LZN - [2021] NSWCATGD 12

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: LZN [2021] NSWCATGD 12
Hearing dates: 12 April 2021
Date of orders: 12 April 2021
Decision date: 12 April 2021
Jurisdiction: Guardianship Division
Before: A D Suthers, Principal Member
W E Blaxland, Senior Member (Professional)
E A Pickering, General Member (Community)
Decision:
1. A guardianship order is made for LZN.
2. The Public Guardian is appointed as the guardian.
3. This is a continuing guardianship order for a period of 12 months from 12 April 2021.
4. This is a limited guardianship order giving the guardian(s) custody of LZN to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Health care
To decide what health care LZN may receive.
b) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where LZN is not capable of giving a valid consent.
c) Restrictive Practices
To give or withhold consent as to whether the following restrictive practices should be used to influence LZN’s behaviour:
1. Chemical restraint
AUTHORITIES:
6. The guardian has the following authority:
a) Authority to override objections to medical treatment
i) The guardian may override the objection of LZN to major or minor medical treatment.
CONDITIONS:
7. The conditions of this order are:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring LZN to an understanding of the issues and to obtain and consider her 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 LZN’s behaviour:
(i) as a last resort to prevent LZN harming herself or others; and
(ii) in accordance with a care and services plan that incorporates:
(a) the behaviours that are relevant to the need for the restraint;
(b) reasons why the restraint is necessary;
(c) the alternatives to restraint that have been used (if any); and
(d) provision for review, including by an appropriate medical specialist.

Catchwords:
GUARDIANSHIP – COVID-19 vaccination – requirement for consent of guardian or person responsible – objection to vaccination – requirement for formal consent

Legislation Cited:
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14(1)-(2), 15(3), 17, 33(1), 33A(4)-(5), 37(3), 46(4), Pt 5

Cases Cited:
C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep)
HZC [2019] NSWCATGD 8
JFL [2020] NSWCATGD 32
P v D1 & Ors [2011] NSWSC 257
Re B [2011] NSWSC 1075
W v G [2003] NSWSC 1170

Texts Cited:
Nil

Category: Principal judgment
Parties:
006: Guardianship Application
LZN (the person)
UYC (applicant)
Public Guardian
Representation: Nil

File Number(s): NCAT 2019/00098548
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 Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR…

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 LZN

Details

AGLC: LZN [2021] NSWCATGD 12
Case: [2021] NSWCATGD 12
Decision Date: 12 April 2021

CaseChat Overview and Summary

In the case of LZN, the Supreme Court of Victoria was asked to decide on the need for a guardianship order due to LZN's inability to provide consent for medical treatment, specifically COVID-19 vaccination. The court was tasked with determining whether a guardianship order was necessary, and if so, who should be appointed as the guardian and what specific powers and responsibilities should be assigned. The legal issues involved interpreting the relevant legislation, assessing LZN's capacity to consent to medical treatment, and determining the appropriate scope of the guardianship order to ensure LZN's health and wellbeing.

The court considered the evidence presented regarding LZN's capacity to consent to medical treatment, particularly in relation to COVID-19 vaccination. The court found that LZN lacked the capacity to provide informed consent for the vaccination and that it was necessary to appoint a guardian to make substitute decisions on her behalf. The court also considered the need for a limited guardianship order, as the scope of the guardianship should be tailored to the specific needs and circumstances of LZN. The court appointed the Public Guardian as LZN's guardian, recognising their expertise in handling such cases and their ability to make decisions in the best interests of LZN.

The court ordered that a guardianship order be made for LZN, appointing the Public Guardian as her guardian for a period of 12 months. The order granted the guardian specific powers, including the ability to make decisions about LZN's health care and to consent to medical treatment where LZN was unable to provide informed consent. The order also included conditions to ensure that the guardian acted in LZN's best interests and took reasonable steps to involve her in decision-making where possible. The court emphasised the importance of considering LZN's views and ensuring that the guardian acted in accordance with a care and services plan that incorporated relevant behaviours, reasons for restraint, alternatives to restraint, and provision for review.

The final orders of the court established a guardianship order for LZN, appointing the Public Guardian as her guardian for a period of 12 months. The guardian was granted specific powers, including the ability to make decisions about LZN's health care and to consent to medical treatment where LZN was unable to provide informed consent. The order also included conditions to ensure that the guardian acted in LZN's best interests and took reasonable steps to involve her in decision-making where possible. The court's decision aimed to protect LZN's health and wellbeing while respecting her rights and autonomy to the greatest extent possible.

Orders

Orders of the court

1. A guardianship order is made for LZN.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 12 April 2021.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Health care

To decide what health care LZN may receive.

b) Medical/Dental consent

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

c) Restrictive Practices

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

1. Chemical restraint

AUTHORITIES:

6. The guardian has the following authority:

a) Authority to override objections to medical treatment

i) The guardian may override the objection of LZN to major or minor medical treatment.

CONDITIONS:

7. The conditions of this order are:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring LZN to an understanding of the issues and to obtain and consider her 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 LZN’s behaviour:

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

(ii) in accordance with a care and services plan that incorporates:

(a) the behaviours that are relevant to the need for the restraint;

(b) reasons why the restraint is necessary;

(d) provision for review, including by an appropriate medical specialist.

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:	LZN [2021] NSWCATGD 12
Hearing dates:	12 April 2021
Date of orders:	12 April 2021
Decision date:	12 April 2021
Jurisdiction:	Guardianship Division
Before:	A D Suthers, Principal Member W E Blaxland, Senior Member (Professional) E A Pickering, General Member (Community)
Decision:	1. A guardianship order is made for LZN. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of 12 months from 12 April 2021. 4. This is a limited guardianship order giving the guardian(s) custody of LZN to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Health care To decide what health care LZN may receive. b) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where LZN is not capable of giving a valid consent. c) Restrictive Practices To give or withhold consent as to whether the following restrictive practices should be used to influence LZN’s behaviour: 1. Chemical restraint AUTHORITIES: 6. The guardian has the following authority: a) Authority to override objections to medical treatment i) The guardian may override the objection of LZN to major or minor medical treatment. CONDITIONS: 7. The conditions of this order are: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring LZN to an understanding of the issues and to obtain and consider her 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 LZN’s behaviour: (i) as a last resort to prevent LZN harming herself or others; and (ii) in accordance with a care and services plan that incorporates: (a) the behaviours that are relevant to the need for the restraint; (b) reasons why the restraint is necessary; (c) the alternatives to restraint that have been used (if any); and (d) provision for review, including by an appropriate medical specialist.
Catchwords:	GUARDIANSHIP – COVID-19 vaccination – requirement for consent of guardian or person responsible – objection to vaccination – requirement for formal consent
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14(1)-(2), 15(3), 17, 33(1), 33A(4)-(5), 37(3), 46(4), Pt 5
Cases Cited:	C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) HZC [2019] NSWCATGD 8 JFL [2020] NSWCATGD 32 P v D1 & Ors [2011] NSWSC 257 Re B [2011] NSWSC 1075 W v G [2003] NSWSC 1170
Texts Cited:	Nil
Category:	Principal judgment
Parties:	006: Guardianship Application LZN (the person) UYC (applicant) Public Guardian
Representation:	Nil
File Number(s):	NCAT 2019/00098548
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 Administrative Tribunal Act 2013 (NSW), s 65.