BYX - [2020] NSWCATGD 47

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: BYX [2020] NSWCATGD 47
Hearing dates: 23 June 2020
Date of orders: 23 June 2020
Decision date: 23 June 2020
Jurisdiction: Guardianship Division
Before: J Moir, Senior Member (Legal)
Dr M A Martin, Senior Member (Professional)
Decision:
The guardianship order for BYX made on 12 June 2019 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 two years from 23 June 2020.
3. This is a limited guardianship order giving the guardian custody of BYX to the extent necessary to carry out the functions below.
FUNCTIONS:
4. The guardian has the following functions:
a) Accommodation
To decide where BYX may reside.
b) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where BYX is not capable of giving a valid consent.
CONDITION:
5. The condition of this order is:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring BYX to an understanding of the issues and to obtain and consider his views before making significant decisions.

Catchwords:
GUARDIANSHIP – end-of-term review of a guardianship order – whether a further guardianship order should be made – subject person with an acquired brain injury – subject person prescribed major medications and has no person responsible – medications used to treat symptoms of brain injury – use of major medications not a restrictive practice - Quality of Care Principles 2014 (Cth) - National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 – Public Guardian appointed.

Legislation Cited:
Aged Care Act 1997 (Cth)
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 33(1)(a)
National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth)
Quality of Care Principles 2014 (Cth), ss 4, 15G

Cases Cited:
HZC [2019] NSWCATGD 8
IF v IG [2004] NSWADTAP 3

Texts Cited:
Nil

Category: Principal judgment
Parties:
003: Review of Guardianship Order
BYX (the person)
NSW Public Guardian (appointed guardian)
Representation: Nil

File Number(s): NCAT 2019/00145095
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

STATUTORY REVIEW OF GUARDIANSHIP ORDER

Background

BYX is an 80-year-old single man, originally from New Zealand, who lives at an aged care facility in regional NSW. He has a sister, Ms Z, and niece, Ms Y, who live in New Zealand, who have some involvement in his life. He is reported to have fluctuating cognitive impairment with a history of head injury as a teenager.
BYX has been subject to a guardianship order since 12 June 2019 when the Public Guardian was appointed for 12 months to make decisions about his accommodation (authorise others), services, health care, restrictive practises (mechanical restraint) and to consent…

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 BYX

Details

AGLC: BYX [2020] NSWCATGD 47
Case: [2020] NSWCATGD 47
Decision Date: 23 June 2020

CaseChat Overview and Summary

The case involved BYX, an individual with an acquired brain injury, and the Public Guardian, who was appointed to oversee BYX's welfare and medical decisions. The dispute centred on the continuation and scope of a guardianship order, which had initially been made on June 12, 2019. The court was tasked with reviewing the existing order and determining whether it should be renewed and, if so, the extent of the guardian's authority. BYX was on major medications to manage symptoms related to the brain injury and had no other person responsible for making decisions on their behalf.

The court was required to consider several legal issues, including the applicability of the Quality of Care Principles 2014 and the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018. It needed to decide whether the use of major medications for BYX constituted a restrictive practice and whether the guardian should be empowered to make decisions regarding BYX's residence and medical treatment. The court also had to assess whether the guardian should be required to consult BYX and explain decisions to them, given BYX's capacity issues.

In reaching its decision, the court noted that the medications BYX was taking did not constitute a restrictive practice under the applicable rules. It found that the Public Guardian was well-suited to manage BYX's affairs, given the complexity of the case and BYX's specific needs. The court concluded that a continuing guardianship order was necessary and should be limited to specific functions such as deciding on BYX's residence and providing medical or dental consent. The order also stipulated that the guardian should consult BYX and explain decisions to them to the extent possible, ensuring BYX's understanding and involvement in significant matters.

Orders

Orders of the court

The guardianship order for BYX made on 12 June 2019 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 two years from 23 June 2020.

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

FUNCTIONS:

4. The guardian has the following functions:

a) Accommodation

To decide where BYX may reside.

b) Medical/Dental consent

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

CONDITION:

5. The condition of this order is:

a) Standard Condition

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

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:	BYX [2020] NSWCATGD 47
Hearing dates:	23 June 2020
Date of orders:	23 June 2020
Decision date:	23 June 2020
Jurisdiction:	Guardianship Division
Before:	J Moir, Senior Member (Legal) Dr M A Martin, Senior Member (Professional)
Decision:	The guardianship order for BYX made on 12 June 2019 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 two years from 23 June 2020. 3. This is a limited guardianship order giving the guardian custody of BYX to the extent necessary to carry out the functions below. FUNCTIONS: 4. The guardian has the following functions: a) Accommodation To decide where BYX may reside. b) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where BYX is not capable of giving a valid consent. CONDITION: 5. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring BYX to an understanding of the issues and to obtain and consider his views before making significant decisions.
Catchwords:	GUARDIANSHIP – end-of-term review of a guardianship order – whether a further guardianship order should be made – subject person with an acquired brain injury – subject person prescribed major medications and has no person responsible – medications used to treat symptoms of brain injury – use of major medications not a restrictive practice - Quality of Care Principles 2014 (Cth) - National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 – Public Guardian appointed.
Legislation Cited:	Aged Care Act 1997 (Cth) Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 33(1)(a) National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) Quality of Care Principles 2014 (Cth), ss 4, 15G
Cases Cited:	HZC [2019] NSWCATGD 8 IF v IG [2004] NSWADTAP 3
Texts Cited:	Nil
Category:	Principal judgment
Parties:	003: Review of Guardianship Order BYX (the person) NSW Public Guardian (appointed guardian)
Representation:	Nil
File Number(s):	NCAT 2019/00145095
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.