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Precedent (Australian Lawyers Alliance) |
AUTHORISING THE USE OF PHYSICAL RESTRAINT
WHEN A PERSON WITH DISABILITY REFUSES MEDICAL TREATMENT
By Phil Grano
This article examines HYY (Guardianship) (HYY),[1] a landmark Victorian case on whether a substitute decision-maker – a medical treatment decision-maker or a guardian for a person with disability – can authorise the use of physical restraint to ensure they receive medication. The case differs from approaches in most other states because in 2019 Victoria replaced its Guardianship and Administration Act 1986 (Vic) (GA Act 1986) with the Guardianship and Administration Act 2019 (Vic) (GA Act), responding to Article 12 of the UN Convention on the Rights of Persons with Disability (CRPD).
Article 12 concerns the equal recognition of persons with disability before the law. Critically, it requires State Parties to:
• recognise that persons with disability ‘enjoy legal capacity on an equal basis with others’;
• adopt measures to provide the support that persons with disability may require to exercise their legal capacity; and
• set up safeguards to prevent abuse, specifically to ensure respect for the ‘rights, will and preferences’ of people with disability.[2]
To move towards the fulfilment of these requirements, the primary object of Victoria’s GA Act is to:
‘protect and promote the human rights and dignity of persons with disability ... recognising the need to support persons with a disability to make, participate in and implement decisions that affect their lives’.[3]
This Act did away with two paradigms:
1. requiring a substitute decision-maker to make decisions based on what they understand to be the person’s best interests; and
2. plenary guardianship, where the substitute decision-maker is given the powers equivalent to those a parent has over their child or, as in some jurisdictions, all the functions that a guardian has at law or in equity.
In HYY, Victoria’s Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter) guided an interpretation of the GA Act that put the human rights of a person with disability front and centre.
HYY was living in an aged care psychiatric service as a voluntary patient. Her mental health deteriorated, and she was taken to hospital for treatment of her psychosocial disability. HYY had previously received an artificial heart valve, for which she required the regular administration of an anticoagulant. She was refusing the medication, which could eventually have resulted in her death. The treating physician formed the view that HYY lacked decision-making capacity to refuse the anticoagulant.
Victoria’s Medical Treatment Planning and Decisions Act 2016 (MTPD Act) sets out how medical treatment decisions can be made where a person has lost capacity. If the person has a medical treatment decision-maker (either by appointment or by the statutory scheme), this person can make the decision using the process set out in s61, whereby the medical treatment decision-maker is to make a decision based on the person’s values and preferences (whether expressed or implied). HYY did not have such a support person. In such circumstances there is an alternative process where, if the medical treatment is ‘significant treatment’, the Public Advocate may make the decision as if they were the medical treatment decision-maker.[4]
In HYY’s case, when the Public Advocate was approached to make a decision, they were advised that it could be necessary to physically restrain HYY in order to administer the medication. The Public Advocate consented to the treatment and restraint, but asked the hospital to apply to the Victorian Civil and Administrative Tribunal (VCAT) for a guardian to make such decisions rather than using the process set out in the MTPD Act.
VCAT appointed the Public Advocate as HYY’s guardian to make decisions about HYY’s medical treatment, among other things. On the question of the use of physical restraint, VCAT did not make any order, but considered that physical restraint might be ‘ancillary’ to the consent to the medical treatment. The Public Advocate advised VCAT that they would seek its advice on this matter. The Public Advocate then sought an order under s45 of the GA Act to compel HYY to comply with the guardian’s decisions, should that be necessary. VCAT granted an order to allow ‘the guardian or a health practitioner authorised by the guardian’ to:
‘as a last resort, apply the use of physical restraint if there is no other, less restrictive way of administering anticoagulant medication to the represented person’.[5]
Section 45 orders expire after 42 days.
When the Public Advocate sought advice, VCAT invited Victoria’s Attorney-General, the Secretary of the Department of Health (Department), and the Victorian Equal Opportunity and Human Rights Commission to make submissions.
Soon after the appointment of a guardian, HYY began taking the anticoagulant,[6] and so the use of physical restraint was not needed. Nonetheless, the matter proceeded to a hearing.
The primary legal issue raised by the case of HYY is whether the use of physical restraint falls within the medical treatment authority of a properly authorised guardian. Under the GA Act, guardians are appointed to make decisions about personal matters;[7] a personal matter is described as:
‘any matter relating to the person's personal or lifestyle affairs, and includes any legal matter that relates to the person's personal or lifestyle affairs’.[8]
The GA Act lists a number of examples of ‘personal matters’:
(a) ‘where and with whom the person lives;
(b) other persons with whom the person associates;
(c) whether the person works and, if so, the kind and place of work and employer;
(d) whether the person undertakes education or training and if so, the kind of education or training and the place where it takes place;
(e) daily living issues such as diet and dress;
medical treatment decisions, excluding special medical procedures provided for in Part 6 [of the GA Act].’[9]
‘Medical treatment’ is defined in the MTPD Act as:
‘any of the following treatments of a person by a health practitioner for the purposes of diagnosing a physical or mental condition, preventing disease, restoring or replacing bodily function in the face of disease or injury or improving comfort and quality of life –
(a) treatment with physical or surgical therapy;
(b) treatment for mental illness;
(c) treatment with prescription pharmaceuticals;
(d) dental treatment;
(e) palliative care.’[10]
Medical research procedures are excluded from this definition.
Like many jurisdictions that have grappled with the question of whether the use of physical restraint falls within the medical treatment authority of the medical treatment decision-maker, VCAT concluded that, at one end of the spectrum,[11] acts of compassionate human contact such as gentle hand holding, benign encouragement and assistance do fall within the medical treatment authority. At the other end, the use of forcible physical restraint does not. This means that if force is required this will require an order from VCAT empowering health providers to take measures to comply with the decision of a guardian. This power is not open to medical treatment decision-makers who are not guardians.
VCAT first examined two Victorian statutory schemes – the Disability Act 2006 (Vic) and the Mental Health Act 2014 (Vic) – that specifically address the use of restrictive practices. These schemes set out requirements and safeguards that must be complied with for the use of restrictive practices to be lawful. Neither the GA Act nor the MTPD Act include such schemes, which could mean that the use of restrictive practices has no place under these Acts. VCAT noted the Attorney-General’s submission that the absence of such schemes is not conclusive[12] and that the issue was ‘finely balanced’.[13]
The second learning from the statutory schemes is the elements that are necessary in order to respect the human rights of the person subject to the use of restrictive practices. VCAT noted that all parties agreed such a scheme would support HYY’s entitlement to:
‘the benefit of a process that ensures, if physical restraint is to be applied to overcome her resistance to treatment, (1) that there is careful consideration of whether or not such restraint is necessary, (2) that her needs are met and (3) her safety and (4) dignity are supported, and that (5) there is sufficient oversight to ensure that every intervention is reasonable and is the least restrictive option.’[14]
However, the parties differed on what, if any, mechanism was available to achieve this.
Victoria’s Charter requires that ‘[so] far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights’.[15] VCAT has determined that the plain meaning of the definition of medical treatment in the MTPD Act does not include the use of physical force.[16] But even if it did, because of the Charter, VCAT would have to prefer the interpretation that did not allow the use of physical force, as that would be more consistent with human rights.
VCAT expanded on the spectrum regarding the degree of restriction that would be within the definition of medical treatment[17] and added reflections on the use of chemical restraint.[18]
CAN PHYSICAL RESTRAINT BE AUTHORISED?
VCAT’s discussion then turned to the scheme of the GA Act and to whether there is any scope for authorising the use of physical restraint. Three areas of concern were examined:
1. Can VCAT appoint a guardian specifically to make decisions about the use of physical restraint?[19]
2. Can a guardian who is appointed to make decisions about medical treatment make decisions on the use of physical restraint on the basis that a guardian has the ancillary power ‘to sign and do any thing that is necessary to give effect to any power or duty vested in the guardian [emphasis added]?’[20]
3. Can a guardian apply to VCAT for an order requiring the represented person to comply with the guardian’s decision to allow the use of physical restraint in order to undergo medical treatment?[21]
Appointing a guardian specifically to make decisions about the use of physical restraint
VCAT ultimately concluded that the use of physical restraint is not a personal matter,[22] but on the way to reaching this conclusion it provided insights on how the GA Act differs from the 1986 version of the Act.
VCAT considered the following decisions where restrictive practices are matters for which a guardian can be appointed:
• Re MS,[23] which examined the authorisation of the use of restrictive practices under the NDIS; and
• CBE (Application for guardianship),[24] which examined the authorisation to restrict a person to an aged care residential facility.
VCAT distinguished the above decisions as they were made under legislation, whereby the powers and functions of a guardian are drawn from an analogy with the powers and functions a parent would have over their child.[25] Victoria’s former Act also used this formulation. VCAT noted that this formulation is paternalistic.[26]
In comparison, the GA Act’s primary object is to protect and promote the human rights and dignity of persons with disability. This is achieved through the person’s participation in the making and implementation of decisions, as set out in Article 12 of the CRPD.
Under the GA Act 1986, and in some states and territories,[27] the guardian is to make decisions that are in the represented person’s ‘best interests’.[28] This includes having a high regard for the wishes of the represented person, but the concept is very different from that in the GA Act. Under the GA Act, a guardian can make decisions that are not in accordance with the person’s will and preferences only where this is necessary ‘to prevent serious harm to the person [emphasis added]’.[29]
A person’s resistance to medical treatment is an expression of their will and preference.[30] To overcome that resistance might be in their best interests; but in Victoria, as noted in the GA Act, such resistance can only be overridden by the guardian where it is necessary to prevent serious harm.
The Attorney-General noted that VCAT can make a guardianship order only where it will promote the person’s ‘personal and social wellbeing’, a concept not unlike the person’s ‘best interests’.[31] However, VCAT noted that how personal and social wellbeing is defined[32] sets it apart, as this definition retains a rights focus, not a best interests focus.[33]
In effect, VCAT viewed the use of physical restraint not as an end in itself, but as a way of achieving another purpose: to provide medical treatment. Accordingly, VCAT noted that physical restraint cannot be a stand-alone personal matter: it is at the service of a personal matter.[34]
The Public Advocate postulated two ways in which a guardian could authorise physical restraint.[35]
The first was through s38(1)(b) of the GA Act.[36] This confers on the guardian, as noted above, ‘the power to sign and do any thing that is necessary to give effect to any power or duty vested in the guardian’. VCAT concluded that ‘[t]o read into these words a meaning that would confer on a guardian power to consent to physical restraint is not the reading which least infringes Charter rights’.[37] Further, VCAT considered s38(1)(b) more likely to cover ‘actions of an administrative nature’ than ‘decisions that could profoundly impinge upon a person’s personal integrity by forcibly overcoming their resistance to a form of medical treatment’.[38]
VCAT found that s45 of the GA Act does allow VCAT to make an order authorising the use of restraint:
‘VCAT may make an order at any time while a guardianship order is in force that gives the guardian or another specified person power to take specified measures or actions to ensure that the represented person complies with the guardian's decisions in the exercise of the powers and duties conferred by the guardianship order.’[39]
Orders made under s45 must be reassessed as soon as practicable after making the order, in no more than 42 days. Were HYY to continue to resist, and to be physically restrained, the guardian would need to apply for a new order. VCAT acknowledged that this could create extra work for a guardian and for VCAT, but considered the need to reassess orders swiftly consistent with the human rights focus of the GA Act.[40]
VCAT considered that s45 provides a degree of justification for and oversight of the use of restraint[41] and, in quoting Article 12 of the CRPD, noted that this section will ensure that the use of restraint is:
‘free from conflict of interest and undue influence ... proportional and tailored to the person’s circumstances, appl[ied] for the shortest time possible, and ... subject to regular review by a competent, independent and impartial authority’.[42]
This is a significant decision in Victoria in terms of how restrictive practices can be used in health services.
It clarifies that the authority of decision-makers on medical treatment is limited to making decisions about medical treatment and does not extend to the authorisation of the use of forcible restraints. The articulation of the ‘spectrum as to the degree of restriction’[43] is helpful. Counsel for the Department noted that assistance could be obtained from health care providers, who could provide guidelines to assist guardians with identifying ‘what is appropriate support for the provision of medical treatment, and what is forcible physical restraint’.[44]
In HYY, Counsel for the Department submitted that health services have duties of care under various Acts and the common law to protect the health and safety of their patients, staff and persons at their service.[45] It is not clear how these duties operate alongside the powers of a guardian authorised to ensure compliance with the guardian’s decisions about medical treatment.[46]
For example, in 2016 the Community Visitors[47] came across a young man in hospital with autism and challenging behaviours who had been shackled by his ankles and wrists to a bed frame with Velcro for up to 24 hours a day, over a period of several months.[48] After recovering from his initial injuries, he remained in hospital awaiting suitable accommodation. While the shackling was initially for the purpose of medical treatment, later it was considered necessary because of his assaults on hospital staff. HYY does not resolve how the shackling of this man could be authorised once medical treatment ceased, other than by examining the statutory and common law duties of care, which are not transparent in their operation.
It will be interesting to see how the reasoning in HYY will operate in relation to other scenarios where persons are restrained, such as environmental restraint in residential aged care facilities. The Quality of Care Principles 2014 (Cth) (Quality of Care Principles) for aged care use a definition of environmental restraint that differs from that in the NDIS (Restrictive Practices and Behaviour Support) Rules 2018.[49] In the former, the restraint is deemed an environmental restraint only if the restriction on free movement is ‘for the primary purpose of influencing the care recipient’s behaviour’.[50] In the latter, environmental restraint is simply that ‘which restrict[s] a person’s free access to all parts of their environment, including items or activities’.[51] Accordingly, where there is an intention to control a person’s freedom of movement by placement in a locked facility, a guardian could be appointed. The personal matter for which the compliance could be sought is probably the issue of making decisions about the person’s accommodation. The compliance order would have to be made every 42 days by VCAT.
A comparison of the GA Act process to the statutory schemes in the Disability Act 2006 (Vic) and the Mental Health Act 2014 (Vic), noted in HYY and in the Quality of Care Principles, reveals that some safeguards are missing in the GA Act process:
• statutory definitions as to what constitutes a restraint;
• statutory requirements for when a restraint can be used;
• a requirement for individualisation of the restraint through the use of a behaviour support plan or other plan;
• statutory requirements for how the person must be cared for during the use of the restraint; and
• sanctions for the misuse of restrictive practices.
In 2011 the Australian Government gave legislative status to the Australian Commission on Safety and Quality in Health Care.[52] The purpose of this body is to set standards for health services, one being the Comprehensive Care Standard.[53] This Standard is partly devoted to minimising patient harm, and there are actions set out in relation to:
• delirium and cognitive impairment;[54]
• self-harm and suicide;[55]
• aggression and violence;[56]
• restraint;[57] and
• seclusion.[58]
South Australia seems to be the most advanced state in this area, having prepared a toolkit aimed at reducing the use of restrictive practices in health care. Tool 5 sets out legal information about restrictive practices in that state.[59]
While HYY furthers our legal understanding as to how restrictive practices can be authorised in Victoria, it does not provide the holistic approach that other statutory schemes provide. Many unanswered questions and significant gaps remain that could result in serious abuse of the human rights of a person with disability.
Philip Grano is Retiring Principal Legal Officer of the Office of the Public Advocate.
[1] [2022] VCAT 97 (HYY).
[2] Committee on the Rights of Persons with Disabilities, General Comment No. 1 (2014), 11th sess, UN Doc CRPD/C/GC/1 (11 April 2014). This Comment rejects any form of guardianship on the basis that ‘legal capacity is a universal attribute inherent in all persons by virtue of their humanity and must be upheld for persons with disabilities on an equal basis with others’ [at 3]. When Australia signed the CRPD it declared its ‘understanding that the Convention allows for fully supported or substituted decision-making arrangements, which provide for decisions to be made on behalf of a person, only where such arrangements are necessary, as a last resort and subject to safeguards’: United Nations Treaty Collection, 15. Convention on the Rights of Persons with Disabilities, 3 <https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&clang=_en#EndDec>.
[3] Guardianship and Administration Act 1986 (Vic) (GA Act), s31.
[4] Medical Treatment Planning and Decisions Act 2016 (Vic) (MTPD Act), s63.
[5] HYY, above note 1, [13].
[6] Ibid, [15].
[7] GA Act, s38(1). For the equivalents in other states and territories, see Guardianship and Management of Property Act 1991 (ACT), s7; Guardianship Act 1987 (NSW), s21; Guardianship of Adults Act 2016 (NT), s3 (definition of ‘personal matter’) and s16; Guardianship and Administration Act 2000 (Qld), sch 2, pt 2; Guardianship and Administration Act 1993 (SA), ss31, 32; Guardianship and Administration Act 1995 (Tas), s25; Guardianship and Administration Act 1990 (WA), s45.
[8] GA Act, s38(1).
[9] Ibid, s3.
[10] MTPD Act, s3.
[11] VCAT calls this the ‘spectrum as to the degree of restriction that might apply in a situation where a patient is resistive to treatment’. See HYY, above note 1, [145].
[12] HYY, above note 1, [138].
[13] Ibid, [140].
[14] Ibid; enumeration of elements added by author.
[15] Charter of Human Rights and Responsibilities Act 2006 (Vic), s32(1).
[16] HYY, above note 1, [149].
[17] Ibid, [148]–[149].
[18] Ibid, [152].
[19] Ibid, [153]–[180].
[20] GA Act, s38(1)(b).
[21] Ibid, s45(1).
[22] The definition of a ‘personal matter’ is set out in the section titled ‘The legal issues’ above.
[25] In SA and NSW the powers of a guardian are those that a guardian could have ‘at law or in equity’, which is very broadly expressed. See Guardianship and Administration Act 1993 (SA), s31; Guardianship Act 1987 (NSW), s21.
[26] HYY, above note 1, [162].
[27] Guardianship and Administration Act 1990 (WA), s51; Guardianship and Administration Act 1995 (Tas), s27; Guardianship of Adults Act 2016 (NT), s4.
[28] HYY, above note 1, [174].
[29] Ibid, [178]; see GA Act, s9(1)(e).
[30] HYY, above note 1, [149].
[31] GA Act, s30(2)(c). A guardian must also have regard to this when they cannot determine the person’s will and preferences: GA Act, s9(1)(c).
[32] GA Act, s4.
[33] HYY, above note 1, [174].
[34] Ibid, [176].
[35] Ibid, ss2(c), 2(d).
[36] Equivalents in some other states and territories: Guardianship and Administration Act 1990 (WA), s48; Guardianship and Administration Act 1995 (Tas), ss25(4), 26(3); Guardianship and Administration Act 2000 (Qld), ss45–46; Guardianship Act 1987(NSW), s21B.
[37] HYY, above note 1, [184].
[38] Ibid, [185].
[39] Ibid, [41(1)].
[40] Ibid, [41(2)].
[41] Ibid, [194].
[42] Ibid, [190].
[43] Ibid, [145].
[44] Ibid, [147].
[45] Ibid, [131].
[46] It is unclear from the decision at ibid, [131] whether the following statement was made by VCAT or was contained in the submission of the Department: ‘In all cases, the relevant statutory regimes, common law justifications and the Charter invariably require that the acts are proportionate and reasonable to the needs and risks posed’.
[47] Victoria has three Community Visitors programs, which are administered by the Public Advocate. Community Visitors visit mental health facilities, residents in disability services and Supported Residential Services.
[48] Office of the Public Advocate, Community Visitors Annual Report 2015–16 (Report, September 2016) 65.
[50] Quality of Care Principles 2014 (Cth), s15E(3).
[51] National Disability Insurance Scheme, above note 49, s6(e).
[52] National Health and Hospitals Network Act 2011 (Cth) and National Health Reform Act 2011 (Cth).
[53] See Australian Commission on Quality and Safety in Healthcare, Comprehensive Care Standard <https://www.safetyandquality.gov.au/standards/nsqhs-standards/comprehensive-care-standard>.
[54] Ibid, actions 5.29, 5.30.
[55] Ibid, actions 5.31, 5.32.
[56] Ibid, actions 5.33, 5.34.
[57] Ibid, action 5.35.
[58] Ibid, action 5.36.
[59] SA Health, Minimising Restrictive Practices In Health Care Toolkit, TOOL 5: Legal information about restrictive practices <https://www.sahealth.sa.gov.au/wps/wcm/connect/b129bb0048b3e9688cbcfd7577aa6b46/15048.6+Toolkit+5+Legal_Information%2C+MRP%28WebS5%29.pdf?MOD=AJPERES&CACHEID=ROOTWORKSPACE-b129bb0048b3e9688cbcfd7577aa6b46-nKP3stR>.
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URL: http://www.austlii.edu.au/au/journals/PrecedentAULA/2022/41.html