MZG [2020] NSWCATGD 74

NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: MZG [2020] NSWCATGD 74 Hearing dates: 20 August 2020 Date of orders: 20 August 2020 Decision date: 20 August 2020 Jurisdiction: Guardianship Division Before: K A McMahon, Senior Member (Legal) J L Newman, General Member (Community) Decision: The guardianship order for MZG made on 7 August 2019 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 12 months from 20 August 2020. 3. This is a limited guardianship order giving the guardian(s) custody of MZG to the extent necessary to carry out the functions below. FUNCTIONS: 4. The guardian has the following functions: a) Accommodation To decide where MZG may reside. b) Services To make decisions about services to be provided to MZG. c) Restrictive Practices To give or withhold consent as to whether the following restrictive practices should be used to influence MZG's behaviour: 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 MZG 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 MZG's behaviour: (i) as a last resort to prevent MZG harming himself 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 MZG, 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 – end of term review of guardianship order – restrictive practices function – use of restraint in aged care that is, however, governed by NDIS rules – subject person wants to move out of aged care facility – restrictions on tobacco use – effect of tobacco on episodes and medication – environmental restraint – subject person and sibling oppose order – views outweighed by evidence and risk – proposed guardian lacks insight and has fixed views – Public Guardian appointed Legislation Cited: Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 4(a), 14, 14(2), 14(2)(b)-(d), 15(3), 17(1) National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) 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 IF v IG [2004] NSWADTAP 3 P v D1 & Ors [2011] NSWSC 257 Re B [2011] NSWSC 1075 Texts Cited: Nil Category: Principal judgment Parties: 008: Review of Guardianship Order