SZH [2020] NSWCATGD 28

NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: SZH [2020] NSWCATGD 28 Hearing dates: 17 August 2020 and 12 October 2020 Date of orders: 24 November 2020 Decision date: 24 November 2020 Jurisdiction: Guardianship Division Before: C P Fougere, Principal Member Dr G Jamieson, Senior Member (Professional) Emeritus Professor P J Foreman AM, General Member (Community) Decision: 1. A guardianship order is made for SZH. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of three years from 24 November 2020. 4. This is a limited guardianship order giving the guardian(s) custody of SZH to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Services To make decisions about services to be provided to SZH. b) Restrictive Practices To give or withhold consent as to whether the following restrictive practices should be used: 1. Physical 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 SZH to an understanding of the issues and to obtain and consider their views before making significant decisions. b) Restrictive Practices Condition The guardian may consent to the use of the physical restraint permitted under this order in relation to SZH only if: (a) SZH is regularly monitored for signs of distress or harm; and (b) the use of the restraint is regularly monitored and reviewed. Catchwords: GUARDIANSHIP – application for a guardianship order – subject person diagnosed alcohol-related brain disorder and frontal lobe damage – whether a guardianship order should be made – restrictive practices – "restraint" – residential aged care - right to freedom of movement and liberty – whether use of a coded keypad lock system constitutes a restrictive practice – whether use of a coded keypad lock system could amount to "total restraint" - whether restraint justified – tort of false imprisonment - guardianship functions – whether guardian should be appointed with an accommodation function or a restrictive practices function – Quality of Care Principles 2014 (Cth) – relationship between restrictive practices and Aged Care Act – guardianship order conditions – subject person an NDIS participant – need for a services function – whether placement of a bed against a wall constitutes a restraint – whether subject person requires advance care planning – order made – physical restraint function – services function – Public Guardian appointed. Legislation Cited: Aged Care Act 1997 (Cth) Civil and Administrative Tribunal Act 2013 (NSW), s 36(1) Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 4(a)-(c), 4(g), 14, 14(2), 14(2)(d), 16(1)(d), 16(2)(b), 18(1A)-(1B), 21A(1)(c) Guardianship and Administration Act 1993 (SA), s 32(1)(b) Mental Health Act 2007 (NSW) National Disability Insurance Scheme Act 2013 (Cth) NDIS (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) Quality of Care Principles 2014 (Cth), Pt 4A; ss 4, 15F(2)(e) Cases Cited: B v Forsey (1988) SC HL 28 CPCF v Minister for Immigration and Border Protection [2015] HCA 1 Darcy (bht Diane Aldridge) v State of NSW [2011] NSWCA 413 The Public Advocate v C, B [2019] SASCFC 58 Elleray v Rail Corporation NSW [2017] NSWCA 23 FI v Public Guardian [2008] NSWADT 263 HKO [2016] NSWCATGD 14 Hunter and New England Area Health Services v A [2009] NSWSC 761 HZC [2019] NSWCATGD 8 IF v IG [2004] NSWADTAP 3 KCG [2014] NSWCATGD 7 Lewis v Australian Capital Territory [2020] HCA 26 MAQ [2016] NSWCATGD 70 McFadzean v Construction Forestry Mining and Energy Union [2007] VSCA 289 Meering v Grahame-White Aviation Co. Ltd (1920) 122 L.T. 4 Murray v Ministry of Defence [1988] 2 All ER 521 (1 W.L.R. 692) NIQ [2014] NSWCATGD 28 P v NSW Trustee and Guardian [2015] NSWSC 579 Re: EUY [2019] SACAT 51 Ruddock v Taylor (2005) 222 CLR 612 State of New South Wales v McMaster [2015] NSWCA 228 State of New South Wales v Riley [2003] NSWCA 208 State of New South Wales v TD [2013] NSWCA 32 State of NSW v Le [2017] NSWCA 290 State of South Australia v Lampard-Trevorrow (2010) 106 SASR 331 The State of Western Australia v Cunningham [No 3] [2018] WASCA 207 VZM [2020] NSWCATGD 25 Watson v Marshall (1971) 124 CLR 621 Texts Cited: "Regulation of physical and chemical restraint" (issue No. 2019-8.1 Issue Date: 11 December 2019) Category: Principal judgment Parties: 007: Guardianship Application