SKN [2023] NSWCATGD 16

SKN [2023] NSWCATGD 16

It is appropriate to vary the 2011 Enduring Guardianship Appointment to add a restrictive practices function, as the Father lacks capacity, restrictive practices are being used to manage his behaviour, and the Daughter and Son are suitable and willing to act in accordance with the statutory principles as substitute-decision makers for restrictive practices.

Parties
The Person: SKN; Applicant, Enduring Guardian: DBE; Enduring Guardian: QSN; Public Guardian; NSW Trustee and Guardian; Spouse: TBN
Jurisdiction
Australia
Judgment Date
18 August 2023
Procedural Posture
Review of an Enduring Guardianship Appointment / Guardianship Division Hearing and Decision
Outcome
Enduring guardianship instrument varied to add restrictive practices function, with specific conditions.
Legal Topics
Enduring Guardianship, Restrictive Practices, Chemical Restraint, Review of Functions, Informed Consent
Guardianship Aged Care Law Enduring Guardianship Restrictive Practices Chemical Restraint Review of Functions Informed Consent

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Parties

SKN

The Person

DBE

Applicant, Enduring Guardian

QSN

Enduring Guardian

Public Guardian

NSW Trustee and Guardian

TBN

Spouse

Procedural Posture

Review of an Enduring Guardianship Appointment / Guardianship Division Hearing and Decision

Legal Issues

  1. 1 Whether the enduring guardianship instrument (2011 EGA) should be varied to include a restrictive practices function
  2. 2 The necessity and appropriateness of the appointment of a restrictive practices substitute-decision maker
  3. 3 Suitability of the Daughter and Son to exercise restrictive practices function

Ratio Decidendi

It is appropriate to vary the 2011 Enduring Guardianship Appointment to add a restrictive practices function, as the Father lacks capacity, restrictive practices are being used to manage his behaviour, and the Daughter and Son are suitable and willing to act in accordance with the statutory principles as substitute-decision makers for restrictive practices.

Court Disposition

Enduring guardianship instrument varied to add restrictive practices function, with specific conditions.

Orders

  • 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: (i) only as a last resort to prevent SKN harming himself or others; (ii)...