NXN - [2023] NSWCATGD 10

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: NXN [2023] NSWCATGD 10
Hearing dates: 26 April 2023
Date of orders: 26 April 2023
Decision date: 26 April 2023
Jurisdiction: Guardianship Division
Before: J Moir, Senior Member (Legal)
Dr K Djekovic, Senior Member (Professional)
D R Sword, General Member (Community)
Decision:
The guardianship order for NXN made on 15 March 2023 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 11 months from 26 April 2023.
3.   This is a limited guardianship order giving the guardian custody of NXN to the extent necessary to carry out the functions below.
FUNCTIONS:
4.   The guardian has the following functions:
a)   Access
To decide what access NXN has to others and the conditions of access.
b)   Accommodation
To decide where NXN may reside.
c)   The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:
(i) take NXN to a place approved by the guardian.
(ii) keep her at that place.
(iii) return her to that place should she leave it.
d)   Health care
To decide what health care NXN may receive.
e)   Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where NXN is not capable of giving a valid consent.
f)   Services
To make decisions about services to be provided to NXN.
g)   Restrictive Practices
To give or withhold consent as to whether the following restrictive practice should be used to influence NXN’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 NXN to an understanding of the issues and to obtain and consider her views before making significant decisions.
b)   NDIS Restrictive Practices Condition
The guardian may only consent to the use of the types of restrictive practices permitted under this order to influence NXN’s behaviour:
(i)   as a last resort to prevent NXN harming herself 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 NXN, 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.
Financial Management
1. The estate of NXN is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2.   The management of the estate of NXN is committed to the NSW Trustee and Guardian.
3.   This order be reviewed by the Tribunal within 11 months.

Catchwords:
GUARDIANSHIP – requested review of a guardianship order – whether guardianship order should be varied – 18-year-old subject person – subject person an in-patient in a public hospital – subject person reportedly suffering from severe, chronic and life-threatening malnutrition and severe neglect –…

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 NXN

Details

AGLC: NXN [2023] NSWCATGD 10
Case: [2023] NSWCATGD 10
Decision Date: 26 April 2023

CaseChat Overview and Summary

The parties involved in the case are NXN, a young woman suffering from severe, chronic, and life-threatening malnutrition and neglect, and the Public Guardian, who was appointed to oversee her care and welfare. The dispute centred on whether the guardianship order should be varied to better suit NXN's needs, and whether a financial management order should be granted to manage her estate. The case was heard by the NCAT Civil and Administrative Tribunal.

The legal issues the court had to decide included whether NXN was incapable of managing her own affairs and if she was vulnerable to undue influence. The court also had to consider if NXN was suitable for an independent financial manager to manage her estate. Furthermore, the court had to assess whether the use of restrictive practices, such as environmental restraint, was necessary to prevent NXN from harming herself or others. The court had to weigh the benefits of such practices against the potential negative impact on NXN's wellbeing.

The court reviewed the guardianship order and decided to vary it, appointing the Public Guardian as NXN's guardian. The order was made for a period of 11 months, with the guardian having various functions, including access, accommodation, health care, medical and dental consent, services, and restrictive practices. The court also granted a financial management order, committing the management of NXN's estate to the NSW Trustee and Guardian. The court determined that NXN was vulnerable to influence and had limited experience in managing financial matters, making her suitable for an independent financial manager. The court ordered that the order be reviewed within 11 months.

The final orders of the court included varying the guardianship order to appoint the Public Guardian as NXN's guardian, granting a financial management order to the NSW Trustee and Guardian, and setting conditions for the use of restrictive practices. The court also ordered that the order be reviewed within 11 months.

Orders

Orders of the court

The guardianship order for NXN made on 15 March 2023 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 11 months from 26 April 2023.

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

FUNCTIONS:

4. The guardian has the following functions:

a) Access

To decide what access NXN has to others and the conditions of access.

b) Accommodation

To decide where NXN may reside.

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

(i) take NXN to a place approved by the guardian.

(ii) keep her at that place.

(iii) return her to that place should she leave it.

d) Health care

To decide what health care NXN may receive.

e) Medical/Dental consent

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

f) Services

To make decisions about services to be provided to NXN.

g) Restrictive Practices

To give or withhold consent as to whether the following restrictive practice should be used to influence NXN’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 NXN to an understanding of the issues and to obtain and consider her views before making significant decisions.

b) NDIS Restrictive Practices Condition

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

(i) as a last resort to prevent NXN harming herself 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 NXN, 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.

Financial Management

1. The estate of NXN is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).

2. The management of the estate of NXN is committed to the NSW Trustee and Guardian.

3. This order be reviewed by the Tribunal within 11 months.

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:	NXN [2023] NSWCATGD 10
Hearing dates:	26 April 2023
Date of orders:	26 April 2023
Decision date:	26 April 2023
Jurisdiction:	Guardianship Division
Before:	J Moir, Senior Member (Legal) Dr K Djekovic, Senior Member (Professional) D R Sword, General Member (Community)
Decision:	The guardianship order for NXN made on 15 March 2023 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 11 months from 26 April 2023. 3. This is a limited guardianship order giving the guardian custody of NXN to the extent necessary to carry out the functions below. FUNCTIONS: 4. The guardian has the following functions: a) Access To decide what access NXN has to others and the conditions of access. b) Accommodation To decide where NXN may reside. c) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to: (i) take NXN to a place approved by the guardian. (ii) keep her at that place. (iii) return her to that place should she leave it. d) Health care To decide what health care NXN may receive. e) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where NXN is not capable of giving a valid consent. f) Services To make decisions about services to be provided to NXN. g) Restrictive Practices To give or withhold consent as to whether the following restrictive practice should be used to influence NXN’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 NXN to an understanding of the issues and to obtain and consider her views before making significant decisions. b) NDIS Restrictive Practices Condition The guardian may only consent to the use of the types of restrictive practices permitted under this order to influence NXN’s behaviour: (i) as a last resort to prevent NXN harming herself 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 NXN, 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. Financial Management 1. The estate of NXN is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. The management of the estate of NXN is committed to the NSW Trustee and Guardian. 3. This order be reviewed by the Tribunal within 11 months.
Catchwords:	GUARDIANSHIP – requested review of a guardianship order – whether guardianship order should be varied – 18-year-old subject person – subject person an in-patient in a public hospital – subject person reportedly suffering from severe, chronic and life-threatening malnutrition and severe neglect –…