SKD

[2018] NSWCATGD 38

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	SKD [2018] NSWCATGD 38
Hearing dates:	17 September 2018
Date of orders:	17 September 2018
Decision date:	17 September 2018
Jurisdiction:	Guardianship Division
Before:	B L Hughes, Senior Member (Legal), Dr M A Martin, Senior Member (Professional)
Decision:	The guardianship order concerning SKD made on 1 September 2016 is lapsed from 17 September 2018.
Catchwords:	GUARDIANSHIP – end of term review of guardianship order – order allowed to lapse   RESTRICTIVE PRACTICES – whether practice is a restrictive practice – subject person kept in line of sight in public areas of group home – no restriction on freedom of subject person
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)–(2), 4, 14, 14(2)
Cases Cited:	IF v IG [2004] NSWADTAP 3
Texts Cited:	Nil
Category:	Principal judgment
Parties:	008: Review of Guardianship Order   SKD (the person) The Public Guardian (appointed guardian)
Representation:	Nil
File Number(s):	NCAT 2009/00475780
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 (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

STATUTORY REVIEW OF GUARDIANSHIP ORDER

Background

1. SKD is a 64-year-old man who has lived at a group home since 2010. The group home is managed by disability service provider. His parents are deceased, and he has a supportive sister, TZD, who lives in regional NSW with her partner, QAE.

2. SKD has been known to the Guardianship Tribunal since 2009. A guardianship order was first made for SKD in July 2011. The Tribunal most recently reviewed the guardianship order on 1 September 2016 and appointed the Public Guardian for a period of two years with the functions of accommodation, legal services and restrictive practices. Before this, OXD, an uncle of SKD had been appointed as guardian and informally managed SKD’s affairs.

3. On 22 March 2017, the Tribunal committed the estate of SKD to the management of the NSW Trustee and Guardian.

4. This is the statutory end of term review of the guardianship order of 1 September 2016.

The hearing

5. 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.] The Tribunal officer preparing this matter was advised that OXD did not wish to participate in the hearing due to his own health issues.

What did the Tribunal have to decide?

6. On reviewing the current guardianship order the Tribunal may renew, renew and vary the order or determine that the order is to lapse.

7. The questions to be considered by the Tribunal are:

• Is SKD someone for whom the Tribunal could make an order because he continues to have a disability which prevents him from being able to make important life decisions?

• Should the Tribunal make a further guardianship order and if so, what order should be made?

• Who should be the guardian?

• How long should the order last?

Is SKD someone for whom the Tribunal could make a further order because he continues to have a disability which prevents him from being able to make important life decisions?

8. Section 14 of the Guardianship Act1987 (NSW) provides that the Tribunal may make a guardianship order for a person if it is satisfied that he/she is “a person in need of a guardian.” A person in need of a guardian is “a person who because of a disability is totally or partially incapable of managing his or her person”: s 3(1) of the Guardianship Act. A person with a disability is a person who is:

1. intellectually, physically, psychologically or sensorily disabled;

2. of advanced age;

3. a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or

4. otherwise disabled;

and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation: s 3(2) of the Guardianship Act.

9. When the previous order was made, the Tribunal found that as a result of intellectual disability, SKD was unable to make important life decisions. It was not disputed that SKD’s capacity to make important life decisions remains unchanged.

10. The Tribunal is satisfied that SKD continues to have a disability which prevents him making important life decisions. He is a person for whom the Tribunal could make a further guardianship order.

Should the Tribunal make a further guardianship order and if so, what order should be made?

11. The Tribunal must consider all of the following matters set out in s 14(2) of the Guardianship Act before exercising its discretion to make a further guardianship order:

1. the views (if any) of:

1. the person, and

2. the person’s spouse, and

3. the person’s carer and

2. the importance of preserving the person’s existing family relationships, and

3. the importance of preserving the person’s particular cultural and linguistic environments, and

4. the practicability of services being provided to the person without the need for the making of such an order.

12. These matters have no hierarchy or weighting, and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Guardianship Act. When undertaking this task, the Tribunal may be guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3) which provides:

4 General principles

It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:

(a)    the welfare and interests of such persons should be given paramount consideration,

(b)    the freedom of decision and freedom of action of such persons should be restricted as little as possible,

(c)    such persons should be encouraged, as far as possible, to live a normal life in the community,

(d)    the views of such persons in relation to the exercise of those functions should be taken into consideration,

(e)    the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

(f)    such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

(g)    such persons should be protected from neglect, abuse and exploitation,

(h)    the community should be encouraged to apply and promote these principles.

13. SKD attended the hearing; however, he was unable to meaningfully participate in the hearing as a result of the nature of his disabilities. He did, however, tell the Tribunal that he enjoyed spending time with his sister, TZD and her partner, and that he wanted to move closer to regional NSW.

14. Ms Laura Foo of the Office of the Public Guardian participated in the hearing and provided a report dated 22 September 2018. Ms Foo recommended that the order be allowed to lapse. She told the Tribunal that SKD lives in stable accommodation provided by the disability service provider in that area in regional NSW. He has lived in the same group home since 2010. During the course of the order the Public Guardian has provided consent for SKD to visit his sister, TZD, in her home at regional NSW.

15. SKD has expressed his desire to his sister, staff from the disability service provider and the Public Guardian to move to accommodation closer to his sister. The Public Guardian considered that TZD could work with the disability service provider staff to try to find a suitable placement close to regional NSW. This could take some time due to the scarcity of appropriate facilities near TZD. The Public Guardian considered that an accommodation decision could be made informally.

16. TZD is her brother’s person responsible and is able to provide consent to major or minor medical or dental treatment under the Guardianship Act without the function being conferred upon an order. SKD is prescribed no regular medications.

17. Ms Foo told the Tribunal that the current behaviour support plan has a restrictive practice of line of sight and which has been approved by the Restricted Practice Panel. The Public Guardian has not as yet received the authorisation from the Panel and has therefore not provided consent. Ms Foo said that if the Tribunal determined that a guardian should be appointed to consent to restrictive practices then TZD could be appointed as a private guardian.

18. When the previous order was made there was a suggestion that SKD might benefit from the appointment of a guardian to make decisions about legal services in the event that there was a dispute in relation to an estate to which he is a beneficiary. This issue has been resolved without the need for decisions to be made under the legal services function. SKD’s affairs are managed by the NSW Trustee and Guardian, and if in the future, legal action is required may be arranged by that Office.

19. Mr Z, Team Leader, and Mr Y, Disability Support Worker, attended the hearing with SKD. It was evident that they have a good relationship with SKD. Mr Z said that the disability service provider regard TZD and her partner, QAE, as persons responsible for SKD. TZD and her partner communicate with the National Disability Insurance Agency (NDIA) and have been involved in the development and implementation of a Behaviour Support Plan prepared by another disability service provider. The Tribunal had access to this plan.

20. TZD told the Tribunal that she is happy to continue to have discussions with her brother’s support coordinator to try to locate suitable accommodation and a day program closer to her home. She said that she has good communication with SKD’s support coordinator, Ms X.

21. Mr Z told the Tribunal that staff in the group home keep SKD within line of sight at all times to check where he is in relation to other residents. His freedom of movement is not restricted, and he is only observed, for his own safety, in the common areas. SKD has privacy in his own bedroom. The Tribunal was told that SKD generally has 1:1 support in accessing the community, however due to deteriorating mobility he has not been accessing his day program. Mr Z said that SKD has regular community access with staff and said that it was possible that he could wander from the group home. Mr Z considered that this was unlikely due to SKD’s lack of confidence in his ability to mobilise. SKD is kept in the line of sight as are all of the residents in the group home. The Tribunal considered that this formed part of a duty of care by the disability service provider in running the group home. There is an obligation to keep all the residents safe and does not appear to impact SKD’s freedom of movement or to bother him in any way. At the present time, SKD seems to hide away from other clients and appears to be fearful of some of his co-residents.

22. Medical appointments are arranged by the group home and TZD is involved as the person responsible. TZD said that she would be happy to advocate on her brother’s behalf and make decisions for him without an order. There is no conflict of opinion. She agreed that it would be better for SKD to move closer to her due to his significant deterioration in his mobility and his apparent fearfulness of other residents.

23. The Tribunal was satisfied that TZD and QAE have good communication with the disability service provider, Medical Practitioners, Service Providers, Support Coordinators and Behaviour Support Practitioners involved in SKD’s life. The Tribunal was satisfied that decisions may be made informally for SKD without the intrusion of an order.

24. Accordingly, the Tribunal was satisfied that there was no further need for a guardianship order and decided that the order should be allowed to lapse.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 12 February 2019