NYQ

[2021] NSWCATGD 20

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

NYQ [2021] NSWCATGD 20

Hearing dates:

16 July 2021

Date of orders:

16 July 2021

Decision date:

16 July 2021

Jurisdiction:

Guardianship Division

Before:

R H Booby, Senior Member (Legal)
Dr G Jamieson, Senior Member (Professional)
Dr M Spencer, General Member (Community)

Decision:

The application for guardianship is dismissed after hearing.

Catchwords:

GUARDIANSHIP – application for a guardianship order – proposed use of restraint in aged care – environmental restraint – family concerns over safety in aged care facility – family proposal for placement in secure facility wing – no care plan or professional recommendation for placement in secure wing – other decisions can be made informally – application dismissed

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2)

Cases Cited:

IF v IG [2004] NSWADTAP 3

P v NSW Trustee and Guardian [2015] NSWSC 579

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

001: Guardianship Application

NYQ (the person)
TBO (applicant)
Public Guardian
QZQ (spouse)

Representation:

Nil.

File Number(s):

NCAT 2021/00090215

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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

GUARDIANSHIP APPLICATION

1. NYQ is 80 years old and lives in West Sydney, NSW, at an aged care facility.

2. On 23 June 2021 the Tribunal received an application seeking the appointment of a guardian for NYQ. The applicant was NYQ’s son, TBO.

The hearing

3. Due to restrictions necessitated by the COVID-19 pandemic the Tribunal’s hearings are currently being conducted by way of telephone and, where possible, video communication.

4. At the end of these Reasons for Decision is a list of witnesses who participated in the hearing. [Appendix removed for publication.]

5. NYQ did not participate in the hearing. It was agreed by all those participating in the hearing that due to the extent of her dementia, NYQ would not understand the proceedings and was likely to become distressed and confused.

6. The Tribunal must ensure that it conducts its hearings in such a way as to extend procedural fairness to the parties. This includes a requirement that the parties must be given a reasonable opportunity to be heard, and to present their case.

7. The Tribunal is also required to follow principles set out in s 4 of the Guardianship Act 1987 (NSW) (“the Act”). These principles include that paramount importance should be given to the welfare and interests of a person with disabilities.

8. We were satisfied that whilst it would be the interests of NYQ to participate in the hearing if she were able, her inability to effectively participate and the risk of distressing her was such that we should proceed with the hearing in her absence.

What did the Tribunal have to decide?

9. The questions which had to be decided by the Tribunal were:

• Is NYQ someone for whom the Tribunal could make an order…