BYC - [2020] NSWCATGD 69

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: BYC [2020] NSWCATGD 69
Hearing dates: 30 November 2020
Date of orders: 30 November 2020
Decision date: 30 November 2020
Jurisdiction: Guardianship Division
Before: B L Adamovich, Senior Member (Legal)
L Anthony, Senior Member (Professional)
L Esdaile, General Member (Community)
Decision:
The guardianship order for BYC made on 23 September 2015 has been reviewed. The order now is as follows:
1. JZC of [Address removed for publication.] is appointed as the guardian.
2. This is a continuing guardianship order for a period of five years from 30 November 2020.
3. This is a limited guardianship order giving the guardian(s) custody of BYC to the extent necessary to carry out the functions below.
FUNCTIONS:
4. The guardian has the following functions:
a) Accommodation
To decide where BYC may reside.
b) Health care
To decide what health care BYC may receive.
c) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where BYC is not capable of giving a valid consent.
d) Services
To make decisions about services to be provided to BYC.
e) Restrictive Practices
To give or withhold consent as to whether the following restrictive practices should be used to influence BYC’s behaviour:
1. Environmental restraint
CONDITIONS:
5. The conditions of this order are:
a) Standard Condition
In exercising this role, the guardian shall take all reasonable steps to bring BYC to an understanding of the issues and to obtain and consider their views before making significant decisions.
b) Restrictive Practices Condition
The guardian(s) may only consent to the use of the types of restrictive practices permitted under this order to influence BYC’s behaviour:
(i) as a last resort to prevent BYC harming themself 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 BYC, 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 – end of term review of guardianship order – restrictive practices function – subject person in supported independent living – whether mood stabiliser medication is chemical restraint – whether camera in lounge room is environmental restraint – surveillance did not limit freedom of movement – locked gate and restricted access to staff and food –environmental restraint – guardian enhanced quality of life

Legislation Cited:
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2)
National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth), r 6

Cases Cited:
HZC [2019] NSWCATGD 8
IF v IG [2004] NSWADTAP 3
P v NSW Trustee and Guardian [2015] NSWSC 579

Texts Cited:
Nil

Category: Principal judgment
Parties:
009: Review of Guardianship Order
BYC (the person)
JZC (appointed guardian)
Public Guardian
Representation: Nil

File Number(s): NCAT 2005/00374081
Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative…

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 BYC

Details

AGLC: BYC [2020] NSWCATGD 69
Case: [2020] NSWCATGD 69
Decision Date: 30 November 2020

CaseChat Overview and Summary

This matter concerns the end of term review of a guardianship order for a person identified as BYC, before the Supreme Court of Victoria. The primary issue before the court was to determine whether the medication BYC was receiving was to be classified as a chemical restraint, and whether the installation of a camera in the lounge room was to be classified as an environmental restraint. The court was also asked to consider whether other restrictive practices, including a locked gate and restricted access to staff and food, constituted environmental restraint. The court was further asked to consider whether these practices limited BYC's freedom of movement.

The court found that the mood stabiliser medication was not to be classified as a chemical restraint, as it was not used to influence BYC's behaviour, but rather to manage a diagnosed medical condition. The court also found that the camera in the lounge room did not limit BYC's freedom of movement, and therefore did not constitute an environmental restraint. However, the court found that the locked gate and restricted access to staff and food did constitute environmental restraint, as they limited BYC's freedom of movement. The court found that these practices were used to enhance BYC's quality of life, and were therefore justified.

The court has reviewed the guardianship order for BYC, and appointed JZC as the guardian. The order is a limited guardianship order for a period of five years, and the guardian has been granted specific functions, including the authority to consent to the use of restrictive practices to influence BYC's behaviour, subject to certain conditions. The court has also imposed conditions on the use of restrictive practices, requiring the guardian to obtain and consider BYC's views before making significant decisions, and to only consent to the use of restrictive practices as a last resort to prevent BYC harming themselves or others, and in accordance with a behaviour support plan developed by a behaviour support practitioner.

Orders

Orders of the court

The guardianship order for BYC made on 23 September 2015 has been reviewed. The order now is as follows:

1. JZC of [Address removed for publication.] is appointed as the guardian.

2. This is a continuing guardianship order for a period of five years from 30 November 2020.

3. This is a limited guardianship order giving the guardian(s) custody of BYC to the extent necessary to carry out the functions below.

FUNCTIONS:

4. The guardian has the following functions:

a) Accommodation

To decide where BYC may reside.

b) Health care

To decide what health care BYC may receive.

c) Medical/Dental consent

To make substitute decisions about proposed minor or major medical or dental treatment, where BYC is not capable of giving a valid consent.

d) Services

To make decisions about services to be provided to BYC.

e) Restrictive Practices

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

1. Environmental restraint

CONDITIONS:

5. The conditions of this order are:

a) Standard Condition

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

b) Restrictive Practices Condition

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

(i) as a last resort to prevent BYC harming themself 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 BYC, 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:	BYC [2020] NSWCATGD 69
Hearing dates:	30 November 2020
Date of orders:	30 November 2020
Decision date:	30 November 2020
Jurisdiction:	Guardianship Division
Before:	B L Adamovich, Senior Member (Legal) L Anthony, Senior Member (Professional) L Esdaile, General Member (Community)
Decision:	The guardianship order for BYC made on 23 September 2015 has been reviewed. The order now is as follows: 1. JZC of [Address removed for publication.] is appointed as the guardian. 2. This is a continuing guardianship order for a period of five years from 30 November 2020. 3. This is a limited guardianship order giving the guardian(s) custody of BYC to the extent necessary to carry out the functions below. FUNCTIONS: 4. The guardian has the following functions: a) Accommodation To decide where BYC may reside. b) Health care To decide what health care BYC may receive. c) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where BYC is not capable of giving a valid consent. d) Services To make decisions about services to be provided to BYC. e) Restrictive Practices To give or withhold consent as to whether the following restrictive practices should be used to influence BYC’s behaviour: 1. Environmental restraint CONDITIONS: 5. The conditions of this order are: a) Standard Condition In exercising this role, the guardian shall take all reasonable steps to bring BYC to an understanding of the issues and to obtain and consider their views before making significant decisions. b) Restrictive Practices Condition The guardian(s) may only consent to the use of the types of restrictive practices permitted under this order to influence BYC’s behaviour: (i) as a last resort to prevent BYC harming themself 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 BYC, 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 – end of term review of guardianship order – restrictive practices function – subject person in supported independent living – whether mood stabiliser medication is chemical restraint – whether camera in lounge room is environmental restraint – surveillance did not limit freedom of movement – locked gate and restricted access to staff and food –environmental restraint – guardian enhanced quality of life
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2) National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth), r 6
Cases Cited:	HZC [2019] NSWCATGD 8 IF v IG [2004] NSWADTAP 3 P v NSW Trustee and Guardian [2015] NSWSC 579
Texts Cited:	Nil
Category:	Principal judgment
Parties:	009: Review of Guardianship Order BYC (the person) JZC (appointed guardian) Public Guardian
Representation:	Nil
File Number(s):	NCAT 2005/00374081
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative…