SZH

Case [2020] NSWCATGD 28 24 November 2020

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NSW Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: SZH [2020] NSWCATGD 28
Hearing dates: 17 August 2020 and 12 October 2020
Date of orders: 24 November 2020
Decision date: 24 November 2020
Jurisdiction: Guardianship Division
Before: C P Fougere, Principal Member
Dr G Jamieson, Senior Member (Professional)
Emeritus Professor P J Foreman AM, General Member (Community)
Decision:
1. A guardianship order is made for SZH.
2. The Public Guardian is appointed as the guardian.
3. This is a continuing guardianship order for a period of three years from 24 November 2020.
4. This is a limited guardianship order giving the guardian(s) custody of SZH to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Services
To make decisions about services to be provided to SZH.
b) Restrictive Practices
To give or withhold consent as to whether the following restrictive practices should be used:
1. Physical 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 SZH to an understanding of the issues and to obtain and consider their views before making significant decisions.
b) Restrictive Practices Condition
The guardian may consent to the use of the physical restraint permitted under this order in relation to SZH only if:
(a) SZH is regularly monitored for signs of distress or harm; and
(b) the use of the restraint is regularly monitored and reviewed.

Catchwords:
GUARDIANSHIP – application for a guardianship order – subject person diagnosed alcohol-related brain disorder and frontal lobe damage – whether a guardianship order should be made – restrictive practices – “restraint” – residential aged care - right to freedom of movement and liberty – whether use of a coded keypad lock system constitutes a restrictive practice – whether use of a coded keypad lock system could amount to “total restraint” - whether restraint justified – tort of false imprisonment - guardianship functions – whether guardian should be appointed with an accommodation function or a restrictive practices function – Quality of Care Principles 2014 (Cth) – relationship between restrictive practices and Aged Care Act – guardianship order conditions – subject person an NDIS participant – need for a services function – whether placement of a bed against a wall constitutes a restraint – whether subject person requires advance care planning – order made – physical restraint function – services function – Public Guardian appointed.

Legislation Cited:
Aged Care Act 1997 (Cth)
Civil and Administrative Tribunal Act 2013 (NSW), s 36(1)
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 4(a)-(c), 4(g), 14, 14(2), 14(2)(d), 16(1)(d), 16(2)(b), 18(1A)-(1B), 21A(1)(c)
Guardianship and Administration Act 1993 (SA), s 32(1)(b)
Mental Health Act 2007 (NSW)
National Disability Insurance Scheme Act 2013 (Cth)
NDIS (Restrictive Practices and Behaviour Support) Rules 2018 (Cth)
Quality of Care Principles 2014 (Cth), Pt 4A; ss 4, 15F(2)(e)

Cases Cited:
B v Forsey (1988) SC HL 28
CPCF v Minister for Immigration…

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 SZH

Details

AGLC: SZH [2020] NSWCATGD 28
Case: [2020] NSWCATGD 28
Decision Date: 24 November 2020

CaseChat Overview and Summary

SZH applied for a guardianship order to be made in relation to them due to a diagnosis of an alcohol-related brain disorder and frontal lobe damage. The application was heard by the Supreme Court of New South Wales. The court was required to determine whether a guardianship order should be made, if so, what functions should be allocated to the guardian, and what conditions should apply to the order.

The legal issues before the court included whether a coded keypad lock system used in a residential aged care facility constituted a restrictive practice, and whether it could amount to "total restraint." The court also needed to consider the tort of false imprisonment and the Quality of Care Principles 2014 (Cth). Additionally, the court had to determine whether the guardian should be appointed with an accommodation function or a restrictive practices function, and if the subject person required advance care planning.

The court found that a guardianship order should be made in relation to SZH. The Public Guardian was appointed as the guardian, with a continuing guardianship order for a period of three years. The guardian was given a services function to make decisions about services to be provided to SZH, and a restrictive practices function to give or withhold consent for the use of physical restraint. The court imposed conditions on the use of physical restraint, requiring regular monitoring and review of SZH for signs of distress or harm.

The court determined that the use of a coded keypad lock system did not constitute a restraint, and that the placement of a bed against a wall did not amount to a restraint. The court found that SZH required advance care planning, and that the guardian should be appointed with a services function, as well as a restrictive practices function. The court considered the relationship between restrictive practices and the Aged Care Act, and the need for a services function due to SZH being an NDIS participant.

Orders

Orders of the court

1. A guardianship order is made for SZH.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of three years from 24 November 2020.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Services

To make decisions about services to be provided to SZH.

b) Restrictive Practices

To give or withhold consent as to whether the following restrictive practices should be used:

1. Physical 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 SZH to an understanding of the issues and to obtain and consider their views before making significant decisions.

b) Restrictive Practices Condition

The guardian may consent to the use of the physical restraint permitted under this order in relation to SZH only if:

(a) SZH is regularly monitored for signs of distress or harm; and

(b) the use of the restraint is regularly monitored and reviewed.

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.

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Citations

SZH [2020] NSWCATGD 28

Most Recent Citation

OZQ [2020] NSWCATGD 40

Cases Citing This Decision

KXE [2024] NSWCATGD 1
Citation 1 (Para 24)

…In the matter of SZH [2020] NSWCATGD 28, the Tribunal was called upon to consider whether a guardian should be appointed to make decisions about, amongst other matters, the use of coded keypads at all exits of the aged care facility. The Tribunal found that it needed to answer the following questions:…
SHG [2024] NSWCATGD 2
Citation 2 (Para 21)

…In the matters of SZH [2020] NSWCATGD 28, and VZM [2020] NSWCATGD 25, the Tribunal found that the definitions contained in Pt 4A of the Principles are appropriate to be adopted by the Tribunal when considering applications in relation to people living in residential aged care. In VZM , the Tribunal considered the Pri…
Re Frieda (Guardianship) [2022] ACAT 27
Citation 3 (Para 8)

…. [14] Quality of Care Principles 2014 , compilation No. 8, compiled at 1 April 2021, section 15J(1) [15] VZM [2020] NSWCATGD 25 [16] SZH [2020] NSWCATGD 28…
NZX [2021] NSWCATGD 16
Citation 4 (Para 49)

…and substitute consent to the use of restraint in aged care facilities in a number of published decisions, ( JFL [2020] NSWCATGD 36 (“JFL”), SZH [2020] NSWCATGD 28 and VZM [2020] NSWCATGD 25). In comprehensive explanations of the legislative regimes current at the time, the Tribunal in those cases was satisfied that…
FNX [2021] NSWCATGD 4
Citation 5 (Para 69)

…In the matter of SZH [2020] NSWCATGD 28 (“ SZH ”), we set out (at [78]-[111]) a summary of the written and oral submissions made in relation to the use of coded keypads by the separate representative and the Public Guardian in relation to these proceedings and the other proceedings heard on the same day as this appli…
NBT [2021] NSWCATGD 2
Citation 6 (Para 20)

…sues of restraint and substitute consent to the use of restraint in aged care facilities in three published decisions, JFL [2020] NSW CAT GD 36 , SZH [2020] NSWCATGD 28 and VZM (2020) NSWCAT GD 25. In very comprehensive explanations of the various legislative regimes, the Tribunal in those cases was satisfied that in…
OZS [2021] NSWCATGD 1
Citation 7 (Para 19)

…tute consent to the use of restraint in aged care facilities in three published decisions, VZM [2020] NSWCAT GD 25, JFL [2020] NSW CAT GD 36, and SZH [2020] NSWCATGD 28. In very comprehensive explanations of the various legislative regimes, the Tribunal in those cases was satisfied that in the event that a person is…
JFL [2020] NSWCATGD 32
Citation 8 (Para 69)

…In the matter of SZH [2020] NSWCATGD 28 (“ SZH ”), we set out (at [78]-[111]) a summary of the written and oral submissions made in relation to the use of coded keypads by the separate representative and the Public Guardian in relation to these proceedings and the other proceedings heard on the same day as this appli…
OZQ [2020] NSWCATGD 40
Citation 9 (Para 20)

…Aged Care Act , the Act and the role of the NSW Civil and Administrative Tribunal Guardianship Division in SZH [2020] NSWCATGD 28, VZM [2020] NSWCATGD 25 and JFL [2020] NSWCATGD 32.…

See all citing cases →

Cases Cited

Lewis v Australian Capital Territory [2020] HCA 26
Citation 1 (Para 122)

…r her freedom of movement, does not mean that wrongful imprisonment cannot be made out” (at [289]). See also Lewis v Australian Capital Territory [2020] HCA 26, at [45] (Gordon J); CPCF v Minister for Immigration and Border Protection [2015] HCA 1, [155] (Hayne and Bell JJ).…
VZM [2020] NSWCATGD 25
Citation 2 (Para 25)

…al (NCAT) when considering whether it should appoint a guardian with the function of making decisions about restrictive practices or restraints ( VZM [2020] NSWCATGD 25 (“ VZM ”) at [57(1)]; HZC [2019] NSWCATGD 8 at [44]). It is nevertheless clear, however, that the regulatory scheme outlined in the Quality of Care P…
The Public Advocate v C, B [2019] SASCFC 58
Citation 3 (Para 109)

…After further questioning from the Tribunal on the authorities in Darcy and The Public Advocate v C, B [2019] SASCFC 58 (“ The Public Advocate v C,B ”), among other cases, Mr Higgins said the Public Guardian’s view does not differ from those cases, but that it was concerned more with the circumstances which caused…
HZC [2019] NSWCATGD 8
Citation 4 (Para 25)

…int a guardian with the function of making decisions about restrictive practices or restraints ( VZM [2020] NSWCATGD 25 (“ VZM ”) at [57(1)]; HZC [2019] NSWCATGD 8 at [44]). It is nevertheless clear, however, that the regulatory scheme outlined in the Quality of Care Principles prompted the making of these six appli…
M, B v Police [2019] SASC 58
Citation 5

…. 22. To conclude its submissions on this matter, the Public Guardian notes the South Australian decision of The Public Advocate v C, B [2019] SASC 58, about which the Tribunal has asked for assistance. That case merely confirms and adds nothing to the analysis provided in these submissions. The case makes the ve…
The State of Western Australia v Cunningham [No 3] [2018] WASCA 207
Citation 6 (Para 115)

…t need to involve the use of actual force or direct physical contact ( Watson v Marshall , at 626; The State of Western Australia v Cunningham [No 3] [2018] WASCA 207, [149]). It is a tort of strict liability and therefore lack of fault, in the sense of absence of bad faith, is irrelevant to the existence of the wr…
KZE [2018] NSWCATGD 40
Citation 7

…ouraged guardianship applications only where the subject person was “actively seeking to leave” the facility. Refer also to the decision of KZE [2018] NSWCATGD 40 where locks used for a therapeutic or safety purposes). The cases also support a finding that where a person is not permitted to leave a facility other tha…
State of New South Wales v Le [2017] NSWCA 290
Citation 8 (Para 77)

…We note the views expressed by the Court of Appeal in State of NSW v Le [2017] NSWCA 290 (“ State of NSW v Le ”) (at [3]-[4]) that even though the terminology of “false imprisonment” may be “conventional”, the use of appropriate language is important to ensure the proper application of legal principle. Having regar…
Elleray v Rail Corporation NSW [2017] NSWCA 23
Citation 9 (Para 115)

…3] NSWCA 32, [53] (Basten JA; Bathurst CJ, Barrett JA, Hoeben JA and Sackville AJA agreeing). It is actionable per se (Elleray v Rail Corporation NSW [2017] NSWCA 23, [4]) and therefore a plaintiff does not have to prove damage as an element of the tort rather than for the purpose of awarding compensation.…
MAQ [2016] NSWCATGD 70
Citation 10

…v IG [2004] NSWADTAP 3 KCG [2014] NSWCATGD 7 Lewis v Australian Capital Territory [2020] HCA 26 MAQ [2016] NSWCATGD 70 McFadzean v Construction Forestry Mining and Energy Union [2007] VSCA 289 Meering v Grahame-White Aviation Co. Ltd (1920) 122 L.T. 4 Murray v Ministry of Defence [1988] 2 All ER 521 (1 W.L.R. 692) NI…
EQK [2016] NSWCATGD 29
Citation 11

…g whether it should make an order. including whether their need for appropriate decision-making can be achieved in a less formal way (EQK [2016] NSWCATGD 29). The question should be approached on a case-by-case basis with regard to these legal criteria and the factual submissions put to it by the parties. 36. It is p…
HKO [2016] NSWCATGD 14
Citation 12 (Para 69)

…In the case of HKO [2016] NSWCATGD 14, evidence was provided by a representative of the Public Guardian about the value of having a guardian appointed for those people without involved family or advocates. The Tribunal noted (at [20]) as follows:…
State of New South Wales v McMaster [2015] NSWCA 228
Citation 13

…579 Re: EUY [2019] SACAT 51 Ruddock v Taylor (2005) 222 CLR 612 State of New South Wales v McMaster [2015] NSWCA 228 State of New South Wales v Riley [2003] NSWCA 208 State of New South Wales v TD [2013] NSWCA 32 State of NSW v Le [2017] NSWCA 290 State of South Australia v Lampard-Trevorrow (2010) 106 SASR 331 The…
P v NSW Trustee and Guardian [2015] NSWSC 579
Citation 14 (Para 39)

…abilitation. He has a significant “need for services to help [him] function normally in community with others” ( P v NSW Trustee and Guardian [2015] NSWSC 579, [303]).…
CPCF v Minister for Immigration and Border Protection [2015] HCA 1
Citation 15 (Para 122)

…at [289]). See also Lewis v Australian Capital Territory [2020] HCA 26, at [45] (Gordon J); CPCF v Minister for Immigration and Border Protection [2015] HCA 1, [155] (Hayne and Bell JJ).…
GAU v GAV [2014] QCA 308
Citation 16 (Para 48)

…n: , s 4(a) and (b) ; Guardianship Act s. 4(a) and (b); Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238D–F and 241G–242A; GAU v GAV [2014] QCA 308 at [48] (P v NSW Trustee and Guardian [2015] NSWSC 579). 34. As the Tribunal is aware, the criteria relevant to determining whether a guardianship order shou…
NIQ [2014] NSWCATGD 28
Citation 17

…ation Co. Ltd (1920) 122 L.T. 4 Murray v Ministry of Defence [1988] 2 All ER 521 (1 W.L.R. 692) NIQ [2014] NSWCATGD 28 P v NSW Trustee and Guardian [2015] NSWSC 579 Re: EUY [2019] SACAT 51 Ruddock v Taylor (2005) 222 CLR 612 State of New South Wales v McMaster [2015] NSWCA 228 State of New South Wales v Riley [2003]…
KCG [2014] NSWCATGD 7
Citation 18 (Para 68)

…In the case of KCG [2014] NSWCATGD 7 (at [69]), the Tribunal stated that…
New South Wales v TD [2013] NSWCA 32
Citation 19 (Para 115)

…sence of bad faith, is irrelevant to the existence of the wrong ( Ruddock v Taylor (2005) 222 CLR 612, [140] (Kirby J); State of New South Wales v TD [2013] NSWCA 32, [53] (Basten JA; Bathurst CJ, Barrett JA, Hoeben JA and Sackville AJA agreeing). It is actionable per se (Elleray v Rail Corporation NSW [2017] NSWC…
Darcy v State of New South Wales [2011] NSWCA 413
Citation 20 (Para 77)

…legal principle. Having regard also to the principles set out and language used in the case of Darcy (bht Diane Aldridge) v State of NSW [2011] NSWCA 413 (“ Darcy” ) (see [112] below), wherever possible we have used the language of “restraint” in considering SZH’s circumstances.…
State of South Australia v Lampard-Trevorrow [2010] SASC 56
Citation 21

…normally describe as imprisonment. It has been said that the law has moved on from any such limitation: State of South Australia v Lampard-Trevorrow [2010] SASC 56; (2010) 106 SASR 331 at [282]. 146 This statement of the relevant principles is not intended to be a comprehensive one. Rather, it is confined to the…
Hunter and New England Area Health Service v A [2009] NSWSC 761
Citation 22 (Para 60)

…r medical treatment of specified kinds, must be made by a capable adult and be clear and unambiguous (Hunter and New England Area Health Services v A [2009] NSWSC 761, [40]). It cannot be signed by any other person.…
FI v Public Guardian [2008] NSWADT 263
Citation 23 (Para 62)

…e the authority to make decisions in connection with health care that includes decisions to withdraw life sustaining treatment ( FI v Public Guardian [2008] NSWADT 263, [51]).…
McFadzean v Construction, Forestry, Mining and Energy Union [2007] VSCA 289
Citation 24 (Para 107)

…aid there were other authorities to say it did not. He referred the Tribunal to the case of McFadzean v Construction Forestry Mining and Energy Union [2007] VSCA 289, at [41]:…
Ruddock v Taylor [2005] HCA 48
Citation 25 (Para 115)

…of strict liability and therefore lack of fault, in the sense of absence of bad faith, is irrelevant to the existence of the wrong ( Ruddock v Taylor (2005) 222 CLR 612, [140] (Kirby J); State of New South Wales v TD [2013] NSWCA 32, [53] (Basten JA; Bathurst CJ, Barrett JA, Hoeben JA and Sackville AJA agreeing). It…
IF v IG [2004] NSWADTAP 3
Citation 26 (Para 43)

…ardianship 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).…
State of New South Wales v Riley [2003] NSWCA 208
Citation 27

…) 222 CLR 612 State of New South Wales v McMaster [2015] NSWCA 228 State of New South Wales v Riley [2003] NSWCA 208 State of New South Wales v TD [2013] NSWCA 32 State of NSW v Le [2017] NSWCA 290 State of South Australia v Lampard-Trevorrow (2010) 106 SASR 331 The State of Western Australia v Cunningham [No 3] [2…
Victorian Council for Civil Liberties Inc v Minister for Immigration and Multicultural Affairs [2001] FCA 1297
Citation 28 (Para 86)

…lements giving rise to an unlawful restraint on the freedom of movement of the person (Full Court of the Federal Court in Ruddock v Vardarlis [2001] FCA 1297 at [86] and [69] cited in Antunovic v Dawson & Anor [2010] VSC 377 (25 August 2010) [108]-[111]). 3. A relevant case in relation to the care of people with a…
Watson v Marshall [1971] HCA 33
Citation 29

…SASR 331 The State of Western Australia v Cunningham [No 3] [2018] WASCA 207 VZM [2020] NSWCATGD 25 Watson v Marshall (1971) 124 CLR 621 Texts Cited: “Regulation of physical and chemical restraint” (issue No. 2019-8.1 Issue Date: 11 December 2019) Category: Principal judgment Parties: 007: Guardianship Application SZH (the…
Trobridge v Hardy [1955] HCA 68
Citation 30

…imprisonment. Upon the proof of such imprisonment, the defendant, to escape liability, needs to establish legal justification. In Troubridge v Hardy (1955) 94 CLR 147 at 152 these principles were explained by Fullager J in the following terms: The [appellant] did not sue, as he might also have done, for malicious p…
Antunovic v Dawson [2010] VSC 377
Citation 31

…ent of the person (Full Court of the Federal Court in Ruddock v Vardarlis [2001] FCA 1297 at [86] and [69] cited in Antunovic v Dawson & Anor [2010] VSC 377 (25 August 2010) [108]-[111]). 3. A relevant case in relation to the care of people with a disability is the case of Joanne Darcy, a woman who lived a large…
L, In re [1998] UKHL 24
Citation 32

…ctual rather than potential ( R v Bournewood Community and Mental Health NHS Trust, ex parte L (Secretary of State for Health and others intervening) [1998] UKHL 24; 1 AC 458; [1998] 3 All ER 289). The restraint must be upon a person's liberty to come and go and must be against his or her will (Second Restatement…
Nla [2015] VCAT 1104
Citation 33

…power to decide that a person should live in a locked facility which the person may only leave with supervision (Refer to NLA (Guardianship) [2015] VCAT 1104 (23 July 2015)). 26. However, in NSW the approach taken is that the authorisation of a guardian is required to the restrictive practice itself rather than th…
Re QFO [2019] SACAT 43
Citation 34

…happy about living there. The key issue was whether QFO could not leave the facility unaccompanied and was required to return to the facility (Re QFO [2019] SACAT 43). 17. It is also noted that the justification of necessity (The justification at common law based on necessity contemplates an imminent danger of inj…
[2019] SACAT 51 [2019] SACAT 51
Citation 35 (Para 1)

…person’s circumstances and the nature and extent of the restraint said to be imposed upon the person’s freedom of movement and liberty ( Re: EUY [2019] SACAT 51 at [82]);…
1 AC 458 1 AC 458
Citation 36

…n potential ( R v Bournewood Community and Mental Health NHS Trust, ex parte L (Secretary of State for Health and others intervening) [1998] UKHL 24; 1 AC 458; [1998] 3 All ER 289). The restraint must be upon a person's liberty to come and go and must be against his or her will (Second Restatement of Torts…
Holt v Protective Commissioner 38 ER 774
Citation 37

…interference in the person’s freedoms of decision and action: , s 4(a) and (b) ; Guardianship Act s. 4(a) and (b); Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238D–F and 241G–242A; GAU v GAV [2014] QCA 308 at [48] (P v NSW Trustee and Guardian [2015] NSWSC 579). 34. As the Tribunal is aware, the criteria rel…

Legislation Cited

Civil and Administrative Tribunal Act 2013 (NSW) 36(1), 36(1)), 65
3 mentions (from Para 23)
Guardianship Act 1987 (NSW) 3(1)
2 mentions (from Para 9)
Aged Care Act 1997 (Cth)
1 mention (from Para 2)
Aged Care Quality and Safety Commission Act 2018 (Cth)
1 mention
Guardianship Act 1997 (NSW)
1 mention
Guardianship and Administration Act 1993 (SA) 32(1)(b)
1 mention
Mental Health Act 2007 (NSW)
1 mention
National Disability Insurance Scheme Act 2013 (Cth)
1 mention
NDIS (Restrictive Practices and Behaviour Support) Rules 2018 (Cth)
1 mention (from Para 97)

Medium Neutral Citation:	SZH [2020] NSWCATGD 28
Hearing dates:	17 August 2020 and 12 October 2020
Date of orders:	24 November 2020
Decision date:	24 November 2020
Jurisdiction:	Guardianship Division
Before:	C P Fougere, Principal Member Dr G Jamieson, Senior Member (Professional) Emeritus Professor P J Foreman AM, General Member (Community)
Decision:	1. A guardianship order is made for SZH. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of three years from 24 November 2020. 4. This is a limited guardianship order giving the guardian(s) custody of SZH to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Services To make decisions about services to be provided to SZH. b) Restrictive Practices To give or withhold consent as to whether the following restrictive practices should be used: 1. Physical 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 SZH to an understanding of the issues and to obtain and consider their views before making significant decisions. b) Restrictive Practices Condition The guardian may consent to the use of the physical restraint permitted under this order in relation to SZH only if: (a) SZH is regularly monitored for signs of distress or harm; and (b) the use of the restraint is regularly monitored and reviewed.
Catchwords:	GUARDIANSHIP – application for a guardianship order – subject person diagnosed alcohol-related brain disorder and frontal lobe damage – whether a guardianship order should be made – restrictive practices – “restraint” – residential aged care - right to freedom of movement and liberty – whether use of a coded keypad lock system constitutes a restrictive practice – whether use of a coded keypad lock system could amount to “total restraint” - whether restraint justified – tort of false imprisonment - guardianship functions – whether guardian should be appointed with an accommodation function or a restrictive practices function – Quality of Care Principles 2014 (Cth) – relationship between restrictive practices and Aged Care Act – guardianship order conditions – subject person an NDIS participant – need for a services function – whether placement of a bed against a wall constitutes a restraint – whether subject person requires advance care planning – order made – physical restraint function – services function – Public Guardian appointed.
Legislation Cited:	Aged Care Act 1997 (Cth) Civil and Administrative Tribunal Act 2013 (NSW), s 36(1) Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 4(a)-(c), 4(g), 14, 14(2), 14(2)(d), 16(1)(d), 16(2)(b), 18(1A)-(1B), 21A(1)(c) Guardianship and Administration Act 1993 (SA), s 32(1)(b) Mental Health Act 2007 (NSW) National Disability Insurance Scheme Act 2013 (Cth) NDIS (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) Quality of Care Principles 2014 (Cth), Pt 4A; ss 4, 15F(2)(e)
Cases Cited:	B v Forsey (1988) SC HL 28 CPCF v Minister for Immigration…