VTA[2023] QCAT 68

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   These applications relate to a woman who, for privacy reasons, will be referred to only as VTA. Similarly, to protect her privacy, her mother and brothers will not be referred to by name.
2. [2]
   VTA is 49 years of age. Despite her relatively young age, VTA resides in an aged care facility operated by Blue Care. VTA has lived there since 2017.
3. [3]
   Mr Wayne Crase is a regional general manager for aged care and community services in Blue Care. Mr Crase is one of the applicants.
4. [4]
   On 12 January 2023, Mr Crase filed a Form 10 application (application for administration/guardianship appointment or review) in the tribunal. This has been treated by the tribunal’s registry as comprising:

   1. (a)
      an application for the appointment of a guardian; and
   2. (b)
      an application for the review of the appointment of an administrator.
5. [5]
   Mr Crase proposes that the Public Guardian be appointed guardian, and that the Public Trustee of Queensland be appointed administrator instead of the current administrator, VTA's mother. Mr Crase’s applications for the appointment of a guardian and for the review of the appointment of an administrator are yet to be heard and determined.
6. [6]
   On 12 January 2023, Mr Crase also filed an application for an interim order. He sought, in effect, the appointment of the Public Guardian as guardian and as guardian for a restrictive practice matter until his substantive applications are decided. 
7. [7]
   On 7 February 2023, VTA's mother filed a Form 10 application, seeking the appointment of a guardian and the appointment of a guardian for a restrictive practice matter. She proposes that she and one of VTA's brothers be appointed guardians. It is unclear from the application whether she proposes that they also be appointed guardians for a restrictive practice matter. Those applications are yet to be heard and determined.
8. [8]
   On 7 February 2023, VTA's mother also filed an application for an interim order. She sought the appointment of herself as guardian and as guardian for a restrictive practice matter until the substantive applications are decided.  
9. [9]
   On 10 February 2023, I decided to dismiss the applications for interim orders. VTA's mother has requested reasons, which I now provide. 

Legislative framework and background

10. [10]
    The following are relevant:

    1. (a)
       the Disability Services Act 2006 (Qld) (‘Disability Services Act’);
    2. (b)
       the Disability Services Regulation 2017 (Qld) (‘Disability Services Regulation’);
    3. (c)
       the Guardianship and Administration Act 2000 (Qld) (‘Guardianship and Administration Act’);
    4. (d)
       the Human Rights Act 2019 (Qld) (‘Human Rights Act’); and
    5. (e)
       the Statutory Instruments Act 1992 (Qld) (‘the Statutory Instruments Act’).

Restrictive practices

11. [11]
    Chapter 5B of the Guardianship and Administration Act is headed Restrictive practices.  Under section 80ZD, which is within Chapter 5B, the tribunal can appoint a guardian for a restrictive practice matter. Such an appointment could be made only after a hearing. Prior to the hearing, however, the tribunal can make an interim order under section 80ZR, which is also within Chapter 5B.
12. [12]
    It was observed in the case of NJ^[1] that Chapter 5B applies to only a particular cohort of adults. It was decided in NJ that it is possible for the tribunal to appoint a substitute decision-maker in relation to restrictive practices decisions for an adult who is not within the Chapter 5B cohort. In that situation, a guardian can be appointed under section 12 of the Guardianship and Administration Act.  Section 12 is in Chapter 3.
13. [13]
    For an adult outside the Chapter 5B cohort, any interim order would be made under section 129 of the Guardianship and Administration Act.
14. [14]
    Different criteria apply for orders under section 80ZR and section 129. It is therefore important to work out whether VTA is within the Chapter 5B cohort. 
15. [15]
    Chapter 5B ‘applies to an adult with an intellectual or cognitive disability who receives disability services from a relevant service provider’: section 80R of the Guardianship and Administration Act.
16. [16]
    There is evidence on the tribunal’s file indicating that VTA has an intellectual disability as an aspect of her Prader-Willi syndrome.
17. [17]
    ‘Disability services means disability services or NDIS supports or services under the Disability Services Act 2006’: section 80U of the Guardianship and Administration Act.
18. [18]
    ‘Disability services’ is defined in section 12 of the Disability Services Act:

12What are disability services

3. (1)
    

Disability services, for people with disability, means 1 or more of the following—

(a) accommodation support services;

(b) respite services;

(c) community support services;

(d) community access;

(e) advocacy or information services or services that provide alternative forms of communication;

(f) research, training or development services;

(g) another service prescribed by regulation.

(2) However, disability services do not include NDIS supports or services.

19. [19]
    ‘NDIS supports or services’ is defined in section 12A of the Disability Services Act:

12A What are NDIS supports or services

NDIS supports or services are supports or services provided to a person with disability under the national disability insurance scheme, to the extent that providing the supports or services is funded by the payment of an NDIS amount under the National Disability Insurance Scheme Act 2013 (Cwlth).

20. [20]
    It is noteworthy that although the term ‘disability services’ is used in both the Guardianship and Administration Act and the Disability Services Act, the meanings of the term are not identical in both Acts. The term has a narrower meaning in the Disability Services Act.
21. [21]
    There is no precise information before the tribunal at this stage about whether the services that Blue Care provide for VTA are ‘NDIS supports or services’ as defined in section 12A of the Disability Services Act. However, it is very likely that they are because Mr Crase has written that Blue Care ‘currently [receives] NDIS funding for daily tasks/shared living support for [VTA]’.^[2] The tribunal will endeavour to obtain more specific information on that topic before the hearing. However, for present purposes, I have proceeded on the assumption that VTA is receiving ‘NDIS supports or services’ rather than ‘disability services’ within the Disability Services Act definitions. ‘NDIS supports or services’ come within the definition of ‘disability services’ in section 80U of the Guardianship and Administration Act.
22. [22]
    For Chapter 5B to apply, the adult must be receiving the disability services from a relevant service provider: section 80R of the Guardianship and Administration Act.
23. [23]
    ‘Relevant service provider’ is defined in Schedule 4 to the Guardianship and Administration Act: ‘relevant service provider see the Disability Services Act 2006, section 140(3)’.
24. [24]
    Section 140 of the Disability Services Act says:

140 Application of part

(1) This part applies in relation to the following service providers that provide disability services or NDIS supports or services to an adult with an intellectual or cognitive disability—

(a) an NDIS service provider;

(b) a funded service provider;

(c) the department;

(d) another service provider prescribed by regulation for this section.

(2) However, this part does not apply in relation to a service provider—

(a) prescribed by regulation; or

(b) to the extent the service provider is providing disability services or NDIS supports or services prescribed by regulation.

(3) A service provider is a relevant service provider to the extent this part applies in relation to the provider under subsections (1) and (2).

(4) To remove any doubt, it is declared that this part applies in relation to a relevant service provider in relation to the provision of disability services or NDIS supports or services to all adults with an intellectual or cognitive disability receiving disability services or NDIS supports or services from the provider even if particular disability services or NDIS supports or services are not provided with funding received from the Commonwealth or the State.

…

25. [25]
    Despite the absence of detailed information before the tribunal on the topic, it can fairly be assumed that Blue Care is an NDIS service provider within the definition in section 15 of the Disability Services Act:

15  Meaning of NDIS service provider

3. (1)
   A registered NDIS provider and an unregistered NDIS provider are each an NDIS service provider.

3. (2)
   A registered NDIS provider is a registered NDIS provider under the National Disability Insurance Scheme Act 2013 (Cwlth).

3. (3)
   An unregistered NDIS provider is an entity that delivers NDIS supports or services to people with disability, other than a registered NDIS provider.

26. [26]
    Accordingly, Blue Care comes within section 140(1) of the Disability Services Act.
27. [27]
    It is next necessary to consider whether the exception in section 140(2) applies. The relevant regulation is regulation 12 of the Disability Services Regulation:

12  Service providers to which pt 6 of the Act does not apply—Act, s 140

For section 140(2) of the Act, a service provider that is an approved provider under the Aged Care Quality and Safety Commission Act 2018 (Cwlth) is prescribed if—

1. (a)
   the service provider is providing disability services to an adult; and

2. (b)
   the adult is approved as a recipient of residential care under the Aged Care Act 1997 (Cwlth), part 2.3.

28. [28]
    Despite the absence of detailed information before the tribunal on the topic, it can fairly be assumed that Blue Care is an approved provider under the Aged Care Quality and Safety Commission Act,^[3] and that VTA is approved as a recipient of residential care under the Aged Care Act. Accordingly, the exception will apply if Blue Care is providing disability services to VTA.
29. [29]
    ‘Disability services’ is not defined in the Disability Services Regulation.
30. [30]
    The Disability Services Regulation is a statutory instrument as defined in section 7 of the Statutory Instruments Act. The regulation is made under section 239 of the Disability Services Act.
31. [31]
    Section 37 of the Statutory Instruments Act says:

Words and expressions used in a statutory instrument have the same meanings as they have, from time to time, in the Act or statutory instrument (the authorising law), or relevant provisions of the authorising law, under which the statutory instrument is made or in force.

32. [32]
    Accordingly, the definition of ‘disability services’ in the Disability Services Act will apply in the Disability Services Regulation. It will be seen from the discussion above that ‘disability services’ has a narrower meaning in the Disability Services Act than it has in the Guardianship and Administration Act. In the Disability Services Act definition, ‘disability services’ does not include NDIS supports or services. As it has been assumed in these reasons that Blue Care is providing NDIS supports or services to VTA, it follows that Blue Care is not providing ‘disability services’ to VTA for the purposes of regulation 12(a). Blue Care is therefore not a service provider prescribed by regulation for the purposes of section 140(2)(a) of the Disability Services Act.
33. [33]
    I note that section 140(2)(b) will also capture a service provider providing NDIS supports or services prescribed by regulation. However, no NDIS supports or services are prescribed by regulation.
34. [34]
    Therefore, the exception in section 140(2) does not apply. It follows that Blue Care is a relevant service provider under section 140(3). Blue Care is also therefore a relevant service provider for VTA for the purposes of Chapter 5B of the Guardianship and Administration Act. Accordingly, VTA is within the Chapter 5B cohort: in terms of section 80R of the Guardianship and Administration Act, VTA is an adult with an intellectual disability who receives disability services (as defined in the Guardianship and Administration Act) from a relevant service provider.
35. [35]
    As acknowledged in the discussion above, this conclusion rests on certain assumptions. The tribunal will endeavour, by the time of the hearing, to clarify whether those assumptions are correct. 
36. [36]
    On the basis that VTA is within the Chapter 5B cohort, the relevant interim order provision is section 80ZR of the Guardianship and Administration Act:

80ZR Interim orders

3. (1)
   This section applies for a proceeding under this chapter if the tribunal is satisfied, on reasonable grounds—

1. (a)
   there is an immediate risk of harm to the adult concerned in the proceeding or others; and

2. (b)
   using a restrictive practice is the least restrictive way of ensuring the safety of the adult or others.

3. (2)
   The tribunal may make an interim order in the proceeding without hearing and deciding the proceeding or otherwise complying with the requirements of this Act, including section 118.

3. (3)
   The interim order has effect for the period stated in the order.

3. (4)
   The period stated in the order must not be more than 3 months.

…

Other personal matters

37. [37]
    The relevant interim order provision for the appointment of a guardian (as distinct from a guardian for a restrictive practice matter) is section 129:

129 Interim order

3. (1)
   This section applies if the tribunal is satisfied, on reasonable grounds—

1. (a)
   the adult concerned in an application has, or may have, impaired capacity for a matter; and

2. (b)
   there is an immediate risk of harm to the health, welfare or property of the adult, including because of the risk of abuse, exploitation or neglect of, or self-neglect by, the adult.

3. (2)
   The tribunal may make an interim order in the proceeding without hearing and deciding the proceeding or otherwise complying with the requirements of this Act, including section 118.

…

3. (4)
   An interim order has effect for the period specified in the order.

3. (5)
   The maximum period that may be specified in an interim order is 3 months.

…

Autonomy and human rights considerations

38. [38]
    In deciding whether to make an interim order, the tribunal must apply the general principles in the Guardianship and Administration Act, including the presumption of capacity. Even though it is not necessary that the tribunal be convinced that the presumption of capacity is rebutted before an interim order is made, it is still relevant to take into account that ‘the right of an adult with impaired capacity to make decisions should be restricted, and interfered with, to the least possible extent’.^[4]
39. [39]
    The appointment of a substitute decision-maker is likely to impact an adult’s human rights. In VTA’s case, the most relevant rights are those recognised in:

    1. (a)
       section 17 of the Human Rights Act, which protects against cruel or degrading treatment, and against medical treatment without full, free and informed consent; and
    2. (b)
       section 19 of the Human Rights Act, which protects freedom of movement including a person’s freedom to choose where they live.
40. [40]
    Rights can be subject under law to reasonable limits, where that is demonstrably justified: section 13(1) of the Human Rights Act. Nonetheless, the exercise of the discretion to appoint a substitute decision-maker should be made mindful of the importance of those rights.

Additional background

41. [41]
    It is common ground that VTA's mother acts as VTA’s NDIS nominee. Further, VTA's mother and one of VTA's brothers act as VTA’s statutory health attorneys, and as informal decision-makers for VTA in various other areas of personal decision-making. 
42. [42]
    Mr Crase argues that VTA has complex needs, and that a coordinated approach is vital, including in the development of a positive behaviour support plan for VTA. He says that VTA's family has impeded a coordinated approach. This has included VTA's mother’s actions, as NDIS nominee for VTA, in withdrawing consent to the engagement of a support coordinator, though another has since been engaged. Further, the family was less than fully cooperative with the behaviour support practitioner who was developing a positive behaviour support plan. As NDIS nominee, VTA's mother then withdrew consent to the engagement of that practitioner. Another practitioner was engaged. However, VTA's mother and one of VTA's brothers then failed to attend a number of stakeholder meetings. The second practitioner completed an interim behaviour support plan on 10 December 2022. The plan proposes that certain restrictive practices – including restricted access to food, and physical restraint – be used or at least available for use by Blue Care, in response to behaviours of VTA that cause harm to herself or others. Mr Crase says that ADU's mother advised that she would give her consent to the interim plan only on the proviso that a letter from herself was attached. Apparently this precluded the uploading of the interim plan on the NDIS portal.
43. [43]
    However, it appears to be common ground that the interim behaviour support plan was subsequently uploaded. Whether this resulted from some compromise is unclear.
44. [44]
    Mr Crase says that, based on comments by one of VTA's brothers, he is concerned that the family will again change the behaviour support practitioner. This would slow progress toward a comprehensive behaviour support plan.
45. [45]
    Mr Crase also portrays the family as obstructing the free exchange of health care information between Blue Care and health providers. Mr Crase says the family prefers to provide verbal summaries rather than consenting to the direct provision of information by providers to Blue Care.
46. [46]
    Mr Crase also expresses concerns about certain behaviours of one of VTA's brothers in the facility, and about his control from outside the facility of VTA’s access to certain types of content on television and other devices. I note, though, that this control is discussed – without criticism – in the interim behaviour support plan as a means of shielding VTA from triggering content.
47. [47]
    Mr Crase also contends that community access services would be better managed by an agency rather than by the family, commenting that ‘issues of employment of [staff] that are not from a registered NDIS agency, aged 15/16 years, without yellow card or appropriately trained remain a concern for [VTA’s] welfare’.^[5]
48. [48]
    Mr Crase notes that VTA would like to move out of aged care and into a supported living home, and that this transition is one of VTA’s NDIS goals. Such a move will require time and planning. Any dwelling is likely to require modifications to meet VTA’s special needs. Mr Crase suggests, in effect, that the involvement of VTA’s family in planning such a transition would be fraught.
49. [49]
    Overall, Mr Crase contends that VTA’s interests would be enhanced by the appointment of a guardian that is independent of her family.
50. [50]
    In relation to financial decision-making, Mr Crase explains in his material why he considers that the Public Trustee would be more appropriate as administrator than VTA's mother. However, it is not necessary to explore that topic here, because Mr Crase does not seek a change to the appointment of VTA’s administrator on an interim basis.
51. [51]
    VTA's mother, in her applications, says she favours the development of a positive behaviour support plan, though she has a different view from Blue Care on whether certain restrictive practices are required. She portrays the family’s actions overall as protective of VTA rather than obstructive of planning. She contends that she is best-placed to be guardian for VTA, and well able to coordinate a transition for VTA out of aged care.
52. [52]
    VTA's mother has provided email correspondence indicating that the behaviour support practitioner who developed the interim behaviour support plan remains engaged and that the development of a comprehensive plan is progressing.
53. [53]
    VTA's mother reports that the National Disability Insurance Agency decided in late January 2023 to take over management of the social support component of VTA’s NDIS plan. According to VTA's mother, this was prompted by a view that restrictive practices may need to be used during community access activities. Further, according to VTA's mother, this change will result in the mandatory use of only registered NDIS providers in community access activities, rather than the previous unregistered providers selected by the family. VTA's mother sees this as a retrograde step for VTA.
54. [54]
    VTA's mother has supplied an email dated 25 January 2023 from an officer of the National Disability Insurance Agency. It refers to the change of social support funding to ‘Agency Managed’,^[6] and says that registered providers will be used.
55. [55]
    VTA's mother submits that she should urgently be appointed ‘guardian of RP’^[7] for several reasons, including that:

    1. (a)
       Blue Care has not implemented the positive behaviour support plan;^[8]
    2. (b)
       clarification is needed on what physical restraint practices Blue Care intends to use; and
    3. (c)
       VTA's mother considers that certain medication administered to VTA, which is said to have been for pain management, is really a chemical restraint.

Why were the applications for the appointment of an interim guardian for a restrictive practice matter dismissed?

56. [56]
    Types of restrictive practices recognised in Queensland law include restricting access to objects, physical restraint, and chemical restraint. The categories recognised under Commonwealth law – for the purposes of the NDIS and aged care – are subtly different. For example, the term ‘environmental restraint’ is used in Commonwealth law to encompass restricting access to objects and other practices. Differing rules apply under Queensland and Commonwealth law about who can give consent to the use of restrictive practices.
57. [57]
    It is unclear from the material provided which of the proposed restrictive practices for VTA are currently being used. It seems likely that there is some restriction of her access to objects, but is unclear if physical restraint is yet being used. There are indications in emails that staff training on MAYBO physical restraint techniques is yet to occur. It has been suggested by VTA's mother that chemical restraint is used, but whether that is the case is unclear: it would turn on whether medication is used primarily for behavioural control, or for treatment of, relevantly, a diagnosed physical condition.^[9] 
58. [58]
    If the only restrictive practice (as defined in Queensland law) used is restricting access to objects, there would ordinarily be no need to appoint a guardian for a restrictive practice matter. This is because an ‘informal decision-maker’ can give consent.^[10] However, there might be a need if an informal decision-maker, such as a family member, was not available or if they unreasonably refused to give consent. Further, there would be a need for a guardian for a restrictive practice matter if other types of restrictive practices were to be used.
59. [59]
    Another question, which I did not have the time and information to determine in making an interim decision on the papers, was whether the interim behaviour support plan is a compliant positive behaviour support plan: whether it was developed in the manner required under section 173 of the Disability Services Act and whether it addresses all of the matters listed in section 150 of that Act. This is important because an interim guardian for a restrictive practice matter could give consent to the use of a restrictive practice only if the practice is ‘in compliance with a positive behaviour support plan for the adult’.^[11] That would require a compliant plan.
60. [60]
    Questions such as whether a guardian for a restrictive practice matter is needed, and whether a plan is compliant, are best addressed at a full oral hearing before the tribunal. In that setting, all parties have had the time to read all of the relevant material and to make informed submissions.
61. [61]
    Fortunately, it is seldom necessary for the tribunal to appoint a guardian for a restrictive practice matter on an interim basis because an alternative mechanism exists for deciding whether short-term approval should be given for the use of a restrictive practice. This mechanism is under section 178 of the Disability Services Act. It allows the chief executive of the Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships to give approval. The giving of approval is not contingent on there being a compliant positive behaviour support plan in existence, though typically a condition of any approval will be that such a plan is developed within a certain timeframe.
62. [62]
    An application for a short-term approval can be made by a ‘relevant service provider’.^[12] I have earlier in these reasons discussed the meaning of ‘relevant service provider’ in the Disability Services Act.
63. [63]
    Mr Crase says that a short-term approval was unsuccessfully sought by Blue Care in VTA’s case on 20 September 2022. Mr Crase has provided a copy of an email from an officer of the Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships on 20 September 2022. It says ‘… if a client is residing in aged care home they will be exempt from Restrictive Practices under the [Disability Services Act] as per the Disability Services Regulation …’.^[13] The email then cites regulation 12 of the Disability Services Regulation.
64. [64]
    It seems, then, that there may not have been any formal application for, or formal refusal of, a short-term approval, but, rather, an indication by the Department that, in effect, Blue Care is not a relevant service provider as defined and therefore a short-term approval cannot be given.
65. [65]
    For the reasons explained earlier, however, I do not share the view that regulation 12 excises from the definition of ‘relevant service provider’ a provider (such as Blue Care apparently is) providing NDIS supports or services to a person residing in an aged care facility. 
66. [66]
    In my view, therefore, it would be open to Blue Care to make a formal application for a short-term approval. That would be the appropriate course, rather than the tribunal appointing an interim guardian for a restrictive practice matter on uncertain material.
67. [67]
    Accordingly, I decided to dismiss the applications for the appointment of an interim guardian for a restrictive practice matter.

Why was the application for the interim appointment of a guardian dismissed?

68. [68]
    It will be recalled that such an appointment can be made, under section 129(1) of the Guardianship and Administration Act, only if there is an immediate risk of harm to health, welfare or property of the adult.
69. [69]
    I was not persuaded of any such immediate risk. VTA has accommodation in an aged care facility where she has lived for over five years. It appears to be common ground that such accommodation is not ideal for VTA, but that any move will take considerable planning and time.
70. [70]
    Current barriers to the sharing of health information identified by Mr Crase may be a suboptimal arrangement, but it is not apparent that it poses any substantial immediate risk.
71. [71]
    I accept that there have been delays in the preparation of a positive behaviour support plan. Whether the family has or has not been obstructive is something that can be explored at the hearing, to the extent that it is relevant to whether VTA's mother is suitable for appointment as VTA’s guardian. It appears, however, that the development of a comprehensive plan is now progressing, and that the interim plan has been uploaded for NDIS purposes.  The current behaviour support practitioner remains engaged.
72. [72]
    Mr Crase also raised concerns about the competence of staff engaged by the family for community access. However, I note and accept the information provided by VTA's mother to the effect that this has since changed because of a decision by the National Disability Insurance Agency, such that only registered providers can now be used. 
73. [73]
    In the absence of substantial immediate risk, I decided not to appoint an interim guardian.

Conclusion

74. [74]
    For the above reasons, I decided to dismiss the applications for interim orders.