MZC - [2018] NSWCATGD 34

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: MZC [2018] NSWCATGD 34
Hearing dates: 30 November 2018
Date of orders: 30 November 2018
Decision date: 30 November 2018
Jurisdiction: Guardianship Division
Before: S Roushan, Senior Member (Legal)
J McAuliffe, Senior Member (Professional)
L Porter, General Member (Community)
Decision:
1. A guardianship order is made for MZC.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 30 November 2018.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Services

To make decisions about services to be provided to MZC.

b) Restrictive Practices

To make decisions about the following restrictive practices:

1. use of chemical restraint on a PRN basis;

2. use of a shield/barrier in any vehicle involved in transporting MZC; and

3. restriction of his access to the contents of fridge, freezer and/or pantry.

CONDITIONS:

6. The conditions of this order are:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring MZC to an understanding of the issues and to obtain and consider his views before making significant decisions.

b) Restrictive Practices Condition

The guardian may only consent to:
the restrictive practices to address challenging behaviours within the context of the implementation/development of a comprehensive positive behaviour intervention and support program (or within the context of positive programming addressing MZC’s lifestyle and skills development needs) and to ensure that he has reasonable opportunities to access the community.
Catchwords:
GUARDIANSHIP – application for a guardianship order – functions of guardian – restrictive practices – definition and nature of restrictive practices – relationship between restrictive practices and NDIS – chemical restraint – environmental restraint – whether practice is a restrictive practice – guardianship order made – appointment of Public Guardian as guardian
WORDS AND PHRASES – Non Purposeful Risk Behaviour
Legislation Cited: Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 14, 14(2), 15(3),17, 17(1), Pt 5
National Disability Insurance Scheme Act 2013 (Cth), ss 9, 73J
National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth), rr 6–7, 9, Pt 2
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
Re B [2011] NSWSC 1075
Texts Cited: NSW Restrictive Practice Authorisation Policy 2018
Category: Principal judgment
Parties:
Guardianship Application
MZC (the person)
OXM (applicant)
Public Guardian (proposed guardian)
Representation: Nil

File Number(s): NCAT 2003/00192467
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

Background

MZC is a 54-year-old man of Italian background. He is currently living in a one-bedroom…

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 MZC

Details

AGLC: MZC [2018] NSWCATGD 34
Case: [2018] NSWCATGD 34
Decision Date: 30 November 2018

CaseChat Overview and Summary

The court was presented with an application for a guardianship order for MZC, an individual with complex needs, involving decisions regarding their care and restrictive practices. The Public Guardian sought to be appointed as MZC's guardian, with the aim of providing oversight and decision-making authority in relation to specific services and restrictive practices. The legal issues at the heart of this case centred on the definition and scope of restrictive practices, their relationship with the National Disability Insurance Scheme (NDIS), and the necessity of certain practices in the context of MZC's care.

The court addressed the definition of restrictive practices and the circumstances under which they might be justified. It considered the nature of the practices in question, including the use of chemical restraint on a pro re nata (PRN) basis, the use of a shield/barrier during transportation, and the restriction of MZC's access to certain food items. The court examined whether these practices could be classified as restrictive and if they were necessary for MZC's safety, well-being, and development. Furthermore, the court evaluated the interplay between restrictive practices and the NDIS, seeking to ensure that any decisions made were in line with NDIS principles and MZC's rights.

Upon review, the court determined that the proposed guardianship order and the specified functions and conditions were appropriate for MZC's circumstances. The court found that the restrictive practices in question were necessary to address MZC's challenging behaviours and to support their development within a positive behaviour intervention and support program. The court also emphasised the importance of involving MZC in decision-making processes and ensuring their access to the community. Consequently, the court made a guardianship order appointing the Public Guardian as MZC's guardian, with specific functions and conditions to guide the guardian's decision-making.

The final orders of the court included the establishment of a guardianship order for MZC for a period of 12 months, with the Public Guardian appointed as the guardian. The order outlined the guardian's functions, which encompassed decisions about services and specific restrictive practices. Conditions were also set, requiring the guardian to consider MZC's views and to ensure that restrictive practices were used within the context of positive programming and NDIS principles.

Orders

Orders of the court

1. A guardianship order is made for MZC.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 30 November 2018.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Services

To make decisions about services to be provided to MZC.

b) Restrictive Practices

To make decisions about the following restrictive practices:

1. use of chemical restraint on a PRN basis;

2. use of a shield/barrier in any vehicle involved in transporting MZC; and

3. restriction of his access to the contents of fridge, freezer and/or pantry.

CONDITIONS:

6. The conditions of this order are:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring MZC to an understanding of the issues and to obtain and consider his views before making significant decisions.

b) Restrictive Practices Condition

The guardian may only consent to:

the restrictive practices to address challenging behaviours within the context of the implementation/development of a comprehensive positive behaviour intervention and support program (or within the context of positive programming addressing MZC’s lifestyle and skills development needs) and to ensure that he has reasonable opportunities to access the community.

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:	MZC [2018] NSWCATGD 34
Hearing dates:	30 November 2018
Date of orders:	30 November 2018
Decision date:	30 November 2018
Jurisdiction:	Guardianship Division
Before:	S Roushan, Senior Member (Legal) J McAuliffe, Senior Member (Professional) L Porter, General Member (Community)
Decision:	1. A guardianship order is made for MZC. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of 12 months from 30 November 2018. 4. This is a limited guardianship order giving the guardian(s) custody of MZC to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Services To make decisions about services to be provided to MZC. b) Restrictive Practices To make decisions about the following restrictive practices: 1. use of chemical restraint on a PRN basis; 2. use of a shield/barrier in any vehicle involved in transporting MZC; and 3. restriction of his access to the contents of fridge, freezer and/or pantry. CONDITIONS: 6. The conditions of this order are: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring MZC to an understanding of the issues and to obtain and consider his views before making significant decisions. b) Restrictive Practices Condition The guardian may only consent to: the restrictive practices to address challenging behaviours within the context of the implementation/development of a comprehensive positive behaviour intervention and support program (or within the context of positive programming addressing MZC’s lifestyle and skills development needs) and to ensure that he has reasonable opportunities to access the community.
Catchwords:	GUARDIANSHIP – application for a guardianship order – functions of guardian – restrictive practices – definition and nature of restrictive practices – relationship between restrictive practices and NDIS – chemical restraint – environmental restraint – whether practice is a restrictive practice – guardianship order made – appointment of Public Guardian as guardian WORDS AND PHRASES – Non Purposeful Risk Behaviour
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 14, 14(2), 15(3),17, 17(1), Pt 5 National Disability Insurance Scheme Act 2013 (Cth), ss 9, 73J National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth), rr 6–7, 9, Pt 2
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 Re B [2011] NSWSC 1075
Texts Cited:	NSW Restrictive Practice Authorisation Policy 2018
Category:	Principal judgment
Parties:	Guardianship Application MZC (the person) OXM (applicant) Public Guardian (proposed guardian)
Representation:	Nil
File Number(s):	NCAT 2003/00192467
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)).