James (a pseudonym) - [2025] NSWCATGD 1

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: James (a pseudonym) [2025] NSWCATGD 1
Hearing dates: 12 March 2025
Date of orders: 12 March 2025
Decision date: 12 March 2025
Jurisdiction: Guardianship Division
Before: EM Connor, Senior Member (Legal)
Dr B McPhee, Senior Member (Professional)
M Watson, General Member (Community)
Decision:
The guardianship order for James made on 10 October 2024 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 12 March 2025.
3. This is a limited guardianship order giving the guardian(s) custody of James to the extent necessary to carry out the functions below.
FUNCTIONS:
4. The guardian has the following functions:
a) Accommodation
To decide where James may reside.
b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:
i) take James to a place approved by the guardian.
ii) keep him at that place.
iii) return him to that place should he leave it.
c) Health care
To decide what health care James may receive.
d) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where James is not capable of giving a valid consent.
e) Services
To make decisions about services to be provided to James.
f) Restrictive Practices
To give or withhold consent to restrictive practices used to influence James’s behaviour.
g) Other Function
Surveillance: To decide whether video or other monitoring equipment should be used at James’ residence for his safety and welfare if he is refusing to allow support workers to remain on the premises.
Legal function re forensic sample request: To access legal advice and respond on James’ behalf regarding the request from NSW Police for him to provide a DNA sample.
AUTHORITY:
5. The guardian has the following authority:
a) Authority to override objections to medical treatment
i) The guardian may override the objection of James to major or minor medical treatment.
CONDITIONS:
6. The conditions of this order are:
a) Standard Condition
In exercising this role, the guardian shall take all reasonable steps to bring James to an understanding of the issues and to obtain and consider his views before making significant decisions.
b) NDIS Restrictive Practices Condition
The guardian(s) may only consent to the use of restrictive practices to influence James’s behaviour:
(i) as a last resort to prevent James 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 James, 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 – 54-year-old subject person with acquired brain injuries – subject to guardianship and financial management orders since 2013 – forensic sample request made…

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 James (a pseudonym)

Details

AGLC: James (a pseudonym) [2025] NSWCATGD 1
Case: [2025] NSWCATGD 1
Decision Date: 12 March 2025

CaseChat Overview and Summary

In the case of James, a 54-year-old individual with acquired brain injuries, the Supreme Court of New South Wales reviewed the existing guardianship and financial management orders that had been in place since 2013. A request from the New South Wales Police for a forensic sample had prompted this review. The court was tasked with determining whether James remained an individual for whom a guardianship order could be made, confirming the functions included in the previous order, and assessing whether James was an ‘incapable person’ for the purposes of section 75G of the Crimes (Forensic Procedures) Act 2000 (NSW). The court also considered whether a professional assessment was necessary and the implications of installing monitoring equipment at James' residence.

The court found that James continued to meet the criteria for a guardianship order and confirmed the existing functions within the order. It was determined that a professional assessment might be necessary to determine James's status as an ‘incapable person’. The order was varied to include a legal function relating to the forensic sample request, ensuring that James could receive legal advice and representation in response to the police request. The court also addressed restrictive practices, deciding that while the installation of monitoring equipment did not constitute a restrictive practice, it did represent an invasion of privacy. Therefore, the order was modified to authorise the guardian to decide whether such equipment should be used, subject to certain conditions.

Following the review, the Public Guardian was reappointed, and the guardianship order was modified to reflect the new functions and conditions. The order now includes specific provisions for James's accommodation, health care, medical and dental consent, services, and restrictive practices. It also mandates that the guardian consider James's views before making significant decisions and outlines the conditions for the use of restrictive practices. The order remains in effect for two years from 12 March 2025, with provisions for ongoing review and amendment as necessary.

Orders

Orders of the court

The guardianship order for James made on 10 October 2024 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 12 March 2025.

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

FUNCTIONS:

4. The guardian has the following functions:

a) Accommodation

To decide where James may reside.

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

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

ii) keep him at that place.

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

c) Health care

To decide what health care James may receive.

d) Medical/Dental consent

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

e) Services

To make decisions about services to be provided to James.

f) Restrictive Practices

To give or withhold consent to restrictive practices used to influence James’s behaviour.

g) Other Function

Surveillance: To decide whether video or other monitoring equipment should be used at James’ residence for his safety and welfare if he is refusing to allow support workers to remain on the premises.

Legal function re forensic sample request: To access legal advice and respond on James’ behalf regarding the request from NSW Police for him to provide a DNA sample.

AUTHORITY:

5. The guardian has the following authority:

a) Authority to override objections to medical treatment

i) The guardian may override the objection of James to major or minor medical treatment.

CONDITIONS:

6. The conditions of this order are:

a) Standard Condition

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

b) NDIS Restrictive Practices Condition

The guardian(s) may only consent to the use of restrictive practices to influence James’s behaviour:

(i) as a last resort to prevent James 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 James, 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:	James (a pseudonym) [2025] NSWCATGD 1
Hearing dates:	12 March 2025
Date of orders:	12 March 2025
Decision date:	12 March 2025
Jurisdiction:	Guardianship Division
Before:	EM Connor, Senior Member (Legal) Dr B McPhee, Senior Member (Professional) M Watson, General Member (Community)
Decision:	The guardianship order for James made on 10 October 2024 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 12 March 2025. 3. This is a limited guardianship order giving the guardian(s) custody of James to the extent necessary to carry out the functions below. FUNCTIONS: 4. The guardian has the following functions: a) Accommodation To decide where James may reside. b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to: i) take James to a place approved by the guardian. ii) keep him at that place. iii) return him to that place should he leave it. c) Health care To decide what health care James may receive. d) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where James is not capable of giving a valid consent. e) Services To make decisions about services to be provided to James. f) Restrictive Practices To give or withhold consent to restrictive practices used to influence James’s behaviour. g) Other Function Surveillance: To decide whether video or other monitoring equipment should be used at James’ residence for his safety and welfare if he is refusing to allow support workers to remain on the premises. Legal function re forensic sample request: To access legal advice and respond on James’ behalf regarding the request from NSW Police for him to provide a DNA sample. AUTHORITY: 5. The guardian has the following authority: a) Authority to override objections to medical treatment i) The guardian may override the objection of James to major or minor medical treatment. CONDITIONS: 6. The conditions of this order are: a) Standard Condition In exercising this role, the guardian shall take all reasonable steps to bring James to an understanding of the issues and to obtain and consider his views before making significant decisions. b) NDIS Restrictive Practices Condition The guardian(s) may only consent to the use of restrictive practices to influence James’s behaviour: (i) as a last resort to prevent James 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 James, 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 – 54-year-old subject person with acquired brain injuries – subject to guardianship and financial management orders since 2013 – forensic sample request made…