MZG - [2020] NSWCATGD 74

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: MZG [2020] NSWCATGD 74
Hearing dates: 20 August 2020
Date of orders: 20 August 2020
Decision date: 20 August 2020
Jurisdiction: Guardianship Division
Before: K A McMahon, Senior Member (Legal)
J L Newman, General Member (Community)
Decision:
The guardianship order for MZG made on 7 August 2019 has been reviewed. The order now is as follows:
1. The Public Guardian is appointed as the guardian.
2. This is a continuing guardianship order for a period of 12 months from 20 August 2020.
3. This is a limited guardianship order giving the guardian(s) custody of MZG to the extent necessary to carry out the functions below.
FUNCTIONS:
4. The guardian has the following functions:
a) Accommodation
To decide where MZG may reside.
b) Services
To make decisions about services to be provided to MZG.
c) Restrictive Practices
To give or withhold consent as to whether the following restrictive practices should be used to influence MZG’s behaviour:
Environmental restraint
CONDITIONS:
5. The conditions of this order are:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring MZG to an understanding of the issues and to obtain and consider his views before making significant decisions.
b) Restrictive Practices Condition
The guardian(s) may only consent to the use of the types of restrictive practices permitted under this order to influence MZG’s behaviour:
(i) as a last resort to prevent MZG harming himself or others; and
(ii) in accordance with a behaviour support plan which has been developed by a behaviour support practitioner after having conducted a functional behavioural assessment upon MZG, and which is reviewed regularly (and no less than every 12 months) and/or reviewed as soon as practicable if there is a change in circumstances which requires the plan to be amended.

Catchwords:
GUARDIANSHIP – end of term review of guardianship order – restrictive practices function – use of restraint in aged care that is, however, governed by NDIS rules – subject person wants to move out of aged care facility – restrictions on tobacco use – effect of tobacco on episodes and medication – environmental restraint – subject person and sibling oppose order – views outweighed by evidence and risk – proposed guardian lacks insight and has fixed views – Public Guardian appointed

Legislation Cited:
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 4(a), 14, 14(2), 14(2)(b)-(d), 15(3), 17(1)
National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth)

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
IF v IG [2004] NSWADTAP 3
P v D1 & Ors [2011] NSWSC 257
Re B [2011] NSWSC 1075

Texts Cited:
Nil

Category: Principal judgment
Parties:
008: Review of Guardianship Order
MZG (the person)
Public Guardian (appointed guardian)
KBG (carer)
Representation: G Yeo, Separate Representative

File Number(s): NCAT 2014/00383827
Publication restriction: Decisions of the Guardianship Division of…

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 MZG

Details

AGLC: MZG [2020] NSWCATGD 74
Case: [2020] NSWCATGD 74
Decision Date: 20 August 2020

CaseChat Overview and Summary

The case involved the end of term review of a guardianship order for MZG, an individual under the care of the Public Guardian. MZG resides in an aged care facility, and the use of restraint in this setting is governed by the National Disability Insurance Scheme (NDIS) rules. The subject person expressed a desire to leave the aged care facility and smoke tobacco, despite medical evidence suggesting that tobacco use could exacerbate episodes and affect medication. The court had to determine the appropriate guardian and the functions and conditions that should apply to the guardianship order. Both MZG and their sibling opposed the proposed order, citing concerns about the lack of insight and fixed views of the proposed guardian.

The court addressed several key legal issues. It had to determine the appropriate level of guardianship for MZG, considering the evidence presented and the views of MZG and their sibling. The court also had to decide on the specific functions and conditions of the guardianship order, including the use of restrictive practices such as environmental restraint. The court needed to balance the subject person's right to autonomy with the need for appropriate care and management of their behaviour and health.

The court found that the Public Guardian was the most suitable guardian for MZG, given the views of the subject person and their sibling, as well as the evidence presented. The court considered the subject person's desire to leave the aged care facility and smoke tobacco but found that these wishes were outweighed by the evidence of risk and the need for appropriate care. The court also noted that the proposed guardian lacked insight and had fixed views, which would not be in MZG's best interests. The court appointed the Public Guardian as the guardian and outlined specific functions and conditions for the guardianship order. The court ordered that the Public Guardian has the authority to decide MZG's residence, make decisions about services, and consent to the use of restrictive practices as a last resort to prevent harm, in accordance with a behaviour support plan.

The final orders of the court included the appointment of the Public Guardian as MZG's guardian, with a limited guardianship order for a period of 12 months. The guardian was given functions related to accommodation, services, and restrictive practices, with specific conditions for the use of environmental restraint. The court also imposed a standard condition requiring the guardian to consider MZG's views before making significant decisions and a restrictive practices condition that limited the use of such practices to situations where they are necessary to prevent harm and in accordance with a behaviour support plan.

Orders

Orders of the court

The guardianship order for MZG made on 7 August 2019 has been reviewed. The order now is as follows:

1. The Public Guardian is appointed as the guardian.

2. This is a continuing guardianship order for a period of 12 months from 20 August 2020.

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

FUNCTIONS:

4. The guardian has the following functions:

a) Accommodation

To decide where MZG may reside.

b) Services

To make decisions about services to be provided to MZG.

c) Restrictive Practices

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

Environmental restraint

CONDITIONS:

5. The conditions of this order are:

a) Standard Condition

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

b) Restrictive Practices Condition

The guardian(s) may only consent to the use of the types of restrictive practices permitted under this order to influence MZG’s behaviour:

(i) as a last resort to prevent MZG harming himself or others; and

(ii) in accordance with a behaviour support plan which has been developed by a behaviour support practitioner after having conducted a functional behavioural assessment upon MZG, and which is reviewed regularly (and no less than every 12 months) and/or reviewed as soon as practicable if there is a change in circumstances which requires the plan to be amended.

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:	MZG [2020] NSWCATGD 74
Hearing dates:	20 August 2020
Date of orders:	20 August 2020
Decision date:	20 August 2020
Jurisdiction:	Guardianship Division
Before:	K A McMahon, Senior Member (Legal) J L Newman, General Member (Community)
Decision:	The guardianship order for MZG made on 7 August 2019 has been reviewed. The order now is as follows: 1. The Public Guardian is appointed as the guardian. 2. This is a continuing guardianship order for a period of 12 months from 20 August 2020. 3. This is a limited guardianship order giving the guardian(s) custody of MZG to the extent necessary to carry out the functions below. FUNCTIONS: 4. The guardian has the following functions: a) Accommodation To decide where MZG may reside. b) Services To make decisions about services to be provided to MZG. c) Restrictive Practices To give or withhold consent as to whether the following restrictive practices should be used to influence MZG’s behaviour: Environmental restraint CONDITIONS: 5. The conditions of this order are: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring MZG to an understanding of the issues and to obtain and consider his views before making significant decisions. b) Restrictive Practices Condition The guardian(s) may only consent to the use of the types of restrictive practices permitted under this order to influence MZG’s behaviour: (i) as a last resort to prevent MZG harming himself or others; and (ii) in accordance with a behaviour support plan which has been developed by a behaviour support practitioner after having conducted a functional behavioural assessment upon MZG, and which is reviewed regularly (and no less than every 12 months) and/or reviewed as soon as practicable if there is a change in circumstances which requires the plan to be amended.
Catchwords:	GUARDIANSHIP – end of term review of guardianship order – restrictive practices function – use of restraint in aged care that is, however, governed by NDIS rules – subject person wants to move out of aged care facility – restrictions on tobacco use – effect of tobacco on episodes and medication – environmental restraint – subject person and sibling oppose order – views outweighed by evidence and risk – proposed guardian lacks insight and has fixed views – Public Guardian appointed
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 4(a), 14, 14(2), 14(2)(b)-(d), 15(3), 17(1) National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth)
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 IF v IG [2004] NSWADTAP 3 P v D1 & Ors [2011] NSWSC 257 Re B [2011] NSWSC 1075
Texts Cited:	Nil
Category:	Principal judgment
Parties:	008: Review of Guardianship Order MZG (the person) Public Guardian (appointed guardian) KBG (carer)
Representation:	G Yeo, Separate Representative
File Number(s):	NCAT 2014/00383827
Publication restriction:	Decisions of the Guardianship Division of…