NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: HZC [2019] NSWCATGD 8 Hearing dates: 1 April 2019 Date of orders: 01 April 2019 Decision date: 03 May 2019 Jurisdiction: Guardianship Division Before: Mr M D Schyvens, Deputy President
Dr M A Martin, Senior Member (Professional)
Ms J Newman, General Member (Community)Decision: The guardianship order for HZC made on 13 April 2018 has been reviewed. The order now is as follows:
1. TYC and TXC are appointed jointly as the guardians.
2. This is a continuing guardianship order for a period of three years from 1 April 2019.
3. This is a limited guardianship order giving the guardian(s) custody of HZC to the extent necessary to carry out the functions below.
FUNCTIONS: TYC and TXC
4. TYC and TXC have the following functions:
a) Advocacy
To advocate generally for HZC.
b) Accommodation
To decide where HZC may reside.
c) Health care
To decide what health care HZC may receive.
d) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where HZC is not capable of giving a valid consent.
e) Services
To make decisions about services to be provided to HZC.
f) Restrictive Practices
To give or withhold consent as to whether the following restrictive practices should be used to influence HZC’s behaviour :
1. Chemical restraint;
2. Environmental restraint;
3. Mechanical restraint; and
4. Seclusion.CONDITIONS:
5. The conditions of this order are:
a) Standard Condition
In exercising this role the guardians shall take all reasonable steps to bring HZC to an understanding of the issues and to obtain and consider her views before making significant decisions.
b) Restrictive Practices Conditions
The guardians may only consent to the use of the types of restrictive practices permitted under this order to influence HZC’s behaviour:
(i) as a last resort to prevent HZC harming herself 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 HZC, 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 –guardianship order renewed.
GUARDIANSHIP – Restrictive practices– definition and nature of restrictive practices – categorisation of various restrictive practices – relationship between restrictive practices and NDIS Rules – relevance of definitions in Commonwealth legislation to New South Wales – use of NDIS definitions of restrictive practices in NCAT guardianship proceedings.
GUARDIANSHIP – Restrictive practices – use of chemical restraint – relationship between use of chemical restraint and person responsible regime – inadequacy of person responsible regime to facilitate consent to use of chemical restraint – necessity for guardian with restrictive practices function to be appointed in order to make decisions about the use of chemical restraint – importance of consent to use of restrictive practices.Legislation…
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- AGLC
- HZC [2019] NSWCATGD 8
- Case
- [2019] NSWCATGD 8
- Decision Date
CaseChat Overview and Summary
The central legal issues were the definition and scope of restrictive practices within the context of the guardianship order, and the relevance of the National Disability Insurance Scheme (NDIS) Rules and definitions in New South Wales guardianship proceedings. The court had to determine whether the definitions and rules applicable under the NDIS could be used to interpret restrictive practices in the guardianship order, and whether the person responsible regime was sufficient to facilitate consent for the use of chemical restraint.
The tribunal concluded that the definitions of restrictive practices under the NDIS could be relevant and useful in New South Wales guardianship proceedings, and that the person responsible regime was inadequate for facilitating consent to the use of chemical restraint. The court emphasised the necessity of appointing a guardian with the specific function to make decisions about restrictive practices, including chemical restraint, to ensure that such practices are used as a last resort and in accordance with a behaviour support plan.
The final orders included the renewal of the guardianship order for a period of three years, with TYC and TXC appointed as joint guardians. The guardians were granted specific functions, including the power to consent to the use of restrictive practices under strict conditions, ensuring that such practices are employed only as a last resort and in accordance with a behaviour support plan. The guardians were also required to regularly review and consider HZC’s views in making significant decisions.
Orders
Orders of the court
The guardianship order for HZC made on 13 April 2018 has been reviewed. The order now is as follows:
1. TYC and TXC are appointed jointly as the guardians.
2. This is a continuing guardianship order for a period of three years from 1 April 2019.
3. This is a limited guardianship order giving the guardian(s) custody of HZC to the extent necessary to carry out the functions below.
FUNCTIONS: TYC and TXC
4. TYC and TXC have the following functions:
a) Advocacy
To advocate generally for HZC.
b) Accommodation
To decide where HZC may reside.
c) Health care
To decide what health care HZC may receive.
d) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where HZC is not capable of giving a valid consent.
e) Services
To make decisions about services to be provided to HZC.
f) Restrictive Practices
To give or withhold consent as to whether the following restrictive practices should be used to influence HZC’s behaviour :
1. Chemical restraint;
2. Environmental restraint;
3. Mechanical restraint; and
4. Seclusion.
CONDITIONS:
5. The conditions of this order are:
a) Standard Condition
In exercising this role the guardians shall take all reasonable steps to bring HZC to an understanding of the issues and to obtain and consider her views before making significant decisions.
b) Restrictive Practices Conditions
The guardians may only consent to the use of the types of restrictive practices permitted under this order to influence HZC’s behaviour:
(i) as a last resort to prevent HZC harming herself 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 HZC, 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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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