BGT - [2021] NSWCATGD 9

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: BGT [2021] NSWCATGD 9
Hearing dates: 1 April 2021
Date of orders: 1 April 2021
Decision date: 01 April 2021
Jurisdiction: Guardianship Division
Before: J Toohey, Senior Member (Legal)
Dr H Burnet, Senior Member (Professional)
M A Oxenham, General Member (Community)
Decision:
1. A guardianship order is made for BGT.
2. XZX of [Address removed for publication.] is appointed as the guardian.
3. This is a continuing guardianship order for a period of 12 months from 1 April 2021.
4. This is a limited guardianship order giving the guardian custody of BGT to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Restrictive Practices
To give or withhold consent as to whether the following restrictive practices should be used to influence BGT’s behaviour:
1. Environmental restraint
b) Other Function
To make decisions concerning use of a GPS sole tracker
CONDITIONS:
6. The conditions of this order are:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring BGT to an understanding of the issues and to obtain and consider his views before making significant decisions.
b) Restrictive Practices Condition
The guardian may only consent to the use of the types of restrictive practices permitted under this order to influence BGT’s behaviour:
(i) as a last resort to prevent BGT harming himself or others; and
(ii) in accordance with a behaviour support plan which has been developed by a behaviour support practitioner after having conducted a functional behavioural assessment upon BGT, and which is reviewed regularly (and no less than every 12 months) and/or reviewed as soon as practicable if there is a change in circumstances which requires the plan to be amended.

Catchwords:
GUARDIANSHIP – application for a guardianship order - whether a guardianship order should be made, and what order should be made – whether use of GPS sole tracker constitutes a restrictive practice – use of environmental restraint – subject person lacks safety awareness and has history of absconding in his wheelchair – use of locked door to prevent subject person exiting – private guardian appointed.

Legislation Cited:
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14(1)-(2), 17, 18(1)
Mental Health Act 2007 (NSW)
National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth)
Surveillance Devices Act 2007 (NSW), s 9(1)

Cases Cited:
C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep)
Re B [2011] NSWSC 1075

Texts Cited:
Nil

Category: Principal judgment
Parties:
004: Guardianship Application
BGT (the person)
XZX (applicant)
Public Guardian
Representation: Nil

File Number(s): NCAT 2009/00474225
Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

What the Tribunal decided

The Tribunal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BGT

Details

AGLC: BGT [2021] NSWCATGD 9
Case: [2021] NSWCATGD 9
Decision Date: 01 April 2021

CaseChat Overview and Summary

The matter before the Court was an application for a guardianship order in relation to BGT, a person who lacks the capacity to make decisions for himself. The Court was asked to determine whether a guardianship order should be made, and if so, what order should be made. This included consideration of the use of GPS sole trackers and environmental restraints to manage BGT's behaviour, given his history of safety issues and absconding. The application was supported by a private guardian, XZX, who was appointed to manage BGT's affairs. The Court had to balance BGT's need for support and protection with his right to autonomy and dignity.

The Court considered the legal framework for guardianship orders, including the principles of least restrictive practice and the importance of considering the least intrusive means of managing behaviour. It examined the evidence presented regarding BGT's history and the necessity of the proposed restrictive practices. The Court also evaluated the proposed behaviour support plan and the suitability of XZX as a guardian. The decision hinged on whether the proposed guardianship order and the use of restrictive practices were in BGT's best interests and compliant with the relevant legislation.

After careful consideration, the Court found that a guardianship order was necessary to protect BGT and ensure his welfare. It appointed XZX as the guardian, recognising her capacity to provide the necessary care and support. The Court made a limited guardianship order, granting the guardian specific functions to manage BGT's behaviour, including the use of GPS sole trackers and environmental restraints, subject to strict conditions. These conditions ensured that restrictive practices were used only as a last resort and in accordance with a comprehensive behaviour support plan. The Court emphasised the guardian's duty to involve BGT in decision-making processes and to respect his views.

The Court's final orders included the establishment of a guardianship order for BGT, the appointment of XZX as his guardian, and the specification of the guardian's functions and conditions. The Court set a 12-month term for the order, with provisions for regular review to ensure it remained in BGT's best interests. This decision provided a structured framework for managing BGT's care while safeguarding his rights and promoting his well-being.

Orders

Orders of the court

1. A guardianship order is made for BGT.

2. XZX of [Address removed for publication.] is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 1 April 2021.

4. This is a limited guardianship order giving the guardian custody of BGT to the extent necessary to carry out the functions below.

FUNCTIONS:

5. The guardian has the following functions:

a) Restrictive Practices

To give or withhold consent as to whether the following restrictive practices should be used to influence BGT’s behaviour:

1. Environmental restraint

b) Other Function

To make decisions concerning use of a GPS sole tracker

CONDITIONS:

6. The conditions of this order are:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring BGT to an understanding of the issues and to obtain and consider his views before making significant decisions.

b) Restrictive Practices Condition

The guardian may only consent to the use of the types of restrictive practices permitted under this order to influence BGT’s behaviour:

(i) as a last resort to prevent BGT harming himself or others; and

(ii) in accordance with a behaviour support plan which has been developed by a behaviour support practitioner after having conducted a functional behavioural assessment upon BGT, and which is reviewed regularly (and no less than every 12 months) and/or reviewed as soon as practicable if there is a change in circumstances which requires the plan to be amended.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	BGT [2021] NSWCATGD 9
Hearing dates:	1 April 2021
Date of orders:	1 April 2021
Decision date:	01 April 2021
Jurisdiction:	Guardianship Division
Before:	J Toohey, Senior Member (Legal) Dr H Burnet, Senior Member (Professional) M A Oxenham, General Member (Community)
Decision:	1. A guardianship order is made for BGT. 2. XZX of [Address removed for publication.] is appointed as the guardian. 3. This is a continuing guardianship order for a period of 12 months from 1 April 2021. 4. This is a limited guardianship order giving the guardian custody of BGT to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Restrictive Practices To give or withhold consent as to whether the following restrictive practices should be used to influence BGT’s behaviour: 1. Environmental restraint b) Other Function To make decisions concerning use of a GPS sole tracker CONDITIONS: 6. The conditions of this order are: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring BGT to an understanding of the issues and to obtain and consider his views before making significant decisions. b) Restrictive Practices Condition The guardian may only consent to the use of the types of restrictive practices permitted under this order to influence BGT’s behaviour: (i) as a last resort to prevent BGT harming himself or others; and (ii) in accordance with a behaviour support plan which has been developed by a behaviour support practitioner after having conducted a functional behavioural assessment upon BGT, and which is reviewed regularly (and no less than every 12 months) and/or reviewed as soon as practicable if there is a change in circumstances which requires the plan to be amended.
Catchwords:	GUARDIANSHIP – application for a guardianship order - whether a guardianship order should be made, and what order should be made – whether use of GPS sole tracker constitutes a restrictive practice – use of environmental restraint – subject person lacks safety awareness and has history of absconding in his wheelchair – use of locked door to prevent subject person exiting – private guardian appointed.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14(1)-(2), 17, 18(1) Mental Health Act 2007 (NSW) National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) Surveillance Devices Act 2007 (NSW), s 9(1)
Cases Cited:	C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) Re B [2011] NSWSC 1075
Texts Cited:	Nil
Category:	Principal judgment
Parties:	004: Guardianship Application BGT (the person) XZX (applicant) Public Guardian
Representation:	Nil
File Number(s):	NCAT 2009/00474225
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 65.