KBU - [2020] NSWCATGD 9

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: KBU [2020] NSWCATGD 9
Hearing dates: 9 March 2020
Date of orders: 09 March 2020
Decision date: 09 March 2020
Jurisdiction: Guardianship Division
Before: J Toohey, Senior Member (Legal)
M J Staples, Senior Member (Professional)
M McCalman, General Member (Community)
Decision:
CONSENT TO MEDICAL OR DENTAL TREATMENT

The application is dismissed because LZJ has withdrawn the application and the Tribunal consents.

GUARDIANSHIP

1. A guardianship order is made for KBU.

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

3. This is a continuing guardianship order for a period of six months from 9 March 2020.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where KBU may reside.

b) Health care

To decide what health care KBU may receive.

c) Medical/Dental consent

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

d) Restrictive Practices

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

Chemical restraint

AUTHORITY:

6. The guardian has the following authority:

a) Authority to override objections to medical treatment

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

CONDITIONS:

7. The conditions of this order are:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring KBU to an understanding of the issues and to obtain and consider his 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 KBU’s behaviour:

(i) as a last resort to prevent KBU 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 KBU, 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 – application for guardianship order – person in aged care – restrictive practice – Quality of Care Principles 2014 (Cth) - use of chemical restraint – enduring power of guardianship inadequate for consent to chemical restraint – person responsible regime inadequate for consent to chemical restraint – need for guardian to make decisions about the use of chemical restraint – private guardian appointed
Legislation Cited: Aged Care Act 1997 (Cth)
Guardianship Act 1987 (NSW), ss 3(1)–(2), 4, 14(1)–(2), 6l, 17(1), 18(1), 33(1)(a), 33A(4), 36, 46(3), 46A
National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth)
Quality of Care Principles 2014 (Cth), ss 4, 15G
Cases Cited: HZC [2019] NSWCATGD 8
Texts Cited: Nil
Category: Principal…

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 KBU

Details

AGLC: KBU [2020] NSWCATGD 9
Case: [2020] NSWCATGD 9
Decision Date: 09 March 2020

CaseChat Overview and Summary

The case of KBU was before the [Name of Court], where LZJ applied for a guardianship order for KBU, a person in aged care, following the use of chemical restraint. The dispute centred around the adequacy of the existing enduring power of guardianship and the person responsible regime in providing the necessary consent for chemical restraint, in line with the Quality of Care Principles 2014 (Cth). The court had to determine if a guardian was required to make decisions about the use of chemical restraint and, if so, who should be appointed.

The legal issues that the court had to address were whether the existing legal frameworks provided sufficient authority for the use of chemical restraint in KBU's care and whether a guardian was needed to make substitute decisions in this regard. The court also had to consider who should be appointed as the guardian if such a role was necessary. The Quality of Care Principles 2014 (Cth) require that restrictive practices, such as chemical restraint, be used as a last resort and in accordance with a behaviour support plan developed by a behaviour support practitioner.

The court found that the existing legal frameworks were inadequate for providing the necessary consent for chemical restraint in KBU's care. The court held that a guardian was required to make substitute decisions in this regard and appointed DSU as the guardian. The court emphasised the need for the guardian to act in accordance with the Quality of Care Principles 2014 (Cth) when making decisions about the use of chemical restraint. The court made a continuing guardianship order for a period of six months, with limited functions and conditions, to ensure that KBU's best interests were protected.

The court's final orders included the dismissal of the application for consent to medical or dental treatment due to LZJ's withdrawal of the application. The court appointed DSU as the guardian for KBU and outlined the specific functions and authority of the guardian. The court also set out the conditions that the guardian must adhere to when exercising their role, including the use of restrictive practices.

Orders

Orders of the court

CONSENT TO MEDICAL OR DENTAL TREATMENT

The application is dismissed because LZJ has withdrawn the application and the Tribunal consents.

GUARDIANSHIP

1. A guardianship order is made for KBU.

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

3. This is a continuing guardianship order for a period of six months from 9 March 2020.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where KBU may reside.

b) Health care

To decide what health care KBU may receive.

c) Medical/Dental consent

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

d) Restrictive Practices

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

Chemical restraint

AUTHORITY:

6. The guardian has the following authority:

a) Authority to override objections to medical treatment

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

CONDITIONS:

7. The conditions of this order are:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring KBU to an understanding of the issues and to obtain and consider his 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 KBU’s behaviour:

(i) as a last resort to prevent KBU 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 KBU, 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:	KBU [2020] NSWCATGD 9
Hearing dates:	9 March 2020
Date of orders:	09 March 2020
Decision date:	09 March 2020
Jurisdiction:	Guardianship Division
Before:	J Toohey, Senior Member (Legal) M J Staples, Senior Member (Professional) M McCalman, General Member (Community)
Decision:	CONSENT TO MEDICAL OR DENTAL TREATMENT The application is dismissed because LZJ has withdrawn the application and the Tribunal consents. GUARDIANSHIP 1. A guardianship order is made for KBU. 2. DSU of [Address removed for publication.] is appointed as the guardian. 3. This is a continuing guardianship order for a period of six months from 9 March 2020. 4. This is a limited guardianship order giving the guardian custody of KBU to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Accommodation To decide where KBU may reside. b) Health care To decide what health care KBU may receive. c) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where KBU is not capable of giving a valid consent. d) Restrictive Practices To give or withhold consent as to whether the following restrictive practices should be used to influence KBU’s behaviour: Chemical restraint AUTHORITY: 6. The guardian has the following authority: a) Authority to override objections to medical treatment i) The guardian may override the objection of KBU to major or minor medical treatment. CONDITIONS: 7. The conditions of this order are: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring KBU to an understanding of the issues and to obtain and consider his 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 KBU’s behaviour: (i) as a last resort to prevent KBU 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 KBU, 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 – application for guardianship order – person in aged care – restrictive practice – Quality of Care Principles 2014 (Cth) - use of chemical restraint – enduring power of guardianship inadequate for consent to chemical restraint – person responsible regime inadequate for consent to chemical restraint – need for guardian to make decisions about the use of chemical restraint – private guardian appointed
Legislation Cited:	Aged Care Act 1997 (Cth) Guardianship Act 1987 (NSW), ss 3(1)–(2), 4, 14(1)–(2), 6l, 17(1), 18(1), 33(1)(a), 33A(4), 36, 46(3), 46A National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) Quality of Care Principles 2014 (Cth), ss 4, 15G
Cases Cited:	HZC [2019] NSWCATGD 8
Texts Cited:	Nil
Category:	Principal…