NBT - [2021] NSWCATGD 2

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: NBT [2021] NSWCATGD 2
Hearing dates: 12 January 2021
Date of orders: 12 January 2021
Decision date: 12 January 2021
Jurisdiction: Guardianship Division
Before: J Moir, Senior Member (Legal)
Dr S Williams, Senior Member (Professional)
L Stewart, General Member (Community)
Decision:
1. A guardianship order is made for NBT.
2. QZT of [Address removed for publication.] is appointed as the guardian.
3. This is a continuing guardianship order for a period of 12 months from 12 January 2021.
4. This is a limited guardianship order giving the guardian custody of NBT to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Accommodation
To decide where NBT may reside.
b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:
i) take NBT to a place approved by the guardian.
ii) keep him at that place.
iii) return him to that place should he leave it.
c) Health care
To decide what health care NBT may receive.
d) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where NBT is not capable of giving a valid consent.
e) Restrictive Practices
To give or withhold consent as to whether the following restrictive practices should be used to influence NBT’s behaviour:
1. Chemical restraint
2. Physical restraint
CONDITIONS:
6. The conditions of this order are:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring NBT 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 use of the types of restrictive practices permitted under this order to influence NBT’s behaviour:
(i) as a last resort to prevent NBT harming himself or others; and
(ii) in accordance with a care and services plan that incorporates:
i. the behaviours that are relevant to the need for restraint;
ii. reasons why the restraint is necessary;
iii. the alternatives to restraint that have been used (if any); and
iv. provision for review, including by an appropriate medical specialist/s.

Catchwords:
GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made - subject person living at home with family – subject person exhibiting behavioural and psychological symptoms of dementia – subject person experiencing poor memory - high level of carer stress – need for accommodation decision to be made – subject person unwilling to move to aged care - enduring guardian lacks authority to authorise others to implement accommodation decisions – need for subject person to be housed in secure unit – use of physical restraint – subject person prescribed risperidone to manage his behaviour – need for decisions about physical and chemical restraint – suitability of proposed guardian – evidence of enduring guardian appointment as indicative of subject person’s wishes – private guardian appointed –…

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.

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Details

AGLC: NBT [2021] NSWCATGD 2
Case: [2021] NSWCATGD 2
Decision Date: 12 January 2021

CaseChat Overview and Summary

The case involves an application for a guardianship order for a subject person, NBT, who is living with his family and exhibiting behavioural and psychological symptoms of dementia. The dispute revolves around the need for NBT to be placed in a secure unit to address his care needs, which his family is currently unable to provide due to the high level of carer stress and his unwillingness to move to aged care. The court was tasked with determining whether a guardianship order should be made, and if so, the scope and conditions of such an order.

The primary legal issue the court had to decide was whether a guardianship order should be made for NBT, considering his current living situation, his health condition, and the need for decisions regarding his accommodation, health care, and the use of restrictive practices such as chemical and physical restraint. The court also had to determine the suitability of the proposed guardian and the specific functions and conditions that should apply to the guardianship order.

The court found that a guardianship order was necessary to address NBT's care needs and appointed QZT as his guardian. The order allows the guardian to make decisions about NBT's accommodation, health care, and the use of restrictive practices, with specific conditions to ensure that NBT's views are considered and that restrictive practices are used as a last resort. The court considered the evidence of NBT's previous appointment of an enduring guardian as indicative of his wishes and found QZT to be a suitable candidate for the role.

The court made a guardianship order for NBT, appointing QZT as the guardian with specified functions and conditions. The order is a limited guardianship order for a period of 12 months, giving the guardian custody of NBT to the extent necessary to carry out the functions of accommodation, health care, medical/dental consent, and restrictive practices. The guardian must take reasonable steps to understand NBT's views and consider them before making significant decisions, and the use of restrictive practices must be in accordance with a care and services plan that includes reasons for their necessity and alternatives that have been tried.

Orders

Orders of the court

1. A guardianship order is made for NBT.

2. QZT of [Address removed for publication.] is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 12 January 2021.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where NBT may reside.

b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:

i) take NBT to a place approved by the guardian.

ii) keep him at that place.

iii) return him to that place should he leave it.

c) Health care

To decide what health care NBT may receive.

d) Medical/Dental consent

To make substitute decisions about proposed minor or major medical or dental treatment, where NBT is not capable of giving a valid consent.

e) Restrictive Practices

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

1. Chemical restraint

2. Physical restraint

CONDITIONS:

6. The conditions of this order are:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring NBT 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 use of the types of restrictive practices permitted under this order to influence NBT’s behaviour:

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

(ii) in accordance with a care and services plan that incorporates:

i. the behaviours that are relevant to the need for restraint;

ii. reasons why the restraint is necessary;

iii. the alternatives to restraint that have been used (if any); and

iv. provision for review, including by an appropriate medical specialist/s.

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:	NBT [2021] NSWCATGD 2
Hearing dates:	12 January 2021
Date of orders:	12 January 2021
Decision date:	12 January 2021
Jurisdiction:	Guardianship Division
Before:	J Moir, Senior Member (Legal) Dr S Williams, Senior Member (Professional) L Stewart, General Member (Community)
Decision:	1. A guardianship order is made for NBT. 2. QZT of [Address removed for publication.] is appointed as the guardian. 3. This is a continuing guardianship order for a period of 12 months from 12 January 2021. 4. This is a limited guardianship order giving the guardian custody of NBT to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Accommodation To decide where NBT may reside. b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to: i) take NBT to a place approved by the guardian. ii) keep him at that place. iii) return him to that place should he leave it. c) Health care To decide what health care NBT may receive. d) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where NBT is not capable of giving a valid consent. e) Restrictive Practices To give or withhold consent as to whether the following restrictive practices should be used to influence NBT’s behaviour: 1. Chemical restraint 2. Physical restraint CONDITIONS: 6. The conditions of this order are: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring NBT 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 use of the types of restrictive practices permitted under this order to influence NBT’s behaviour: (i) as a last resort to prevent NBT harming himself or others; and (ii) in accordance with a care and services plan that incorporates: i. the behaviours that are relevant to the need for restraint; ii. reasons why the restraint is necessary; iii. the alternatives to restraint that have been used (if any); and iv. provision for review, including by an appropriate medical specialist/s.
Catchwords:	GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made - subject person living at home with family – subject person exhibiting behavioural and psychological symptoms of dementia – subject person experiencing poor memory - high level of carer stress – need for accommodation decision to be made – subject person unwilling to move to aged care - enduring guardian lacks authority to authorise others to implement accommodation decisions – need for subject person to be housed in secure unit – use of physical restraint – subject person prescribed risperidone to manage his behaviour – need for decisions about physical and chemical restraint – suitability of proposed guardian – evidence of enduring guardian appointment as indicative of subject person’s wishes – private guardian appointed –…