KBU [2020] NSWCATGD 9

KBU [2020] NSWCATGD 9

KBU, as a result of advanced dementia, is unable to make informed decisions about his person and requires a guardian. The administration of risperidone constitutes chemical restraint, which is a restrictive practice and not covered under the authority of an enduring guardian under the Guardianship Act 1987 (NSW). Therefore, a limited guardianship order is necessary to appoint DSU as guardian with functions to consent to chemical restraint, medical/dental treatment (including authority to override objections), accommodation, and health care, subject to strict conditions and compliance with a behaviour support plan.

Jurisdiction
Australia
Judgment Date
09 March 2020
Procedural Posture
Guardianship Application and Application for Consent to Medical/dental Treatment / Final Determination and Orders
Outcome
Guardianship order made; application for consent to medical/dental treatment dismissed as withdrawn
Legal Topics
['appointment of Guardian' 'authority to Consent to Restrictive Practices' 'chemical Restraint' 'medical Consent' 'enduring Power of Guardianship' 'use of Restrictive Practices in Aged Care']
['guardianship Law' 'health Law' 'aged Care'] ['appointment of Guardian' 'authority to Consent to Restrictive Practices' 'chemical Restraint' 'medical Consent' 'enduring Power of Guardianship' 'use of Restrictive Practices in Aged Care']

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Procedural Posture

Guardianship Application and Application for Consent to Medical/dental Treatment / Final Determination and Orders

Legal Issues

  1. 1 ['Whether KBU is a person in need of a guardian under the Guardianship Act 1987 (NSW)' 'Whether the use of risperidone constitutes chemical restraint' 'Whether an enduring guardian may consent to chemical restraint' 'Who should be appointed as guardian for KBU' 'What functions and authority should be conferred on the guardian' 'What conditions should apply to the guardianship order']

Ratio Decidendi

KBU, as a result of advanced dementia, is unable to make informed decisions about his person and requires a guardian. The administration of risperidone constitutes chemical restraint, which is a restrictive practice and not covered under the authority of an enduring guardian under the Guardianship Act 1987 (NSW). Therefore, a limited guardianship order is necessary to appoint DSU as guardian with functions to consent to chemical restraint, medical/dental treatment (including authority to override objections), accommodation, and health care, subject to strict conditions and compliance with a behaviour support plan.

Court Disposition

Guardianship order made; application for consent to medical/dental treatment dismissed as withdrawn

Orders

  • ['Guardianship order is made for KBU.' 'DSU is appointed as the guardian.' 'This is a continuing guardianship order for six months from 9 March 2020.' 'This is a limited guardianship order giving the guardian custody of KBU to the extent necessary to carry out the specified functions.' 'The guardian may decide on...