TZT - [2020] NSWCATGD 67

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: TZT [2020] NSWCATGD 67
Hearing dates: 23 July 2020
Date of orders: 23 July 2020
Decision date: 23 July 2020
Jurisdiction: Guardianship Division
Before: J Conley, Senior Member (Legal)
Dr M A Martin, Senior Member (Professional)
Decision:
The guardianship order for TZT made on 11 July 2017 has been reviewed. The order now is as follows:
1. The Public Guardian is appointed as the guardian.
2. This is a continuing guardianship order for a period of 12 months from 23 July 2020.
3. This is a limited guardianship order giving the guardian(s) custody of TZT to the extent necessary to carry out the functions below.
FUNCTIONS:
4. The guardian has the following functions:
a) Health care
To decide what health care TZT may receive.
b) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where TZT is not capable of giving a valid consent.
c) Services
To make decisions about services to be provided to TZT.
d) Restrictive Practices
To give or withhold consent as to whether the following restrictive practices should be used to influence TZT’s behaviour:
1. Chemical restraint
CONDITIONS:
5. The conditions of this order are:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring TZT 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 TZT’s behaviour:
(i) as a last resort to prevent TZT harming himself or others; and
(ii) in accordance with a behaviour support plan which has been developed by a behaviour support practitioner after having conducted a functional behavioural assessment upon TZT, and which is reviewed regularly (and no less than every 12 months) and/or reviewed as soon as practicable if there is a change in circumstances which requires the plan to be amended.

Catchwords:
GUARDIANSHIP – end of term review of guardianship order – restrictive practices function –– subject person with intellectual disability – resident in group home – NDIS participant – complex health and major medications prescribed – history of aggression and self-injurious behaviours – use of chemical restraint in behaviour support plan – no person responsible or NDIS Plan Nominee

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

Cases Cited:
HZC [2019] NSWCATGD 8
IF v IG [2004] NSWADTAP 3

Texts Cited:
Nil

Category: Principal judgment
Parties:
018: Review of Guardianship Order
TZT (the person)
Public Guardian (appointed guardian)
Representation: Nil

File Number(s): NCAT 1990/00053426
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

END OF TERM REVIEW OF GUARDIANSHIP ORDER

What was decided

The guardianship order for TZT…

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 TZT

Details

AGLC: TZT [2020] NSWCATGD 67
Case: [2020] NSWCATGD 67
Decision Date: 23 July 2020

CaseChat Overview and Summary

The case involved a review of a guardianship order for TZT, a person with an intellectual disability who resides in a group home and is a participant in the National Disability Insurance Scheme (NDIS). The case was heard in the relevant court responsible for such matters. The primary dispute centred on the continuation and scope of the guardianship order, specifically focusing on the use of restrictive practices, such as chemical restraint, to manage TZT's complex health issues and behaviours.

The court was tasked with deciding whether the guardianship order should be renewed and, if so, what specific functions and conditions should be included. The legal issues included the necessity of continuing guardianship due to TZT's disability and history of aggression, the appropriateness of chemical restraint as a last resort, and the development and adherence to a behaviour support plan. The court also needed to ensure that the guardian's decisions aligned with TZT's best interests, particularly regarding health care and medical consent.

In its reasoning, the court reviewed TZT's history of aggression and self-injurious behaviours, along with the need for major medications and complex health management. It determined that the guardianship order should continue, with the Public Guardian appointed as the guardian. The court specified that the order would be a limited guardianship for a period of 12 months, granting the guardian authority over health care, medical and dental consent, services, and the use of restrictive practices like chemical restraint, provided it was used as a last resort and in accordance with a behaviour support plan. The court also imposed conditions, such as the guardian taking reasonable steps to understand TZT's views and the requirement for regular reviews of the behaviour support plan.

The final order appointed the Public Guardian as TZT's guardian, outlining specific functions and conditions for the guardianship, including the use of chemical restraint under strict conditions.

Orders

Orders of the court

The guardianship order for TZT made on 11 July 2017 has been reviewed. The order now is as follows:

1. The Public Guardian is appointed as the guardian.

2. This is a continuing guardianship order for a period of 12 months from 23 July 2020.

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

FUNCTIONS:

4. The guardian has the following functions:

a) Health care

To decide what health care TZT may receive.

b) Medical/Dental consent

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

c) Services

To make decisions about services to be provided to TZT.

d) Restrictive Practices

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

1. Chemical restraint

CONDITIONS:

5. The conditions of this order are:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring TZT 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 TZT’s behaviour:

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

(ii) in accordance with a behaviour support plan which has been developed by a behaviour support practitioner after having conducted a functional behavioural assessment upon TZT, and which is reviewed regularly (and no less than every 12 months) and/or reviewed as soon as practicable if there is a change in circumstances which requires the plan to be amended.

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:	TZT [2020] NSWCATGD 67
Hearing dates:	23 July 2020
Date of orders:	23 July 2020
Decision date:	23 July 2020
Jurisdiction:	Guardianship Division
Before:	J Conley, Senior Member (Legal) Dr M A Martin, Senior Member (Professional)
Decision:	The guardianship order for TZT made on 11 July 2017 has been reviewed. The order now is as follows: 1. The Public Guardian is appointed as the guardian. 2. This is a continuing guardianship order for a period of 12 months from 23 July 2020. 3. This is a limited guardianship order giving the guardian(s) custody of TZT to the extent necessary to carry out the functions below. FUNCTIONS: 4. The guardian has the following functions: a) Health care To decide what health care TZT may receive. b) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where TZT is not capable of giving a valid consent. c) Services To make decisions about services to be provided to TZT. d) Restrictive Practices To give or withhold consent as to whether the following restrictive practices should be used to influence TZT’s behaviour: 1. Chemical restraint CONDITIONS: 5. The conditions of this order are: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring TZT 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 TZT’s behaviour: (i) as a last resort to prevent TZT harming himself or others; and (ii) in accordance with a behaviour support plan which has been developed by a behaviour support practitioner after having conducted a functional behavioural assessment upon TZT, and which is reviewed regularly (and no less than every 12 months) and/or reviewed as soon as practicable if there is a change in circumstances which requires the plan to be amended.
Catchwords:	GUARDIANSHIP – end of term review of guardianship order – restrictive practices function –– subject person with intellectual disability – resident in group home – NDIS participant – complex health and major medications prescribed – history of aggression and self-injurious behaviours – use of chemical restraint in behaviour support plan – no person responsible or NDIS Plan Nominee
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14(2)
Cases Cited:	HZC [2019] NSWCATGD 8 IF v IG [2004] NSWADTAP 3
Texts Cited:	Nil
Category:	Principal judgment
Parties:	018: Review of Guardianship Order TZT (the person) Public Guardian (appointed guardian)
Representation:	Nil
File Number(s):	NCAT 1990/00053426
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.