SHG - [2024] NSWCATGD 2

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: SHG [2024] NSWCATGD 2
Hearing dates: 2 February 2024
Date of orders: 2 February 2024
Decision date: 02 February 2024
Jurisdiction: Guardianship Division
Before: B M Shipp, Senior Member (Legal)
Dr J Law, Senior Member (Professional)
P J McGirr, General Member (Community)
Decision:
1. A guardianship order is made for SHG.
2. EBF, of [Address removed for publication.], is appointed as the guardian.
3. This is a continuing guardianship order for a period of 12 months from 2 February 2024.
4. This is a limited guardianship order giving the guardian(s) custody of SHG to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following function:
a) Restrictive Practices
To give or withhold consent as to whether the following restrictive practices should be used to influence SHG’s behaviour:
1. Mechanical restraint - use of bedrails
CONDITIONS:
6. The conditions of this order are:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring SHG to an understanding of the issues and to obtain and consider his views before making significant decisions.
b) Aged Care Restrictive Practices Condition
The guardian(s) may only consent to the use of the types of restrictive practices permitted under this order to influence SHG’s behaviour:
(i) as a last resort to prevent SHG harming himself or others; and
(ii) where the restrictive practice is used in the least restrictive form, and for the shortest time necessary to prevent harm to SHG or other persons;
(iii) after consideration of the likely impact of the use of the restrictive practice on SHG; 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 SHG’s behaviours of concern and which is reviewed regularly and as soon as practicable after any change in SHG’s circumstances.

Catchwords:
GUARDIANSHIP – application for a guardianship order – subject person with dysarthria and a cognitive impairment as a result of a traumatic brain injury – subject person resides in an aged care facility – consent requirements for the use of a restrictive practice – Quality of Care Principles 2014 (Cth) – mechanical restraint – bed rails used to control behaviour – need for a guardianship order with a restrictive practices function – private guardian appointed – order made

Legislation Cited:
Aged Care Act 1997 (Cth), ss 54-9, 96-1
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 17(1), 33, 45
Guardianship Regulation 2016 (NSW), reg 14
Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019 (Cth)
Quality of Care Amendment (Reviewing Restraints Principles) Principles 2019 (Cth)
Quality of Care Principles 2014 (Cth), Pt 4A

Cases Cited:
C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep
Darcy (bht Diane Aldridge) v State of NSW [2011] NSWCA 413
IF…

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 SHG

Details

AGLC: SHG [2024] NSWCATGD 2
Case: [2024] NSWCATGD 2
Decision Date: 02 February 2024

CaseChat Overview and Summary

The case before the court involved an application for a guardianship order for an individual identified as SHG. SHG suffers from dysarthria and cognitive impairment due to a traumatic brain injury, and resides in an aged care facility. The primary dispute centred on the consent requirements for the use of restrictive practices, specifically the mechanical restraint of bed rails, to manage SHG's behaviour. The court was required to determine whether a guardianship order with a restrictive practices function was necessary and who should be appointed as the guardian.

The legal issues the court had to address included the necessity of appointing a guardian to consent to restrictive practices and the suitability of the proposed guardian. The court needed to consider the Quality of Care Principles 2014 (Cth) and ensure that any restrictive practices were implemented as a last resort and in the least restrictive form possible. Additionally, the court had to evaluate the proposed guardian's capability to act in SHG's best interests and ensure compliance with the conditions set out in the order.

In delivering the judgment, the court found that a guardianship order was necessary to manage SHG's behaviour effectively. The court was satisfied that the proposed guardian, EBF, was suitable for the role, given their capacity to consider SHG's views and act in their best interest. The court imposed specific conditions on the use of restrictive practices, including obtaining informed consent and adhering to a behaviour support plan. The order was made for a period of 12 months, with the guardian having the function to consent to the use of mechanical restraint, specifically the use of bed rails, under strict conditions.

The final orders of the court included the appointment of EBF as the guardian of SHG, with a guardianship order in place for 12 months. The order specifies the guardian's role in consenting to restrictive practices, subject to stringent conditions to protect SHG's rights and ensure the practices are used appropriately. These conditions include obtaining SHG's understanding and views, using restrictive practices as a last resort, and adhering to a behaviour support plan. The court's decision ensures that SHG's welfare is prioritised while managing their behaviour in the aged care facility.

Orders

Orders of the court

1. A guardianship order is made for SHG.

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

3. This is a continuing guardianship order for a period of 12 months from 2 February 2024.

4. This is a limited guardianship order giving the guardian(s) custody of SHG to the extent necessary to carry out the functions below.

FUNCTIONS:

5. The guardian has the following function:

a) Restrictive Practices

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

1. Mechanical restraint - use of bedrails

CONDITIONS:

6. The conditions of this order are:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring SHG to an understanding of the issues and to obtain and consider his views before making significant decisions.

b) Aged Care Restrictive Practices Condition

The guardian(s) may only consent to the use of the types of restrictive practices permitted under this order to influence SHG’s behaviour:

(i) as a last resort to prevent SHG harming himself or others; and

(ii) where the restrictive practice is used in the least restrictive form, and for the shortest time necessary to prevent harm to SHG or other persons;

(iii) after consideration of the likely impact of the use of the restrictive practice on SHG; 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 SHG’s behaviours of concern and which is reviewed regularly and as soon as practicable after any change in SHG’s circumstances.

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:	SHG [2024] NSWCATGD 2
Hearing dates:	2 February 2024
Date of orders:	2 February 2024
Decision date:	02 February 2024
Jurisdiction:	Guardianship Division
Before:	B M Shipp, Senior Member (Legal) Dr J Law, Senior Member (Professional) P J McGirr, General Member (Community)
Decision:	1. A guardianship order is made for SHG. 2. EBF, of [Address removed for publication.], is appointed as the guardian. 3. This is a continuing guardianship order for a period of 12 months from 2 February 2024. 4. This is a limited guardianship order giving the guardian(s) custody of SHG to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following function: a) Restrictive Practices To give or withhold consent as to whether the following restrictive practices should be used to influence SHG’s behaviour: 1. Mechanical restraint - use of bedrails CONDITIONS: 6. The conditions of this order are: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring SHG to an understanding of the issues and to obtain and consider his views before making significant decisions. b) Aged Care Restrictive Practices Condition The guardian(s) may only consent to the use of the types of restrictive practices permitted under this order to influence SHG’s behaviour: (i) as a last resort to prevent SHG harming himself or others; and (ii) where the restrictive practice is used in the least restrictive form, and for the shortest time necessary to prevent harm to SHG or other persons; (iii) after consideration of the likely impact of the use of the restrictive practice on SHG; 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 SHG’s behaviours of concern and which is reviewed regularly and as soon as practicable after any change in SHG’s circumstances.
Catchwords:	GUARDIANSHIP – application for a guardianship order – subject person with dysarthria and a cognitive impairment as a result of a traumatic brain injury – subject person resides in an aged care facility – consent requirements for the use of a restrictive practice – Quality of Care Principles 2014 (Cth) – mechanical restraint – bed rails used to control behaviour – need for a guardianship order with a restrictive practices function – private guardian appointed – order made
Legislation Cited:	Aged Care Act 1997 (Cth), ss 54-9, 96-1 Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 17(1), 33, 45 Guardianship Regulation 2016 (NSW), reg 14 Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019 (Cth) Quality of Care Amendment (Reviewing Restraints Principles) Principles 2019 (Cth) Quality of Care Principles 2014 (Cth), Pt 4A
Cases Cited:	C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep Darcy (bht Diane Aldridge) v State of NSW [2011] NSWCA 413 IF…