SKN - [2023] NSWCATGD 16

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: SKN [2023] NSWCATGD 16
Hearing dates: 18 August 2023
Date of orders: 18 August 2023
Decision date: 18 August 2023
Jurisdiction: Guardianship Division
Before: A Britton, Deputy President
Dr F Duffy, Senior Member (Professional)
K Clark, General Member (Community)
Decision:
The functions of the enduring guardians, DBE and QSN appointed by SKN by instrument dated 24 May 2011 are varied to give the enduring guardians the function of consent to the use of restrictive practices subject to the following conditions:
The guardians may only consent to the use of restrictive practices to influence SKN’s behaviour:
(i) as a last resort to prevent SKN harming himself or others;
(ii) where the restrictive practice is used in the least restrictive form, and for the shortest time necessary to prevent harm to SKN or other persons;
(iii) after consideration of the likely impact of the use of the restrictive practice on SKN; 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 SKN’s behaviours of concern and which is reviewed regularly and as soon as practicable after any change in SKN’s circumstances.

Catchwords:
REVIEW OF ENDURING GUARDIANSHIP – request to add a restrictive practices function – chemical restraint – principal is of advanced age – principal diagnosed with advanced dementia – principal resides in an aged care facility – consent requirements for the use of a restrictive practice – Quality of Care Principles 2014 (Cth) – whether the enduring guardianship instrument should be varied to include a restrictive practices function – finding that the appointed enduring guardians are suitable people to exercise a restrictive practices function – enduring guardianship instrument varied – order made

Legislation Cited:
Aged Care Act 1997 (Cth), ss 54-1(f), 54-9(1); Pt 2.3
Aged Care Legislation Amendment (Royal Commission Response No.1) Principles 2021 (Cth)
Guardianship Act 1987 (NSW), ss 3, 3(2), 4, 4(a), 6, 6A, 6A(1)(a), 6B(1), 6E(1)(a)-(e), 6(I), 6J, 6J(1)(b), 6K, 6K(1)(b), 6N, 14, 14(2), 16(1)(a), 17, 17(1), 17(1)(c), 18(1), 18(1A); Pt 2
Quality of Care Principles 2014 (Cth), ss 5B(1), 15E, 15FA, 15FA(1)(a)-(g), 15HA, 15HC, 15HC(a)-(c), 15HF

Cases Cited:
ZKF v ZKG [2019] NSWCATAP 64

Texts Cited:
None cited.

Category: Principal judgment
Parties:
001: Review of an Enduring Guardianship Appointment
SKN (the person)
DBE (applicant, enduring guardian)
QSN (enduring guardian)
Public Guardian
NSW Trustee and Guardian
TBN (spouse)
Representation: I Reed, separate representative for SKN

File Number(s): NCAT 2023/00163262
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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

In May 2011 former carpenter, SKN (the Father) executed an instrument appointing his wife, TBN (the Mother), as his enduring guardian, and if she refused or became unable or unwilling to act as his…

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 SKN

Details

AGLC: SKN [2023] NSWCATGD 16
Case: [2023] NSWCATGD 16
Decision Date: 18 August 2023

CaseChat Overview and Summary

SKN, an individual of advanced age and diagnosed with advanced dementia, who resides in an aged care facility, sought a review of their enduring guardianship to include the function of consent for restrictive practices, specifically the use of chemical restraint. The application was heard in the Supreme Court of the relevant state. The legal issues before the court were whether the enduring guardianship instrument should be varied to include a restrictive practices function and whether the appointed enduring guardians were suitable to exercise this function. The court had to consider the appropriate conditions under which restrictive practices could be employed, including the necessity of such measures, the least restrictive form, and the impact on the principal.

In determining the suitability of the enduring guardians to exercise the restrictive practices function, the court found that the appointed guardians, DBE and QSN, were suitable people to make such decisions. The court also detailed the conditions under which the guardians could consent to the use of restrictive practices. These included using the practice as a last resort, employing it in the least restrictive form and for the shortest time necessary, considering its impact on the principal, and adhering to a behaviour support plan in line with the Quality of Care Principles 2014. The plan must be devised after consultation with a relevant health practitioner and reviewed regularly.

The court varied the functions of the enduring guardians to include the consent to restrictive practices, subject to the outlined conditions. This decision aimed to balance the need to protect SKN and others from harm while ensuring the dignity and rights of SKN were upheld. The court's order reflected a careful consideration of the principal's best interests and the need for safeguards in the use of restrictive practices.

Orders

Orders of the court

The functions of the enduring guardians, DBE and QSN appointed by SKN by instrument dated 24 May 2011 are varied to give the enduring guardians the function of consent to the use of restrictive practices subject to the following conditions:

The guardians may only consent to the use of restrictive practices to influence SKN’s behaviour:

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

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

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	SKN [2023] NSWCATGD 16
Hearing dates:	18 August 2023
Date of orders:	18 August 2023
Decision date:	18 August 2023
Jurisdiction:	Guardianship Division
Before:	A Britton, Deputy President Dr F Duffy, Senior Member (Professional) K Clark, General Member (Community)
Decision:	The functions of the enduring guardians, DBE and QSN appointed by SKN by instrument dated 24 May 2011 are varied to give the enduring guardians the function of consent to the use of restrictive practices subject to the following conditions: The guardians may only consent to the use of restrictive practices to influence SKN’s behaviour: (i) as a last resort to prevent SKN harming himself or others; (ii) where the restrictive practice is used in the least restrictive form, and for the shortest time necessary to prevent harm to SKN or other persons; (iii) after consideration of the likely impact of the use of the restrictive practice on SKN; 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 SKN’s behaviours of concern and which is reviewed regularly and as soon as practicable after any change in SKN’s circumstances.
Catchwords:	REVIEW OF ENDURING GUARDIANSHIP – request to add a restrictive practices function – chemical restraint – principal is of advanced age – principal diagnosed with advanced dementia – principal resides in an aged care facility – consent requirements for the use of a restrictive practice – Quality of Care Principles 2014 (Cth) – whether the enduring guardianship instrument should be varied to include a restrictive practices function – finding that the appointed enduring guardians are suitable people to exercise a restrictive practices function – enduring guardianship instrument varied – order made
Legislation Cited:	Aged Care Act 1997 (Cth), ss 54-1(f), 54-9(1); Pt 2.3 Aged Care Legislation Amendment (Royal Commission Response No.1) Principles 2021 (Cth) Guardianship Act 1987 (NSW), ss 3, 3(2), 4, 4(a), 6, 6A, 6A(1)(a), 6B(1), 6E(1)(a)-(e), 6(I), 6J, 6J(1)(b), 6K, 6K(1)(b), 6N, 14, 14(2), 16(1)(a), 17, 17(1), 17(1)(c), 18(1), 18(1A); Pt 2 Quality of Care Principles 2014 (Cth), ss 5B(1), 15E, 15FA, 15FA(1)(a)-(g), 15HA, 15HC, 15HC(a)-(c), 15HF
Cases Cited:	ZKF v ZKG [2019] NSWCATAP 64
Texts Cited:	None cited.
Category:	Principal judgment
Parties:	001: Review of an Enduring Guardianship Appointment SKN (the person) DBE (applicant, enduring guardian) QSN (enduring guardian) Public Guardian NSW Trustee and Guardian TBN (spouse)
Representation:	I Reed, separate representative for SKN
File Number(s):	NCAT 2023/00163262
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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.