UZX - [2020] NSWCATGD 3

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: UZX [2020] NSWCATGD 3
Hearing dates: 2 and 3 April 2020
Date of orders: 03 April 2020
Decision date: 03 April 2020
Jurisdiction: Guardianship Division
Before: C P Fougere, Principal Member
J L Newman, General Member (Community)
Decision:
The guardianship order for UZX made on 2 August 2019 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 2 August 2019.

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

FUNCTIONS:

4. The guardian has the following functions:

a) Accommodation

To decide where UZX may reside.

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

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

ii) keep them at that place.

iii) return them to that place should they leave it.

c) Services

To make decisions about services to be provided to UZX.

CONDITION:

5. The condition of this order is:

a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring UZX to an understanding of the issues and to obtain and consider their views before making significant decisions.
Catchwords: GUARDIANSHIP – review of guardianship order – requested review of guardianship order – whether guardianship order should be varied – COVID-19 – pandemic – Public Health Act – Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 – subject person unable to understand the need to self-isolate – subject person often found wandering the streets – subject person presents a potential risk to their own health – where service providers have withdrawn their services due to fear of health risks – practicability of services being provided to the subject person without a guardianship order – section 62 of the Public Health Act – whether a public health order could be made in respect of the subject person – no other avenue by which subject person’s welfare and interests could be promoted in light of self-isolation requirements – guardianship order varied so that guardian may authorise ambulance and police services to implement accommodation decisions.
Legislation Cited: Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 4(b), 4(d), 4(f)-(g), 14(2), 14(2)(d), 15(3)
Public Health Act 2010 (NSW), ss 3(2), 7, 51(1), 62, 62(1)(b), s 62(1)(b)(i), 62(2)(d), 62(4), 62(6), 65, Sch 1, Sch 1A, Pt 4 Div 4
Public Health Regulation, cls 39, 39(1), 39(1)(b)
Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020, cls 4-6
Cases Cited: IF v IG [2004] NSWADTAP 3
NIQ [2014] NSWCATGD 28
P v NSW Trustee and Guardian [2015] NSWSC 579
Texts Cited: Nil
Category: Principal judgment
Parties:
003: Requested Review of Guardianship Order
UZX (the person)
VAD (applicant)
Public Guardian (appointed guardian)
Representation: Separate Representative for UZX: J Quiohilag

File Number(s): NCAT 2019/00182057
Publication…

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 UZX

Details

AGLC: UZX [2020] NSWCATGD 3
Case: [2020] NSWCATGD 3
Decision Date: 03 April 2020

CaseChat Overview and Summary

In the case of UZX, the court was tasked with reviewing a guardianship order that had been established to manage the care and welfare of an individual who, due to their behaviour and inability to comply with COVID-19 restrictions, presented a risk to their own health. The Public Guardian was appointed to oversee the individual’s affairs, with the primary objective of ensuring the individual's welfare while adhering to the necessary self-isolation protocols imposed by the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020. The court was required to determine whether the existing guardianship order should be varied to allow for more effective management of the individual's care during the pandemic.

The court had to consider the implications of the Public Health Act and the specific restrictions placed on gatherings and movements in the context of the individual’s circumstances. A key issue was whether the individual, due to their cognitive limitations, could comprehend the need for self-isolation, which led to them frequently wandering the streets and posing a health risk to themselves and others. Furthermore, the court had to evaluate the feasibility of providing necessary services without the guardianship order, especially as service providers had withdrawn their assistance out of concern for their health and safety. The court was also required to assess whether a public health order could be implemented in relation to the individual, and if the guardianship order was the only viable means to safeguard the individual's welfare.

The court concluded that the existing guardianship order needed to be varied to accommodate the specific challenges posed by the pandemic. The guardian was now authorised to make decisions regarding the individual’s accommodation, including the power to permit ambulance and police services to enforce placement in approved locations. This adjustment was deemed necessary to manage the individual's risk to their own health while ensuring they could still receive the care and support they required. The court recognised that without the guardianship order, there was no other effective way to protect the individual’s welfare in light of the self-isolation requirements.

The final orders of the court modified the guardianship order to reflect the new arrangements, emphasising the guardian’s role in determining the individual's residence and authorising the involvement of emergency services to implement accommodation decisions. The guardian was mandated to take all reasonable steps to involve the individual in decision-making processes to the extent of their understanding, ensuring that their views were considered in significant decisions.

Orders

Orders of the court

The guardianship order for UZX made on 2 August 2019 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 2 August 2019.

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

FUNCTIONS:

4. The guardian has the following functions:

a) Accommodation

To decide where UZX may reside.

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

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

ii) keep them at that place.

iii) return them to that place should they leave it.

c) Services

To make decisions about services to be provided to UZX.

CONDITION:

5. The condition of this order is:

a) Standard Condition

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

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:	UZX [2020] NSWCATGD 3
Hearing dates:	2 and 3 April 2020
Date of orders:	03 April 2020
Decision date:	03 April 2020
Jurisdiction:	Guardianship Division
Before:	C P Fougere, Principal Member J L Newman, General Member (Community)
Decision:	The guardianship order for UZX made on 2 August 2019 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 2 August 2019. 3. This is a limited guardianship order giving the guardian(s) custody of UZX to the extent necessary to carry out the functions below. FUNCTIONS: 4. The guardian has the following functions: a) Accommodation To decide where UZX may reside. b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to: i) take UZX to a place approved by the guardian. ii) keep them at that place. iii) return them to that place should they leave it. c) Services To make decisions about services to be provided to UZX. CONDITION: 5. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring UZX to an understanding of the issues and to obtain and consider their views before making significant decisions.
Catchwords:	GUARDIANSHIP – review of guardianship order – requested review of guardianship order – whether guardianship order should be varied – COVID-19 – pandemic – Public Health Act – Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 – subject person unable to understand the need to self-isolate – subject person often found wandering the streets – subject person presents a potential risk to their own health – where service providers have withdrawn their services due to fear of health risks – practicability of services being provided to the subject person without a guardianship order – section 62 of the Public Health Act – whether a public health order could be made in respect of the subject person – no other avenue by which subject person’s welfare and interests could be promoted in light of self-isolation requirements – guardianship order varied so that guardian may authorise ambulance and police services to implement accommodation decisions.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 4(b), 4(d), 4(f)-(g), 14(2), 14(2)(d), 15(3) Public Health Act 2010 (NSW), ss 3(2), 7, 51(1), 62, 62(1)(b), s 62(1)(b)(i), 62(2)(d), 62(4), 62(6), 65, Sch 1, Sch 1A, Pt 4 Div 4 Public Health Regulation, cls 39, 39(1), 39(1)(b) Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020, cls 4-6
Cases Cited:	IF v IG [2004] NSWADTAP 3 NIQ [2014] NSWCATGD 28 P v NSW Trustee and Guardian [2015] NSWSC 579
Texts Cited:	Nil
Category:	Principal judgment
Parties:	003: Requested Review of Guardianship Order UZX (the person) VAD (applicant) Public Guardian (appointed guardian)
Representation:	Separate Representative for UZX: J Quiohilag
File Number(s):	NCAT 2019/00182057
Publication…