HFD - [2020] NSWCATGD 8

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: HFD [2020] NSWCATGD 8
Hearing dates: 16 January 2020
Date of orders: 16 January 2020
Decision date: 16 January 2020
Jurisdiction: Guardianship Division
Before: A D Suthers, Principal Member
F Duffy, Senior Member (Professional)
K Clark, General Member (Community)
Decision:
1. A guardianship order is made for HFD.

2. NZD, of [Address removed for publication.] is appointed as the guardian.

3. This is a continuing guardianship order for a period of two years from 16 January 2020.

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

FUNCTION:

5. 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 HFD’s behaviour:

1. Environmental restraint
2. Mechanical restraint

CONDITIONS:

6. The conditions of this order are:

a) Standard Condition

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

(i) as a last resort to prevent HFD 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 HFD, 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 – functions of guardian – definition and nature of restrictive practices – chemical restraint – environmental restraint – whether use of seat belt buckle guard a restrictive practice – whether restraint used for therapeutic or non-behavioural purposes – private guardian appointed.
Legislation Cited: Guardianship Act 1987 (NSW), ss 3(1)–(2), 3F, 4, 14(1)–(2), 17
Road Rules 2014 (NSW), s 265
Cases Cited: HZC [2019] NSWCATGD 8
Texts Cited: Nil
Category: Principal judgment
Parties:
001: Guardianship Application
HFD (the person)
NZD (applicant)
NSW Public Guardian
Representation: Nil

File Number(s): NCAT 2019/00355689
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 (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

Decision Summary

We appointed a guardian for HFD, in the terms set out above, to make decisions about restrictive practices used in the services he receives.
We decided that those restrictive practices included:

Environmental Restraint, in restricting HFD’s access to parts of his home and by the fitting of taps to his bathroom which he cannot access; and

Mechanical Restraint, in the use of a seat belt buckle guard.

Background

HFD is a 43-year-old man,…

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 HFD

Details

AGLC: HFD [2020] NSWCATGD 8
Case: [2020] NSWCATGD 8
Decision Date: 16 January 2020

CaseChat Overview and Summary

In the matter of HFD, the Supreme Court of Queensland was tasked with determining whether a guardianship order should be granted and who should be appointed as the guardian. The applicant, who was not named for the purposes of publication, sought a guardianship order for HFD due to concerns about HFD's ability to manage their affairs and make decisions that would protect their health and wellbeing. The court was required to consider whether the use of certain restrictive practices, such as environmental and mechanical restraints, would be necessary to protect HFD or others from harm, and if so, who should be responsible for making those decisions.

The court considered the definition and nature of restrictive practices, and whether the use of a seat belt buckle guard constituted a restrictive practice. The court also considered whether the restraints were being used for therapeutic or non-behavioural purposes. The court found that the use of restrictive practices was necessary to prevent HFD from harming themselves or others, and that the appointment of a private guardian was appropriate in this case. The court appointed NZD as the guardian, subject to certain conditions, including that the guardian must take reasonable steps to understand HFD's views before making significant decisions and that the use of restrictive practices must be in accordance with a behaviour support plan developed by a behaviour support practitioner.

The court made a guardianship order for HFD, appointing NZD as the guardian for a period of two years. The order granted the guardian limited functions, including the authority to give or withhold consent to the use of restrictive practices to influence HFD's behaviour. The court imposed conditions on the use of restrictive practices, requiring that they be used as a last resort to prevent harm and in accordance with a behaviour support plan developed by a behaviour support practitioner. The court also required that the behaviour support plan be reviewed regularly and amended if necessary.

The final orders of the court included the appointment of NZD as the guardian of HFD, subject to the conditions outlined in the order. The court granted the guardian the authority to make decisions about the use of restrictive practices to influence HFD's behaviour, subject to the conditions imposed by the court. The court's decision provides clarity and guidance for those responsible for making decisions about the care and treatment of HFD, and ensures that those decisions are made in a manner that is consistent with HFD's rights and best interests.

Orders

Orders of the court

1. A guardianship order is made for HFD.

2. NZD, of [Address removed for publication.] is appointed as the guardian.

3. This is a continuing guardianship order for a period of two years from 16 January 2020.

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

FUNCTION:

5. 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 HFD’s behaviour:

1. Environmental restraint

2. Mechanical restraint

CONDITIONS:

6. The conditions of this order are:

a) Standard Condition

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

(i) as a last resort to prevent HFD 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 HFD, 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:	HFD [2020] NSWCATGD 8
Hearing dates:	16 January 2020
Date of orders:	16 January 2020
Decision date:	16 January 2020
Jurisdiction:	Guardianship Division
Before:	A D Suthers, Principal Member F Duffy, Senior Member (Professional) K Clark, General Member (Community)
Decision:	1. A guardianship order is made for HFD. 2. NZD, of [Address removed for publication.] is appointed as the guardian. 3. This is a continuing guardianship order for a period of two years from 16 January 2020. 4. This is a limited guardianship order giving the guardian(s) custody of HFD to the extent necessary to carry out the functions below. FUNCTION: 5. 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 HFD’s behaviour: 1. Environmental restraint 2. Mechanical restraint CONDITIONS: 6. The conditions of this order are: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring HFD 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 HFD’s behaviour: (i) as a last resort to prevent HFD 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 HFD, 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 – functions of guardian – definition and nature of restrictive practices – chemical restraint – environmental restraint – whether use of seat belt buckle guard a restrictive practice – whether restraint used for therapeutic or non-behavioural purposes – private guardian appointed.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)–(2), 3F, 4, 14(1)–(2), 17 Road Rules 2014 (NSW), s 265
Cases Cited:	HZC [2019] NSWCATGD 8
Texts Cited:	Nil
Category:	Principal judgment
Parties:	001: Guardianship Application HFD (the person) NZD (applicant) NSW Public Guardian
Representation:	Nil
File Number(s):	NCAT 2019/00355689
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 (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).