SKN [2023] NSWCATGD 16

NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: SKN [2023] NSWCATGD 16 Hearing dates: 18 August 2023 Date of orders: 18 August 2023 Decision date: 18 August 2023 Jurisdiction: Guardianship Division Before: A Britton, Deputy President Dr F Duffy, Senior Member (Professional) K Clark, General Member (Community) Decision: The functions of the enduring guardians, DBE and QSN appointed by SKN by instrument dated 24 May 2011 are varied to give the enduring guardians the function of consent to the use of restrictive practices subject to the following conditions: The guardians may only consent to the use of restrictive practices to influence SKN's behaviour: (i) as a last resort to prevent SKN harming himself or others; (ii) where the restrictive practice is used in the least restrictive form, and for the shortest time necessary to prevent harm to SKN or other persons; (iii) after consideration of the likely impact of the use of the restrictive practice on SKN; 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 SKN's behaviours of concern and which is reviewed regularly and as soon as practicable after any change in SKN's circumstances. Catchwords: REVIEW OF ENDURING GUARDIANSHIP – request to add a restrictive practices function – chemical restraint – principal is of advanced age – principal diagnosed with advanced dementia – principal resides in an aged care facility – consent requirements for the use of a restrictive practice – Quality of Care Principles 2014 (Cth) – whether the enduring guardianship instrument should be varied to include a restrictive practices function – finding that the appointed enduring guardians are suitable people to exercise a restrictive practices function – enduring guardianship instrument varied – order made Legislation Cited: Aged Care Act 1997 (Cth), ss 54-1(f), 54-9(1); Pt 2.3 Aged Care Legislation Amendment (Royal Commission Response No.1) Principles 2021 (Cth) Guardianship Act 1987 (NSW), ss 3, 3(2), 4, 4(a), 6, 6A, 6A(1)(a), 6B(1), 6E(1)(a)-(e), 6(I), 6J, 6J(1)(b), 6K, 6K(1)(b), 6N, 14, 14(2), 16(1)(a), 17, 17(1), 17(1)(c), 18(1), 18(1A); Pt 2 Quality of Care Principles 2014 (Cth), ss 5B(1), 15E, 15FA, 15FA(1)(a)-(g), 15HA, 15HC, 15HC(a)-(c), 15HF Cases Cited: ZKF v ZKG [2019] NSWCATAP 64 Texts Cited: None cited. Category: Principal judgment Parties: 001: Review of an Enduring Guardianship Appointment