SZO - [2021] NSWCATGD 17

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: SZO [2021] NSWCATGD 17
Hearing dates: 5 September 2021
Date of orders: 5 September 2021
Decision date: 05 September 2021
Jurisdiction: Guardianship Division
Before: J Conley, Senior Member (Legal)
Dr A Baird, Senior Member (Professional)
Dr J M Green, General Member (Community)
Decision:
1. A guardianship order is made for SZO.
2. The Public Guardian is appointed as the guardian.
3. This is a continuing guardianship order for a period of eight weeks from 5 September 2021.
4. This is a limited guardianship order giving the guardian custody of SZO to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Accommodation
To decide where SZO may reside including for the purposes of hospitalisation.
b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:
i) take SZO to a place approved by the guardian.
ii) keep him at that place.
iii) return him to that place should he leave it.
c) Health care
To decide what health care SZO may receive.
d) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where SZO is not capable of giving a valid consent.
e) Services
To make decisions about services to be provided to SZO.
f) Restrictive Practices
To give or withhold consent as to whether the following restrictive practices should be used to influence SZO’s behaviour:
1. Chemical restraint
AUTHORITY:
6. The guardian has the following authority:
a) Authority to override objections to medical treatment
i) The guardian may override the objection of SZO to major or minor medical treatment.
CONDITIONS:
7. The conditions of this order are:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring SZO to an understanding of the issues and to obtain and consider his views before making significant decisions.
b) Restrictive Practices Condition
The guardian(s) may only consent to the use of the types of restrictive practices permitted under this order to influence SZO’s behaviour:
(i) as a last resort; and
(ii) in accordance with a care and support plan that incorporates the behaviours that are being addressed and non-pharmacological strategies in place to address the behaviour.

Catchwords:
GUARDIANSHIP – after hours hearing – urgent hearing requested as subject person trying to leave hospital against medical advice – cognitive impairment associated with Wernicke’s encephalopathy – whether limited notice of hearing to subject person breached procedural fairness – risk outweighed limited notice – eight week reviewable guardianship order made.

Legislation Cited:
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 10, 10(2), 14, 14(2)

Cases Cited:
IF v IG [2004] NSWADTAP 3

Texts Cited:
None cited.

Category: Principal judgment
Parties:
001: Guardianship Application
SZO (the person)
LYX (applicant)
Public Guardian
Representation: Nil.

File Number(s): NCAT 2021/00254466
Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may…

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 SZO

Details

AGLC: SZO [2021] NSWCATGD 17
Case: [2021] NSWCATGD 17
Decision Date: 05 September 2021

CaseChat Overview and Summary

In the case, the subject of a guardianship application, SZO, was attempting to leave hospital against medical advice. The application was brought by the Public Guardian due to concerns about SZO's ability to make decisions about his accommodation, health care, and other matters, given his cognitive impairment associated with Wernicke's encephalopathy. The Court was required to decide whether a limited notice of the urgent hearing to SZO breached procedural fairness, and whether the risk of him leaving hospital without appropriate care outweighed any such breach.

The Court found that while notice to SZO was limited, the urgency of the situation and the risk of harm to him if he left hospital without appropriate care outweighed any breach of procedural fairness. It was in SZO's best interests for an order to be made to ensure he received the care and support he required. The Court made an eight-week reviewable guardianship order, appointing the Public Guardian as SZO's guardian. The guardian was given various functions and authority, including the ability to decide SZO's accommodation, make health care decisions, and consent to medical or dental treatment. The guardian was also authorised to override SZO's objections to medical treatment and could consent to the use of restrictive practices as a last resort.

The Court made a guardianship order for SZO, appointing the Public Guardian as his guardian. The order was for a period of eight weeks and included conditions to ensure SZO's views were considered before significant decisions were made and that restrictive practices were used as a last resort. The guardian was authorised to make decisions about SZO's accommodation, health care, and consent to medical or dental treatment, and could override SZO's objections to medical treatment.

Orders

Orders of the court

1. A guardianship order is made for SZO.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of eight weeks from 5 September 2021.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where SZO may reside including for the purposes of hospitalisation.

b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:

i) take SZO to a place approved by the guardian.

ii) keep him at that place.

iii) return him to that place should he leave it.

c) Health care

To decide what health care SZO may receive.

d) Medical/Dental consent

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

e) Services

To make decisions about services to be provided to SZO.

f) Restrictive Practices

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

1. Chemical restraint

AUTHORITY:

6. The guardian has the following authority:

a) Authority to override objections to medical treatment

i) The guardian may override the objection of SZO to major or minor medical treatment.

CONDITIONS:

7. The conditions of this order are:

a) Standard Condition

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

b) Restrictive Practices Condition

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

(i) as a last resort; and

(ii) in accordance with a care and support plan that incorporates the behaviours that are being addressed and non-pharmacological strategies in place to address the behaviour.

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:	SZO [2021] NSWCATGD 17
Hearing dates:	5 September 2021
Date of orders:	5 September 2021
Decision date:	05 September 2021
Jurisdiction:	Guardianship Division
Before:	J Conley, Senior Member (Legal) Dr A Baird, Senior Member (Professional) Dr J M Green, General Member (Community)
Decision:	1. A guardianship order is made for SZO. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of eight weeks from 5 September 2021. 4. This is a limited guardianship order giving the guardian custody of SZO to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Accommodation To decide where SZO may reside including for the purposes of hospitalisation. b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to: i) take SZO to a place approved by the guardian. ii) keep him at that place. iii) return him to that place should he leave it. c) Health care To decide what health care SZO may receive. d) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where SZO is not capable of giving a valid consent. e) Services To make decisions about services to be provided to SZO. f) Restrictive Practices To give or withhold consent as to whether the following restrictive practices should be used to influence SZO’s behaviour: 1. Chemical restraint AUTHORITY: 6. The guardian has the following authority: a) Authority to override objections to medical treatment i) The guardian may override the objection of SZO to major or minor medical treatment. CONDITIONS: 7. The conditions of this order are: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring SZO to an understanding of the issues and to obtain and consider his views before making significant decisions. b) Restrictive Practices Condition The guardian(s) may only consent to the use of the types of restrictive practices permitted under this order to influence SZO’s behaviour: (i) as a last resort; and (ii) in accordance with a care and support plan that incorporates the behaviours that are being addressed and non-pharmacological strategies in place to address the behaviour.
Catchwords:	GUARDIANSHIP – after hours hearing – urgent hearing requested as subject person trying to leave hospital against medical advice – cognitive impairment associated with Wernicke’s encephalopathy – whether limited notice of hearing to subject person breached procedural fairness – risk outweighed limited notice – eight week reviewable guardianship order made.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 10, 10(2), 14, 14(2)
Cases Cited:	IF v IG [2004] NSWADTAP 3
Texts Cited:	None cited.
Category:	Principal judgment
Parties:	001: Guardianship Application SZO (the person) LYX (applicant) Public Guardian
Representation:	Nil.
File Number(s):	NCAT 2021/00254466
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may…