GZC - [2021] NSWCATGD 25

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: GZC [2021] NSWCATGD 25
Hearing dates: 13 July 2021
Date of orders: 13 July 2021
Decision date: 13 July 2021
Jurisdiction: Guardianship Division
Before: J Moir, Senior Member (Legal)
Dr M A Martin, Senior Member (Professional)
Decision:
The guardianship order for GZC made on 11 June 2019 has been reviewed. The order now is as follows:
1. HKC of [Address removed for publication.] is appointed as the guardian.
2. This is a continuing guardianship order for a period of one month from 13 July 2021.
3. This is a limited guardianship order giving the guardian custody of GZC to the extent necessary to carry out the functions below.
FUNCTIONS:
4. The guardian has the following functions:
a) Health care
To decide what health care GZC may receive.
b) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where GZC is not capable of giving a valid consent.
c) Behaviour Support
To make decisions about the use of behaviour support plans and strategies for GZC.
d) Restrictive Practices
To give or withhold consent as to whether the following restrictive practices should be used to influence GZC’s behaviour:
1. Chemical restraint
2. 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 GZC to an understanding of the issues and to obtain and consider their 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 GZC’s behaviour:
(i) as a last resort to prevent GZC 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 GZC, 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 – subject person living in supported accommodation – subject person an NDIS participant – restrictive practices function – chemical restraint – consent to medical treatment – COVID-19 vaccination – suitability of guardian – whether guardian is able to make a balanced decision – private guardian reappointed for one month only – awaiting behaviour support plan – order renewed.

Legislation Cited:
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 32, 40

Cases Cited:
IF v IG [2004] NSWADTAP 3
P v D1 & Ors [2011] NSWSC 257
W v G [2003] NSWSC 1170

Texts Cited:
Nil

Category: Principal judgment
Parties:
010: Review of Guardianship Order
GZC (the person)
HKC (appointed guardian)
Public Guardian
Representation: Nil

File Number(s): NCAT 1992/00064834
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…

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 GZC

Details

AGLC: GZC [2021] NSWCATGD 25
Case: [2021] NSWCATGD 25
Decision Date: 13 July 2021

CaseChat Overview and Summary

The case involved a review of a guardianship order for a person named GZC. GZC is an individual who lives in supported accommodation and participates in the National Disability Insurance Scheme (NDIS). The order was reviewed due to the need to address various issues related to GZC’s care, including health care decisions, consent for medical treatment, and the use of restrictive practices such as chemical restraint. The court had to determine the suitability of the guardian, specifically whether the current guardian, HKC, was capable of making balanced decisions in GZC’s best interests.

The primary legal issues before the court were the suitability of the current guardian and the need for specific functions and conditions to be included in the guardianship order to ensure that GZC’s rights and needs are adequately protected. The court had to consider whether HKC could make balanced decisions in GZC’s best interests, particularly in relation to medical treatment and the use of restrictive practices. Additionally, the court had to decide on the specific functions the guardian should have and the conditions under which these functions could be exercised.

The court found that HKC was capable of making balanced decisions in GZC’s best interests and was therefore suitable to continue as the guardian. However, due to the temporary nature of the review and the need for further assessment and planning, HKC was reappointed for a limited period of one month. The court outlined specific functions and conditions for the guardian, including the ability to make health care decisions, provide consent for medical treatment, and use restrictive practices such as chemical restraint under strict conditions. The court also stipulated that the guardian must take reasonable steps to involve GZC in decision-making processes and ensure that any use of restrictive practices is in accordance with a behaviour support plan developed by a qualified practitioner.

The court's final orders included the reappointment of HKC as the guardian for a period of one month, with specific functions and conditions to protect GZC's rights and ensure appropriate care. These functions included health care decisions, consent for medical treatment, and the use of restrictive practices under strict guidelines. The court emphasized the importance of involving GZC in the decision-making process and ensuring that any restrictive practices are used in accordance with a behaviour support plan.

Orders

Orders of the court

The guardianship order for GZC made on 11 June 2019 has been reviewed. The order now is as follows:

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

2. This is a continuing guardianship order for a period of one month from 13 July 2021.

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

FUNCTIONS:

4. The guardian has the following functions:

a) Health care

To decide what health care GZC may receive.

b) Medical/Dental consent

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

c) Behaviour Support

To make decisions about the use of behaviour support plans and strategies for GZC.

d) Restrictive Practices

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

1. Chemical restraint

2. 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 GZC to an understanding of the issues and to obtain and consider their 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 GZC’s behaviour:

(i) as a last resort to prevent GZC 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 GZC, 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:	GZC [2021] NSWCATGD 25
Hearing dates:	13 July 2021
Date of orders:	13 July 2021
Decision date:	13 July 2021
Jurisdiction:	Guardianship Division
Before:	J Moir, Senior Member (Legal) Dr M A Martin, Senior Member (Professional)
Decision:	The guardianship order for GZC made on 11 June 2019 has been reviewed. The order now is as follows: 1. HKC of [Address removed for publication.] is appointed as the guardian. 2. This is a continuing guardianship order for a period of one month from 13 July 2021. 3. This is a limited guardianship order giving the guardian custody of GZC to the extent necessary to carry out the functions below. FUNCTIONS: 4. The guardian has the following functions: a) Health care To decide what health care GZC may receive. b) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where GZC is not capable of giving a valid consent. c) Behaviour Support To make decisions about the use of behaviour support plans and strategies for GZC. d) Restrictive Practices To give or withhold consent as to whether the following restrictive practices should be used to influence GZC’s behaviour: 1. Chemical restraint 2. 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 GZC to an understanding of the issues and to obtain and consider their 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 GZC’s behaviour: (i) as a last resort to prevent GZC 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 GZC, 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 – subject person living in supported accommodation – subject person an NDIS participant – restrictive practices function – chemical restraint – consent to medical treatment – COVID-19 vaccination – suitability of guardian – whether guardian is able to make a balanced decision – private guardian reappointed for one month only – awaiting behaviour support plan – order renewed.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 32, 40
Cases Cited:	IF v IG [2004] NSWADTAP 3 P v D1 & Ors [2011] NSWSC 257 W v G [2003] NSWSC 1170
Texts Cited:	Nil
Category:	Principal judgment
Parties:	010: Review of Guardianship Order GZC (the person) HKC (appointed guardian) Public Guardian
Representation:	Nil
File Number(s):	NCAT 1992/00064834
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…