ACT CIVIL & ADMINISTRATIVE TRIBUNAL
RE FRIEDA (Guardianship) [2022] ACAT 27
GT 150/2021
Catchwords: GUARDIANSHIP – restrictive practices – environmental restraint – whether an attorney under an enduring power of attorney has power to consent to the principal’s environmental restraint in a residential aged care facility – consideration of ‘personal care matter’ and ‘health care matter’, as defined in the Powers of Attorney Act 2006 – consideration of human rights: freedom of movement and right to liberty – declaration that the attorney has power to consent to the principal’s environmental restraint in a residential aged care facility – application for guardianship dismissed
Legislation cited: Aged Care Act 1997 (Cth) s 96.1
Guardianship Act 1987 (NSW) s 33
Guardianship and Management of Property Act 1991 ss 7, 8, 19, 62, 66
Human Rights Act 2004 ss 13, 18, 28, 30, 31
Legislation Act 2001 ss 127, 132
Powers of Attorney Act 2006 ss 7, 8, 11, 12, 13, 36, 37, 89
Senior Practitioner Act 2018 ss 8, 10, 10A
Subordinate
Legislation cited: Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 (Cth) s 2
Quality of Care Principles 2014 (Cth) ss 15HA- 15HG, 15FA, 15FB, 15J
Cases cited:Al-Kateb v Godwin [2004] HCA 37
Amalgamated Society of Engineers v Adelaide Steamship Co [1920] HCA 54
KBU [2020] NSWCATGD 9
MS [2020] WASAT 146
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
Re Ben [2020] ACAT 82Re CC [2019] NTCAT 13
Re Clara [2019] ACAT 46
Re Evelyn [2021] ACAT 126
Royal Women’s Hospital v Medical Practitioners Board [2006] VSCA 85
NZX [2021] NSWCATGD 16
Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) [1992] HCA 15
SZH [2020] NSWCATGD 28
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
TZD [2021] NSWCATGD 14
VZM [2020] NSWCATGD 25
List of
Texts/Papers cited: Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 21 September 2006
Dennis Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th edition, 2019)
Independent review of the legislation provisions governing the use of restraint in residential aged care, December 2020
Office of the ACT Public Trustee and Guardian, The Power to Choose. Your guide to completing an enduring power of attorney
Royal Commission into Aged Care Quality and Safety
The Hon, Justice David Mossop, The Constitution of the Australian Capital Territory, (The Federation Press, 2021)
United Nations Convention on the Rights of Persons with Disabilities article 12
Tribunal:Presidential Member G McCarthy
Date of Orders: 15 December 2021
Date of Reasons for Decision: 30 March 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) GT 150/2021
IN THE MATTER OF FRIEDA
TRIBUNAL:Presidential Member G McCarthy
DATE:15 December 2021
ORDER
The Tribunal orders that:
The application dated 15 October 2021 for the appointment of a guardian is dismissed.
The Tribunal declares:
The enduring power of attorney executed by [Frieda] on 23 December 2015 empowers her attorney to give consent to others restraining [Frieda] from…
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- AGLC
- Re Frieda (Guardianship) [2022] ACAT 27
- Case
- [2022] ACAT 27
- Decision Date
CaseChat Overview and Summary
The Tribunal examined the EPOA executed by Frieda in 2015 and noted that it empowered her attorney, Jill, to give consent to Goodwin restraining Frieda from leaving the RACF. The Tribunal acknowledged Goodwin's concerns about potential non-compliance with statutory obligations regarding the use of restrictive practices but maintained that the EPOA did indeed provide the necessary authority. The Tribunal also highlighted Goodwin's interest in ensuring that the use of restrictive practices adhered to the stringent requirements introduced by the amended Principles, which came into effect from July and September 2021.
The Tribunal dismissed Goodwin's application for the appointment of a guardian. However, it made a declaration that the EPOA executed by Frieda empowered her attorney to consent to Goodwin restraining Frieda from leaving the RACF. This decision aimed to clarify the authority under the EPOA while ensuring compliance with the new legislative requirements. The Tribunal's ruling provided clarity for Goodwin, Frieda, and other relevant parties, balancing the rights of the resident with the legitimate concerns of the care provider.
The Tribunal's orders included the dismissal of the application for the appointment of a guardian and a declaration that Frieda's EPOA empowered her attorney to consent to Goodwin restraining her from leaving the RACF. This decision aimed to provide clarity and ensure compliance with the stringent legislative framework governing the use of restrictive practices in aged care.
Orders
Orders of the court
The Tribunal orders that:
1.
The application dated 15 October 2021 for the appointment of a guardian is dismissed.
The Tribunal declares:
2.
The enduring power of attorney executed by [Frieda] on 23 December 2015 empowers her attorney to give consent to others restraining [Frieda] from leaving a place.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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