JUW [2023] NSWCATGD 3

NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: JUW [2023] NSWCATGD 3 Hearing dates: 16 February 2023 Date of orders: 16 February 2023 Decision date: 16 February 2023 Jurisdiction: Guardianship Division Before: R H Booby, Senior Member (Legal) Decision: The guardianship order for JUW made on 4 February 2022 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 three years from 16 February 2023. 3. This is a limited guardianship order giving the guardian(s) custody of JUW to the extent necessary to carry out the functions below. FUNCTIONS: 4. The guardian has the following function: a) Restrictive Practices To give or withhold consent as to whether the following restrictive practice should be used to influence JUW'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 JUW 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 JUW's behaviour: (i) as a last resort to prevent JUW 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 JUW or other persons; (iii) after consideration of the likely impact of the use of the restrictive practice on JUW; 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 JUW's behaviours of concern and which is reviewed regularly and as soon as practicable after any change in JUW's circumstances. Catchwords: GUARDIANSHIP – end-of-term review of a guardianship order – use of restrictive practices in aged care – environmental restraint – legislative amendments to the Quality of Care Principles 2014 (Cth) – section 5B of the Quality of Care Amendment (Restrictive Practices) Principles 2022 – meaning of restrictive practices substitute decision maker – effect of the legislative amendments in NSW – informed consent required for use of restraint – ongoing need for a guardian to consent to use of restraint – no private guardian available to be appointed – Public Guardian appointed – order made Legislation Cited: Aged Care Quality of Care Principles 2014 (Cth), s 15FA(1)(f)(ii) Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14(2), 15(3) Quality of Care Amendment (Restrictive Practices) Principles 2022, ss 5B, 5B(2) Cases Cited: FNX [2021] NSWCATGD 4 IF v IG [2004] NSWADTAP 3 JFL [2020] NSWCATGD 32 P v NSW Trustee and Guardian [2015] NSWSC 579 TZD [2021] NSWCATGD 14 Texts Cited: None cited. Category: Principal judgment Parties: 004: Review of Guardianship Order