NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: BQM [2019] NSWCATGD 1 Hearing dates: 21 January 2019 Date of orders: 21 January 2019 Decision date: 21 January 2019 Jurisdiction: Guardianship Division Before: J Claridge, Senior Member (Legal)
L Houlahan, Senior Member (Professional)
L Porter, General Member (Community)Decision: 1. A guardianship order is made for BQM.
2. QAM of [Address removed for publication.] is appointed as the guardian.
3. This is a continuing guardianship order for a period of 12 months from 21 January 2019.
4. This is a limited guardianship order giving the guardian(s) custody of BQM to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Accommodation
To decide where BQM may reside.
b) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where BQM is not capable of giving a valid consent.
c) Restrictive Practices
To make decisions about the following restrictive practices in accordance with the comprehensive behaviour support plan dated 26 October 2018:
Seclusion: exclusionary time out to identified break out areas within the accommodation setting;
Mechanical restraint: use of a travel harness when travelling in a vehicle;
Chemical restraint: routine use of psychotropic medication;
Environmental restraint: locking of exit doors and gates.
AUTHORITY:
6. The guardian has the following authority:
a) Authority to override objections to medical treatment
i) The guardian may override the objection of BQM to major or minor medical treatment.
CONDITIONS:
7. The conditions of this order are:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring BQM to an understanding of the issues and to obtain and consider her views before making significant decisions.
b) Restrictive Practices Condition
The guardian may only consent to:
i) Restriction of BQM’s freedom of movement;
ii) The administration of psychotropic medication; or
iii) Other restrictive practices
to address challenging behaviours within the context of the implementation/development of a comprehensive positive behaviour intervention and support program (or within the context of positive programming addressing BQM’s lifestyle and skills development needs) including strategies to ensure that she has reasonable opportunities to access the community.Catchwords: GUARDIANSHIP – application for guardianship order – guardianship order made – appointment of private guardian – functions of guardian
RESTRICTIVE PRACTICES – definition and nature of restrictive practices – relationship between restrictive practices and NDIS – seclusion – chemical restraint – mechanical restraint – environmental restraint – whether practice is a restrictive practiceLegislation Cited: Guardianship Act 1987 (NSW), ss 3(1)–(2), 4, 14(1)–(2), 15(3), 17(1), 18(1)
National Disability Insurance Scheme Act 2013 (Cth), s 9
National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth), r 6Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: 001: Guardianship Application
BQM (the person)
QAM (applicant)
Public GuardianRepresentation: Nil
File Number(s): NCAT 2018/00351119 Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that…
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- AGLC
- BQM [2019] NSWCATGD 1
- Case
- [2019] NSWCATGD 1
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether certain practices, as outlined in the comprehensive behaviour support plan, constituted restrictive practices under the law and, if so, how these practices should be regulated within the context of the guardianship order. The court had to consider the implications of the National Disability Insurance Scheme (NDIS) on the use of restrictive practices and ensure that any decisions made under the guardianship order aligned with the principles of the NDIS. Additionally, the court had to balance the need to protect BQM's rights and interests with the necessity to manage her challenging behaviours effectively.
After careful consideration, the court made a guardianship order appointing QAM as BQM's guardian. The order was both a continuing guardianship order, effective for 12 months from 21 January 2019, and a limited guardianship order that specified the guardian's functions, including decisions about accommodation, medical and dental consent, and the use of restrictive practices. The court outlined the specific restrictive practices that the guardian could consent to, such as seclusion, mechanical restraint, chemical restraint, and environmental restraint, all within the context of a comprehensive positive behaviour intervention and support program. The guardian was granted the authority to override BQM's objections to medical treatment and was subject to conditions that required them to consider BQM's views and ensure her reasonable access to the community.
Orders
Orders of the court
1. A guardianship order is made for BQM.
2. QAM of [Address removed for publication.] is appointed as the guardian.
3. This is a continuing guardianship order for a period of 12 months from 21 January 2019.
4. This is a limited guardianship order giving the guardian(s) custody of BQM to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Accommodation
To decide where BQM may reside.
b) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where BQM is not capable of giving a valid consent.
c) Restrictive Practices
To make decisions about the following restrictive practices in accordance with the comprehensive behaviour support plan dated 26 October 2018:
Seclusion: exclusionary time out to identified break out areas within the accommodation setting;
Mechanical restraint: use of a travel harness when travelling in a vehicle;
Chemical restraint: routine use of psychotropic medication;
Environmental restraint: locking of exit doors and gates.
AUTHORITY:
6. The guardian has the following authority:
a) Authority to override objections to medical treatment
i) The guardian may override the objection of BQM to major or minor medical treatment.
CONDITIONS:
7. The conditions of this order are:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring BQM to an understanding of the issues and to obtain and consider her views before making significant decisions.
b) Restrictive Practices Condition
The guardian may only consent to:
i) Restriction of BQM’s freedom of movement;
ii) The administration of psychotropic medication; or
iii) Other restrictive practices
to address challenging behaviours within the context of the implementation/development of a comprehensive positive behaviour intervention and support program (or within the context of positive programming addressing BQM’s lifestyle and skills development needs) including strategies to ensure that she has reasonable opportunities to access the community.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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