NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BDQ [2016] NSWCATGD 45 Hearing dates: 22 September 2016 Date of orders: 22 September 2016 Decision date: 22 September 2016 Jurisdiction: Guardianship Division Before: J Simpson, Senior Member (Legal) Dr J McAuliffe, Senior Member (Professional) B Epstein-Frisch, General Member (Community) Decision: 1. A guardianship order is made in respect of Miss BDQ. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of 18 months from the date of this order. 4. This is a limited guardianship order giving the guardian custody of Miss BDQ to the extent necessary to carry out the healthcare, medical and dental consents, restrictive practices and services functions. Catchwords: GUARDIANSHIP – application for guardianship order – National Disability Insurance Scheme – need for an order – no family or advocate – access to NDIS – NDIS first and second planning processes – transfer of Ageing, Disability and Home Care ADHC accommodation service to non-government sector – restrictive practices function – Public Guardian appointed Legislation Cited: National Disability Insurance Scheme (NSW Enabling) Act 2013 (NSW) Cases Cited: KCG [2014] NSWCATGD 7 Category: Principal judgment Parties: Miss BDQ (subject person) Ms TPL (applicant) The NSW Public Guardian File Number(s): 24918 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 (s 65, Civil and Administrative Tribunal Act 2013 (NSW)). REASONS FOR DECISION What the Tribunal decided 1. The Tribunal appointed the Public Guardian for 18 months to make decisions for Miss BDQ about services, health and restrictive practices issues. Background 1. Miss BDQ is a 31-year-old woman who lives in an Ageing, Disability and Home Care (ADHC) group home at southwest Sydney. She has no involved family and Ms TPL, residential nursing unit manager, applied for a guardian to be appointed to make decisions for Miss BDQ as she transitions into the National Disability Insurance Scheme (NDIS). What did the Tribunal have to decide? 1. The Tribunal had to decide: 1. Does Miss BDQ have a disability which prevents her from being able to make some important life decisions? 2. Should the Tribunal make a guardianship order and if so, what order should be made? 3. Who should be the guardian? 4. How long should the order last? Decision 1. Ms Z, senior psychologist, reported that Miss BDQ has a profound intellectual disability, spastic quadriplegia, and major sight and hearing impairments. The Tribunal accepted that Miss BDQ's intellectual disability prevents her from being able to make important life decisions. 2. Ms TPL told the Tribunal that, in Miss BDQ's NDIS preplanning meeting, the local area coordinator had contacted the head office of the National Disability Insurance Agency (NDIA) and been told that, in the absence of an involved family member, a guardian was needed to make an access request under the National Disability Insurance Scheme (NSW Enabling) Act 2013 (NSW). This was inconsistent with the position of the NDIA as expressed in KCG [2014] NSWCATGD 7. However, in any event, the Tribunal was clear that Miss BDQ needed an advocate or decision maker to represent her interests in her first two NDIS plans and in the parallel process of ADHC tendering out its services to non-government organisations. 3. In the absence of another source of advocacy, the Tribunal needed to make a guardianship order appointing the Public Guardian. 4. The guardian needed a services function to deal with the above issues. In view of Miss BDQ having complex health needs including needs for allied health services related to her dysphagia, the Tribunal included health care and medical and dental consent functions in the order. 5. Also, there is a behaviour support plan prepared by Ms Z which includes provision for physical restraint where needed to prevent self-injurious behaviour by Miss BDQ. The behaviour plan outlines a range of positive strategies and early action strategies to avoid the need for restraint wherever possible. 6. Ms TPL told the Tribunal that restraint is needed most times that Miss BDQ's hair is washed. It is also sometimes needed in response to other situations of self-injurious behaviour. However, if staff intervene early and offer Miss BDQ things to do, she usually settles and restraint is not required. Apart from the hair washing, restraint may be used about once every three months but has not been needed in the last six months. 7. The Tribunal included a power for the guardian to decide whether or not restraint should be approved. Restraint may only be approved if the guardian is satisfied that the behaviour plan is being implemented and periodically reviewed. 8. Ms TPL said that Miss BDQ enjoys her day program at a disability services provider due to the attention and activities there. At home she sometimes gets bored. There are five residents in the house and there is no suggestion that the location of the house will change. 9. Miss BDQ has permanent disabilities and is unlikely to become capable of making major decisions for herself. She needed a guardian for at least 18 months to cover the first two NDIS plan is and tendering out of the group home. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 March 2017