SMO - [2015] NSWCATGD 6

No judgment structure available for this case.

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: SMO [2015] NSWCATGD 6
Hearing dates: 5 February 2015
Date of orders: 05 February 2015
Decision date: 05 February 2015
Jurisdiction: Guardianship Division
Before: Simpson J, Senior Member (Legal)
Decision:
Guardianship order lapsed.

Catchwords: GUARDIANSHIP – end of term review of guardianship order – restrictive practices – behaviour support plan in place – no decisions to be made – no need for order to be continued.
Legislation Cited: Guardianship Act 1987 (NSW)
Texts Cited: Department of Family and Community Services NSW, “Behaviour Support Policy” (March 2012)
Category: Principal judgment
Parties: Mr SMO (subject person)
Ms DDX (private guardian)
File Number(s): 11321
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 (NSW)).

REASONS FOR DECISION

What the Tribunal decided

The Tribunal decided that the guardianship order for Mr SMO should lapse.

Background

Mr SMO is a 62-year-old man who lives at an Ageing, Disability and Home Care (ADHC) institution at Regional NSW. In February 2014, the Tribunal appointed Mr SMO’s sister, Ms DDX, to be his guardian. This was to make decisions about the use of physical restraint of Mr SMO and the related issue of services. The Tribunal now needed to review the guardianship order and decided whether it should continue.

Should the Tribunal continue the guardianship order?

Mr SMO has a severe intellectual disability and the Tribunal could have made a further guardianship order if this was appropriate in his interests.
Ms DDX is a very involved sister and advocate for her brother. She is also “person responsible” under the Guardianship Act 1987 (NSW) which means that her consent is required for medical and dental treatment that Mr SMO does not understand. As discussed in the hearing, whether she is guardian or not, Ms DDX will undoubtedly continue to be a strong advocate for her brother including in relation to appropriate accommodation and support when ADHC Centre closes.
The guardianship order was made in 2014 because of the use of physical restraint on Mr SMO in response to him assaulting a particular co-resident or placing himself in imminent danger, in particular by dropping to the ground on a road. The current behaviour support plan was dated June 2014 and continued to provide for the use of restraint in these circumstances. This was within the context of strategies to attempt to avoid the challenging behaviour and deal with it in less intrusive ways that restraint.
Now, Mrs Z, unit manager, told the Tribunal that the restraint had only been needed about two times in 2013 and had not been needed at all in the last 12 months. She told the Tribunal about staff assisting Mr SMO to avoid situations that would lead to restraint. She also said that Mr SMO did not react in a major negative way when restraint had been needed.
ADHC policy states that generally restraint requires the consent of a guardian. However, it also states that there may be no need for a guardian where “Minimum force or confinement is used in a crisis to prevent harm.” See ADHC, Behaviour Support Policy, section 3.2.1
In any case, ADHC policy does not bind the Tribunal which has to consider whether a guardian is required in all circumstances.
Here, the Tribunal did not see why restraint should be a planned aspect of Mr SMO’s life. It has only been needed about two times in the last two years and not all in the last year. Good staffing practices appear to be assisting Mr SMO to avoid situations that might require restraint. The Tribunal suggests that the restraint be removed from Mr SMO’s behaviour support program.
In view of restraint not having been needed in the last year and Mr SMO having a strong advocate in his sister, the Tribunal did not see the need for guardianship to continue.
If restraint is necessary in the future as a crisis response to avoid harm to Mr SMO or others, ADHC policy permits this. If it again becomes necessary to have restraint as a planned or usual strategy, a further application should be made to the Tribunal.
The Tribunal also notes the discussion in the hearing about why Mr SMO and the co-resident whom he intensely dislikes are in the same unit. The Tribunal recommends that ADHC Centre management consider whether one of the residents should move to a different unit.

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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: 30 June 2015

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Citations

SMO [2015] NSWCATGD 6

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Medium Neutral Citation:	SMO [2015] NSWCATGD 6
Hearing dates:	5 February 2015
Date of orders:	05 February 2015
Decision date:	05 February 2015
Jurisdiction:	Guardianship Division
Before:	Simpson J, Senior Member (Legal)
Decision:	Guardianship order lapsed.
Catchwords:	GUARDIANSHIP – end of term review of guardianship order – restrictive practices – behaviour support plan in place – no decisions to be made – no need for order to be continued.
Legislation Cited:	Guardianship Act 1987 (NSW)
Texts Cited:	Department of Family and Community Services NSW, “Behaviour Support Policy” (March 2012)
Category:	Principal judgment
Parties:	Mr SMO (subject person) Ms DDX (private guardian)
File Number(s):	11321
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 (NSW)).