TZD - [2021] NSWCATGD 14

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: TZD [2021] NSWCATGD 14
Hearing dates: 16 July 2021
Date of orders: 16 July 2021
Decision date: 16 July 2021
Jurisdiction: Guardianship Division
Before: R H Booby, Senior Member (Legal)
Dr G Jamieson, Senior Member (Professional)
Dr M Spencer, General Member (Community)
Decision:
Application for consent to medical treatment
The application is dismissed because ENQ has withdrawn the application and the Tribunal consents.
Application for guardianship order
1. A guardianship order is made for TZD.
2. DAJ, of [Address removed for publication], is appointed as the guardian.
3. This is a continuing guardianship order for a period of 12 months from 16 July 2021.
4. This is a limited guardianship order giving the guardian(s) custody of TZD to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following function:
a) Restrictive Practices
To give or withhold consent as to whether the following restrictive practices should be used to influence TZD’s behaviour:
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 TZD 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 TZD’s behaviour:
(i) as a last resort to prevent TZD harming himself or others; and
(ii) in accordance with a care and support plan that incorporates:
a) the behaviours that are being addressed;
b) the reasons why the restraints are necessary;
c) the non-pharmacological strategies in place to address the behaviour;
d) provision for review, including by an appropriate medical specialist.

Catchwords:
GUARDIANSHIP – application for a guardianship order – restrictive practices function – use of restraint in aged care – Aged Care Act 1997 (Cth) – Quality of Care Principles 2014 (Cth) – National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) – adoption of NDIS definitions to aged care regime – informed consent required for use of restraint – restrictive practices substitute decision maker – chemical restraint – medication used to treat psychotic experiences and control behaviour – private guardian appointed

Legislation Cited:
Aged Care Act 1997 (Cth), ss 54-9, 96-1
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 17(1), 33, 33A(4)(b), 35, 36(1)(b), 37
Guardianship Regulation 2010 (NSW), cl 11(e)
National Disability Insurance Scheme (Restrictive Practices and Behaviour Support Rules) 2018 (Cth)
National Disability Insurance Scheme Act 2013 (Cth), s 9
Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019 (Cth)
Quality of Care Amendment (Reviewing Restraints Principles) Principles 2019 (Cth)
Quality of Care Principles 2014 (Cth), Pt 4A, s 4, 5, 15F(1)(e), 15FA(1)(f)(ii), 15G(1)(c).

Cases Cited:
C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep)
HZC [2019] NSWCATGD 8
IF…

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 TZD

Details

AGLC: TZD [2021] NSWCATGD 14
Case: [2021] NSWCATGD 14
Decision Date: 16 July 2021

CaseChat Overview and Summary

In the matter of TZD, the court heard an application for a guardianship order concerning the use of restraint in an aged care setting. The dispute involved the appointment of a guardian to make decisions regarding the use of restrictive practices, including chemical restraint, for the benefit of TZD, who was experiencing psychotic episodes. The legal issues before the court included whether the guardianship order was necessary, the appropriateness of the proposed guardian, and the conditions under which restrictive practices could be authorised.

The court found that the guardianship order was necessary due to TZD's condition and the need for oversight in the use of restrictive practices. The court considered the evidence and concluded that DAJ, the proposed guardian, was suitable for the role. The court also outlined specific conditions for the use of restrictive practices, requiring them to be used as a last resort and in accordance with a care and support plan that detailed the behaviours addressed, the necessity of the restraints, non-pharmacological strategies, and provisions for review.

The court granted the application for a guardianship order and appointed DAJ as the guardian of TZD. The order was made for a period of 12 months and included specific functions related to the use of restrictive practices, with conditions that the guardian must seek TZD's understanding and views before making significant decisions and only consent to the use of restraints under strict criteria.

The final orders included the dismissal of an application for consent to medical treatment as the applicant had withdrawn it, and the approval of the guardianship order with specified functions and conditions for the use of restrictive practices.

Orders

Orders of the court

Application for consent to medical treatment

The application is dismissed because ENQ has withdrawn the application and the Tribunal consents.

Application for guardianship order

1. A guardianship order is made for TZD.

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

3. This is a continuing guardianship order for a period of 12 months from 16 July 2021.

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

FUNCTIONS:

5. The guardian has the following function:

a) Restrictive Practices

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

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 TZD 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 TZD’s behaviour:

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

(ii) in accordance with a care and support plan that incorporates:

a) the behaviours that are being addressed;

b) the reasons why the restraints are necessary;

c) the non-pharmacological strategies in place to address the behaviour;

d) provision for review, including by an appropriate medical specialist.

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:	TZD [2021] NSWCATGD 14
Hearing dates:	16 July 2021
Date of orders:	16 July 2021
Decision date:	16 July 2021
Jurisdiction:	Guardianship Division
Before:	R H Booby, Senior Member (Legal) Dr G Jamieson, Senior Member (Professional) Dr M Spencer, General Member (Community)
Decision:	Application for consent to medical treatment The application is dismissed because ENQ has withdrawn the application and the Tribunal consents. Application for guardianship order 1. A guardianship order is made for TZD. 2. DAJ, of [Address removed for publication], is appointed as the guardian. 3. This is a continuing guardianship order for a period of 12 months from 16 July 2021. 4. This is a limited guardianship order giving the guardian(s) custody of TZD to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following function: a) Restrictive Practices To give or withhold consent as to whether the following restrictive practices should be used to influence TZD’s behaviour: 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 TZD 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 TZD’s behaviour: (i) as a last resort to prevent TZD harming himself or others; and (ii) in accordance with a care and support plan that incorporates: a) the behaviours that are being addressed; b) the reasons why the restraints are necessary; c) the non-pharmacological strategies in place to address the behaviour; d) provision for review, including by an appropriate medical specialist.
Catchwords:	GUARDIANSHIP – application for a guardianship order – restrictive practices function – use of restraint in aged care – Aged Care Act 1997 (Cth) – Quality of Care Principles 2014 (Cth) – National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) – adoption of NDIS definitions to aged care regime – informed consent required for use of restraint – restrictive practices substitute decision maker – chemical restraint – medication used to treat psychotic experiences and control behaviour – private guardian appointed
Legislation Cited:	Aged Care Act 1997 (Cth), ss 54-9, 96-1 Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 17(1), 33, 33A(4)(b), 35, 36(1)(b), 37 Guardianship Regulation 2010 (NSW), cl 11(e) National Disability Insurance Scheme (Restrictive Practices and Behaviour Support Rules) 2018 (Cth) National Disability Insurance Scheme Act 2013 (Cth), s 9 Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019 (Cth) Quality of Care Amendment (Reviewing Restraints Principles) Principles 2019 (Cth) Quality of Care Principles 2014 (Cth), Pt 4A, s 4, 5, 15F(1)(e), 15FA(1)(f)(ii), 15G(1)(c).
Cases Cited:	C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) HZC [2019] NSWCATGD 8 IF…