NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Brenda (a pseudonym) [2024] NSWCATGD 20 Hearing dates: 09 August 2024 Date of orders: 09 August 2024 Decision date: 09 August 2024 Jurisdiction: Guardianship Division Before: S L Handebo, Senior Member (Legal)
Dr T P C Aczel, Senior Member (Professional)
P A Rutledge AM, General Member (Community)Decision: Review of Guardianship Order
The guardianship order for Brenda made on 31 August 2023 has been reviewed. The order now is as follows:
1. The Public Guardian is appointed as the guardian.
2. This is a continuing guardianship order for a period of 12 months from 9 August 2024.
3. This is a limited guardianship order giving the guardian(s) custody of Brenda to the extent necessary to carry out the functions below.
FUNCTIONS:
4. The guardian has the following functions:
(a) Accommodation
To decide where Brenda may reside.
(b) Health care
To decide what health care Brenda may receive.
(c) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where Brenda is not capable of giving a valid consent.
(d) Restrictive Practices
To give or withhold consent as to whether the following restrictive practices should be used to influence Brenda’s behaviour:
Chemical restraint
Environmental restraint
AUTHORITIES:
5. The guardian has the following authorities:
(a) Authority to override objections to medical treatment
(b) The guardian may override the objection of Brenda to major or minor medical treatment.
CONDITIONS:
6. The conditions of this order are:
(a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring Brenda to an understanding of the issues and to obtain and consider her views before making significant decisions.
(b) Aged Care Restrictive Practices Condition
The guardian(s) may only consent to the use of the types of restrictive practices permitted under this order to influence Brenda’s behaviour:
(i) as a last resort to prevent Brenda harming herself or others; and
(ii) where the restrictive practice is used in the least restrictive form, and for the shortest time necessary to prevent harm to Brenda or other persons;
(iii) after consideration of the likely impact of the use of the restrictive practice on Brenda; and
(iv) in accordance with a behaviour support plan devised in accordance with the Quality of Care Principles 2014 (Cth), after consultation with a health practitioner with expertise relevant to Brenda’s behaviours of concern and which is reviewed regularly and as soon as practicable after any change in Brenda’s circumstances.
Financial Management Application
1. The estate of Brenda is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. The management of the estate of Brenda is committed to the NSW Trustee and Guardian.
Catchwords: GUARDIANSHIP – 71-year-old subject person diagnosed with dementia – application for review of guardianship appointment – whether guardianship order should be varied to include a restrictive practice function – whether the use of Risperidone for the management of the behavioural and psychological symptoms of dementia constitutes…
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- AGLC
- Brenda (a pseudonym) [2024] NSWCATGD 20
- Case
- [2024] NSWCATGD 20
- Decision Date
CaseChat Overview and Summary
The court addressed the issue of whether BPSD could be considered a diagnosed mental disorder and whether the use of Risperidone as a chemical restraint constituted a restrictive practice under the guardianship order. The court also had to determine the appropriateness of the NSW Trustee's appointment for managing Brenda's estate. The court's analysis focused on the best interests of Brenda and the need for careful consideration of restrictive practices and financial management.
The court found that BPSD could be considered a diagnosed mental disorder and that the use of Risperidone constituted a restrictive practice. Consequently, the court varied the guardianship order to include the restrictive practice function, allowing the guardian to consent to the use of Risperidone under specific conditions. Regarding financial management, the court accepted the recommendation to appoint the NSW Trustee, considering the allegations of conflict of interest with the proposed private financial manager. The court concluded that the appointment of the NSW Trustee would best serve Brenda's interests.
The court made an order reviewing Brenda's guardianship, appointing the Public Guardian as her guardian and granting specific functions, including the use of restrictive practices as a last resort. The court also ordered the management of Brenda's estate to be committed to the NSW Trustee. This decision ensures that Brenda's care and financial management are handled in her best interests, with appropriate oversight and consideration of her condition and circumstances.
Orders
Orders of the court
Review of Guardianship Order
The guardianship order for Brenda made on 31 August 2023 has been reviewed. The order now is as follows:
1. The Public Guardian is appointed as the guardian.
2. This is a continuing guardianship order for a period of 12 months from 9 August 2024.
3. This is a limited guardianship order giving the guardian(s) custody of Brenda to the extent necessary to carry out the functions below.
FUNCTIONS:
4. The guardian has the following functions:
(a) Accommodation
To decide where Brenda may reside.
(b) Health care
To decide what health care Brenda may receive.
(c) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where Brenda is not capable of giving a valid consent.
(d) Restrictive Practices
To give or withhold consent as to whether the following restrictive practices should be used to influence Brenda’s behaviour:
Chemical restraint
Environmental restraint
AUTHORITIES:
5. The guardian has the following authorities:
(a) Authority to override objections to medical treatment
(b) The guardian may override the objection of Brenda to major or minor medical treatment.
CONDITIONS:
6. The conditions of this order are:
(a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring Brenda to an understanding of the issues and to obtain and consider her views before making significant decisions.
(b) Aged Care Restrictive Practices Condition
The guardian(s) may only consent to the use of the types of restrictive practices permitted under this order to influence Brenda’s behaviour:
(i) as a last resort to prevent Brenda harming herself or others; and
(ii) where the restrictive practice is used in the least restrictive form, and for the shortest time necessary to prevent harm to Brenda or other persons;
(iii) after consideration of the likely impact of the use of the restrictive practice on Brenda; and
(iv) in accordance with a behaviour support plan devised in accordance with the Quality of Care Principles 2014 (Cth), after consultation with a health practitioner with expertise relevant to Brenda’s behaviours of concern and which is reviewed regularly and as soon as practicable after any change in Brenda’s circumstances.
Financial Management Application
1. The estate of Brenda is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. The management of the estate of Brenda is committed to the NSW Trustee and Guardian.
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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