Intervention in G93966 - HYY (Guardianship) VCAT 97 - Jan 2022

This case is about when and how an appointed guardian can authorise the use of forcible physical restraint in order to administer medication to people under their guardianship.

On 19 May 2022, the Commission in partnership with the Office of Public Advocate delivered the ‘On Guardianship – when can physical restraint be authorised?’ webinar as part of Victorian Law Week 2022.

Watch the recorded webinar below (57 minutes).

The case concerned an older woman, HYY, who was under a guardianship order.

HYY was voluntarily admitted to hospital for treatment of her psychological and physical health conditions. HYY has a long-standing mental health diagnoses for which she was being treated in hospital, and also requires daily anticoagulant medication to reduce the serious risk of stroke or thrombosis. However, at times during her hospital stay HYY refused to take her anticoagulant medication.

The hospital asked HYY’s guardian, the Office of the Public Advocate (OPA), whether the treating medical staff could physically restrain her to administer the medication. In response, OPA sought advice from VCAT about the scope of its powers to authorise restraint. There are no express provisions in the Act that govern the use of restrictive practices, unlike the Disability Act and Mental Health Act. HYY is not subject to a compulsory treatment order under the Mental Health Act.

VCAT invited the Victorian Equal Opportunity and Human Rights Commission (Commission), the Attorney-General and the Secretary of the Department of Health to make submissions in the case, given the potentially far-reaching consequences of a decision. The Commission intervened to make submissions to the Tribunal on the application of the Charter in this case.

VCAT has confirmed that if a person under guardianship orders does not consent to medical treatment and restraint is required to be used in order to administer the medication, appointed guardians must seek an order from VCAT under the Guardianship and Administration Act 2019 (the Act) to authorise the use of forcible physical restraints.

The Guardianship Act provides for appointed guardians to make certain decisions on behalf of “represented” people, that is on behalf of people with a disability who are subject to guardianship orders. A guardianship order confers powers on an appointed guardian:

• to make decisions about the “personal matters” of the represented person that are specified in the order appointing the guardian (s 38(1) (a)). A “personal matter” is broadly defined and includes “medical treatment decisions” (s 3);
• to “do anything that is necessary to give effect to any power or duty vested in the Guardian” (s 38(1)(b)).

The case concerned whether the Guardian’s powers to make decisions about personal matters, medical treatment and to do anything necessary to give effect to their powers also encompassed the power to authorise the use of force to administer medical treatment.

If not, whether VCAT could make such an order under section 45 of the Act. Section 45 of the Act allows VCAT to make an order to that “specific measures or actions” be taken to ensure that a represented person complies with a guardian’s decisions, and for a review of that order within 42 days.

OPA asked VCAT for advice on four questions, which VCAT answered as follows:

• Does the scope of a guardian’s power to make decisions about medical treatment extend to making decisions about restraint (in this case, physical restraint), if that restraint is require to provide medical treatment?

VCAT: The guardian’s power to make decisions about medical treatment decisions does not extend to making decisions authorising forcible physical restraint in order to overcome resistance to medical treatment.

• If the use of restraint for the purposes of providing medical treatment is not within the scope of a guardian’s medical treatment authority, is the use of restraint a personal matter for which the Tribunal could appoint a guardian?

VCAT: No.

• Is restraint a matter caught by s 38(1)(b) of the Act, as a “thing necessary to be done to give effect to the power of the guardian” to consent to medical treatment?

VCAT: No.

• Does the use of restraint in the provision of medical treatment require an application under s 45 of the Act for an order for the represented person to comply with the guardian’s decision?

VCAT: Yes, to the extent that the restraint is forcible physical restraint proposed to be authorised in order to overcome resistance to medical treatment. VCAT accepted s 45 of the Act may be used for the purpose of authorising the use of restraint. 

In light of the questions posed to the tribunal and the facts of this case, VCAT focused its decision on the question of physical restraint rather than chemical or environmental restraints.

VCAT held that guardians cannot rely on their broad powers in the Act to make decisions about “medical treatment”, “personal matters” or “thing necessary to be done to give effect to the power of the guardian” to consent to the use of physical restraints.

VCAT interpreted the words of the Act in accordance with the ordinary principles of statutory construction and the Charter’s interpretative provision in s 32 of the Charter. Section 32 requires courts and tribunals to interpret Victorian laws to uphold human rights to the extent it is possible. Where a statutory construction has more than one meaning, a meaning to be preferred is that which is consistent with the purpose of the provision and least incompatible with human rights.

VCAT did not consider that the plain meaning of the definition of “medical treatment” includes forcible physical restraint [151].

VCAT did not agree that the power to make decisions on “personal matters” includes forcible medical treatment. In doing so it distinguished different interpretations of similar provisions in other jurisdictions, noting that the Act represents a departure from paternalist notions of decision making done in the best interests of people with disability, and instead looks to enhance the autonomy, dignity and equality of people with disability [162].

VCAT held that the most Charter-compatible reading of the definition of “personal matter” is that it does not include the power to authorise forcible physical restraint.

For the same reasons, VCAT decided that that the power to do anything necessary to give effect to a power or duty does not include authorising forcible physical restraint.

VCAT noted that the Act does not outline specific safeguards for the use of physical restraints (unlike the Mental Health Act and Disability Act). Instead, as a public authority under the Charter, VCAT must, through its orders under s 45 of the Act, incorporate protections and give specific and clear guidance about what can be done by whom, to ensure human rights are adequately protected and only limited in a proportionate manner for sufficiently important purposes. These VCAT orders must be reassessed within 42 days (s 45(2)).

VCAT noted that physical restraint does not include compassionate human contact such as gentle, non-forcible, physical support which can be provided to a person to administer treatment. These kinds of strategies are within the scope of the power of a guardian to make medical treatment decisions and there is no need to seek an order from VCAT. This might include handholding, the holding or steadying of a limb, or the person’s head, encouraging the person into a wheelchair for transport to a treatment room or walking alongside and gently steering the person, providing assistance to get onto a bed and other potential actions and strategies. These kind of strategies and forms of support may potentially occur in the context of resistance to treatment; the person may be frightened or confused or overwhelmed by a noisy hospital environment or anxious about needles, the sight of blood or loud and constricting medical machinery.

This decision means VCAT is ultimately responsible for authorising the terms on which physical restraint can be used to administer medical to people with a disability who are subject to a guardianship order. This, in turn, will ensure that physical restraints are only used where absolutely necessary, there is a system of oversight and any limits on rights are reasonable, justified and in accordance with law.

VCAT acknowledges this decision may require more of VCAT, the guardian and others involved in the decision-making related to a person under guardianship orders who is resisting medical treatment. However, VCAT considers this is what Parliament intended, is consistent with purposes of the Act and its relevant provisions in accordance with the Charter. VCAT notes that if there are resource implications, this is a matter for consideration elsewhere or potentially legislative amendment or preparation of protocols as exist under other protective legislation.

This case raised important human rights questions about whether and in what circumstances a guardian can authorise the use of restraint against a person in order to administer medication. It was important that this issue be approached with a human rights lens to ensure that people who are subject to guardianship orders have their human rights adequately protected, that restrictive practices are only authorised in limited circumstances and with the appropriate safeguards in place.

In summary, the Commission submitted that:

OPA and VCAT are public authorities with s 38(1) obligations under the Charter to properly consider human rights when making decisions and act compatibly with human rights.

The following Charter rights are engaged by this issue:

• Right to enjoy one’s human rights without discrimination (s 8(2))
• Right to equality before the law and equal protection against discrimination (s 8(3))
• Right to life (s 9)
• Right to protection from cruel, inhuman or degrading treatment (section 10(b))
• Right to protection from being subjected to medical or scientific experimentation or treatment without full, free and informed consent (s10(c))
• Right to freedom of movement (s 12)
• Right to privacy (s 13(a))
• Right to liberty and security of person (s 21)
• Right to human treatment when deprived of liberty (s 22(1)).

The Commission made detailed submissions about the nature and scope of each these Charter rights engaged by this issue.

Only VCAT can empower a guardian to authorise the use of restrictive practices via an application under s 45 of the Act for a VCAT order. However, when doing so VCAT must impose specific safeguards on the use of restrictive practices that would best protect the person subject to the guardianship orders.

VCAT should impose appropriate safeguards on the use of restrictive practices, drawing on the kinds of safeguards set out in the Disability Act, Mental Health Act, as well as best practice in other jurisdictions. The Commission set out some appropriate safeguards VCAT may wish to impose.

To assist VCAT to understand the meaning and scope of the relevant provisions in the Act, the Commission outlined the nature and scope of the interpretative provision in s 32 of the Charter, which requires that, as far as possible to do so consistently with its purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

The Commission submissions assisted VCAT to understand and perform its obligations as a public authority under s 38 of the Charter to properly consider and act compatibly with human rights. VCAT accepted all of the Commission’s submissions on the questions about which OPA requested advice.