FNX [2021] NSWCATGD 4

NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: FNX [2021] NSWCATGD 4 Hearing dates: 17 August 2020 and 12 October 2020 Date of orders: 8 March 2021 Decision date: 08 March 2021 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 FNX. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of three years from 8 March 2021. 4. This is a limited guardianship order giving the guardian(s) custody of FNX 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 FNX 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 FNX's behaviour: 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 FNX 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 FNX's behaviour: (i) as a last resort to prevent FNX 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 - practicability of services being provided without a guardianship order – subject person has chronic schizophrenia, dementia, and recently suffered a stroke – subject person resides in secure facility - use of a low lying bed – low low bed - use of a coded keypad lock system - whether restraint justified – tort of false imprisonment - 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 - "restraint" - "physical restraint" – "chemical restraint" - whether use of low low bed constitutes physical restraint – whether use of coded keypad lock system constitutes physical restraint – need for decisions to be made about consent to restrictive practices – conditions on the authorisation of restrictive practices - order made – 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), 14, 14(2), 16(2)(b), 18(1)(a), 18(1A)-(1B), Pt 5 Quality of Care Principles 2014 (Cth), s 4, Pt 4A Cases Cited: 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 JFL [2020] NSWCATGD 32 MAQ [2016] NSWCATGD 70 P v NSW Trustee and Guardian [2015] NSWSC 579 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) Category: Principal judgment Parties: 009: Guardianship Application