QYT - [2021] NSWCATGD 8

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: QYT [2021] NSWCATGD 8
Hearing dates: 28 May 2021
Date of orders: 28 May 2021
Decision date: 28 May 2021
Jurisdiction: Guardianship Division
Before: J Moir, Senior Member (Legal)
Associate Professor C Willcox, Senior Member (Professional)
L Porter, General Member (Community)
Decision:
1. A guardianship order is made for QYT.
2. RZT of [Address removed for publication.] is appointed as the guardian.
3. OBC is appointed as the alternative guardian.
4. This is a continuing guardianship order for a period of 12 months from 28 May 2021.
5. This is a limited guardianship order giving the guardian custody of QYT to the extent necessary to carry out the functions below.
FUNCTIONS: RZT
6. RZT has the following functions:
a) Accommodation
To decide where QYT may reside.
b) Health care
To decide what health care QYT may receive.
c) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where QYT is not capable of giving a valid consent.
d) Services
To make decisions about services to be provided to QYT.
e) Restrictive Practices
To give or withhold consent as to whether the following restrictive practices should be used to influence QYT’s behaviour:
1. Chemical restraint
2. Environmental restraint
3. Mechanical restraint
CONDITIONS:
7. The conditions of this order are:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring QYT 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 QYT’s behaviour:
(i) as a last resort to prevent QYT harming himself 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 QYT, and which is reviewed at least every 12 months and/or reviewed as soon as practicable if there is a change in circumstances which requires the plan to be amended.

Catchwords:
GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – consideration of what order should be made – use of restrictive practices – subject person an inpatient at a hospital - subject person not a participant in the NDIS – subject person not a resident or recipient of aged care services – subject person receives care via Lifetime Care and Support scheme operated by iCare (Insurance and Care NSW) – independent restrictive practices policy – use of chemical, environmental and mechanical restraints – appointment of guardians to reflect wishes expressed in enduring guardianship appointment.

Legislation Cited:
Aged Care Principles 2014 (Cth)
Civil and Administrative Tribunal Act 2013 (NSW), s 36
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 17(1)

Cases Cited:
IF v IG [2004] NSWADTAP 3

Texts Cited:
Nil

Category: Principal judgment
Parties:
001: Guardianship Application
QYT…

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 QYT

Details

AGLC: QYT [2021] NSWCATGD 8
Case: [2021] NSWCATGD 8
Decision Date: 28 May 2021

CaseChat Overview and Summary

The case involved an application for a guardianship order for QYT, a subject person receiving care under the Lifetime Care and Support scheme. RZT and OBC applied to be appointed as QYT's guardians. The application was heard in the New South Wales Civil and Administrative Tribunal, with the Guardianship Division. The court had to determine whether a guardianship order should be made, what kind of order should be made, and who should be appointed as QYT's guardians. The court also had to consider the use of restrictive practices in QYT's care.

The court examined the evidence and submissions presented by the parties and considered the best interests of QYT. It found that a guardianship order was necessary to ensure QYT's welfare and that RZT and OBC were suitable candidates for the role of guardians. The court also considered the use of restrictive practices in QYT's care and made conditions to ensure they were used appropriately. The court found that a limited guardianship order was appropriate, giving the guardian custody of QYT to the extent necessary to carry out certain functions, including making decisions about QYT's accommodation, health care, medical and dental consent, services, and restrictive practices.

The court made a guardianship order for QYT, appointing RZT as the primary guardian and OBC as the alternative guardian. The order is a continuing guardianship order for a period of 12 months from 28 May 2021, with conditions to ensure that the guardian takes all reasonable steps to bring QYT to an understanding of the issues and to obtain and consider his views before making significant decisions, and that restrictive practices are only used as a last resort and in accordance with a behaviour support plan. The court's decision ensures that QYT's welfare is protected and that his rights are respected.

The court made several orders in relation to the guardianship of QYT. These included appointing RZT as the primary guardian and OBC as the alternative guardian, granting the guardian certain functions, and setting out conditions for the exercise of those functions. The orders ensure that QYT's welfare is protected and that his rights are respected, while also providing for the appropriate use of restrictive practices in his care.

Orders

Orders of the court

1. A guardianship order is made for QYT.

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

3. OBC is appointed as the alternative guardian.

4. This is a continuing guardianship order for a period of 12 months from 28 May 2021.

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

FUNCTIONS: RZT

6. RZT has the following functions:

a) Accommodation

To decide where QYT may reside.

b) Health care

To decide what health care QYT may receive.

c) Medical/Dental consent

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

d) Services

To make decisions about services to be provided to QYT.

e) Restrictive Practices

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

1. Chemical restraint

2. Environmental restraint

3. Mechanical restraint

CONDITIONS:

7. The conditions of this order are:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring QYT 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 QYT’s behaviour:

(i) as a last resort to prevent QYT harming himself 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 QYT, and which is reviewed at least every 12 months and/or reviewed as soon as practicable if there is a change in circumstances which requires the plan to be amended.

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:	QYT [2021] NSWCATGD 8
Hearing dates:	28 May 2021
Date of orders:	28 May 2021
Decision date:	28 May 2021
Jurisdiction:	Guardianship Division
Before:	J Moir, Senior Member (Legal) Associate Professor C Willcox, Senior Member (Professional) L Porter, General Member (Community)
Decision:	1. A guardianship order is made for QYT. 2. RZT of [Address removed for publication.] is appointed as the guardian. 3. OBC is appointed as the alternative guardian. 4. This is a continuing guardianship order for a period of 12 months from 28 May 2021. 5. This is a limited guardianship order giving the guardian custody of QYT to the extent necessary to carry out the functions below. FUNCTIONS: RZT 6. RZT has the following functions: a) Accommodation To decide where QYT may reside. b) Health care To decide what health care QYT may receive. c) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where QYT is not capable of giving a valid consent. d) Services To make decisions about services to be provided to QYT. e) Restrictive Practices To give or withhold consent as to whether the following restrictive practices should be used to influence QYT’s behaviour: 1. Chemical restraint 2. Environmental restraint 3. Mechanical restraint CONDITIONS: 7. The conditions of this order are: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring QYT 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 QYT’s behaviour: (i) as a last resort to prevent QYT harming himself 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 QYT, and which is reviewed at least every 12 months and/or reviewed as soon as practicable if there is a change in circumstances which requires the plan to be amended.
Catchwords:	GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – consideration of what order should be made – use of restrictive practices – subject person an inpatient at a hospital - subject person not a participant in the NDIS – subject person not a resident or recipient of aged care services – subject person receives care via Lifetime Care and Support scheme operated by iCare (Insurance and Care NSW) – independent restrictive practices policy – use of chemical, environmental and mechanical restraints – appointment of guardians to reflect wishes expressed in enduring guardianship appointment.
Legislation Cited:	Aged Care Principles 2014 (Cth) Civil and Administrative Tribunal Act 2013 (NSW), s 36 Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 17(1)
Cases Cited:	IF v IG [2004] NSWADTAP 3
Texts Cited:	Nil
Category:	Principal judgment
Parties:	001: Guardianship Application QYT…