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
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…
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- AGLC
- MZG [2020] NSWCATGD 74
- Case
- [2020] NSWCATGD 74
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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