KXE - [2024] NSWCATGD 1

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: KXE [2024] NSWCATGD 1
Hearing dates: 2 February 2024
Date of orders: 2 February 2024
Decision date: 02 February 2024
Jurisdiction: Guardianship Division
Before: B M Shipp, Senior Member (Legal)
Dr J Law, Senior Member (Professional)
P J McGirr, General Member (Community)
Decision:
Guardianship application
The application to appoint a guardian is dismissed after hearing.
Own Motion Review of Appointment of Enduring Guardian
In relation to the enduring guardian appointment made by KXE on 11 August 2023 appointing BSE and OGT the Tribunal orders, directs or declares:
The functions of the enduring guardian are varied to give the enduring guardians the additional function of consent to the use of restrictive practices (Environmental Restraint) subject to the following conditions.
The guardian(s) may only consent to the use of the types of restrictive practices permitted under this order to influence KXE’s behaviour:
(i) as a last resort to prevent KXE harming herself or others; and
(ii) where the restrictive practice is used in the least restrictive form, and for the shortest time necessary to prevent harm to KXE or other persons;
(iii) after consideration of the likely impact of the use of the restrictive practice on KXE; 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 KXE’s behaviours of concern and which is reviewed regularly and as soon as practicable after any change in KXE’s circumstances.

Catchwords:
GUARDIANSHIP – application for a guardianship order – where the Tribunal decided to conduct own motion review of an appointment of enduring guardianship – decision not to make a guardianship order – application dismissed
REVIEW OF ENDURING GUARDIANSHIP – own motion review – principal resides in an aged care facility – consent requirements for the use of a restrictive practice – environmental restraint – Quality of Care Principles 2014 (Cth) – whether the enduring guardianship appointment should be varied to include a restrictive practices function – appointment of enduring guardian varied – order made

Legislation Cited:
Aged Care Act 1997 (Cth)
Guardianship Act 1987 (NSW), ss 3, 3(2), 4, 4(a), 6, 6A, 6K; Pt 2
Quality of Care Principles 2014 (Cth)

Cases Cited:
Darcy (bht Diane Aldridge) v State of NSW [2011] NSWCA 413
Meering v Grahame-White Aviation Co. Ltd (1920) 122 L.T. 4
Re: EUY [2019] SACAT 51
SKN [2023] NSWCATGD 16
SZH [2020] NSWCATGD 28

Texts Cited:
None cited.

Category: Principal judgment
Parties:
Guardianship Application

KXE (the person)
NZH (applicant)
BSE (enduring guardian)
OGT (enduring guardian)
Public Guardian

Review of an Enduring Guardianship Appointment
KXE (the person)
NCAT Guardianship Division (applicant)
BSE (enduring guardian)
OGT (enduring guardian)
Public Guardian
NSW Trustee and Guardian
Representation: Nil.

File Number(s): NCAT 2023/00324703
Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings: Civil and…

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 KXE

Details

AGLC: KXE [2024] NSWCATGD 1
Case: [2024] NSWCATGD 1
Decision Date: 02 February 2024

CaseChat Overview and Summary

This case involved an application for a guardianship order concerning KXE, who resides in an aged care facility. The matter was heard by the relevant tribunal, which also conducted an own motion review of the appointment of an enduring guardianship. The primary issue before the tribunal was whether the enduring guardianship appointment should be varied to include a restrictive practices function, specifically the use of an environmental restraint. This consideration was based on the Quality of Care Principles 2014 (Cth) and the consent requirements for the use of restrictive practices.

The tribunal considered the circumstances of KXE and the need for any restrictive practices to be used as a last resort to prevent harm, in the least restrictive form and for the shortest time necessary. The tribunal also considered the necessity of a behaviour support plan, devised in accordance with the Quality of Care Principles 2014 (Cth), and consultation with a relevant health practitioner. The tribunal concluded that the enduring guardianship appointment should be varied to include the additional function of consenting to the use of restrictive practices (Environmental Restraint), subject to the conditions outlined in the order.

The tribunal dismissed the application to appoint a guardian but varied the functions of the enduring guardian to include consent to the use of restrictive practices (Environmental Restraint). This decision was made in accordance with the conditions specified in the order, which required the use of restrictive practices to be considered a last resort and implemented in the least restrictive form and for the shortest time necessary. The tribunal also emphasised the importance of a behaviour support plan and regular consultation with a relevant health practitioner. This case highlights the importance of balancing the need for restrictive practices with the rights and dignity of the individual in aged care settings.

Orders

Orders of the court

Guardianship application

The application to appoint a guardian is dismissed after hearing.

Own Motion Review of Appointment of Enduring Guardian

In relation to the enduring guardian appointment made by KXE on 11 August 2023 appointing BSE and OGT the Tribunal orders, directs or declares:

The functions of the enduring guardian are varied to give the enduring guardians the additional function of consent to the use of restrictive practices (Environmental Restraint) subject to the following conditions.

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

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

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

(iii) after consideration of the likely impact of the use of the restrictive practice on KXE; 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 KXE’s behaviours of concern and which is reviewed regularly and as soon as practicable after any change in KXE’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:	KXE [2024] NSWCATGD 1
Hearing dates:	2 February 2024
Date of orders:	2 February 2024
Decision date:	02 February 2024
Jurisdiction:	Guardianship Division
Before:	B M Shipp, Senior Member (Legal) Dr J Law, Senior Member (Professional) P J McGirr, General Member (Community)
Decision:	Guardianship application The application to appoint a guardian is dismissed after hearing. Own Motion Review of Appointment of Enduring Guardian In relation to the enduring guardian appointment made by KXE on 11 August 2023 appointing BSE and OGT the Tribunal orders, directs or declares: The functions of the enduring guardian are varied to give the enduring guardians the additional function of consent to the use of restrictive practices (Environmental Restraint) subject to the following conditions. The guardian(s) may only consent to the use of the types of restrictive practices permitted under this order to influence KXE’s behaviour: (i) as a last resort to prevent KXE harming herself or others; and (ii) where the restrictive practice is used in the least restrictive form, and for the shortest time necessary to prevent harm to KXE or other persons; (iii) after consideration of the likely impact of the use of the restrictive practice on KXE; 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 KXE’s behaviours of concern and which is reviewed regularly and as soon as practicable after any change in KXE’s circumstances.
Catchwords:	GUARDIANSHIP – application for a guardianship order – where the Tribunal decided to conduct own motion review of an appointment of enduring guardianship – decision not to make a guardianship order – application dismissed REVIEW OF ENDURING GUARDIANSHIP – own motion review – principal resides in an aged care facility – consent requirements for the use of a restrictive practice – environmental restraint – Quality of Care Principles 2014 (Cth) – whether the enduring guardianship appointment should be varied to include a restrictive practices function – appointment of enduring guardian varied – order made
Legislation Cited:	Aged Care Act 1997 (Cth) Guardianship Act 1987 (NSW), ss 3, 3(2), 4, 4(a), 6, 6A, 6K; Pt 2 Quality of Care Principles 2014 (Cth)
Cases Cited:	Darcy (bht Diane Aldridge) v State of NSW [2011] NSWCA 413 Meering v Grahame-White Aviation Co. Ltd (1920) 122 L.T. 4 Re: EUY [2019] SACAT 51 SKN [2023] NSWCATGD 16 SZH [2020] NSWCATGD 28
Texts Cited:	None cited.
Category:	Principal judgment
Parties:	Guardianship Application KXE (the person) NZH (applicant) BSE (enduring guardian) OGT (enduring guardian) Public Guardian Review of an Enduring Guardianship Appointment KXE (the person) NCAT Guardianship Division (applicant) BSE (enduring guardian) OGT (enduring guardian) Public Guardian NSW Trustee and Guardian
Representation:	Nil.
File Number(s):	NCAT 2023/00324703
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings: Civil and…