KZQ [2021] NSWCATGD 19

NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: KZQ [2021] NSWCATGD 19 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: 1. A guardianship order is made for KZQ. 2. LBP of [Address removed for publication.] and NYQ of [Addressed removed for publication.] are appointed jointly as the guardians. 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 KZQ to the extent necessary to carry out the functions below. FUNCTIONS: LBP and NYQ 5. LBP and NYQ have the following functions: a) Accommodation To decide where KZQ may reside. b) Health care To decide what health care KZQ may receive. c) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where KZQ is not capable of giving a valid consent. d) Services To make decisions about services to be provided to KZQ. e) Restrictive Practices To give or withhold consent as to whether the following restrictive practices should be used to influence KZQ's behaviour: Mechanical 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 KZQ 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 KZQ's behaviour: (i) as a last resort to prevent KZQ harming themself 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) other strategies in place to address the behaviour; d) provision for review, including by an appropriate practitioner. Catchwords: GUARDIANSHIP – application for a guardianship order – use of restraint in aged care – 24/7 home care services – lifetime care and support plan – existing enduring guardianship does not authorise use of restraint – use of bed rails by carer for safety – mechanical restraint – conditions on restrictive practices function – order includes other decisions in enduring guardian appointment – adult children appointed as private guardians Legislation Cited: Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3),17(1) Cases Cited: C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) 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 Texts Cited: None cited. Category: Principal judgment Parties: 001: Guardianship Application KZQ (the person) MXP (applicant) LBP (enduring guardian) NYQ (enduring guardian) Public Guardian Representation: Nil. File Number(s): NCAT 2021/00159924 Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal's proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 65.