NZX [2021] NSWCATGD 16

NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: NZX [2021] NSWCATGD 16 Hearing dates: 15 September 2021 Date of orders: 15 September 2021 Decision date: 15 September 2021 Jurisdiction: Guardianship Division Before: J Moir, Senior Member (Legal) M A Oxenham, General Member (Community) Decision: The guardianship order for NZX made on 14 September 2020 has been reviewed. The order now is as follows: 1. NAN of [Address removed for publication.] is appointed as the guardian. 2. This is a continuing guardianship order for a period of two years from 15 September 2021. 3. This is a limited guardianship order giving the guardian custody of NZX to the extent necessary to carry out the functions below. FUNCTION: 4. The guardian has the following function: a) Restrictive Practices To give or withhold consent as to whether the restrictive practice of chemical restraint should be used to influence NZX's behaviour. CONDITIONS: 5. The conditions of this order are: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring NZX to an understanding of the issues and to obtain and consider their views before making significant decisions. b) Restrictive Practices Condition The guardian may only consent to the use of the types of restrictive practices permitted under this order to influence NZX's behaviour: (i) as a last resort to prevent NZX harming herself or others; (ii) where the restrictive practice is used in the least restrictive form, and for the shortest time necessary to prevent harm to NZX or other persons; (iii) after consideration of the likely impact of the use of the restrictive practice on NZX; and (iv) in accordance with a behaviour support plan devised in accordance with the Quality of Care Principles 2014 (Cth), after consultation with a health practitioner with expertise relevant to NZX's behaviours of concern and which is reviewed regularly and as soon as practicable after any change in NZX's circumstances. Catchwords: GUARDIANSHIP – end of term review of guardianship order – use of restraint in aged care – Aged Care Act 1997 (Cth) – Quality of Care Principles 2014 (Cth) – obligations of approved providers regarding restrictive practices and behaviour support plans – requirements of mandatory behaviour support plans – restrictive practices substitute decision maker – authorised guardian required to provide consent for use of restrictive practices – conditions on restrictive practices function – chemical restraint – private guardian reappointed – excludes areas where decisions can be made by person responsible without an order Legislation Cited: Aged Care Act 1997 (Cth) Civil and Administrative Tribunal Act 2013 (NSW), s 36 Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 16(1)(d), 33A, Pt 5 Quality of Care Principles 2014 (Cth), ss 4, 15E, 15F, 15FA, 15FA(f), 15FC, 15FC(c), (Div 4) 15GA, (Div 5) 15HA-HG, Pt 4A Cases Cited: HZC [2019] NSWCATGD 8 IF v IG [2004] NSWADTAP 3 JFL [2020] NSWCATGD 36 SZH [2020] NSWCATGD 28 TZD [2021] NSWCATGD 14 VZM [2020] NSWCATGD 25 Texts Cited: None cited. Category: Principal judgment Parties: 003: Review of Guardianship Order