Health & Community Law Alert: who can consent to restrictive practices? MS [2020] WSAT 146

By Alison Choy Flannigan and Rebecca Kazzi

In the event that an adult is incapable of consent and restrictive practices are required, who can consent to the restrictive practices? This issue was recently discussed in a case heard by the State Administrative Tribunal in Western Australia, MS [2020] WSAT 146 MS (‘MS Case’).

Consent as a requirement

Consent is a requirement in relation to:

1. consent to treatment;
2. to avoid a claim for assault and battery and/or trespass to the person;
3. in relation to services funded by the National Disability Insurance Scheme (NDIS), under the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth); and
4. under other relevant legislation, including mental health legislation and aged care legislation

Background of the MS Case

TS and DS applied, under section 40(1) of the Guardianship and Administration Act 1990 (WA) (GA Act), to be appointed joint guardians for their son MS.

MS is 19 years of age. He suffers from severe autism with a verbal impairment, and significant cognitive limitations. He exhibits a range of aggressive and destructive behaviours, some of which can pose risks to his own safety, or to the safety of others.

Consent

In the MS Case, the WA State Administrative Tribunal held that service providers should ensure that the person provides consent in relation to all matters that affect them, including consenting to any restrictive practice that may be used on them.

In certain circumstances, there may be:

• uncertainty about the person's capacity to provide informed consent; and/or
• an absence of engaged family members, carers, friends or advocates to assist the person to make decisions; and/or
• uncertainty about what decisions and actions are in the person's best interests.

In these instances, the Tribunal held that the service provider should seek the advice and guidance of the Office of the Public Advocate for adults, and the Department of Communities (‘the Department’) for children under 18 years of age, as to the correct action to take.

However, this advice and guidance is not legally binding.

The Tribunal stated that service providers should ensure there are ways for individuals to withdraw their consent for a restrictive practice.

Although the position is not entirely clear, the Code of Practice: A Guide for the Elimination of Restrictive Practices (published by the WA Department of Communities) (Code of Practice) appears to contemplate that consent may, but need not, be given by a guardian in the event that an NDIS recipient does not have capacity to give consent to the use of a restrictive practice. That tends to suggest that informal means of consent on behalf of an NDIS recipient may have been considered acceptable under the Code of Practice.

Use of restrictive practices under the NDIS

The legislation constituting the NDIS recognises that restrictive practices may be used by NDIS service providers. Under the NDIS legislation, a participating jurisdiction may have its own requirements for authorising or regulating the use of restrictive practices in that jurisdiction and NDIS service providers must comply with any such requirements.

The National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (RP Rules) require that NDIS providers use regulated restrictive practices only on certain conditions. It is a condition of the NDIS service provider's registration that any use of regulated restrictive practices be in accordance with a participating jurisdiction's authorisation process, and that the service provider must lodge evidence with the NDIS Quality and Safeguards Commissioner that the use is authorised as soon as reasonably practicable after the use of the restrictive practice.

Under the NDIS scheme, persons who provide specialist behaviour support services to NDIS recipients, which include preparing a behavioural support plan (BSP) for any NDIS recipient, must also be registered.

To obtain registration, the person must have demonstrated competency in prescribed standards. These standards are designed to facilitate compliance with authorisation and consent requirements in a participating jurisdiction.

Authorisation of the use of restrictive practices in Western Australia

From 1 December 2020, transitional arrangements came into force in Western Australia, under the NDIS scheme.

In May 2020, the Department issued the ‘Authorisation of Restrictive Practices in Funded Disability Services’ (Policy), which establishes the requirements for the authorisation of restrictive practices in relation to people who are receiving disability services funded through the NDIS or by the State Government.

Under clause 4.1 of the Policy, authorisation must be obtained by an NDIS service provider for each regulated restrictive practice that is proposed to be implemented for a person with disability. This requires:

1. a BSP;
2. consent; and
3. an authorisation decision by an Authorisation Panel.

According to the Policy, the consent requirements for the use of restrictive practices are as follows:

4.1.2 Consent

Consent is the permission given by the person with disability with capacity to consent, or a person with authority to consent on the person's behalf when the person with disability does not have capacity to consent.

Where a BSP includes a recommended regulated restrictive practice, the Implementing Provider [that is, the NDIS service provider] must seek consent (defined in Appendix 2). If the person with disability is deemed not to have capacity to consent to the regulated restrictive practice, then the Implementing Provider must seek consent from the person with authority to make decisions on behalf of the person regarding the regulated restrictive practice.

The Tribunal held that nothing in the legislation comprising the NDIS scheme requires that consent to the use of restrictive practices may be given only by a guardian, if the NDIS recipient does not have the capacity to give that consent.

The structure of the NDIS scheme at present is that authorisation for the use of restrictive practices is regulated by each participating jurisdiction. The NDIS legislation does not impose any criteria for the authorisation process adopted in participating jurisdictions.

In Western Australia, the authorisation process, which will apply to the use of restrictive practices for NDIS recipients during the transitional period which commenced on 1 December 2020, is set out in the Policy. The Policy requires that if the NDIS recipient is deemed not to have capacity to consent to the use of restrictive practices, the NDIS service provider must seek that consent from 'the person with authority to make decisions on behalf of the person regarding the regulated restrictive practice'.

However, the Policy itself does not expressly require that that consent be given by a guardian. The Tribunal noted that the requirements in the Policy are not fixed in legislation nor are they immutable.

Further, the Tribunal recognised, in many cases, that guardians have authority to authorise the use of restrictive practices or 'restraints'. There is also ample authority in other jurisdictions, based on legislative provisions similar to the GA Act (WA), to the effect that the authority of guardians extends to authorising the use of restrictive practices.

The Tribunal accepted that the power of a plenary guardian appointed under the GA Act extends to authorising the use of restrictive practices, at least to the extent that authorisation of such practices would be within the scope of parental authority. In the MS Case, the Tribunal was satisfied that authority for the use of restrictive practices listed in MS’ BSP would fall within the scope of parental authority, and thus is capable of being authorised by a guardian appointed under the GA Act.

Is there a need for a guardian to be specifically authorised to consent to restrictive practices?

The Tribunal confirmed that in some cases, the consent of the guardian is not required. For example, in the case of emergency treatment where it is not practical to obtain consent.

A ‘person responsible’ can provide the consent if the restrictive practice is a ‘treatment decision’. However, the Tribunal noted the difficulties with defining a ‘treatment decision’.

Further, if a patient is unable to make reasonable judgments in respect of any treatment proposed to be provided to them, has not made an advance health directive, and does not have an ‘enduring guardian’ or guardian, or the guardian is not authorised, available or willing, to make a treatment decision for the patient, then a person who is a 'person responsible' for the patient may make a treatment decision in respect of the patient, subject to the requirements of the GA Act.

A 'person responsible' includes the patient's adult spouse or de facto partner; the patient's nearest relative (that is, spouse or defacto, child, parent or sibling) who maintains a close personal relationship with the patient; the adult who is the primary (and unremunerated) provider of care and support to the patient; or any other adult who maintains a close personal relationship with the patient, in the sense that that person has frequent personal contact with the patient and takes a genuine interest in the patient's welfare.

A treatment decision made by the ‘person responsible’ has effect as if it had been made by the patient and the patient were of full legal capacity.

The Tribunal held that the use of some physical or chemical restraints may fall within the definition of 'treatment' in the GA Act. However, this question will be determined on a case by case basis, and may depend on the reason for its use, the purpose to which it would be put, and who prescribed its use.

In Re Application for Guardianship Order (BCB) (2002) 28 SR (WA) 338 (BCB), the Guardianship and Administration Board explained that the use of a physical restraint – to keep a broken bone in place so that the broken bone knits correctly – would constitute 'treatment', but that if a care worker applied a similar restraint merely for the purpose of restraining the movement of a person for the personal convenience of the care worker, that was not likely to fall within the scope of treatment. The Board indicated that if a chemical restraint (such as a pharmaceutical drug) were prescribed to control inappropriate behaviour relating to an underlying medical condition, that would arguably constitute treatment, but if the drug was used for behaviour management for the convenience of staff, its use could not be said to be for medical treatment.

A more difficult question is whether 'medical treatment' extends to treatment to prevent a patient from causing harm to themselves or to alleviate the consequences of their medical condition.

Furthermore, we note that the approach adopted by the Tribunal has been to treat any intentional restriction of a person's movement or behaviour (other than the treatment of a diagnosed mental illness) as a restrictive practice, if consent to that practice is to be given by a guardian appointed under the GA Act. That approach has been taken to ensure transparency and to squarely raise, for the guardian's consideration, whether the intervention is in the best interests of the represented person and not for the convenience of care or medical staff. The Tribunal endorsed the continuation of that approach.

In the Tribunal’s view, in the MS Case, the preferable course was to confer on MS' guardians a specific function of making decisions in respect of the use, on MS, of restrictive practices.

Guardianship and Administration Act 1990 (WA) (GA Act)

Section of the GA states 110ZD states:

‘Circumstances in which person responsible may make treatment decision

(1)         If a patient is unable to make reasonable judgments in respect of any treatment proposed to be provided to the patient, the person responsible for the patient under subsection (2) may make a treatment decision in respect of the treatment.’ 

110ZJ. Order of priority of persons who may make treatment decision in relation to patient

‘(1) Subject to sections 110ZI and 110ZIA, this section applies if a patient is unable to make reasonable judgments in respect of any treatment proposed to be provided to the patient.

(2) If the patient has made an advance health directive containing a treatment decision in respect of the treatment, whether or not the treatment is provided to the patient must be decided in accordance with the treatment decision.

(3) If —

(a) subsection (2) does not apply; and

(b) the patient has an enduring guardian who —

(i) is authorised to make a treatment decision in respect of the treatment; and

(ii) is reasonably available; and

(iii) is willing to make a treatment decision in respect of the treatment,

whether or not the treatment is provided to the patient must be decided by the enduring guardian.

(4) If —

(a) subsections (2) and (3) do not apply; and

(b) the patient has a guardian who —

(i) is authorised to make a treatment decision in respect of the treatment; and

(ii) is reasonably available; and

(iii) is willing to make a treatment decision in respect of the treatment,

whether or not the treatment is provided to the patient must be decided by the guardian.

(5) If —

(a) subsections (2) to (4) do not apply; and

(b) there is a person responsible for the patient under section 110ZD,  whether or not the treatment is provided to the patient must be decided by the person responsible.’

For the hierarchy of persons responsible, please refer to the commentary in the MS Case above.

WA Office of the Public Advocate Position Statements

The WA Office of the Public Advocate Positions Statement on Restrictive Practices (Restraint) states as follows:

Before deciding to use a restrictive practice or practices, the following consultation should occur:

1. where possible, seek the view of the person with the decision-making disability;
2. seek the views of family members and other significant people in the person’s life; and
3. obtain information from service providers including the treating doctor.

The WA Office of the Public Advocate on the Role of the Public Advocate as guardian of last resort with authority to make decisions about restrictive practices states:

The Tribunal can appoint the Public Advocate as guardian of last resort only when there is no one else suitable, willing and available to act as the person’s guardian. The decision-making authority of the Public Advocate may be limited to specific areas such as treatment and contact (limited order) or it may apply to all areas of the person’s life (plenary order).

When appointed guardian of last resort with the authority to make decisions about restrictive practices, the Public Advocate is responsible for making decisions about any proposal to use restrictive practices on the represented person.

The Position Statements of the Office of the Public Advocate are not legally binding.

Commentary

The MS Case does not go so far to say that the only person authorised to consent to restrictive practices is a Tribunal-appointed guardian in every case. Certainly, that is not the position under the WA Policy or NDIS legislation.

Paragraphs 87 to 90 of the MS Case state:

‘Having regard to the potential legal implications for an NDIS service provider if they use restrictive practices in respect of an NDIS recipient, either the consent of the NDIS recipient, or the consent of some other person whose authority to consent is recognised by the law, is essential to avoid the risk of incurring criminal or civil liability for that conduct.

There will be no need for the appointment of a guardian to give consent to the use of restrictive practices in relation to MS if some other means presently exists to give such consent. The question which therefore must first be answered is whether anyone but a guardian appointed by the Tribunal has authority to give consent to the use of restrictive practices, on behalf of an adult person who lacks the capacity to give that consent themselves.

Irrespective of the legal answer to that question, the practical reality is that as NDIS service providers appear to be insistent on the existence of formal authority to consent to the use of restrictive practices, as opposed to reliance on informal arrangements, the appointment of a guardian effectively constitutes a practical requirement in order to ensure that MS receives the support of services funded under the NDIS scheme.

For completeness, we note that in the discussion which follows, we have not addressed the possibility that in some cases, an NDIS recipient may have appointed an enduring guardian. No such appointment has been made in this case. However, if an NDIS recipient had appointed an enduring guardian under an enduring power of guardianship, the consent of that person may be an alternative means of obtaining consent for the use of restrictive practices in relation to the NDIS recipient.’

The legislation and case law are part of the legal requirements. Policies and guidelines are not legally required unless compliance is required by the legislation.

Typically, in some States and Territories in Australia NDIS-registered providers have obtained consent from the authorised representative of an adult with an intellectual disability and who cannot consent, to apply restrictive practices, however, the position does differ according to the guardianship legislation from State to State.

Generally, every state and territory of Australia allows for the appointment of a guardian and a hierarchy of ‘persons responsible’ who can consent to health and medical treatment if no guardian is appointed.

Where a Tribunal-appointed guardian or enduring guardian has been appointed, the person responsible is the guardian who has provided the consent.

A Tribunal-appointed guardian order usually ‘suspends’ any previously appointed enduring guardianship.

Please note that a guardian is different in some states and territories to ‘attorneys’ (appointed under enduring powers of attorney) or ‘financial managers’ who can only make financial decisions.

In our experience, it is unusual for each and every person with an intellectual disability to have a guardian formally appointed. In some respects, the formal appointment of a guardian takes away from their own choice and control.

Certainly, an application should be made to the Tribunal to formally appoint a guardian where there is a dispute between family members.

If there are disputes concerning restrictive practices, then it is advisable for a guardian to be appointed and for the guardian to seek and obtain express guardianship orders allowing them to authorise restraints.

It is noted that there are some ‘grey areas’ where restrictive practices are not ‘treatment’.

Section 110ZD of the Guardianship Act states: (1) If a patient is unable to make reasonable judgments in respect of any treatment proposed to be provided to the patient, the person responsible for the patient under subsection (2) may make a treatment decision in respect of the treatment.

Subject to the relevant guardianship legislation in each State, if there are moderate to high risk restrictive practices (which are not treatment) or disputes – then, to reduce the risk, an application should be made to the Tribunal, however, if the relevant guardian or if there is no guardian the relevant persons responsible under the relevant guardianship legislation  consent to the BSP and the BSP is in the best interests of the person to whom the BSP relates and made in accordance with medical advice and not for convenience, then arguably the risk is low in relying upon the consent of the guardian or if there is no guardian the relevant person responsible.

This article was written with the assistance of Lauren Krejci, Paralegal.

References

NDIS Quality and Safeguards Commission, 'Regulated restrictive practices', accessible online here.

Office of the Public Advocate, Position statement, 'Restrictive Practices (Restraint)', accessible online here.