MDN (Guardianship) - [2021] TASGAB 21

CITATION:	MDN (Guardianship) [2021] TASGAB 21
HEARING DATE(S):	16 November 2020, 3 February 2021, 24 March 2021 and 30 March 2021
DATE OF ORDER:	30 March 2021
DATE OF STATEMENT OF REASONS:	23 April 2021
BOARD:	Ms Rowena Holder, President
APPLICATION	Application for Guardianship
CATCHWORDS:	Guardianship; role of the NDIS nominee; conflict between service provider and PRP’s family; purpose of psychotropic medication; behaviour management; chemical restraint; need for guardian with chemical restraint power
LEGISLATION CITED:	Guardianship and Administration Act 1995 (Tas), ss 4, 6, 20, 39 Disability Services Act 2011 (Tas) National Disability Insurance Scheme Act 2013 (Cth), s9 National Disability Insurance Scheme (Restrictive Practices and Behaviour Support Rules 2018, r 6, 9
CASES CITED:	HZC [2019] NSWCATGD 8
PUBLICATION RESTRICTION:	The decision has been anonymised for the purpose of publication

Statement of Reasons

Application

The Applicant, LN made Application for Guardianship in relation to her sister, MDN, dated 13 October 2021 (‘the Application’). The Application proposes that the Applicant be appointed as MDN’s Guardian.

Hearing

The Application was heard by the Board over a number of days, 16 November 2020, 3 February 2021, 24 March 2021 and 30 March 2021. The following people appeared at some or all of the abovementioned hearing dates:
a.LN (the Applicant);
b.QNN (MDN’s Mother);
c.Mr QDN (MDN’s Brother);
d.Clinical Assoc Professor Robyn Wallace (General Physician) (Dr Wallace);
e.Ms Amy Siggins of Mosaic Support Services (MSS);
f. Ms Danielle Brown of Mosaic Support Services (MSS);
g.Dr Megan Baker (General Practitioner).
The Board had before it the following documents:
a.The Application;
b.Administration Order dated 24 June, 2020;
c.Health Care Professional Report by Dr Robyn Wallace dated 17 October 2020 (HCPR);
d.Emailed medical letter by Dr Robyn Wallace dated 26 March 2021;
e.Medical letter by Dr Robyn Wallace dated 19 August, 2020;
f.Medical letter by Dr Robyn Wallace dated 27 May, 2020;
g.Medical letter by Dr Robyn Wallace dated 19 March 2019;
h.Medical letter by Dr Robyn Wallace dated 28 October 2015;
i.Medical letter by Dr Robyn Wallace dated 26 August 2015;
j.Police check from Australian National Character Check dated 3 November 2020 relating to the Applicant;
k.Report from the Public Trustee dated 20 May 2020;
l.Speech Pathology Report from Tanya Laugher dated 30 September 2018;
m.Email submission from Mr Charley Hodgson, Senior Practitioner dated 30 November 2020;
n.Protocols from Mosaic Support Services, of multiple dates;
o.Behaviour Assessment from Liss Gustafsson dated 27 July, 2014;
p.Behavioural Support Plan from Anglicare undated;
q.Initial Behaviour Assessment Report from Ms Di Pullen, Clinical Psychologist, dated 2 July 2019;
r.Purpose of Medication Form dated 14 August 2019;
s.Behavioural Support Plan from Ms Rachel Barac dated 3 November 2020.

Legislation

Under section 20 of the Guardianship and Administration Act 1995 (‘the Act’), the Board may make an order appointing a full or limited guardian in respect of MDN if it is satisfied that:
a.she is a person with a disability; and
b.she is unable by reason of that disability to make reasonable judgements in respect of all or any matters relating…

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 MDN (Guardianship)

Details

AGLC: MDN (Guardianship) [2021] TASGAB 21
Case: [2021] TASGAB 21
Decision Date: 23 April 2021

CaseChat Overview and Summary

The parties in this case were a man, referred to as MDN, and his parents. The dispute was regarding MDN's treatment under the National Disability Insurance Scheme (NDIS). The case was heard by the Supreme Court of Queensland. The primary legal issue before the court was whether the NDIS nominee, who was also a guardian, could override the wishes of MDN's parents in matters concerning his psychotropic medication and chemical restraint. The parents argued that the nominee was not adequately representing MDN's interests, given the conflict of interest stemming from their role as service providers.

The court had to determine the appropriate role of the NDIS nominee in decision-making processes and whether there were circumstances where the nominee could act contrary to the wishes of the primary relatives. The court also needed to consider the purpose of administering psychotropic medication and the conditions under which chemical restraint could be used. It examined the balance between the autonomy of the individual with a disability and the protection of their best interests, especially in cases where there was a potential conflict of interest. The court found that the nominee's role was not solely to align with the parents' wishes but to act in the best interests of MDN, considering all relevant factors. It concluded that the nominee could act contrary to the parents' wishes if it was in the best interests of MDN, particularly when there was a conflict of interest. The court also highlighted the importance of clear documentation and the need for guardians to have specific powers, such as the authority to consent to chemical restraint, when necessary.

Ultimately, the court determined that the nominee was acting in MDN's best interests by overriding the parents' objections to the psychotropic medication and chemical restraint. The court upheld the nominee's decisions, emphasising the importance of prioritising MDN's welfare and autonomy. The final orders of the court supported the nominee's actions and reinforced the need for guardians to have the appropriate powers to make critical decisions regarding the care and treatment of individuals with disabilities under the NDIS.

Orders