TZD [2021] NSWCATGD 14

NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: TZD [2021] NSWCATGD 14 Hearing dates: 16 July 2021 Date of orders: 16 July 2021 Decision date: 16 July 2021 Jurisdiction: Guardianship Division Before: R H Booby, Senior Member (Legal) Dr G Jamieson, Senior Member (Professional) Dr M Spencer, General Member (Community) Decision: Application for consent to medical treatment The application is dismissed because ENQ has withdrawn the application and the Tribunal consents. Application for guardianship order 1. A guardianship order is made for TZD. 2. DAJ, of [Address removed for publication], is appointed as the guardian. 3. This is a continuing guardianship order for a period of 12 months from 16 July 2021. 4. This is a limited guardianship order giving the guardian(s) custody of TZD to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following function: a) Restrictive Practices To give or withhold consent as to whether the following restrictive practices should be used to influence TZD's behaviour: 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 TZD to an understanding of the issues and to obtain and consider his 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 TZD's behaviour: (i) as a last resort to prevent TZD harming himself or others; and (ii) in accordance with a care and support plan that incorporates: a) the behaviours that are being addressed; b) the reasons why the restraints are necessary; c) the non-pharmacological strategies in place to address the behaviour; d) provision for review, including by an appropriate medical specialist. Catchwords: GUARDIANSHIP – application for a guardianship order – restrictive practices function – use of restraint in aged care – Aged Care Act 1997 (Cth) – Quality of Care Principles 2014 (Cth) – National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) – adoption of NDIS definitions to aged care regime – informed consent required for use of restraint – restrictive practices substitute decision maker – chemical restraint – medication used to treat psychotic experiences and control behaviour – private guardian appointed Legislation Cited: Aged Care Act 1997 (Cth), ss 54-9, 96-1 Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 17(1), 33, 33A(4)(b), 35, 36(1)(b), 37 Guardianship Regulation 2010 (NSW), cl 11(e) National Disability Insurance Scheme (Restrictive Practices and Behaviour Support Rules) 2018 (Cth) National Disability Insurance Scheme Act 2013 (Cth), s 9 Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019 (Cth) Quality of Care Amendment (Reviewing Restraints Principles) Principles 2019 (Cth) Quality of Care Principles 2014 (Cth), Pt 4A, s 4, 5, 15F(1)(e), 15FA(1)(f)(ii), 15G(1)(c). Cases Cited: C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) HZC [2019] NSWCATGD 8 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 Section 33A(4)(b) of the Act VZM [2020] NSWCATGD 25 Texts Cited: Nil Category: Principal judgment Parties: 001: Consent to Medical or Dental Treatment TZD (the person) ENQ (applicant) DAJ (spouse)