JUW - [2023] NSWCATGD 3

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: JUW [2023] NSWCATGD 3
Hearing dates: 16 February 2023
Date of orders: 16 February 2023
Decision date: 16 February 2023
Jurisdiction: Guardianship Division
Before: R H Booby, Senior Member (Legal)
Decision:
The guardianship order for JUW made on 4 February 2022 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 three years from 16 February 2023.
3. This is a limited guardianship order giving the guardian(s) custody of JUW to the extent necessary to carry out the functions below.
FUNCTIONS:
4. The guardian has the following function:
a) Restrictive Practices
To give or withhold consent as to whether the following restrictive practice should be used to influence JUW’s behaviour:
Environmental restraint
CONDITIONS:
5. The conditions of this order are:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring JUW to an understanding of the issues and to obtain and consider their views before making significant decisions.
b) Restrictive Practices Condition
The guardian may only consent to the use of the types of restrictive practices permitted under this order to influence JUW’s behaviour:
(i) as a last resort to prevent JUW harming herself or others;
(ii) where the restrictive practice is used in the least restrictive form, and for the shortest time necessary to prevent harm to JUW or other persons;
(iii) after consideration of the likely impact of the use of the restrictive practice on JUW; and
(iv) in accordance with a behaviour support plan devised in accordance with the Quality of Care Principles 2014 (Cth), after consultation with a health practitioner with expertise relevant to JUW’s behaviours of concern and which is reviewed regularly and as soon as practicable after any change in JUW’s circumstances.

Catchwords:
GUARDIANSHIP – end-of-term review of a guardianship order – use of restrictive practices in aged care – environmental restraint – legislative amendments to the Quality of Care Principles 2014 (Cth) – section 5B of the Quality of Care Amendment (Restrictive Practices) Principles 2022 – meaning of restrictive practices substitute decision maker – effect of the legislative amendments in NSW – informed consent required for use of restraint – ongoing need for a guardian to consent to use of restraint – no private guardian available to be appointed – Public Guardian appointed – order made

Legislation Cited:
Aged Care Quality of Care Principles 2014 (Cth), s 15FA(1)(f)(ii)
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14(2), 15(3)
Quality of Care Amendment (Restrictive Practices) Principles 2022, ss 5B, 5B(2)

Cases Cited:
FNX [2021] NSWCATGD 4
IF v IG [2004] NSWADTAP 3
JFL [2020] NSWCATGD 32
P v NSW Trustee and Guardian [2015] NSWSC 579
TZD [2021] NSWCATGD 14

Texts Cited:
None cited.

Category: Principal judgment
Parties:
004: Review of Guardianship Order
JUW (the person)
Public Guardian (appointed guardian)
MBW (spouse)
Representation: Nil.

File Number(s): NCAT 2020/00339301
Publication restriction:

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 JUW

Details

AGLC: JUW [2023] NSWCATGD 3
Case: [2023] NSWCATGD 3
Decision Date: 16 February 2023

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the case of JUW involved an end-of-term review of a guardianship order. The primary dispute centred around the use of restrictive practices in an aged care setting, specifically the application of environmental restraints on JUW. Legislative amendments to the Quality of Care Principles 2014 (Cth), particularly section 5B of the Quality of Care Amendment (Restrictive Practices) Principles 2022, necessitated a re-examination of how restrictive practices could be authorised under guardianship orders. The court had to determine whether the new legislative framework required informed consent from JUW for the use of restraints, and if so, how this affected the appointment of a guardian.

The court needed to ascertain the implications of the legislative amendments on the guardianship order, especially in the context of the ongoing need for a guardian to consent to the use of restraints. The case also involved determining the appropriate guardian for JUW, considering that no private guardian was available to be appointed. This led to the consideration of whether the Public Guardian could be appointed under the circumstances and what conditions should be attached to such an order. The court had to balance the requirements of informed consent with the practicalities of appointing a guardian in the absence of a private alternative.

The court found that the legislative amendments indeed required informed consent for the use of restraints, and this consent must be obtained from JUW or their guardian. Given that no private guardian was available, the court appointed the Public Guardian as JUW's guardian. The order was made with specific conditions to ensure that the guardian acted in accordance with the legislative requirements, particularly in relation to the use of restrictive practices. The guardian was mandated to take all reasonable steps to understand JUW's views and to consent to the use of restraints only as a last resort, in the least restrictive form, and for the shortest time necessary. The court also required the guardian to consult with relevant health practitioners and to follow a behaviour support plan.

The final orders of the court included the appointment of the Public Guardian as JUW's guardian for a period of three years, with specific functions and conditions to govern the use of restrictive practices. The guardian was required to obtain JUW's informed consent before authorising any environmental restraints, ensuring that such practices were used only as a last resort and in accordance with the Quality of Care Principles. The guardian's role also included regular consultations with health practitioners and adherence to a behaviour support plan.

Orders

Orders of the court

The guardianship order for JUW made on 4 February 2022 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 three years from 16 February 2023.

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

FUNCTIONS:

4. The guardian has the following function:

a) Restrictive Practices

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

Environmental restraint

CONDITIONS:

5. The conditions of this order are:

a) Standard Condition

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

b) Restrictive Practices Condition

The guardian may only consent to the use of the types of restrictive practices permitted under this order to influence JUW’s behaviour:

(i) as a last resort to prevent JUW harming herself or others;

(ii) where the restrictive practice is used in the least restrictive form, and for the shortest time necessary to prevent harm to JUW or other persons;

(iii) after consideration of the likely impact of the use of the restrictive practice on JUW; and

(iv) in accordance with a behaviour support plan devised in accordance with the Quality of Care Principles 2014 (Cth), after consultation with a health practitioner with expertise relevant to JUW’s behaviours of concern and which is reviewed regularly and as soon as practicable after any change in JUW’s circumstances.

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:	JUW [2023] NSWCATGD 3
Hearing dates:	16 February 2023
Date of orders:	16 February 2023
Decision date:	16 February 2023
Jurisdiction:	Guardianship Division
Before:	R H Booby, Senior Member (Legal)
Decision:	The guardianship order for JUW made on 4 February 2022 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 three years from 16 February 2023. 3. This is a limited guardianship order giving the guardian(s) custody of JUW to the extent necessary to carry out the functions below. FUNCTIONS: 4. The guardian has the following function: a) Restrictive Practices To give or withhold consent as to whether the following restrictive practice should be used to influence JUW’s behaviour: Environmental restraint CONDITIONS: 5. The conditions of this order are: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring JUW to an understanding of the issues and to obtain and consider their views before making significant decisions. b) Restrictive Practices Condition The guardian may only consent to the use of the types of restrictive practices permitted under this order to influence JUW’s behaviour: (i) as a last resort to prevent JUW harming herself or others; (ii) where the restrictive practice is used in the least restrictive form, and for the shortest time necessary to prevent harm to JUW or other persons; (iii) after consideration of the likely impact of the use of the restrictive practice on JUW; and (iv) in accordance with a behaviour support plan devised in accordance with the Quality of Care Principles 2014 (Cth), after consultation with a health practitioner with expertise relevant to JUW’s behaviours of concern and which is reviewed regularly and as soon as practicable after any change in JUW’s circumstances.
Catchwords:	GUARDIANSHIP – end-of-term review of a guardianship order – use of restrictive practices in aged care – environmental restraint – legislative amendments to the Quality of Care Principles 2014 (Cth) – section 5B of the Quality of Care Amendment (Restrictive Practices) Principles 2022 – meaning of restrictive practices substitute decision maker – effect of the legislative amendments in NSW – informed consent required for use of restraint – ongoing need for a guardian to consent to use of restraint – no private guardian available to be appointed – Public Guardian appointed – order made
Legislation Cited:	Aged Care Quality of Care Principles 2014 (Cth), s 15FA(1)(f)(ii) Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14(2), 15(3) Quality of Care Amendment (Restrictive Practices) Principles 2022, ss 5B, 5B(2)
Cases Cited:	FNX [2021] NSWCATGD 4 IF v IG [2004] NSWADTAP 3 JFL [2020] NSWCATGD 32 P v NSW Trustee and Guardian [2015] NSWSC 579 TZD [2021] NSWCATGD 14
Texts Cited:	None cited.
Category:	Principal judgment
Parties:	004: Review of Guardianship Order JUW (the person) Public Guardian (appointed guardian) MBW (spouse)
Representation:	Nil.
File Number(s):	NCAT 2020/00339301
Publication restriction: