CKH - [2021] NSWCATGD 18

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CKH [2021] NSWCATGD 18
Hearing dates: 16 July 2021
Date of orders: 16 July 2021
Decision date: 16 July 2021
Jurisdiction: Guardianship Division
Before: R H Booby, Senior Member (Legal)
Dr G Jamieson, Senior Member (Professional)
Dr M Spencer, General Member (Community)
Decision:
1. A guardianship order is made for CKH.
2. The Public Guardian is appointed as the guardian.
3. This is a continuing guardianship order for a period of 12 months from 16 July 2021.
4. This is a limited guardianship order giving the guardian(s) custody of CKH to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Accommodation
To decide where CKH may reside.
b) Health care
To decide what health care CKH may receive.
c) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where CKH 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 CKH’s behaviour:
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 CKH 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 CKH’s behaviour:
(i) as a last resort to prevent CKH harming himself or others; and
(ii) in accordance with a care and support plan that incorporates:
a) the behaviours that are being addressed by the restraints;
b) the 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 – use of restraint in aged care – Quality of Care Principles 2014 (Cth) – restrictive practices substitute decision maker – risperidone to manage behaviour – chemical restraint – requirements of care and support plan – conditions on restrictive practices function – language barriers in aged care facility – Public Guardian appointed

Legislation Cited:
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2)
Quality of Care Principles 2014 (Cth), ss 4, 15FA(1)(f)(ii)

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

Texts Cited:
None cited.

Category: Principal judgment
Parties:
004: Guardianship Application
CKH (the person)
OZW (applicant)
KAN (carer)
Public Guardian
Representation: Nil.

File Number(s): NCAT 2018/00080966
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

GUARDIANSHIP APPLICATION

CKH is 84 years old and lives in East Sydney, NSW, in an aged care facility.
On 10 April 2018 the…

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 CKH

Details

AGLC: CKH [2021] NSWCATGD 18
Case: [2021] NSWCATGD 18
Decision Date: 16 July 2021

CaseChat Overview and Summary

The case of CKH involved an application for a guardianship order, focusing on the use of restraint in an aged care facility and the prescription of risperidone to manage behaviour. The application was heard by the court, which was tasked with determining whether a guardianship order was necessary and, if so, what its terms should be. The matter raised significant legal issues concerning the principles under the Quality of Care Principles 2014 (Cth), the use of restrictive practices in accordance with a care and support plan, and the role of a substitute decision-maker in making decisions about health care and medical consent, particularly in the context of language barriers.

The court considered the evidence presented, including the need for the use of chemical restraint to prevent CKH from harming himself or others. It was noted that the use of risperidone as a chemical restraint needed to comply with the Quality of Care Principles, which dictate that such practices should only be used as a last resort and with appropriate safeguards. The court also examined the necessity of appointing a guardian to make substitute decisions on behalf of CKH, given his inability to provide informed consent due to cognitive impairments and language barriers. The Public Guardian was appointed to ensure that CKH's rights and needs were adequately protected and that any decisions made were in his best interests.

The court concluded that a guardianship order was warranted, appointing the Public Guardian as CKH's guardian. The order was made for a period of 12 months, with specific functions assigned to the guardian, including decisions about accommodation, health care, and medical consent. Importantly, the guardian was granted the authority to consent to the use of restrictive practices, such as chemical restraint, under strict conditions. These conditions required that such practices be used only as a last resort, in line with a care and support plan that detailed the behaviours being addressed, the necessity of the restraints, existing non-pharmacological strategies, and provisions for review. The guardian was also mandated to take reasonable steps to ensure CKH understood the issues and to consider his views before making significant decisions.

The final orders of the court included the establishment of a continuing guardianship order for 12 months, with the Public Guardian appointed as CKH's guardian. The guardian was given specific functions, including the authority to consent to restrictive practices under stringent conditions designed to protect CKH's rights and ensure that any interventions were in his best interests. This decision underscored the importance of balancing the need for protective measures in aged care with the rights and dignity of the individual.

Orders

Orders of the court

1. A guardianship order is made for CKH.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 16 July 2021.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where CKH may reside.

b) Health care

To decide what health care CKH may receive.

c) Medical/Dental consent

To make substitute decisions about proposed minor or major medical or dental treatment, where CKH 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 CKH’s behaviour:

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 CKH 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 CKH’s behaviour:

(i) as a last resort to prevent CKH harming himself or others; and

(ii) in accordance with a care and support plan that incorporates:

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

b) the 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:	CKH [2021] NSWCATGD 18
Hearing dates:	16 July 2021
Date of orders:	16 July 2021
Decision date:	16 July 2021
Jurisdiction:	Guardianship Division
Before:	R H Booby, Senior Member (Legal) Dr G Jamieson, Senior Member (Professional) Dr M Spencer, General Member (Community)
Decision:	1. A guardianship order is made for CKH. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of 12 months from 16 July 2021. 4. This is a limited guardianship order giving the guardian(s) custody of CKH to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Accommodation To decide where CKH may reside. b) Health care To decide what health care CKH may receive. c) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where CKH 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 CKH’s behaviour: 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 CKH 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 CKH’s behaviour: (i) as a last resort to prevent CKH harming himself or others; and (ii) in accordance with a care and support plan that incorporates: a) the behaviours that are being addressed by the restraints; b) the 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 – use of restraint in aged care – Quality of Care Principles 2014 (Cth) – restrictive practices substitute decision maker – risperidone to manage behaviour – chemical restraint – requirements of care and support plan – conditions on restrictive practices function – language barriers in aged care facility – Public Guardian appointed
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2) Quality of Care Principles 2014 (Cth), ss 4, 15FA(1)(f)(ii)
Cases Cited:	IF v IG [2004] NSWADTAP 3 P v NSW Trustee and Guardian [2015] NSWSC 579
Texts Cited:	None cited.
Category:	Principal judgment
Parties:	004: Guardianship Application CKH (the person) OZW (applicant) KAN (carer) Public Guardian
Representation:	Nil.
File Number(s):	NCAT 2018/00080966
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.