NJ[2022] QCAT 283

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

Contents

REASONS FOR DECISION5

Introduction5

Participants within this hearing6

Background and evidence6

The jurisdictional question: Can the Tribunal appoint the Public Guardian as a restrictive practices substitute decision-maker who can give consent for the use of environmental restraint under s 15FA(f)(ii) of the QOCP?7

What is the putative “matter”?8

Is that a matter in respect of which the Tribunal has power to make a s 12(1) order?12

What is necessary for a matter to be a matter “relating to the adult’s care, including the adult’s health care or welfare?”14

What is the effect, if any, of s 12(4) of the GAA, in this case?17

What is the effect of the note to s 12(4) of the GAA?18

Does the lack of express mention of non-chapter 5B restrictive practices in the definition of “personal matter” exclude them from being a personal matter?19

Other potential characterisation of the matter as being an accommodation decision – that is, where the adult lives22

What to do in respect of paragraph 59 of MLI22

Capacity – s 12(1)(a) of the GAA23

Is there a need for a decision in relation to the matter or is the adult likely to do something in relation to the matter that involves or is likely to involve unreasonable risk to the adult’s health, welfare or property? – s 12(1)(b) of the GAA24

Without an appointment, will NJ’s needs be adequately met or NJ’s interests adequately protected? – s 12(1)(c) of the GAA26

Should the discretion be exercised to appoint? – the Tribunal “may” appoint – s 12(1) of the GAA27

Who should be appointed as guardian for NJ?27

On what terms, if any, should the appointment be made?29

Application of Human Rights Act32

Is the decision compatible with human rights?32

Are any limits to NJ’s human rights reasonable and demonstrably justified?33

Orders34

REASONS FOR DECISION

Introduction

1. [1]
   NJ has dementia and exhibits intermittent wandering behaviours. She has no family.
2. [2]
   She is being housed within a secure unit within an aged care facility, which has locked doors preventing egress from the unit by NJ.
3. [3]
   In this case, the aged care facility seeks the appointment of the Public Guardian “for approval of restrictive practice, containment and seclusion in a memory support unit for people who suffer dementia”.^[1]As a result of that formal application, the Tribunal commenced two applications concerning NJ, an application for the appointment of a guardian and an application for the appointment of a guardian for a restrictive practice.
4. [4]
   Given NJ lacks capacity to provide consent to such an arrangement, and for reasons which will be set out below, the proceedings amount to an application for the appointment of a restrictive practices substitute decision-maker who can give consent for the use of “environmental restraint” under section 15FA(f)(ii) of the Quality of Care Principles 2014 (Cth) (QOCP).
5. [5]
   Before turning to the question of whether the Tribunal should appoint the Public Guardian as requested, we must determine the jurisdictional question of whether the Tribunal can make such an appointment.
6. [6]
   Until 1 July 2021, there was no need for the Tribunal to consider appointing a guardian for giving consent to a restrictive practice for an adult with impaired capacity in aged care. Previously, when the Commonwealth introduced legislation relating to what it considered to be restrictive practices in aged care, consent for any practices could be obtained from any appointed guardian, family member^[2] or in an emergency situation, a health professional.
7. [7]
   Amendments made from 1 July 2021 to the Aged Care Act 1997 (Cth) and the QOCP made it clear for the first time that informed consent to restrictive practices must be given by a restrictive practices substitute decision-maker under the law of the State or Territory where the adult resides.

Participants within this hearing

8. [8]
   NJ is largely non-verbal. The Tribunal appointed Ms Anderson of ADA Law as representative for NJ under s 125 of the Guardianship and Administration Act 2000 (Qld) (GAA) to represent the adult’s views, wishes and interests.
9. [9]
   The Public Advocate has a function, amongst others, to promote and protect the rights of adults with impaired capacity for a matter as well as promoting the protection of the adults from neglect, exploitation or abuse. Due to the jurisdictional issue to be determined by the Tribunal and the likely impact of the Tribunal’s decision in this matter on many adults with impaired capacity residing in residential aged care, the Tribunal invited the Public Advocate to intervene in this proceeding. Leave was granted to the Public Advocate to intervene in the proceeding pursuant to s 210 of the GAA.
10. [10]
    The Tribunal has had the benefit of evidence and oral and written submissions.^[3]

Background and evidence

11. [11]
    NJ is now aged 87 years and has resided in a secure unit within an aged care facility for a period of approximately five years. NJ has advanced dementia. As stated, NJ is largely non-verbal.
12. [12]
    The evidence of Ms Anderson, NJ’s appointed representative, and the evidence of the applicant is consistent with the uncontradicted medical evidence before the Tribunal comprising a number of reports from Dr King, NJ’s treating health professional. Dr King opines in his report dated 24 August 2021 that NJ cannot understand and make her own decisions, whether simple or complex, about personal or health care matters, lifestyle or accommodation matters, financial matters or the use of restrictive practices.
13. [13]
    Historically, the Tribunal has made orders appointing the Public Guardian to make decisions for NJ about personal matters as follows:

    1. (a)
       On 19 February 2014 to make decisions about accommodation, health care and provision of services;^[4]
    2. (b)
       On 25 May 2016 to make decisions about accommodation, health care and provision of services;^[5] and
    3. (c)
       On 28 May 2018 to make decisions about provision of services.^[6]
14. [14]
    On 5 November 2019, the Public Guardian was given leave to withdraw as guardian for NJ and the appointment made on 28 May 2018 was formally revoked. The Public Trustee of Queensland has been appointed as administrator for NJ since 19 February 2014.
15. [15]
    The decision for NJ to live at the aged care facility was made by the Public Guardian. NJ was subsequently moved to the secure unit on the recommendation of her general practitioner due to her “wandering” a symptom of dementia. NJ has no family or any other person in her life concerned for her rights and interests or able to offer her any support for decision-making.
16. [16]
    NJ is unable to leave the unit on her own, without being supervised. On 17 May 2021, the care services manager of the aged care facility where NJ resides applied to the Tribunal for the appointment of a guardian for NJ.
17. [17]
    Within the unit NJ has access to her bedroom, the communal dining/lounge area, communal kitchen and communal activity room. Those areas are available for NJ to access at any time she wishes.^[7] During particular day time hours an outdoor space is accessible by NJ via an automatic door. However, the automatic door is locked overnight between 4:00pm and 8:00am. NJ is also unable to access any areas beyond the fenced area surrounding the unit’s outdoor space. NJ may access the main building of the aged care facility beyond the fence if accompanied by a staff member.
18. [18]
    NJ cannot access the main building of the aged care facility to participate in activities there without supervision and a member of staff will have to open the gate for her.
19. [19]
    When NJ first moved to the aged care facility, she resided in an open access area before being moved to the secure unit in 2017. There is no dispute that NJ was moved on recommendation of her treating health professional in order to prevent her wandering and therefore keep her safe.^[8]

The jurisdictional question: Can the Tribunal appoint the Public Guardian as a restrictive practices substitute decision-maker who can give consent for the use of environmental restraint under s 15FA(f)(ii) of the QOCP?

20. [20]
    The power of the Tribunal to appoint a guardian is found in s 12 of the GAA.
21. [21]
    Section 12 of the GAA sits within Part 1 of chapter 3. Chapter 3 is headed “Appointment of guardians and administrators.” Part 1 is headed “Making an appointment order.”
22. [22]
    Under s 12 of the GAA, the Tribunal may appoint a guardian for a personal matter for an adult if the Tribunal is satisfied:

1. (a)
   the adult has impaired capacity for the matter; and
2. (b)
   there is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves or is likely to involve unreasonable risk to the adult’s health or welfare; and
3. (c)
   without an appointment -

1. (i)
   the adult’s needs will not be adequately met; or
2. (ii)
   the adult’s interests will not be adequately protected.^[9]

3. (2)
   The appointment may be on terms considered appropriate by the tribunal.^[10]
4. (3)
   The tribunal may make the order on its own initiative or on the application of the adult, the public guardian or an interested person.

23. [23]
    Section 12(4) expressly states that s 12 does not apply in respect of the appointment of a guardian for a restrictive practice matter under ch 5B.
24. [24]
    The note to s 12(4) states “Section 80ZD provides for the appointment of guardians for restrictive practice matters.”
25. [25]
    To answer the jurisdictional question, it is necessary to identify:

    1. (a)
       What is the putative “matter” for the purposes of s 12(1)?;
    2. (b)
       Is that a matter in respect of which the Tribunal has power to make a s 12(1) order?

What is the putative “matter”?

26. [26]
    The applicant says NJ is subject to ‘restrictive practices’ as that term is defined in the Aged Care Act 1997 (Cth). More specifically, it is claimed that NJ is subject to “environmental restraint” as that term is defined in the QOCP and that is necessary to appoint a restrictive practices substitute decision-maker for NJ to enable compliance with the requirement that informed consent to the use of the restrictive practice (environmental restraint) can been given in accordance with s 15FA(1)(f).
27. [27]
    Here, the putative “matter” is the giving or refusing informed consent to the use of environmental restraint in respect of NJ under section 15FA(1)(f)(ii) of the QOCP.
28. [28]
    To explain why this is so, it is necessary to set out some details of the Commonwealth legislative regime with respect to restrictive practices in aged care.
29. [29]
    As noted above, the QOCP relating to use of restrictive practices by aged care providers was amended in 2021. Some amendments commenced on 1 July 2021 with others commencing on 1 September 2021. The QOCP now contain a need for the giving informed consent by the care recipient, or if the care recipient lacks capacity to consent, then informed consent from the ‘restrictive practices substitute decision-maker’ is required in order to use restrictive practices.
30. [30]
    Under the Aged Care Act 1997 (Cth), approved providers of aged care have responsibilities in relation to the quality of aged care provided to care recipients including relevantly:

1. (a)
   to maintain an adequate number of appropriately skilled staff to ensure that the care needs of care recipients are met;^[11]
2. (b)
   to comply with the Aged Care Quality Standards made under section 54-2;^[12] and
3. (c)
   if the provider provides aged care of a kind specified in the QOCP to care recipients – to ensure a restrictive practice in relation to those recipients is only used in the circumstances set out in those Principles.^[13]

31. [31]
    “Restrictive practice” is defined in s 54-9 of the Aged Care Act 1997 (Cth):^[14]

3. (1)
   A restrictive practice in relation to a care recipient is any practice or intervention that has the effect of restricting the rights or freedom of movement of the care recipient.
4. (2)
   Without limiting subsection (1), the QOCP may provide that a practice or intervention is a restrictive practice in relation to a care recipient.

32. [32]
    Section 54-10 sets out the matters that QOCP must require:

3. (1)
   The Quality of Care Principles made for the purposes of paragraph 54 1(1)(f) must:

1. (a)
   require that a restrictive practice in relation to a care recipient is used only:

1. (i)
   as a last resort to prevent harm to the care recipient or other persons; and
2. (ii)
   after consideration of the likely impact of the use of the practice on the care recipient; and

2. (b)
   require that, to the extent possible, alternative strategies are used before a restrictive practice in relation to a care recipient is used; and
3. (c)
   require that alternative strategies that have been considered or used in relation to a care recipient are documented; and
4. (d)
   require that a restrictive practice in relation to a care recipient is used only to the extent that it is necessary and in proportion to the risk of harm to the care recipient or other persons; and
5. (e)
   require that, if a restrictive practice in relation to a care recipient is used, it is used in the least restrictive form, and for the shortest time, necessary to prevent harm to the care recipient or other persons; and
6. (f)
   require that informed consent is given to the use of a restrictive practice in relation to a care recipient; and
7. (g)
   require that the use of a restrictive practice in relation to a care recipient is not inconsistent with any rights and responsibilities of care recipients that are specified in the User Rights Principles made for the purposes of paragraph 56 1(m); and
8. (h)
   make provision for, or in relation to, the monitoring and review of the use of a restrictive practice in relation to a care recipient.

3. (2)
   The Quality of Care Principles made for the purposes of paragraph 54-1(1)(f) may provide that a requirement specified in those Principles does not apply if the use of a restrictive practice in relation to a care recipient is necessary in an emergency.
4. (3)
   Subsections (1) and (2) do not limit the matters that may be specified in the Quality of Care Principles made for the purposes of paragraph 54-1(1)(f).

33. [33]
    The QOCP relevantly provide that for the purposes of s 54-9(2) of the Aged Care Act 1997 (Cth) each of the following is a restrictive practice in relation to a care recipient:

    1. (a)
       Chemical restraint;
    2. (b)
       Environmental restraint;
    3. (c)
       Mechanical restraint;
    4. (d)
       Physical restraint; and
    5. (e)
       Seclusion.^[15]
34. [34]
    “Environmental restraint” is defined as a practice or intervention that restricts, or that involves restricting, a care recipient’s free access to all parts of the care recipient’s environment (including items and activities) for the primary purpose of influencing the care recipient’s behaviour.^[16]
35. [35]
    The circumstances in which an approved provider may use a restrictive practice in relation to a care recipient are that the requirements set out in Div 3 of Pt 4A of the QOCP are satisfied. The use of a restrictive practice in relation to a residential care recipient of an approved provider, other than in those circumstances, is a reportable incident under s 54-3(2)(g) of the Aged Care Act 1997 (Cth) and must be reported to the Aged Care Quality and Safety Commission.^[17]
36. [36]
    Under the Aged Care Quality and Safety Commission Act 2018 (Cth), the Commission may investigate and take appropriate regulatory action.
37. [37]
    The requirements for the use of any restrictive practice are:

15FA Requirements for the use of any restrictive practice

3. (1)
   The following requirements apply to the use of any restrictive practice in relation to a care recipient:

1. (a)
   the restrictive practice is used only:

1. (i)
   as a last resort to prevent harm to the care recipient or other persons; and
2. (ii)
   after consideration of the likely impact of the use of the restrictive practice on the care recipient;

1. (b)
   to the extent possible, best practice alternative strategies have been used before the restrictive practice is used;
2. (c)
   the alternative strategies that have been considered or used have been documented in the behaviour support plan for the care recipient;
3. (d)
   the restrictive practice is used only to the extent that it is necessary and in proportion to the risk of harm to the care recipient or other persons;
4. (e)
   the restrictive practice is used in the least restrictive form, and for the shortest time, necessary to prevent harm to the care recipient or other persons;
5. (f)
   informed consent to the use of the restrictive practice has been given by:

1. (i)
   the care recipient; or
2. (ii)
   if the care recipient lacks the capacity to give that consent—the restrictive practices substitute decision maker for the restrictive practice;

1. (g)
   the use of the restrictive practice complies with any provisions of the behaviour support plan for the care recipient that relate to the use of the restrictive practice;
2. (h)
   the use of the restrictive practice complies with the Aged Care Quality Standards set out in Schedule 2;
3. (i)
   the use of the restrictive practice is not inconsistent with the Charter of Aged Care Rights set out in Schedule 1 to the User Rights Principles 2014;
4. (j)
   the use of the restrictive practice meets the requirements (if any) of the law of the State or Territory in which the restrictive practice is used.

3. (2)
   However, the requirements set out in paragraphs (1)(a), (b), (c), (f) and (g) do not apply to the use of a restrictive practice in relation to a care recipient if the use of the restrictive practice in relation to the care recipient is necessary in an emergency.
4. (3)
   Subsection (2) applies only while the emergency exists.

Note:  See section 15GB for other responsibilities of approved providers that apply if the use of a restrictive practice in relation to a care recipient is necessary in an emergency.

38. [38]
    The additional requirements for the use of restrictive practices other than chemical restraint are:^[18]

15FB Additional requirements for the use of restrictive practices other than chemical restraint

3. (1)
   The following requirements apply to the use of a restrictive practice in relation to a care recipient that is not chemical restraint:

1. (a)
   an approved health practitioner who has day to day knowledge of the care recipient has:

1. (i)
   assessed the care recipient as posing a risk of harm to the care recipient or any other person; and
2. (ii)
   assessed that the use of the restrictive practice is necessary;

1. (b)
   the following matters have been documented in the behaviour support plan for the care recipient:

1. (i)
   the assessments;
2. (ii)
   a description of any engagement with persons other than the approved health practitioner in relation to the assessments;
3. (iii)
   a description of any engagement with external support services (for example, dementia support specialists) in relation to the assessments.

3. (2)
   However, the requirement set out in paragraph (1)(b) does not apply to the use of a restrictive practice in relation to a care recipient if the use of the restrictive practice in relation to the care recipient is necessary in an emergency.
4. (3)
   Subsection (2) applies only while the emergency exists.

Note:  See section 15GB for other responsibilities of approved providers that apply if the use of a restrictive practice in relation to a care recipient is necessary in an emergency.

39. [39]
    “Restrictive practices substitute decision-maker” for a restrictive practice in relation to a care recipient, means a person or body that, under the law of the State or Territory in which the care recipient is provided with aged care, can give informed consent to:

The use of the restrictive practice in relation to the care recipient;

…

If the care recipient lacks the capacity to give that consent.^[19]

40. [40]
    Whether a person can be appointed by the Tribunal as a restrictive practices substitute decision-maker for the purpose of s 15FA of the QOCP, will depend on whether the Tribunal has power to appoint them as guardian for the purpose of the giving or withholding consent to restrictive practices. The answer to this question depends on the extent of power of the Tribunal, that is, whether the putative matter is a matter in respect of which the Tribunal has power to make a s 12(1) order.

Is that a matter in respect of which the Tribunal has power to make a s 12(1) order?

41. [41]
    For reasons which follow, the answer to this question is “yes”.
42. [42]
    “Matter” is defined in the dictionary to the Act as including “a type of matter”.^[20] Schedule 2 to the GAA is headed “Types of matters”. Schedule 2, Part 2, is headed “Personal matter”. It provides that:

A personal matter for an adult is a matter, other than a special personal matter or special health matter, relating to the adult’s care, including the adult’s health care, or welfare, including, for example, a matter relating to 1 or more of the following –

1. (a)
   where the adult lives;
2. (b)
   with whom the adult lives;
3. (ba)
   services provided to the adult;
4. (c)
   whether the adult works and, if so, the kind and place of work and the employer;
5. (d)
   what education or training the adult undertakes;
6. (e)
   whether the adult applies for a licence or permit;
7. (f)
   day-to-day issues, including diet and dress;
8. (g)
   health care of the adult;
9. (h)
   whether to consent to a forensic examination of the adult;
10. (i)
    a legal matter not relating to the adult’s financial or property matter;
11. (j)
    a restrictive practice matter under ch 5B;
12. (k)
    seeking help and making representations about the use of restrictive practices for an adult who is the subject of a containment or seclusion approval under ch 5B;
13. (l)
    who may have access visits to, or other contact with, the adult;
14. (m)
    advocacy relating to the care and welfare of the adult.^[21] (Italics added)

43. [43]
    As can be seen, the definition of personal matter uses the term “relating to” (twice). These words are of wide import. Further, the definition uses “including” (twice), a word indicating that personal matters is not limited to a matter expressly included within the definition. The language used in “personal matters” is indicative of an intention that the provision be read broadly. This will be discussed further below, but for now we start with the threshold requirement for a matter to a personal matter, that is, that it relates to the adult’s care or welfare.
44. [44]
    We note that the definition of “personal matter” expressly sets out some matters which are examples of matters which relate to the adult’s care. For reasons which we will set out below, the absence of express reference to non-chapter 5B restrictive practices from the examples included within the definition of “personal matter” at subparagraphs (a) to (m) does not mean that non-chapter 5B restrictive practices cannot be regarded as a “personal matter”. It will depend on whether or not the putative matter falls within a matter “relating to adult’s care, including the adult’s health care, or welfare”.

What is necessary for a matter to be a matter “relating to the adult’s care, including the adult’s health care or welfare?”

45. [45]
    The High Court has interpreted the expression “relating to”, and analogous phrases such as “in relation to”, “in respect of” or “with respect to”, as having a very wide meaning,^[22] which is subject to its context:

The phrase gathers meaning from the context in which it appears and it is that context which will determine the matters to which it extends.^[23]

46. [46]
    As Justice McHugh in O'Grady v Northern Queensland Co Ltd^[24] said:

The prepositional phrase “in relation to” is indefinite. But, subject to any contrary indication derived from its context or drafting history, it requires no more than a relationship, whether direct or indirect, between two subject matters.^[25]

47. [47]
    We have considered the drafting history of s 12, and the context of s 12. Having done so, we have not identified anything that would point to a contrary indication. As such, to be a matter under s 12, the matter must have a direct, or indirect, connection with the adult’s care, which, as we have set out above, includes the adult’s welfare.
48. [48]
    “Welfare” is not defined in the GAA. The Oxford Dictionary defines welfare as “the general health, happiness and safety of a person” and the Macquarie Dictionary defines welfare as “good or satisfactory existence”.
49. [49]
    The evidence is clear that the restrictive practice is necessary for the safety of NJ.^[26]
50. [50]
    As such, there is a direct relationship between the matter and the welfare of NJ, and is a matter “relating” to her welfare, and therefore to her “care”, and thus within power of s 12.
51. [51]
    This conclusion is consistent with the reasoning in Re MLI.^[27]
52. [52]
    Although that was a decision relating to health care, the fundamental requirement of the Tribunal for a restrictive practice to be within the remit of an appointment was that it was directed to the health care of the adult, and not for an extraneous purpose. Here, our conclusion that the appointment is within power reflects that fundamental requirement: it is for the welfare of NJ, not for some extraneous purpose.
53. [53]
    The following summary of the decision of MLI makes clear that parallel.
54. [54]
    MLI was 18 years old, with a history of developmental difficulties, a mild intellectual disability, and a history of severe challenging behaviours including self-harm, aggression to others, property destruction and fire setting. Due to his history of explosive outbursts, his severely challenging behaviours and his large physical presence, he needed specialised and modified accommodation and support. At the time the matter came before the Tribunal, he lived in a facility run by Disability Services Queensland. Within that facility, he lived in area from which he was not free to leave. During this time at the facility, he had assaulted staff members, lit a fire, and had caused significant property damage. His outbursts exposed himself, and staff, to danger.
55. [55]
    When he turned 18, the Department of Child Safety made an application to the Tribunal for the appointment of the Adult Guardian as his guardian.^[28]
56. [56]
    The Adult Guardian lodged an application with the Tribunal seeking a determination as to the extent of a guardian’s powers under the GAA where a person was being kept in a facility from which he is not free to leave, where his actions are monitored and where he was kept within a confined environment.^[29]
57. [57]
    The evidence before the Tribunal was such that the Tribunal was satisfied that MLI lacked capacity to make decisions for himself. An interim order had been made in relation to health care and accommodation, on the basis that there was a need for urgent decisions to be made in relation to same.
58. [58]
    The essential issue for determination on final hearing was the extent of the powers of a guardian. This was because the Department of Child Safety was seeking the appointment of the Adult Guardian as a guardian to consent to the keeping of MLI in the restrictive environment in which he lived.
59. [59]
    Several issues arose for consideration by the Tribunal. Most relevant at this juncture are the following:

    1. (a)
       Does the guardian’s power to consent to health care extend to consenting to a Behaviour Management Plan which may contain restrictive practices in the circumstances of that case?
    2. (b)
       Can the guardian consent to restrictive practices outside the power to consent to health care?
60. [60]
    “Health care” was (and is) defined to mean:

3. (1)
   ...care or treatment of, or a service or a procedure for, the adult –

1. (a)
   to diagnose, maintain, or treat the adult’s physical or mental condition; and
2. (b)
   carried out by, or under the direction or supervision of, a health provider.

61. [61]
    In considering the issues set out at paragraph [59] above, the Tribunal observed:

1. (a)
   MLI’s uncontrolled explosive outbursts that result in self-harm, assaults and destructive behaviour is at least a manifestation of a mental condition.^[30]
2. (b)
   A guardian could provide consent to health care for that mental condition, but the question is what it covers.^[31]
3. (c)
   A guardian can consent to health care which fits within the definition of health care, that is, that it is used to maintain or treat a mental condition and carried out under the direction and supervision of a health provider.^[32]
4. (d)
   If restrictive practices restrict the fundamental liberties of an adult to an extent that they go beyond what can be truly characterised as health care then these practices would require specific legislative power.^[33]
5. (e)
   Practices that go beyond health care cannot be authorised by a guardian, that is, practices that are not put in place to relieve the symptoms of the manifestations of a mental condition and which are not authorised or supervised by a health provider cannot be health care and cannot be authorised or consented to by a guardian.^[34]
6. (f)
   If restrictive practices restrict the fundamental liberties of an adult to an extent that they go beyond what can be truly characterised as health care then these practices would require specific legislative power.^[35]
7. (g)
   What can be authorised as health care however is a strategy put in place by a health professional (a psychologist or other professional trying to manage aggressive behaviours to minimise the distress to the adult).^[36]
8. (h)
   Here, it is important that the distancing of people from MLI, or placing MLI in a quiet room is aimed at assisting the adult to come to terms with the management of the condition. The strategy is not put in place permanently but as a situation arises and is of short duration and monitored regularly. Importantly the strategy is put in place to de-escalate distress and not to protect staff.^[37]
9. (i)
   In the current case, the plan authorised by the psychologist or other health care workers to control violent eruptions as they occur, provided the plan is implemented by the professional or under their direction. What can’t be authorised by the guardian is the detention behind locked doors permanently.^[38]
10. (j)
    The Adult Guardian can make decisions in relation to which assessments or diagnoses need to be carried out in relation to his mental conditions and can make decisions about behaviour support or behaviour management plans for MLI to the extent they implement strategies to manage his violent outbursts, including withdrawing from him to allow him to settle down and removing stimuli while this occurs.^[39]
11. (k)
    The Adult Guardian could not make a decision to remove him permanently from the community or leave him in a situation in which he is permanently detained. That would require clear legislative authority.^[40]

62. [62]
    Here, as stated above, the restrictive practice of preventing egress from the secure unit unsupervised, is directed to preservation of NJ’s welfare; just as the relevant restrictive practice in MLI were directed to MLI’s health care. It is those connections with the care of the adult which ground jurisdiction.
63. [63]
    For completeness, we should observe that we did consider whether the restrictive practice in respect of NJ might be “health care”.^[41]
64. [64]
    None of the parties favoured this position, and we are not otherwise satisfied that precluding NJ from leaving the secure area at will meets the definition of health care. That is, we are not satisfied that it “is care or treatment of, or a service of a procedure… to diagnose, maintain or treat” NJ’s physical or mental condition.
65. [65]
    NJ’s dementia cannot be improved and there is no evidence that NJ’s living environment in any way affects the progression (or non-progression) of dementia. The current limitations to the areas she can access were recommended by her health professionals to keep her safe due to her wandering. There is no evidence that it will affect any change to the wandering, a symptom of her dementia.

What is the effect, if any, of s 12(4) of the GAA, in this case?

66. [66]
    Section 12(4) excludes ch 5B matters from s 12 appointments. As such, it is necessary to understand whether or not this matter falls within ch 5B.
67. [67]
    The ch 5B amendments to the GAA in 2008 gave the Tribunal a power to appoint a guardian for a ‘restrictive practice’ and for the Tribunal to approve ‘containment’ and ‘seclusion’ as those terms are defined in the Disability Services Act 2006 (Qld) (the DSA). The Tribunal’s jurisdiction in relation to those matters, however, extends only to those individuals whose accommodation support was funded originally by a relevant Queensland Government department and more recently through the National Disability Insurance Scheme.
68. [68]
    Chapter 5B is headed “Restrictive practices”.
69. [69]
    That chapter applies to an adult:

…with an intellectual or cognitive disability who receives disability services from a relevant service provider.^[42]

70. [70]
    The purpose of ch 5B is set out in s 80S(1) and (2).
71. [71]
    Section 80S(1) provides that the purpose of ch 5B to enable the tribunal to:

1. (a)
   give approval for a relevant service provider to contain or seclude an adult, and to review the approval; and
2. (b)
   if the tribunal has given, or proposes to give, an approval mentioned in paragraph (a) in relation to an adult – give approval for a relevant service provider to use restrictive practices other than containment or seclusion in relation to the adult, and to review the approval; and
3. (c)
   appoint a guardian for a restrictive practice matter for an adult, and to review the appointment.^[43]

72. [72]
    Thus, the GAA expressly contemplates approval being given to a relevant service provider to use restrictive practices other than containment or seclusion, but only if the Tribunal has given, or proposes to give, approval for a relevant service provider to contain or seclude an adult.
73. [73]
    Section 80S(2) then states:

3. (2)
   Also, this chapter -

1. (a)
   enables the public guardian to approve the use of particular restrictive practices on a short-term basis; and
2. (b)
   provides criteria for guardians for a restrictive practice matter and informed decision-makers for deciding whether to consent to the use of particular restrictive practices.

74. [74]
    The power to appoint a guardian for a restrictive practice under s 80ZD or approve containment and seclusion under s 80V of the GAA is contained in ch 5B and so applies only to an adult with an intellectual or cognitive disability who receives disability services from a relevant service provider.^[44]
75. [75]
    NJ does not receive services from a relevant service provider and she is an aged care: Part 6 of the DSA and ch 5B of the GAA do not apply to her. The Tribunal has no jurisdiction to appoint a guardian for restrictive practices or make any other decision under ch 5B concerning NJ.
76. [76]
    As such, s 12(4) does not operate in the circumstances of this case.

What is the effect of the note to s 12(4) of the GAA?

77. [77]
    As set out above, s 12(4) provides that s 12 does not apply for the appointment of a guardian for a restrictive practice matter under ch 5B.
78. [78]
    Immediately under s 12(4) is the following note:

Note –

Section 80ZD provides for the appointment of guardians for restrictive practice matters.^[45]

79. [79]
    That note is part of the Act.^[46] As such, regard must be had to the note in the construction of the Act.
80. [80]
    The question which arises is: do the words “section 80ZD provides for the appointment of guardians for restrictive practice matters” mean that the Tribunal cannot appoint a guardian to give or withhold consent to the use of a restrictive practice under the QOCP?
81. [81]
    In our view, the answer to that question is no.
82. [82]
    To answer yes, would be to give each of s 12 and the definition of “personal matters” in the Schedule, an impermissibly limited construction. Such a construction would be in conflict with the breadth of the substantive provisions, and must give way to the substantive provisions which are broader in their import.^[47]
83. [83]
    Further, and in any event, a note should not be read as extending beyond the scope of the subject matter with which it deals.^[48] It is clear that the note should be read as relating to the words in s 12(4) only, and not s 12 more broadly.
84. [84]
    As such, the words in the note, and s 12(4) itself, should be construed to mean that if there is an application for a guardian for a restrictive practice matter which falls within ch 5B, then the appointment can only be under s 80ZD and not under s 12.
85. [85]
    Read in this way, the GAA prescribes a particular mechanism which must be followed for restrictive practices matters, as defined in the Disability Services Act 2006 (Qld). It does not exclude the appointment of a guardian under section 12 for persons who fall outside that cohort.

Does the lack of express mention of non-chapter 5B restrictive practices in the definition of “personal matter” exclude them from being a personal matter?

86. [86]
    As set out above, personal matter is defined as a matter “relating to the adult’s care, including the adult’s health care, or welfare, including, for example” the matters set out in subparagraphs (a) to (m).
87. [87]
    Those subparagraphs^[49] set out a broad variety of things of a personal (that is, non-financial) nature that an adult makes or may make for themselves during their lifetime. Some of those things are decisions which might be made on a daily basis while others might arise only when particular circumstances arise.
88. [88]
    Restrictive practices, other than restrictive practice matters under ch 5B,^[50] are not expressly included as an example of a personal matter.
89. [89]
    The question which arises in this case is whether the lack of express inclusion of non-chapter 5B restrictive practices, and the express inclusion of ch 5B restrictive practices, should lead to the conclusion that the definition should be read so as to exclude non-chapter 5B restrictive practices.
90. [90]
    The answer to this question is “No”.
91. [91]
    In this regard, we have had regard to s 12(4), which only excludes ch 5B restrictive practices from the operation of s 12. Section 12 makes plain that the power in s 12(1) may be exercised if the criteria in (a) to (c) are satisfied, provided that it is not an application for the appointment of a guardian for a restrictive practice matter under ch 5B. If the legislature had intended that the prohibition in s 12(4) be broader than ch 5B matters, this intention could easily have been reflected by not including the words “under chapter 5B”.
92. [92]
    Further, if the legislature had wanted to exclude non-chapter 5B matters from the definition of personal matters, it could easily have done so expressly.
93. [93]
    We have also had regard to the use of the term “including” (twice) in the definition of personal matters. The use of this term points strongly to the conclusion that the matters contained within sub-paragraphs (a) to (m) are a non-exhaustive list of examples of matters which come within the concept of “relating to the adult’s care”.
94. [94]
    Generally, ‘includes’ is used by the legislature where it intends to enlarge the ordinary meaning of a word or phrase, whereas ‘means’ is used if the definition is intended to be exhaustive.^[51]
95. [95]
    Kitto J in YZ Finance Co Pty Ltd v Cummings said:^[52]

Unlike the verb “means”, “includes” has no exclusive force of its own. It indicates that the whole of its object is within its subject, but not that its object is the whole of its subject. Whether its object is the whole of its subject is a question of the true construction of the entire provision in which the word appears. The well-known statement of Lord Watson in Dilworth v. Commissioner of Stamp should not be taken so literally as to reduce the inquiry in a case like the present to an inquiry into the meaning of the word “includes”. Strictly speaking, that word cannot be equivalent to “means and includes”. But a provision in which it appears may or may not be enacted as a complete and therefore exclusive statement of what the subject expression includes. A provision which is of that character has the same effect as if “means” had been the verb instead of “includes”. The question whether a particular provision is exclusive although “includes” is the only verb employed is therefore a question of the intention to be gathered from the provision as a whole.

96. [96]
    The High Court in YZ Finance found that decision-makers should be slow to depart from patterns established by the legislature in the use of words like “means” and “includes”.^[53]
97. [97]
    Throughout the GAA, “means” and “includes” are used. In particular, in Schedule 2 of the GAA – in which s 2 contains the definition of “personal matter” – “means” and “includes” are used in different definitions in different sections.^[54] Even “is” is used to define terms,^[55] which has exclusivity in the same sense as “means”. In Schedule 2 s 5, “is”, “includes” and “does not include” are used in three separate subsections.
98. [98]
    All of this supports the conclusion that the general meaning of include applies here, so that the list of personal matters under s 2 is not exhaustive.
99. [99]
    There is no doubt that in 2008 the Queensland legislature turned its mind to not only what would be regarded as a restrictive practice in Queensland for adults who received accommodation support and services funded by the department then responsible for disability services but also to how such practices should be approved or consented to for an adult with impaired capacity for making decisions about such matters. In order to make a decision under ch 5B concerning an adult, the Tribunal must be satisfied that the adult has impaired capacity for the restrictive practices matter.^[56] Further, the Queensland legislature considered such a matter a personal matter listing it in the definition of “personal matter” in sch 2 cl 2(j). The introduction of the Commonwealth’s National Disability Insurance Scheme (the NDIS) prompted amendments to the part so that those adults who receive accommodation support funded by the NDIS became part of the cohort of adults in respect of which the Tribunal could appoint a guardian for restrictive practices or give consent for containment and/or seclusion under ch 5B.
100. [100]
     The inclusion of ch 5B evinces a deliberate legislative intention to put in place specific requirements for a specific cohort. It should not be read as evincing a legislative intention that precludes s 12 orders for restrictive practices to be made for persons falling outside that cohort. This interpretation is consistent with the Explanatory Memorandum to the Disability Services and Other Legislation Amendment Bill 2008 (Qld) which states that:

Clause 15 amends section 12. Section 12 provides for the tribunal’s authority to appoint a guardian for a personal matter for an adult with impaired decision making capacity and sets out the criteria the tribunal must be satisfied of before an appointment is made. Section 12 is amended by the inclusion of a provision that states that section 12 does not apply for the appointment of a guardian for a restrictive practice matter under chapter 5B. The authority of the tribunal to appoint a guardian for a restrictive practice matter is included in the new chapter 5B created by this Bill at clause 22, section 80ZD (Appointment). It is necessary to include a separate section dealing with the appointment of a guardian for a restrictive practice matter because of the different criteria that need to be satisfied before such an appointment can be made, such as the requirement the adult’s behaviour has resulted in previous harm to the adult or others or the use of the restrictive practice is in accordance with the positive behaviour support plan developed for the adult.^[57]

101. [101]
     In summary, for the reasons discussed above, we have concluded that the GAA read in context, and as a whole, should be construed not to exclude non-chapter 5B restrictive practices from s 12.
102. [102]
     It therefore follows that the Tribunal has power to appoint a guardian under s 12 of the GAA for the relevant matter provided the terms of s 12 are satisfied. In our view as the Tribunal has the power to appoint a guardian for the relevant matter, any person or entity appointed under s 12 in relation to the relevant matter would meet the definition of “restrictive practices substitute decision-maker” under s 4 of the QOCP.
103. [103]
     As such, as a matter of overall statutory construction, we conclude that an appointment with respect to “environmental restraint” in respect of a person who does not fall within the ch 5B cohort, is a matter which can fall within s 12(1) orders.

Other potential characterisation of the matter as being an accommodation decision – that is, where the adult lives

104. [104]
     The definition of “personal matter” includes “where the adult lives” as a specific example of a matter which relates to an adult’s care, commonly known as an accommodation decision. We considered whether the matter should be characterised as an accommodation decision. We concluded that it should not.
105. [105]
     Given clear evidence in this case is that the locked door unit is, and will be, used as a means of managing NJ’s behaviour, the matter falls squarely within the Commonwealth legislative regime, which makes plain (as set out below) that in order for environmental restraint to be utilised, consent must be given to that restrictive practice. That, in turn, gives rise to the same question as above: is a decision about a non-chapter 5B restrictive practice excluded from “personal matter” for the purpose of section 12(1) appointments. Thus, even if the decision might be capable of characterisation as a decision about where the adult lives, its true character is one relating to restrictive practice, and that is how it should be characterised.^[58]
106. [106]
     We would not, in any event, have characterised it as a decision about where the adult lives. We do not consider that a decision about where a person lives can incorporate or includes as a feature the power to decide that a person be prevented from freely leaving where they reside. This view is consistent with the reasoning of the Tribunal in Re MLI.^[59]

What to do in respect of paragraph 59 of MLI

107. [107]
     In MLI¸ as to whether the guardian could consent to restrictive practices apart from the power to consent to health care, the Tribunal found that it could not, referring to the principle stated by Gleeson CJ in Plaintiff S157/2002 v Commonwealth of Australia^[60] that:

The courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakeable and unambiguous language…even the most general words are taken to be ‘subject to the basic rights of the individual.^[61]

108. [108]
     The Tribunal found, at [59], that it was not satisfied that a guardian can consent to any restrictive practices except to the limited degree they consent to these practices as a guardian for health care in certain specific circumstances “as set out above”.^[62]
109. [109]
     First, we observe juncture of the decision, it appears that the Tribunal was concerned with the notion of a permanent decision to detain, rather than other types of restrictive practices. Second, the Tribunal did not specifically consider the question of a restrictive practice which is for the welfare of the adult. This is not surprising given that the facts of the case did not expressly require the Tribunal to do so to dispose of the matter.
110. [110]
     As such, this statement at [59] should not be taken as an absolute prohibition against restrictive practices which do not fall within the definition of “health care”.
111. [111]
     Further, we observe that the Tribunal’s concern in MLI as to the principle stated by Gleeson CJ in Plaintiff S157/2002 was expressed against the background context of there being no statutory safeguards for the use of restrictive practices in respect of MLI.
112. [112]
     That is unlike the current situation. Here, the statutory safeguards are contained within the QOCP, as supported by the parent Act. As such, it is not a question, in this case, of the principle of legality applying vis a vis the operation of the GAA; rather, the Commonwealth legislation contains express abrogation of the right to not be the subject of restrictive practices, but that abrogation is the subject of specific statutory protections. Part of that prescription is that there must be consent by the adult, or a substitute decision maker. Thus, the GAA, read in a way which permits the appointment of a guardian as substitute decision maker to give, or withhold, consent for the use of a restrictive practice, does not offend the principle of legality, but merely provides one part of the mechanism by which a statutory framework which expressly abrogates rights is executed.^[63] That is, it provides the manner of one of the statutory safeguards – the giving of consent.
113. [113]
     Given that there is jurisdiction to make the appointment requested, the next question for determination is whether the Tribunal should make the appointment. That starts with a determination of whether the requirement in s 12(1)(a)-(c) are met.

Capacity – s 12(1)(a) of the GAA

114. [114]
     NJ’s dementia is permanent and as a result, her capacity for decision-making will not improve.
115. [115]
     Due to her advanced dementia, NJ is unable to understand the nature and effect of decisions about the giving of informed consent for environmental restraint. She would be unable to weigh the information of her health professionals, her particular circumstances and understand the other potential strategies that might be employed or the other requirements that the aged care provider must comply with to use environmental restraint. She is also unable, due to her dementia, to communicate any decisions relating to this matter.^[64]
116. [116]
     The presumption of capacity for NJ is rebutted for giving informed consent to the environmental restraint as defined in s 15E of the QOCP which is currently applied by the aged care provider. Section 12(1)(a) is satisfied.

Is there a need for a decision in relation to the matter or is the adult likely to do something in relation to the matter that involves or is likely to involve unreasonable risk to the adult’s health, welfare or property? – s 12(1)(b) of the GAA

117. [117]
     NJ has advanced dementia. Wandering is a feature of her dementia.
118. [118]
     In the Behaviour Support Plan developed by Mercy Community dated 26 November 2021 there is reference to incidents of NJ wandering into other residents’ rooms.^[65] And to her trying to exit the front doors of the facility and being redirected to the communal-lounge and offered a snack.^[66]
119. [119]
     The representative of the applicant informed the Tribunal that NJ continues to wander. While she does not regularly wander to the automatic doors or attempt to leave through the gate at the perimeter of the secure unit, wandering remains a feature of her dementia.
120. [120]
     Dr King in his report dated 25 August 2021 refers to NJ having a “wandering tendency” and that the secure ward is “essential for her safety”.^[67]
121. [121]
     We find that NJ currently wanders to areas that she is not invited to access and should not be accessing without invitation such as the rooms of other residents. NJ has, in the past, wandered without supervision towards the automatic doors which would enable her to access the outdoor areas of the secure unit.
122. [122]
     NJ rarely speaks and is largely incapable of verbally communicating her intentions due to her advanced dementia.
123. [123]
     The representative for NJ submitted that NJ is subject to the restrictive practice of environmental restraint because she is unable to leave the secure unit unaccompanied as she does not have access to a security key card.
124. [124]
     In a later submission the representative for NJ submitted that NJ is subject to the restrictive practice, environmental restraint for the following reasons:

[NJ] is a resident of [named aged care facility]. [NJ’s] accommodation agreement at the time of initial admission would be with the facility, not a specific room or wing. This is demonstrated by the fact that during this residency [NJ] has been accommodated in at least two areas, initially the open access area [redacted] and currently in [the secure unit].

Management and oversight of her care is the responsibility of the facility manager, who is located in a different building on the campus and responsible for all residents on the site.

[NJ’s] environment includes the building, paths and grounds contained on the site of [named aged care facility], and currently her freedom of movement is restrained to one area contained within that, being the area within the locked secure perimeter fencing of [the secure unit].

[The secure unit] is purpose built to contain residents and restrict their access to the greater care facility and grounds, and beyond. Access to [the secure unit] requires a security key card which is provided to persons approved by the facility for the purpose of moving in and out of the gated area.

Whether or not she wishes to, [NJ] is unable to leave [the secure unit] unaccompanied, as she does not have access to a security key card.

Comparatively, if [NJ] resided in a disability supported accommodation house, and her freedom to enter some parts of the home or exit the locked front door was restricted, for the safety of her or others, it would be considered a restrictive practice, regardless of whether she showed an interest in attempting to access those areas or not.

If it had been safe to do so, [NJ] would have remained accommodated in an unlocked area, thus allowing her free access to all parts of her environment (including items and activities). The purpose for restricting her access to the entirety of [the aged care facility], as well as to the wider community, was to influence her behaviour and restrict her movement.

It is documented within her progress notes that she is subject to the restrictive practice of restraint. We refer to the note made by Dr King, “Restraint order unchanged – locked secure doors in and out of the facility to prevent wandering”.^[68] This indicates the accommodation decision was purposefully made to restrain [NJ].

Within [the secure unit] the occupants can move about, including access to common areas such as the dining and television areas, bedrooms and corridors, visit the nurse’s station window; and an outdoor secure courtyard area between the hours of 8 am – 4 pm. As with all institutions, there are staff only areas within the wing to which residents are not permitted access.

It is not relevant whether or not [NJ] seeks to exit the [secure unit’s] grounds. The design and intention of the [secure unit] and its infrastructure (such as the gate) is to restrict access to the broader facility and beyond. The fact that [NJ] may now rarely attempt to leave the area merely indicates that the restraining practice has been successful in influencing her behaviour.^[69] If [NJ] were to make an attempt to leave at any point in the future, she would be prevented from doing so.^[70]

125. [125]
     We consider that NJ’s environment includes areas residents would ordinarily be entitled to freely access within the aged care facility as a whole. We accept the submission of NJ’s representative that NJ’s residential agreement entitles her to reside at the aged care facility. The decision for her to move to the secure unit did not change that. NJ is able to access the main building for activities. The requirement that she be supervised and live in the secure unit is linked to concerns around her safety due to the features of dementia, her inability to weigh risk and her wandering. We consider that the locked gate separating the residents of the secure unit from the main building of the aged care facility restricts NJ’s free access to all parts of NJ’s environment. Further, outside of the hours of 8:00am to 4:00pm, NJ does not have free access to other parts of her environment within the perimeter of the secure unit.
126. [126]
     The question of whether the locked doors are for the primary purpose of influencing NJ’s behaviour is a more difficult one. There is evidence that NJ’s wandering has reduced significantly to the point where consideration may be given to whether NJ needs to remain in the secure unit. NJ is now very elderly and frail. The evidence is that she can be redirected if she is observed to be wandering to an area that is not considered safe or appropriate such as into another resident’s room or to the outdoor areas of the secure unit if there is no one available to supervise her.
127. [127]
     It may well be that NJ is no longer capable, due to her advanced dementia, of forming an intention to exit the secure unit. However, there is some evidence that she still wanders. The fact that she can be readily redirected does not, in our view, change the primary purpose of the locked gate and door in NJ’s circumstances. The locked gate and door are, in our view, for the primary purpose of influencing NJ’s behaviour. Should she wander to the gate she cannot go any further. Her ability to wander past the gate is prevented by the locked gate. Her ability to wander into the outdoor areas alone outside when the automatic door is locked is prevented by the locked door.
128. [128]
     As NJ’s representative submits, NJ was moved to the secure unit due to her wandering. The evidence is that she continues to do so. There has been at least one incident during the course of the behaviour support plan when NJ attempted to exit the secure unit. If she attempts to do so she will likely be redirected. It is not known what would happen if she were not accommodated in the secure unit. The locked door curbs her wandering in our view and so is for the primary purpose of influencing her wandering behaviour.
129. [129]
     Preventing egress from the secure unit by locked doors is environmental restraint as that term is defined in s 15E of the QOCP.
130. [130]
     It is a requirement for the use of environmental restraint that informed consent be given. As NJ cannot give informed consent herself, and that the evidence is that environmental restraint as defined in the QOCP is necessary for the safety of NJ, we are satisfied, pursuant to s 12(1)(b) of GAA, that there is a need for a decision in relation to the matter.

Without an appointment, will NJ’s needs be adequately met or NJ’s interests adequately protected? – s 12(1)(c) of the GAA

131. [131]
     As stated above, environmental restraint is necessary for the safety of NJ. Section 4 of the QOCP defines a “restrictive practices substitute decision-maker, for a restrictive practice in relation to a care recipient”, as being:

a person or body that, under the law of the State or Territory in which the care recipient is provided with aged care, can give informed consent to:

1. (a)
   the use of the restrictive practice in relation to the care recipient; and
2. (b)
   if the restrictive practice is chemical restraint – the prescribing of medication for the purpose of using the chemical restraint;

if the care recipient lacks the capacity to give that consent.

132. [132]
     The QOCP provides that if NJ cannot provide informed consent for the use of environmental restraint, a restrictive practices substitute decision-maker must provide informed consent in order for environmental restraint to be used.
133. [133]
     We have found that the giving of consent to environmental restraint as defined in the QOCP is a personal matter under Schedule 2, Part 2 2, Pt of the GAA and that the Tribunal therefore has the power to appoint a guardian to give informed consent to the environmental restraint.
134. [134]
     NJ has no other person in her life that can legally provide informed consent to environmental restraint for her. NJ does not have an enduring power of attorney. In those circumstances, we are satisfied that without a formal appointment of a guardian NJ’s interests will not be adequately protected. Section 12(1)(c) of the GAA is satisfied.

Should the discretion be exercised to appoint? – the Tribunal “may” appoint – s 12(1) of the GAA

135. [135]
     The Commonwealth legislative provisions specifically deal with defined restrictive practices including preventing a person from freely accessing all areas within their environment. The Commonwealth legislative provisions provide for the power to place restraints on a person’s liberty if specific requirements are satisfied.
136. [136]
     Section 15FA of the QOCP makes it clear that one of the requirements that apply to the use of any restrictive practice in relation to NJ as a care recipient under the Aged Care Act 1997 (Cth) is that: “informed consent has been given to the use of the restrictive practice by the care recipient or if the care recipient lacks the capacity to give that consent – the restrictive practices substitute decision-maker for the restrictive practice”.
137. [137]
     Each of the criteria in s 12 are met. Given this, and the seriousness of the decision to be made for NJ, and the adequacy of the physical environment in the secure unit, and our consideration of the human rights implications (discussed above) we conclude that the Tribunal should exercise the discretion in s 12 to appoint a guardian for NJ to make decisions about the relevant matter.

Who should be appointed as guardian for NJ?

138. [138]
     Section 14(2) of the GAA provides that the Tribunal may appoint the Public Guardian as guardian for a matter only if there is no other appropriate person available for appointment.
139. [139]
     That is the case here. No other person seeks appointment as guardian for NJ, and the evidence is such that there is no person in NJ’s life that continues to be interested and involved in decision-making relating to NJ’s health and welfare.
140. [140]
     At the hearing a question was raised as to whether or not it was within the Public Guardian’s functions to be appointed as guardian for the relevant matter. Section 12 of the Public Guardian Act 2014 (Qld) sets out the functions that the Public Guardian has with respect to an adult with impaired capacity. It provides:

3. (1)
   The public guardian has the following functions (adult guardian functions) in relation to an adult with impaired capacity for a matter—

1. (a)
   protecting the adult from neglect, exploitation or abuse;
2. (b)
   providing a program called the community visitor program to protect the rights and interests of the adult if the adult resides at a visitable site;
3. (c)
   investigating complaints and allegations about actions by—

1. (i)
   an attorney; or
2. (ii)
   a guardian or administrator; or
3. (iii)
   another person acting or purporting to act under a power of attorney, advance health directive or order of the tribunal made under this Act or the Guardianship Act;

4. (d)
   mediating and conciliating between attorneys, guardians or administrators or between attorneys, guardians or administrators and others, for example, health providers, if the public guardian considers this appropriate to resolve an issue;
5. (e)
   acting as attorney—

1. (i)
   for a personal matter under an enduring power of attorney; or
2. (ii)
   under an advance health directive; or
3. (iii)
   for a health matter if authorised as a statutory health attorney; or
4. (iv)
   if appointed by the court or the tribunal;

6. (f)
   acting as guardian if appointed by the tribunal;
7. (g)
   approving, under the Guardianship Act, chapter 5B, part 4 the use of a restrictive practice in relation to an adult to whom that chapter applies;
8. (h)
   consenting to a forensic examination under section 38;
9. (i)
   seeking help (including help from a government agency, or other institution, welfare organisation or provider of a service or facility) for, or making representations for, an adult with impaired capacity;
10. (j)
    educating and advising persons about, and conducting research into, the operation of this Act, the Guardianship Act and the Powers of Attorney Act.

3. (2)
   In this section—

attorney means—

1. (a)
   an attorney under a power of attorney; or
2. (b)
   an attorney under an advance health directive or similar document under the law of another jurisdiction; or
3. (c)
   a statutory health attorney.

power of attorney means—

1. (a)
   a general power of attorney made under the Powers of Attorney Act; or
2. (b)
   an enduring power of attorney; or
3. (c)
   a power of attorney made otherwise than under the Powers of Attorney Act, whether before or after its commencement; or
4. (d)
   a similar document under the law of another jurisdiction.

141. [141]
     The proposition advanced before us was to the effect that the inclusion, at s 12(1)(g) of “approving, under the Guardianship Act, chapter 5B, part 4 the use of a restrictive practice in relation to an adult to whom that chapter applies” might operate to the exclusion of the Public Guardian being able to consent to the use of non-chapter 5B restrictive practice matters. We are of the view that the function at s 12(1)(f), that is, to act as guardian if appointed by the Tribunal, is sufficiently broad to encompass appointment to act as guardian for non-chapter 5B restrictive practice matters.
142. [142]
     We have concluded that the Tribunal has jurisdiction to appoint a guardian to make decisions about the relevant matter for NJ under s 12 and that this is consistent with the Tribunal’s function at s 81(1)(c) of the GAA. The GAA is to be read in conjunction with the Public Guardian Act 2014 (Qld).^[71] The two Acts are consistent in our view.
143. [143]
     There is nothing in the Public Guardian Act 2014 (Qld) which creates any impediment to the Public Guardian acting as guardian for NJ to give or withhold informed consent to environmental restraint. The Public Guardian is placed to act as guardian. A guardian appointed by the Tribunal must make decisions in accordance with the General Principles in the GAA and understand their other duties and responsibilities under the GAA. In order to be appointed a person must satisfy the Tribunal that they are appropriate for appointment.^[72]

On what terms, if any, should the appointment be made?

144. [144]
     Section 12(2) of the GAA provides that the appointment may be on terms considered appropriate by the Tribunal. The Public Guardian submits that, if an appointment is made, the terms of the appointment should be that the Public Guardian is appointed as guardian for NJ for restrictive practices in an aged care facility. The Public Guardian also submits that given that this application is the first of many such applications to be considered by the Tribunal and written reasons for the decision may likely issue, it may be beneficial for the sector for the Tribunal to consider issuing the following directions to accompany any guardianship appointment made:

The guardian may give consent to the restrictive practice only if satisfied the provider has complied with all aspects of the QOCP 2014 relating to Behaviour support and restrictive practices.

145. [145]
     A similar, although not identical, issue arose in the ACAT decision of In the matter of BEN (guardianship).^[73] That decision pre-dated the amendments to the QOCP which has necessitated the application before the Tribunal. Ben was a man with severe disabilities. He received support through the National Disability Insurance Scheme. From time to time, the group home in which Ben lived, used restrictive practices to keep him safe from harm, including locked doors and gates (environmental restraint) and locked seatbelts (mechanical restraint). Presidential Member McCarthy was satisfied that Ben’s guardians should be given power to consent to the restrictive practices given they are to protect Ben from risk of harm. They had been acting under a general power, “to make...personal decisions needed to ensure the protected person’s health and welfare needs are met and to protect him from unreasonable risks to his wealth and welfare.” Such a power was one commonly granted by the Tribunal. With the advent of restrictive practices legislation, and community comment on restrictive practices, the group home provider enquired of the Tribunal as to whether that power was sufficient to consent to the restrictive practices in use in respect of Ben. The Tribunal wrote to them, expressing doubt that that power extended to empowering a guardian to give consent to a restrictive practices, and opined that consistent with the settled approach in NSW,^[74] decisions about a restrictive practice should be the subject of a specific power given to the guardian.^[75]
146. [146]
     Presidential Member McCarthy granted power to the guardians to consent to the restrictive practice, conditioned that the restraint be solely for the purpose of protecting Ben from risk of harm.^[76]
147. [147]
     We conclude that the power granted should be similarly conditioned, but by use of the terminology employed by the medical expert in this matter, that is, for the purpose of the safety of NJ.
148. [148]
     We also accept the Public Guardian’s submission that it be limited to consenting (or withholding) consent to restrictive practices at the aged care facility that NJ currently resides at. This is because, in exercising the discretion to confer the power, we have taken into account matters specific to the physical environment of the acute facility, that is, the conditions in which NJ is housed within in that unit.
149. [149]
     We also accept the Public Guardian’s submission that the power should be further conditioned, so that consent can only be given if satisfied that there has been compliance with the QOCP, however we consider that the wording proposed, which requires satisfaction of compliance with all aspects of the QOCP relating to behaviour support and restrictive practices, should be narrowed to satisfaction of compliance with s 15FA of the QOCP in relation to NJ.
150. [150]
     We note that the imposition of this condition on the power differs from the approach taken by Presidential Member McCarthy. There, the Tribunal concluded that such a condition should not be imposed for the following reasons:

     1. (a)
        The providers of services to Ben are already comprehensively regulated about the kinds of restrictive practices they can provide and the manner in which they can provide them. Presidential Member McCarthy therefore saw no reason to condition the exercise of the power by reference to these regulatory requirements because they will apply regardless of whether the giving of consent is conditioned in that way; and
     2. (b)
        The group home provider was not the only persons who needed to use the restrictive practices. Sometimes his parents needed to use them too.
151. [151]
     The second of these reasons does not apply here.
152. [152]
     As to the first reason, there is no doubt that the aged care facility is subject to comprehensive regulation, which will apply regardless of whether the power is conditioned in the way suggested. Further, we are in complete agreement with Presidential Member McCarthy’s observation that the need for consent to a restrictive practice is separate from, and in addition to, a provider’s compliance with a scheme governing the conduct of the practice.^[77]
153. [153]
     However, the QOCP speaks of the giving of “informed consent” but without defining the content of that term. We consider that the imposition of the condition that the Public Guardian be satisfied of compliance with section 15FA of the QOCP with respect to NJ will provide considerable assistance to the Public Guardian in the exercise of the power, and, further, assists the Tribunal to be satisfied that the imposition on the human rights of NJ are protected to the greatest possible extent.
154. [154]
     We are satisfied that the imposition of the condition is desirable and necessary, notwithstanding the provisions in the GAA as to review and withdrawal.^[78]
155. [155]
     In conclusion on this issue:

     1. (a)
        As we have determined that the personal matter in this case is the giving or withholding of informed consent to environmental restraint, we consider that the terms of the appointment must be that the Public Guardian is appointed as guardian for NJ for the following personal matter: to give informed consent or withhold such consent pursuant to s 15E(1)(f) for the use of environmental restraint as that term is defined in s 15E of the QOCP 2014 (Cth), namely the prevention of NJ egressing, alone, from the secure unit of that facility, such prevention being facilitated by the use of locking devices on exits.
     2. (b)
        That power is conditional upon:

        1. Consent being given only for the sole purpose of the safety of NJ;
        2. The power to consent being limited to the aged care facility that NJ currently resides at;
        3. Consent being given by the Public Guardian only if the Public Guardian is satisfied that there is compliance with section 15FA of the QOCP with respect to NJ.
156. [156]
     It need hardly be said that it will be very much in the aged care facility’s interests that, in seeking the Public Guardian’s consent, it provides evidence of such compliance to the Public Guardian when making a request that consent be given to the use of the restrictive practice.
157. [157]
     The appointment is reviewable in five years.^[79] The reason for this period of appointment is that it is highly unlikely there will be a change in NJ’s circumstances.
158. [158]
     We have considered whether any other directions or terms should be included in the order as submitted by the Public Guardian.
159. [159]
     Section 138 of the GAA provides the Tribunal with a power at its discretion to give advice or directions about a matter it considers appropriate, or to make recommendations it considers appropriate about action an active party should take.
160. [160]
     It is hardly necessary to advise the Public Guardian that they need to ensure they have received sufficient information from the aged care provider or the care recipient’s health professional before providing consent.
161. [161]
     We do not consider that any direction to the Public Guardian ought to be given.

Application of Human Rights Act

Is the decision compatible with human rights?

162. [162]
     We have already considered s 48 of the Human Rights Act 2019 (Qld) in interpreting the relevant legislative provisions of the GAA.
163. [163]
     It is unlawful for a public entity to act or make a decision in a way that is not compatible with human rights or, in making a decision, to fail to give proper consideration to a human right relevant to the decision.^[80] Giving proper consideration to a human right in making a decision includes, but is not limited to, identifying the human right that may be affected by the decision and considering whether the decision would be compatible with human rights. Environmental restraint limits NJ’s ability to access her environment beyond the secure unit while alone.
164. [164]
     For the purposes of appointing a guardian for a person, the Tribunal is a “public entity” as defined in s 9 of the Human Rights Act 2019 (Qld) such that the Tribunal is acting in an administrative capacity. In reaching that conclusion we were guided by the Victorian Supreme Court decision in Patrick’s case.^[81]
165. [165]
     There are some differences between VCAT and this Tribunal. In particular, in Meringnage v Interstate Enterprises Pty Ltd t/as Tecside Group & Ors,^[82] VCAT was found not to be a court while the Queensland Civil and Administrative Tribunal (QCAT) is a court of record.^[83] In Owens v Menzies,^[84] the Court of Appeal held that the Tribunal is a “court” for the purposes of Ch III of the Constitution. However, s 9(4)(b) of the Human Rights Act 2019 (Qld) clearly contemplates that a court may also act in an administrative capacity. We consider the other factors – the particular power being exercised by this Tribunal, its character and the nature of the final decision to be made by the Tribunal^[85] – lead to the conclusion that in exercising the power under s 12 of the GAA, the Tribunal is acting in an administrative capacity.
166. [166]
     As such, we have been careful to ensure compliance with s 58 of the Human Rights Act. We identify the following human rights that may be affected by the decision:

     1. (a)
        Recognition and equality before the law;^[86]
     2. (b)
        Protection from torture, cruel, inhuman or degrading treatment;^[87]
     3. (c)
        Right to liberty and security of person;^[88]
     4. (d)
        Humane treatment when deprived of liberty;^[89] and
     5. (e)
        Right to a fair hearing.^[90]
167. [167]
     We consider the decision we have reached is compatible with these human rights. The decision identifies the particular matter about which a decision must be made as the giving or withholding of informed consent to environmental restraint as defined in the QOCP. We recognise the seriousness of the restraint used by the aged care provider for NJ. The environmental restraint inter alia deprives NJ of her liberty. All persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.^[91]
168. [168]
     The decision ensures that NJ, who is unable to provide informed consent to the environmental restraint herself due to her impaired capacity, has a substitute decision-maker to provide, or withhold that consent and ensure that she is treated with humanity and with respect for her inherent dignity. The guardian appointed for NJ under the GAA must apply the General Principles in making any decision as guardian.^[92] Those General Principles include recognising NJ’s right to the same human rights and fundamental freedoms regardless of her particular capacity, including taking into account the principles of respect for her inherent dignity and worth.^[93] Further, her right to liberty and security on an equal basis with others must also be taken into account in any decision made by the guardian and she should not be deprived of her liberty except in accordance with the law.^[94] Further, QOCP compliance is an obligation on the Aged Care Provider, with consequences for non-compliance. This regime provides a protective mechanism.
169. [169]
     In appointing a guardian to give informed consent, the Tribunal has sought to ensure that NJ’s human rights will be recognised and taken into account in decisions made about giving consent to the environmental restraint of NJ to the greatest possible extent.

Are any limits to NJ’s human rights reasonable and demonstrably justified?

170. [170]
     A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.^[95]
171. [171]
     Clearly the Commonwealth legislation contemplates that a recipient of aged care may themselves give informed consent to a restrictive practice unless they lack the capacity to give that consent.
172. [172]
     In the absence of some legal basis to detain NJ in the manner she is, her detention would be unlawful.
173. [173]
     We are satisfied that this interpretation of sch 2 cl 2 is the most compatible with human rights.^[96] Section 15FA(1)(f) of the QOCP provides that someone must give informed consent to a restrictive practice. A person who lacks capacity to give that consent themselves ought have someone who can provide that informed consent for them. In the absence of such a person, the care recipient’s human rights are not, in our view, properly considered or protected.
174. [174]
     We are satisfied that any limits to the identified human rights of NJ are reasonable and justifiable. We have considered the factors in s 13(2) of the Human Rights Act 2019 (Qld). We are satisfied that limiting the appointment of another person to make the decision to give or withhold informed consent to environmental restraint under the QOCP is consistent with ensuring NJ’s dignity, equality and freedom is protected. The purpose of the decision and the limitation is to ensure that, in circumstances where NJ is unable to make her own decision about whether environmental restraint should be applied to her, NJ has another person to do so. By formally appointing the Public Guardian to make that decision, the Tribunal has ensured, to the extent it can, that such a decision will be made applying the General Principles in the GAA. As already outlined in these reasons, those General Principles require the guardian, when exercising their power, to recognise and take into account NJ’s human rights and fundamental freedoms including her rights to liberty and security. The appointment of a guardian who must make any decision applying the General Principles recognises the importance of preserving NJ’s human rights as identified.
175. [175]
     We have been specific in the terms of the appointment so as not to remove or infringe on any other decision-making by NJ. We consider that we have made the least restrictive order possible in the circumstances of NJ’s case.

Orders

1. 1.The application for the appointment of a guardian for restrictive practices under chapter 5B of the Guardianship and Administration Act 2000 (Qld) (GAA) for NJ is dismissed.
2. 2.The Public Guardian is appointed as a guardian pursuant to section 12 of the GAA for NJ for the following personal matter:

1. (a)
   To give informed consent or withhold such consent for the use of “environmental restraint” as that term is defined in section 15E of the Quality of Care Principles 2014 (Cth) (QOCP).

1. 3.That appointment is conditional upon:

1. (a)
   Consent being given only for the sole purpose of the safety of NJ;
2. (b)
   The power to consent being limited to the aged care facility that NJ currently resides at;
3. (c)
   Consent being given by the Public Guardian only if the Public Guardian is satisfied that there is compliance with section 15FA of the QOCP with respect to NJ.

1. 4.The appointment remains current until further order of the Tribunal.
2. 5.The appointment is reviewable and is to be reviewed in five (5) years.