Do you know a vulnerable person whose wellbeing and safety might be at risk during the pandemic? If so, we can help now and in the future.

Recent decisions out of the NSW Civil and Administrative Tribunal highlight the plight of vulnerable Australians during this pandemic. While these are NSW cases, similar issues and principles arise in the ACT and other jurisdictions. If these raise any concerns for you, please see below how we can help.

UZX [2020] NSW CATGD 3

On 30 March 2020, the NSW Government issued the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (“Order”) under s 7 of the Public Health Act 2010. At the center of the Order is the requirement to self-isolate. Any person in breach of the Order can be fined and/or imprisoned.

In UZX, the applicant sought variation of an existing guardianship order for UZX who is a vulnerable person with a cognitive impairment and who lacks the ability to understand the concept of self-isolation. After the Order was issued, in-home care providers for UZX withdrew their services for her on the basis that she posed a risk of contracting COVID-19 by not self-isolating. The service providers argued that by failing to self-isolate, UZX risked exposing the service providers to the virus, and that the service providers could also then potentially expose others, particularly other vulnerable and frail members of the community, to the virus.

In this urgent matter, the Tribunal was required to determine whether a new order could be made under the Public Health Act 2010, or whether the existing guardianship order should be varied. In considering whether a public health order was appropriate, the Tribunal took into account the principle ‘that any restriction on the liberty of a person should be imposed only if it is the most effective way to prevent any risk to public health’. The requirement for self-isolation is imposed to eliminate the risk of exposure to COVID-19 and to reduce the rate of community transmission.

The Tribunal were satisfied that there was no power available to them under the Public Health Act, because UZX had not contracted or being exposed to COVID-19 and as such, her failure to self-isolate was not a risk to public health. Instead, the primary concern for consideration was the implications of withdrawal of in-home services for UZX and the protection of her individual health and wellbeing where those services were not available to her.

As such, the Tribunal varied the existing guardianship order for UZX to allow the Public Guardian to place UZX into emergency respite accommodation and keep her there for the duration of the pandemic. The variation also allowed the Public Guardian to authorise NSW Police and Ambulance to take UZX to a place approved by the Public Guardian and take her back to that place should she leave.

GZK [2020] NSWCATGD 5

The issues and final orders in this matter were very similar to those in UZX, although GZK’s disabilities were not as severe as those of UZX. GZK’s disabilities mean that he is able to follow direction for a short period but after a while will revert to his old behaviour – specifically of concern in this matter, freely travelling around his local community in his electric wheelchair. As in UZX, the Tribunal concluded that the provisions of the Public Health Act 2010 did not apply, as the primary concern of the matter was GZK’s welfare and safety rather than the risk his free-movement posed to public health.

GZK’s guardian sought that the Tribunal vary the order to allow the guardian to exercise a ‘restrictive practices function’ to restrain GZK’s access to his electric wheelchair to assist with the management of his behaviour – of course this function is strictly and significantly regulated for obvious reasons. However, there was no suggestion that GZK was engaging in ‘behaviours of concern’. Rather he was engaging in behaviour that was causing concern only because of the pandemic. That is, if not for COVID-19 the matter would not have even been before the Tribunal.

As such, the Tribunal instead proposed the development of a novel function of guardianship, which would be directly linked to and limited by the Order restricting people’s normal freedom to leave their homes. The new function was to be a combination of the traditional functions: the ‘coercive accommodation function’; and the ‘restrictive practices function’. The Tribunal acknowledged that the new function could be viewed as draconian but said that it would allow the flexibility required to assist someone in the guardian’s position to protect GZK’s individual safety and wellbeing while limiting the guardians power to exercise the function to the Order. That is, the function would be self-extinguishing once the Order was no longer invoked and it would mean that the variation to the order would not need to be reviewed.

How can MV help me?

• We can prepare for you and give you advice about enduring powers of attorney and general powers of attorney in the ACT and NSW.
• We can give you advice and guidance about your responsibilities and obligations as an attorney and/or guardian.
• If you know someone who might be a victim of elder abuse, we can give you advice and assistance about getting that person the help they need, which might include applications to NCAT or ACAT to have new orders made, or have old orders reviewed or revoked.
• If the victim has died and you believe the attorney illegally benefited from that person, we can help you undertake investigations for recovery from that person.
• We can also help you make an application to the relevant Tribunal to have a guardian and/or attorney removed if they are in breach of their obligations and responsibilities under the law.

Wills and Estates 
tanya.herbertson@mvlawyers.com.au
(02) 6279 4444