MAQ - [2016] NSWCATGD 70

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: MAQ [2016] NSWCATGD 70
Hearing dates: 2 December 2016
Date of orders: 02 December 2016
Decision date: 02 December 2016
Jurisdiction: Guardianship Division
Before: A Britton, Principal Member
Decision:
1. The guardianship order for Ms MAQ made by the Tribunal on 7 December 2011 is renewed and varied so that the order is now as follows:

2. This is a continuing guardianship order for a period of 2 years from the date of this order.

3. Ms KBL is appointed as the guardian for Ms MAQ.

4. This is a limited guardianship order giving the guardian custody of Ms MAQ to the extent necessary to carry out the functions below.

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where Ms MAQ may reside.

b) Health care

To decide what health care Ms MAQ may receive.

c) Medical and Dental Consent

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

d) Restrictive Practices

To make decisions about the following restrictive practices:-
• Locking the front door of Ms MAQ’s residence
• Locking the door to the kitchen, laundry and toilet
• Locks to taps

e) Services

To make decisions about services to be provided to Ms MAQ.

CONDITIONS:

6. The condition of this order is:
a) In exercising this role the guardian shall take all reasonable steps to bring Ms MAQ to an understanding of the issues and to obtain and consider her views before making significant decisions.
b) The guardian may only consent to:-
i) Restriction of Ms MAQ’s freedom of movement;
to address challenging behaviours within the context of the implementation of a comprehensive positive behaviour intervention and support program.
Catchwords: GUARDIANSHIP – requested review of guardianship order – previously appointed guardian deceased – operation of s 22A of the Guardianship Act – Public Guardian appointed – participation by subject person in the hearing – hearing proceeded in absence of subject person – Public Guardian recommended order lapse – need for order – restrictive practices – behaviour support plan in place – guardianship order renewed and varied – private guardian appointed
Legislation Cited: Civil and Administrative Tribunal 2013 (NSW), cl 5 of Sch 6
Guardianship Act 1987 (NSW), ss 3(2), 4, 4(b), 14, 14(2), 17, 17(1)(a)-(c), 18(1), 22A, 25C(2)
Cases Cited: IF v IG & Ors [2004] NSWADTAP 3
Texts Cited: Nil
Category: Principal judgment
Parties: Ms MAQ (the subject person)
Ms KBL (the applicant)
The NSW Public Guardian
Representation: Nil

File Number(s): 1989/00049556
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

Fifty-six year old Ms MAQ lives in a group home managed by the Ageing Disability and Homecare Group. Since 1991, she has been…

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 MAQ

Details

AGLC: MAQ [2016] NSWCATGD 70
Case: [2016] NSWCATGD 70
Decision Date: 02 December 2016

CaseChat Overview and Summary

In the matter of MAQ, the respondent, the Queensland Civil and Administrative Tribunal (QCAT) was tasked with reviewing a guardianship order made in relation to the respondent. The previous guardian had passed away, necessitating the appointment of a new guardian. The QCAT had to determine whether a guardianship order was still necessary and, if so, who should be appointed as the new guardian. Additionally, the court needed to consider the implications of restrictive practices and the implementation of a behaviour support plan.

The QCAT began by examining the necessity of a guardianship order for MAQ. The court considered the restrictive practices in place and the existing behaviour support plan. The evidence presented indicated that the guardianship order was still necessary to manage MAQ’s care and wellbeing effectively. The court then turned to the question of who should be appointed as the new guardian. The Public Guardian recommended that the order lapse, but the QCAT concluded that a new guardian was required. The court considered the suitability of various potential guardians, ultimately deciding on Ms KBL as the most appropriate candidate.

The QCAT concluded that a guardianship order was necessary for MAQ and appointed Ms KBL as the new guardian. The court issued a continuing guardianship order for a period of two years, with Ms KBL taking on limited guardianship functions, including decisions about accommodation, health care, medical and dental consent, and certain restrictive practices. The court also set conditions for the guardian’s role, requiring her to involve MAQ in decision-making processes and to ensure her consent was only used to address challenging behaviours within the context of a positive behaviour intervention and support program.

The final orders of the QCAT included the renewal and variation of the guardianship order, with Ms KBL appointed as the new guardian. The order granted Ms KBL specific functions and imposed conditions on her role to ensure MAQ’s rights and interests were protected.

Orders

Orders of the court

1. The guardianship order for Ms MAQ made by the Tribunal on 7 December 2011 is renewed and varied so that the order is now as follows:

2. This is a continuing guardianship order for a period of 2 years from the date of this order.

3. Ms KBL is appointed as the guardian for Ms MAQ.

4. This is a limited guardianship order giving the guardian custody of Ms MAQ to the extent necessary to carry out the functions below.

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where Ms MAQ may reside.

b) Health care

To decide what health care Ms MAQ may receive.

c) Medical and Dental Consent

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

d) Restrictive Practices

To make decisions about the following restrictive practices:-

• Locking the front door of Ms MAQ’s residence

• Locking the door to the kitchen, laundry and toilet

• Locks to taps

e) Services

To make decisions about services to be provided to Ms MAQ.

CONDITIONS:

6. The condition of this order is:

a) In exercising this role the guardian shall take all reasonable steps to bring Ms MAQ to an understanding of the issues and to obtain and consider her views before making significant decisions.

b) The guardian may only consent to:-

i) Restriction of Ms MAQ’s freedom of movement;

to address challenging behaviours within the context of the implementation of a comprehensive positive behaviour intervention and support program.

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:	MAQ [2016] NSWCATGD 70
Hearing dates:	2 December 2016
Date of orders:	02 December 2016
Decision date:	02 December 2016
Jurisdiction:	Guardianship Division
Before:	A Britton, Principal Member
Decision:	1. The guardianship order for Ms MAQ made by the Tribunal on 7 December 2011 is renewed and varied so that the order is now as follows: 2. This is a continuing guardianship order for a period of 2 years from the date of this order. 3. Ms KBL is appointed as the guardian for Ms MAQ. 4. This is a limited guardianship order giving the guardian custody of Ms MAQ to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Accommodation To decide where Ms MAQ may reside. b) Health care To decide what health care Ms MAQ may receive. c) Medical and Dental Consent To make substitute decisions about proposed minor or major medical or dental treatment, where Ms MAQ is not capable of giving a valid consent. d) Restrictive Practices To make decisions about the following restrictive practices:- • Locking the front door of Ms MAQ’s residence • Locking the door to the kitchen, laundry and toilet • Locks to taps e) Services To make decisions about services to be provided to Ms MAQ. CONDITIONS: 6. The condition of this order is: a) In exercising this role the guardian shall take all reasonable steps to bring Ms MAQ to an understanding of the issues and to obtain and consider her views before making significant decisions. b) The guardian may only consent to:- i) Restriction of Ms MAQ’s freedom of movement; to address challenging behaviours within the context of the implementation of a comprehensive positive behaviour intervention and support program.
Catchwords:	GUARDIANSHIP – requested review of guardianship order – previously appointed guardian deceased – operation of s 22A of the Guardianship Act – Public Guardian appointed – participation by subject person in the hearing – hearing proceeded in absence of subject person – Public Guardian recommended order lapse – need for order – restrictive practices – behaviour support plan in place – guardianship order renewed and varied – private guardian appointed
Legislation Cited:	Civil and Administrative Tribunal 2013 (NSW), cl 5 of Sch 6 Guardianship Act 1987 (NSW), ss 3(2), 4, 4(b), 14, 14(2), 17, 17(1)(a)-(c), 18(1), 22A, 25C(2)
Cases Cited:	IF v IG & Ors [2004] NSWADTAP 3
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Ms MAQ (the subject person) Ms KBL (the applicant) The NSW Public Guardian
Representation:	Nil
File Number(s):	1989/00049556
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)).