KPC - [2022] NSWCATGD 20

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: KPC [2022] NSWCATGD 20
Hearing dates: 27 August 2022
Date of orders: 27 August 2022
Decision date: 27 August 2022
Jurisdiction: Guardianship Division
Before: S Barnes, Senior Member (Legal)
L Houlahan, Senior Member (Professional)
Dr J M Green, General Member (Community)
Decision:
1. A guardianship order is made for KPC.
2. LZC, of [Address removed for publication.], is appointed as the guardian.
3. This is a continuing guardianship order for a period of three months from 27 August 2022.
4. This is a limited guardianship order giving the guardian(s) custody of KPC to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Accommodation
To decide where KPC may reside.
b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:
i) take KPC 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 KPC may receive.
d) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where KPC is not capable of giving a valid consent.
e) Services
To make decisions about services to be provided to KPC.
f) Restrictive Practices
To give or withhold consent as to whether the following restrictive practices should be used to influence KPC’s behaviour:
Chemical 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 KPC 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 KPC’s behaviour:
(i) as a last resort to prevent KPC harming himself or others;
(ii) where the restrictive practice is used in the least restrictive form, and for the shortest time necessary to prevent harm to KPC or other persons;
(iii) after consideration of the likely impact of the restrictive practice on KPC; and
(iv) in accordance with a behaviour management plan devised by the hospital treating team which is reviewed regularly and as soon as practicable after any change in KPC’s circumstances.

Catchwords:
GUARDIANSHIP – application for a guardianship order – after hours hearing – subject person an in-patient at a public hospital – drug-related admission – veteran with post-traumatic stress disorder – urgent hearing requested as subject person at risk of absconding – subject person with impaired decision-making capacity – need for medical and dental consent decisions – need for healthcare decisions – need for others to bring accommodation decisions into effect – restrictive practices decisions – chemical restraint – suitability of proposed guardian – private guardian appointed – order made.

Legislation Cited:
Guardianship Act 1987 (NSW), ss 3(1)–(2), 4, 14(1)–(2), 15(3), 17

Cases Cited:
C…

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 KPC

Details

AGLC: KPC [2022] NSWCATGD 20
Case: [2022] NSWCATGD 20
Decision Date: 27 August 2022

CaseChat Overview and Summary

In the matter of KPC, a guardianship application was brought before the Court. KPC, a veteran with post-traumatic stress disorder, was an inpatient at a public hospital due to a drug-related admission. The urgency of the application was predicated on the risk of KPC absconding and his impaired decision-making capacity, necessitating the appointment of a guardian to make various decisions on his behalf. The legal issues before the Court included the necessity of a guardianship order, the urgency of the application, and the suitability of the proposed private guardian, LZC.

The Court considered the urgency of the application, given KPC's history of absconding and his current impaired decision-making capacity. It was established that KPC required assistance in making decisions regarding his accommodation, health care, medical and dental treatment, services, and the use of restrictive practices such as chemical restraint. The Court also acknowledged the importance of appointing a guardian who could make these decisions in KPC's best interests. The proposed guardian, LZC, was deemed suitable for the role, having demonstrated the necessary skills and commitment to acting in KPC's best interests.

Following the arguments presented, the Court made a guardianship order for KPC, appointing LZC as the guardian. The order was limited to a three-month period, with specific functions assigned to the guardian, including decisions on accommodation, health care, medical and dental consent, services, and restrictive practices. The guardian was also required to take reasonable steps to involve KPC in decision-making processes and to consider his views before making significant decisions. The order included conditions for the use of restrictive practices, ensuring they were employed as a last resort and in the least restrictive form necessary.

The final orders included a guardianship order for KPC, the appointment of LZC as the guardian, and the specification of the guardian's functions and conditions. The Court emphasised the importance of acting in KPC's best interests and ensuring that any decisions made were in line with his views and wishes where possible.

Orders

Orders of the court

1. A guardianship order is made for KPC.

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

3. This is a continuing guardianship order for a period of three months from 27 August 2022.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where KPC may reside.

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

i) take KPC 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 KPC may receive.

d) Medical/Dental consent

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

e) Services

To make decisions about services to be provided to KPC.

f) Restrictive Practices

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

Chemical 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 KPC 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 KPC’s behaviour:

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

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

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

(iv) in accordance with a behaviour management plan devised by the hospital treating team which is reviewed regularly and as soon as practicable after any change in KPC’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:	KPC [2022] NSWCATGD 20
Hearing dates:	27 August 2022
Date of orders:	27 August 2022
Decision date:	27 August 2022
Jurisdiction:	Guardianship Division
Before:	S Barnes, Senior Member (Legal) L Houlahan, Senior Member (Professional) Dr J M Green, General Member (Community)
Decision:	1. A guardianship order is made for KPC. 2. LZC, of [Address removed for publication.], is appointed as the guardian. 3. This is a continuing guardianship order for a period of three months from 27 August 2022. 4. This is a limited guardianship order giving the guardian(s) custody of KPC to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Accommodation To decide where KPC may reside. b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to: i) take KPC 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 KPC may receive. d) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where KPC is not capable of giving a valid consent. e) Services To make decisions about services to be provided to KPC. f) Restrictive Practices To give or withhold consent as to whether the following restrictive practices should be used to influence KPC’s behaviour: Chemical 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 KPC 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 KPC’s behaviour: (i) as a last resort to prevent KPC harming himself or others; (ii) where the restrictive practice is used in the least restrictive form, and for the shortest time necessary to prevent harm to KPC or other persons; (iii) after consideration of the likely impact of the restrictive practice on KPC; and (iv) in accordance with a behaviour management plan devised by the hospital treating team which is reviewed regularly and as soon as practicable after any change in KPC’s circumstances.
Catchwords:	GUARDIANSHIP – application for a guardianship order – after hours hearing – subject person an in-patient at a public hospital – drug-related admission – veteran with post-traumatic stress disorder – urgent hearing requested as subject person at risk of absconding – subject person with impaired decision-making capacity – need for medical and dental consent decisions – need for healthcare decisions – need for others to bring accommodation decisions into effect – restrictive practices decisions – chemical restraint – suitability of proposed guardian – private guardian appointed – order made.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)–(2), 4, 14(1)–(2), 15(3), 17
Cases Cited:	C…