CYC [2021] NSWCATGD 11

NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CYC [2021] NSWCATGD 11 Hearing dates: 26 March 2021 Date of orders: 26 March 2021 Decision date: 26 March 2021 Jurisdiction: Guardianship Division Before: A D Suthers, Principal Member Dr C Pratten, Senior Member (Professional) M A Oxenham, General Member (Community) Decision: The guardianship order for CYC made on 19 November 2020 has been reviewed. The order now is as follows: 1. The Public Guardian is appointed as the guardian. 2. This is a continuing guardianship order for a period of one year from 26 March 2021. 3. This is a limited guardianship order giving the guardian(s) custody of CYC to the extent necessary to carry out the functions below. FUNCTIONS: 4. The guardian has the following functions: a) Accommodation To decide where CYC may reside. b) Health care To decide what health care CYC may receive. c) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where CYC is not capable of giving a valid consent. d) Services To make decisions about services to be provided to CYC. e) Restrictive Practices To give or withhold consent as to whether the following restrictive practices should be used to influence CYC's behaviour: 1. Environmental restraint CONDITIONS: 5. The conditions of this order are: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring CYC 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 CYC's behaviour: (i) as a last resort to prevent CYC harming themself or others; and (ii) in accordance with a behaviour support plan which has been developed by a behaviour support practitioner after having conducted a functional behavioural assessment upon CYC, and which is reviewed regularly (and no less than every 12 months) and/or reviewed as soon as practicable if there is a change in circumstances which requires the plan to be amended. Catchwords: GUARDIANSHIP – application to vary a guardianship order – consideration of what varied order should be made – use of restrictive practices – subject person a forensic patient but supported by NDIS registered service providers in the community – proposed use of chemical and environmental restraints – motion sensors and monitoring by camera – interplay between Guardianship Act 1987 (NSW), Mental Health Act 2007 (NSW), Mental Health (Forensic Provisions) Act 1990 (NSW) and Surveillance Devices Act 2007 (NSW) – consideration of meaning of "authorisation process" contained in National Disability Insurance Scheme (Restrictive Practices and Behaviour Support Rules 2018 (Cth) Legislation Cited: Guardianship Act 1987 (NSW), ss 4, 4(a)-(b), 14(2), 37, 45(3) Mental Health (Forensic Provisions) Act 1990 (NSW), ss 43, 68, 75 National Disability Insurance Scheme (Restrictive Practices and Behaviour Support Rules) 2018 (Cth), rr 6(e), 9, 9(2), 9(2)(a) Restrictive Practices Authorisation Policy 2019 (NSW), s 3.2(f) Surveillance Devices Act 2007 (NSW), ss 8, 9, 12 Cases Cited: EZC [2020] NSWCATGD 60 HZC [2019] NSWCATGD 8 JFL [2020] NSWCATGD 32 KZF [2020] NSWCATGD 61 NBT [2021] NSWCATGD 2 OZS [2021] NSWCATGD 1; Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133 Texts Cited: Nil Category: Principal judgment Parties: 004: Requested Review of Guardianship Order