VZM [2020] NSWCATGD 25

NSW Civil and Administrative Tribunal New South Wales 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 Act 2018 (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