BZW - [2020] NSWCATGD 38

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: BZW [2020] NSWCATGD 38
Hearing dates: 10 December 2020
Date of orders: 10 December 2020
Decision date: 10 December 2020
Jurisdiction: Guardianship Division
Before: R H Booby, Senior Member (Legal)
Dr G Jamieson, Senior Member (Professional)
J V Le Breton, General Member (Community)
Decision:
1. A guardianship order is made for BZW.
2. HAW of [Address removed for publication.] is appointed as the guardian.
3. This is a continuing guardianship order for a period of three years from 10 December 2020.
4. This is a limited guardianship order giving the guardian(s) custody of BZW to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Health care
To decide what health care BZW may receive.
b) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where BZW is not capable of giving a valid consent.
c) Restrictive Practices
To give or withhold consent as to whether the following restrictive practices should be used to influence BZW’s behaviour:
1. Physical restraint
2. Chemical 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 BZW 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 BZW’s behaviour:
1. as a last resort to prevent BZW harming himself or others; and
2. in accordance with a care and support plan that incorporates:
a) the behaviours that are being addressed by the restraints;
b) reasons why the restraints are necessary;
c) non-pharmacological strategies in place;
d) provision for review, including by appropriate medical specialist.

Catchwords:
GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – subject person resident in aged care facility – subject person housed in secure unit and not allowed to leave – applicant was asked to sign “restraining document” for the subject person – use of chemical restraint – use of physical restraint – Part 4A of the Quality of Care Principles 2014 (Cth) – subject person prescribed major medication – need for medical and dental consent decisions to be made – need for restraint decisions to be made - appointment of a guardian would promote subject person’s welfare and interests – restraint should be used as a last resort – conditions imposed on authority to consent to restraint – consideration of cultural environment and family relationships – suitability of proposed guardian – private guardian appointed – order made.

Legislation Cited:
Aged Care Act 1997 (Cth)
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 17(1)
Quality of Care Principles 2014 (Cth), ss 4, 15F, 15G, Pt 4A

Cases Cited:
C S and M Y v the Guardianship Tribunal and the Public Guardian…

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 BZW

Details

AGLC: BZW [2020] NSWCATGD 38
Case: [2020] NSWCATGD 38
Decision Date: 10 December 2020

CaseChat Overview and Summary

In the matter of BZW, the court considered an application for a guardianship order in relation to an individual residing in an aged care facility. The subject person was housed in a secure unit and was not allowed to leave the premises. The applicant was asked to sign a "restraining document" for the subject person, highlighting the use of both chemical and physical restraint. This case was governed by Part 4A of the Quality of Care Principles 2014 (Cth), and the subject person was prescribed major medication. The court had to determine the necessity of appointing a guardian to make medical and dental consent decisions as well as decisions on the use of restraint.

The primary legal issues before the court were whether a guardianship order should be made and, if so, what conditions should be imposed on the authority to consent to restraint. The court considered the subject person's welfare and interests, the need for medical and dental consent decisions, and the requirement to make decisions regarding the use of restraint. It was noted that restraint should be used as a last resort and that the appointment of a guardian would promote the subject person's welfare and interests. The court also considered the cultural environment and family relationships and the suitability of the proposed guardian.

The court found that a guardianship order should be made for BZW and appointed HAW of [Address removed for publication] as the guardian. This is a continuing guardianship order for a period of three years from 10 December 2020. The order is a limited guardianship order that grants the guardian custody of BZW to the extent necessary to carry out specific functions, including health care, medical and dental consent, and restrictive practices. The guardian is permitted to consent to the use of physical and chemical restraint as a last resort to prevent BZW from harming himself or others and in accordance with a care and support plan that incorporates the necessary behaviours, reasons for restraint, non-pharmacological strategies in place, and provisions for review by an appropriate medical specialist. The court also imposed a standard condition on the guardian, requiring them to take all reasonable steps to bring BZW to an understanding of the issues and to obtain and consider their views before making significant decisions.

Orders

Orders of the court

1. A guardianship order is made for BZW.

2. HAW of [Address removed for publication.] is appointed as the guardian.

3. This is a continuing guardianship order for a period of three years from 10 December 2020.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Health care

To decide what health care BZW may receive.

b) Medical/Dental consent

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

c) Restrictive Practices

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

1. Physical restraint

2. Chemical 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 BZW 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 BZW’s behaviour:

1. as a last resort to prevent BZW harming himself or others; and

2. in accordance with a care and support plan that incorporates:

a) the behaviours that are being addressed by the restraints;

b) reasons why the restraints are necessary;

c) non-pharmacological strategies in place;

d) provision for review, including by appropriate medical specialist.

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:	BZW [2020] NSWCATGD 38
Hearing dates:	10 December 2020
Date of orders:	10 December 2020
Decision date:	10 December 2020
Jurisdiction:	Guardianship Division
Before:	R H Booby, Senior Member (Legal) Dr G Jamieson, Senior Member (Professional) J V Le Breton, General Member (Community)
Decision:	1. A guardianship order is made for BZW. 2. HAW of [Address removed for publication.] is appointed as the guardian. 3. This is a continuing guardianship order for a period of three years from 10 December 2020. 4. This is a limited guardianship order giving the guardian(s) custody of BZW to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Health care To decide what health care BZW may receive. b) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where BZW is not capable of giving a valid consent. c) Restrictive Practices To give or withhold consent as to whether the following restrictive practices should be used to influence BZW’s behaviour: 1. Physical restraint 2. Chemical 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 BZW 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 BZW’s behaviour: 1. as a last resort to prevent BZW harming himself or others; and 2. in accordance with a care and support plan that incorporates: a) the behaviours that are being addressed by the restraints; b) reasons why the restraints are necessary; c) non-pharmacological strategies in place; d) provision for review, including by appropriate medical specialist.
Catchwords:	GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – subject person resident in aged care facility – subject person housed in secure unit and not allowed to leave – applicant was asked to sign “restraining document” for the subject person – use of chemical restraint – use of physical restraint – Part 4A of the Quality of Care Principles 2014 (Cth) – subject person prescribed major medication – need for medical and dental consent decisions to be made – need for restraint decisions to be made - appointment of a guardian would promote subject person’s welfare and interests – restraint should be used as a last resort – conditions imposed on authority to consent to restraint – consideration of cultural environment and family relationships – suitability of proposed guardian – private guardian appointed – order made.
Legislation Cited:	Aged Care Act 1997 (Cth) Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 17(1) Quality of Care Principles 2014 (Cth), ss 4, 15F, 15G, Pt 4A
Cases Cited:	C S and M Y v the Guardianship Tribunal and the Public Guardian…