MS

The matter before the court involved an application for guardianship of an individual, MS, under the Guardianship and Administration Act 1990 (WA). MS, who had reached the age of 18 and was a recipient of the National Disability Insurance Scheme (NDIS), had previously been subject to informal arrangements that allowed for the use of restrictive practices. The introduction of the NDIS in Western Australia, along with the State's policy regulating the use of restrictive practices, necessitated a determination of whether a guardian's consent was required for such practices in the context of NDIS recipients. The application for guardianship sought to clarify whether the criteria for appointing a guardian were met and if a guardian's authority extended to consenting to the use of restrictive practices.

The primary legal issues before the court were whether the criteria for appointing a guardian were met, and if so, whether the legal authority of a guardian extended to consenting to the use of restrictive practices on the represented person. The court had to consider the nature of restrictive practices, their legal consequences, and the relevant regulation in Western Australia. Additionally, the court needed to determine if a specific authority to consent to the use of restrictive practices was necessary under the Guardianship and Administration Act 1990 (WA), given the individual's status as an NDIS recipient.

In addressing these issues, the court noted that the authority of MS's parents to make decisions on his behalf had ended once he turned 18, and thus, they no longer had the legal authority to consent to the use of restrictive practices. The court further examined the authority of a guardian appointed under the Guardianship and Administration Act 1990 (WA), concluding that a plenary guardian's authority did not extend to consenting to the use of restrictive practices, as this power was not vested in a person in whose favour a parenting order had been made. The court held that the authority of a plenary guardian was limited and did not include the right to consent to the use of restrictive practices, which required specific authorisation under the NDIS scheme and State policy.

The court ordered that a guardian be appointed for MS, but clarified that the guardian's authority did not extend to consenting to the use of restrictive practices. The court emphasised the need for specific authorisation for the use of restrictive practices, in accordance with the NDIS scheme and State policy. This decision ensures that the legal framework governing the use of restrictive practices is properly adhered to, protecting the rights and welfare of individuals receiving NDIS services.