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THE NSW DISABILITY INCLUSION BILL 2014 EXPOSURE DRAFTNATIONAL DISABILITY SERVICES (NDS) SUBMISSION
FEBRUARY 2014
TABLE OF CONTENTS
Executive summary and recommendations i – x
Introduction 2
Part One – Preliminary 4
Part Two – Disability planning 8
Part Three – Disability Council NSW 13
Part Four – Service standards 14
Part Five – Funding arrangements 15
Part Six – Restrictive interventions 26
Schedule Four – Amendment of the Ombudsman Act 33
Implementation 36
Conclusion 41
EXECUTIVE SUMMARY AND RECOMMENDATIONS
The following will summarise and provide the recommendations made by NDS in response to the exposure draft of the NSW Disability Inclusion Bill. Recommendations have been separated into proposed amendments to the Bill and suggested priorities for the Bill’s implementation.
Full explanation and details are provided in the body of this paper
RECOMMENDATIONS FOR AMENDMENTS TO THE BILL
Part 1 – Preliminary
• Objects and Principles
This Part has a positive emphasis on human rights, however the language used must further reinforce the concept of inclusion in order for the Bill to achieve it.
Recommendation 1: That the example amendments to language, provided on page 3 of the NDS submission, are incorporated into the Bill and further consideration is given to strengthening the language of the Objects and Principles of the Bill, driven by the goal of achieving inclusion.
Recommendation 2: That reference to the widely varying support needs of people with disability is added to the general principles of the Bill.
Recommendation 3: That the General Principles make reference to the Department of Family and Community Services NSW Carers Charter and the Carers (Recognition) Act 2010. Recognising carers in all aspects of supporting people with disability is important.
Recommendation 4: That Part 1, Division 2, Section 4.10 is amended to read “the crucial role of families, carers and/or significant others…”
• Principles recognising the needs of particular groups
There are two main concerns with this section. First, to name certain groups excludes them from a universal, inclusive approach. Second, to name only disability service providers in having the responsibility to recognise particular needs, other service providers are excluded. The recommendations address these issues.
Recommendation 5: That Part 1, Division 3, Section 5 be either removed or reframed along the lines of “Service providers have the responsibility to recognise diversity in the community, the varying roles of families and communities and the importance of consultation across the community in providing supports and services to people with disability.”
Recommendation 6: In Part 1, Division 2, Section 5 that (1), (2) and (3) “A disability service provider” is replaced with “The NSW Government and community”. This amendment may apply throughout the Bill.
• Definitions
A positive definition of ‘disability’ in this section is overshadowed by the failure to provide a definition for the title of the Bill, ‘inclusion’.
Recommendation 7: That a definition of inclusion is added to Part 1, Division 3, Section 7 of the Bill. NDS suggests the definition provided in the body of this document on page 7.
i
Part 2 – Disability Planning
• The State Disability Inclusion Plan
State Disability Inclusion Planning is a positive step. In its current format, the legislation requires tightening to ensure that the State Disability Inclusion Plan provides the foundation for planning and implementation across all of government.
Recommendation 8: That Part 2, Division 1, Section 8.3 “The State Disability Inclusion Plan may be a document or part of a document prepared for another purpose if the document or part fulfils the requirements of subsection (1)” be omitted from the Bill.
Recommendation 9: That Part 2, Division 1, Section 9.3 be amended to read “A report on the outcome of the review and measures taken to implement the goals of the State Plan against appropriate indicators is to be tabled in each House of Parliament as soon as practicable after it is completed”.
Recommendation 10: That the following text is included in the Bill at Part 3, Section 16(1):
• to advise the Minister about the content and implementation of Disability Action Plans, including appropriate options for rewarding and correcting government departments and local councils
• to provide strategies to government departments and local councils to ensure obligations under their respective Disability Action Plans are fulfilled,
• to support local councils implement awareness raising mechanisms as part of their Disability Action Plan requirements, and
• to consult with people with disability and assist in the design and review of the State Disability Inclusion Plan.
• Disability Action Plans
Disability Action Plans (DAPS) should be genuine promises to the community that lead to implemention of strategies and breaking down of barriers to inclusion. The recommendations provide for more effective DAPs.
Recommendation 11: That at Part 2, Division 2, Section 10.5 an addition be made, reading “and (c) published in formats which are accessible”.
Recommendation 12: That Part 2, Division 2, Section 10.2(b) be amended to read “may consult with other entities the department or council considers appropriate, including the Disability Council, non-government service providers and peak bodies”.
Recommendation 13: That further consideration be given to the consequences for government departments and local councils for failing to compose and implement DAPs within the intention of the Bill. Recognition of the production and implementation of exceptional DAPs should also be considered.
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Recommendation 14: That the clause at Part 2, Division 2, 10.3(b), be amended to read: “include strategies to support people with disability which must address:
(i) providing access to buildings and facilities
(ii) providing access to information, reducing barriers to persons with disability accessing goods, services and facilities
(iii) reducing barriers to persons with disability obtaining and maintaining employment
(iv) achieving tangible changes in attitudes and practices which discriminate against persons with disabilities
Part 4 – service stanDarDs
The definition for ‘supported accommodation’ is inadequate in its current form.
Recommendation 15: That Part 4, Section 19.1(a) be replaced with “in this act, ‘supported accommodation’ means a context in which residential supports are provided by the Department, a funded provider or an organisation which is responsible for delivering support to people with disability.”
Recommendation 16: That the Sections included from 19.1(b) -19.3(b) be omitted from the Bill.
Part 5 – FunDing arrangements
• The meaning of “person in the target group”
It is important that there is no doubt regarding people with disability who are in the target group for this Bill.
Recommendation 17: That Part 5, Division 1, Section 23.1(c) be linked to regulations which detail the practical application of the sentence “significant reduction in a person’s functional capacity” in the same way that the NDIS Rules provide guidance in the application of the disability requirements for the NDIS.
Recommendation 18: That the Bill and/or forthcoming regulations address the role of DAPs, ALNSW and the transition of funding and supports from ADHC to other government departments for people with disability who are not eligible for the NDIS, in order to be consistent with and enact the spirit of ‘continuity of support ’.
• The provision of financial assistance
All possible scenarios for the provision of financial assistance must be included in the Bill.
Recommendation 19: That at Part 5, Division 2.24 (2) “the guardian of the person who has the function, under the Guardianship Act 1987 of making a decision in relation to the person…” is added to the list of possible recipients or administrators of financial assistance.
• Children over six years of age as defined in the target group
The Bill should align with NSW policy direction and current strategies.
Recommendation 20: That the clause at Part 5, Division 1, Section 23.3 be amended to read “For the purposes of this act, a person in the target group includes a child under nine years of age…”
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• Safeguarding and the provision of financial assistance for individuals
This and further recommendations are about ensuring that safeguards are robust.
Recommendation 21: That, as a precautionary measure, provision is made for the Community Services (Complaints, Reviews and Monitoring) Act 1993 to continue to apply to disability service delivery as a legacy feature of the Bill until a national process is fully implemented.
• Civil Liberties and decisions around individualised funding
While the reasons for denying a person individualised funding are reasonable, that these decisions are for the greater good of the community should be articulated.
Recommendation 22: That Part 5, Division 2, Section 24.8(b) be reworded to read “…the nature of the supports to be obtained and the assessment of risks to the individual and their community which might arise in providing financial assistance directly to the individual.”
• Human rights and agreements about financial assistance
In making financial agreements, the rights of the persons in the target group must be considered first.
Recommendation 23: That at Part 5, division 2, 28.2(b), statement (v) be inserted as statement (i) to reflect the importance of the human rights approach to this Bill.
• Probity checks
Recommendation 24: That, as a precautionary measure, reference to probity check requirements for employees of disability support services remain as a legacy feature of the Bill until a national process is established.
• Suspending and terminating financial assistance
It is understood that this division of the draft Bill is intended at least in part to provide for a person who is in the target group transitioning to the NDIS. This intention should be articulated to uphold the rights based approach of the Bill. These recommendations suggest changed emphasis and rephrasing in order to better reflect the Bill’s objects and avoid unintended consequences.
Recommendation 25: That at Part 5, Division 1, Section 22 Purpose of the Part should read:
“(1) The purpose of this part is to facilitate the provision of supports and services to persons in the target group and to facilitate the transition of financial assistance to persons in the target group from the Department in which this Act is administered to the National Disability Insurance Scheme.
(2) The purpose is to be achieved by the provision of financial assistance directly to individuals, or to eligible organisations (including the part of the Department in which this Act is administered), for the purpose of providing supports and services.
(3) The financial assistance is to be provided during the transition to the National Disability Insurance Scheme.”
Recommendation 26: That the example of hospitalisation be removed from the Bill as it does not reflect the reality of experiences of hospitalisation for people with disability accessing funded disability services.
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Recommendation 27: That Part 5, Division 4, Section 31.1(a) and Division 4, 32.1(a) be amended to read “the Director General reasonably believes based on evidence” or “the Director General can show that…” and Part 5, Division 4, Section 31.a(a)ii be amended to state that “the person in the target group no longer has use for the supports and services” or “the supports and services are no longer necessary”.
Recommendation 28: That Part 5 is reframed with a rights based approach to remedy its negative language. For example, Division 4, Section 31.1 be replaced with:
1) The financial assistance under this Part, being provided to an eligible organisation shall continue unless, by notice served on the person or eligible organisation, financial assistance should be suspended because:
(a) the Director-General can show that the supports and services are no longer necessary for the person in the target group.
• Financial assistance to promote the objects of the Bill
Recommendation 29: That at Part 5, Division 6.34(1) “… provide financial assistance to a government department, local council or any other entities…” be amended to read “… provide financial assistance to a government department, local council, peak body or any other entities…”
Part 6 – restrictive interventions
NDS is of the position that restrictive interventions should not be legislated in the way the Bill proposes. However, in the event that recommendation 30 is not upheld, further recommendations are made regarding restrictive interventions as subject of legislation.
Recommendation 30: That the use of restrictive practices by disability service providers remain regulated as it presently is, in government policy and procedure. Existing regulation should be amended to include all people with disability and consideration should be given to how better to resource restrictive practice procedures and how Government departments, local councils and private service providers may understand and implement appropriate behaviour support.
• The role of other environments in an inclusive community
This Bill resolves that people with disability are to be supported in the mainstream. It should be considered how restrictive interventions ought to be monitored throughout the NSW community.
Recommendation 31: That all relevant divisions in the Bill regarding the use of restrictive practices and positive behaviour support planning, “disability service provider” is replaced by “service provider”.
Recommendation 32: That in the definitions at Division 3 of Part 1 of the Bill, “service provider” be given a definition which is inclusive of all environments to which the Bill aims to apply.
• Children with disability and restrictive practices
It is the position of NDS that inadequate consideration has been given to the application of this legislation to children and young people with disability.
Recommendation 33: That further consultation take place regarding the appropriate processes for the approval of restrictive practices for children and young people in varied service settings.
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• Use of any restrictive practice in a positive behaviour support plan
The Bill fails to articulate that restrictive interventions are to be treated as an option of last resort and should only occur as part of a holistic positive behaviour support plan.
Recommendation 34: That at Part 6, Division 3, Section 43 a provision be added at (a) stating “uses positive behaviour support strategies as the primary approach.”
• Defining chemical restraint
The definition of chemical restraint in the context of restrictive practices in the Bill is confusing. This definition ought to be reconsidered in light of the existing ADHC policy.
Recommendation 35: That a clause removing ambiguity regarding where the use of psychotropic medication is and is not considered a restrictive practice in the case of existing diagnosed mental disorder, physical illness or conditions be inserted at Part 6, Division 1, Section 38.
• Restricted practice authorisation panels
Recommendation 36: That Part 6, Division 2, Section 42.4 be amended to read “A Restricted Practice Authorisation Panel consists of no less than 3 persons appointed by the Director-General or disability service provider…”
• Involvement of people with disability and those who are important to them in the development and review of plans
Any restrictive practice must be part of a supportive plan and subject to consultation and discussion with the person for whom the plan is being prepared as well as their family and/or carers and significant people in their life.
Recommendation 37: That Part 6, Division 3, Section 43.3 be amended to read: “In developing a behaviour support plan, the service provider must consult with:
(a) the person in the target group with whom the plan has been prepared,
(b) if a person other than the person with whom the plan has been prepared must give a consent to the use and form of seclusion or restraint – that person,
(c) the family and/or carer/s of the person with whom the plan has been developed and
(d) other persons specified as appropriate persons with whom a service provider must consult in reviewing a plan.
Recommendation 38: That at Part 6, Division 3, Section 43, Point (5) be moved to position (1) under Section 44.
Recommendation 39: That at Part 6, Division 3, Section 44.4 “A person for whom a behaviour support plan has been prepared [add - , a person they have nominated or the person’s guardian] may at any time ask the disability service provider to review the plan.”
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Recommendation 40: To align with the above recommendation regarding Section 43, that Part 6, Division 3, Section 44.5 be amended to read:
“In reviewing a behaviour support plan, the service provider must consult with:
(a) the person in the target group with whom the plan has been prepared,
(b) if a person other than the person with whom the plan has been prepared must give a consent to the use and form of seclusion or restraint – that person,
(c) the family and/or carer/s of the person with whom the plan has been developed and
(d) other persons specified as appropriate persons with whom a service provider must consult in reviewing a plan.”
• Use of restraint on person under 18 years of age
The general principles of this Bill identify that children and young people with disability have the right to participate in decisions which affect their lives and to respect as equal members of the community. Part 6, Division 3, Section 46 is incongruous with these principles.
Recommendation 41: That a provision is added in Part 6 of the Bill stating: “To ensure a child or young person is able to participate in decisions regarding restrictive practices under this Act, the young person must be provided with:
(a) adequate information, in a manner and language that he or she can understand, concerning decisions to be made,
(b) the opportunity and support to express his or her views according to his or her abilities,
(c) information about how his or her views may be taken into account and (d)an opportunity to respond to the decision made under this Act.”
scHeDule 4 – amenDment oF acts: amenDment oF tHe ombuDsman act
• Notification period
NDS is concerned that the period in which a Director-General or principal officer of a service provider must notify the Ombudsman of a reportable incident is mistaken.
Recommendation 42: That the clause at Schedule 7, Section 4B, 25N 3(a) be amended to read: “as soon as practicable, but not more than two days, after the Director-General or principal officer becomes aware of the reportable allegation or reportable conviction.”
• Transition to the NDIS
NDS is keen to ensure that mechanisms for reporting abuse and neglect continue to exist until safeguards under a national framework are implemented.
Recommendation 43: That it is clarified whether the Schedules of the Bill are transitional or legacy, and that the amendments to the Ombudsman Act are maintained until equivalent guarantees and safeguards are enacted under a national framework.
vii
RECOMMENDATIONS RELATED TO IMPLEMENTATION OF THE BILL
Part 2 – Disability Planning
• Disability Action Plans
These recommendations refocus DAPs on implementation and tangible outcomes.
Recommendation 44: That the regulations outline how resourcing will provide for the effective implementation of disability action planning.
Part 5 – FunDing arrangements
• Beyond background screening
For some employees, criminal record checks are not possible or effective, however a statutory declaration on its own does not verify a person’s criminal record or ‘suitability’. NDS recommends a ‘Swiss cheese’ approach to probity checking, preventing and responding to abuse and neglect.
Recommendation 45: That the regulations clearly define the conditions under which statutory declarations suffice as probity checks in place of criminal record checks and/or Working With Children Checks. Measures to ensure a check is carried out as soon as possible should be articulated.
Recommendation 46: That regulations are maintained which identify good practice guidelines for prevention, timely intervention and remediation of abuse and neglect, such as deliverables from the NDS Zero Tolerance project as well as others.
• The suspension and termination of financial assistance
NDS members are concerned about the practicality of the conditions under which suspension of financial assistance might occur. Members were also concerned about the potential impact of the roll out of the NDIS on those who will not be eligible for it.
Recommendation 47: That the regulations must outline a substantial minimum timeframe that must lapse before a suspension of financial assistance can be applied.
Recommendation 48: That the regulations articulate how NSW will provide continuity of support to people with disability who are receiving funded support through ADHC but will not be participants of the NDIS.
Part 6 – restrictive interventions
• Resourcing implications for service providers
There are significant resourcing and implementation matters that must be addressed in order to make regulating restrictive interventions manageable and productive for service providers and people with disability.
Recommendation 49: That regulations and practice guidance articulate resourcing, referral pathways and processes for implementation of the Part.
viii
• Data collection
The UNCRPD at Article 31 states that state parties are required to collect appropriate information, including statistical information, which will enable the formulation and implementation of policies which give effect to the Convention.
Recommendation 50: That the NSW Government establish baseline data and a data collection and monitoring strategy that will allow analysis and improvement of this law over time.
• Implementing restraint or seclusion in an emergency
Interpretation of the phrase “serious physical harm” in employing restraint or seclusion in an emergency must be very clear to effectively reduce the use of restrictive interventions.
Recommendation 51: That training is made available for workers involved in positive behaviour support providing skills in judgement calls on emergency use of restrictive interventions.
scHeDule 2 – PrescribeD criminal oFFenses
• Implementation of prescribed criminal offences requirements
Grey areas exist where criminal offences aren’t proscribed however do effect suitability for employment.
Recommendation 52: That practice guidance is published giving detail to the appropriate implementation of this schedule.
scHeDule 4 – amenDment oF tHe ombuDsman act
• Implementation of additional safeguards
NDS members considered the changes to the Ombudsman Act to be a positive initiative. Guidelines will provide advice around measures to implement or enhance broader safeguards than those introduced in the Bill.
Recommendation 53: That guidelines are maintained which detail resources for the implementation of additional safeguarding procedures.
imPlementation oF tHe bill tHrougH eDucation anD aWareness
Recommendation 54: That extensive education and training with all relevant stakeholders be rolled out following enactment of this Bill.
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CONCLUSION
To create an environment of inclusion in the NSW community, these reforms must be guided by considered resourcing, coherent overall strategies and an emphasis on implementation and outcomes. This submission makes recommendations which will strengthen the Bill, better align it with its philosophical underpinnings and more realistically position it to achieve its goals.
It must be highlighted that the translation of the policy driven goal of inclusion into reality is also about cultural change through conversation, advocacy and education. Continuing consultation with people with disability, the disability services sector and peak bodies on the state of inclusion and the efficacy of the Bill will be essential in achieving positive outcomes.
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2
Introduction
NDS welcomes the opportunity to comment on the exposure draft of the NSW
Disability Inclusion Bill. A growing understanding of social justice and an
appreciation of diversity is being reflected in Government’s willingness to
implement positive changes for people with disability in NSW. NDS applauds that
the Bill formally acknowledges the role of every organisation and individual in
NSW in creating an environment in which people with disability can live the life
they choose.
It is significant that this Bill has been named the Disability Inclusion Bill. Inclusion
refers to a process which combats all discriminatory attitudes and generates open
and welcoming communities. The aim of the Disability Inclusion Bill (the Bill) is to
set up a new environment in the community of NSW. By making official the
responsibility of government departments, local councils, and specialist disability
service providers for the recognising the rights and facilitating the community
inclusion of people with disability, the Bill intends to put the value of inclusion into
action.
This legislation should seek to remove the disadvantages and barriers which exist
as a result of society’s response to disability and emphasise access for those who
are most at risk of marginalisation and exclusion1. In implementation, the Bill must
result in change to the contextual conditions that limit inclusion2. For this, there
must be a clearly demonstrated pathway - and resources - for the community,
government departments and local councils to take on this responsibility.
There is a long way to go to achieve inclusion in NSW. Mainstream departments
are not yet inclusive. The recently released paper by the Australian Human Rights
Commission (ARHC) ‘Equal Before the Law – towards disability justice strategies’
and soon to be released paper from NDS regarding the experiences of people with
disability when hospitalised in NSW provide examples of the journey this state has
embarked upon but is yet to achieve fully
Case example 1: Access to justice
The AHRC report ‘Equal Before the Law’ describes that in every jurisdiction in
Australia there are significant problems accessing justice for people with disability.
The report reveals, amongst many other things, that:
1 UNESCO, 2005, ‘Guidelines for Inclusion: Ensuring access to education for all’ in Berlach, R. G. & Chambers,
D. J., 2011, Interpreting inclusivity: an endeavour of great proportions, International Journal of Inclusive Education, 15:5, 529 – 539, p.531 2 Biklen, B., 2000, Constructing Inclusion: lessons from critical disability narratives, in International Journal of
Inclusive Education, 4:4, 337-351, p.342
3
Often, a person’s disability is not identified in a timely way when they come
into contact with the justice system and so the necessary supports and
adjustments are not provided.
Even when a person’s disability is identified the necessary adjustments and
supports are frequently not provided.
People with disability are not being heard because of erroneous perceptions
that they are unreliable, not credible or not capable of being a witness.
Styles of communication used by police, lawyers, custodial officers and courts
can be confusing and inappropriate3.
The report proposes that every state and territory design and implement a
thorough and coordinated strategy addressing all of the issues raised4.
Case example 2: Access to hospital care
The forthcoming NDS paper ‘People with disability and hospitalisation:
opportunities and challenges in NSW’ identified through consultation with NDS
members, that:
Hospital staff sometimes lack even the most basic understanding of disability.
Incorrect assumptions have had significant consequences.
People with disability are exposed to prejudiced and discriminatory attitudes in
the approach taken to their health care needs.
People with disability have been left unassisted in hospital, unable to clean
their teeth, eat their food or communicate pain experiences. People with
disability have been inappropriately discharged from hospital without support,
putting them at significant risk.
Often, disability service providers deliver support to people with disability who
are their service users in hospital despite not being resourced to do so. This
has a ripple effect on the organisation and others who use its services.
The paper will propose that resourcing, education and a coordinated approach
across NSW to supporting people with disability in hospital from admission through
discharge is necessary5.
The Bill will contribute to facilitating the hand-over of support provision from the
Department of Family and Community Services to the non-government disability
services sector, and the roll-out of the National Disability Insurance Scheme
3 Australian Human Rights Commission, 2014, ‘Equal Before the Law: towards disability justice strategies’,
Sydney, p.5 4 Australian Human Rights Commission, 2014, ‘Equal Before the Law: towards disability justice strategies’,
Sydney, p.6 5 National Disability Services, 2014 (yet to be published), ‘People with disability and hospitalisation:
challenges and opportunities in NSW’, Sydney
4
(NDIS) over the next four years. This is an historical and significant shift and NDS
applauds the NSW Government’s proactive response.
The Department of Family and Community Services, Ageing, Disability and Home
Care (ADHC) has for some time existed in NSW as the ‘provider of last resort’. In
withdrawing from service provision, this safety net is also being removed. As such,
it is incredibly important that each aspect of the Bill is realistic, concrete and
enforceable. If inclusion and responsibility for appropriate support is to rest with
the whole community, this responsibility must be strategically disseminated and
understood by all who share it. Risks associated with this shared commitment
across the community must be mitigated through safeguards and controls.
NDS has consulted with members in the formation of this submission. Overall,
NDS members have expressed concern that aspects of the Bill do not reflect the
reality of service provision and the complexities that the disability service sector
manages on a daily basis. Members also found it philosophically confusing that
that the title of the Bill does not reflect its content. Members fed back that the Bill
fails to acknowledge and adequately deal with the gap in the provision of support
that exists now between the disability service sector and state government
department. That said, NDS members acknowledge that the intentions of this Bill
are earnest.
The message gleaned through consultation is that, while the Bill is the description
of a positive initiative, what it aims to achieve is far more complex than simply
changing the law. It is about the way the disability is viewed by the whole of
society. For this Bill to be effective, all parts of the NSW community must adapt.
Cultural change must be pushed for and resourced. This can come about through
continuous and permeating advocacy. Aspects of the Bill must be strengthened
and a considered plan developed to facilitate progress across the whole
community.
This submission will provide feedback on each Part of the Bill, beginning with a
summary of NDS members’ response to its Objects and Principles. Considerations
for implementation of the Bill will also be discussed.
Part One - Preliminary
Objects and Principles
NDS commends the emphasis on rights, participation and access that is evident
throughout the preliminary part of the Bill. This sets its tone and the moral
foundation upon which the Bill’s proposed Disability Action Plans, service
standards, funding arrangements and restrictive interventions are built. This Part
5
of the Bill displays clearly the maturation of the NSW community since the
enactment of the NSW Disability Services Act in 1993.
Given the premise of the Bill, identified by its name, the language describing the
Bill’s objects and principles ought to be strengthened.
NDS members stated that if the purpose of this Bill is to acknowledge that the
community and State have a responsibility to genuinely facilitate the exercise of
the human rights and full participation of people with disability, the gravity of this
responsibility is not being communicated. The language throughout Division 2 of
the preliminary part of the Bill must reinforce the concept of inclusion in order for
the Bill to achieve it.
For example, at Part 1, Division 1, Section 3:
“(a) to acknowledge that people with disability have the same human rights as
other members of the community and that the State and the community have a
responsibility to facilitate the exercise those rights” may be amended to read “to
confirm that people with disability have the same human rights as other members
of the community and enshrine the responsibility of the State and community in
facilitating these rights in Law.”
and
“(e) to support, to the extent reasonably practicable, the purposes and principles of
the United Nations Convention on the Rights of People with Disabilities
(UNCRPD)” may be amended to read “to uphold the purposes and principles of
the UNCRPD and drive its implementation”.
Recommendation 1
That the amendments above are incorporated into the Bill, and further
consideration is given to strengthening the language of the Objects and Principles
of the Bill, driven by the goal of achieving inclusion.
NDS members identified that further consideration must be given to the following
points:
The breadth of impacts the many forms of disability may have for each
individual is not expressed, nor is the concept that people with disability need
widely varying levels and types support to live lives that are meaningful to them.
Recommendation 2
That reference to the widely varying support needs people with disability have is
added to the general principles of the Bill.
6
The crucial role of families, carers and/or other significant persons is recognised
in the principles, at Part 1, Division 2, Section 4.10, but nowhere else in the Bill.
No reference is made in the Bill to the Carers Charter or the Carers
(Recognition) Act 2010 and their application to supporting people with disability.
Recommendation 3
That the General Principles make reference to the Department of Family and
Community Services NSW Carers Charter and the Carers (Recognition) Act 2010
in order to accentuate the importance of recognising carers in all aspects of
supporting people with disability.
In recognising the role of families, carers and significant others in the lives of
people with disability, the Bill does lack some nuance by assuming that people
with disability necessarily have and want to involve their family, carers and
others.
Recommendation 4
That Part 1, Division 2, Section 4.10 is amended to avoid the assumption that
people with disability always have and wish to involve both family and carers as
well as other significant people in their lives. This section should instead read “the
crucial role of families, carers and/or significant others…”
Principles recognising the needs of particular groups
Two particular concerns were identified by NDS members with Part 1, Division 2,
Section 5 of the Bill.
First, inclusion is a term which implies a universal approach. A person centred
approach to supporting people with disability should negate the necessity to
recognise the needs of particular groups in law because the focus is on
responding to the particular needs of each individual.
NDS members were concerned that the Bill undermines its own objects by
identifying the needs of particular groups. To name certain groups excludes them
from a universal, inclusive approach. This section of the Bill is therefore
counterproductive. Members reasoned that the general principles of the Bill are
adequate, and that the Commonwealth Disability Discrimination Act (1992) and the
Anti-Discrimination Act 1977 address the particular groups identified in the Bill.
NDS recognises that there are sensitivities around recognising the needs of
particular groups, for example with Aboriginal and culturally and linguistically
diverse groups, due to differences in the way disability may be perceived. If these
principles are to remain in the Bill, members identified that Section 5 should be
reframed as positive discrimination and a recognition of diversity, rather than an
isolation of particular groups.
7
Recommendation 5
That Part 1, Division 3, Section 5 be either removed or reframed along the lines of
“Service providers have the responsibility to recognise diversity in the community,
the varying roles of families and communities and the importance of consultation
across the community in providing supports and services to people with disability.”
Second, the Bill acknowledges that the State and community have responsibility in
facilitating the rights of people with disability. Yet the principles recognising the
needs of particular groups only refer to disability service providers. NDS therefore
suggests that if these principles remain in the Bill, the value of inclusion be
reflected by removing the reference to disability specific services.
Recommendation 6
That in Part 1, Division 2, Section 5, (1), (2) and (3) “A disability service provider”
is replaced with “The NSW Government and community”. Such an alteration
emphasises whole of Government and community approach being fostered by this
Bill. This amendment may apply throughout the Bill.
Definitions
NDS applauds the alignment of the definition of disability with that of the United
Nations Convention on the Rights of People with Disability (UNCRPD).
In the list of definitions to be applied to the Bill, a clear omission exists. A definition
of inclusion must be added to the Bill. Without a tight conceptual focus, there is
space for the term to be misunderstood, lose value and become ephemeral6.
Setting the Bill up with a useful and applicable definition of inclusion encapsulating
its moral underpinning will strengthen its drive for implementation.
Recommendation 7
That a definition of inclusion is added to Part 1, Division 3, Section 7 of the Bill.
NDS suggests the definition is drawn from the following:
Inclusion is founded on a moral position which values and respects every
individual. Inclusion welcomes diversity as richness[1] and embraces the challenge
of providing the best possible environment for all people[2].
6 Berlach, R. G. & Chambers, D. J., 2011, Interpreting inclusivity: an endeavour of great proportions,
International Journal of Inclusive Education, 15:5, 529 – 539, p.529 [1]
Beckett, A. E., 2009, ‘Challenging disabling attitudes, building an inclusive society’: considering the role of education in encouraging non-disabled children to develop positive attitudes towards disabled people, British Journal of Sociology of Education, 30:3, 317 – 329, p.318 [2]
Berlach, R. G. & Chambers, D. J., 2011, Interpreting inclusivity: an endeavour of great proportions, International Journal of Inclusive Education, 15:5, 529 – 539, p.530
8
Inclusion involves welcoming and upholding the rights of all people as equal
members of a community. An inclusive community is free from discriminatory
beliefs, attitudes and practices. An inclusive community puts its values into action
to ensure that everyone belongs, participates and flourishes. True inclusion is a
natural safeguard[3].
Part Two - Disability Planning
This section of the Bill delivers positive steps towards a more integrated approach
to the delivery of services across the community to people with disability. Key
sections relating to consultation, development, conduct and reporting requirements
demonstrate a commitment to locating people with disability as a focus of
government planning processes. The Bill compels a greater level of
responsiveness and planning than in other jurisdictions such as Victoria and
Queensland.
The Bill proposes a significantly more robust process for engagement with the
Minister and clear requirements for consulting with people with disability. NDS
applauds this strengthening of reporting mechanisms from their current form in the
Disability Services Act 1993.
In the interests of ensuring meaningful outcomes and the most robust processes,
NDS has identified a number of areas for improvement around the enforceability
and utility of Part 2 of the Bill. A number of recommendations relayed by NDS
members around the process of Disability Action Planning are presented here.
The State Disability Inclusion Plan
The establishment of a State Disability Inclusion Plan relating to service access
and promoting the participation of people with disability is welcomed as a new
approach to this whole of government initiative. In its current format, the legislation
requires further tightening to ensure that the process is not confused with or
subsumed by existing plans such as the forthcoming National Disability Strategy
NSW Implementation Plan (which is suggested as a substitute in the information
booklet).
NDS is of the position that the Bill needs to go further to ensure that the State
Disability Inclusion Plan provides the foundation for planning and implementation
[3]
Cologon, K., 2013, Inclusion in Education. Towards equity for students with disability. Children with Disability Australia and Children and Families Research Centre, Institute of Early Childhood, Sydney, p.6
9
across all of government. In consultation with members, the State Disability
Inclusion Plan was identified as having the potential to:
‘create consistency’ in recognising the disadvantages and reduced access
which people with disability experience
provide a framework for inclusion planning across all areas of society
ensure that the individual needs of people with disability are recognised
and respected whether or not they are or will be eligible for the NDIS
engage with the whole community.
At present, the statement “the State Disability Inclusion Plan may be a document
or part of document prepared for another purpose” (Part 2, Division 1, Section 8.3)
does not provide legislative certainty for this important planning process. Nor does
it separate the State Disability Inclusion Plan from other processes such as the
National Disability Strategy NSW Implementation Plan (NIP). This Bill and its
implementation are actions amongst many of the NIP and ought to remain
discrete.
NDS urges the government use the State Disability Inclusion Plan to frame and
present the implementation of measures to support the inclusion of people with
disability as core to all of government business. A genuine commitment to the
State Disability Inclusion Plan provides a rare and valuable opportunity to recast
how inclusion, as a concept being transformed into action, is addressed across all
levels of government and by authorities. As a discrete document, it will offer the
government a platform to showcase best practice and case-studies which
emphasise how tangible actions are improving inclusion.
Recommendation 8
That Part 2, Division 1, Section 8.3 “The State Disability Inclusion Plan may be a
document or part of a document prepared for another purpose if the document or
part fulfils the requirements of subsection (1)” be omitted from the Bill.
Reporting on the State Disability Inclusion Plan
In keeping with the spirit of the Bill there is an imperative to ensure that the
planning process recognises the complexities associated with promoting inclusion
for people with disability. This process must stretch beyond the role of improving
access and participation to acknowledge that addressing barriers to inclusion
requires a conscientious and active focus across all areas of government.
NDS members have identified the need for reporting on the State Disability
Inclusion Plan to extend to actions taken to implement it. At present, reporting
requirements only address “consistency with whole of government goals” (Part 2,
Division 1, Section 9.2). The requirement to report on the implementation of
Disability Action Plans (DAPs), which NDS endorse, (Part 2, Division 2, Section
10
11.2) should be replicated for the State Plan. Benchmarks and indicators for
implementation which address policies, practices and cultures can be found in
existing documents such as the ‘Inclusion Index’7 and should be referred to in the
regulations and/or practice guidelines.
Recommendation 9
That Part 2, Division 1, Section 9.3 be amended to read “A report on the outcome
of the review and measures taken to implement the goals of the State Plan against
appropriate indicators is to be tabled in each House of Parliament as soon as
practicable after it is completed”.
Disability Action Plans
As noted, the Bill proposes improved reporting requirements when compared with
the Disability Services Act 1993 and the existing guidelines for Disability Action
Planning (1993). The focus on processes and outcomes is particularly positive.
NDS supports the Bill’s requirement that local councils and government
departments must consult with people with disability in creating and reviewing their
DAPs. This legislative commitment has the potential to facilitate stronger
engagement and embraces the general principles of the Bill itself. To complete this
process, DAPs must be published in an open forum and in accessible formats so
as to ensure their inclusivity.
Recommendation 10
That at Part 2, Division 2, Section 10.5 an addition be made, reading “and (c)
published in formats which are accessible”.
A shift in focus and language used in the Bill towards a greater emphasis on
outcomes and actions must occur. NDS draws attention to the language which is
used in Part 5, Division 3, Section 28.2(b), for example “[agreements must specify]
the outcomes to be achieved”. A suitable focus on implementation and results
would strengthen DAPs.
The non-government sector’s role in the provision of disability services should be
acknowledged in the legislation. NDS members are positioned to provide practical
and evidence-based advice on how local councils and government departments
can plan for and address barriers to inclusion experienced by people with
disability. Consequently, the Bill should reference non-government organisations
as a sector to consult in assisting with the development and implementation of
DAPs.
7 Booth, T. & Ainscow, M. 2002 Index for Inclusion: developing learning and participation in schools, Centre
for Studies on Inclusive Education
11
Recommendation 11
That Part 2, Division 2, Section 10.2(b) section be amended to read “may consult
with other entities the department or council considers appropriate, including the
Disability Council, non-government service providers and peak bodies”.
The Utility of Disability Action Plans
If it is the case that NSW must legislate the inclusion of people with disability,
DAPs should be genuine promises to the community. If DAPs are to be identified
in law they should represent more than proposed strategies to make the
mainstream more accessible. Departments and local councils ought to have a
responsibility to implement strategies that break down barriers to inclusion.
Reporting on successes and key actions when unable to succeed should be part
of this process.
NDS is concerned about the lack of provisions addressing circumstances in which
an unsatisfactory DAP is developed or, alternatively, a satisfactory DAP is
developed but not implemented. The potential for the Disability Council to act as a
facilitator and provide advice to improve standards and practice should be
considered.
Recommendation 12
That further consideration is given to the consequences for government
departments and local councils for failing to compose and implement DAPs within
the intention of the Bill. Recognition of the production and implementation of
exceptional DAPs should also be considered.
At present, the criteria included at Part 2, Division 2, Section10.3(b) do not provide
compelling direction in regards to what needs to be reported on within DAPs. NDS
believes that the language which is included in this section does not compel
authorities to report on relevant matters. The selection of the words “for example”
in regards to the criteria listed, allows authorities discretion as to which themes are
reported on. This is compounded by the use of “have regard” in relation to how
authorities must respond to the general principles of the Bill. NDS fears that this
approach will not result in councils and government departments publishing
meaningful material which assist in the provision of comprehensive and quality
services to people with disability.
Case example 3 – Housing NSW’s Disability Action Plan
There is a disconnect in the complexities addressed in the Housing NSW Disability
Action Plan and those that are included in its annual reporting of the
implementation of their Plan. A close reading of the Housing NSW Disability Action
Plan 2009-2013 demonstrates an excellent level of awareness and sensitivity in
12
regards to how the agency can best use its resources to respond to the needs of
people with disability and create a more inclusive approach to service delivery.
These complexities, however, are not translated in reporting on actions in the
Housing NSW section of the Family and Community Services annual report.
In consulting with NDS members, the current Housing NSW DAP was identified as
lacking:
a focus regarding what actions were being taken to move people out of
disadvantage
key performance indicators for inclusion outcomes
information about actions taken, progress against targets or milestones and any
reasons for a target not to be reached
strategic focus addressing how actions link to a broader platform such as the
State Inclusion Plan.
In its current form, the Bill does not demand any more of departments or local
councils which are presently failing to achieve inclusion.
NDS members have identified similar implementation issues across a range of
local councils and state government agencies. In the case of housing policy,
improved utility of DAPs would result in increased knowledge within housing of
current challenges in accessing to affordable housing (e.g. waiting list periods and
design concerns). A functioning disability planning process may build a useful
information sharing platform.
Local councils and government departments should also be required to report on
strategies implemented to achieve attitudinal change and promote understanding
of the barriers to inclusion which people with disability experience.
NDS draws attention to the Victorian Disability Services Act 2006 as a model of
best practice in appropriate criteria for DAP reporting. The proposed amendment
reflects and strengthens the language of the draft Bill to provide greater
compulsion for local councils and government departments to report on these
areas.
Recommendation 13
That the clause at Part 2, Division 2, 10.3(b), be amended to read: “include
strategies to support people with disability which must include:
(i) providing access to buildings and facilities,
(ii) providing access to information,
(iii) reducing barriers to persons with disability accessing goods, services and
facilities;
(iv) reducing barriers to persons with disability obtaining and maintaining
13
employment;
(v) achieving tangible changes in attitudes and practices which discriminate
against persons with disability through disability awareness raising activity.
Part Three - The Disability Council NSW
NDS welcomes the government’s ongoing commitment to the Disability Council
NSW (the Council) and endorses the proposed realignment of its roles. It is
apparent in the Bill that the Council will remain a key body in promoting the
inclusion of people with disability in NSW.
There are opportunities to utilise Council members’ collective experience to ensure
effective reporting and implementation of local council and government
department DAPs. NDS is heartened by the provisions included at Part 3, Section
16(e-h) in regards to the promotion and monitoring of inclusion initiatives.
However, as indicated in discussing DAPs, more provisions are needed to drive
the strongest possible outcomes for people with disability through Disability Action
Planning and reporting processes.
NDS has identified scope to fine-tune the Bill concerning the Disability Council in
its role supporting Disability Action Planning and in the design and review of the
State Disability Inclusion Plan.
Disability Action Planning
At present, the role of the Disability Council NSW in contributing to the disability
action planning process is loosely defined. This is apparent from the Council’s
position as a body which “advises” the Minister and government departments on
the content and implementation of DAPs (Part 3, Section 16, (e) and (f). NDS
believes that further detail ought to be provided regarding how the Council will
provide advice to the Minister in regards to the DAP process.
NDS members identified the Disability Council as an appropriate body for
recommending corrective actions for local councils and government departments
that do not submit satisfactory DAPs or take measures to implement their
respective plans. The Council should also be empowered to reward and
encourage authorities that best promote the inclusion of people with disability.
NDS commends that the Bill includes provisions for the Disability Council NSW to
be provided funds through which to exercise its new functions (Part 3, Section 17)
and considers appropriate resourcing very important in the efficacy of this new
role.
14
State Inclusion Planning
NDS members identified that, as part of the development of the State Inclusion
Plan, the Minister is not required to consult with people with disability or other
organisations within the disability sector. The Minister must be held to the same
standards as government departments and local councils. To ensure that the
Council is given “a greater input on what is important to people with disability, and
contribute more to government improvements”8, NDS recommends that the Bill
provide the Council with an active role in the development of the State Inclusion
Plan to ensure that it is able to shape whole of government disability policy.
Recommendation 14
That the following text be included in the Bill at Part 3, Section 16(1):
to advise the Minister about the content and implementation of disability
action plans, including appropriate options for rewarding and correcting
government departments and local councils
to provide strategies to government departments and local councils to
ensure obligations under their respective disability actions plans are
fulfilled,
to support local councils implement awareness raising mechanisms as part
of their disability action plan requirements, and
to consult with people with disability and assist in the design and review of
the Disability Inclusion Plan.
Part Four - Service Standards
This section of the submission deals with the meaning of supported
accommodation at Part 4, Section 19. In the development of service standards, it
is important they are applicable to all relevant scenarios.
The definition provided for “supported accommodation” does not reflect a wide
enough range of accommodation support services provided to people with
disability. At present, the definition; a “premises in which: a person with disability
(the first person) is living in a shared living arrangement (whether short-term or
permanently) with at least one other person with disability” (Part 4, Section 19.1
(a)) assumes that a person with disability has to live with at least one other person
with disability.
8 NSW Department of Family and Community Services, 2013, Disability Inclusion Bill Information Booklet,
p.18
15
There are many circumstances where this is not an accurate representation of
supported accommodation. In consultation with NDS members, this definition was
found to exclude:
in-home support which is not provided within the supported accommodation
service type
people using flexible drop-in support arrangements
situations in which a person with disability is residing with one or more
people without disability
co-tenancy
situations in which a person with disability is living with one or more family
members with disability
individuals who receive a mixture of support from service providers in both
in-home and supported premises arrangements
assisted boarding houses.
The importance of an appropriate and comprehensive definition of ‘supported
accommodation’ is critical to the function of the Bill. This will be is expanded upon
in the section of this submission addressing amendments to the Ombudsman Act.
To reflect the value of choice and control in living arrangements, NDS
recommends altering the Bill as follows:
Recommendation 15
That Part 4, Section 19.1(a) be replaced with the following clause:
In this act, “supported accommodation” means a context in which residential
supports are provided by the Department, a funded provider or an organisation
which is responsible for delivering support to people with disability.
Recommendation 16
That the Sections included from 19.1(b) -19.3(b) be omitted from the Bill.
Part Five - Funding Arrangements
The funding arrangements were considered in detail during consultation with NDS
members. A range of issues emerged, from the target group to probity checking of
potential employees and safeguards. These issues are detailed in this section of
the submission. Overall, this Part of the Bill and its particular focus on eligibility,
termination and withdrawal is not viewed by NDS members as consistent with the
premise of the Inclusion Bill.
16
The meaning of “person in the target group”
The ‘target group’ for the draft Bill aligns closely with the NDIS disability
requirements9.
The NDIS disability requirements use of the phrase “substantially reduced
functional capacity”10. This phrase is supported by the NDIS Rules for becoming a
participant. The Rules provide details describing what this term means when
applied11. NDS suggests that in aligning to the NDIS target group, the Bill also
refer to a detailed definition of “significant reduction in a person’s functional
capacity” in order to remove any doubt over its meaning.
Recommendation 17
That Part 5, Division 1, Section 23.1(c) be linked to regulations which detail the
practical application of the sentence “significant reduction in a person’s functional
capacity” in the same way that the NDIS Rules provide guidance in the application
of the disability requirements for the NDIS.
In aligning with the target group for the NDIS the funding arrangements of this Bill
apply only to a proportion of people with disability. In effect, the Bill assumes that
the mainstream and community will have the capacity to take responsibility for
meeting all of the support needs of people with mild and moderate disability; that it
will be implemented effectively by local councils and government departments.
This fact highlights the importance of the implementation of robust DAPs.
It is likely that there are people who currently receive funded supports but will not
be eligible for the NDIS. In such a case, ensuring that an individual who continues
to require support from other sources does in fact receive that support is not
addressed in the Bill. NDS is of the position that there must be a planned
approach to transitioning support capabilities into the community in order to
achieve the ‘smooth change-over’ for which the Bill aims.
AbilityLinks NSW (ALNSW) will have a role in this through its work with
communities, government departments, organisations and local councils to
promote the inclusion of people with disability12. Yet, ALNSW is external to the
disability support system and does not itself have a role in providing supports. In
other words, unless concerted and planned efforts address the barriers to
inclusion that exist in the community and government departments, people who
are not in the target group may fall through substantial gaps generated as ADHC
withdraws from service provision and the NDIS rolls out.
9 National Disability Insurance Scheme Act, 2013, Australian Commonwealth Government, Section 24, 1
10 National Disability Insurance Scheme Act, 2013, Australian Commonwealth Government, Section 24, 1(c)
11 National Disability Insurance Scheme (Becoming a Participant) Rules 2013, Australian Commonwealth
Government, Section 5.8 12
NSW Government, Ability Links NSW Specifications and Guidelines, Sydney, 2013, p.5
17
Strengthening and amending the Bill according to NDS’s recommendations is vital.
The amendments recommended by NDS to the sections dealing with DAPs in
particular will go some way to ensuring that people with disability do not find
themselves the mainstream and find themselves without specialist support
services in a mainstream community that lacks the capacity to support them.
Recommendation 18
That the Bill and/or forthcoming regulations address the role of DAPs, ALNSW and
the transition of funding and supports from ADHC to other government
departments for people with disability who are not eligible for the NDIS, in order to
be consistent with and enact the spirit of ‘continuity of support13’.
The provision of financial assistance
Division 2, Section 24.2 states that an individual receiving funds may nominate a
person to receive funds on their behalf. No reference is made to the Guardianship
Act 1987 or Guardianship Orders which have an impact on who may make
decisions regarding the support of a person with disability.
Recommendation 19
That at Part 5, Division 2.24 (2) “the guardian of the person who has the function,
under the Guardianship Act 1987 of making a decision in relation to the person…”
is added to the list of possible recipients or administrators of financial assistance.
Children over six years of age
A child under six years of age who has developmental delay within the meaning of
the National Disability Insurance Scheme Act 2013 (Commonwealth) is considered
to be a person in the target group of the NSW Disability Inclusion Bill 2014.
In NSW, the recent focus has been on improving access to the mainstream
community and services for children aged zero to eight years. It is described in
Department of Family and Community Services (FaCS) documentation that the
zero to eight life stage is critical for healthy development, and improved outcomes
across the lifespan14. Cited as a move away from diagnosis based approach and
towards a functional understanding of disability, these initiatives acknowledge that,
for some children, identifying disability may not occur until later childhood, after the
first few years of school. The zero to eight age range recognises that, for some
families, a myriad of additional barriers may exist to identifying the need for
diagnosis and accessing early intervention supports. Delays or a late diagnosis
13
Intergovernmental Agreement on the NDIS Launch, Schedule A: Bilateral Agreement for NDIS Launch between the Commonwealth and New South Wales, Part 3, 10, 2012, p.3 and http://www.ndis.gov.au/participants/continuity-support
14 Ageing Disability and Home Care, Strengthening Supports for children and families 0 – 8 years strategy.
Information sheet, Sydney, 2013, p.1
18
can mean missing out early intervention funding and services. The impact of this
across the rest of a child’s lifespan can be significant. Making support available
throughout this crucial time reflects an investment model which minimises the
human cost for a child and their family.
NDS suggests that the target group identifying children aged zero to six is
changed to zero to eight to reflect the Bilateral Agreement between NSW and the
Commonwealth Government for the NDIS Launch15, EarlyLinks NSW16 and the
‘Strengthening Supports for Children 0 – 817’ initiative. Including the ages of seven
and eight in the target group will achieve consistency in NSW based policy and
practice, and will remove any doubt about the eligibility for support of a child who
is older than six years.
Recommendation 20
That the clause at Part 5, Division 1, Section 23.3 be amended to read “For the
purposes of this act, a person in the target group includes a child under nine years
of age…”
Safeguarding and the provision of financial assistance for individuals
NDS applauds the inclusion in the Bill that the Minister must have regard to the
views of the individual in the provision of financial assistance. However, NDS has
noted inconsistencies between the Bill and its supporting information concerning
safeguarding and regard for an individual’s views and preferences.
The information booklet accompanying the Bill states that initial consultation on the
Disability Services Act review indicated that people who are vulnerable and need
support in making decisions should have access to safeguards. In describing how
more choice and control will be delivered to people with disability, the booklet
states that the Bill aims to increase choice by continuing “to fund people and help
them manage their own supports and deal with risks”18. The booklet describes
that, in such a way, people with disability are enabled to move their funding away
from poor quality service providers. Individualised funding is regarded as a
safeguard in itself.
The Bill does not refer to individualised funding as a safeguard, nor to any other
safeguards in the provision of financial support to individuals. Instead it states that,
in making decisions about the form financial assistance should take, the Minister
might have regard to “… the nature of the support to be obtained and any risks
15
Schedule A, Bilateral Agreement for NDIS Launch between the Commonwealth and NSW, 2012, Canberra, p.4 16
ARDT Consultants & ADHC, 2013, Future directions for diagnosis support, Sydney, p.6 17
Ageing Disability and Home Care, Strengthening Supports for children and families 0 – 8 years strategy. Information sheet, Sydney, 2013 18
ADHC, Disability Inclusion Bill 2014 – Consultation Draft, Sydney, 2013, p.20
19
involved in providing assistance directly to the individual”. The Bill (perhaps
inadvertently) lends itself to denying a certain avenue of choice, control and
safeguarding to people with disability due to the nature of their disability and/or the
availability of a nominee or preferred plan managing organisation.
In essence, the Bill seems to accept that, while poor services may exist, only for
those for whom individualised funding is deemed suitable will have the safeguard
of the option to change providers. NDS suggests that further consideration be
given to where individually managed funding is not viewed as an option, as this
group may arguably include the most vulnerable people with disability.
Safeguarding through the Community Services (Complaints, Reviews and
Monitoring) Act
As identified in the NDS submission to the initial review of the Disability Services
Act, the Community Services (Complaints, Reviews and Monitoring) Act 1993
fulfils several crucial safeguarding functions in the administration and delivery of
funded supports to people with disability19. These include overseeing the
processes involved in complaints handling in community services, as well as
mechanisms for independent review and monitoring of the welfare of vulnerable
people via the Community Visitors Scheme. NDS is pleased that both of these
safeguarding functions are maintained in the new legislative environment.
In its present form, Part 5 of the Bill will be repealed in full as of 2018, regardless
of the existence of a national framework. The mechanism of Part 5, Division 5,
Section 33 in referring to the Community Services (Complaints, Reviews and
Monitoring) Act 1993 must continue to exist until the intended national framework
for complaints and monitoring under the NDIS is implemented. This continuity will
be crucial to ensuring there are no inadvertent gaps in enforcing the rights of
people with disability to live free from abuse and neglect.
Recommendation 21
That as a precautionary measure, provision is made for the Community Services
(Complaints, Reviews and Monitoring) Act 1993 to continue to apply to disability
service delivery as a legacy feature of the Act until a national process is fully
implemented.
Civil liberties and decisions around individualised funding
NDS acknowledges that there are reasons that a person in the target group might
not be able to have their funds individualised between the commencement of this
Bill and the full implementation of the NDIS. Indeed, in deciding how to provide
19
National Disability Services, NDS Submission: NSW Disability Services Act Review, Sydney, 2013, p.10
20
financial assistance to an individual, their nominated person, organisation or a
combination of these may include individual circumstances but also the contexts
and circumstances of service provision. This is not made clear in the Bill.
By omission from the listed reviewable decisions at Part 5, Division 5 of the Bill,
rejection of a person’s request for individualised funding over a block funded place
cannot be reviewed. NDS supports this position as an avenue for Government to
provide organisations, until the full implementation of the NDIS, with block funding
arrangements where it is necessary for their sustainability, and where the failure of
providers would have a negative impact on people who are in the target group and
who use the services concerned.
However, the current wording under Part 5, Division 2, Section 24.8(b) ‘Provision
of financial assistance’, exposes the Bill to a perception of paternalism and
intrusion into the civil liberties of individuals who are in the target group. Put
simply, it cannot be perceived that Government is impinging on an individual’s
rights and freedoms by making judgments about whether they are or are not
financially ‘trustworthy’.
Civil liberties are not threatened where a regulatory body makes decisions that are
for the greater good of the community, and that this is the intention should be
articulated.
Recommendation 22
That Part 5, Division 2, Section 24.8(b) be reworded to read “…the nature of the
supports to be obtained and the assessment of risks to the individual and their
community which might arise in providing financial assistance directly to the
individual.”
Human rights and agreements about financial assistance
It is important to keep the rights of people in the target group as the primary
consideration in the provision of financial assistance. In any agreement entered
into with a non-government organisation, it is vital that the rights of the persons in
the target group are considered first and upheld. This should be reflected in the
order of specifications required by agreements made by the Director General,
particularly with organisations, about the provision of financial assistance.
Recommendation 23
That at Part 5, division 2, 28.2(b), statement (v) be inserted as statement (i) to
reflect the importance of the human rights approach to this Bill.
21
Probity checks
People with disability continue to be at greater risk of neglect and abuse than
people without disability. At the same time, the NDIS foreshadows significant
changes for the disability workforce. Projections indicate that the demand for
disability support workers is likely to double, at a time of similarly increasing
demand for workers in the aged-care sector. This will see an intensifying of the
competition for skilled staff. Where workforce demand is high, organisations will be
under pressure in their recruitment processes, including those related to
background checks.
Simultaneously, workers will need to develop the skills required to support the
move to individualised planning, funding and supports. The ‘Ready Together’
framework and the NDIS will see increased delivery of services to people in
environments that are hard to regulate, such as people’s own homes and
community settings. Most individuals involved in supporting people with disability
are respectful, responsible and do the right thing. However such environments
may offer increased opportunity for abuse and exploitation of vulnerable
individuals. These changes reinforce the need to build safeguards into the system
at all levels to minimise risks. As such, this opportunity to improve responses to
abuse, as well as methods to reduce the risk of abuse occurring in the first place,
is important.
At present, there is no single national framework setting out the requirements for
obtaining Working With Children Checks (WWCC) or criminal history checks. Each
State and Territory has its own procedures, and there are significant differences
between them. In contrast to NSW, the ACT and Victoria carry out ‘working with
vulnerable people’ background checks. In the ACT, the working with vulnerable
people background check is presently being phased into law20. NDS members
have identified that a similar background screening process would be well
received by NSW disability service providers. Furthermore, several members have
expressed concern and frustration that the existing WWCC in NSW cannot be
used to bar offenders from working with vulnerable adults.
In NSW, the Disability Standards in Action state that the recruitment practices of
service providers must meet all probity requirements and make sure the ‘right’
workforce is recruited21. In the Bill, the probity requirements are that the
organisation must be satisfied that a new employee is a “suitable person” to be
involved in the provision of supports and services to persons in the target group
(Part 5, Division 3, Section 30.2). A criminal record check must also be obtained
(Part 5, Division 3, Section 30.3).
20
Australian Capital Territory, Working with Vulnerable People (Background Checking) Act 2013 21
Family and Community Services, Department of Ageing Disability and Home Care, 1998, NSW Disability Standards in Action, Standard 6, p.11
22
Any approach to probity checking for workers in the disability services sector
would benefit from being consistent throughout the country and the sooner such a
framework is introduced, the better. In the absence of a national framework and a
background checking process for working with vulnerable people in NSW, probity
checking for workers should remain compulsory in NSW during and following the
roll out of the NDIS. Recommendations for further safeguarding through screening
are provided in the ‘implementation’ section of this submission.
Recommendation 24
That, as a precautionary measure, reference to probity check requirements for
employees of disability support services remain as a legacy feature of the Bill until
a national process is established.
Suspending and terminating financial assistance
The draft Bill states at Part 5, Division 4, Section 31 that the Director General may
suspend assistance to individuals in the target group on grounds including where
the Director General ‘reasonably believes’ the person in the target group (or a
person on behalf of the person in the target group) is (i) no longer using the
supports and services or (ii) is obtaining the supports and services other than by
way of financial assistance. Similarly, at Part 5, Division 4, Section 32, termination
of financial assistance rests with the Director General’s reasonable belief of non-
compliance.
It is understood that this division of the draft Bill is intended at least in part to
provide for a person who is in the target group transitioning to the NDIS. As an
NDIS participant, an individual will no longer require funded disability support
through NSW. That facilitating this transition is the intention of this Part of the Bill
should be articulated. Without doing so clearly, Part 5, particularly around
suspending and terminating financial assistance, fails to be consistent with the
rights based objects of the Bill.
Recommendation 25
That at Part 5, Division 1, Section 22 Purpose of the Part should read:
“(1) The purpose of this part is to facilitate the provision of supports and services
to persons in the target group and to facilitate the transition of financial assistance
to persons in the target group from the Department in which this Act is
administered to the National Disability Insurance Scheme.
(2) The purpose is to be achieved by the provision of financial assistance directly
to individuals, or to eligible organisations (including the part of the Department in
which this Act is administered), for the purpose of providing supports and services.
(3) The financial assistance is to be provided during the transition to the National
Disability Insurance Scheme.”
23
NDS members have identified potential unintended consequences of the wording
of this division, the implications of which are significant and contrary to the stated
objects and principles of the Bill.
The example given in the draft Bill of a situation in which suspension of supports
and services may occur is during the hospitalisation of a person in the target
group. The public hospital system and its capacity to support people with disability
poses challenges and barriers to many, as identified in Case Example 2 on page
2. When in hospital, people with disability may require a level of support which is
equal to or of higher intensity than their everyday requirements. There is no
consistent practice across the state in determining how resources should be
supplied to support a person with disability in hospital appropriately. The NDS
paper referenced in Case Example 2 will describe numerous cases where required
supports and services have not been available and the consequences have been
significant for individuals, hospitals and disability service providers.
That the Director General must simply ‘reasonably believe’ that a person in the
target group is no longer using supports and services provides scope for financial
assistance to be suspended on grounds which are based in policy rhetoric and do
not reflect reality for people in the target group. NDS members expressed disbelief
that the example of hospitalisation had been used to describe the reasonable
suspension of financial assistance. Many service providers battle with this very
scenario on a daily basis. Many people with disability remain in hospital, are
neglected, are denied rehabilitation (physical and drug/alcohol related
rehabilitation examples were provided) based on inappropriate eligibility
assessments and a lack of capacity of rehabilitation staff. People with disability are
often discharged inappropriately because the health system is unable to
adequately support their needs.
To use the current example in the context of financial arrangements, until a
strategy for appropriate funds and supports is made available for people with
disability while they are hospitalised, the provision of financial support provided
under the Bill must be assessed according to each unique situation.
Recommendation 26
That the example of hospitalisation be removed from the Bill as it does not reflect
the reality of experiences of hospitalisation for people with disability accessing
funded disability services.
NDS members gave further examples of problematic consequences of the
proposed suspensions of financial assistance. Persons in the target group who are
in custody or incarcerated will, more likely than not, require extra support. If an
individual is incarcerated or hospitalised for a period of time from a group
24
supported accommodation environment, that accommodation will require ongoing
use of capital to continue to function.
The same may be assumed for service involvement for children and young people
who are in the Care of the Minister, and voluntary or involuntary users of mental
health services, for example.
NDS takes the position that “to obtain the supports and services other than by way
of the financial assistance” (Division 4, Section 3.11(a)ii) may allow services to be
suspended for people with disability who have active, supportive and involved
carers, family members and/or friends. In any effort to create an inclusive
community, carers, family and friends must also have their rights to participate fully
through employment and other pursuits respected. For these reasons too, use of
financial supports by people in the target group should not be generalised and
must be considered ‘case by case’.
It is a simplistic notion that financial assistance may be suspended and reinstated
for either an organisation or an individual without administrative consequences
and a ripple effect for many beyond the individual concerned. Members provided
NDS with several scenarios in which suspending financial assistance to an
individual or organisation, for the reasons outlined in the Bill would have serious
and negative consequences.
Case example 3:
An organisation provides support to Angela*. Angela has high and complex
medical and support needs. Staff have been recruited and trained specifically to
support Angela. For certain tasks, more than one support worker is required.
Angela lives in a group home.
When Angela experiences a health complication, she requires support from her
trained support workers in hospital. Angela’s group home still requires adequate
staffing to support the other residents. If, as the draft Bill allows, Angela’s financial
assistance is suspended while she is in hospital, not only does she not receive the
support she is entitled to during a period in one’s life where support is incredibly
important, but her group home also potentially loses a staff member who supports
other residents too.
For Angela’s support workers, their income becomes uncertain. The implication is
that they are without equivalent employment until her financial assistance is
reinstated. There is no indication about how long the administrative task of
suspending and reinstating financial assistance might take. Certainly, the burden
of doing so outweighs any savings suspending the service might make.
Angela’s specialist support workers, who have had their shifts rostered for over a
month, find their regular income suspended, and there are consequential
difficulties in their lives. There are further IR implications for Angela’s organisation.
25
Angela’s organisation and the other residents who share her home have been
adversely effected. Angela’s right to choice, control and participation in decisions
that affect her life have all been denied.
*Not her real name.
The expectation and assumption that the necessary support would be simply
picked up elsewhere is dangerous. It would be unfortunate for this provision in the
Bill to result in buck-passing between sectors or from ADHC to families and/or
carers.
As such, it is far more suitable to state that the Director General may suspend
assistance only where “the person in the target group no longer has use for the
supports and services” or “the supports and services are no longer necessary”.
Recommendation 27
That in Part 5,Division 4, Section 31.1(a) and Division 4, 32.1(a) be amended to
read “the Director General reasonably believes based on evidence” or “the
Director General can show that…” and Part 5, Division 4, Section 31.a(a)ii state
that “the person in the target group no longer has use for the supports and
services” or “the supports and services are no longer necessary”.
Financial assistance to promote the objects of the Bill
Peak bodies have an important role in promoting all of the stated objects of the
Bill. As such, it is appropriate that the Bill allows for financial assistance to be
provided to peak bodies for this purpose.
Recommendation 28
That at Part 5, Division 6.34(1) “… provide financial assistance to a government
department, local council or any other entities…” be amended to read “… provide
financial assistance to a government department, local council, peak body or any
other entities…”
Conclusion regarding Part five – financial arrangements
The draft Bill has brought attention to current and real concerns that service
providers hold regarding the interface of disability support with other Departments.
The concerns this submission outlines strengthen the argument for stronger
Disability Action Plans.
In articulating financial arrangements, the Bill fails to espouse the objects and
principles laid out in its introduction. The provisions in this part, particularly those
identified above, are not rights based and do not promote independence or
26
economic inclusion. Nor do they enable people with disability to exercise choice
and control. The language of the Bill is negative and excluding.
Recommendation 29
That Part 5 be reframed with a rights based approach to remedy its negative
language. For example, Division 4, Section 31.1 be replaced with:
1) The financial assistance under this Part, being provided to an eligible
organisation shall continue unless, by notice served on the person or eligible
organisation, financial assistance should be suspended because:
(a) the Director-General can show that the supports and services are no
longer necessary for the person in the target group.
Part Six - Restrictive Interventions
Feedback provided to NDS upon the initial round of consultation for the review of
the Disability Services Act suggested that members felt there is currently adequate
regulation and policy around restrictive practices in NSW. Members emphasised
that, given the gravity of the subject matter, reforms around the current system
cannot be rushed without significant work being done in consultation with
appropriate stakeholders.
NDS acknowledges that the intention of regulating restrictive practices is to
demonstrate the importance of careful thinking and reduction of the use of
practices which restrict, remove or impinge upon the human rights of individuals
with disability. This move also realises the need for care to be taken in engaging
certain behaviour support styles with all people with disability. However,
consultation showed that there remains significant apathy and concern at
legislating restrictive interventions as proposed in the Bill.
That the use of restrictive practices has been situated in a piece of legislation
which is aimed at addressing inclusion was regarded by members as ill-fitting,
perplexing and contradictory. In the manner Part 6 is presented, the objects,
principles and rhetoric of the Bill were felt to be lost. In the realms of restrictive
practices it is incredibly important that the approach taken is enabling, sensitive
and considerate of our person centred environment. Members were concerned by
the tone of the restrictive practices section of the Bill. For example, at Part 6,
Division 2, Section 1 (a) the Bill describes “strategies to help in dealing with the
person’s behaviour…” NDS refers to the Ageing and Disability Department
document published in 1997 regarding positive behaviour support for an example
of more positive and rights based language. For example, describing a positive
approach to an individual service plan as a plan designed in a collaborative way by
27
staff, the person with disability, families, advocates and/or guardians22. Such
nuance is lost in the Bill.
Restrictive practices as described in the Bill are characterised by exclusion,
segregation and necessary exceptions to upholding the human rights of people
with disability. In its current form, not enough has been done to shift the underlying
understandings of the purpose of restrictive practices and no emphasis has been
placed on the human rights of people with disability to whom this Part applies.
Restrictive practices are by their very nature highly invasive and excluding. They
apply to a small proportion of the disability population.
Recommendation 30
That the use of restrictive practices by disability service providers remain regulated
as it presently is, in government policy and procedure.
Existing regulation should be amended to include all people with disability.
Consideration should be given to how better to resource restrictive practice
procedures and how Government departments, local councils and private service
providers may understand and implement appropriate behaviour support.
Members were particularly disappointed that the Bill has been drafted with little or
no regard to the major concerns that were identified in the previous NDS
submission. These are identified in the following paragraphs.
Considerations for presence of restrictive practices in the
Disability Inclusion Bill:
NDS believes that, despite our position stated above, it is unlikely that restrictive
practices will be removed from the Bill. As such, this section of the submission will
outline the most important considerations that must be applied to any references
to restrictive practices that remain in the final version of the Bill.
The role of other environments in an inclusive community
From an historical perspective, disability legislation has only ever been concerned
with formal service provision by disability specific organisations. The overarching
goal of the Bill, on the other hand, is to recognise human rights and inclusion
outside disability services and throughout the whole community.
This Bill is intended to have impact beyond disability services by applying to all
government services and departments; an approach which reflects the reality of
22
NSW Ageing and Disability Department, 1997, The Positive Approach to Challenging Behaviour, policy and guidelines, Sydney, p.22
28
any individual’s interaction with their community. Yet, in its current form the Bill
would not subject any other government departments or funded services to the
same standards and rigour in how they support people with disability.
In order for any department, funded service or local council to be inclusive it, too,
must demonstrate the importance of reducing and thinking carefully about the use
of practices which restrict or remove the human rights of individuals with disability.
Therefore, further consideration needs to be directed outside the specialist
disability sector where restrictive practices may also be employed to support
people with disability. The Department of Justice, Health and Education and
Communities are primary examples, but all departments must be equally
responsible.
If the Bill is enacted in its current form, NDS predicts that inequity in standards and
practice will emerge that will undermine the achievement of a reduction in
restrictive practices across the community. There is dubious purpose in
introducing penalties for restrictive practices if behaving in a prohibited way only
applies in one of many settings.
There is merit in creating universal restrictive practice policies and procedures that
sit underneath any potential legislation and can be adhered to within all relevant
settings. Alternatively, DAPs should include responses to restrictive interventions
legislation. Educating the community and coordinating positive behaviour support
planning across settings would be integral to such an approach.
The inclusion of restrictive practices in the Bill has raised further questions of
consistency amongst NDS members. Namely, should restrictive practice
regulations apply in the family home? ADHC and other departments providing tier
two and three services are meant to provide support for all people with disability
who require it. Yet, this Bill will exist in context of a rationed system. There is no
guarantee at all that families will get the support they need to engage in a positive
approach to challenging behaviour. Similar to the failure to include other
departments and services in restrictive practice regulations, here lies an ethical
gap.
If these regulations do not apply in the family home, nor in settings outside of
specialist disability service provision, given that the premise of the Bill is about all
people with disability in all environments of the community experiencing access to
their rights and inclusion, the rationale for these gaps should be addressed.
Recommendation 31
That in all relevant divisions in the Bill regarding the use of restrictive practices and
positive behaviour support planning, “disability service provider” is replaced by
“service provider”.
That it is considered how these divisions might also apply to the NSW community.
29
Recommendation 32
That in the definitions at Part 1, Division 3 of the Bill, “service provider” be given a
definition which is inclusive of all environments to which the Bill aims to apply.
Children with disability and restrictive practices
One of the guiding principles of the Bill is that the special needs of children with
disability are respected. NDS acknowledges that the use of seclusion with a
person less than 18 years of age is prohibited in the Bill, but members argue that
this does not go far enough. Children with disability have different vulnerabilities,
exposure to different service settings and different clinical needs. There are also
added complexities in the role of the family and their right to parent their child with
disability in the manner of their choosing (within the boundaries of the law).
Lending emphasis to the discussion above regarding the role of other
environments, children with disability take part in early intervention settings, attend
therapies and go to pre-school, school, camps and after school care. The NSW
Government has identified that services for children are most beneficial when
provided in integrated environments along with a range of specialist supports and
early intervention services23. The Bill does not address how the rights and support
needs of children and young people will be met across this range of mainstream
settings.
The varied service settings in which children and young people with disability find
themselves demonstrate the necessity for an approach to restrictive practices that
acknowledges their different needs. The restrictive practices consent process
should vary from that of adults.
Recommendation 32
That further consultation take place regarding the appropriate processes for the
approval of restrictive practices for children and young people in varied service
settings.
Use of any restrictive practice in a positive behaviour support plan
The Bill fails to communicate that restrictive practices should never be the primary
or only approach to behaviour support. Proactive support and the continuous
development of positive behaviour support plans must be given emphasis.
23
NSW Government, 2013, Ability Links NSW Specifications and Guidelines, Sydney, p.7
30
Recommendation 34
That at Part 6, Division 3, Section 43 a provision be added at (a) stating “uses
positive behaviour support strategies as the primary approach.”
Defining chemical restraint
The distinction that the use of chemical substances for the purpose of influencing
a person’s behaviour and/or movement is a restricted practice unless it enables
the treatment of a diagnosed mental disorder, physical illness or physical
condition, as described in Section 38, is too vague. Its implication is that the use of
psychotropic medication is not considered a restrictive practice in the case of its
prescription in relation to a diagnosed condition.
As the definition stands, the prescription of any psychotropic medication, for
routine or episodic use, might never be subject to the rigour of another restrictive
practice where there is a formal diagnosis giving rise to this prescription. Members
report that clarity and guidance is crucial in this area. This was particularly the
case for regional and remote NSW where prescribing doctors may have less
experience working with people with disability in a person centred way due to
various regional health workforce drivers.
Members expressed that the use of psychotropic medication on a PRN or episodic
basis, as described in the current ADHC policy manual on behaviour support24
gives suitable and adequate guidance on what use of medication should be
considered as a restrictive practice. In the least, NDS members felt that the
definition in the Bill needed to be aligned with current policy.
Recommendation 35
That at Part 6, Division 1, Section 38 the definition of chemical restraint in the
context of restrictive practices is reconsidered in light of the existing ADHC policy.
In the least, a clause removing ambiguity regarding where the use of psychotropic
medication is and is not considered a restrictive practice in the case of existing
diagnosed mental disorder, physical illness or conditions.
Restricted practice authorisation panels
NDS acknowledges the importance of having no less than three participants sitting
on a restrictive practices panel. To limit restrictive practice panels to no more three
panellists, however, is prescriptive. Panel procedures need to be holistic and
flexible. Best practice should be captured in good practice guidelines.
24
Ageing, Disability and Home Care, 2009, Behaviour Support: Policy and Practice Manual, Part 1 (A) Behaviour Support Policy, p.25
31
Recommendation 36
Part 6, Division 2, Section 42.4 be amended to read “A Restricted Practice
Authorisation Panel consists of no less than 3 persons appointed by the Director-
General or disability service provider…”
Involvement of people with disability and those who are important to them in
the development and review of plans
Any restrictive practice must be part of a supportive plan and subject to
consultation and discussion with the person for whom the plan is being prepared
as well as their family and/or carers and significant people in their life.
Consultation with the person with whom the plan is being prepared and others
involved, including appointed Guardians, is probably the most important element
of this process.
Recommendation 37
That Part 6, Division 3, Section 43.3 be amended to read
“In developing a behaviour support plan, the service provider must consult with:
(a) the person in the target group with whom the plan has been prepared,
(b) if a person other than the person with whom the plan has been prepared must
give a consent to the use and form of seclusion or restraint – that person,
(c) the family and/or carer/s of the person with whom the plan has been developed
and
(d) other persons specified as appropriate persons with whom a service provider
must consult in reviewing a plan.
Recommendation 38
That at Part 6, Division 3, Section 43, Point (5) be moved to position (1) under
Section 44.
Recommendation 39
That at Part 6, Division 3, Section 44.4 “A person for whom a behaviour support
plan has been prepared [add - , a person they have nominated or the person’s
guardian] may at any time ask the disability service provider to review the plan.”
Recommendation 40
To align with the above recommendation regarding Section 43, that Part 6,
Division 3, Section 44.5 be amended to read:
32
“In reviewing a behaviour support plan, the service provider must consult with:
(a) the person in the target group with whom the plan has been prepared,
(b) if a person other than the person with whom the plan has been prepared must
give a consent to the use and form of seclusion or restraint – that person,
(c) the family and/or carer/s of the person with whom the plan has been developed
and
(d) other persons specified as appropriate persons with whom a service provider
must consult in reviewing a plan.”
Use of restraint on person under 18 years of age
The general principles of this Bill identify that people with disability have the right
to participate in decisions which affect their lives, including those involving risk. So,
too, do the principles identify that children with disability have the right to respect
as equal members of the community. Part 6, Division 3, Section 46 is incongruous
with these principles.
To be involved in obtaining consent for the use of restraint on a person who is
under eighteen years of age, a child or young person must be, according to the
Bill, over sixteen, not in need of a legally appointed guardian and not subject to
any parental responsibility orders. By omission, there is no requirement that a
person under the age of eighteen must be consulted or even participate in
decisions about the use of restrictive interventions. Division 3, Section 46 is a
good example of where the language and content of this Bill may be strengthened
to be more consistent with its purpose of inclusion and acknowledgment of rights.
In keeping with the principles of the Bill, and to ensure that all children and young
people participate in decisions which affect their lives, a provision similar to that
contained in the Children and Young Person’s (Care and Protection) Act 1998,
Section 10 should be added. Such provisions don’t mean the young person who is
a person in the target group necessarily gets the outcome that they want, but
means they have a voice in the process.
Recommendation 41
That a provision is added in Part 6 of the Bill stating:
“To ensure a child or young person is able to participate in decisions regarding
restrictive practices under this Act, the young person must be provided with
(a) adequate information, in a manner and language that he or she can
understand, concerning decisions to be made,
(b) the opportunity and support to express his or her views according to his or her
abilities,
(c) information about how his or her views may be taken into account and (d)an
opportunity to respond to the decision made under this Act.”
33
Schedule Four - Amendment of the Ombudsman
Act
The empowerment of the NSW Ombudsman as an impartial and independent
watchdog in monitoring incidents of abuse and neglect demonstrates consistency
with the Bill’s principle that “people with disability have the right to live free from
neglect, abuse and exploitation” (Part 1, Division 2, Section 4.7).
NDS welcomes the clear definition for a ‘reportable incident’ provided in the Bill. In
its current form, the Bill’s introduction means that NSW joins Western Australia as
the other only jurisdiction in Australia providing a pathway between the
management of reportable incidents and an independent state body.
Overall, NDS members considered the changes to the Ombudsman Act to be a
positive initiative. The introduction of mandatory reporting of certain issues
represents a much needed change in approach. Feedback focused on the need
for a clear avenue for service providers, particularly those based in regional or
remote areas (in some cases as a sole provider), to pursue reportable incidents.
NDS members welcomed the investigative powers granted to the Ombudsman in
the Bill. The decision not to limit who is able to file a complaint leading to the
investigation of a reportable incident was also endorsed by NDS members. This
represents best practice in complaints handling and provides a contrast to other
Australian jurisdictions which all place limitations on the way complaints may be
received.
In order to ensure that maximum protection can be achieved within the framework
provided, NDS has prepared a range of recommendations to strengthen this
section of the Bill.
Reportable incidents and supported accommodation
There is a need to ensure that the definition of ‘supported accommodation’ (Part 4,
Section 19.1) is amended to ensure that the Ombudsman’s investigative powers
are not unduly limited. As addressed, this definition covers only a portion of the
supported living arrangements available to people with disability.
NDS members are concerned that the proposed protections may not extend to
people with disability who are most vulnerable. For instance, an individual with
disability who is not engaged with formal accommodation or centre based support
may be at higher risk than people with disability who receive comprehensive
residential care. Limited service engagement by a person with disability can
significantly reduce the opportunity for instances of abuse or neglect to come to
light. This is particularly applicable to individuals with disability who are isolated
from their community. Members are hopeful that the forthcoming national
34
framework addresses this issue and that Recommendation 22 of this submission
is accepted.
Notification period
NDS is concerned that the period in which a Director-General or principal officer of
a service provider “must give the Ombudsman notice of a reportable allegation or
reportable conviction of which… [they] become aware” is mistaken. In its current
form, the Bill has this period listed “as soon as practicable, but not less than 30
days, after the Director-General or principal officer becomes aware of the
reportable allegation or reportable conviction” (Schedule 7, Section 4B, 25 3(a)).
This section also allows for a later date to be negotiated with the Ombudsman.
NDS members felt that this time period, in effect over a month in every case, is
unacceptable.
The time-line provided in the Bill does not reflect the same degree of urgency in
mandatory reporting when compared with other Australian jurisdictions. For
instance, under Victorian guidelines, service providers are required to report on
incidents within one to two days, in Western Australia the timeline is seven days25.
NDS believes that the seriousness of abuse and neglect should be reflected in the
reporting timeframes and brought into line with other jurisdictions.
Recommendation 42
That the clause at Schedule 7, Section 4B, 25N 3(a) be amended to read: “as
soon as practicable, but not more than 2 days, after the Director-General or
principal officer becomes aware of the reportable allegation or reportable
conviction.”
Transition to the NDIS
As expressed in discussion of financial arrangements in this submission, NDS is
keen to ensure that mechanisms for reporting abuse and neglect continue to exist
until safeguards under a national framework are implemented. This will ensure that
the rights of people with disability are maintained while the sector transitions to the
NDIS and a new approach to service delivery and safeguards is fine-tuned.
Recommendation 43
That it is clarified whether the Schedules of the Bill are transitional or legacy, and
that the amendments to the Ombudsman Act are maintained until equivalent
guarantees and safeguards are enacted under a national framework.
25
Critical Client Incident Management Instruction; Western Australia: Disability Services Commission (2013)
35
Recommendations for the Bill from the Ombudsman
NDS understands that the submission forthcoming from the NSW Ombudsman’s
office will contain the following recommendations:
that the casual workforce operate under the new powers recommended for
the Ombudsman,
that reportable incidents feed into probity checking systems in the style of a
working with vulnerable people check, and
that ‘serious unexplained injuries’ is added to the meaning of ‘reportable
incident’ at Schedule 4, Part 3B, Section 25L.
NDS supports these recommendations and refers to the Ombudsman’s
submission for more detail.
36
Implementation
This submission has thus far concentrated on recommending changes which will
strengthen the Bill. To support these amendments and the achievement of positive
outcomes, the following recommendations relate to the implementation of the
Disability Inclusion Bill once it is enacted.
Disability Planning
In implementing DAPs which are successful in breaking down barriers to inclusion,
dedicated resources for each local council and government department will be
necessary.
Recommendation 44
That the regulations outline how resourcing will provide for the effective
implementation of disability action planning.
Beyond background screening
Part 5, Division 3, Section 30.6 states that the regulations may make provisions
relating to “…the use of a statutory declaration to verify a person’s criminal record
when a criminal record check cannot be conducted or obtained...” NDS
acknowledges that for some employees criminal record checks are not possible or
effective. For example, a new employee may have recently moved to NSW from
overseas.
A statutory declaration on its own does not verify a person’s criminal record or
‘suitability’. In the regulations, those cases where the use of statutory declarations
under the new Bill are to be applied should be clearly defined.
Recommendation 45
That the regulations clearly define the conditions under which statutory
declarations suffice as probity checks in place of criminal record checks and/or
Working With Children Checks. Measures to ensure a check is carried out as
soon as possible should be articulated.
Screening alone does not suffice and needs to be coupled with policy and practice
development for safe environments, and robust accountability frameworks for
responding to allegations. Outside of criminal record checks and the WWCC, it will
be important that employees are recruited, selected and appointed through
transparent, accountable and robust processes. Practice guidance and support
materials should be maintained in order to make the concept of a ‘suitable person’
for service providers practical and achievable. An example of such practice
guidance is NDS’s “Zero Tolerance: preventing and responding to abuse and
37
neglect of people with disability accessing services” project, which commenced in
July 2013.
The Zero Tolerance project is developing a practical framework, with resources for
service providers, based on prevention, early intervention and remediation of
cases of abuse and neglect involving people with disability within service settings.
The project seeks to increase service providers’ understanding of best practice in
a range of settings through which to recognise, prevent and respond to abuse and
neglect of people with disability.
It is anticipated that this project will contribute to the development of national
approaches to safeguards within the disability sector that better protect the rights
of children, young people and adults with disability, as well as their families and
carers.
Recommendation 46
That regulations are maintained which identify good practice guidelines for
prevention, timely intervention and remediation of abuse and neglect, such as
deliverables from the NDS Zero Tolerance project as well as others.
The suspension of financial assistance
To circumvent potential negative impacts on people with disability and the
specialist services support them that might result from the suspension of financial
assistance, further clarity is required on the implementation of this section of the
Bill.
Recommendation 47
The regulations must outline a substantial minimum timeframe that must lapse
before a suspension of financial assistance can be applied.
Termination of financial assistance
It is proposed at Part 5, Division 4, Section 32.1 that where the Director General
reasonably believes non-compliance has occurred financial assistance may be
terminated.
As identified, there are likely to be individuals receiving funded supports via ADHC
who will not be eligible for the NDIS. When ADHC completes its withdrawal from
service provision these individuals will turn to the departments of Community
Services, Housing, Justice, Health and Education and others to support them.
Terminating support from a person who is in the target group is an important
decision. Such a decision must be taken with robustness of thought and care in
38
order to uphold the principle of continuity of support to which NSW has
committed26.
Any individual who is not eligible for the NDIS must be satisfied that they are
receiving adequate support outside of ADHC and in the community before
supports and services may be terminated. The regulations must prescribe how
NSW will ensure this continuity of support.
Recommendation 48
That the regulations articulate how NSW will provide continuity of support to
people with disability who are receiving funded support through ADHC but will not
be participants of the NDIS.
The resourcing implications of regulated restrictive interventions
To influence positive change in the community, there must be full acknowledgment
of the resource allocation that compliance with such regulation involves.
Referral pathways and processes need to be properly established. There are
significant costs associated with positive behaviour support planning. Specialists
must be sourced and funded to sit on restrictive practice authorisation panels. As
flagged in NDS’s initial submission, attempting to reduce the use of restrictive
practices risks a ‘bottle neck’ of applications waiting for assessment, delays and
negative consequences for people with disability. This is particularly relevant for
the rural and remote application of the Bill. How behaviour support is to be
managed in the interim period between planning and approval is not addressed.
Recommendation 49
That regulations and practice guidance articulate resourcing, referral pathways
and processes for implementation of Part 6.
Data collection on the efficacy of regulated restrictive interventions
The purpose of this section of the Bill is to reduce the use of restrictive practices.
In consultation, members sought detail around the type of scrutiny that would
follow regulation. NDS suggests that in order to ensure over time that the legal
regulation of restrictive interventions is having the desired effect, it is important to
establish baseline data on current levels of restrictive practices. Indeed, the
UNCRPD at Article 31 states that state parties are required to collect appropriate
information, including statistical information, which will enable the formulation and
implementation of policies which give effect to the Convention. 26
Intergovernmental Agreement on the NDIS Launch, Schedule A: Bilateral Agreement for NDIS Launch between the Commonwealth and New South Wales, Part 3, 10, 2012, p.2 and on http://www.ndis.gov.au/participants/continuity-support
39
Recommendation 50
That the NSW Government establish baseline data and a data collection and
monitoring strategy that will allow analysis and improvement of this law over time.
Implementing restraint or seclusion in an emergency
It is important in making an exception to the rules regarding restrictive
interventions, that care and exacting language is used. The very presence of
restrictive interventions in the Bill, by the explanation provided in the Information
Booklet, speaks to the seriousness with which the NSW Government regards their
use.
With this in mind, NDS is concerned that without further clarification Part 6,
Division 3 Section 49(b) leaves far too much room for interpretation of the phrase
“serious physical harm” in employing restraint or seclusion in an emergency.
Recommendation 51
That training is made available for workers involved in positive behaviour support
providing skills in judgement calls on emergency use of restrictive interventions.
Implementation of prescribed criminal offences requirements
Grey areas exist where criminal offences aren’t prescribed however do effect
suitability for employment.
For example, the Bill does not recognise financial crimes such as fraud as a
prescribed criminal offense. Given the vulnerability of some people with disability,
such an inclusion should be considered, or guidance material made available.
Similarly, if a role involves a significant amount of driving, service providers must
consider the relevance of repeated dangerous or negligent driving offences which
do not reach the threshold of being proscribed.
Recommendation 52
That practice guidance is published giving detail to the appropriate implementation
of this schedule.
Implementation of safeguards additional to the amendments to the
Ombudsman Act
Guidelines should provide advice around measures to implement or enhance
broader safeguards than those introduced in the Bill. This could include reference
to the NDS Zero Tolerance project, information around the Community Visitors
Scheme and client-led evaluations.
40
The existing Community Visitors Scheme has been identified as an effective
mechanism for the independent review and monitoring of vulnerable people. As
discussed in our submission to the initial review of the Disability Services Act, NDS
members have provided consistent feedback that the scheme is an important
feature of the overall service delivery environment, citing its independence as key
to upholding the rights of people with disability.
NDS suggests that the guidelines address the use of client-based reviews of
disability services. It is the firm view of NDS that, in a person centred world,
complaints handling should occur amongst those closest to service delivery. Such
an arrangement should be a natural consequence of truly personalised services
and supports.
This approach could take the form of client-to-client evaluation. An example of this
approach, ‘The Q-Kit’ has been rolled-out in the United Kingdom through an
initiative led by Southdown Housing. The program provides a forum for specially
trained service users to talk with their peers as a means of feeding back quality
around service delivery and quality concerns27. This form of safeguard provides a
sensitive model for identifying environments in which reportable incidents may
occur and complements a person centered approach.
Recommendation 53
That guidelines are maintained which detail resources for the implementation of
additional safeguarding procedures.
Implementation of the Disability Inclusion Bill through education and
awareness
Extensive education in government departments, local councils and the wider
community about the Disability Inclusion Act and its objects and principles will be
necessary following its enactment.
In particular, the Department of Family and Community Services should consider
the provision of training workshops to ensure that bodies are sufficiently equipped
to develop and implement meaningful DAPs.
Recommendation 54
Extensive education and training is implemented with all relevant stakeholders
following enactment of this Bill.
27
Southdown Housing, ‘The Q-Kit’, viewed online at http://www.southdownhousing.org/services/learning-disability-support/the-q-kit/ 13 February 2014.
41
Conclusion
The NDIS and its revolution of the disability service sector is critical to improving
the inclusion of people with disability. In NSW, so too is the transfer of
responsibility for supporting people with disability to government departments and
local councils beyond ADHC. To create an environment of inclusion in the NSW
community, these reforms must be guided by considered resourcing and coherent
overall strategies.
While the NSW Government is withdrawing from disability service provision, its
responsibility to ensure the inclusion of people with disability remains unchanged.
Much work is needed, as identified by the examples throughout the submission, to
ensure that people with disability are appropriately supported in the mainstream by
government departments and local councils in the mainstream. NDS members are
not satisfied that this is adequately reflected in the Bill.
NDS members are ardent in their belief that while the conceptual foundation of the
Bill is positive, there are parts which are misplaced and inappropriate and the
language does not communicate in the manner of the Bill’s own objects and
principles. Of particular concern are Parts Five and Six, for which detailed
comments and analysis are provided.
This submission has made recommendations which will strengthen the Bill and
better align it with its philosophical underpinning. It is important that these
recommendations are implemented. The best possible implementation will
contribute to meaningful citizenship for our whole community.
In this context, a ‘top-down’ approach cannot be the whole answer. The translation
of the policy driven goal of inclusion into reality is also about cultural change. This
is a story of ongoing work and a thorough process of conversation, advocacy and
education. Continuing consultation with people with disability, the disability
services sector and peak bodies on the state of inclusion and the efficacy of the
Bill will be essential in achieving positive outcomes.
about national Disability services
National Disability Services is the peak body for non-government disability services. Its purpose is to promote quality service provision and life opportunities for people with disability. NDS’s Australia-wide membership includes more than 900 non-government organisations, which support people with all forms of disability. NDS provides information and networking opportunities to its members and policy advice to State, Territory and Federal governments.
contact inFormation
Scott Holz NSW State Manager National Disability Services 02 9256 3118 scott.holz@nds.org.au
nDs.org.au
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