CYC - [2021] NSWCATGD 11

NSW Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: CYC [2021] NSWCATGD 11
Hearing dates: 26 March 2021
Date of orders: 26 March 2021
Decision date: 26 March 2021
Jurisdiction: Guardianship Division
Before: A D Suthers, Principal Member
Dr C Pratten, Senior Member (Professional)
M A Oxenham, General Member (Community)
Decision:
The guardianship order for CYC made on 19 November 2020 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 one year from 26 March 2021.
3. This is a limited guardianship order giving the guardian(s) custody of CYC to the extent necessary to carry out the functions below.
FUNCTIONS:
4. The guardian has the following functions:
a) Accommodation
To decide where CYC may reside.
b) Health care
To decide what health care CYC may receive.
c) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where CYC is not capable of giving a valid consent.
d) Services
To make decisions about services to be provided to CYC.
e) Restrictive Practices
To give or withhold consent as to whether the following restrictive practices should be used to influence CYC’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 CYC 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 CYC’s behaviour:
(i) as a last resort to prevent CYC 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 CYC, 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 to vary a guardianship order – consideration of what varied order should be made – use of restrictive practices – subject person a forensic patient but supported by NDIS registered service providers in the community – proposed use of chemical and environmental restraints – motion sensors and monitoring by camera – interplay between Guardianship Act 1987 (NSW), Mental Health Act 2007 (NSW), Mental Health (Forensic Provisions) Act 1990 (NSW) and Surveillance Devices Act 2007 (NSW) – consideration of meaning of “authorisation process” contained in National Disability Insurance Scheme (Restrictive Practices and Behaviour Support Rules 2018 (Cth)

Legislation Cited:
Guardianship Act 1987 (NSW), ss 4, 4(a)-(b), 14(2), 37, 45(3)
Mental Health (Forensic Provisions) Act 1990 (NSW), ss 43, 68, 75
National Disability Insurance Scheme (Restrictive Practices and Behaviour Support Rules) 2018 (Cth), rr 6(e), 9, 9(2), 9(2)(a)
Restrictive Practices Authorisation Policy 2019 (NSW), s 3.2(f)

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 CYC

Details

AGLC: CYC [2021] NSWCATGD 11
Case: [2021] NSWCATGD 11
Decision Date: 26 March 2021

CaseChat Overview and Summary

The case involves an application to vary a guardianship order concerning CYC, a forensic patient receiving support from NDIS registered service providers in the community. The application sought to introduce chemical and environmental restraints, motion sensors, and camera monitoring, prompting a comprehensive review of the legal framework governing these practices. The court was tasked with determining the appropriate terms for the varied guardianship order, taking into account the interplay between the Guardianship Act 1987 (NSW), Mental Health Act 2007 (NSW), Mental Health (Forensic Provisions) Act 1990 (NSW), and the Surveillance Devices Act 2007 (NSW). A central issue was the interpretation of the term "authorisation process" as it appears in the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support Rules 2018 (Cth)).

The court meticulously examined the statutory provisions and the implications of using restrictive practices on CYC's rights and wellbeing. It was essential to balance the need for safety and treatment with the principles of autonomy and dignity. The court concluded that while the proposed measures were necessary to protect CYC and others, they must be implemented in accordance with a stringent authorisation process that includes regular reviews and the development of a behaviour support plan. This ensures that any use of restrictive practices is justified, proportionate, and subject to ongoing assessment.

Following its review, the court issued a varied guardianship order appointing the Public Guardian as the guardian of CYC. The order is limited in scope and duration, with specific functions assigned to the guardian, including decisions on accommodation, health care, and medical consent. Notably, the order restricts the use of restrictive practices, requiring them to be authorised only as a last resort and in accordance with a detailed behaviour support plan. The guardian is mandated to regularly consult CYC and consider their views before making significant decisions. The order also includes conditions to ensure the guardian's actions align with the statutory requirements and respect CYC's rights.

Orders

Orders of the court

The guardianship order for CYC made on 19 November 2020 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 one year from 26 March 2021.

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

FUNCTIONS:

4. The guardian has the following functions:

a) Accommodation

To decide where CYC may reside.

b) Health care

To decide what health care CYC may receive.

c) Medical/Dental consent

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

d) Services

To make decisions about services to be provided to CYC.

e) Restrictive Practices

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

(i) as a last resort to prevent CYC 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 CYC, 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:	CYC [2021] NSWCATGD 11
Hearing dates:	26 March 2021
Date of orders:	26 March 2021
Decision date:	26 March 2021
Jurisdiction:	Guardianship Division
Before:	A D Suthers, Principal Member Dr C Pratten, Senior Member (Professional) M A Oxenham, General Member (Community)
Decision:	The guardianship order for CYC made on 19 November 2020 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 one year from 26 March 2021. 3. This is a limited guardianship order giving the guardian(s) custody of CYC to the extent necessary to carry out the functions below. FUNCTIONS: 4. The guardian has the following functions: a) Accommodation To decide where CYC may reside. b) Health care To decide what health care CYC may receive. c) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where CYC is not capable of giving a valid consent. d) Services To make decisions about services to be provided to CYC. e) Restrictive Practices To give or withhold consent as to whether the following restrictive practices should be used to influence CYC’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 CYC 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 CYC’s behaviour: (i) as a last resort to prevent CYC 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 CYC, 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 to vary a guardianship order – consideration of what varied order should be made – use of restrictive practices – subject person a forensic patient but supported by NDIS registered service providers in the community – proposed use of chemical and environmental restraints – motion sensors and monitoring by camera – interplay between Guardianship Act 1987 (NSW), Mental Health Act 2007 (NSW), Mental Health (Forensic Provisions) Act 1990 (NSW) and Surveillance Devices Act 2007 (NSW) – consideration of meaning of “authorisation process” contained in National Disability Insurance Scheme (Restrictive Practices and Behaviour Support Rules 2018 (Cth)
Legislation Cited:	Guardianship Act 1987 (NSW), ss 4, 4(a)-(b), 14(2), 37, 45(3) Mental Health (Forensic Provisions) Act 1990 (NSW), ss 43, 68, 75 National Disability Insurance Scheme (Restrictive Practices and Behaviour Support Rules) 2018 (Cth), rr 6(e), 9, 9(2), 9(2)(a) Restrictive Practices Authorisation Policy 2019 (NSW), s 3.2(f)