GZK - [2020] NSWCATGD 5

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: GZK [2020] NSWCATGD 5
Hearing dates: 16 April 2020
Date of orders: 16 April 2020
Decision date: 23 April 2020
Jurisdiction: Guardianship Division
Before: M D Schyvens, Deputy President
J L Newman, General Member (Community)
Decision:
The guardianship order for GZK made on 17 June 2019 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 two years from 17 June 2019.

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

FUNCTIONS:

4. The guardian has the following functions:

a) Accommodation

To decide where GZK may reside.

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

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

ii) keep them at that place.

iii) return them to that place should they leave it.

c) Services

To make decisions about services to be provided to GZK.

d) COVID-19

a) To make decisions as to GZK’s accommodation, freedom of movement, and access to the community to protect and promote GZK’s health, welfare and interests specifically as a result of the COVID-19 pandemic; and

b) To ensure that GZK complies with any decision made by the guardian under this function, the guardian may authorise others, including members of NSW Police and the Ambulance Service of NSW, or their delegates, to do any of the following:

i) take GZK to a place approved by the guardian

ii) keep GZK at that place (which includes authorising the use of physical restraint, environmental restraint or seclusion if required)

iii) return GZK to that place should they leave it.

c) This function of guardianship can only be exercised by the guardian:

i) as a last resort;

ii) whilst a Public Health order is in force under s 7 of the Public Health Act 2010 (NSW) in relation to COVID-19 which places restrictions on when GZK may leave his place of residence (such as, but not limited to, Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (NSW) made on 30 March 2020); and

iii) to ensure that GZK complies with such Public Health order.

CONDITION:

5. The condition of this order is:

a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring GZK to an understanding of the issues and to obtain and consider their views before making significant decisions.
Catchwords: GUARDIANSHIP – requested review of guardianship order – whether guardianship order should be varied – COVID-19 – pandemic – Public Health Act – Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 – subject person unable to understand risks associated with COVID-19 – subject person not complying with Public Health Order under s 7 of the Public Health Act – service providers withdrawing their services due…

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 GZK

Details

AGLC: GZK [2020] NSWCATGD 5
Case: [2020] NSWCATGD 5
Decision Date: 23 April 2020

CaseChat Overview and Summary

The case involves GZK, whose guardianship order was reviewed due to the impact of the COVID-19 pandemic on their health and welfare. The review was sought by the Public Guardian, who argued that the existing guardianship order did not adequately address the specific risks posed by the pandemic. The court was tasked with determining whether the guardianship order should be varied to include new functions that specifically address the risks associated with COVID-19.

The primary legal issue before the court was whether the existing guardianship order should be amended to include functions that allow the guardian to make decisions regarding GZK's accommodation, freedom of movement, and access to the community with the aim of protecting and promoting their health, welfare, and interests during the pandemic. The court had to balance GZK's rights and freedoms with the necessity to protect them from the risks of COVID-19, including ensuring compliance with public health orders.

In considering the application, the court acknowledged the unprecedented nature of the COVID-19 pandemic and the need for a novel guardianship function to address the specific risks it posed. The court found that GZK's inability to understand the risks associated with COVID-19, coupled with their non-compliance with public health orders, justified the variation of the guardianship order. The court concluded that the new functions were necessary to protect GZK's health, welfare, and interests as a last resort, given the restrictions imposed by public health orders. The court varied the guardianship order to include these new functions, subject to certain conditions.

The court's final order varied the existing guardianship order to include the new functions that allow the guardian to make decisions regarding GZK's accommodation, freedom of movement, and access to the community to protect and promote their health, welfare, and interests during the pandemic. The order also included a condition that the guardian must take reasonable steps to bring GZK to an understanding of the issues and to obtain and consider their views before making significant decisions.

Orders

Orders of the court

The guardianship order for GZK made on 17 June 2019 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 two years from 17 June 2019.

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

FUNCTIONS:

4. The guardian has the following functions:

a) Accommodation

To decide where GZK may reside.

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

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

ii) keep them at that place.

iii) return them to that place should they leave it.

c) Services

To make decisions about services to be provided to GZK.

d) COVID-19

a) To make decisions as to GZK’s accommodation, freedom of movement, and access to the community to protect and promote GZK’s health, welfare and interests specifically as a result of the COVID-19 pandemic; and

b) To ensure that GZK complies with any decision made by the guardian under this function, the guardian may authorise others, including members of NSW Police and the Ambulance Service of NSW, or their delegates, to do any of the following:

i) take GZK to a place approved by the guardian

ii) keep GZK at that place (which includes authorising the use of physical restraint, environmental restraint or seclusion if required)

iii) return GZK to that place should they leave it.

c) This function of guardianship can only be exercised by the guardian:

i) as a last resort;

ii) whilst a Public Health order is in force under s 7 of the Public Health Act 2010 (NSW) in relation to COVID-19 which places restrictions on when GZK may leave his place of residence (such as, but not limited to, Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (NSW) made on 30 March 2020); and

iii) to ensure that GZK complies with such Public Health order.

CONDITION:

5. The condition of this order is:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring GZK to an understanding of the issues and to obtain and consider their views before making significant decisions.

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:	GZK [2020] NSWCATGD 5
Hearing dates:	16 April 2020
Date of orders:	16 April 2020
Decision date:	23 April 2020
Jurisdiction:	Guardianship Division
Before:	M D Schyvens, Deputy President J L Newman, General Member (Community)
Decision:	The guardianship order for GZK made on 17 June 2019 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 two years from 17 June 2019. 3. This is a limited guardianship order giving the guardian(s) custody of GZK to the extent necessary to carry out the functions below. FUNCTIONS: 4. The guardian has the following functions: a) Accommodation To decide where GZK may reside. b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to: i) take GZK to a place approved by the guardian. ii) keep them at that place. iii) return them to that place should they leave it. c) Services To make decisions about services to be provided to GZK. d) COVID-19 a) To make decisions as to GZK’s accommodation, freedom of movement, and access to the community to protect and promote GZK’s health, welfare and interests specifically as a result of the COVID-19 pandemic; and b) To ensure that GZK complies with any decision made by the guardian under this function, the guardian may authorise others, including members of NSW Police and the Ambulance Service of NSW, or their delegates, to do any of the following: i) take GZK to a place approved by the guardian ii) keep GZK at that place (which includes authorising the use of physical restraint, environmental restraint or seclusion if required) iii) return GZK to that place should they leave it. c) This function of guardianship can only be exercised by the guardian: i) as a last resort; ii) whilst a Public Health order is in force under s 7 of the Public Health Act 2010 (NSW) in relation to COVID-19 which places restrictions on when GZK may leave his place of residence (such as, but not limited to, Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (NSW) made on 30 March 2020); and iii) to ensure that GZK complies with such Public Health order. CONDITION: 5. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring GZK to an understanding of the issues and to obtain and consider their views before making significant decisions.
Catchwords:	GUARDIANSHIP – requested review of guardianship order – whether guardianship order should be varied – COVID-19 – pandemic – Public Health Act – Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 – subject person unable to understand risks associated with COVID-19 – subject person not complying with Public Health Order under s 7 of the Public Health Act – service providers withdrawing their services due…