DZM - [2020] NSWCATGD 66

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DZM [2020] NSWCATGD 66
Hearing dates: 21 July 2020
Date of orders: 21 July 2020
Decision date: 21 July 2020
Jurisdiction: Guardianship Division
Before: J Moir, Senior Member (Legal)
L Porter, General Member (Community)
Decision:
The guardianship order for DZM made on 2 July 2019 has been reviewed. The order now is as follows:
1. TAM of [Address removed for publication.] is appointed as the guardian.
2. BYM of [Address removed for publication.] is appointed as the alternative guardian.
3. This is a continuing guardianship order for a period of two years from 21 July 2020.
4. This is a limited guardianship order giving the guardian custody of DZM to the extent necessary to carry out the functions below.
FUNCTIONS: TAM
5. TAM has the following function:
a) Restrictive Practices
To give or withhold consent as to whether the following restrictive practices should be used to influence DZM’s behaviour:
1. Chemical restraint
2. Environmental restraint
3. Mechanical restraint
4. Seclusion
CONDITIONS:
6. The conditions of this order are:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring DZM 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 DZM’s behaviour:
(i) as a last resort to prevent DZM harming himself 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 DZM, 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 – end of term review of guardianship order – restrictive practices function – resident in supported independent living – physical aggression and absconding – use of locked exits, restricted access to staff, vehicle barriers and medication to control behaviour – whether restricted access to staff is a form of seclusion – chemical restraint – environmental restraint – mechanical restraint – order excludes areas where decisions can be made without the order – private guardian and alternative guardian appointed

Legislation Cited:
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2)
National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth), r 6

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

Texts Cited:
Nil

Category: Principal judgment
Parties:
002: Review of Guardianship Order
DZM (the person)
TAM (appointed guardian)
BYM (appointed guardian)
Public Guardian
Representation: Nil

File Number(s): NCAT 2019/00142012
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…

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 DZM

Details

AGLC: DZM [2020] NSWCATGD 66
Case: [2020] NSWCATGD 66
Decision Date: 21 July 2020

CaseChat Overview and Summary

The case involves DZM, a resident in supported independent living, and their guardian, TAM. The dispute was an end-of-term review of the guardianship order that was initially made on 2 July 2019. The court was tasked with reviewing the restrictive practices that had been employed to manage DZM's physical aggression and tendency to abscond, including the use of locked exits, restricted access to staff, vehicle barriers, and medication. The court also had to consider whether restricted access to staff constitutes a form of seclusion, and the use of chemical, environmental, and mechanical restraints.

The court was required to determine if the current guardianship order adequately protected DZM's rights while also addressing their behavioural needs. This involved examining the necessity and proportionality of the restrictive practices in place, and whether they were being used in accordance with a behaviour support plan developed by a behaviour support practitioner. The court had to consider the balance between DZM's right to autonomy and the need for safety and security, as well as the appropriateness of the guardianship order in light of DZM's current circumstances.

The court found that the guardianship order should be continued for a period of two years from 21 July 2020, with TAM appointed as the guardian and BYM as the alternative guardian. The order is limited, granting the guardian custody of DZM to the extent necessary to carry out specific functions, including the use of restrictive practices. The court outlined conditions for the use of these practices, such as requiring them to be a last resort and in accordance with a behaviour support plan. The court emphasised the importance of understanding DZM's issues and considering their views before making significant decisions.

The court's final orders include the appointment of TAM as the guardian and BYM as the alternative guardian, a two-year duration for the guardianship order, and specific functions for the guardian, including the use of restrictive practices under certain conditions. The court also included conditions for the guardian to ensure DZM's understanding and consideration of issues before making significant decisions.

Orders

Orders of the court

The guardianship order for DZM made on 2 July 2019 has been reviewed. The order now is as follows:

1. TAM of [Address removed for publication.] is appointed as the guardian.

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

3. This is a continuing guardianship order for a period of two years from 21 July 2020.

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

FUNCTIONS: TAM

5. TAM has the following function:

a) Restrictive Practices

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

1. Chemical restraint

2. Environmental restraint

3. Mechanical restraint

4. Seclusion

CONDITIONS:

6. The conditions of this order are:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring DZM 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 DZM’s behaviour:

(i) as a last resort to prevent DZM harming himself 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 DZM, 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:	DZM [2020] NSWCATGD 66
Hearing dates:	21 July 2020
Date of orders:	21 July 2020
Decision date:	21 July 2020
Jurisdiction:	Guardianship Division
Before:	J Moir, Senior Member (Legal) L Porter, General Member (Community)
Decision:	The guardianship order for DZM made on 2 July 2019 has been reviewed. The order now is as follows: 1. TAM of [Address removed for publication.] is appointed as the guardian. 2. BYM of [Address removed for publication.] is appointed as the alternative guardian. 3. This is a continuing guardianship order for a period of two years from 21 July 2020. 4. This is a limited guardianship order giving the guardian custody of DZM to the extent necessary to carry out the functions below. FUNCTIONS: TAM 5. TAM has the following function: a) Restrictive Practices To give or withhold consent as to whether the following restrictive practices should be used to influence DZM’s behaviour: 1. Chemical restraint 2. Environmental restraint 3. Mechanical restraint 4. Seclusion CONDITIONS: 6. The conditions of this order are: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring DZM 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 DZM’s behaviour: (i) as a last resort to prevent DZM harming himself 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 DZM, 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 – end of term review of guardianship order – restrictive practices function – resident in supported independent living – physical aggression and absconding – use of locked exits, restricted access to staff, vehicle barriers and medication to control behaviour – whether restricted access to staff is a form of seclusion – chemical restraint – environmental restraint – mechanical restraint – order excludes areas where decisions can be made without the order – private guardian and alternative guardian appointed
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2) National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth), r 6
Cases Cited:	HZC [2019] NSWCATGD 8 IF v IG [2004] NSWADTAP 3
Texts Cited:	Nil
Category:	Principal judgment
Parties:	002: Review of Guardianship Order DZM (the person) TAM (appointed guardian) BYM (appointed guardian) Public Guardian
Representation:	Nil
File Number(s):	NCAT 2019/00142012
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.