VZM

Case [2020] NSWCATGD 25 3 August 2020

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NSW Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: VZM [2020] NSWCATGD 25
Hearing dates: 3 August 2020
Date of orders: 3 August 2020
Decision date: 03 August 2020
Jurisdiction: Guardianship Division
Before: C Fougere, Principal Member
Dr G Jamieson, Senior Member
Prof P Foreman, General Member
Decision:
The application for a guardianship order for VZM is dismissed after hearing.

Catchwords:
GUARDIANSHIP - application for a guardianship order - restrictive practices function - whether a guardianship order should be made - practicability of services being provided without a guardianship order - bed rails - use of restraint in aged care - Quality of Care Principles 2014 (Cth) - National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 - two federal regulatory schemes dealing with restrictive practices - relationship between restrictive practices and Aged Care Act – relevance of definitions in Commonwealth legislation to New South Wales - "restraint" - "physical restraint" - "chemical restraint" - adoption of definitions - informed consent to the use of restraint - whether use of bed rails constitutes physical restraint - subject person has quadriplegia with no free movement – does not leave her bed - no behaviours of concern - measures provide greater freedom - services can be provided without the need for a guardianship order - guardianship order would not promote subject person's welfare and interests - application dismissed.

Legislation Cited:
Aged Care Act 1997 (Cth) ss 54-1, 96-1
Aged Care Legislation Amendment (Quality Indicator Program) Principles 2019 (Cth) Sch 1.
Aged Care Quality and Safety Commission Act2018 (Cth) Pt 7B, ss 63N, 63R
Convention on the Rights of Persons with Disabilities, United Nations, signed 30 March 2007, vol. 2515, (entered into force 3 May 2008) art 12(4).
Guardianship Act 1987 (NSW) ss 3(2), 4, 4(a), 14, 14(2), 21C,
National Disability Insurance Scheme Act 2013 (Cth) s 9
National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth)
Powers of Attorney Act 2003 (NSW)
Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019 (Cth)
Quality of Care Amendment (Reviewing Restraints Principles) Principles (Cth)
Quality of Care Principles 2014 (Cth) Pt 4A, ss 4, 4A(1), 5(1)(b)(i)-(ii), 5(2)(a), 5(2)(c), 5(3) 15E, 15F, 15F(1)(a)(i), 15F(1)(b), 15F(1)(d)-(e), 15G, 15G(1)(a), 15G(1)(c), 15G(2)(b)(i) –(iii), 15G notes 1-2, sch 2 cl 8(3)(e)(ii).

Cases Cited:
Hunter New England Area Health Service v A (2009) 74 NSWLR 88
HZC [2019] NSWCATGD 8
IF v IG [2004] NSWADTAP 3
P v NSW Trustee and Guardian [2015] NSWSC 579, [303]

Texts Cited:
New South Wales Civil and Administrative Tribunal (Guardianship Division), Restrictive Practices Factsheet (2019) NCAT.
Department of Health and Ageing, Decision-Making Tool: Supporting a Restraint Free Environment in Residential Aged Care (2012) Aged Care Quality and Safety Commission.
Australian Law Reform Commission, Elder Abuse – A National Legal Response, Report 131 (2017) [4.183]
Commonwealth, Royal Commission into Aged Care Quality and Safety, Interim Report: Neglect (2019) vol 1.

Category: Principal judgment
Parties:
004: Guardianship Application
VZM (the person)
LZM…

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.

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Details

AGLC: VZM [2020] NSWCATGD 25
Case: [2020] NSWCATGD 25
Decision Date: 03 August 2020

CaseChat Overview and Summary

The matter before the court involved an application for a guardianship order concerning an individual identified as VZM. The application sought to determine whether a guardianship order should be made, specifically considering the use of bed rails in aged care, and the potential restrictive practices involved. The court was tasked with examining whether such measures could be provided without a guardianship order and whether such an order would promote the welfare and interests of VZM.

The legal issues central to the case revolved around the interpretation and application of federal regulatory schemes to New South Wales law, particularly the Quality of Care Principles 2014 and the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018. The court had to ascertain the definitions of terms such as "restraint," "physical restraint," and "chemical restraint" in the context of New South Wales legislation, and whether the use of bed rails for a quadriplegic individual without behaviours of concern constituted physical restraint. The court also needed to consider whether informed consent could be obtained for such practices and whether the measures provided greater freedom and could be implemented without the need for a guardianship order.

The court determined that the definitions of restraint under the federal regulations were relevant but not determinative in New South Wales. It concluded that the use of bed rails for VZM, who had quadriplegia and no free movement, did not constitute physical restraint as there were no behaviours of concern. The measures provided greater freedom and services could be provided without the need for a guardianship order. The court further found that a guardianship order would not promote VZM's welfare and interests. Therefore, the application for a guardianship order was dismissed.

The court's orders were that the application for a guardianship order for VZM be dismissed after hearing, reflecting the court's determination that the measures in place were appropriate and did not necessitate the imposition of a guardianship order.

Orders

Orders of the court

The application for a guardianship order for VZM is dismissed after hearing.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

VZM [2020] NSWCATGD 25

Most Recent Citation

SZH [2020] NSWCATGD 28

Cases Citing This Decision

SHG [2024] NSWCATGD 2
Citation 1 (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…
In the Matter of Evelyn (Guardianship) [2021] ACAT 126
Citation 2 (Para 8)

…n VZM ,[46] the New South Wales Civil and Administrative Tribunal ( the NCAT ) made similar observations.[47] I agree. [45] Re CC at [13]–[14] [46] [2020] NSWCATGD 25 ( VZM ) [47] VZM at [45]–[47]…
Re Frieda (Guardianship) [2022] ACAT 27
Citation 3 (Para 8)

…ier and now repealed Part 4A. [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)

…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 in the event that a person…
IKJ [2021] NSWCATGD 27
Citation 5 (Para 20)

…The Tribunal has considered issues relating to restrictive practices in aged care in recent decisions of JFL [2020] NSWCATGD 32 and VZM [2020] NSWCATGD 25 (“VZM”).…
TZD [2021] NSWCATGD 14
Citation 6 (Para 31)

…The use of restraint in aged care facilities was considered by the Tribunal in the matter of VZM [2020] NSWCATGD 25 (“ VZM ”). The Tribunal noted that:…
FNX [2021] NSWCATGD 4
Citation 7 (Para 17)

…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 (“ HZC ”) at [44]). It is nevertheless clear that the regulatory scheme outlined in the Quality of Care P…
NBT [2021] NSWCATGD 2
Citation 8

…2014 (Cth), ss 4, 15F, 15G Cases Cited: IF v IG [2004] NSWADTAP 3 JFL [2020] NSWCATGD 36 SZH [2020] NSWCATGD 28 VZM [2020] NSWCATGD 25 Texts Cited: Nil Category: Principal judgment Parties: 001: Guardianship Application NBT (the person) South Eastern Sydney Local Health District (applicant) QZT (spouse, carer and end…
JFL [2020] NSWCATGD 32
Citation 9 (Para 17)

…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 (“ HZC ”) at [44]). It is nevertheless clear that the regulatory scheme outlined in the Quality of Care P…
OZQ [2020] NSWCATGD 40
Citation 10 (Para 20)

…or not to appoint a guardian with the decision-making function of restrictive practices and restraints (see VZM [2020] NSWCATGD 25). Nevertheless, the Principles including ss 15F and 15G and the Aged Care Quality Standards set out in Sch 2 of the Principles together with the Aged Care Act impact on the care, welfare…
MS [2020] WASAT 146
Citation 11 (Para 8)

…ctive practices.[78] [77] See, e.g., ES [2014] WASAT 91; JN v TD [2016] WASAT 9; TS [2019] WASAT 56. [78] See, e.g., Re HZC [2019] NSWCATGD 8; Re VZM [2020] NSWCATGD 25 [56], Re Ben [2020] ACAT 82; Re GZK [2020] NSWCATGD 5.…
SZH [2020] NSWCATGD 28
Citation 12 (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…
In the Matter Of Ben (Guardianship) [2020] ACAT 82
Citation 13 (Para 2)

…did not restrict her movement: her quadriplegia restricted her movement. VZM is immobile and relies entirely upon the assistance of others. [11] VZM [2020] NSWCATGD 25…

See all citing cases →

Cases Cited

HZC [2019] NSWCATGD 8
Citation 1 (Para 48)

…The Tribunal in HZC [2019] NSWCATGD 8 (“ HZC ”) provided a brief history of the nature of restrictive practices and the role of the Tribunal as follows:…
P v NSW Trustee and Guardian [2015] NSWSC 579
Citation 2 (Para 20)

…l habilitation. She has a significant “need for services to help [her] function normally in community with others” ( P v NSW Trustee and Guardian [2015] NSWSC 579, [303]).…
Hunter and New England Area Health Service v A [2009] NSWSC 761
Citation 3 (Para 2)

…relied on in limited circumstances to justify what may be otherwise regarded as a trespass on the person ( Hunter New England Area Health Service v A (2009) 74 NSWLR 88). The consent of the person who is subject to the restrictive practice may also be a defence. In circumstances in which the person is incapable of pr…
IF v IG [2004] NSWADTAP 3
Citation 4 (Para 23)

…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).…

Legislation Cited

Guardianship Act 1987 (NSW) 14, 14(2), 21C, 3(2), 4, 4(a)
7 mentions (from Para 5)
Aged Care Act 1997 (Cth) 54
2 mentions (from Para 2)
National Disability Insurance Scheme Act 2013 (Cth) 9
2 mentions (from Para 6)
Aged Care Quality and Safety Commission Act 2018 (Cth)
1 mention (from Para 43)
Civil and Administrative Tribunal Act 2013 (NSW) 65
1 mention
Mental Health Act 2007 (NSW)
1 mention (from Para 3)
NDIS (Restrictive Practices and Behaviour Support) Rules 2018 (Cth)
1 mention (from Para 6)
Powers of Attorney Act 2003 (NSW)
1 mention (from Para 3)

Medium Neutral Citation:	VZM [2020] NSWCATGD 25
Hearing dates:	3 August 2020
Date of orders:	3 August 2020
Decision date:	03 August 2020
Jurisdiction:	Guardianship Division
Before:	C Fougere, Principal Member Dr G Jamieson, Senior Member Prof P Foreman, General Member
Decision:	The application for a guardianship order for VZM is dismissed after hearing.
Catchwords:	GUARDIANSHIP - application for a guardianship order - restrictive practices function - whether a guardianship order should be made - practicability of services being provided without a guardianship order - bed rails - use of restraint in aged care - Quality of Care Principles 2014 (Cth) - National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 - two federal regulatory schemes dealing with restrictive practices - relationship between restrictive practices and Aged Care Act – relevance of definitions in Commonwealth legislation to New South Wales - "restraint" - "physical restraint" - "chemical restraint" - adoption of definitions - informed consent to the use of restraint - whether use of bed rails constitutes physical restraint - subject person has quadriplegia with no free movement – does not leave her bed - no behaviours of concern - measures provide greater freedom - services can be provided without the need for a guardianship order - guardianship order would not promote subject person's welfare and interests - application dismissed.
Legislation Cited:	Aged Care Act 1997 (Cth) ss 54-1, 96-1 Aged Care Legislation Amendment (Quality Indicator Program) Principles 2019 (Cth) Sch 1. Aged Care Quality and Safety Commission Act2018 (Cth) Pt 7B, ss 63N, 63R Convention on the Rights of Persons with Disabilities, United Nations, signed 30 March 2007, vol. 2515, (entered into force 3 May 2008) art 12(4). Guardianship Act 1987 (NSW) ss 3(2), 4, 4(a), 14, 14(2), 21C, National Disability Insurance Scheme Act 2013 (Cth) s 9 National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) Powers of Attorney Act 2003 (NSW) Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019 (Cth) Quality of Care Amendment (Reviewing Restraints Principles) Principles (Cth) Quality of Care Principles 2014 (Cth) Pt 4A, ss 4, 4A(1), 5(1)(b)(i)-(ii), 5(2)(a), 5(2)(c), 5(3) 15E, 15F, 15F(1)(a)(i), 15F(1)(b), 15F(1)(d)-(e), 15G, 15G(1)(a), 15G(1)(c), 15G(2)(b)(i) –(iii), 15G notes 1-2, sch 2 cl 8(3)(e)(ii).
Cases Cited:	Hunter New England Area Health Service v A (2009) 74 NSWLR 88 HZC [2019] NSWCATGD 8 IF v IG [2004] NSWADTAP 3 P v NSW Trustee and Guardian [2015] NSWSC 579, [303]
Texts Cited:	New South Wales Civil and Administrative Tribunal (Guardianship Division), Restrictive Practices Factsheet (2019) NCAT. Department of Health and Ageing, Decision-Making Tool: Supporting a Restraint Free Environment in Residential Aged Care (2012) Aged Care Quality and Safety Commission. Australian Law Reform Commission, Elder Abuse – A National Legal Response, Report 131 (2017) [4.183] Commonwealth, Royal Commission into Aged Care Quality and Safety, Interim Report: Neglect (2019) vol 1.
Category:	Principal judgment
Parties:	004: Guardianship Application VZM (the person) LZM…