to their own treatment or where there are differences of view about medical treatment between the person unable to give a valid consent to their own treatment and their close friends or carers. (116)

Guardians are sometimes confronted with very difficult decisions as to whether or not to give consent to medical or dental treatment, particularly life-sustaining treatment. (117) End of life decision-making is dealt with in detail in Chapter 14.

In the Australian Capital Territory, if a person makes an enduring power of attorney which gives the attorney powers in relation to health care matters but the person is subsequently placed under guardianship by ACAT, and ACAT revokes the power of attorney in whole or in part, the guardian must nevertheless consider the terms of the power of attorney before they make decisions about health care matters on behalf of the person under their guardianship. (118) In the Australian Capital Territory health care matters include the withholding or withdrawal of medical treatment. Consequently, a guardian appointed in these circumstances is expected to acquaint themselves with what the person under their guardianship may have had in mind when they made their power of attorney.

In the Northern Territory, NTCAT may give guardians authority to consent to health care actions (treatments) proposed for the person under their guardianship. However they may not consent to restricted health care being given to a person under their guardianship. (119) In addition, and consistent with the policy in the guardianship related jurisdiction in the Northern Territory, a guardian cannot give consent to health care action that is contrary to a relevant advance consent decision set out in an advance personal plan made by the person the subject of the guardianship order; unless NTCAT has ordered that that advanced care decision be disregarded. (120) The authority of guardians appointed by NTCAT in relation to substitute consent to proposed health care action is set out in detail in Chapter 12.10.3 and 12.10.6.

It should be noted that, in New South Wales, while NCAT may override the refusal of a person to consent to medical treatment by giving its own consent to medical or dental treatment proposed for a person unable to give a valid consent to their own treatment, it can authorise a guardian to override the objection of a person under their guardianship to either major or minor treatment as those terms are defined in the Guardianship Act 1989 (NSW). (121)

Occasionally tribunals exercising guardianship jurisdiction give guardians the function (authority) to consent to medical treatment for the person for whom they are guardian in circumstances in which this will involve making decisions on reproductive and sexual health for women with impaired decision-making capacity for such matters. (122)

7.5.5 Services

Another function or power commonly given to guardians is that of authorising them to empower others to provide services to the person under their guardianship. This function or power can be of great benefit to the person under guardianship in assisting them to continue to lead as normal a life as possible in the community by remaining, as they often desire, in their own homes but supported by others providing domestic support services to them through government subsidised programs or through services paid for privately.

Through the use of this function or power, elderly people with dementia, and others with decision-making disabilities, can be maintained in their own homes for months and sometimes years beyond that which would be possible if those services were not available to them because of their refusal to accept them. While this function is most often given to the guardians of elderly people with dementia, it can be used for the benefit of people with decision-making disabilities arising from other causes, for example, acquired brain damage and intellectual disability or, less successfully, arising from psychiatric condition.

The function or power is most often useful where the person's decision-making disability makes them incapable of appreciating that they are unable to continue to live in their present accommodation without the assistance of service-providers and where their level of functioning is such that service-providers will be able to give them sufficient support to stay in their present accommodation - usually their own home.

The function or power is effective where, although the person under guardianship may be stating that they do not want the services provided, service-providers using normal methods of discussion, diversion or persuasion are able to gain access to the premises and provide their services.

What happens when the person under guardianship denies them access and they cannot persuade that person to let them in? Can the guardian authorise them to enter the premises forcefully? This matter was considered by the then Queensland Guardianship and Administration Tribunal in the 2006 case, Re CJ. (123)

CJ was a 53 year old woman who had been living in her own home. She had diabetes which required constant monitoring and had been diagnosed with paranoid schizophrenia in 1985. CJ had been able to live independently in the community with the assistance of mental health case workers, service providers and the support of her sister, who lived nearby and who had a key to her unit. CJ's meals were provided by Meals on Wheels and a nursing service monitored her diabetes. Those arrangements were working well until early 2005 when CJ began consistently to refuse entry to her residence to the mental health workers and the nursing service.

In January 2005 the Queensland Tribunal received an application from CJ's psychiatrist, Dr A, seeking the appointment of the Adult Guardian as guardian so that a guardian could make decisions about CJ's health care. Dr A advised that CJ lacked any insight into her illnesses and this was causing a great deal of concern as she was refusing necessary health care and other services for both her schizophrenia and her diabetes. In February 2005 the Tribunal appointed the Adult Guardian as guardian for CJ for decisions in relation to health care and the provision of services. However, the matter came on for further hearing in 2006 to consider a guardian's power and duty to allow a health provider access to the house of the person under guardianship, when the adult refused to allow such access and the Adult Guardian's decision not to authorise access when the person under guardianship refused access to her property for health care.

At the time of this hearing, CJ was the subject to an Involuntary Treatment Order under the provisions of Mental Health Act 2000 (Qld) and was receiving compulsory treatment for her mental illness. Also, she was denying that she had either a physical illness or a mental illness.

The Tribunal decided that, because of the long-established common law principle that every unauthorised entry upon private property is trespass and a person in possession or entitled to possession of premises has the right to exclude others from those premises, the power given to the Adult Guardian did not include power of entry into a premise in the absence of specific statutory power to do so. Furthermore, the Tribunal was satisfied that should CJ refuse the guardian or health providers' access to her premises, then they may not authorise a forced entry under section 33 of the Guardianship and Administration Act 2000 (Qld). (124)

The Queensland Tribunal also held that section 33 did not carry with it an implied power to enter a person's premises if the person refused access to the guardian or someone acting under the guardian's instructions. (125)

Section 33 of the Guardianship and Administration Act 2000 (Qld) provides that a guardian is authorised to do anything in relation to a personal matter that the person under guardianship could have done if they had capacity for the matter when the function or power was exercised. This provision is similar to provisions found in the New South Wales, Tasmanian, Victorian and Western Australian legislation. (126) While the then Queensland Guardianship and Administration Tribunal's decision in Re CJ may be correct on the facts of that particular case, it is respectfully suggested that it does not apply to many other similar fact situations. That case can be seen as an attempt, appropriately resisted by the Tribunal, to use the guardianship legislation to impose compulsory treatment for a psychiatric condition on a person, something which the mental health legislation of the various States and Territories is established to do.

As was submitted in the Re CJ, guardianship legislation is remedial in nature so that its provisions should be given a broad interpretation to achieve the general principles and objects found in that legislation. Section 33 and the similar provisions in the New South Wales, Tasmanian, Victorian and Western Australian are designed to place a guardian in the same shoes as the person under guardianship in relation to any decision or action that they could have made if the adult had capacity at the time. In other words to give the decision-making power of the person under guardianship to the guardian.

Also, as was submitted, there are no legislative provisions to prevent the tribunal or court dealing with the matter giving a guardian an expressed power to facilitate the person under guardianship receiving health care by providing access to them, for example, by providing a nominated person with a key and an expressed right of entry provided the entry was for the purpose for ensuring that the person receives the services they needed to be able to live at home.

The services function or power is often used as a less restrictive alternative to having to place a person under guardianship in an aged care facility or other place of supported accommodation where their lives are much more controlled and regimented by others. It also protects them from self-neglect.

It is also crucial to appreciate that the services function or power can be given only if the person has been found to be incapable of decision-making in relation to the matters covered by that function or power. Seen in the light of all these factors, and appreciating that entry onto the premises is for the purpose of providing services to the person, not to arrest them, search their premises or forcibly treat them, then entry onto the premises under the authority of the guardian, even with the use of a key, as long as force is not used either to gain entry or to provide the services, is within the scope of the function or power. (127)

In a 2018 review (and renewal) a guardianship order, the Deputy President in charge of a the Guardianship Division of NCAT, Malcolm Schyvens, dealt with elements of the extent of the services function often given guardians by NCAT.(128) The question arose because the Intellectual Disability Rights Service (IDRS), the major provider funding to persons with disabilities, some of whom have guardianship orders made in relation to them, wanted guidance on the question of whether the services function prevented legal representation, and/or advocacy services, and/or prevents some medical reports being obtained; without the consent of the guardian.

In Western Australia, there is a specific provision that can be used where the person under guardianship is on certain premises if the occupier or person in charge of those premises refuses to allow a guardian to enter those premises for the purpose of performing any function in relation to the person under guardianship. (129) It can be assumed that the provision applies to the performance of any guardianship function given to the guardian. It may well apply to other functions necessarily associated with the guardian's responsibilities arising from their appointment as a guardian, for example, acting to protect the person under guardianship from abuse, exploitation or neglect. (130)

The section authorises the guardian to apply to WASAT for a warrant to enter those premises. If WASAT is satisfied that it is necessary for the guardian to enter those premises, it may issue a warrant authorising the guardian to enter the premises by force, if necessary, during a particular period or at any time, as the warrant may specify. When executing the warrant, the guardian may be assisted by such persons as the guardian thinks necessary, including police officers. It is an offence to obstruct or hinder a person acting under the authority of such a warrant, without reasonable cause. (131)

This is not an appropriate mechanism for ensuring the safety of the person under guardianship over anything other than a short period of time.

This provision can also be used for confirming whether or not the person is in those premises. This could be useful in cases of "granny-napping" where a person is taken away from where they are living by someone other than the guardian or someone acting under their direction and are being kept at that other place to which the guardian cannot obtain access. (132)

We note the compliance order provisions in the Guardianship of Adults Act 2016 (NT). (133)

7.5.6 Access

Although it may have been borrowed from family law, it is accepted that making decisions as to who should have access to a person under guardianship and under what terms and conditions is a function or power that a guardian of an adult may need to exercise under a plenary guardianship order or may be given to a guardian in a limited guardianship order. Following principles developed in family law, the function or power must be exercised in the best interests of the person under guardianship and not as a right of others, including the parents of a person with a whole of life intellectual disability. (134) In Queensland, access has been held to be a "personal matter" for the purposes of the Guardianship and Administration Act 2000 (Qld). (135)

In a 1984 case, Powell J of the Supreme Court of New South Wales relied on precedents going back to the 18th century dealing with court ordered access to an incapable person to appoint the Protective Commissioner as the committee of both the estate and person of a young woman who had a severe intellectual disability and to make access orders which gave the Protective Commissioner a small role in approving the necessary arrangements. (136)

In a 2006 case, WASAT appointed a guardian to deal with access and contact issues rather than leave dealing with these matters in the hands of the person's service providers. WASAT reappointed the Public Advocate as limited guardian for LA, a 29 year old woman with physical and intellectual disabilities. WASAT noted that LA was settled in her accommodation placement and received an excellent level of care but that there was no one available and appropriate from her family to decide personal matters on her behalf. WASAT considered that, in the particular circumstances of that case, it was not in LA's best interests that decisions about personal matters be made by the service providers or by her paid carer and that it was appropriate that an independent guardian with the formal authority to decide matters in relation to her person be reappointed, namely the Public Advocate. (137)

In that case a request had been made by LA's mother for LA to have contact with her sister who was currently in prison and with family members in a remote community. WASAT noted that family contact and visits to her community were critical to the maintenance of LA's family and cultural relationships and continued:

The decisions which may be made in relation to contact are complex as they may include balancing the needs of the represented person for contact with her family, her cultural needs, the maintenance of her relationships, her wishes and the need to limit the restriction on her rights with the need to ensure the proper protection of her health and safety. Exercising this judgment goes beyond the role and proper authority of a paid carer or service provider. Decisions to allow or restrict contact the represented person has with others should be made by a guardian with formal authority having regard to the sometimes competing considerations in [section 51 of the Guardianship and Administration Act 1990 (WA)] which elaborates on the way in which a guardian acts in the best interests of [the person under guardianship]. (138)

The issue of facilitating access is also relevant to older people under guardianship. Older people with a disability, particularly those with dementia, are sometimes sequestered at home by those caring for them. This may occur as a result of family conflict, particularly when one family member who is living with the older person limits access to the older person, often to the older person's detriment. In such cases it may be useful to give an access function or power to a guardian in order to facilitate contact with friends or family members. Sometimes access functions are needed so that the guardian and those providing accommodation services to the person under guardianship can work out a roster or other arrangements to allow a range of visitors, who would otherwise clash with one another, to visit the person under guardianship. (139) An access function may also be necessary where an elderly person with dementia is vulnerable to the influence of their spouse, other family members or significant others who, themselves, may have cognitive defects caused by dementia or other health problems. (140)

Sometimes access functions are needed to allow the guardian to stop another person having access to the person under their guardianship because that other person has indicated that they intend to remove the person under guardianship from their current accommodation against their best interests and contrary to the accommodation decision made by the guardian. (141)

In a 2016 case, the Administrative Division of NCAT upheld a decision made by the Public Guardian, in the exercise of an access function to deny a person (CCT) access to MH, an elderly widow woman with dementia, who was under the guardianship of the Public Guardian. (142) Among the reasons for upholding the Public Guardian's decision, NCAT noted that:

[I]n the 3 month period when CCT was most involved in MH's care, there is worrying evidence of an attempt to take financial advantage of her vulnerable state and to isolate her from family and other persons who would protect her from harm and who she had trusted to have her interests at heart. The events that took place during this short period of time support the conclusion reached by the Public Guardian that CCT did not have MH's overall welfare and interests at heart. (143)

We note that access is one of the examples of the term "personal matter" given in the Guardianship of Adults Act 2016 (NT). (144)

7.5.7 Restrictive practices

The issue of restrictive practices has become very significant with the emergence of the modern guardianship in Australia in the last two decades of the 20th century, with the recognition of the rights and abilities of people with decision-making disabilities to live a normal a life as possible in the community, and to have their freedom of decision-making, and freedom of action, restricted as little as possible. The issue has also been highlighted by the fact that people are living longer but may be living with dementia and other conditions which affect their decision-making capacities including their ability to understand the circumstances in which they are living, or to appreciate the consequences of the actions they either take or fail to take. Also, the rights of persons with disabilities have been recognised in the Convention on the Rights of Persons with Disabilities, which binds Australia as a matter of international law and specifically recognises that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. \(145)

In response to all these matters, there has been a significant increase in the understanding of and knowledge about restrictive practices amongst health care professionals and carers alike. Also, all States and Territories have guardianship legislation and tribunals with guardianship jurisdiction, as well as Supreme Courts which have inherent (parens patriae) jurisdiction, and sometimes legislated jurisdiction. However, since 2018 at least the Commonwealth has become involved with restrictive practices issues through a notifiable instrument made under the provisions of the National Disability Insurance Scheme Act 2013 (Cth) and through a legislative instrument made by the Minister under the provisions of the Aged Care Act 1997 (Cth).(146)

We will come back to deal in detail with the developments just referred to at 7.5.7.2 below; but first we will look briefly at the common law background upon which these developments were built.

7.5.7.1 Common Law background

7.5.7.1.1 Keeping safe (containment)

Although the law changed in Queensland in 2006 as a result of the commencement of the Disability Services Act 2006 (Qld), in a 2003 case dealt with by the then Queensland Guardianship and Administration Tribunal (now QCAT), it is suggested that the legislation still reflected the common law. That case involved a 23-year-old woman who had an intellectual disability in the moderate range following a brain haemorrhage after an injury when she was three and a half years of age. (147) She had been taken into care at the age of twelve and had a series of placements in foster care during her teenage years.

At the age of 23 and in a large residential institution in Queensland, her behaviour continued to be aggressive and destructive involving regularly kicking holes in walls, tipping out food, misuse of cleaning products and food, swearing at staff, physically threatening staff, pulling wires out of walls, throwing cups at walls, kicking windows, pulling a stove down and pulling out the door.

Despite the trialing of many strategies to minimise her behaviours, none had been successful. Her outbursts were unpredictable and included an incident in which a staff member was threatened with a knife. The young woman's behaviour also included significant self-harm as she used her knees and elbows to damage walls and windows, resulting in bruising and cuts to these areas. Staff also reported increasing levels of obsessive behaviour and episodes where the young woman believed she was talking to and listening to people who were not actually present.

The Queensland Tribunal stated that guardians must inherently have the power to prevent those under their guardianship harming themselves. Further, that guardians can provide the consent necessary to allow restriction or containment just as those under guardianship themselves could do so if they had capacity. (148) The Tribunal empowered the guardian to authorise medical assessment and treatment of the young woman as well as containment of her to allow this to occur.
7.5.7.1.2 Seclusion

Seclusion will sometimes be included in a behaviour intervention plan. However, before discussing that matter, it is worth noting Lord Scott's comment in the House of Lords that:

It cannot be doubted that Ashworth (a hospital where mentally disordered patients are detained) owes a legal duty to each of the inmates of the hospital to take reasonable steps to protect him or her from physical injury by other inmates. Ashworth cannot choose its patients. They are sent to Ashworth by others and Ashworth has to accept them, to detain them and to look after them. All of them suffer from some degree of mental disturbance - otherwise they would not be there. Some of them from time to time present a physical danger to other inmates. Where the danger appears particularly acute Ashworth's legal duty to the other inmates may well require Ashworth to place the dangerous inmate in seclusion. It is accepted that the only legitimate purpose of placing an inmate in seclusion is the protection of others. Seclusion cannot be used as a punishment nor can it constitute medical treatment, at least in the narrow sense of that expression. And the placing of a patient in seclusion where the apprehended danger that the patient in question may inflict harm on other inmates is sufficiently acute would, in my opinion, constitute a step that Ashworth's legal duty to the other inmates would require it to take. (149)

Reacting urgently to a situation and secluding one person for the protection of others may be allowable under a common law duty of care to protect the others from the imminent risk of harm. However, this duty of care can only be relied upon in urgent and unforeseen circumstances. If incapable persons with difficult behaviours are known to have outbursts of violence that may threaten others, it is the responsibility of the carers of such people to address that issue by taking appropriate action to discover the cause of the behaviours if possible and to develop ways, including behaviour intervention plans, to reduce those behaviours in the interests of those people and all those in contact with them.

In the House of Lords, Lord Hope described seclusion in its unadorned reality as a means of controlling seriously disturbed behaviour. He noted that there was general agreement that the sole aim of seclusion was to control such behaviour where it was likely to cause harm to others and continued:

There is general agreement also as to the nature of the procedure. It consists of the supervised confinement of the [person] in a room which may be locked to protect others from significant harm. But opinions differ sharply as to the length of time for which it may be proper to resort to it. This in turn affects the degree to which seclusion in practice interferes with the[ person's] personal autonomy, the extent to which it is possible for the state by means of a uniform code to regulate this and the way in which the [person's] interests are to be safeguarded. (150)

When this case was in the Court of Appeal, Hale LJ (as she then was) suggested another possible legal justification of the use of seclusion, namely what she called the "common law doctrine of necessity". (151) She noted, in reliance upon In re F, that where a person lacks capacity there is a power to provide them with whatever treatment or care is necessary in their best interests. (152) She then continued:

The fact that there exists a power to control or protect cannot mean that any and every use of that power is lawful. There must be limits. If there were not, it would still be lawful to confine patients in the shackles and other mechanical restraints which were commonly employed in the madhouses and asylums of the past. …. The criterion must be one of reasonable necessity judged against the purpose for which the restraint is employed. Hence, a detained patient may be kept in the hospital with no more force than is reasonably necessary in the circumstances to achieve this. Any patient may be restrained from doing harm to others with no more force than is reasonably necessary in the circumstances. An incapacitated patient may be given such treatment as is reasonably necessary in his own best interests. (153)

While seclusion may be a justifiable way of dealing with an incapable person's difficult behaviours in some situations, it is clear that if the possibility of seclusion is to be included in any behaviour intervention plan, it must be provided for as a last resort and be subject to reasonable time limits with strict limits on the force that can be used to get a reluctant person into a place of seclusion.
7.5.7.1.3 Holding a person with an intellectual disability and behavioural problems in a place in which there are restrictions on liberty not "false imprisonment"

In 2010, Johnstone DCJ of the New South Wales District Court held that a person with an intellectual disability and behavioural problems charged with criminal offences, sent to the Kanangra Centre operated by the New South Wales Department of Community Services originally on remand for the alleged offences, but held there for six and a half years against the wishes of the person's guardian, was not falsely imprisoned. (154) This was because the fact of intentional total restraint could not be proved on the facts of the case. (155)

The young woman involved had substantial and difficult to manage behavioural problems which led to all her placements in community-based accommodation breaking down, prior to her being charged with the criminal offences, even when she had 24 hour support provided by the Department. The Guardianship Tribunal had, prior to the criminal charges being laid against her, appointed the Public Guardian as the young woman's guardian and the Protective Commissioner as her financial manager. The Tribunal kept renewing the guardianship order after each review, and the financial management order remained in place. Although the Public Guardian pointed out to the Department constantly that the young woman's placement at the Kanangra Centre was inappropriate, the Department temporised for many years, part of the time because of the cost of providing the young woman with appropriate supported accommodation, but eventually provided such accommodation to her.

The case shows the difficulty for a guardian, even the Public Guardian, in being able to get a person under guardianship, because of their difficult behavioural problems, placed in accommodation and given service support appropriate to their needs.

When the case went to the NSW Court of Appeal on appeal, the trial judge's decision was upheld. Nevertheless, Whealy JA noted that it could not be said that the doctrine of necessity could possibly be extended to permit the detention of a person with an intellectual disability, epilepsy, personality disorder and behavioural problems manifested in violent behaviour towards others for a period of more than six years as there was no authority that would allow such a lengthy detention by reliance on the doctrine. (156)

Prior to the coming into existence of the National Disability Insurance Scheme, the Guardianship Division of NCAT occasionally empowered a guardian to authorise others to restrict the freedom of movement or impose other restrictive practices in relation to a person with an intellectual disability who had been in trouble with the criminal law. In some cases, these restrictions were an appropriate part of a behaviour intervention and support program for the person under guardianship as they were intended to:
  1. assist the person under guardianship to change their behaviour and move towards a more positive and fulfilling lifestyle,
  2. help the person to avoid re-offending and risking imprisonment,
  3. facilitate access to bail, bond, parole and other non-custodial options,
  4. assist the person to comply with conditions on non-custodial options.
The Guardianship Tribunal (now the Guardianship Division of NCAT) noted its need to be careful about giving this function to a guardian because of the risk of guardianship orders being used as community protection orders, rather than as orders that maintain their paramount focus on the interests of the person under guardianship. The Tribunal also noted the comparative lack of established standards of good practice in behaviour intervention and support in relation to offending behaviour, and the very limited skill base in NSW in this field. However, there has since been a substantial increase in knowledge about behavioural problems and the development of experience in and understanding of how to help those with behavioural problems to deal with them and to live in the community.

In addition, it noted the fact that people with offending behaviour usually had comparatively mild intellectual disabilities so that the issue of incapability and its nexus to the offending behaviour, as well as whether a guardianship order could be made for them, was not clear cut.

7.5.7.2 Restrictive Practices - what are they and the context in which they arise

With the coming into existence of the National Disability Insurance Scheme by the Commonwealth Government and the establishment of the NDIS Quality and Safeguarding Commission (the NDIS Commission) a national approach to dealing with restrictive practices has been developed for NDIS service providers. Additionally, for Aged Care Services providers, on 1 July 2019 the Quality of Care Principles 2014 (Cth) amended by the Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019 (Cth) came into force. The stated purpose of this amendment was to limit the use of chemical and physical restraint by approved providers of residential care and short-term restorative care in residential settings.

Some people with intellectual disability, acquired brain injury or dementia demonstrate behaviours that others find challenging to understand and manage. These behaviours can manifest in many ways, but they often take the form of aggression directed at self, others or property, prompting a need for intervention. In dementia, changed behaviours or Behavioural and Psychological Symptoms of Dementia (BPSD), such as apathy, agitation, anxiety, verbal and physical aggression are as common as memory loss. They occur in up to 90% of people with the disease and are therefore considered virtually ubiquitous in the disease, and part of the disease.

A restrictive practice is any practice or intervention that restricts the rights or freedom of movement of a person. They include:

(i) mechanical restraint, where a device is used to prevent or restrict a person's movements;

(ii) environmental restraint, where a person's access to parts of their environment, including items or activities, is restricted;

(iii) seclusion - where a person is kept in a room or space at any time where their exit is prevented;

(iv) physical restraint - where physical force is used to prevent or restrict a person's movement; and

(v) chemical restraint - where medication is used for the primary purpose of influencing a person's behaviour, and not for treatment of a diagnosed mental disorder, physical illness or physical condition.(157)

If a person can provide their own valid consent to the use of restrictive practices, then there is no need for substitute consent. In the absence of valid consent, restrictive practices may be deemed unlawful because they limit or confine a person's movements, access and freedom. If substitute consent is needed, only a guardian with a restrictive practices function can provide consent. However, in relation to chemical restraint, that is open to debate because the use of psychotropic medication is a type of medical treatment. However, there are arguments that sometimes psychotropic medications are used for purposes that do not promote or maintain health or well-being, that adversely impact the "self-determinative ability" of the person being administered the medication and may have a negative impact on the health and well-being of that person. These matters are set out in the 2019 decision the Guardianship Division of NCAT, the HZC Case. (158) We take up this issue below.

However, before doing that, we note that not all restrictions on a person's movements are restrictive practices requiring the appointment of a guardian. (159)

In its Fact Sheet "Restrictive practices and Guardianship", NCAT has stated that:

Restrictive practices, including the use of chemical restraint, aim to address behaviour issues and minimise harm; they do not aim to treat a medical condition. For that reason, they are not considered to be a form of medical treatment under the Guardianship Act 1987_ (NSW).

However as noted in 7.5.7 above, since 1987, the scientific understanding, treatment and management of behavioural issues, including the medical conditions in which they occur, has evolved considerably. A considerable body of international research, as well as advocacy by family members and support groups for people with decision-making disabilities, has culminated in a robust and consensual approach to the ethical, evidence- based management of behavioural issues, including the use of both chemical restraint and non-pharmacological approaches. Also, there are policies, practices and procedures developed by government and non-government agencies to support people with changed behaviours in an ethical and legal way.(160) For example, for dementia, the Dementia Support Australia (DSA) is a national service, which administers the Dementia Behaviour Management Advisory Service (DBMAS) and Severe Behaviour Response Teams (SBRT) to up-skill, assist and support aged care providers in improving care for people with dementia and related behaviours that is responsive to their individual and diverse needs and circumstances (161)

Importantly, there is absolute consensus amongst the health care community, and from research and practice, that non-pharmacological (non- drug) measures are the first-line best practice approaches in dealing with mild to moderate behavioural difficulties. There is a rapidly growing body of research evidence supporting the use of these non-pharmacological interventions in dementia, particularly those individually tailored to the needs of the particular person (162)

However, sometimes either or both psychotropic medication and restrictive practices are needed to relieve distress and manage behaviour that poses a serious risk to the person themselves or others. In such situations, medication, often in conjunction with non-pharmacological interventions is required. A range of psychotropic medications (medications that affect mental state including emotions and behaviour) such as antipsychotics, antidepressants, benzodiazepines and anticonvulsants, have been used in this context, with variable empirical evidence to support their efficacy.

When prescribing is informed and judicious, utilising low starting doses with slow and cautious dose titration, and careful monitoring for the emergence of side effects, pharmacological intervention can be helpful in managing a range of BPSD such as aggression and psychosis. The outcome of a pharmacological treatment should be monitored on a routine basis for both its effect on the frequency and severity of the symptoms and their side effects. Very often in the case of dementia, the need for drug treatments for BPSD changes as the disease progresses. As a matter of principle, drug treatment for BPSD should be the last resort only, time limited and not exceed12 weeks without a review of the treatment regimen. (163)

The use of psychotropics carries significant risks and side effect burdens, including risk of mortality in older patients with dementia. (164) For this reason, psychotropic medications are best reserved for treating severe symptoms and distress, including behaviour disturbance that is unresponsive to non-pharmacological treatments. In such cases, we would consider that psychotropics or "chemicals" are being used to treat symptoms of the illness of dementia and if the person requires substitute consent for medication it should be provided via the appropriate substitute consent regimes in place for this across all States and Territories (see Chapter 12). Additionally, The Guardianship Tribunal of New South Wales, now the Guardianship Division of NCAT, has noted that restrictive practices and medication may need to be used in an emergency to prevent harm.

It is worth noting that in Victoria, Functional Behaviour Assessments are developed to support people with a disability with "behaviours of concern". They comprise a step-by-step process for investigating behaviours of concern and understanding their purpose in order to guide the development of effective behaviour support plans. The procedures used in a functional behaviour assessment are designed to identify the environmental factors that predict and maintain behaviours of concern, that is, the triggers or antecedents, which are the events immediately before the problem behaviour and the results or consequences, which are the events that immediately follow the behaviour. In a 2016 case, VCAT decided that a guardian who has powers and duties to make decisions about access to services has the power to decide whether or not a functional behaviour assessment should be conducted in relation to a represented person. (165)
7.5.7.2.1 Restrictive practices used by National Disability Insurance Scheme (NDIS) providers

The creation of the National Disability Insurance Scheme by the Commonwealth Government and the establishment of the NDIS Quality and Safeguarding Commission (the NDIS Commission) has also led to the creation and bringing into force of the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (C'th) (the Rules) and its explanatory statement.(166)

Under the Scheme, NDIS funded services have a legal obligation to only use restrictive practices within the context of a positive behaviour support plan prepared by an NDIS behaviour support practitioner and reviewed at least annually. NDIS funded services are also obliged to provide to the NDIS Commission copies of behaviour support plans and monthly reports on the use of restrictive practices. Restrictive practices may be used only "as a last resort in response to a risk of harm to the person with disability or others" and as the least restrictive response "to ensure the safety of the person or others". The NDIS Commission can monitor patterns and intervene with service providers where appropriate. Service providers also have to comply with any State or Territory authorisation process.

Since 1 July 2018, registered NDIS providers in NSW, and the other States and Territories, have been regulated by the Commission (NDIS Commission) and are responsible to ensure that consent and authorisation is obtained for the use of "regulated" restrictive practices. They and behavioural support practitioners must comply with the requirements set by the NDIS Commission, including those outlined in the Rules. (167)

Under the NDIS the term "restrictive practice" is very widely defined. It means any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with disability.(168)However the only restricted practices that fall into the five categories set out below have to be regulated under the Rules. These are:
  1. seclusion, which is the sole confinement of a person with disability in a room or a physical space at any hour of the day or night where voluntary exit is prevented, or not facilitated, or it is implied that voluntary exit is not permitted;
  2. 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;
  3. 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;
  4. physical restraint, which is the use or action of physical force to prevent, restrict or subdue movement of a person's body, or part of their body, for the primary purpose of influencing their behaviour. Physical restraint does not include the use of a hands-on technique in a reflexive way to guide or redirect a person away from potential harm/injury, consistent with what could reasonably be considered the exercise of care towards a person; and
  5. environmental restraint, which restrict a person's free access to all parts of their environment, including items or activities.(169)
Rule 9 of the Rules in particular, requires registered NDIS providers in each State and Territory to use an authorisation process in relation to the restrictive practices and the notes to Rule 9 of the Rules state:

An authorisation process may, for example, be a process under relevant State or Territory legislation or policy or involve obtaining informed consent from a person and/or their guardian, approval from a guardianship board or administrative tribunal or approval from an authorised State or Territory officer.

This Commonwealth legislation is not binding on NCAT in its deliberations when considering whether it should appoint a guardian with the function of making decisions about restrictive practices. However, NCAT considered that there were sound reasons why it would be in the best interests of people in relation to whom restrictive practices were being used in NSW, for there to be some consistency in the way the definitions were applied by all involved in the processes relating to restrictive practices.(170)

Consistency in the way the definitions were applied by all involved is one reason for having a forum like NCAT to determine restrictive practices matters. Other reasons include the need to have a forum where, given the width of the definition of "restrictive practice", the question of whether or not a practice is a restrictive practice that fits within the definition of a "regulated restrictive practice" and then whether a practice perceived by some as a regulated restrictive practice is actually a restrictive practice in the context of the particular case.

We suggest that in addition to considering whether or not a restrictive practice (including both chemical and physical/mechanical/environmental restraints) fits within the prescribed definitions, NCAT and the tribunals in the other States and the two Territories with jurisdiction similar to NCAT's guardianship jurisdiction, might also have a role in ensuring any behaviour support plan is structured so that the proposed prescriptive practice is used as a "last resort" and constitutes the least restrictive practice in the sense of being consistent with scientific, evidenced- based best practice. (171)

These issues equally apply to mental illness as they do to dementia. We note that both in the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) and the Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019,(Cth)( see discussion below in ) chemical restraint is not considered chemical restraint if used to treat a diagnosed mental disorder, a physical illness or a physical condition. However, it is important that this definition not be used as an "opt-out clause" in relation to people with mental and physical disorders. That is, by excluding these conditions it provides a clause for aged care or NDIS providers to opt out of regulations which are intended to minimise restraint, or to opt out of best practices around the use of psychotropics, in relation to people with mental or physical disorder.(172) People with mental or physical disorder who exhibit behavioural disturbance don't always automatically require psychotropics, or an increase in psychotropics, to treat the behaviour disturbance. For example, we discuss a case subsequently where a person with a mental illness refused medications and this was considered a behaviour disturbance, for which psychotropics were given. It is no more appropriate to use antipsychotics as the first line to treat behaviour disturbance per se in schizophrenia, or delirium (mental state perturbation due to physical illness), than it is to use these in dementia.

Returning now to the case in which the role for NCAT in this modern era of regulated restrictive practices was canvassed in the reasons for decision given by a panel of the Guardianship Division of NCAT, in a 2019 case, led by the Deputy President in charge of that division. That case was an "end of term review" of a guardianship order in relation to a young adult woman, HZC.(173) At the time of the review, HZC was 21 years of age and her parents were her joint guardians. She had a severe intellectual disability with a history of severe global developmental delay. She lived in supported accommodation, where service providers assisted her in most of her activities of daily living.

The guardianship order under review authorised HZC's parents, as her guardians, to approve the use, in relation to her, of regulated restrictive practices of the kind set out in the Rules referred to above. The panel of NCAT decided to deal individually with the definitions of the four kinds of restricted practices that arose in the case, and to give their view as to whether those definitions were appropriate for adoption by NCAT when it was considering the appointment of guardians for regulated restrictive practices.

The panel of NCAT considered the four of the five forms of regulated restrictive practice and considered that the definition of each of them in the Rules was consistent with the way NCAT interpreted the issue. These four regulated restrictive practices are:
  1. seclusion;
  2. environmental restraint;
  3. mechanical restraint; and
  4. chemical restraint. As there have been other cases dealing with each of these categories of regulated restrictive practice, we have set out the definition of each in the Rules and dealt with (some of) the cases in relation to that particular kind of restrictive practice in separate sections below. However, it is important to appreciate that the outcome of each particular case will be affected by its particular facts and the type of restrictive practice under consideration.

We note that all of these cases were decided before the Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019 (Cth) (the Principles) came into force.
7.5.7.2.1.1 Seclusion used by National Disability Insurance Scheme (NDIS) providers

The definition of "seclusion" in the Rules is:

[T]he sole confinement of a person with disability in a room or a physical space at any hour of the day or night where voluntary exit is prevented, or not facilitated, or it is implied that voluntary exit is not permitted. (174)

Seclusion cases

HZC's Case

NCAT noted that when HZC's behaviour escalated, sometimes she was locked into part of her accommodation, alone. Staff spoke with her through a window and removed that restriction when her agitation subsided, and they deemed it safe to let her out of the place of seclusion.

NCAT was of the view that until this restriction of HZC's freedom of movement could be removed in a way which was consistent with her best interests, protecting her from both the direct consequence of self-injury and the indirect consequences of injuries she may cause to others, that a guardian, with the appropriate function/power/authority to consent to this restrictive practice was needed.(175)

BQM's Case

BQM had Trisomy of Chromosome 15 and as a result had severe intellectual disability and autism spectrum disorder. She had limited verbal language, poor gait and poor muscle control. BQM also had epilepsy with frequent seizures, approximately fortnightly. These seizures could affect her mood, behaviour and wellbeing for days leading into and following a seizure.(176)

BQM was subject to exclusionary time out on a needs basis in response to behaviour that had escalated to severe physical aggression towards others. It was used only when all other strategies had been tried, but had not been successful in managing the incident and to support BQM to return to a calm state.(177)

When BQM became distressed she was encouraged to move to an identified break-out space, the door was held slightly ajar and not locked. This practice was used with success to decrease BQM's behaviours of concern in a very short time. This use of exclusionary time out had been identified to decrease BQM's level of distress and decrease her use of challenging behaviours, particularly after others have been removed from the immediate environment. .(178)

NCAT made a guardianship order appointing guardian for BQM with authority to make decisions about the use of exclusionary time out, on a needs basis, as described in BQM's comprehensive behaviour support plan, as part of the regulated restrictive practice, seclusion.(179)
7.5.7.2.1.2 Environmental restraint used by National Disability Insurance Scheme (NDIS) providers

The definition of "environmental restraint" in the Rules is a restraint which restricts a person's free access to all parts of their environment, including items or activities.(180)

Environmental restraint cases

HZC's Case

NCAT noted that HZC was restricted in her access to food. This was because her genetic condition caused her to have an abnormally increased appetite, leading to overeating and an inability to self-regulate the frequency and volume of food she consumed. The potential detriment to HZC from overeating was complications to her health associated weight gain. HZC had access to a meal plan designed to deliver her an appropriate daily calorie intake and to introduce her to snacks which were not highly calorific.(181)

HZC's meal plan was monitored by her parents (her joint guardians) and by her treating medical practitioner. It was reviewed on an annual basis. The panel of NCAT were satisfied that, until it can be discontinued in a way which is consistent with her best interests, HZC's guardians should retain the appropriate function/power/authority to consent to this regulated restrictive practice.(182)

BQM's Case

The panel of NCAT hearing the case was told BQM's access to the community was at times restricted by the locking of the doors leading to the outside environment and the side and driveway gates of the group home in which she lived. This measure was in place primarily for BQM and the doors and gates were unlocked when she was not at the group home. BQM would attempt to leave the group home and had no awareness of road safety. Also there were fears that she was likely to run across roads putting her personal safety at risk.(183)

NCAT considered this to be the regulated restrictive practice of environmental restraint as it denied BQM free access to the environment. However see 7.5.7. 2.1.3 below.(184)

KKD's Case

KKD had a severe intellectual disability and autism. His behaviour support plan of 30 November 2018 stated that a Dr Z had reported earlier that KKD had high levels of anxiety and reactive aggression. The plan further stated that KKD was generally happy and calm. However, when affected by his environment or internal triggers he would pace, follow staff, raise his voice, grind his teeth, become restless and begin to rock. KKD also engaged in self-injurious behaviour and physical aggression towards others when extremely anxious.(185)

The behaviour support plan prepared for KKD presented to the panel of NCAT hearing the case, indicated that there were a number of restrictive practices being used in relation to his care. These were:
  • restricted access to the kitchen at the group home where he lives, including to the cupboards and the refrigerator;
  • locking the front and back doors and front gate;
  • use of psychotropic medications on a routine basis.
The material before NCAT showed that KKD did not know how to regulate his eating and drinking. As a consequence, he was restricted from accessing food and fluids from the kitchen at the group home in which he lived, and he was closely supervised when in the community. KKD's access to tea and coffee was strictly regulated so that he did not consume excessive amounts of caffeine. His dietician had made recommendations and his speech pathologist had developed a mealtime management plan. The kitchen cupboards and refrigerator were both locked.

NCAT was advised that these practices had been put in place specifically to manage KKD's food seeking behaviours because he did not know when to stop eating and drinking. Because this limited access to the kitchen, the cupboards and the refrigerator in the kitchen restricted KKD's freedom of movement within his home environment, NCAT accepted that this practice was a regulated environmental restraint for which the consent of a guardian was required.

NCAT was also informed that the front gate and external doors of the group home where KKD lived were locked restricting KKD's freedom of movement to and from his group home. These measures were put in place because KKD would attempt to leave the group home in search of food and could become physically aggressive towards others when seeking it. KKD took food from rubbish bins and could become very ill or choke if his access to food was not restricted. In addition, KKD had no awareness of road safety. When he was on outings, staff had to remain close to him, because he would take food from strangers. KKD's mother insisted that her son obsessed about food and would eat anything.

KKD had put on 17 kilograms over about one year. Since then he had reduced his weight by eight kilograms and his weight was currently at an acceptable level.

NCAT was satisfied that these practices restricted KKD's access to part of his home environment and his ability to leave and return to his home environment. These practices were put in place specifically for KKD and were not in effect when he was not at home. NCAT considered that these restrictions on KKD meet the criteria for environmental restraint, a regulated restrictive practice in relation to which NCAT needed to appoint a guardian.(186)

NHD's Case

NHD is a 47-year-old woman who lives in a group home managed by a disability service provider in Sydney. A number of regulated restrictive practices were in place in relation to her. Three of these were environmental restraints. The fourth one was chemical restraint.(187)The three environmental restraints are outlined here and the chemical restraint in 7.5.7.2.1.4.

The first environmental restraint was the locking of one of the fridges in the group home to restrict NHD's access to it. This was because NHD had a tendency to gorge and had major issues with her food intake. Because of her craving for food, she took food from the rubbish bin. However, there was another fridge in the group home which was not locked and contained healthy food. NHD was supported with 1:1 staff. She saw a dietician regularly to encourage her to eat healthily. NCAT was told that, a result of her restricted access to the fridge NHD had lost over 30kg. This had been very positive for her general health and wellbeing.(188)

The second set of environmental restraints related to NHD's restricted access to the backyard and the sitting room at the back of the house. In addition, the front door and the front gate were locked for the safety of the residents of the group home. (189)

These two sets of environmental restraints were seen as regulated restrictive practices that the reappointed private guardian was given the authority to make decisions about.

The third form of environmental restraint drawn to NCAT's notice was the fact that when travelling in the group home vehicle, the "child lock" was engaged and the buckle of the seatbelt she wore was covered. NCAT was told that there had been incidents where NHD tried to open the back door of the car. NCAT noted that the use of seat belt buckle covers and practices for the management of non-purposeful risk behaviour (unsafe actions) are specific exceptions to restrictive practice authorisation process.(190) Consequently the guardianship order did not refer to these necessary and appropriate safety provisions.

DXL's Case

DXL was a 57-year-old man living in shared rental accommodation in regional NSW. When a guardianship order was first made in relation to him in July 2016, NCAT found that DXL was unable to make important life decisions because of the effects of Wernicke's Encephalopathy and Korsakoff Syndrome. While there was no new evidence before NCAT as to his medical condition there was plenty of evidence to show that he was restricted in one or more activity to such an extent that he required supervision and that he was unable to appreciate his frailty and impaired mobility. Consequently NCAT was satisfied that DXL continued to have a disability which prevented him making important life decisions and so was a person for whom it could make a further guardianship order.(191) Also, as DXL attended the hearing, the panel of NCAT hearing the case saw him. They noted that he was unable to participate meaningfully in the hearing or to provide his views due to the nature of his disabilities.(192)

The [external] doors on DXL's house were locked to stop him from leaving the premises of his own volition. NCAT appointed a guardian with the authority to make decisions about the restrictions on DXL's freedom of movement as a result of the locked doors. (193)

NCAT was advised that DXL attempted to remove his seatbelt and get out of vehicles. However, NCAT advised that the use of a seat belt buckle cover is a specific exclusion from being considered a restrictive practice as DXL's actions are deemed to fall into the category of non-purposeful risk.(194)

DZF's Case

DZF was a 31-year-old single man who lives in a supported group home in Sydney which is managed by a disability service provider. He has severe intellectual disability and also epilepsy and cerebral palsy. DZF's presentation during the hearing was consistent with the medical evidence. NCAT was satisfied by the medical evidence that DZF had disabilities which prevented him making important life decisions. Consequently he was a person for whom NCAT could make a guardianship order, if there was a need to do so.(195)

The principal reason for the application for a guardianship order was that DZF wore a helmet regularly to prevent him injuring his head. There was concern that this was a restrictive practice for which a guardian needed to be appointed to make decisions about its use.

The panel of NCAT hearing the case was shown the helmet. It was made of a soft flexible material with padding on the left side and had a chin-strap. The panel was told that the helmet was used only when necessary. A record/data sheet of the number of times the helmet was used was kept for review purposes. The panel was also told that DZF usually did not try and take the helmet off. However, staff removed it immediately DZF stopped striking the side of his head. The panel was told that the care staff at the group home worked quickly with DZF to identify what it is that he is trying to convey at the time.

The evidence was that the use of the helmet was a reactive strategy to protect DZF from injury; but used only when he tried to communicate by striking his head. Also the use of the helmet was identified as a reactive strategy to prevent injury in DZF's current Behaviour Support Plan.(196)

The concern could be summed up in a distinction between a reflex action necessary to prevent serious harm (duty of care) and a planned and frequent strategy that needed to be authorised because it was a restrictive practice.(197) However, NCAT did not accept this distinction. It found that the occasional use of a helmet, as a reaction to DZF hitting his head to communicate, was for the purpose of preventing self-injury. Consequently, it was not a regulated restrictive practice within the meaning of Rule 6(e) of the Rules. (198)

We note that, under Rule 6(e) only those environmental restraints which restrict a person's free access to all parts of their environment, including items or activities, are regulated restrictive practices. There was no evidence that this use of a helmet to protect DZF's head from injury denied DZF access to all parts of his environment.

SKD's Case

SKD is a 64-year-old man who has lived in a group home managed by disability service provider since 2010. The first guardianship order made in relation to him by the then Guardianship Tribunal was in 2011. That tribunal found that, as a result of intellectual disability, SKD was unable to make important life decisions. That situation remained unchanged until 2018, when an end of term review of the then guardianship order was conducted and the question arose of whether the practice of all staff keeping him in line of sight at all times he was in the common areas of the group home, was a restrictive practice. (199)

The panel of NCAT hearing the review was told that keeping SKD in line of sight at all times was to check where he was in relation to other residents. His freedom of movement was not restricted, and he was only being observed for his own safety, in the common areas. SKD had privacy in his own bedroom. All the residents of the group home were kept in line of sight.(200)

The panel was told that SKD generally had 1:1 support when accessing the community. However he now had deteriorating mobility. While it was possible that he could wander from the group home, this was considered unlikely due to SKD's lack of confidence in his ability to mobilise.(201)

NCAT considered that this form of surveillance formed part of a duty of care by the disability service provider in running the group home. There was an obligation to keep all the residents safe. This form of surveillance and did not appear to impact SKD's freedom of movement or to bother him in any way.(202)

NCAT was satisfied that there was no further need for a guardianship order in relation to SKD and decided that the order should be allowed to lapse.(203) Consequently, it followed that NCAT was of the view that this form of surveillance was not a form of environmental restraint as defined in Rule 6(e) of the Rules
7.5.7.2.1.3 Mechanical restraint used by National Disability Insurance Scheme (NDIS) providers

In the Rules, "mechanical restraint" is defined as

[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.(204)

Mechanical restraint cases

HZC's Case

NCAT noted that when HZC was transported by vehicle, she had a tendency to behave violently towards the driver. As a result, a perspex barrier was installed inside the vehicle in which she travelled, to prevent her reaching the driver. While NCAT acknowledged that safety reasons underlay this restriction it was, nevertheless, a restrictive practice. This was because it restricted HZC's freedom of movement within the vehicle. Consequently, until this protection of the driver could be discontinued in a way that was consistent with her best interests, the panel of the NCAT were satisfied that there needed to be a guardian to consider consent to this restrictive practice. (205)

We suggest that the use of the perspex barrier to prevent HZC from reaching the driver is not an environmental restraint; primarily because it is not the case that a passenger is entitled to access to the driver of the vehicle at any time during the journey. This is not the case for anyone using transport of any kind and there are various ways in which this exclusion is provided for either through physical barriers that provide total exclusion, or other configurations of the area occupied by the driver that indicate that the driver is not to be interrupted or engaged in conversation or even spoken to except on a clear needs basis. This is clearly the case in taxis. Even when there is no barrier, it is an obvious requirement for the safety for all persons in the vehicle that passengers do not reach out to or physically engage the driver. In any event this matter is now covered by The Restrictive Practices Authorisation Policy (June 2019) of the now Department of Communities and Justice. That policy deals with the restrictive practices authorisation mechanism in NSW, which provides at 4.8.1; "Some devices or practices used for therapeutic or safety purposes impose a level of limitations on a person's freedoms, but do not constitute restrictive practices". HZC's desire to reach the driver would always risk the driver not being able to control the vehicle when needed during the journey and so is covered by the safety exception in the policy.

BQM's case

When BQM travelling in a van to attend a day program, she was restrained by a travel harness and child locks are used to prevent exit from the van. BQM often became quite distressed when travelling in the van rendering the use of these measures necessary to prevent injury to herself and to others travelling with her and to ensure that she did not attempt to get out of the van when it was moving. BQM did not object to using the travel harness; but it was needed because she could get out of a usual seatbelt. Although the travel harness was used on BQM for her safety and the safety of others, the practice was a form of mechanical restraint. NCAT noted that the travel harness was used to restrict BQM's movement whilst travelling with the intention of influencing her known behaviours of attempting to move within and to leave the vehicle and attempting to hit out at others.(206)
7.5.7.2.1.4 Chemical restraint used by National Disability Insurance Scheme (NDIS) providers

The definition of chemical restraint contained in the Rules is:
  1. [T]he 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.(207)

Chemical restraint cases

HZC's Case

In the HZC Case, the NCAT panel hearing the case took the view that the definition of chemical restraint in the Rules was consistent with the approach taken by NCAT when dealing with chemical restraint issues and so should be adopted by it.(208)

The panel noted that HZC was prescribed regular psychotropic medication for her diagnosed anxiety disorder. However, it noted that she was also given both Seroquel and Diazepam not only on a regular basis, but also on a PRN (as and when needed) basis. The sole purpose for which those psychotropic medications were administered to HZC was to stabilise her behaviour and modify it when, from time to time, it escalated to a challenging level. NCAT was clear that this use of Seroquel and Diazepam was a restrictive practice.(209)

After a detailed consideration of the issues, including in particular whether, although the two psychotropic medications were prescribed to stabilise HZC's behaviour, they were forms of medical treatment which a person responsible could give or refuse consent to, NCAT decided to continue to treat administration of Seroquel and Diazepam as a form of clinical restraint requiring a guardian to have the function of consenting to the use of those medications subject to the conditions imposed by NCAT on the exercise of the functions given to the guardians by it.(210)

BQM's Case

Risperidal was put in BQM's food, the primary reason for doing so being to manage her behaviour and to ensure compliance with other prescribed medications for epilepsy and other conditions. A liquid form of the medication put on her toast or croissant in the morning and on ice cream in the evening.

NCAT took the view that the medications prescribed to treat BQM's epilepsy and other conditions could be consented to by BQM's "person responsible" (QAM); but the Risperidal was prescribed to influence her behaviour, and so was chemical restraint. Consequently BQM's "person responsible" (QAM) was able to consent to the medications for epilepsy on behalf of her daughter. However in order to deal with the administration of Risperidal, QAM was appointed as BQM's guardian with authority to make decisions about the "routine use of psychotropic medications to influence her behaviour" .(211) As suggested above, we would add that another consideration worthy of note here is the question of whether this chemical restraint was being used as "a last resort" and as the least restrictive practice.

KKD's Case

This discussion of the KKD Case is limited to the question of psychotropic medication as chemical restraint. Other aspects of the case are dealt with in 7.5.7.2.1.2 - Environmental Restraint.

KKD was given Quetiapine, a psychotropic medication, each day to assist to stabilise his behaviour, including to calm and reduce repetitive and obsessive behaviour. As the primary purpose of giving KKD Quetiapine was to influence his behaviour and not to treat a diagnosed condition, NCAT considered the use of medication for that purpose was for chemical restraint, necessitating the appointment of a guardian to make decisions about that matter. KKD was also given Lithicarb to treat anxiety.(212)We note that there was no consideration in this case as to whether these medications should be consented to by a guardian authorised to give consent to medical treatment under Part 5 of the _Guardianship Act 1987_(NSW).

NHD's Case

In NHD's case NCAT referred to her taking psychotropic medications and PRN (as and when needed) medications. However the PRN medications were not. (213) As NCAT authorised NHD's guardian to make decisions about the administration of PRN medications, it may be reasonable to conclude that those medications had a primary purpose of influencing NHD's behaviour; however it may be more appropriate for the guardian to be authorised to consent to the medications as medical treatment under Part 5 of the Guardianship Act 1987 (Cth) .(214)

DXL's Case

At the end of term review hearing, there was evidence before NCAT that DXL was unable to appreciate his frailty and impaired mobility; but nevertheless had developed sexualised behaviours. That situation was to be reviewed by a forensic psychiatrist to see if there was a need to introduce medications to minimise those behaviours and reduce the risk of harm to DXL and others. NCAT gave the appointed guardian the authority to consent to the administration of psychotropic medication to modify DHL's behaviour in this regard.(215)

UBH's Case

UBH was a 44 year old woman who lived in a group home in Sydney, managed by a disability service provider.(216) UBH had an intellectual disability, diagnosed when she was five years old. In 1992 she was also diagnosed with schizophrenia and bipolar disorder. A 2018 report by a treating psychiatrist stated: "My diagnosis is still rapid cycling bipolar disorder with prominent depressive episodes leading to confusion and regression."(217)

Her two psychiatrists prescribed Clozapine and Lithicarb for treatment of both schizophrenia and bipolar disorder. PRN [as and when needed] medication was prescribed for periods of depression and regression.(218) Valium was prescribed for UBH on a PRN basis to manage UBH's behaviour when she was unable to sleep; but only after other strategies to get her to sleep had failed. Staff at the group home had been reluctant to give UBH Valium and it was last used eight months before the hearing in January 2019. However, NCAT was advised that it was intended that UBH's behaviour support plan be reviewed by the end of January 2019 and that the new plan would include the use of Valium on a PRN basis. UBH's other medications would also be reviewed.(219)

UBH attended the hearing; but she was not able to participate in a meaningful way; consequently NCAT was unable to obtain her views.(220)The panel of NCAT hearing the matter was satisfied that UBH could not give a valid consent to taking Valium. As it was not prescribed to treat a diagnosed illness or other condition; and because NCAT considered its use a restrictive practice, it decided to appoint a guardian with authority to make decisions for UHB about the use of psychotropic medications on a PRN basis.(221)

EZD's Case

EZD is a 38-year-old man with intellectual disability and severe autism spectrum disorder with associated anxiety. He lived in a group home managed by a disability service provider in Sydney.(222)

At the time of the hearing of the application for a guardianship order in relation to him, EZD was being prescribed the psychotropic drugs Zoloft and Zyprexa as treatment for his bipolar disorder, which was in remission [at the time of the hearing], and anxiety. However, EZD was also being prescribed Largactil PRN [as and when needed] in relation to his high levels of anxiety and severe challenging behaviour.(223)

The panel of NCAT hearing the case noted the doctor prescribing all three psychotropic medications had stated that all three of them had been prescribed for the purpose of treating psychiatric disorders, not for the purpose of chemical restraint. The panel took the view that whether or not the prescribing doctor's assertion was correct, there was no need for a guardian to be appointed for EZD. This was because, in the panel's view, EZD's person responsible, his long-term foster mother, could consent to at least the Zoloft and Zyprexa under the provisions of Part 5 of the Guardianship Act 1987 (NSW). If the Largactil were categorised as a chemical restraint, then under the Restrictive Practices Authorisation Policy 2018 of the NSW the Department of Family and Community Services (FACS), it had to be consented to by the person with disability or, if the person lacks capacity, then by that person's person responsible or by the Guardianship Division of the NCAT.(224) If the prescribing doctor was correct, and PRN administration of the Largactil was administered as and when actually needed to assist EZD with his anxiety and bipolar disorder and not used as a chemical restraint, then the person responsible could consent to the use of all three medications.

We consider that this distinction between using chemical restraint for behaviour per se, or for a mental disorder - and therefore determining who should give consent - is a distraction from the real issue at hand. The real issue at hand is the appropriate way to treat a person with EZD's decision-making disabilities who cannot give a valid consent to medical treatment proposed for him. As we have pointed out above, psychotropic medication is a last resort, not a first resort. First psychosocial, non-pharmacological methods, should be attempted before psychotropic medications are considered. This is the case whether the behaviour occurs in the context of a mental disorder or a medical condition.

KYT's Case

KYT is a 38-year-old man with intellectual disability and autism, who lived in fully supported accommodation in Sydney. He was unable to communicate verbally and had challenging behaviours. It was uncontroversial that he had been the subject of guardianship orders for some time.

The issue in this case was whether his current order should be extended to give the Public Guardian, as his guardian, a function of making decisions about a possible restrictive practice based on chemical restraint.(225)

KYT required treatment with PRN [as and when needed] medication in order to have his supra pubic catheter changed at regular intervals. His treating doctor advised that KYT had a diagnosis of generalised anxiety and that he prescribed Temazepam to be available for use when KYT's supra pubic catheter was being changed. The doctor advised that KYT did not receive Temazepam PRN prior to all catheter changes. There was a behaviour management plan in place to help staff identify whether the triggers or antecedents that may lead to the need for chemical intervention were present or not.(226)

NCAT took the view that the use of Temazepam was for treatment of KYT's generalised anxiety disorder, rather than for the primary of purpose of influencing his behaviour. In those circumstances NCAT considered that the use of Temazepam was not a restrictive practice for which the consent of a guardian with that function was required. Consequently NCAT made no changes to KYT's then current guardianship order.(227)
7.5.7.2.1.5 Physical restraint used by National Disability Insurance Scheme (NDIS) providers

Physical restraint is defined in the Rules as:

[T]he use or action of physical force to prevent, restrict or subdue movement of a person's body, or part of their body, for the primary purpose of influencing their behaviour. Physical restraint does not include the use of a hands-on technique in a reflexive way to guide or redirect a person away from potential harm/injury, consistent with what could reasonably be considered the exercise of care towards a person. (228)

Physical restraint case

WBX's Case

WXB is a 47-year-old woman who lives in a group home managed by a disability service provider in Sydney. She has severe intellectual disability and autism spectrum disorder. She is non-verbal and has a history of self-harm. She has been the subject of a guardianship order since 1994. At the time of this review, her guardian was the Public Guardian. She is treated for a number of mental disorders. The Public Guardian has the authority to consent to the medications proposed for the treatment of those disorders.

WXB has chronic self-injurious behaviour. She wears her bandannas on her wrists every day. Straight after her shower she gets them and gets staff to put them around her wrists. WXB finds changes in staff challenging. New staff in particular regularly have to restrain her by holding her bandannas to prevent her from harming herself. Her menstrual cycle also affects her degree of agitation and self-injurious behaviours. Incidents of self-injurious behaviour typically occur on a daily basis and involve staff holding the bandanna ends until she settles. About two to three times a week WXB has needs to be physically held down by her bandannas. These incidents are recorded in incident reports.

NCAT was satisfied that the Public Guardian should have the function of making decisions about the restrictive practice, namely the physical restraint of WXB by holding the bandannas around her wrists.(229)
7.5.7.2.1.6 Conditions on the exercise of restrictive practices

The panel of NCAT hearing the HZC Case noted that both the Guardianship Division and its predecessor tribunal; "have had a long-held practice of placing conditions upon an appointed guardian's ability to authorise the use of restrictive practices". (230) It also noted the one condition usually provided that an appointed guardian may only consent to the use of restrictive practices to address challenging behaviours within the context of a comprehensive positive behaviour plan. (231) These plans are called a behaviour support plan. They are informed by a functional assessment of the behaviour of the person for whom the behaviour support plan is made. (232)

NCAT also noted that such a condition struck an appropriate balance between NCAT's obligation to ensure that the welfare and interests of a person under guardianship were given paramount consideration and the obligation to ensure that the freedom of decision and freedom of action of that person were restricted as little as possible. (233)

The condition relating to restrictive practices actually imposed on HZC's guardians [her parents] was that the guardians may only consent to the use of the types of restrictive practices permitted under this order to influence HZC's behaviour:
a. as a last resort to prevent HZC from harming herself or others; and
b. in accordance with a behaviour support plan which has been developed by a behaviour support practitioner after having conducted a functional behavioural assessment upon HZC, and which is reviewed regularly (and no less than every 12 months) and/or reviewed as soon as practicable if there is a change in circumstances which requires the plan to be amended.(234)
7.5.7.2.1.7 Restrictive practices - exceptions and notions of proportionality

As already noted in relation to some of the cases discussed above, Chapter 4.8.1 of the Restrictive Practices Authorisation Policy in operation in New South Wales provides that; "Some devices or practices used for therapeutic or safety purposes impose a level of limitations on a person's freedoms, but do not constitute restrictive practices". This guidance has been used by NCAT in some of the applications for guardianship orders appointing guardians to make decisions in relation restrictive practices. The guidance has been used to avoid making such orders in relation to the use of locked seat belts and locked doors of the motor vehicles that are used to provide people unable to understand matters of personal safety with the means of having access to the community.(235)

In KKD's Case discussed above, the panel of NCAT hearing the matter stated:

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.(236)

We suggest that this statement from a panel of the Guardianship Division of NCAT, is a useful way of considering whether a proposed use of what could be described as a restrictive practice is in fact a restrictive practice or not. The statement requires a consideration of what is the nature of the restrictive practice, what is the effect of it being applied to the person, and what is the effect it not being applied.

Take putting a lock on a seatbelt in a car or similar form of transport so that the person confined by it cannot release it. The context is that it is compulsory to wear a seatbelt when a car is in motion. And, it is an offence for a driver to drive a car in which a passenger is not constrained by a seatbelt. There is an increased risk of injury to a person not wearing a seatbelt if the car is involved in an accident or has to stop suddenly. To overcome those matters the safe resolution is that the person refusing to wear, or removing the seatbelt be precluded from travelling in the vehicle, thereby losing their opportunity to access the community. There is a lack of proportion between the safety achieved by the seatbelt, and the driver carrying out their duty to keep the passengers and themselves safe, and the inability of the person lacking the understanding necessary to keep the seatbelt on, being unable to go anywhere in a motor vehicle.

Apply this to the doors or gates of some group homes. In the cases dealt with above the locking of doors was seen as environmental restraint. However, what is done about the locking of doors in the community? Location is relevant as are the ages of the residents, their ability to take appropriate steps to safeguard themselves and their property, among other considerations. The possible scenarios are infinite; but it is clear that one approach does not fit all. In some circumstances locking doors is necessary, in others not. Locking a door will be an appropriate action in some situations, but requiring a restrictive practices authorisation. However in other situations, for example if none of the residents of a group home have any real sense of personal safety and they all leave the premises when they feel like it; but none of them has any road-sense or no ability to remember where the group home was located, the exit doors and the exiting gates on the property would normally be locked. Common sense and/or a sense of proportion is required.

We suggest that KZE's Case below shows a sense of proportion when dealing with the question of whether a particular kind of restrictive practice is required or not in a particular case. After setting out KZE's Case, we return to BQM's Case by way of contrast.

KZE's Case

KZE was a 34-year-old woman who had lived in a group home at Sydney since 2005. She was a former State ward and had no family involved in her life. She had been under the guardianship of the Public Guardian since October 2004. When her guardianship order was last reviewed in 2015, the Public Guardian was appointed as her guardian for a period of three years with the functions of health care, medical and dental consent, restrictive practices and services.(237)

When the 2015 order was made the Public Guardian had the authority to make decisions about specific restrictive practices in relation to KZE, namely:
  • PRN medication
  • Restricted access to food
  • Restricted access to staff and parts of the house
  • Restricted access to community
  • Restricted access to sharps(238)
We return to these restrictive practices below.

KZE participated in the hearing on 26 October 2018, by telephone together with the team leader of her group home. The hearing was the end of term review of the 2015 guardianship order.

KZE told the panel of NCAT hearing the review that she had seen her psychiatrist, Dr Y, the day before the hearing and that Dr Y had reduced her Seroquel because her behaviours had improved a great deal. She said that in January 2018, her sodium valproate had been reduced. She had not had any PRN medications for more than 18 months and her dental care was up to date. The team leader of KZE's group home confirmed these matters and stated that Dr Y was of the view that KZE had the capacity to consent to her own medical and dental treatment.(239)

The team leader stated that she shared Dr Y's views. She also confirmed that KZE's report of her medical treatment and also that KZE had capacity to make her own medical and dental treatments decisions. The team leader also noted that Dr Y reviewed KZE every three months and that KZE had regular access to a GP, and to dental and other health care practitioners.(240)

However, the panel was less clear about whether KZE had the capacity to make informed decisions about the other areas of her life. Consequently, it was satisfied that KZE continued to have a disability which at least partially prevented her making important life decisions; and so was a person for whom NCAT could make a further guardianship order.(241)

Having made that finding however, the panel went on to consider what was happening at the group home about the restrictive practices set out in the guardianship order under review. First it noted that KZE had not been given PRN medication for more than 18 months.

While KZE's obsession with food remained, she had access to the kitchen and was supported by staff. A roller door was pulled down over the kitchen at night. However, if KZE wanted food she could ask staff. She had reached a position where she chose her own menu, cooked her food and served it herself. There was no apparent need for restrictive practices in relation to food. The only knives in the house were not sharp and were the property of the group home, not KZE. There was no evidence of the need for restrictive practices in relation to sharps.

KZE's episodes of agitation had become less frequent; but when they occurred, staff removed the other two residents. KZE's freedom of movement in the house or access to staff was not limited.

Child locks were used on the vehicle in order to manage non-purposeful physical risk behaviour and unsafe actions. [We assume that KZE accessed the community regularly via the group home's vehicle. We also note that this, as the panel suggested, was covered by the Restrictive Practices Authorisation Policy (June 2019) of the now Department of Communities and Justice. That policy deals with the restrictive practices authorisation mechanism in NSW, and it provides at 4.8.1; "Some devices or practices used for therapeutic or safety purposes impose a level of limitations on a person's freedoms, but do not constitute restrictive practices".]

Parts of the group home were locked to manage non-purposeful physical risk behaviour and unsafe actions. That is, residents wandering out of the home and becoming lost and at risk of injury. The panel noted that this was a specific exception to restrictive practice authorisation. These categories of non-purposeful risk necessitated a planned service response to minimise the risk rather than functional behaviour assessment and intervention.(242)

Having reviewed the current behaviour support plan and the matters set out above about the issues that led to the previous need for a guardian to make decisions about restrictive practices, the panel was satisfied that there was, currently, no need for restricted practices to be in place; and consequently no need for a guardian to be appointed to provide consent. Also the Public Guardian's representative and the team leader were of the view there was no need for a further guardianship order.(243) NCAT brought the guardianship order in relation to KZE to an end.(244)

BQM's Case

BQM's Case dealt with the same four of the five regulated restrictive practices dealt with in the KZE Case immediately above. We highlight the different approaches here.

The panel of NCAT dealing with BQM's Case considered the evidence and decided to make a guardianship order. That order gave the appointed guardian authority to make decisions about the use of the following restrictive practices which were described in BQM's comprehensive behaviour support plan:
  • exclusionary time out on a needs basis;
  • use of a travel harness in any vehicle in which BQM travels;
  • routine use of psychotropic medications to influence her behaviour;
  • locking of exit doors and gates at any accommodation setting.(245)
The panel of NCAT hearing the KZE Case dealt with these four regulated restrictive practices somewhat differently.

Seclusion - When BQM became distressed she was encouraged to move to an identified break-out space. The door was held slightly ajar but not locked. The practice was successful in decreasing BQM's "behaviours of concern in a very short time". Nevertheless, this particular practice was treated as a form of seclusion requiring a guardian to be appointed.

KZE's agitation led to removal of the other two residents to another part of the group home and no need for a guardianship order.

Environmental restraint - the exit doors and gates were locked when BQM was at her group home because of safety concerns as she would attempt to leave the group home and had no awareness of road safety.

In KZE's Case, parts of the group home were locked to avoid unsafe actions like wandering out of the home and becoming lost and at risk of injury. This was seen as a specific exception to restrictive practice authorisation.

Mechanical restraint -when travelling in a van to attend a day program, BQM was restrained by a travel harness and child locks were used to prevent her exiting the van, to which BQM did not object. The panel of NCAT hearing the BQM Case noted that, although the harness was in place for the safety of BQM and others, the practice was a form of mechanical restraint because it was used to restrict BQM's movement whilst travelling, with the intention of influencing her known behaviours of attempting to leave and move within the vehicle and to hit out at others. Consequently, it was a regulated restrictive practice requiring a guardian to make decisions about its use.

KZE travelled in a vehicle with child locks, but not a travel harness. The panel of NCAT hearing the KZE Case considered that this and other categories of non-purposeful risk necessitated a planned service response to minimise the risk rather than functional behaviour assessment and intervention. It brought the guardianship order in relation to KZE to an end.

Chemical restraint - the psychotropic medications prescribed for BQM to treat her epilepsy and other conditions were not chemical restraint. However the panel of NCAT hearing BQM's Case considered that the Risperidal put in BQM's food to manage her behaviour so that she would take the other medications prescribed for diagnosed conditions was chemical restraint, and gave the appointed guardian authority to make decisions about the "routine use of psychotropic medications to influence her behaviour".

In KZE's Case PRN medication had not been given to KZE for more than 18 months. That was one of the reasons why KZE's guardianship order was brought to an end. There was no need for it to continue.

These briefly stated comparisons bring us to the point we made above namely that, it is important to appreciate that the outcome of each particular case will be affected by its particular facts and the particular form or example of the particular restrictive practice under consideration.
7.5.7.2.2 Chemical and physical restraint of people receiving care through an aged care service

Chemical restraint

In February 2019, particularly relevant to chemical and physical restraint, the Royal Commission into Aged Care Quality and Safety was convened. The Commonwealth Government took this step following increasing scrutiny of aged care practices, including but not limited to, the use of chemical and physical restraint. At the time of writing of this part of the 2019 update of Capacity and the Law, this Royal Commission had not reported. However it had published an Interim Report. In it noted the "need for urgent action … to respond to the significant over-reliance on chemical restraint in aged care, including through the seventh Community Pharmacy Agreement".(246)

On 1 July 2019 the Quality of Care Principles 2014 (Cth) amended by the Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019 (Cth) came into force.(247) These Principles set out the nature of and the circumstances in which chemical and/or physical restraints may be applied to those persons receiving, or about to receive, services provided through an aged care service.

The Principles define "chemical restraint" as a restraint that is, or that involves, the use of medication or a chemical substance for the purpose of influencing a person's behaviour, other than medication prescribed for the treatment of, or to enable treatment of, a diagnosed mental disorder, a physical illness or a physical condition. "Physical restraint' is defined as any restraint other than chemical restraint; or the use of medication prescribed for the treatment of, or to enable treatment of, a diagnosed mental disorder, a physical illness or a physical condition.

However, the Principles define "restraint" per se to mean any practice, device or action that interferes with a person's ability to make a decision or restricts their free movement.(248) The meaning and utility of this definition of "restraint" is unclear, and perhaps adds a level of unintended complexity and confusion. This is because restraints do not "interfere with a person's ability to make a decision".

An approved provider of aged care services, usually the operator of a residential aged care facility, must not use a chemical restraint in relation to a person (the person) who is receiving, or is about to receive, care from them as part of an aged care service, unless:
  1. a medical practitioner or nurse practitioner has assessed the person as requiring the restraint and has prescribed the medication the use of which is, or is involved in, the restraint; and
  2. the practitioner's decision to use the restraint has been recorded in the care and services plan documented for the person in accordance with the Aged Care Quality Standards set out in Schedule 2 of the Principles; and
  3. the person's representative is informed before the restraint is used if it is practicable to do so.(249)
However, this Part of the Principles does not affect the operation of any law of a State or Territory in relation to restraint.(250) Precisely the impact of this clause in the _Principles in relation to Part 5 of the Guardianship Act 1987 (NSW) or similar provisions in relation to substitute consent to medical treatment in the legislation of the other States or Territories is unclear. In New South Wales the relevant legislation provides for substitute consent to medical treatment of a person unable to give a valid consent to their own treatment. Substitute consent can be given by the person's person responsible, including their enduring guardian or their NCAT appointed guardian or by NCAT itself. The administration of psychotropic medication, the usual substances administered as "chemical restraint", requires substitute consent as a "major treatment" (this also includes "prn medications used more than three times in a month).(251)The safer view is that if the person cannot give a valid consent to their own treatment, substitute consent must be obtained. It is an offence to carry out medical treatment without consent.(252)

There appears to be an erroneous assumption that people with behavioural disturbance possibly requiring restraint, lack capacity to make decisions about the treatment of this behaviour. This is not always the case. If a substitute decision-maker is required to make the decision because the person themselves lacks capacity, they must be given the requisite information about the nature of the condition, the alternatives, risks and consequences of the treatment in order to make the decision. There is a conflict between the requirements of Part 5 of the Guardianship Act 1987 (NSW) and clause 15G of the Principles that states that; "if the consumer's representative has not been informed of the [intended] use of the restraint--[the approved provider] must inform the consumer's representative as soon as practicable after the restraint starts to be used".

In addition, the approved provider must ensure that the person's care and services plan identifies the following:
  1. the person's behaviours that are relevant to the need for the restraint;
  2. the alternatives to restraint that have been used (if any);
  3. the reasons the restraint is necessary (if known by the approved provider);
  4. the information (if any) provided to the practitioner that informed the decision to prescribe the medication.

Also, while the person is subject to the restraint, the approved provider must regularly monitor them for signs of distress or harm and provide information to the practitioner regarding use of the restraint.(253)

There are a number of problems with the Principles. While they do not affect the operation of any law of a State or Territory in relation to restraint, there is clear and apparent conflict between them and the long-established provisions of the substitute consent provisions of Part 5 of the Guardianship Act 1987 (NSW). They are inconsistent with the consent to medical treatment requirements long established in the common law and so part of the law of the Australian States and Territories.(254)

While Part 4A of the Principles proclaims that they are "minimising the use of (physical and) chemical restraint, they may unintentionally endorse the use of restraint, particularly chemical restraint. (255) This is because alternatives to restraint must always be trialed first except for exceptional circumstances of severe risk. Nevertheless, cl. 15G(1) suggests that this is optional, namely that "if any" alternatives have been used, and that the reasons restraint is necessary must be documented only "if known". This is contrary to best practice, which requires that restrictive practices be use as a last resort and only when strongly justified.

We also note that the Principles allow for a person capable of giving a valid consent to medication to be injected with chemical restraint medication without consent being sought from them. It is unclear what the intent or meaning of this is and whether it refers to use of medication in an emergency, under the Doctrine or Principle of Necessity. The practice of emergency sedation for older people remains a complex clinical area without clear consensus and guidelines, and prone to misuse of medication.(256)

As already noted, clause 15E of the Principles provides that Part 4A entitled "Minimising the Use of Restraints", does not affect the operation of any law of a State or Territory in relation to restraint. We suggest that this statement makes it clear that the Principles were not intended "to cover the field", that is, prevail over any State or Territory law in relation to restraint (this is called "indirect inconsistency"). However, there is State and Territory legislation that deals with substitute consent for medical treatment proposed for those unable to give a valid consent to their own treatment. We suggest that this legislation, exemplified by Part 5 of the Guardianship Act 1987 (NSW), does not "alter", "impair" or "detract from" the operation of the Principles. Consequently there is no "direct inconsistency" between the Principles and the relevant State and Territory legislation. (257). If this were not the case and the legal situation were otherwise, not only would it exempt Residential Aged Care Facilities and prescribers from complying with the relevant State and Territory laws, but also it would, again using Part 5 of the Guardianship Act 1987 (NSW) as an example, exclude from the decision-making processes in relation to this chemical restraint medication, the "person responsible" for the person to be given that medication as the person's substitute decision-maker. The "person responsible" is, in order of the hierarchy, the person's enduring guardian, their NCAT appointed guardian, or otherwise, the spouse or other close family member or close friend of the person to be given the chemical restraint medication.

It should also be noted that advance care directives are recognised by the common law of Australia and provided for in the legislation of a number of States and Territories - see Chapter 13.(258) They are becoming more common, particularly among older people appointing substitute decision- makers to make important lifestyle and financial decisions for them.

The right of a person to give or refuse medical treatment proposed for them, unless they have lost the capacity to do so, is well established in the common law - see Ch.11. Legislative provisions for consent to medical treatment to be sought from a substitute decision-maker when the person to be treated is unable to give consent to their own treatment, exist in all the States and Territories - see Ch 12. Common law rights are not overridden by general or ambiguous words.(259) However as already noted, there is no intention of the Commonwealth to "cover the field" by the Principles, which are delegated legislation. Consequently, we suggest that doctors or nurse practitioners who propose to treat people with psychotropic medication, even though they describe it as chemical restraint, must seek consent from the person to be treated, if that person has the capacity to give consent, or under the legislative arrangements that apply in relation to substitute consent in the State or Territory that the person to be treated is located. This is extremely important given the low documented rates of consent being obtained for the use of psychotropic medications (260)

In conclusion, rather than improving practice around both consent and minimising chemical restraint, the Principles appear to sanction poor practice. (261) Concerns such as this have been articulated by a number of stakeholders, clinicians and human rights advocates including:
  1. Human Rights Watch in a letter to the Incoming Parliamentary Joint Committee on Human Rights on May 23rd 2019 (262);
  2. On 29 July 2019 the Parliamentary Joint Committee on Human Rights resolved to conduct a short inquiry into the Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019 F2019L00511], as part of its function of examining legislative instruments for compatibility with human rights, under s.7(a) of the Human Rights (Parliamentary Scrutiny) Act 2011(Cth); (263)
  3. The Royal Australian and New Zealand College of Psychiatrists, in its submission to the Royal Commission into Aged Care Quality and Safety dated 3 October 2019, stated:

These issues are not assisted by the introduction of amendments the Quality of Care Principles through the Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019. Arguably, these amendments are vague unclear and do not sufficiently require informed consent for the use of chemical restraint. On this basis the RANZCP would recommend the amendment of the Quality of Care Principles 2014, specifically to increase clarity and safeguard individual well-being, with the overall goal of guiding the delivery of safe and high-quality care.(264)

We note the recommendations of November 2019 from the Parliamentary Joint Committee on Human Rights held in relation to the Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019(Cth):

Recommendation 1

4.26 In light of the above concerns, the committee recommends, at a minimum, that:

  1. the instrument be amended to include a note to clarify that other laws prohibit the use of
  2. both physical and chemical restraint without prior informed consent; and
  3. detailed amendments are made to the explanatory materials accompanying the instrument, to clarify how the instrument interacts with state and territory laws, in particular regarding the authorisation of substitute decision-making and the continued obligations for prescribers to exhaust alternative options and obtain informed consent prior to the use of chemical restraint.

Recommendation 2

4.27 The committee also recommends that the minister undertakes extensive consultation with relevant stakeholders to work towards better regulating the use of restraints in residential aged care facilities, in particular including:

  1. an explicit requirement to exhaust alternatives to the use of restraint, including preventative measures and that restraint be used as a last resort (noting the approach taken by the National Disability Insurance Scheme rules);
  2. obligations to obtain or confirm informed consent prior to the administration of chemical restraint;
  3. improved oversight of the use of restraints in aged care facilities; and
  4. mandatory reporting requirements for the use of all types of restraint.(265).

Physical restraint

As already noted, the Principles define restraint to mean any practice, device or action that interferes with a person's ability to make a decision or restricts their free movement. However, physical restraint is defined negatively as, any restraint other than a chemical restraint, or the use of medication prescribed for the treatment of, or to enable treatment of, a diagnosed mental disorder, a physical illness or a physical condition.(266)

As to physical restraint:

(1) An approved provider must not use a physical restraint in relation to a consumer unless, in relation to that use of the restraint:

(a) an approved health practitioner who has day-to-day knowledge of the consumer has:

(i) assessed the consumer as posing a risk of harm to the consumer or any other person, and as requiring the restraint; and

(ii) documented the assessment, unless the use of the restraint is necessary in an emergency; and

(b) alternatives to restraint have been used for the consumer to the extent possible; and

(c) the alternatives to restraint that have been considered or used have been documented, unless the use of the restraint is necessary in an emergency; and

(d) the restraint is the least restrictive form of restraint possible; and

(e) the approved provider has the informed consent of the consumer or the consumer's representative to the use of the restraint, unless the use of the restraint is necessary in an emergency.

(2) If an approved provider uses a physical restraint in relation to a consumer, the approved provider must:

(a) if the restraint is used in an emergency--document the matters mentioned in subparagraph (1)(a)(ii) and paragraph (1)(c) as soon as practicable after the restraint starts to be used; and

(b) if the restraint is used without the consent mentioned in paragraph (1)(e)--inform the consumer's representative as soon as practicable after the restraint starts to be used; and

(c) ensure the care and services plan documented for the consumer in accordance with the Aged Care Quality Standards set out in Schedule 2 identifies the following:

(i) the consumer's behaviours that are relevant to the need for the restraint;

(ii) the alternatives to restraint that have been used (if any);

(iii) the reasons the restraint is necessary;

(iv) the care to be provided to the consumer in relation to the consumer's behaviour; and

(d) use the restraint for the minimum time necessary; and

(e) while the consumer is subject to the restraint:

(i) regularly monitor the consumer for signs of distress or harm; and

(ii) regularly monitor and review the necessity for the restraint.(267)

As already noted in relation to chemical restraint, the Principles state that the physical restraint provisions do not affect the operation of any law of a State or Territory in relation to restraint. However, the physical restraint provisions in the Principles are different from the chemical restraint provisions in a number of ways, and more like the arrangements already in place in relation restrictive practices in the States and Territories. For example, unless the restraint is necessary in an emergency:

1 The informed consent of the person on whom the restraint is intended to be used, or their representative has to be obtained;

2 The alternatives restraint have to be used, as far as possible;

3 Also alternatives to restraint that have been considered or used have to be documented;

4 If restraint is used it has to be the least restrictive form possible; and

5 If used, has to be the for the minimum time necessary; and during that time the consumer has to be monitored for signs of distress; also

6 If used the necessity for the restraint has to be monitored and reviewed.(268)

7.5.8 Restrictive practices in legislation in Queensland and Victoria

Queensland and Victoria have legislated specific arrangements relating to behaviour intervention and support for people with decision-making disabilities who have difficult and dangerous behaviours. In our 2019 update, we have not attempted to assess the impact of the Rules and the Principles in relation to restrictive practices in Queensland, Victoria and the Northern Territory

The Disability Act 2006 (Vic) deals with "restrictive interventions" namely any intervention used to restrict the rights or freedom of movement of a person with a whole of life intellectual disability including chemical restraint, mechanical restraint or seclusion. (269) It does not apply to people with dementia, brain damage acquired after 18 years of age or a psychiatric condition. (270)

The regime in the Disability Act 2006 (Vic) does not involve the appointment of guardians. However, a disability service provider may apply to VCAT to review a decision of the Secretary of the Department of Human Services to refuse its application for approval of a proposal to use restrictive interventions on a person. (271) VCAT may also deal with an application made to it to review a decision to use restraint or seclusion in a behaviour management plan. (272) Also VCAT may deal with an application by a person with a disability to review the inclusion of the use of restraint or seclusion in their behaviour management plan. (273)

The restrictive practices legislation in Queensland, the Disability Services Act 2006 (Qld) in combination with the Guardianship and Administration Act 2000 (Qld), may apply to people with a wider range of disabilities. While it applies only to people who receive services from a service provider funded under the Disability Services Act 2006 (Qld), it applies to any of those who are adults with a disability who has a condition attributable to an intellectual or cognitive impairment, or a combination of these impairments. (274) QCAT is required to approve any plan containing proposals for the containment or seclusion or an associated restrictive practice proposed for a relevant adult. QCAT may appoint guardians specifically as consent-givers for other forms of restrictive practice. (275)

In 2009, the then Queensland Guardianship and Administration Tribunal held that the administration of the drug Androcur to reduce the sexual urges of a person with a decision-making disability was a restrictive practice because it was a form of chemical restraint requiring the consent of a guardian appointed under the restrictive practices provisions of the Guardianship and Administration Act 2000 (Qld). (276)

We do not deal with the relationship between the Queensland and Victorian legislation referred to in this section and the regime established by the National Disability Insurance Scheme (NDIS). However, we do deal with the NDIS Rules in relation to restraints and those receiving service under the NDIS in section 7.5.7.2.1 and its sub-sections above.
7.5.8.1 Northern Territory

We suggest that the compliance order provisions of the Guardianship of Adults Act (NT) may have role to play in relation to restrictive practices issues. (277) Compliance orders are dealt with in Chapter 16.10.7.2.

7.5.9 A guardian to make decisions about religious observance

The issue of whether guardians can be appointed to make decisions about the religious observance of a person under their guardianship arose in a New South Wales case in which a guardian sought to be reappointed to make such decisions. (278) The then Guardianship Tribunal noted two of the general principles of the Guardianship Act 1987 (NSW) that it has a duty to observe when making its decisions in relation to persons with a disability. These were that the Tribunal must ensure that the freedom of decision and freedom of action of persons with a disability should be restricted as little as possible and that such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs. (279) The Tribunal then took the view that the freedom of a person with a disability to choose how they should practice their faith should be paramount and that it was not appropriate to impose a guardianship order which could possibly result in restrictions in relation to the practice of her faith by the person the guardianship review was about as this was clearly a matter involving her personal affairs. (280)

Responding to an argument that the Tribunal had no power to make a guardianship order in relation to matters of religious observance, the Appeal Panel of the New South Wales Administrative Appeals Tribunal stated:

[W]e are loathe to conclude that this is a category of decision making which could never be the subject of such decisions. There may be instances where it is necessary for the benefit or welfare of the person that such decisions are made on their behalf. It follows that, in our view, the Guardianship Tribunal has jurisdiction to make a guardianship order which would allow a guardian to make decisions, take action and give consent in relation to matters involving religious observance as long as that was considered necessary for the welfare or benefit of the person. (281)

The Appeal Panel then continued:

Whether such an order should be made in this case can only be determined once the Guardianship Tribunal has re-heard the evidence and made new findings of fact. (282)

The facts of this case show why careful consideration must be given to the particular circumstances of the case and to the evidence of the person with a decision-making disability before such a function or power is given to the guardian. The person the hearing was about was elderly and cognitively impaired as a result of alcohol related brain damage. She was a long term adherent of the Jehovah's Witness faith. She lived in an aged care facility which placed no impediment in the way of her practice of her faith and which respected the practice of different faiths. She had told senior staff at the aged care facility that she was a Jehovah's Witness and that while she not observe Christmas and some of the other things on the Christian calendar, she did like the sound of carols and enjoyed carols singing wanted to attend every Christmas-themed activity that took place.

The person seeking to be guardian with the religious observance function was also a Jehovah's Witness who had the view that attending such activities was contrary to the religious beliefs of the person the hearing was about. Also, the person seeking to be guardian had told staff of the aged care facility not to allow the person the hearing was about to participate in any Christmas-themed activities even if that meant that she was by herself in the cottage while every other resident went to such an activity. (283)

7.5.10 Miscellaneous functions or powers

7.5.10.1 Travel

VCAT has held that it can make a guardianship order that gives a guardian power to make decisions concerning travel, including travel abroad, for the person under their guardianship. (284)

In a 2015 case, Lindsay J of the NSW Supreme Court quoted Theobald's The Law Of Lunacy as authority for the proposition that: "The committee of the person ought not to take [the incapable person] out of the jurisdiction without special leave [of the Court], but leave will be given on sufficient grounds for [the incapable person] to reside temporarily or even permanently out of the jurisdiction". (285) In a federation like Australia and when travel and other communications between States and Territories and also foreign countries is easy, is suggested that court and tribunals with power to appoint and give functions to guardians, could give guardians functions relating to the temporary or permanent settlement of the person under their guardianship out of the jurisdiction, subject to the knowledge or approval of the relevant court or tribunal either at the time the guardianship order is made or upon a subsequent application by the guardian.(286)

WASAT has given a guardian the power to obtain legal advice in respect of the prenuptial agreement said to have been signed by the person under guardianship, and to take any steps necessary concerning that agreement which are appropriate and in the best interests of that person. (287)

7.5.10.3 To maintain a claim for compensation in a Commonwealth tribunal

The former New South Wales Guardianship Tribunal (now the Guardianship Division of NCAT) has made a guardianship order appointing the father of the man the limited order was about as his guardian with an advocacy function. This function was intended to permit the father to maintain the claim by his son against the Military Rehabilitation and Compensation Commission in the Administrative Appeals Tribunal.

When Madgwick J of the Federal Court dealt with the matter, he was clear that the Guardianship Tribunal intended that the father's advocacy function should extend to giving instructions and that that was a plain indication that the father was authorised to obtain legal representation for his son and instruct the legal representatives on his behalf. (288)

7.5.10.4 To deal with immigration matters

The former New South Wales Guardianship Tribunal (now the Guardianship Division of NCAT) has made a guardianship order appointing the cousin of a man with dementia to deal with the man's immigration issues. The Tribunal also made an administration order in relation to the man's estate. (289)

7.5.10.5 To formally change the name of the person under guardianship

The former New South Wales Guardianship Tribunal (now the Guardianship Division of NCAT) has made a non-renewable guardianship order appointing the mother of a severely autistic man to deal with the Registry of Births, Deaths and Marriages in order to change his name. (290)

7.5.10.6 To approve fingerprinting to help identify an unconscious person

In 2008 the then New South Wales Guardianship Tribunal made a non-reviewable guardianship order appointing the Public Guardian as an unknown person's guardian for a period of one week to make substitute decisions on his behalf so that his fingerprints could be taken for the purpose of establishing his identity and informing his closest friends and family, as appropriate, of his circumstances. (291)

7.6 The ancillary powers of guardians

Guardians need to be able to carry out a number of powers in order to give full effect to their duties and responsibilities as guardians. Some of these are set out in the legislation of the different States and Territories. Some of these need to be inferred in the other States and Territories order for guardians to be able to function effectively and for their decisions to be given effect to. These matters are discussed below.

In Queensland, New South Wales, Victoria and Western Australia a guardian may, on behalf of the person under their guardianship, sign and do all such things as are necessary to give effect to any function, power or duty vested in the guardian. (292) The Queensland Act even provides that if a guardian is given a power to do a thing it is, by implication, given the power to execute a deed to do the thing. (293)

In the Northern Territory, guardians must make decisions in relation to the personal matters and financial matters for which they have been given authority to make under the guardianship order as and when such decisions are required. They must also act as an advocate for the adult in relation to those matters. Consequently, for the purpose of doing so, guardians are authorised to do anything on behalf of the adult that the adult could lawfully do if they had full legal capacity. Of course such authority is subject to the Act and the terms of the guardianship order. (294) Specifically they have the same right to documents and information, relevant to the exercise of their authority as the person under their guardianship would have if they had full legal capacity. Furthermore, the person who has custody or control of a relevant documents or information must give it to the guardian if requested by the guardian to do so. (295)

Guardians in South Australia, Tasmania and the Australian Capital Territory would have to have these roles implied into their responsibilities in order for them to be able to carry out their responsibilities as guardians effectively.

In Queensland, guardians have been given a statutory right to all the information that those under their guardianship would have been entitled to if they had capacity and which is necessary to make an informed exercise of any power given to the guardian. Those who have custody or control of the information must give it to the guardian when the guardian requests it, unless they have a reasonable excuse for not doing so. Failing to give the information because it might tend to incriminate the person who has it is a reasonable excuse, but the statutory right overrides any restriction, in an Act or the common law, about the disclosure or confidentiality of information and any claim of confidentiality or privilege, including a claim based on legal professional privilege. Also, the guardian may apply to the QCAT and it may order the person to give the information to the guardian. (296)

While guardianship tribunals elsewhere in Australia do not have the power to order the giving of necessary information to guardians, in New South Wales, Tasmania, Victoria, Western Australia and the Australian Capital. (297) This opens the way for an argument that, by necessary implication from the guardianship legislation in those States and Territories, and probably that of South Australia, guardians have the right to the information the person under guardianship would have been entitled to provided it is relevant to matters they have to make decisions about in the best interests of the person under guardianship.

In the Northern Territory, as has been noted a number of times, NTCAT can appoint guardians for personal of financial matters or both. Because of this, it is unsurprising that all guardians must keep records. These records must relate to the exercise of the guardian's authority whether it be in relation to the personal or financial matters of the persons under their guardianship or both. The records must be reasonable in the circumstances to keep and must comply with any record keeping and reporting requirements prescribed by regulation. (298) However, without limiting what may be provided for in regulations, a regulation may provide for any of the following:
  1. keeping of records;
  2. preparation of annual or other reports;
  3. auditing or other verification of records and reports;
  4. the form of records and reports
  5. who must or may be given copies of, or access to, records or reports. (299)
We suggest that all guardians in all the States and Territories keep records about all the substitute decisions they make and ensure that they appropriate and reasonable in the circumstances to keep.

There are other powers and duties that guardians in the Northern Territory have; but they relate to guardians for financial matters. Consequently they are dealt with in Chapter 8, Administration.

7.7 Directions (and advice) to guardians

When the Supreme Courts of the Australian States and Territories had the exclusive jurisdiction to make guardianship and administration orders, they were prepared to be very directive in the orders they made when they considered this to be necessary. This is shown in the 1984 decision of Powell J of the Supreme Court of New South Wales in RH v CAH. (300) In that case, Powell J appointed the Protective Commissioner the committee of the person (guardian) of a young woman with a severe intellectual disability and then went on to make further orders about access and gave a set of directions as to what was to happen if others, including the Protective Commissioner as committee, could not agree on the access arrangements. (301)

The tribunals dealing with guardianship matters in Queensland, New South Wales, South Australia, Tasmania, Victoria, Western Australia and the Northern Territory, but not the Australian Capital Territory, have been given the jurisdiction to give directions, but in a slightly different form in each State. (302)

In Queensland QCAT and in Western Australia WASAT have jurisdiction to give directions to guardians. (303) These directions can be given at the time the guardianship order is made or at a subsequent time. There is no statutory limit placed on the scope of the directions that may be given.

In Queensland QCAT may also make recommendations and give advice to guardians. (304) Applications for directions, recommendations or advice may be made by the person under guardianship or any other interested person meaning, in this context, a person who has a sufficient and continuing interest in the person under guardianship. (305)

In New South Wales only guardians may apply for directions and only as to the exercise of their functions in relation to those under their guardianship. NCAT must conduct a hearing into any application made by a guardian, and when considering the application must have regard to:
  1. the views (if any) of the person under guardianship and the guardian,
  2. the importance of preserving the person's existing family relationships, and,
  3. the importance of preserving the person's particular cultural and linguistic environments. (306)
In South Australia also, only the guardian may apply, to SACAT, for directions, but for a broader range of directions, namely:
  1. directions on the exercise of the guardians powers under the Guardianship and Administration Act 1993 (SA) or any other Act or law or as to the scope of those powers or,
  2. for approval to the taking of any action for which the approval of SACAT is required. (307)
Any direction given by SACAT is binding not only on the applicant guardian but also on any other joint guardian. (308) A guardian may also apply to SACAT for advice. (309)

In Tasmania the Guardianship and Administration Board may, "of its own motion, direct a guardian in respect of any matter". (310) Also, a guardian may apply for advice or direction by the Board on any matter relating to the scope of the guardianship order or the exercise of any power by the guardian under the guardianship order. After considering the application either with or without a hearing, the Board may:
  1. approve or disapprove of any act proposed to be done by the guardian,
  2. give such advice or direction as it considers appropriate; and
  3. vary the guardianship order or make any other order that it could have made on the original application. (311)
It is an offence for a guardian to contravene a direction. (312)

In Victoria, only a guardian can apply, to VCAT, and only for its advice upon any matter relating to the scope of the guardianship order or the exercise of any power by the guardian under the guardianship order. However, in dealing with the application, VCAT may:
  1. approve or disapprove of any act proposed to be done by the guardian,
  2. give such advice as it considers appropriate, and
  3. make any order it considers necessary. (313)
No legal action can be taken against a guardian because of an act or thing done or omitted by the guardian under any order or on the advice of VCAT under this section, unless in representing the facts to VCAT the guardian has been guilty of fraud, wilful concealment or misrepresentation. (314)

In the Northern Territory NTCAT may, in a guardianship order, as it considers appropriate:
  1. impose restrictions on the guardian's authority;
  2. impose requirements to be complied with by the guardian in relation to the exercise of their authority as a guardian;
  3. give directions to the guardian about the exercise of their authority as a guardian. (315)
Because all guardianship orders, except those expiring within one year of having been made, are reassessed, and on the completion of reassessment may be varied or revoked and replaced, restrictions or requirements can be imposed on, or directions given to, guardians at that stage as well as when the order was originally made. (316)

7.7.1 Case law on directions to guardians

The Australian guardianship tribunals do not often give directions to guardians, particularly public officials who have a statutory responsibility and obligation to act as guardian if appointed.

The function of guardianship tribunals and the public or private guardians appointed by them are separate and distinct. On most occasions, the functions of the Australian guardianship tribunals are primarily supervisory. They make the appointments of guardians and administrators (financial managers), review those appointments, and define the matters about which a guardian may make decisions. The role of the guardian essentially is to make decisions in the best interests of the person under their guardianship in relation to those personal matters they have been authorised to make decisions about. The tribunals themselves do not make those decisions.

Nevertheless, guardians and others, where they have the right to, sometimes apply for directions. In 2006, the then Queensland Guardianship and Administration Tribunal considered the extent of its powers when asked to give directions to a guardian. (317) It saw the question before it as being whether the Tribunal had the power to give a direction to a guardian which had the effect of the Tribunal making a decision which the guardian was otherwise empowered to make and whether it could, by the directions it gave, effectively override a decision which the guardian had already made. (318)

The Tribunal said that its power to give a direction, recommendation or advice has its origin in the analogous jurisdiction of the courts to give advice and directions to trustees under legislation relating to trustees. The ability to seek such guidance from a Supreme Court was seen as beneficial to trustees.

The Tribunal considered that in seeking a direction from it, the guardian was, in effect, asking the Tribunal to stand in their shoes and make a decision which the guardian was empowered to make.

The Tribunal noted that, if a narrow interpretation of the directions function was applied and the Tribunal could not give guardians directions with the effects referred to above, the consequence would be that guardians, who in all other respects may be competent and appropriate, would have to be removed. The Tribunal particularly noted that, the removal of a public official who was the guardian would often be to remove the guardian of last resort - something that was not an option in reality. (319)

The Tribunal concluded that it had the power, at the time it appointed the guardian, or reviewed the guardianship order, as well as on a specific application, to impose restrictions on or give instructions to a guardian which may extend to directing a substantive course of action for the guardian.

It also concluded that its power to give directions extended to directing the guardian as to how they should exercise their powers, and to how a decision which the guardian had been appointed to make should be made. (320)

In a 2007 case the then Queensland Tribunal gave directions effectively overriding the Adult Guardian's decision, in the exercise of the accommodation function or power, to move the person under guardianship from one accommodation service to another. (321)

As already noted in 7.5.2, when in a 2015 case the Public Advocate of Victoria asked VCAT for advice about a guardian's power to make decisions about accommodation, VCAT advised that the power given to the guardian to make decisions about accommodation included power for the guardian to decide that the person the subject of the guardianship order live in a locked facility which they may leave only under supervision.(322)

Notes

1 : Guardianship Act 1987 (NSW) ss 16(2)(b), 21(1)(b) and 21(2A). Relying on the authority of late 19th and early 20th century textbook writers, Powell J referred to the broad powers and duties of the committee of the person (the guardian) of a "person of unsound mind" in F v R (unreported, Supreme Court of NSW, Powell J, 2 May 1986), BC8601063, 7-9.

2 : Guardianship Act 1987 (NSW) ss 16(2)(a) and 21(1)(a).

3 : Ibid. ss 16(1)(d) and 21(1).

4 : Guardianship and Administration Act 1986 (Vic) s 24(1).

5 : Ibid. s 25(1).

6 : Ibid. s 24(2).

7 : Guardianship and Administration Act 2000 (Qld) ss 33(1), 35 and 36 and Schedule 2, item 2 and Schedule 4.

8 : VJC v NSC [2005] QSC 68 [29].

9 : Guardianship and Administration Act 2000 (Qld) Schedule 2, s 2.

10 : See, 7.3.1, 2 and 4, 7.5.2 and. 5 and .6 and 7.5.7.1.

11 : Guardianship and Administration Act 1990 (WA) s 45(1).

12 : Ibid. s 46.

13 : Ibid. s 45(2)(e) to (h).

14 : See 7.5 and following.

15 : Guardianship and Administration Act 1990 (WA) s 45(3).

16 : See 7. 4 and following.

17 : Guardianship and Administration Act 1990 (WA) s 49.

18 : Guardianship and Administration Act 1993 (SA) s 31.

19 : Ibid. s 32.

20 : See 7. 5. 2.

21 : Guardianship and Administration Act 1995 (Tas) s 25(1).

22 : Ibid. s 26(1).

23 : Ibid. s 25(2).

24 : Guardianship and Administration Act 1986 (Vic) s 24(2).

25 : Guardianship and Management of Property Act 1991 (ACT) s 7(2).

26 : Guardianship and Administration Act 1986 (Vic) s 24(2).

27 : Guardianship and Management of Property Act 1991 (ACT) s 7(3)(f).

28 : Ibid. s 7B.

29 : See 7. 4 and following.

30 : Public Advocate Act 2005 (ACT) s 12. See also, McGregor and Pearce v The Hon John Gallop and the Attorney-General of the ACT [2002] ACTSC 45 [46]-[50].

31 : Guardianship of Adults Act (NT) s 3.

32 : Ibid. s 16(1).

33 : Guardianship and Administration Act 2000 (Qld) s 34(1). See also Guardianship Act 1987 (NSW) s 4; Guardianship and Administration Act 1986 (Vic) s 4(2); Guardianship and Administration Act 1993 (SA) s 5; Guardianship and Administration Act 1995 (Tas) s 6 and the Guardianship and Management of Property Act 1991(ACT) s 5.

34 : Ibid. s 34(2). See also, for example, Guardianship Act 1987 (NSW) s 32.

35 : Guardianship of Adults Act 2016 (NT) s 22(1)(a). The guardianship principles are set out in s. 4.

36 : Ibid. s 22(1)(b).

37 : Ibid. s 21(1)(c).

38 : Guardianship and Administration Act 2000 (Qld) s 35.

39 : Guardianship of Adults Act (NT) s 22(1)(d).

40 : Guardianship and Administration Act 1990 (WA) s 51

41 : Guardianship and Administration Act 1986 (Vic) s 28 and Guardianship and Administration Act 1995 (Tas) s 27.

42 : Guardianship of Adults Act (NT) s 22(1)(a).

43 : Guardianship Act 1987 (NSW) s 4(a).

44 : DON [2005] WASAT 193 [37] and [38] and LGW [2004] WAGAB 4.

45 : Guardianship of Adults Act (NT) s 21(1)(b).

46 : Guardianship Act 1987 (NSW) s 4(d).

47 : Ibid. s 4(a).

48 : Guardianship and Administration Act 1990 (WA) s 52(2)(e). Also see, Guardianship of Adults Act 2016 (NT) ss 4(2) and (3) and (5)(a).

49 : Guardianship and Administration Act 1986 (Vic) s 4(2) and Guardianship and Administration Act 1995 (Tas) s 6. See also the Adult Guardianship Act 1988 (NT) s 4 where those general are known as "guardianship principles".

50 : Re NB Mc & Guardianship Board (1989) 3 VAR 87, 89.

51 : Guardianship and Administration Act 1986 (Vic) s 28(1); Guardianship and Administration Act 1995 (Tas) s 27(1) and Guardianship of Adults Act 2016 (NT) s 4, s 4(2) in particular.

52 : Guardianship and Administration Act 1986 (Vic) s 28(2)(e); Guardianship and Administration Act 1995 (Tas) s 27(2)(a) and Guardianship of Adults Act 2016 (NT) s 4.

53 : Guardianship and Administration Act 1986 (Vic) s 28(1) and (2)(e); Guardianship and Administration Act 1995 (Tas) s 27(1) and (2)(a).

54 : Pearce, DC and Geddes RS, Statutory Interpretation in Australia, LexisNexis Butterworths, 7th ed 2011, [4.38].

55 : Guardianship and Administration Act 2000 (Qld) Schedule 1, item 7.

56 : Guardianship and Management of Property Act 1991 (ACT) s 4(2).

57 : Guardianship and Administration Act 1993 (SA) s 5(a).

58 : Ibid. s 5(b).

59 : Guardianship of Adults Act (NT) s 20(1) to (3).

60 : Ibid. ss 4(2) - (5).

61 : Ibid, s 4(5).

62 : Guardianship and Administration Act 2000 (Qld) s 36. See also Guardianship of Adults Act 2016 (NT) s 22(1) - 22(1)(b)(i) in particular.

63 : Guardianship Act 1987 (NSW) s 21C Guardianship and Administration Act 1995 (Tas) ss 25(3) and 26(2); Guardianship and Administration Act 1986 (Vic) s24(4) and Guardianship and Administration Act 1990 (WA) s 50.

64 : Guardianship and Management of Property Act 1991 (ACT) s 13.

65 : Guardianship of Adults Act (NT) s 25.

66 : Guardianship and Administration Act 2000 (Qld) s 45.

67 : Guardianship and Management of Property Act 1991 (ACT) s 7B.

68 : Guardianship and Administration Act 1990 (WA) s 45(1), (3), (4) and (5).

69 : Public Guardian v Guardianship Board (1997) 42 NSWLR 201and PL (Guardianship) [2007] VCAT 2485.

70 : Note the distinction between subsections 24(b) and 24©. In the former relating to children, that a guardian may neither make nor give effect to a decision, while in relation to marrying or divorcing or entering or ending a de facto or sexual relationship, a guardian is precluded from making decisions only. Does this mean that a guardian can give effect to a decision by a person under their guardianship to marry or divorce (particularly where divorce proceedings have already been commenced) or to enter or end de facto or sexual relationship?

71 : Note that while a guardian may not make, vary or revoke a will for the person under their guardianship, the Northern Territory Supreme Court has statutory powers to make, vary or revoke a will in relation to a person who lacks will-making (testamentary) capacity under the Wills Act (NT) ss 19-26. (The Supreme Courts of the States and the Northern Territory have similar powers.) Also NTCAT has powers under s. 61 of the Advance Personal Planning Act (NT) to amend or revoke an advance personal plan. Note also that it has not been possible to make an enduring power of attorney under the Powers of Attorney Act (NT) since 17 March 2014 when the Advance Personal Planning Act (NT) came into force.

72 : Guardianship Act 1987 (NSW) s 15(1).

73 : Ex parte Lyttleton [1801] EngR 189; (1801) 31 ER 911; In re B (an alleged lunatic) [1891] 3 Ch 274; M v M [1981] 2 NSWLR 334, 336; RH V CAH [1984] 1 NSWLR 694, 706-707.

74 : Commonwealth Electoral Act 1918 (Cth) s 93(8). See also, for example, Parliamentary Electorates and Elections Act 1912 (NSW) s 21.

75 : (1870) LR 5 QB 549.

76 : See 4.10.

77 : Sheffield City Council v E [2004] EWHC 2808 (Fam) [100].

78 : _BQH [2018] NSWCATGD 16, [55].

79 : See 7. 3. 3. See also, Guardianship and Administration Act 1995 (Tas) s 27(2)(b); Guardianship and Administration Act 1986 (Vic) s 28(2)(a); Guardianship and Administration Act 1990 (WA) s 51(2)(a) and Guardianship of Adults Act 2016 (NT) s 21(1).

80 : See for example, Matter No. 97/0696 (unreported, Guardianship Board, 21 March 1997).

81 : Guardianship and Administration Act 2000 (Qld) Schedule 2 s 2(a); Guardianship and Administration Act 1995 (Tas) s 25(2)(a); Guardianship and Administration Act 1986 (Vic) s 24(2)(a); Guardianship and Administration Act 1990 (WA) s 45(2)(a); Guardianship and Management of Property Act 1991 (ACT) s 7(3)(a) and Guardianship of Adults Act 2016 (NT) ss 3 (and examples) and 11. Note also that the Northern Territory Act does not distinguish plenary and limited orders.

82 : For NSW see, Guardianship Act 1987 (NSW) s 21(1)(b). See also s 21(2A). For South Australia see, Guardianship and Administration Act 1993 (SA) s 31; but also see below in this section for SACAT's special powers under s 32.

83 : For an example see, MJ and MWT [2006] WASAT 59. For a case in which the accommodation function was given to a guardian because the person the subject of the guardianship order needed to be removed from the place in which the persons in relation to whom an Apprehended Domestic Violence Order was made in relation to her lived, see TQI [2015] NSWCATGD 8. In EID [2015] NSWCATGD 8, an accommodation function was given to a guardian in relation to a person in prison with a limiting order because they were unfit to plead to a murder charge because of severe acquired brain injuries. The purpose of the function was to facilitate the move of EID from prison to a residential aged care facility as he now had dementia.

84 : Guardianship of Adults Act (NT), s 35.

85 : Guardianship Act 1987 (NSW) s 21A(1).

86 : Ibid. s 21A(2).

87 : Re JD [2003] QGAAT 14.

88 : Ibid. [37].

89 : NLA (Guardianship) [2015] VCAT 1104.

90 : See 7. 5. 7.

91 : Guardianship and Administration Act 1995 (Tas) s 28; Guardianship and Administration Act 1986 (Vic) s 26.

92 : Guardianship and Administration Act 1993 (SA) s 32.

93 : _BC v The Public Advocate & Ors [2018] SASC 193 and The Public Advocate v C, B [2019] SASCFC 58.

94 : Ibid. [7]; Guardianship and Administration Act 1993 (SA) s 29.

95 : Ibid. [36].

96 : _The Public Advocate v C, B_[2019] SASCFC 58. Kourakis CJ gave the leading judgment with which Kelly and Hinton JJ agreed. However Hinton J, with whom Kelly J agreed on this point, reserved for another day the question of whether there are circumstances, for convenience described as emergency situations, in which the guardian may restrain a person subject to a guardianship order that does not expressly include power to detain under s. 32 of the Act, in order to ensure that person's safety and wellbeing until such time as the appropriate order may be obtained - see, The Public Advocate v C, B [2019] SASCFC 58, [76]-[77].

97 : Carter No. DCAAT-97-64 [1997] SADC 3655. For other cases about s 32 of the Guardianship and Administration Act 1993 (SA) see, Robinson v Guardianship Board [1999] SADC 12 and S, P v Guardianship Board [2006] SADC 38.

98 : Guardianship and Administration Act 1993 (SA), s 32(6).

99 : Ibid. s 32(7).

100 : BAH [2007] NSWGT 1 [108].

101 : Ibid. [109].

102 : Ibid. [107].

103 : FI v Public Guardian [2008] NSWADT 263.

104 : The earlier case was WK v Public Guardian (No 2) [2006] NSWADT 121. FI v Public Guardian [2008] NSWADT 263, [1]-[2].

105 : FI v Public Guardian [2008] NSWADT 263, [46].

106 : Ibid. [47].

107 : Ibid [50].

108 : Ibid [51].

109 : BAH [2007] NSWGT 1 [124]. For an application of the BAH approach see, KAT [2007] NSWGT 7. See also YID [2007] NSWGT 19 and QAN [2008] NSWGT 19.

110 : Ibid. [125].

111 : Ibid. [126].

112 : _LZB_ [2018] NSWCATGD 21.

113 : Ibid. [39]. See also [38]-[44].

114 : F v R (unreported, Supreme Court of NSW, Powell J, 2 May 1986, BC8601063, 8-9).

115 : Guardianship and Management of Property Act 1991(ACT) Part 2A.

116 : For an example see, RJC [2006] WASAT 279.

117 : For an example see, In the matter of Elizabeth M 30 A.D. 3d 780 (2006).

118 : Guardianship and Management of Property Act 1991 (ACT) s 8AB and Powers of Attorney Act 2006(ACT) s 75.

119 : Guardianship of Adults Act (NT) s 23. Restricted health care is sent out in Chapter 12. 10. 7. (footnote).

120 : Guardianship of Adults Act 2016 (NT) s 23 and Advance Personal Planning Act (NT) s 41.

121 : Guardianship Act 1989 (NSW) ss 44 and 46A. For two cases in which NCAT gave the Public Guardian, as guardian of the person, the function of giving substitute decisions in relation to medical and dental treatment, including the authority to override the objections medical treatment by the person the subject of the guardianship order see, QCM [2015] NSWCATGD 38 (for both psychotic and physical health conditions) and SMD [2015] NSWCATGD 40 (objections to any medical or dental treatment). For an example a private guardian being given the authority to override the objections to all medical treatments see, NSD [2016] NSWCATGD 20. For a review of a guardianship order authorising a guardian to override a patient's objections to medical treatment because of his anorexia nervosa complicated by obsessive compulsive features and the renewal of that order see, KSC [2013] NSWGT 20.

122 : For a paper showing experience in handling such difficult issues see a paper by Julie Duffy, Deputy Public Guardian (Qld), Making decisions on reproductive and sexual health for and by with impaired decision making capacity, given at the 2016 AGAC National Conference , 17-18 October 2016. See website http://www.agac.org.au/conference-papers/94-2016-conference-papers.

123 : [2006] QGAAT 11.

124 : Ibid. [22]-[23] and [28].

125 : Ibid. [27].

126 : Guardianship Act 1987 (NSW) s 20(2A); Guardianship and Administration Act 1995 (Tas) s 25(3); Guardianship and Administration Act 1986 (Vic) s 24(4); Guardianship and Administration Act 1990 (WA) s 50.

127 : For an example of the NSW Guardianship Tribunal giving a guardian appropriate authority see, DQE (No. 2) [2007] NSWGT 9.

128 : _BQH_ [2018] NSWCATGD 16, [43]-[55] in particular.

129 : Guardianship and Administration Act 1990 (WA) s 49.

130 : Guardianship and Administration Act 1990 (WA) s 52(2)(d).

131 : Ibid. s 47.

132 : Ibid. s 49(1)(b).

133 : Guardianship of Adults Act 2016 (NT), s 35.

134 : Hodak v Newman [1993] FamCA 83; (1993) 17 Fam LR 1; Rice v Miller [1993] FamCA 87; (1993) 16 Fam LR 970; Re Evelyn [1998] FamCA 55; (1998) 23 Fam LR 53.

135 : VJC v NSC [2005} QSC 68 [29]. See, Guardianship and Administration Act 2000 (Qld) Schedule 2, s 2.

136 : RH v CAH [1984] 1 NSWLR 694.

137 : LA [2006] WASAT 297 [2] and [3].

138 : Ibid. [37], [45] and [46].

139 : For an example see HDH (No 1) [2005] TASGAB 2.

140 : GLM (Guardianship) [2007] VCAT 2487.

141 : Matter No. 2006/6707 (unreported, Guardianship Tribunal, 3 November 2006) and Matter No. 2006/3088 (unreported, 2 June 2006).

142 : CCT v Public Guardian [2016] NSWCATAD 71.

143 : Ibid. [66].

144 : Guardianship of Adults Act 2016 (NT), s 3.

145 : Art. 12(2) of the Convention on the Rights of Persons with Disabilities.

146 : _National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018_ and the Quality of Care Amendment (Minimising the Use of Restraint) Principles 2019.

147 : Re JD [2003] QGAAT 14.

148 : Ibid. [32].

149 : Regina v Ashworth Hospital Authority ex parte Munjaz [2005] UKHL 58 [103]. Also reported as Regina (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58; [2006] 2 AC 148.

150 : Ibid. [50].

151 : Munjaz v Mersey Care National Health Service Trust [2003] EWCA Civ 10, [46].

152 : Ibid. [46]. In re F [1991] UKHL 1; [1990] 2 AC 1.

153 : Munjaz v Mersey Care National Health Service Trust [2003] EWCA Civ 10, [47].

154 : Darcy v State of New South Wales [2010] NSWDC 210.

155 : Ibid. [102].

156 : Darcy (bht Diane Aldridge) State of New South Wales [2011] NSWCA 413, [190].

157 : For this list, we have adopted the list set out in the list in the NSW Civil and Administrative Tribunal's NCAT Fact Sheet - Guardianship Division - Restrictive practices and guardianship, found at: https://www.ncat.nsw.gov.au/Documents/gd_factsheet_restrictive_practices_and_guardianship.pdf The National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) at Rule 6, set out a more detailed definition of these restrictive practices which are "regulated restrictive practices" under those Rules. The Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019 (Cth) apply only in relation to physical and chemical restraint. The definitions of those forms of restraint, set out in s. 4 of the Principles are effectively the same as the definitions of physical restraint set out in the text to which this endnote relates.

158 : _HZC_ [2019] NSWCATGD 8.

159 : See for example, EAN [2009] NSWGT 10.

160 : See empoweredproject.org.au;

161 : dbmas.org.au). Their 24 hour helpline number is 1800 699 799.

162 : Opie J, Rosewarne R, O'Connor DW, "The efficacy of psychosocial approaches to behaviour disorders in dementia: a systematic literature review", Aust NZ J Psychiatry, 1999; 33(6),789-99; Chenoweth, L., et al. (2009). Caring for aged dementia care resident study (CADRES) of person-centred care, dementia-care mapping, and usual care in dementia: a cluster-randomised trial. The Lancet Neurology, 8(4), 317-325. See also O'Connor, D. W., Ames, D., Gardner, B. & King, M. (2009). Psychosocial treatments of psychological symptoms in dementia: a systematic review of reports meeting quality standards. International Psychogeriatrics, 21, 241-251; and Testad I., Corbett A., Aarslan D., Lexow, K.O., Fossey J., Woods B., Ballard C., (2014) Personalized psychosocial interventions in care home settings International Psychogeriatrics 26:1083-1098.

163 : Peisah C. (2014) The use of restraints and psychotropic medications in people with dementia Paper 38: A report for Alzheimer's Australia. Alzheimer's Australia. https://fightdementia.org.au/sites/default/files/NATIONAL/documents/Alzheimers-Australia-Numbered-Publication-38.pdf

164 : Gerhard T., Huybrechts K., Olfson M., Schneeweiss S., Bobo WV Doraiswamy DP., et al., (2014) Comparative mortality risks of antipsychotic medications in community- dwelling older adults Br J Psychiatry; 205 :44-51; and Huybrechts, K. F., Gerhard, T., Crystal, S., Olfson, M., Avorn, J., Levin, J., Lucas, J. A. & Schneeweiss, S. (2012). Differential risk of death in older residents in nursing homes prescribed specific antipsychotic drugs: population cohort study. BMJ, 344, e977; and Kales et al (2012) Risk of mortality among individual antipsychotics in patients with dementia American J Psychiatry 169: 71-79; and Rossom, R.C., Rector, T.S., Lederle, F.A. and Dyksen, M.W. (2010). Are all commonly prescribed antipsychotics associated with greater mortality in elderly male veterans with dementia? J Amer Geriatric Society, 58, 1027 -1034. And Schmedt N, Kollhorst B, Enders D, Jobski K, Krappweis J, Garbe E, Schink T.(2016) Eur Neuropsychopharmacol. Comparative risk of death in older adults treated with antipsychotics: A population-based cohort study; 26(9):1390-400. And Nielsen RE, Lolk A, Valentin JB, Andersen K. (2016) Cumulative dosages of antipsychotic drugs are associated with increased mortality rate in patients with Alzheimer's dementia.Acta Psychiatr Scand. 134(4):314-20.

165 : OFL (Guardianship) [2016] 684.

166 : Legislative Instrument F2018L00632(4).pdf and F2018L00632ES.pdf.

167 : See HZC [2019] NSWCATGT 8, [39]-[40].

168 : The National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (C'th).

169 : Ibid. Rule 6.

170 : _HZC_ [2019] NSWCATGD 8, [44]-[45].

171 : Peisah C. The use of restraints and psychotropic medications in people with dementia Paper 38: A report for Alzheimer's Australia. Alzheimer's Australia. 2014.

172 : Peisah C. Jessop T., Breen J. A missed opportunity to improve practice around the use of restraints and consent in residential aged care: limitations of the Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019. Australasian Journal of Ageing. In Press.

173 : _HZC_ [2019] NSWCATGD 8.

174 : Rule 6(a) of the Rules.

175 : _HZC_ [2019] NSWCATGD 8, [50] and [52].

176 : _BQM_ [2019] NSWCATGD 1,[9].

177 : Ibid. [27].

178 : Ibid. [28] - [30].

179 : Ibid. [40].

180 : Rule 6(e) of the Rules.

181 : Ibid. [53].

182 : Ibid. [56].

183 : _BQM_ [2019] NSWCATGD 1, [37] to [39].

184 : Ibid. [37].

185 : _KKD_ [2019] NSWCATGD 4, [11].

186 : _KKD_ [2019] NSWCATGD 4, [27]-[32].

187 : NHD [2018] NSWCATGD 41, [3].

188 : Ibid. [20].

189 : Ibid. [18] and [19].

190 : Ibid. [21]. This matter is now covered by The Restrictive Practices Authorisation Policy (June 2019) of the now Department of Communities and Justice. That policy deals with the restrictive practices authorisation mechanism in NSW, which provides at 4.8.1; "Some devices or practices used for therapeutic or safety purposes impose a level of limitations on a person's freedoms, but do not constitute restrictive practices".

191 : _DXL_ [2018] NSWCATGD 37, [9], [10], [15], [17] and [18].

192 : Ibid. [13].

193 : Ibid. [16] - [17].

194 : Ibid. [16] and [17]. This matter is now covered by The Restrictive Practices Authorisation Policy (June 2019) of the now Department of Communities and Justice. That policy deals with the restrictive practices authorisation mechanism in NSW, which provides at 4.8.1; "Some devices or practices used for therapeutic or safety purposes impose a level of limitations on a person's freedoms, but do not constitute restrictive practices".

195 : _DZF_ [2018] NSWCATGD 30, [2], [10]-[12].

196 : Ibid. [30]-[33].

197 : Ibid. [38].

198 : Ibid. [48]. This matter is now covered by The Restrictive Practices Authorisation Policy (June 2019) of the now Department of Communities and Justice. That policy deals with the restrictive practices authorisation mechanism in NSW, which provides at 4.8.1; "Some devices or practices used for therapeutic or safety purposes impose a level of limitations on a person's freedoms, but do not constitute restrictive practices".

199 : _SKD_ [2018] NSWCATGD 38, [1], [2], [9], [10], [17] and [21].

200 : Ibid. [21]

201 : Ibid. [21].

202 : Ibid. [21].

203 : Ibid. [24].

204 : Rule 6© of the Rules.

205 : _HZC_ [2019] NSWCATGD 8, [60]-[61].

206 : BQM [2019] NSWCATGD 1, [32]-[34]. Would not this now be covered by The Restrictive Practices Authorisation Policy (June 2019) of the now Department of Communities and Justice? That policy deals with the restrictive practices authorisation mechanism in NSW, which provides at 4.8.1; "Some devices or practices used for therapeutic or safety purposes impose a level of limitations on a person's freedoms, but do not constitute restrictive practices".

207 : Rule 6(b) of the Rules.

208 : {{_HZC_ [2019] NSWCATGD 8, [71].

209 : Ibid. [72].

210 : Ibid. [78]-[99].

211 : _BQM_[2019] NSWCATGD 1, [35], [36] and [40].

212 : _KKD_[2019] NSWCATGD 4, [33] and [34].

213 : _NHD_ [2018] NSWCATGD 41, [16] and [18].

214 : Rule 6(b) of the Rules.

215 : _DXL_ [2018] NSWCATGD 37, [16] and [17].

216 : _UBH_ [2019] NSWGT 3, [1].

217 : Ibid. [9].

218 : Ibid. [24].

219 : Ibid. [25] and [26].

220 : Ibid. [27].

221 : Ibid. [29}.

222 : _EZD_ [2018] NSWCATGD, [1] and [4].

223 : Ibid. [6] and [10].

224 : Ibid. [9] - [11].

225 : _KYT_[2018] NSWCATGD 36.

226 : Ibid. [20]-[21].

227 : Ibid. [23]-[25]

228 : Rule 6(d) of the Rules.

229 : _WXB_[2018] NSWCATGD 39, [1], [2],[17],[18], [21], [22] and [24].

230 : _HZC_[2019] NSWCATGD 8, [100]. See s 16(1)(d) of the Guardianship Act 1987 (NSW) for the power to do so.

231 : Ibid.

232 : See Restrictive Practices Authorisation Policy (June 2019) of the now NSW Department of Communities and Justice, Chapter 1 at 1.1.

233 : See ss 4(a) and 4(b) of the Act).

234 : See Rules 10(2), 18(a), 22(b) and 22(a) of the Rules .

235 : See for example NHD [2018] NSWCATGD 41 and DXL [2018] NSWCATGD 37.

236 : _KKD_ [2019]NSWCATGD 4, [25].

237 : _KZE_ [2018] NSWCATGD 40, [1] and [2].

238 : Ibid. [18].

239 : Ibid. [10].

240 : Ibid. [11].

241 : Ibid. [12].

242 : Ibid. [20].

243 : Ibid. [21].

244 : Ibid. [24].

245 : BQM

246 : See extract from the Interim Report entitled "A Shocking Tale of Neglect" on the Royal Commission's website.

247 : The Principles are a "legislative instrument" made by the (relevant) Minister under the provisions of s. 96-1 of the Aged Care Act 1997 (Cth).

248 : See cl. 4, Quality of Care Principles 2014 (Cth) (the Principles).

249 : See cl. 15E of the Principles.

250 : See cl. 15G(1) of the Principles.

251 : For substitute consent to medical treatment in NSW see Ch. 12.4.

252 : See s.35, Guardianship Act 1987 (NSW).

253 : See cl.15G(2)(b)and© of the Principles.

254 : See Chs11.1 and 11.2 and Ch 12.

255 : Peisah C. Jessop T., Breen J. "A missed opportunity to improve practice around the use of restraints and consent in residential aged care: limitations of the Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019." Australasian Journal of Ageing. In Press.

256 : Peisah C., Chan D., McKay R., Kurrle S., Reutens S. (2011) Practical guidelines for the acute emergency sedation of the severely agitated older patient Internal Medical Journal ; 41(9) : 651-657.

257 : Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2.

258 : See also Hunter and New England Area Health Service v A [2009] NSWSC 361, [36]-[37].

259 : _Secretary of State for the Home Office; Ex Parte Simms_ [1999] UKHL 33; {2000] 2 AC 115, 131 (Lord Hoffmann).

260 : Rendina N, Brodaty, H, Draper B., Peisah C. Brugue, E. (2009) Substitute consent for nursing home residents prescribed psychotropic medication International Journal of Geriatric Psychiatry 2009 24 (3) 226-231); Jessop T, Harrison F, Cations M, Draper B, Chenoweth L, Hilmer S, et al. Halting Antipsychotic Use in Long-Term care (HALT): a single-arm longitudinal study aiming to reduce inappropriate antipsychotic use in long-term care residents with behavioral and psychological symptoms of dementia. Int Psychogeriatr. 2017;29(8):1391-403.

261 : Peisah C. Jessop T., Breen J. A missed opportunity to improve practice around the use of restraints and consent in residential aged care: limitations of the Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019. Australasian Journal of Ageing. In Press.

262 : https://www.hrw.org/sites/default/files/supportingresources/incomingparliamentaryjointcommitteeonhumanrightsletter.pdf

263 : https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/QualityCareAmendment

264 : Royal Australian and New Zealand College of Psychiatrists submission to the Royal Commission into Aged Care Quality and Safety, dated 3 October 2019, p. 17. The College's recommendation for amendment of legislation constituted number 20 of 43 key recommendations to the Commission.

265 : https://www.aph.gov.au/~/media/Committees/humanrights_ctte/QualityCareAmendment/Report.pdf?la=en

266 : Quality of Care Principles 2014 (Cth) (the Principles), Cl. 4.

267 : Clause 15F of the Principles.

268 : Clause 15F(2) of the Principles.

269 : Disability Act 2006 (Vic) s 3.

270 : Ibid.

271 : Ibid. s 138

272 : Ibid. s 144.

273 : Ibid. s 146.

274 : Disability Services Act 2006 (Qld) s 123E.

275 : Ibid. S 123D. For an example of an appointment of a guardian for restrictive practices in Queensland see, Re MAN [2008] 97.

276 : Re AAG [2009] QGAAT 43.

277 : Guardianship of Adults Act 2016 (NT), s 35.

278 : HH v HI and the Protective Commissioner [2009] NSWADTAP 41.

279 : Guardianship Act 1987 (NSW) s 5 (b) and (f).

280 : HH v HI and the Protective Commissioner [2009] NSWADTAP 41 [26].

281 : Ibid. [38].

282 : Ibid. [38].

283 : Ibid. [19]-[23].

284 : AA (Guardianship) [2006] VCAT 1957. For an example from NSW see, Matter No 2004/5028 (unreported Guardianship Tribunal, 15 September 2004).

285 : IR v AR [2015] NSWSC 1187, [55].

286 : For an example see, DPE v Public Guardian [2018] NSWCATAP 285.

287 : GY [2005] WASAT 186.

288 : Military Rehabilitation and compensation Commission v SRGGGG [2005] FCA 342.

289 : UAP [2007] NSWGT 18. See also BZ [2019] WASAT 14 in which WASAT appointed both a guardian to look after immigration matters, and an administrator (financial manager) to look after that person's financial affairs.

290 : TAD [2007] NSWGT 20.

291 : Person X [2008] NSWGT 20.

292 : Guardianship and Administration Act 2000 (Qld) s 45; Guardianship Act 1987 (NSW) s 21B; Guardianship and Administration Act 1986 (Vic) s 29 and Guardianship and Administration Act 1990 (WA) s 50.

293 : Guardianship and Administration Act 2000 (Qld) s 46.

294 : Guardianship of Adults Act (NT) s 21.

295 : Ibid. s 26. See also s 27.

296 : Ibid. s 44.

297 : Guardianship Act 1987 (NSW) s 21C; Guardianship and Administration Act 1995 (Tas) ss 25(3) and 26(2); Guardianship and Administration Act 1986 (Vic) ss 24(4) and 25(3); Guardianship and Administration Act 1990 (WA) s 50 and Guardianship and Management of Property Act 1991 (ACT) s 13.

298 : Guardianship of Adults Regulations (NT) cl 4. The regulations came into force 28-7-2016.

299 : Guardianship of Adults Act (NT) s 28. Note the matters that cl 4 of the regulations actually covers.

300 : [1984] 1 NSWLR 694.

301 : Ibid. 708-709.

302 : Guardianship and Administration Act 2000 (Qld) s 82(1)(d); Guardianship Act 1987 (NSW) ss 26-31; Guardianship and Administration Act 1993 (SA) s 74; Guardianship and Administration Act 1995 (Tas) s 31; Guardianship and Administration Act 1986 (Vic) s 30; Guardianship and Administration Act 1990 (WA) s 13(b) and Guardianship of Adults Act (NT), s 17(1)(c).

303 : Guardianship and Administration Act 2000 (Qld) s 82(1)(d) and Guardianship and Administration Act 1990 (WA) s 13(b).

304 : Guardianship and Administration Act 2000 (Qld) s 82(1)(d).

305 : Ibid. s 115 and Schedule 4.

306 : Guardianship Act 1987 (NSW) ss 26 and 28.

307 : Guardianship and Administration Act 1993 (SA) s 74.

308 : Ibid. s 74(3).

309 : Ibid. s 74(1).

310 : Guardianship and Administration Act 1995 (Tas) s 31(4).

311 : Ibid. s 31(1)-(3).

312 : Ibid. s 31(5).

313 : Guardianship and Administration Act 1986 (Vic) s 30(1) and (3).

314 : Ibid. s 31(4).

315 : Guardianship of Adults Act (NT), s 17(1).

316 : Ibid. ss 17(1) and 38.

317 : Re WFM [2006] QGAAT 54.

318 : Ibid. [13].

319 : Ibid. [23], [24] and [27].

320 : Ibid. [33].

321 : Re WAC [2007] QGAAT 15.

322 : NLA (Guardianship) [2015] VCAT 1104.


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