JZK - [2020] NSWCATGD 42

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: JZK [2020] NSWCATGD 42
Hearing dates: 24 April 2020
Date of orders: 24 April 2020
Decision date: 24 April 2020
Jurisdiction: Guardianship Division
Before: S Roushan, Senior Member (Legal)
L Houlahan, Senior Member (Professional)
J Koussa, General Member (Community)
Decision:
1. A guardianship order is made for JZK.
2. The Public Guardian is appointed as the guardian.
3. This is a continuing guardianship order for a period of 12 months from 24 April 2020.
4. This is a limited guardianship order giving the guardian(s) custody of JZK to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Accommodation
To decide where JZK may reside.
b) Health care
To decide what health care JZK may receive.
c) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where JZK is not capable of giving a valid consent.
d) Services
To make decisions about services to be provided to JZK.
e) Other Function
a) To make decisions as to JZK’s accommodation, freedom of movement, and access to the community to protect and promote JZK’s health, welfare and interests specifically as a result of the COVID-19 pandemic; and
b) To ensure that JZK complies with any decision made by the guardian under this function, the guardian may authorise others, including members of NSW Police and the Ambulance Service of NSW, or their delegates, to do any of the following:
(i) return JZK to a place approved by the guardian should they leave it.
c) This function of guardianship can only be exercised by the guardian:
(i) as a last resort;
(ii) whilst a Public Health order is in force under s 7 of the Public Health Act 2010 (NSW) in relation to COVID-19 which places restrictions on JZK’s freedom of movement (such as, but not limited to, Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (NSW) made on 30 March 2020); and
(iii) to ensure that JZK complies with such Public Health order.
CONDITION:
6. The condition of this order is:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring JZK to an understanding of the issues and to obtain and consider their views before making significant decisions.

Catchwords:
GUARDIANSHIP – application for a guardianship order – COVID-19 pandemic – subject person with cognitive deficits due to traumatic brain injury – subject person not complying with self-isolation requirements – subject person at risk of self-harm and homelessness - whether a guardianship order should be made – subject person supports the making of a guardianship order – need for decisions to be made about NDIS planning and services – COVID-19 function – need for medical treatment decisions to be made – accommodation function with power to authorise others – Public Guardian appointed – order made.

Legislation Cited:
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14,14(2), 15(3)
Public Health Act 2010…

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 JZK

Details

AGLC: JZK [2020] NSWCATGD 42
Case: [2020] NSWCATGD 42
Decision Date: 24 April 2020

CaseChat Overview and Summary

The case of JZK involved an application for a guardianship order, arising from the subject person's cognitive deficits due to a traumatic brain injury. The court had to determine whether a guardianship order should be made in light of the subject person's non-compliance with self-isolation requirements during the COVID-19 pandemic, their risk of self-harm and homelessness, and their support for such an order. Additionally, the court had to consider the need for decisions to be made regarding NDIS planning and services, medical treatment, and accommodation, particularly in the context of the COVID-19 pandemic.

The legal issues before the court were whether the subject person's cognitive deficits and non-compliance with self-isolation requirements justified the making of a guardianship order. The court also had to determine the scope and functions of the guardianship order, particularly in light of the COVID-19 pandemic and the subject person's need for medical treatment and accommodation decisions. The court had to balance the subject person's autonomy with their need for protection and support.

The court found that the subject person's cognitive deficits and non-compliance with self-isolation requirements justified the making of a guardianship order. The court also found that the Public Guardian was the appropriate person to be appointed as the guardian. The court granted the application for a guardianship order, appointing the Public Guardian as the guardian, and specifying the functions and conditions of the order. The functions of the guardianship order included decisions about the subject person's accommodation, health care, medical and dental treatment, and services, as well as specific functions related to the COVID-19 pandemic. The court also imposed a condition on the guardian to take all reasonable steps to bring the subject person to an understanding of the issues and to obtain and consider their views before making significant decisions.

The final orders of the court included the making of a guardianship order for JZK, the appointment of the Public Guardian as the guardian, and the specification of the functions and conditions of the order. The order was a limited guardianship order for a period of 12 months, with the power to authorise others, including members of NSW Police and the Ambulance Service of NSW, to ensure that JZK complies with any decision made by the guardian under the COVID-19 function. The guardian was also required to take all reasonable steps to bring JZK to an understanding of the issues and to obtain and consider their views before making significant decisions.

Orders

Orders of the court

1. A guardianship order is made for JZK.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 24 April 2020.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where JZK may reside.

b) Health care

To decide what health care JZK may receive.

c) Medical/Dental consent

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

d) Services

To make decisions about services to be provided to JZK.

e) Other Function

a) To make decisions as to JZK’s accommodation, freedom of movement, and access to the community to protect and promote JZK’s health, welfare and interests specifically as a result of the COVID-19 pandemic; and

b) To ensure that JZK complies with any decision made by the guardian under this function, the guardian may authorise others, including members of NSW Police and the Ambulance Service of NSW, or their delegates, to do any of the following:

(i) return JZK to a place approved by the guardian should they leave it.

c) This function of guardianship can only be exercised by the guardian:

(i) as a last resort;

(ii) whilst a Public Health order is in force under s 7 of the Public Health Act 2010 (NSW) in relation to COVID-19 which places restrictions on JZK’s freedom of movement (such as, but not limited to, Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (NSW) made on 30 March 2020); and

(iii) to ensure that JZK complies with such Public Health order.

CONDITION:

6. The condition of this order is:

a) Standard Condition

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

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:	JZK [2020] NSWCATGD 42
Hearing dates:	24 April 2020
Date of orders:	24 April 2020
Decision date:	24 April 2020
Jurisdiction:	Guardianship Division
Before:	S Roushan, Senior Member (Legal) L Houlahan, Senior Member (Professional) J Koussa, General Member (Community)
Decision:	1. A guardianship order is made for JZK. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of 12 months from 24 April 2020. 4. This is a limited guardianship order giving the guardian(s) custody of JZK to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Accommodation To decide where JZK may reside. b) Health care To decide what health care JZK may receive. c) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where JZK is not capable of giving a valid consent. d) Services To make decisions about services to be provided to JZK. e) Other Function a) To make decisions as to JZK’s accommodation, freedom of movement, and access to the community to protect and promote JZK’s health, welfare and interests specifically as a result of the COVID-19 pandemic; and b) To ensure that JZK complies with any decision made by the guardian under this function, the guardian may authorise others, including members of NSW Police and the Ambulance Service of NSW, or their delegates, to do any of the following: (i) return JZK to a place approved by the guardian should they leave it. c) This function of guardianship can only be exercised by the guardian: (i) as a last resort; (ii) whilst a Public Health order is in force under s 7 of the Public Health Act 2010 (NSW) in relation to COVID-19 which places restrictions on JZK’s freedom of movement (such as, but not limited to, Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (NSW) made on 30 March 2020); and (iii) to ensure that JZK complies with such Public Health order. CONDITION: 6. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring JZK to an understanding of the issues and to obtain and consider their views before making significant decisions.
Catchwords:	GUARDIANSHIP – application for a guardianship order – COVID-19 pandemic – subject person with cognitive deficits due to traumatic brain injury – subject person not complying with self-isolation requirements – subject person at risk of self-harm and homelessness - whether a guardianship order should be made – subject person supports the making of a guardianship order – need for decisions to be made about NDIS planning and services – COVID-19 function – need for medical treatment decisions to be made – accommodation function with power to authorise others – Public Guardian appointed – order made.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14,14(2), 15(3) Public Health Act 2010…