NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: NZX [2021] NSWCATGD 16 Hearing dates: 15 September 2021 Date of orders: 15 September 2021 Decision date: 15 September 2021 Jurisdiction: Guardianship Division Before: J Moir, Senior Member (Legal)
M A Oxenham, General Member (Community)Decision: The guardianship order for NZX made on 14 September 2020 has been reviewed. The order now is as follows:
1. NAN of [Address removed for publication.] is appointed as the guardian.
2. This is a continuing guardianship order for a period of two years from 15 September 2021.
3. This is a limited guardianship order giving the guardian custody of NZX to the extent necessary to carry out the functions below.
FUNCTION:
4. The guardian has the following function:
a) Restrictive Practices
To give or withhold consent as to whether the restrictive practice of chemical restraint should be used to influence NZX’s behaviour.
CONDITIONS:
5. The conditions of this order are:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring NZX to an understanding of the issues and to obtain and consider their 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 NZX’s behaviour:
(i) as a last resort to prevent NZX harming herself or others;
(ii) where the restrictive practice is used in the least restrictive form, and for the shortest time necessary to prevent harm to NZX or other persons;
(iii) after consideration of the likely impact of the use of the restrictive practice on NZX; and
(iv) in accordance with a behaviour support plan devised in accordance with the Quality of Care Principles 2014 (Cth), after consultation with a health practitioner with expertise relevant to NZX’s behaviours of concern and which is reviewed regularly and as soon as practicable after any change in NZX’s circumstances.
Catchwords: GUARDIANSHIP – end of term review of guardianship order – use of restraint in aged care – Aged Care Act 1997 (Cth) – Quality of Care Principles 2014 (Cth) – obligations of approved providers regarding restrictive practices and behaviour support plans – requirements of mandatory behaviour support plans – restrictive practices substitute decision maker – authorised guardian required to provide consent for use of restrictive practices – conditions on restrictive practices function – chemical restraint – private guardian reappointed – excludes areas where decisions can be made by person responsible without an order
Legislation Cited: Aged Care Act 1997 (Cth)
Civil and Administrative Tribunal Act 2013 (NSW), s 36
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 16(1)(d), 33A, Pt 5
Quality of Care Principles 2014 (Cth), ss 4, 15E, 15F, 15FA, 15FA(f), 15FC, 15FC(c), (Div 4) 15GA, (Div 5) 15HA-HG, Pt 4A
Cases Cited: Texts Cited: None cited.
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- AGLC
- NZX [2021] NSWCATGD 16
- Case
- [2021] NSWCATGD 16
- Decision Date
CaseChat Overview and Summary
The court addressed several legal issues, including the requirements for the use of restrictive practices in aged care, the necessity of obtaining consent from an authorised guardian before implementing such practices, and the conditions under which these practices may be used. The court had to determine whether the existing guardianship order was appropriate in light of NZX's needs and whether the appointed guardian, NAN, was suitably equipped to make decisions regarding restrictive practices. Furthermore, the court had to consider the implications of re-appointing NAN as the guardian and the specific limitations on the areas where decisions could be made by the person responsible without an order.
In its decision, the court found that the existing guardianship order needed modifications to better align with NZX's care needs and legal requirements. The court appointed NAN as the new guardian, noting that NAN was well-suited to manage NZX's care and consent to the use of restrictive practices under the stipulated conditions. The court emphasised the importance of ensuring that any use of restrictive practices, such as chemical restraint, was strictly as a last resort, in the least restrictive form, and for the shortest time necessary. The court also highlighted the necessity of a behaviour support plan developed in consultation with relevant health practitioners and reviewed regularly.
The court issued an amended guardianship order, which included specific conditions for the use of restrictive practices, ensuring they are implemented in accordance with legal and care standards. The new order appointed NAN as the guardian for a period of two years and outlined the guardian's role and responsibilities, including the requirement to obtain NZX's understanding and views before making significant decisions. The order also imposed conditions on the use of restrictive practices, mandating that they be used only to prevent harm, in the least restrictive form, and for the shortest necessary duration, in line with a reviewed behaviour support plan.
Orders
Orders of the court
The guardianship order for NZX made on 14 September 2020 has been reviewed. The order now is as follows:
1. NAN of [Address removed for publication.] is appointed as the guardian.
2. This is a continuing guardianship order for a period of two years from 15 September 2021.
3. This is a limited guardianship order giving the guardian custody of NZX to the extent necessary to carry out the functions below.
FUNCTION:
4. The guardian has the following function:
a) Restrictive Practices
To give or withhold consent as to whether the restrictive practice of chemical restraint should be used to influence NZX’s behaviour.
CONDITIONS:
5. The conditions of this order are:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring NZX to an understanding of the issues and to obtain and consider their 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 NZX’s behaviour:
(i) as a last resort to prevent NZX harming herself or others;
(ii) where the restrictive practice is used in the least restrictive form, and for the shortest time necessary to prevent harm to NZX or other persons;
(iii) after consideration of the likely impact of the use of the restrictive practice on NZX; and
(iv) in accordance with a behaviour support plan devised in accordance with the Quality of Care Principles 2014 (Cth), after consultation with a health practitioner with expertise relevant to NZX’s behaviours of concern and which is reviewed regularly and as soon as practicable after any change in NZX’s circumstances.
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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