SHG [2024] NSWCATGD 2

NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: SHG [2024] NSWCATGD 2 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: 1. A guardianship order is made for SHG. 2. EBF, of [Address removed for publication.], is appointed as the guardian. 3. This is a continuing guardianship order for a period of 12 months from 2 February 2024. 4. This is a limited guardianship order giving the guardian(s) custody of SHG to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following function: a) Restrictive Practices To give or withhold consent as to whether the following restrictive practices should be used to influence SHG's behaviour: 1. Mechanical restraint - use of bedrails CONDITIONS: 6. The conditions of this order are: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring SHG to an understanding of the issues and to obtain and consider his views before making significant decisions. b) Aged Care Restrictive Practices Condition The guardian(s) may only consent to the use of the types of restrictive practices permitted under this order to influence SHG's behaviour: (i) as a last resort to prevent SHG harming himself 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 SHG or other persons; (iii) after consideration of the likely impact of the use of the restrictive practice on SHG; 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 SHG's behaviours of concern and which is reviewed regularly and as soon as practicable after any change in SHG's circumstances. Catchwords: GUARDIANSHIP – application for a guardianship order – subject person with dysarthria and a cognitive impairment as a result of a traumatic brain injury – subject person resides in an aged care facility – consent requirements for the use of a restrictive practice – Quality of Care Principles 2014 (Cth) – mechanical restraint – bed rails used to control behaviour – need for a guardianship order with a restrictive practices function – private guardian appointed – order made Legislation Cited: Aged Care Act 1997 (Cth), ss 54-9, 96-1 Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 17(1), 33, 45 Guardianship Regulation 2016 (NSW), reg 14 Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019 (Cth) Quality of Care Amendment (Reviewing Restraints Principles) Principles 2019 (Cth) Quality of Care Principles 2014 (Cth), Pt 4A Cases Cited: C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep Darcy (bht Diane Aldridge) v State of NSW [2011] NSWCA 413 IF v IG [2004] NSWADTAP 3 Meering v Grahame-White Aviation Co. Ltd (1920) 122 L.T. 4 P v D1 & Ors [2011] NSWSC 257 Re B [2011] NSWSC 1075 Re: EUY [2019] SACAT 51 SZH [2020] NSWCATGD 28 VZM [2020] NSWCATGD 25 Texts Cited: Australian Government, Department of Health and Aged Care, Factsheet – Restrictive Practice use in residential aged care - Types of restrictive practices Category: Principal judgment Parties: Guardianship Application