IKJ - [2021] NSWCATGD 27

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: IKJ [2021] NSWCATGD 27
Hearing dates: 10 August 2021
Date of orders: 10 August 2021
Decision date: 10 August 2021
Jurisdiction: Guardianship Division
Before: K A McMahon, Senior Member (Legal)
Dr I L Beale, Senior Member (Professional)
Dr M A Smith OAM, General Member (Community)
Decision:
1. A guardianship order is made for IKJ.
2. UAS [Address removed for publication.] is appointed as the guardian.
3. This is a continuing guardianship order for a period of 12 months from 10 August 2021.
4. This is a limited guardianship order giving the guardian(s) custody of IKJ to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Accommodation
To decide where IKJ may reside.
b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:
i) take IKJ to a place approved by the guardian;
ii) keep him at that place;
iii) return him to that place should he leave it.
c) Restrictive Practices
To give or withhold consent as to whether the following restrictive practices should be used to influence IKJ’s behaviour:
1. Chemical restraint
2. Environmental 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 IKJ to an understanding of the issues and to obtain and consider his views before making significant decision.
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 IKJ’s behaviour:
(i) as a last resort to prevent IKJ harming himself or others; and
(ii) in accordance with a care and services that incorporates:
a) the behaviours that are relevant to the need for the restraint;
b) reasons why the restraint is necessary;
c) the alternatives to restraint that have been used (if any); and
d) provision for review, including by an appropriate medical specialist/s

Catchwords:
GUARDIANSHIP – application for a guardianship order – subject person has dementia – subject person an in-patient in a public hospital – need to move into residential aged care – subject person at risk of absconding – need for others to bring accommodation decisions into effect – use of restraint in aged care – Quality of Care Principles 2014 (Cth) – Risperidone to manage behaviour – chemical restraint – environmental restraint – conditions on restrictive practices function – suitability of proposed guardian – private guardian appointed – order made.

Legislation Cited:
Aged Care Act 1997 (Cth)
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 4(a), 14, 14(2), 15(3), 17(1)
Quality of Care Principles 2014 (Cth)

Cases Cited:
C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep)
HZC [2019] NSWCATGD 8
IF v IG [2004] NSWADTAP 3
JFL [2020] NSWCATGD 32
P v D1 & Ors [2011] NSWSC 257
Re B [2011]…

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 IKJ

Details

AGLC: IKJ [2021] NSWCATGD 27
Case: [2021] NSWCATGD 27
Decision Date: 10 August 2021

CaseChat Overview and Summary

The case involved an application for a guardianship order for a person identified as IKJ, who was suffering from dementia and was an inpatient in a public hospital. The application was made in the context of IKJ needing to transition into residential aged care. Concerns were raised about IKJ's potential risk of absconding and the necessity for others to enforce accommodation decisions. The application also considered the use of restraint in aged care settings, in line with the Quality of Care Principles 2014 (Cth), and the administration of Risperidone to manage behaviour, which could be classified as chemical restraint. The court was required to determine the suitability of a proposed private guardian and the appropriateness of the specified functions and conditions of the guardianship order.

The court had to decide several legal issues, including whether a guardianship order was necessary for IKJ due to his condition and the risks associated with his transition to residential aged care. Additionally, the court needed to evaluate the appropriateness of the proposed guardian, assess the necessity and conditions of the restrictive practices outlined in the application, and determine the specific functions the guardian would undertake. This included ensuring that the guardian would take all reasonable steps to involve IKJ in decision-making processes to the extent possible, and that the use of restrictive practices would be a last resort, with appropriate considerations and reviews in place.

In making its decision, the court concluded that a guardianship order was necessary for IKJ, given his dementia and the associated risks. The court found that the proposed private guardian was suitable for the role. The court approved the specified functions of the guardianship order, including the guardian's authority to decide IKJ's residence and to authorise others to enforce accommodation decisions. It also endorsed the conditions for the use of restrictive practices, ensuring they would only be used as a last resort and in accordance with a care plan that included relevant behaviours, reasons for necessity, alternatives, and provisions for review. The court ultimately made a continuing guardianship order for a period of twelve months, appointing the private guardian with the outlined functions and conditions.

The court's final orders included making a guardianship order for IKJ, appointing the private guardian, and detailing the functions and conditions of the guardianship. The order specified that the guardian would have custody to decide IKJ's residence and could authorise others to enforce accommodation decisions. The guardian was also given the authority to consent to the use of chemical and environmental restraints, subject to specific conditions. These conditions required the guardian to consider IKJ's views, use restraints as a last resort, and ensure a comprehensive care plan was in place. The order was made for a period of twelve months from 10 August 2021.

Orders

Orders of the court

1. A guardianship order is made for IKJ.

2. UAS [Address removed for publication.] is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 10 August 2021.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where IKJ may reside.

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

i) take IKJ to a place approved by the guardian;

ii) keep him at that place;

iii) return him to that place should he leave it.

c) Restrictive Practices

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

1. Chemical restraint

2. Environmental 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 IKJ to an understanding of the issues and to obtain and consider his views before making significant decision.

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 IKJ’s behaviour:

(i) as a last resort to prevent IKJ harming himself or others; and

(ii) in accordance with a care and services that incorporates:

a) the behaviours that are relevant to the need for the restraint;

b) reasons why the restraint is necessary;

c) the alternatives to restraint that have been used (if any); and

d) provision for review, including by an appropriate medical specialist/s

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:	IKJ [2021] NSWCATGD 27
Hearing dates:	10 August 2021
Date of orders:	10 August 2021
Decision date:	10 August 2021
Jurisdiction:	Guardianship Division
Before:	K A McMahon, Senior Member (Legal) Dr I L Beale, Senior Member (Professional) Dr M A Smith OAM, General Member (Community)
Decision:	1. A guardianship order is made for IKJ. 2. UAS [Address removed for publication.] is appointed as the guardian. 3. This is a continuing guardianship order for a period of 12 months from 10 August 2021. 4. This is a limited guardianship order giving the guardian(s) custody of IKJ to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Accommodation To decide where IKJ may reside. b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to: i) take IKJ to a place approved by the guardian; ii) keep him at that place; iii) return him to that place should he leave it. c) Restrictive Practices To give or withhold consent as to whether the following restrictive practices should be used to influence IKJ’s behaviour: 1. Chemical restraint 2. Environmental 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 IKJ to an understanding of the issues and to obtain and consider his views before making significant decision. 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 IKJ’s behaviour: (i) as a last resort to prevent IKJ harming himself or others; and (ii) in accordance with a care and services that incorporates: a) the behaviours that are relevant to the need for the restraint; b) reasons why the restraint is necessary; c) the alternatives to restraint that have been used (if any); and d) provision for review, including by an appropriate medical specialist/s
Catchwords:	GUARDIANSHIP – application for a guardianship order – subject person has dementia – subject person an in-patient in a public hospital – need to move into residential aged care – subject person at risk of absconding – need for others to bring accommodation decisions into effect – use of restraint in aged care – Quality of Care Principles 2014 (Cth) – Risperidone to manage behaviour – chemical restraint – environmental restraint – conditions on restrictive practices function – suitability of proposed guardian – private guardian appointed – order made.
Legislation Cited:	Aged Care Act 1997 (Cth) Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 4(a), 14, 14(2), 15(3), 17(1) Quality of Care Principles 2014 (Cth)
Cases Cited:	C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) HZC [2019] NSWCATGD 8 IF v IG [2004] NSWADTAP 3 JFL [2020] NSWCATGD 32 P v D1 & Ors [2011] NSWSC 257 Re B [2011]…