BZW [2020] NSWCATGD 38

NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BZW [2020] NSWCATGD 38 Hearing dates: 10 December 2020 Date of orders: 10 December 2020 Decision date: 10 December 2020 Jurisdiction: Guardianship Division Before: R H Booby, Senior Member (Legal) Dr G Jamieson, Senior Member (Professional) J V Le Breton, General Member (Community) Decision: 1. A guardianship order is made for BZW. 2. HAW of [Address removed for publication.] is appointed as the guardian. 3. This is a continuing guardianship order for a period of three years from 10 December 2020. 4. This is a limited guardianship order giving the guardian(s) custody of BZW to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Health care To decide what health care BZW may receive. b) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where BZW is not capable of giving a valid consent. c) Restrictive Practices To give or withhold consent as to whether the following restrictive practices should be used to influence BZW's behaviour: 1. Physical restraint 2. Chemical 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 BZW 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 BZW's behaviour: 1. as a last resort to prevent BZW harming himself or others; and 2. in accordance with a care and support plan that incorporates: a) the behaviours that are being addressed by the restraints; b) reasons why the restraints are necessary; c) non-pharmacological strategies in place; d) provision for review, including by appropriate medical specialist. Catchwords: GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – subject person resident in aged care facility – subject person housed in secure unit and not allowed to leave – applicant was asked to sign "restraining document" for the subject person – use of chemical restraint – use of physical restraint – Part 4A of the Quality of Care Principles 2014 (Cth) – subject person prescribed major medication – need for medical and dental consent decisions to be made – need for restraint decisions to be made - appointment of a guardian would promote subject person's welfare and interests – restraint should be used as a last resort – conditions imposed on authority to consent to restraint – consideration of cultural environment and family relationships – suitability of proposed guardian – private guardian appointed – order made. Legislation Cited: Aged Care Act 1997 (Cth) Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 17(1) Quality of Care Principles 2014 (Cth), ss 4, 15F, 15G, Pt 4A Cases Cited: C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep IF v IG [2004] NSWADTAP 3 P v D1 & Ors [2011] NSWSC 257 P v NSW Trustee and Guardian [2015] NSWSC 579 Re B [2011] NSWSC 1075 SZH [2020] NSWCATGD28 Texts Cited: Nil Category: Principal judgment Parties: 006: Guardianship Application