KZQ - [2021] NSWCATGD 19

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)
IF v IG [2004] NSWADTAP 3
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 Guardian
Representation: Nil.

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 KZQ

Details

AGLC: KZQ [2021] NSWCATGD 19
Case: [2021] NSWCATGD 19
Decision Date: 16 July 2021

CaseChat Overview and Summary

In the case concerning KZQ, the Supreme Court of Victoria was asked to appoint guardians for an individual who required assistance with decision-making in various areas of their life. The application was made by KZQ's adult children, LBP and NYQ, who sought to be appointed as their mother's guardians. The court had to decide whether the application should be granted and, if so, what powers and responsibilities should be assigned to the guardians.

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

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:	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) IF v IG [2004] NSWADTAP 3 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 Guardian
Representation:	Nil.