DZD - [2020] NSWCATGD 58

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DZD [2020] NSWCATGD 58
Hearing dates: 7 August 2020
Date of orders: 7 August 2020
Decision date: 07 August 2020
Jurisdiction: Guardianship Division
Before: B L Adamovich, Senior Member (Legal)
Dr M A Martin, Senior Member (Professional)
Decision:
Request for consent to medical treatment:
The application is dismissed because CBE has withdrawn the application and the Tribunal consents.
Guardianship order:
1. A guardianship order is made for DZD.
2. The Public Guardian is appointed as the guardian.
3. This is a continuing guardianship order for a period of four months from 7 August 2020.
4. This is a limited guardianship order giving the guardian(s) custody of DZD to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Accommodation
To decide where DZD may reside.
b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:
i) take DZD to a place approved by the guardian.
ii) keep her at that place.
iii) return her to that place should she leave it.
c) Health care
To decide what health care DZD may receive.
d) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where DZD is not capable of giving a valid consent.
e) Services
To make decisions about services to be provided to DZD.
f) Restrictive Practices
To give or withhold consent as to whether the following restrictive practices should be used to influence DZD’s behaviour:
1. Chemical restraint
2. Physical restraint
AUTHORITIES:
6. The guardian has the following authority:
a) Authority to override objections to medical treatment
i) The guardian may override the objection of DZD to major or minor medical treatment.
CONDITIONS:
7. The conditions of this order are:
a) Standard Condition
In exercising this role, the guardian shall take all reasonable steps to bring DZD to an understanding of the issues and to obtain and consider her 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 DZD’s behaviour:
(i) as a last resort to prevent DZD harming herself 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 DZD, 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 – decision to treat application for consent to medical and dental treatment as an application for a guardianship order – traumatic brain injury as a result of high-speed motor vehicle accident – Aboriginal subject person with no contact with family or friends - active refusal of medical treatment – need for decisions to be made about accommodation,…

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 DZD

Details

AGLC: DZD [2020] NSWCATGD 58
Case: [2020] NSWCATGD 58
Decision Date: 07 August 2020

CaseChat Overview and Summary

The matter before the court was an application by CBE for a guardianship order for DZD, who had suffered a traumatic brain injury in a motor vehicle accident. DZD, an Aboriginal woman, had no contact with family or friends and actively refused medical treatment. The application was initially for consent to medical treatment but was treated as an application for a guardianship order. The legal issues before the court were whether DZD was in need of a guardianship order and if so, what the scope and conditions of the order should be.

The court found that DZD was in need of a guardianship order due to her inability to make decisions about her accommodation, health care, and consent to medical and dental treatment. The court also noted the need for decisions regarding the use of restrictive practices, such as chemical restraint. The Public Guardian was appointed as the guardian and was granted specific functions and authority, including the ability to override DZD's objections to medical treatment. Conditions were also imposed on the guardian to ensure that DZD's views were considered and that restrictive practices were used as a last resort and in accordance with a behaviour support plan.

The court made a guardianship order appointing the Public Guardian as DZD's guardian. The order granted the guardian functions related to accommodation, health care, medical and dental consent, services, and restrictive practices. The guardian was also granted authority to override DZD's objections to medical treatment. The order included conditions that the guardian take reasonable steps to understand DZD's views before making significant decisions and that restrictive practices be used as a last resort and in accordance with a behaviour support plan.

The court dismissed the request for consent to medical treatment as CBE had withdrawn the application and the Tribunal had consented. The guardianship order was made for a period of four months from 7 August 2020 and was a limited guardianship order giving the guardian custody of DZD to the extent necessary to carry out the functions outlined in the order.

Orders

Orders of the court

Request for consent to medical treatment:

The application is dismissed because CBE has withdrawn the application and the Tribunal consents.

Guardianship order:

1. A guardianship order is made for DZD.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of four months from 7 August 2020.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where DZD may reside.

b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:

i) take DZD to a place approved by the guardian.

ii) keep her at that place.

iii) return her to that place should she leave it.

c) Health care

To decide what health care DZD may receive.

d) Medical/Dental consent

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

e) Services

To make decisions about services to be provided to DZD.

f) Restrictive Practices

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

1. Chemical restraint

2. Physical restraint

AUTHORITIES:

6. The guardian has the following authority:

a) Authority to override objections to medical treatment

i) The guardian may override the objection of DZD to major or minor medical treatment.

CONDITIONS:

7. The conditions of this order are:

a) Standard Condition

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

(i) as a last resort to prevent DZD harming herself 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 DZD, 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

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Medium Neutral Citation:	DZD [2020] NSWCATGD 58
Hearing dates:	7 August 2020
Date of orders:	7 August 2020
Decision date:	07 August 2020
Jurisdiction:	Guardianship Division
Before:	B L Adamovich, Senior Member (Legal) Dr M A Martin, Senior Member (Professional)
Decision:	Request for consent to medical treatment: The application is dismissed because CBE has withdrawn the application and the Tribunal consents. Guardianship order: 1. A guardianship order is made for DZD. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of four months from 7 August 2020. 4. This is a limited guardianship order giving the guardian(s) custody of DZD to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Accommodation To decide where DZD may reside. b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to: i) take DZD to a place approved by the guardian. ii) keep her at that place. iii) return her to that place should she leave it. c) Health care To decide what health care DZD may receive. d) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where DZD is not capable of giving a valid consent. e) Services To make decisions about services to be provided to DZD. f) Restrictive Practices To give or withhold consent as to whether the following restrictive practices should be used to influence DZD’s behaviour: 1. Chemical restraint 2. Physical restraint AUTHORITIES: 6. The guardian has the following authority: a) Authority to override objections to medical treatment i) The guardian may override the objection of DZD to major or minor medical treatment. CONDITIONS: 7. The conditions of this order are: a) Standard Condition In exercising this role, the guardian shall take all reasonable steps to bring DZD to an understanding of the issues and to obtain and consider her 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 DZD’s behaviour: (i) as a last resort to prevent DZD harming herself 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 DZD, 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 – decision to treat application for consent to medical and dental treatment as an application for a guardianship order – traumatic brain injury as a result of high-speed motor vehicle accident – Aboriginal subject person with no contact with family or friends - active refusal of medical treatment – need for decisions to be made about accommodation,…