NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: KZQ [2021] NSWCATGD 19 Hearing dates: 16 July 2021 Date of orders: 16 July 2021 Decision date: 16 July 2021 Jurisdiction: Guardianship Division Before: R H Booby, Senior Member (Legal)
Dr G Jamieson, Senior Member (Professional)
Dr M Spencer, General Member (Community)Decision: 1. A guardianship order is made for KZQ.
2. LBP of [Address removed for publication.] and NYQ of [Addressed removed for publication.] are appointed jointly as the guardians.
3. This is a continuing guardianship order for a period of 12 months from 16 July 2021.
4. This is a limited guardianship order giving the guardian(s) custody of KZQ to the extent necessary to carry out the functions below.
FUNCTIONS: LBP and NYQ
5. LBP and NYQ have the following functions:
a) Accommodation
To decide where KZQ may reside.
b) Health care
To decide what health care KZQ may receive.
c) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where KZQ is not capable of giving a valid consent.
d) Services
To make decisions about services to be provided to KZQ.
e) Restrictive Practices
To give or withhold consent as to whether the following restrictive practices should be used to influence KZQ’s behaviour:
Mechanical 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 KZQ to an understanding of the issues and to obtain and consider their views before making significant decisions.
b) Restrictive Practices Condition
The guardian(s) may only consent to the use of the types of restrictive practices permitted under this order to influence KZQ’s behaviour:
(i) as a last resort to prevent KZQ harming themself or others; and
(ii) in accordance with a care and support plan that incorporates:
a) the behaviours that are being addressed;
b) the reasons why the restraints are necessary;
c) other strategies in place to address the behaviour;
d) provision for review, including by an appropriate practitioner.
Catchwords: GUARDIANSHIP – application for a guardianship order – use of restraint in aged care – 24/7 home care services – lifetime care and support plan – existing enduring guardianship does not authorise use of restraint – use of bed rails by carer for safety – mechanical restraint – conditions on restrictive practices function – order includes other decisions in enduring guardian appointment – adult children appointed as private guardians
Legislation Cited: Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3),17(1)
Cases Cited: C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep)
P v D1 & Ors [2011] NSWSC 257
P v NSW Trustee and Guardian [2015] NSWSC 579
Re B [2011] NSWSC 1075
Texts Cited: None cited.
Category: Principal judgment Parties: 001: Guardianship Application
KZQ (the person)
MXP (applicant)
LBP (enduring guardian)
NYQ (enduring guardian)
Public GuardianRepresentation: Nil.
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- AGLC
- KZQ [2021] NSWCATGD 19
- Case
- [2021] NSWCATGD 19
- Decision Date
CaseChat Overview and Summary
The court examined the need for guardianship and the suitability of the applicants. It considered the evidence provided about KZQ's capacity to make decisions and the necessity for assistance in various aspects of her life, such as accommodation, healthcare, and consent for medical treatment. The court also assessed the applicants' suitability to act as guardians based on their relationship with KZQ and their ability to make decisions in her best interests.
After reviewing the evidence, the court determined that KZQ required a guardianship order to assist her in making decisions due to her incapacity. The court found that LBP and NYQ were suitable candidates to act as their mother's guardians. The court appointed them jointly as guardians with specific functions, including decision-making about accommodation, healthcare, medical and dental consent, and services. The court also granted the guardians the power to consent to the use of mechanical restraint under certain conditions to ensure KZQ's safety.
The court made a guardianship order for KZQ, appointing LBP and NYQ as her guardians for a period of 12 months. The order includes specific functions for the guardians and conditions for the use of restrictive practices, such as mechanical restraint. The guardians are required to consider KZQ's views before making significant decisions and must only consent to the use of restrictive practices as a last resort and in accordance with a care and support plan.
Orders
Orders of the court
1. A guardianship order is made for KZQ.
2. LBP of [Address removed for publication.] and NYQ of [Addressed removed for publication.] are appointed jointly as the guardians.
3. This is a continuing guardianship order for a period of 12 months from 16 July 2021.
4. This is a limited guardianship order giving the guardian(s) custody of KZQ to the extent necessary to carry out the functions below.
FUNCTIONS: LBP and NYQ
5. LBP and NYQ have the following functions:
a) Accommodation
To decide where KZQ may reside.
b) Health care
To decide what health care KZQ may receive.
c) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where KZQ is not capable of giving a valid consent.
d) Services
To make decisions about services to be provided to KZQ.
e) Restrictive Practices
To give or withhold consent as to whether the following restrictive practices should be used to influence KZQ’s behaviour:
Mechanical 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 KZQ to an understanding of the issues and to obtain and consider their views before making significant decisions.
b) Restrictive Practices Condition
The guardian(s) may only consent to the use of the types of restrictive practices permitted under this order to influence KZQ’s behaviour:
(i) as a last resort to prevent KZQ harming themself or others; and
(ii) in accordance with a care and support plan that incorporates:
a) the behaviours that are being addressed;
b) the reasons why the restraints are necessary;
c) other strategies in place to address the behaviour;
d) provision for review, including by an appropriate practitioner.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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