DZP - [2020] NSWCATGD 57

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DZP [2020] NSWCATGD 57
Hearing dates: 23 June 2020
Date of orders: 23 June 2020
Decision date: 23 June 2020
Jurisdiction: Guardianship Division
Before: J Moir, Senior Member (Legal)
Dr M A Martin, Senior Member (Professional)
Decision:
The guardianship order for DZP made on 12 September 2019 has been reviewed. The order now is as follows:
1. BAO of [Address removed for publication.] is appointed as the guardian.
2. This is a continuing guardianship order for a period of three years from 23 June 2020.
3. This is a limited guardianship order giving the guardian custody of DZP to the extent necessary to carry out the functions below.
FUNCTIONS:
4. The guardian has the following function:
a) Restrictive Practices
To give or withhold consent as to whether the following restrictive practices should be used to influence DZP’s behaviour:
1. Chemical restraint
2. Environmental restraint
3. Mechanical 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 DZP to an understanding of the issues and to obtain and consider his views before making significant decisions.
b) Restrictive Practices Condition
The guardian may only consent to the use of the types of restrictive practices permitted under this order to influence DZP’s behaviour:
(i) as a last resort to prevent DZP 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 DZP, and which is reviewed at least 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 – practicability of services being provided without the need for an order – restrictive practices – environmental restraint – chemical restraint – mechanical restraint – continuing need for a guardian to make decisions in relation to the use of restrictive practices – private guardian appointed – order made.

Legislation Cited:
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 33(1)(a)
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

Category: Principal judgment
Parties:
002: Review of Guardianship Order
DZP (the person)
BAO (appointed guardian)
NSW Public Guardian
File Number(s): NCAT 2019/00188291
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 OF GUARDIANSHIP ORDER

Background

DZP is a 23-year-old man who lives in supported accommodation in Northwest Sydney operated by a disability service provider. He is reported to have a severe intellectual disability, autism spectrum disorder and vision impairment caused by Leber’s congenital abnormality. He is supported…

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 DZP

Details

AGLC: DZP [2020] NSWCATGD 57
Case: [2020] NSWCATGD 57
Decision Date: 23 June 2020

CaseChat Overview and Summary

The case involves DZP, a person requiring guardianship due to their inability to manage their own affairs. The matter was heard in the relevant court where an end-of-term review of an existing guardianship order was conducted. The primary focus of the review was to determine the continued necessity of the guardianship order and the practicability of providing services without the guardianship order, particularly concerning the use of restrictive practices. The court was also tasked with deciding whether a private guardian should be appointed to manage DZP's affairs, considering the ongoing need for decisions regarding restrictive practices.

The court examined the nature and necessity of the restrictive practices that DZP may require, including chemical, environmental, and mechanical restraints. It was essential to assess whether these practices were needed as a last resort to prevent harm to DZP or others, and whether the use of such practices was supported by a behaviour support plan developed by a qualified behaviour support practitioner. The court had to consider the practicability of providing these services without the guardianship order and whether a private guardian, specifically BAO, was suitable for the role.

In its reasoning, the court found that a guardianship order was still necessary for DZP due to their specific needs and the complexity of managing restrictive practices. The court concluded that appointing BAO as the private guardian was appropriate, given their qualifications and understanding of DZP's requirements. The court also outlined specific conditions for the use of restrictive practices, mandating that they be employed only as a last resort and in accordance with a reviewed behaviour support plan. The court made an order appointing BAO as the guardian for DZP, with a limited guardianship role focused on the use of restrictive practices.

The court's final order specified the terms of the guardianship, including the appointment of BAO, the duration of the guardianship order, and the specific functions and conditions governing the use of restrictive practices. This order ensures that DZP receives the necessary care and support while maintaining their rights and dignity.

Orders

Orders of the court

The guardianship order for DZP made on 12 September 2019 has been reviewed. The order now is as follows:

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

2. This is a continuing guardianship order for a period of three years from 23 June 2020.

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

FUNCTIONS:

4. The guardian has the following function:

a) Restrictive Practices

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

1. Chemical restraint

2. Environmental restraint

3. Mechanical 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 DZP to an understanding of the issues and to obtain and consider his views before making significant decisions.

b) Restrictive Practices Condition

The guardian may only consent to the use of the types of restrictive practices permitted under this order to influence DZP’s behaviour:

(i) as a last resort to prevent DZP 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 DZP, and which is reviewed at least 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:	DZP [2020] NSWCATGD 57
Hearing dates:	23 June 2020
Date of orders:	23 June 2020
Decision date:	23 June 2020
Jurisdiction:	Guardianship Division
Before:	J Moir, Senior Member (Legal) Dr M A Martin, Senior Member (Professional)
Decision:	The guardianship order for DZP made on 12 September 2019 has been reviewed. The order now is as follows: 1. BAO of [Address removed for publication.] is appointed as the guardian. 2. This is a continuing guardianship order for a period of three years from 23 June 2020. 3. This is a limited guardianship order giving the guardian custody of DZP to the extent necessary to carry out the functions below. FUNCTIONS: 4. The guardian has the following function: a) Restrictive Practices To give or withhold consent as to whether the following restrictive practices should be used to influence DZP’s behaviour: 1. Chemical restraint 2. Environmental restraint 3. Mechanical 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 DZP to an understanding of the issues and to obtain and consider his views before making significant decisions. b) Restrictive Practices Condition The guardian may only consent to the use of the types of restrictive practices permitted under this order to influence DZP’s behaviour: (i) as a last resort to prevent DZP 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 DZP, and which is reviewed at least 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 – practicability of services being provided without the need for an order – restrictive practices – environmental restraint – chemical restraint – mechanical restraint – continuing need for a guardian to make decisions in relation to the use of restrictive practices – private guardian appointed – order made.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 33(1)(a) 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
Category:	Principal judgment
Parties:	002: Review of Guardianship Order DZP (the person) BAO (appointed guardian) NSW Public Guardian
File Number(s):	NCAT 2019/00188291
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.