KXE [2024] NSWCATGD 1

NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: KXE [2024] NSWCATGD 1 Hearing dates: 2 February 2024 Date of orders: 2 February 2024 Decision date: 02 February 2024 Jurisdiction: Guardianship Division Before: B M Shipp, Senior Member (Legal) Dr J Law, Senior Member (Professional) P J McGirr, General Member (Community) Decision: Guardianship application The application to appoint a guardian is dismissed after hearing. Own Motion Review of Appointment of Enduring Guardian In relation to the enduring guardian appointment made by KXE on 11 August 2023 appointing BSE and OGT the Tribunal orders, directs or declares: The functions of the enduring guardian are varied to give the enduring guardians the additional function of consent to the use of restrictive practices (Environmental Restraint) subject to the following conditions. The guardian(s) may only consent to the use of the types of restrictive practices permitted under this order to influence KXE's behaviour: (i) as a last resort to prevent KXE harming herself or others; and (ii) where the restrictive practice is used in the least restrictive form, and for the shortest time necessary to prevent harm to KXE or other persons; (iii) after consideration of the likely impact of the use of the restrictive practice on KXE; 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 KXE's behaviours of concern and which is reviewed regularly and as soon as practicable after any change in KXE's circumstances. Catchwords: GUARDIANSHIP – application for a guardianship order – where the Tribunal decided to conduct own motion review of an appointment of enduring guardianship – decision not to make a guardianship order – application dismissed REVIEW OF ENDURING GUARDIANSHIP – own motion review – principal resides in an aged care facility – consent requirements for the use of a restrictive practice – environmental restraint – Quality of Care Principles 2014 (Cth) – whether the enduring guardianship appointment should be varied to include a restrictive practices function – appointment of enduring guardian varied – order made Legislation Cited: Aged Care Act 1997 (Cth) Guardianship Act 1987 (NSW), ss 3, 3(2), 4, 4(a), 6, 6A, 6K; Pt 2 Quality of Care Principles 2014 (Cth) Cases Cited: Darcy (bht Diane Aldridge) v State of NSW [2011] NSWCA 413 Meering v Grahame-White Aviation Co. Ltd (1920) 122 L.T. 4 Re: EUY [2019] SACAT 51 SKN [2023] NSWCATGD 16 SZH [2020] NSWCATGD 28 Texts Cited: None cited. Category: Principal judgment Parties: Guardianship Application