KZE

[2018] NSWCATGD 40

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

KZE [2018] NSWCATGD 40

Hearing dates:

26 October 2018

Date of orders:

26 October 2018

Decision date:

26 October 2018

Jurisdiction:

Guardianship Division

Before:

B L Hughes, Senior Member (Legal),
L Houlahan, Professional Member (Community)

Decision:

The guardianship order concerning KZE made on 1 October 2015 is lapsed from 26 October 2018.

Catchwords:

GUARDIANSHIP – end of term review of guardianship order – discretion to renew a guardianship order – order allowed to lapse

 

RESTRICTIVE PRACTICES – whether practice is a restrictive practice – locking of doors at group home and use of safety door locks in vehicle

  WORDS AND PHRASES – Non-Purposeful Risk

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)–(2), 4, 14, 14(2)

Cases Cited:

IF v IG [2004] NSWADTAP 3

Texts Cited:

Nil

Category:

Principal judgment

Parties:

009: Review of Guardianship Order

  KZE (the person)
Public Guardian

Representation:

Nil

File Number(s):

2004/00262734

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 (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

STATUTORY REVIEW OF GUARDIANSHIP ORDER

Background

1. KZE is a 34-year-old Aboriginal woman who has lived in a group home at Southwest Sydney since 2005. She is a former State ward and has no family involved in her life.

2. KZE has been under the guardianship of the Public Guardian since October 2004. The guardianship order was last reviewed on 1 October 2015 when the Public Guardian was appointed for a period of three years with the functions of health care, medical and dental consent, restrictive practices and services.

3. KZE has been under the financial management of the NSW Trustee and Guardian since 2010.

4. This is the end of term statutory review of the guardianship order made on 1 October 2015.

The hearing

5. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.]

What did the Tribunal have to decide?

6. On reviewing the current guardianship order the Tribunal may renew, renew and vary the order or determine that the order is to lapse.

7. The questions to be considered by the Tribunal are:

• Is KZE someone for whom the Tribunal could make an order because she continues to have a disability which prevents her from being able to make important life decisions?

• Should the Tribunal make a further guardianship order and if so, what order should be made?

• Who should be the guardian?

• How long should the order last?

Is KZE someone for whom the Tribunal could make a further order because she continues to have a disability which prevents her from being able to make important life decisions?

8. Section 14 of the Guardianship Act 1987 (NSW) provides that the Tribunal may make a guardianship order for a person if it is satisfied that he/she is “a person in need of a guardian.” A person in need of a guardian is “a person who because of a disability is totally or partially incapable of managing his or her person”: s 3(1) of the Guardianship Act. A person with a disability is a person who is:

1. intellectually, physically, psychologically or sensorily disabled;

2. of advanced age;

3. a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or

4. otherwise disabled;

and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation: s 3(2) of the Guardianship Act.

9. When the previous order was made, the Tribunal found that as a result of schizophrenia and mild intellectual disability, KZE was unable to make important life decisions.

10. KZE participated in the hearing by telephone with the team leader of her group home, Ms Z. KZE told the Tribunal that she had seen her psychiatrist, Dr Y, the day before the hearing and Dr Y has reduced her Seroquel because her behaviours have improved a great deal. She said that in January 2018, her sodium valproate had been reduced. She has not had any PRN medications in over 18 months and her dental care is up to date.

11. Ms Z confirmed that this was indeed the case and that Dr Y is of the view that KZE has the capacity to provide her own consent to medical and dental treatment. Ms Z shares the view of Dr Y and indeed KZE’s report of her medical treatment was consistent with a finding that she has the capacity to make medical and dental treatment. Dr Y reviews KZE every three months and she has regular access to a GP, dental and other health care practitioners.

12. It was less clear if KZE had the capacity make informed decisions about the other areas of her life. Accordingly, the Tribunal is satisfied that KZE continues to have a disability which at least partially prevents her making important life decisions. She is a person for whom the Tribunal could make a further guardianship order.

Should the Tribunal make a further guardianship order and if so, what order should be made?

13. The Tribunal must consider all of the following matters set out in s 14(2) of the Guardianship Act before exercising its discretion to make a further guardianship order:

1. the views (if any) of:

1. the person, and

2. the person’s spouse, and

3. the person’s carer and

2. the importance of preserving the person’s existing family relationships, and

3. the importance of preserving the person’s particular cultural and linguistic environments, and

4. the practicability of services being provided to the person without the need for the making of such an order.

14. These matters have no hierarchy or weighting, and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Guardianship Act. When undertaking this task, the Tribunal may be guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3) which provides:

General principles

4 General Principles

It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:

(a)    the welfare and interests of such persons should be given paramount consideration,

(b)    the freedom of decision and freedom of action of such persons should be restricted as little as possible,

(c)    such persons should be encouraged, as far as possible, to live a normal life in the community,

(d)    the views of such persons in relation to the exercise of those functions should be taken into consideration,

(e)    the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

(f)    such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

(g)    such persons should be protected from neglect, abuse and exploitation,

(h)    the community should be encouraged to apply and promote these principles.

15. KZE told the Tribunal that she was happy for a further guardianship order to be made. She is content in her permanent home and is receiving appropriate services through the National Disability Insurance Scheme (NDIS). She attends group based social, community and recreational activities through a disability service provider as part of her NDIS package.

16. KZE said that she is fit and well. She enjoys exercising and is proud of the significant amount of weight she has lost. She rewards herself for her exercise and weight loss program with the occasional chocolate.

17. Ms Z said that KZE is much brighter than previously and is much healthier than in the past. She is compliant with her medications and no PRN has been needed in over 18 months due to her positive behaviour.

18. When the previous order was made the Public Guardian had the authority to make decisions about specific restrictive practices, namely:

• PRN medication

• Restricted access to food

• Restricted access to staff and parts of the house

• Restricted access to community

• Restricted access to sharps

19. The Public Guardian has provided consent to a positive behaviour support plan and the restrictive practices contained therein. In a report dated 24 October 2018, the Public Guardian recommended that the order be renewed with the functions of medical and dental consent, healthcare, restrictive practices and services, however during the hearing Ms Catherine O’Shea, the author of the report revised her view and recommended that no further order be made.

20. PRN medication has not been used in over 18 months. Ms Z said that although KZE is still obsessed with food, she has access to the kitchen and is supported by staff. A roller door is pulled down over the kitchen at night, however if KZE wanted food she could ask staff. KZE chooses her menu, cooks her food and serves it herself. If KZE becomes agitated, which occurs less frequently, staff remove the other two residents. Her freedom of movement or access to staff is not limited. The only knives in the house are not sharp and are the property of the group home, not KZE. Parts of the home are locked, and child locks used on the vehicle to manage non-purposeful physical risk behaviour and unsafe actions, that is, wandering out of the home and becoming lost and at risk of injury. This is a specific exception to restrictive practice authorisation. These categories of non-purposeful risk necessitate a planned service response to minimise the risk rather than functional behaviour assessment and intervention. The Tribunal reviewed the current behaviour support plan and the outcome summary of submission for restricted practice authorisation dated 11 October 2017.

21. Having considered the evidence the Tribunal was satisfied that there are currently no restricted practices in place for which a guardian needs to be appointed to provide consent. Ms O’Shea and Ms Z agreed with this position.

22. KZE receives all the services from which she could benefit, has an NDIS package and can be supported by staff to make her own decisions. She is able to receive services informally without an order in place.

23. There were no specific cultural or linguistic matters for the Tribunal to consider and she has no family involved in her life. Ms Z confirmed how very well KZE is going, a fact that is evidenced by the reduction in her major medications by her treating psychiatrist.

24. The Tribunal considered that there are no current decision making areas for which a guardian needs to be appointed. Accordingly, the Tribunal determined to lapse the order.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 13 February 2019