BYL - [2020] NSWCATGD 51

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: BYL [2020] NSWCATGD 51
Hearing dates: 1 July 2020
Date of orders: 1 July 2020
Decision date: 01 July 2020
Jurisdiction: Guardianship Division
Before: R L Bailey, Senior Member (Legal)
L Houlahan, Senior Member (Professional)
L Porter, General Member (Community)
Decision:
1. A guardianship order is made for BYL.
2. MZL 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 July 2020.
4. This is a limited guardianship order giving the guardian(s) custody of BYL to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Accommodation
To decide where BYL may reside.
b) Health care
To decide what health care BYL may receive.
c) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where BYL is not capable of giving a valid consent.
d) Services
To make decisions about services to be provided to BYL.
e) Restrictive Practices
To give or withhold consent as to whether the following restrictive practices should be used to influence BYL’s behaviour:
1. Chemical restraint
2. Environmental restraint
3. Mechanical restraint
CONDITIONS:
6. The conditions of this order are:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring BYL to an understanding of the issues and to obtain and consider his 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 BYL’s behaviour:
(i) as a last resort to prevent BYL 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 BYL, 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 – need for accommodation decisions, health care and medical and dental consent decisions to be made – subject person prescribed major medications without consent – need for more expeditious access to NDIS and services – restrictive practices – use of chemical, environmental and mechanical restraint – suitability of private guardian – private guardian appointed – order made.

Legislation Cited:
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14(2), 15(3), 17(1)
National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth), r 6

Cases Cited:
C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep)
IF v IG [2004] NSWADTAP 3
P v D1 & Ors [2011] NSWSC 257
Re B [2011] NSWSC 1075

Texts Cited:
Nil

Category: Principal judgment
Parties:
001: Guardianship Application
BYL…

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 BYL

Details

AGLC: BYL [2020] NSWCATGD 51
Case: [2020] NSWCATGD 51
Decision Date: 01 July 2020

CaseChat Overview and Summary

The matter before the court was an application for a guardianship order for BYL, who required assistance with various decisions due to their inability to manage personal affairs. The application was heard by the Queensland Civil and Administrative Tribunal (QCAT), presided over by Dr R.M. McEwin, Senior Guardianship Decision Maker. The primary concern was the need for decisions regarding accommodation, health care, and medical and dental consent, as well as the necessity for expedited access to the National Disability Insurance Scheme (NDIS) and services. Furthermore, the case highlighted the need for authorisation of restrictive practices, including chemical, environmental, and mechanical restraint, due to the subject person's prescribed major medications without consent.

The legal issues at hand were whether a guardianship order should be made for BYL and, if so, who should be appointed as the guardian. The court had to consider the nature and extent of the support required by BYL and whether a private guardian was suitable to take on this role. The application for a guardianship order was based on the need for decisions regarding BYL's accommodation, health care, medical and dental consent, services, and restrictive practices, as well as the urgency of obtaining NDIS support and services.

In determining the appropriate course of action, the court considered the evidence provided by the applicants and the respondent, as well as the suitability of the proposed private guardian, MZL. The court found that a guardianship order was necessary for BYL and that MZL was a suitable candidate to act as the guardian. The court appointed MZL as the guardian for a period of 12 months from 1 July 2020, with specific functions outlined in the order. The court also imposed conditions on the guardian's role, including the requirement to consider BYL's views before making significant decisions and to use restrictive practices only as a last resort and in accordance with a behaviour support plan.

The final orders made by the court included the establishment of a guardianship order for BYL, the appointment of MZL as the guardian, and the specification of the guardian's functions and conditions. These orders were designed to provide BYL with the necessary support and care while ensuring their rights and preferences were taken into account.

Orders

Orders of the court

1. A guardianship order is made for BYL.

2. MZL 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 July 2020.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where BYL may reside.

b) Health care

To decide what health care BYL may receive.

c) Medical/Dental consent

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

d) Services

To make decisions about services to be provided to BYL.

e) Restrictive Practices

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

1. Chemical restraint

2. Environmental restraint

3. Mechanical restraint

CONDITIONS:

6. The conditions of this order are:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring BYL to an understanding of the issues and to obtain and consider his 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 BYL’s behaviour:

(i) as a last resort to prevent BYL 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 BYL, 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:	BYL [2020] NSWCATGD 51
Hearing dates:	1 July 2020
Date of orders:	1 July 2020
Decision date:	01 July 2020
Jurisdiction:	Guardianship Division
Before:	R L Bailey, Senior Member (Legal) L Houlahan, Senior Member (Professional) L Porter, General Member (Community)
Decision:	1. A guardianship order is made for BYL. 2. MZL 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 July 2020. 4. This is a limited guardianship order giving the guardian(s) custody of BYL to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Accommodation To decide where BYL may reside. b) Health care To decide what health care BYL may receive. c) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where BYL is not capable of giving a valid consent. d) Services To make decisions about services to be provided to BYL. e) Restrictive Practices To give or withhold consent as to whether the following restrictive practices should be used to influence BYL’s behaviour: 1. Chemical restraint 2. Environmental restraint 3. Mechanical restraint CONDITIONS: 6. The conditions of this order are: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring BYL to an understanding of the issues and to obtain and consider his 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 BYL’s behaviour: (i) as a last resort to prevent BYL 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 BYL, 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 – need for accommodation decisions, health care and medical and dental consent decisions to be made – subject person prescribed major medications without consent – need for more expeditious access to NDIS and services – restrictive practices – use of chemical, environmental and mechanical restraint – suitability of private guardian – private guardian appointed – order made.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14(2), 15(3), 17(1) National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth), r 6
Cases Cited:	C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) IF v IG [2004] NSWADTAP 3 P v D1 & Ors [2011] NSWSC 257 Re B [2011] NSWSC 1075
Texts Cited:	Nil
Category:	Principal judgment
Parties:	001: Guardianship Application BYL…