OZQ

[2020] NSWCATGD 40

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

OZQ [2020] NSWCATGD 40

Hearing dates:

11 December 2020

Date of orders:

11 December 2020

Decision date:

11 December 2020

Jurisdiction:

Guardianship Division

Before:

S G McCarthy, Senior Member (Legal)
Dr G Jamieson, Senior Member (Professional)
A D Wannan, General Member (Community)

Decision:

The application for guardianship is dismissed after hearing.

Catchwords:

GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – subject person has dementia and cognitive deficits – subject person is immobile - use of bed rails in aged care – whether use of bed rails constitutes “physical restraint” – Pt 4A of the Quality of Care Principles 2014 (Cth) - bed rails used to prevent subject person from falling out of bed and suffering injury – subject person at higher risk of infection and delirium – use of bed rails does not restrict subject person’s movement as subject person is immobile – use of bed rails not a “restrictive practice” – no need for a guardianship order – application dismissed.

Legislation Cited:

Aged Care Act 1997 (Cth)

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

Quality of Care Principles 2014 (Cth), Pt 4A, Sch 2, ss 4, 15F, 15G

Cases Cited:

IF v IG [2004] NSWADTAP 3

JFL [2020] NSWCATGD 32

SZH [2020] NSWCATGD 28

VZM [2020] NSWCATGD 25

Texts Cited:

Aged Care Quality and Safety Commission, Regulatory Bulletin, Regulation of Physical and Chemical Restraint, Issue No. 2019-8.1 (11 December 2019)

Category:

Principal judgment

Parties:

001: Guardianship Application

OZQ (the person)
DAL (applicant, enduring guardian)
YBQ (enduring guardian, spouse)
Public Guardian

Representation:

Nil

File Number(s):

NCAT 2020/00306068

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

What the Tribunal decided

1. The Tribunal dismissed the application for guardianship in relation to OZQ made by DAL.

Background

2. OZQ is aged 94 years and is of Greek background. He resides at an aged care facility in Southwest Sydney. OZQ’s family includes his wife YBQ and DAL, daughter. DAL made an application for guardianship concerning OZQ regarding the use of bed rails for OZQ in the care facility.

3. On 4 April 2011, OZQ made an enduring guardianship appointment appointing YBQ and DAL as his guardians, both jointly and severally.

The hearing

4. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.]

Does DAL have standing to bring the application?

5. A person has standing to bring an application if he or she is:

1. the person who is the subject of the application;

2. the Public Guardian; or

3. any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person.

6. The Tribunal found that DAL has…