SKF - [2022] NSWCATGD 14

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: SKF [2022] NSWCATGD 14
Hearing dates: 22 July 2022
Date of orders: 22 July 2022
Decision date: 22 July 2022
Jurisdiction: Guardianship Division
Before: B L Adamovich, Senior Member (Legal)
Dr M J Wroth, Senior Member (Professional)
L Porter, General Member (Community)
Decision:
1. A guardianship order is made for SKF.
2. NZF of [Address removed for publication.] is appointed as the guardian.
3. This is a continuing guardianship order for a period of 12 months from 22 July 2022.
4. This is a limited guardianship order giving the guardian(s) custody of SKF to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Health care
To decide what health care SKF may receive.
b) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where SKF is not capable of giving a valid consent.
c) Services
To make decisions about services to be provided to SKF.
d) Restrictive Practices
To give or withhold consent as to whether the following restrictive practices should be used to influence SKF’s behaviour:
1. Chemical restraint
CONDITIONS:
6. The conditions of this order are:
a) Standard Condition
In exercising this role, the guardian shall take all reasonable steps to bring SKF to an understanding of the issues and to obtain and consider his views before making significant decisions.
b) Other Condition
Other Conditions:
The guardian may only consent to the use of the types of restrictive practices permitted under this order to influence the person’s behaviour:
(i) As a last resort to prevent the person harming themselves or others;
(ii) Where the restrictive practice is used in the least restrictive form, and for the shortest time necessary to prevent harm to the person or other persons;
(iii) 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 the person’s behaviours of concern and which is reviewed regularly and as soon as practicable after any change in the person’s circumstances.

Catchwords:
GUARDIANSHIP – application for a guardianship order – subject person diagnosed with Fragile X syndrome and intellectual disability – cognitive impairment – subject person resides at an aged care facility – subject person an NDIS participant – restrictive practices function – use of chemical restraint – olanzapine and sodium valproate to manage behaviours – need for a guardianship order with a restrictive practices function – suitability of proposed guardian – private guardian appointed – order made.

Legislation Cited:
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 17(1), 35, 37(1), 40; Pt 5

Cases Cited:
C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep)
IF v IG [2004] NSWADTAP 3
P v D1 [2011] NSWSC 257
P v NSW Trustee and Guardian [2015] NSWSC 579
Re B [2011]…

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 SKF

Details

AGLC: SKF [2022] NSWCATGD 14
Case: [2022] NSWCATGD 14
Decision Date: 22 July 2022

CaseChat Overview and Summary

The parties involved in this case are SKF, an individual diagnosed with Fragile X syndrome and intellectual disability, and NZF, who has been appointed as the guardian. The dispute centred around the need for a guardianship order to manage SKF's health care and the use of restrictive practices, including chemical restraint, in an aged care facility. The case was heard by the court with jurisdiction over guardianship matters.

The legal issues before the court included whether a guardianship order was necessary for SKF, given their cognitive impairment and residence in an aged care facility. Another issue was whether the proposed guardian, NZF, was suitable for the role, and if the order should include a function allowing the use of restrictive practices such as chemical restraint. The court also needed to determine the conditions under which such practices could be employed.

The court found that a guardianship order was necessary to protect SKF's best interests, given their diagnosis and circumstances. It concluded that NZF was a suitable candidate for the role of guardian, considering their experience and commitment to SKF's welfare. The court also decided that the order should include a function allowing the use of restrictive practices, specifically chemical restraint, under strict conditions designed to minimise harm and respect SKF's rights. The order includes provisions for the guardian to obtain SKF's views before making significant decisions and to use restrictive practices only as a last resort and in accordance with a behaviour support plan.

The final orders include the appointment of NZF as the guardian for SKF, with specific functions and conditions governing the use of restrictive practices. The guardianship order is limited to a period of 12 months, with provisions for regular review and consultation with relevant health practitioners.

Orders

Orders of the court

1. A guardianship order is made for SKF.

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

3. This is a continuing guardianship order for a period of 12 months from 22 July 2022.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Health care

To decide what health care SKF may receive.

b) Medical/Dental consent

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

c) Services

To make decisions about services to be provided to SKF.

d) Restrictive Practices

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

1. Chemical restraint

CONDITIONS:

6. The conditions of this order are:

a) Standard Condition

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

b) Other Condition

Other Conditions:

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

(i) As a last resort to prevent the person harming themselves or others;

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

(iii) 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 the person’s behaviours of concern and which is reviewed regularly and as soon as practicable after any change in the person’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:	SKF [2022] NSWCATGD 14
Hearing dates:	22 July 2022
Date of orders:	22 July 2022
Decision date:	22 July 2022
Jurisdiction:	Guardianship Division
Before:	B L Adamovich, Senior Member (Legal) Dr M J Wroth, Senior Member (Professional) L Porter, General Member (Community)
Decision:	1. A guardianship order is made for SKF. 2. NZF of [Address removed for publication.] is appointed as the guardian. 3. This is a continuing guardianship order for a period of 12 months from 22 July 2022. 4. This is a limited guardianship order giving the guardian(s) custody of SKF to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Health care To decide what health care SKF may receive. b) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where SKF is not capable of giving a valid consent. c) Services To make decisions about services to be provided to SKF. d) Restrictive Practices To give or withhold consent as to whether the following restrictive practices should be used to influence SKF’s behaviour: 1. Chemical restraint CONDITIONS: 6. The conditions of this order are: a) Standard Condition In exercising this role, the guardian shall take all reasonable steps to bring SKF to an understanding of the issues and to obtain and consider his views before making significant decisions. b) Other Condition Other Conditions: The guardian may only consent to the use of the types of restrictive practices permitted under this order to influence the person’s behaviour: (i) As a last resort to prevent the person harming themselves or others; (ii) Where the restrictive practice is used in the least restrictive form, and for the shortest time necessary to prevent harm to the person or other persons; (iii) 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 the person’s behaviours of concern and which is reviewed regularly and as soon as practicable after any change in the person’s circumstances.
Catchwords:	GUARDIANSHIP – application for a guardianship order – subject person diagnosed with Fragile X syndrome and intellectual disability – cognitive impairment – subject person resides at an aged care facility – subject person an NDIS participant – restrictive practices function – use of chemical restraint – olanzapine and sodium valproate to manage behaviours – need for a guardianship order with a restrictive practices function – suitability of proposed guardian – private guardian appointed – order made.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 17(1), 35, 37(1), 40; Pt 5
Cases Cited:	C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) IF v IG [2004] NSWADTAP 3 P v D1 [2011] NSWSC 257 P v NSW Trustee and Guardian [2015] NSWSC 579 Re B [2011]…