JFL [2020] NSWCATGD 32

NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: JFL [2020] NSWCATGD 32 Hearing dates: 12 October 2020 Date of orders: 16 December 2020 Decision date: 16 December 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 JFL. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of three years from 15 December 2020. 4. This is a limited guardianship order giving the guardian(s) custody of JFL to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where JFL is not capable of giving a valid consent. b) Restrictive Practices To give or withhold consent as to whether the following restrictive practices should be used to influence JFL'ss behaviour: 1. Chemical restraint 2. 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 JFL to an understanding of the issues and to obtain and consider their 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 JFL'ss behaviour: (i) as a last resort to prevent JFL harming herself or others; and (ii) in accordance with a care and services plan that incorporates a) the behaviours that are relevant to the need for the restraint; b) reasons why the restraint is necessary; c) the alternatives to restraint that have been used (if any); and d) provision for review, including by an appropriate medical specialist/s. Catchwords: GUARDIANSHIP – application for a guardianship order – restrictive practices function – whether a guardianship order should be made – restrictive practices – residential aged care – right to freedom of movement and liberty – whether use of a coded keypad lock system constitutes a restrictive practice – chemical restraint – Quality of Care Principles 2014 (Cth) – subject person resides in memory support unit with coded keypad lock system – 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 – whether subject person requires advance care planning – order made – guardianship order conditions – physical restraint function – chemical restraint function – consent to medical and dental treatment function – Public Guardian appointed. Legislation Cited: Aged Care Act 1997 (Cth), s 54-2(1) Civil and Administrative Tribunal Act 2013 (NSW), s 36(1) Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 4(a)-(c), 14, 14(2), 16(1)(d), 16(2)(b), 18(1)(a), 18(1A)-(1B); Pt 5 Mental Health Act 2007 (NSW) NDIS (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) Quality of Care Principles 2014 (Cth), ss 4, 15F, 15F(2)(c), 15G, 15G(2)(b); Sch 2; Pt 4A Cases Cited: B v Forsey (1988) SC HL 28 Darcy (bht Diane Aldridge) v State of NSW [2011] NSWCA 413 FI v Public Guardian [2008] NSWADT 263 HZC [2019] NSWCATGD 8 IF v IG [2004] NSWADTAP 3 MAQ [2016] NSWCATGD 70 P v NSW Trustee and Guardian [2015] NSWSC 579 State of New South Wales v McMaster [2015] NSWCA 228 State of New South Wales v Riley [2003] NSWCA 208 SZH [2020] NSWCATGD 28 VZM [2020] NSWCATGD 25 Texts Cited: "Regulation of physical and chemical restraint" (Issue No. 2019-8.1, Issue Date: 11 December 2019) The Royal Commission into Aged Care Quality and Safety's Interim Report: Neglect (Vol 1), 215 Category: Principal judgment Parties: 008: Guardianship Application