Disability Services Act Review July 2018 · Web viewThis approach removes the need for a definition of disability, an issue raised by the Guardianship and Administration Board in

Review of the Disability Services Act 2011REPORT OF THE REVIEW COMMITTEE

29 June 2018

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Table of ContentsEXECUTIVE SUMMARY.............................................................................................................................4

Structure and approach of this report.................................................................................................4

Strategic themes and recommendations.............................................................................................5

Stakeholder requests...........................................................................................................................7

1 PURPOSE OF THE REVIEW................................................................................................................8

Operational effectiveness in the delivery of safe, quality services......................................................8

Interoperability with other Tasmanian legislation...............................................................................8

Legislative issues during transition to the National Disability Insurance Scheme................................8

2 BACKGROUND TO THE ACT..............................................................................................................9

3 REVIEW COMMITTEE.....................................................................................................................10

Terms of Reference...........................................................................................................................10

Review Committee membership.......................................................................................................10

4 METHODOLOGY FOR MEASURING PERCEPTIONS OF INTERESTED PARTIES..................................12

Information processes.......................................................................................................................12

Consultation processes......................................................................................................................13

Summary of consultations.................................................................................................................14

5 CURRENT STATE OF PLAY...............................................................................................................16

National Disability Insurance Scheme................................................................................................16

National Quality and Safeguarding Framework.................................................................................16

National Quality and Safeguards Commission...................................................................................16

Impact of current Review..................................................................................................................17

6 STRATEGIC THEMES AND RECOMMENDATIONS...........................................................................18

Operational effectiveness in the delivery of safe, quality services....................................................18

Interoperability with other Tasmanian legislation.............................................................................21

Legislative issues during transition to the NDIS.................................................................................21

Issues out of scope of this Review.....................................................................................................21

Other issues.......................................................................................................................................23

7 MATRIX OF STAKEHOLDERS REQUESTS.........................................................................................24

Matters for the current Review.........................................................................................................24

Matters for consideration in the future review.................................................................................24

Matters addressed by the NDIS/NQSF...............................................................................................24

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Other action......................................................................................................................................24

No action...........................................................................................................................................24

Issues outside the scope of this Review............................................................................................24

APPENDIX 1 – REVIEW COMMITTEE TERMS OF REFERENCE.................................................................40

APPENDIX 2 – SCHEDULE OF PUBLIC CONSULTATIONS........................................................................42

APPENDIX 3 – ISSUES OUTSIDE SCOPE OF REVIEW...............................................................................43

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EXECUTIVE SUMMARY

The Disability Services Act 2011 (the Act) commenced in January 2012. Section 53 of the Act stipulates that an independent review must be undertaken “as soon as practicable after the third anniversary of its commencement”.

The third anniversary fell at a time of considerable change in disability services nationally and it was agreed to delay the review. Major changes include the rollout across Australia of the National Disability Insurance Scheme (NDIS) and the development of the National Quality and Safeguarding Framework (NQSF).

In July 2017 the Minister for Human Services (now Minister for Disability Services and Community Development) endorsed a recommendation for the Disability Services Act 2011 Review to proceed with a focus on its operational effectiveness since implementation. Specifically, the Review was to consider:

the operational effectiveness of the Disability Services Act 2011 since implementation

interoperability of the Disability Services Act 2011 with other legislation

issues with the Disability Services Act 2011 which have arisen as a result of the Tasmanian Bilateral Agreement for transition to the National Disability Insurance Scheme.

To initiate the review, the Government convened a Review Committee (the Committee) with wide representation. In addition to responding to the Terms of Reference (Appendix 1), the Committee sought to establish how well the Act has delivered, or not delivered, benefits to people living with disability.

The Committee commissioned an independent consultant, Fae Robinson, Principal Consultant, Fae Robinson Futures to conduct public and stakeholder consultations, analyse feedback, and assist the Committee to prepare a Review report for the Minister. A Stakeholder Engagement Plan provided a wide range of opportunities for interested parties to engage with the Review.

Structure and approach of this reportSections 1 – 5 of this Report provide the context of the review: Purpose, Background, Review Committee, Methodology and Current State of Play.

Section 6 provides the Strategic Themes and Recommendations. The themes are a range of issues that emerged from the consultations which have impact on the legislation and/or the experience of people with disability. There are 19 recommendations.

Section 7, Matrix of Stakeholder Requests, has two functions: it presents stakeholder requests for change aligned with relevant sections of the Act; and provides a roadmap for their consideration as follows:

What can be done legislatively in the short term under this Review?

What needs to be considered in a future review?

What needs to be considered once the NDIS is fully implemented?

Issues requiring no further action, non-legislative action or that fall outside the scope of this Review.

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Strategic themes and recommendationsOperational effectiveness in the delivery of safe, quality services

Theme 1: Interpretation and Principles

1. Amend the Disability Services Act 2011 to harmonise definitions with those in the NDIS Act 2013.2. Align the Disability Services Act 2011 with the Convention on the Rights of Persons with Disabilities

and other international obligations.

Theme 2: Inclusion and control in planning and reporting

3. Develop consultation policies that deliver comprehensive and genuine engagement with people with disability, taking full account of their needs and circumstances.

4. Ensure appropriate, inclusive engagement with people with disability is included in future disability services legislation.

Theme 3: Protection, compliance and accountability

5. Work with the Quality and Safeguards Commission’s Complaints Commissioner to ensure they are acting in the interests of people with disability in Tasmania in a timely manner.

6. Ensure workers in the disability sector in Tasmania are held accountable to an appropriate Code of Conduct.

Theme 4: Role of Senior Practitioner

7. Amend the Disability Services Act 2011 to articulate recognition that the role of the Senior Practitioner is to act independently in relation to matters under Division 4 of the Act – ‘Investigations and directions’

8. Ensure the independence of the role of the Senior Practitioner is prioritised in the development of new disability services legislation and is in alignment with the role of the Senior Practitioner outlined in the NDIS Quality and Safeguarding Framework.

Theme 5: Restrictive interventions

9. Insert an authority under the Disability Services Act 2011 to allow interim authorisations for restrictive interventions to be granted subject to appropriate safeguards.

Theme 6: Information sharing

10. Amend the Disability Services Act 2011 to improve the scope and effectiveness of information-sharing provisions.

Theme 7: Children and young people

11. Publish and disseminate information, including a Fact Sheet, that clarifies how children with disability are included in the Act, having regard to international obligations (Convention on the Rights of the Child and Convention on the Rights of Persons with Disabilities) to children and young people.

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Interoperability with other Tasmanian legislation

Theme 8: Legislative alignment

12. Clarify the scope of the Disability Services Act 2011 in relation to children with disability in different settings, for example, home, school.

Legislative issues during transition to the NDIS

Theme 9: Individual plans

13. Review and revise approval processes at sections 11(2)(b) and 12(4) of the Disability Services Act 2011 to ensure the policy framework of ‘choice and control’ replaces the need for approval of plans by the Secretary or any other entity.

Issues outside scope of the Review

Theme 10: Support for advocacy

14. Work to ensure independent advocacy, inclusion and support organisations continue to be viable and meet the needs of people with disability.

Theme 11: Worker training

15. Continue to invest in education, training and capacity building for disability support workers in Tasmania.

Theme 12: Communication and education

16. Develop and implement a targeted stakeholder engagement strategy that builds understanding of the protections, possibilities, authorities, and responsibilities conferred under the Disability Services Act 2011.

Theme 13: Client experience during transition

17. Provide feedback to the National Disability Insurance Agency about participants’ experiences during the transition process to the NDIS.

Theme 14: Planning for the future

18. Work with stakeholders to ensure services are delivered in line with the requirements of the National Disability Strategy 2010-2020 and Accessible Island: Tasmania’s Disability Framework for Action 2018-2021.

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Stakeholder requestsThe Matrix of Stakeholder Requests provides a detailed approach to addressing short, medium and longer-term issues raised in the consultations across five categories:

Matters for action in the current Review

Matters for action in a future review (planned once the NDIS is fully implemented)

Matters expected to be addressed by the NDIS/NQSF

Other actions

No action.

19. Consider and implement as appropriate, the recommended actions set out in the Matrix of Stakeholder Requests.

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1 PURPOSE OF THE REVIEW

The Review was tasked with understanding three issues:

a. The operational effectiveness of the Disability Services Act 2011 (the Act) since implementation

b. Interoperability issues between the Act and other legislationc. Immediate legislative issues resulting from transition to the National Disability Insurance

Scheme (NDIS).

Operational effectiveness in the delivery of safe, quality servicesThe Act is underpinned by a set of Principles which provide the framework for the delivery of services to people with disability. A key motivating factor for the review of the Act was to establish how well it supports the effective delivery of safe, quality services based on these Principles. The Review process sought stakeholder feedback on how well services funded under the Act:

promote the needs and best interests of people with disability consider individual wishes in decision-making provide respect, dignity and independence are well-coordinated and of high quality protect people’s safety and wellbeing provide the best rules for when behaviour needs to be limited or restrained.

Interoperability with other Tasmanian legislationThe Act interacts with a range of other Tasmanian legislation, some of which are specifically identified:

Guardianship and Administration Act 1995 Children, Young Persons and Their Families Act 1997 Mental Health Act 2013 Obstetric and Paediatric Mortality and Morbidity Act 1994 Poisons Regulations 2008

The Review sought feedback on how effectively these laws align and work with each other, and whether changes are required to improve the operation of the Act.

Legislative issues during transition to the National Disability Insurance SchemeMost individuals funded under the Act have transitioned, are in the process of transitioning, or will transition to the NDIS by 1 July 2019. The Review sought stakeholder feedback on how well those experiencing these changes are being, or have been, supported by the 2011 Tasmanian Act.

Only immediate legislative issues that have emerged during the transition to the NDIS to date were included as part of this Review. Following full transition to the NDIS a more substantial review of the Act will be conducted.

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2 BACKGROUND TO THE ACT

The Disability Services Act 2011 reflects a major shift in the national and international policy framework and service delivery approach for people with disability. The Fact Sheet for the Disability Services Bill 2011 describes its predecessor, the Disability Services Act 1992, as “outdated” and goes on to describe the 2011 Bill as bringing “the provision of specialist disability services into line with contemporary practice and thinking. It reflects up-to-date policy and practice; increasing safeguards for people with a disability and ensuring that services provided are the best possible response for those with the greatest needs.”1

The Disability Services Act 2011 primarily provides the framework for funding service providers, researchers and individuals with disability, and for approval and conduct of restrictive practices. It specifically relates to specialist disability services either funded or provided by the Department of Health and Human Services (DHHS). It is supported by the Disability Services Regulations 2015 which are aligned with the National Standards for Disability Services.

The 2011 Act addresses the policy and service delivery changes by:

reflecting broader human rights perspectives revising the definition of disability to place greater emphasis on the impact of the impairment

and recognition of disability arising from cognitive impairment regulating standards specifying roles and responsibilities of Government and funded organisations introducing approval processes and safeguards for the use of restrictive interventions providing flexible funding arrangements introducing planning and reporting requirements at an individual, service and systems level.2

The Act began operating on 1 January 2012 and has been operating for six years. During this time the National Disability Insurance Scheme Act 2013 (NDIS Act) has been legislated and the NDIS progressively rolled out in Tasmania. Full implementation will be completed by July 2019. These changes move responsibility for the delivery of most services from the states and territories to the Australian Government and alter the funding regime in Tasmania from a largely block funded approach for services, to individual funding that provides people with choice and control of the support and care they need to help achieve their goals and aspirations.

The implications of these changes are yet to be fully understood in the Tasmanian context. Once the NDIS is fully implemented in Tasmania, it is planned to conduct a second review to guide the Tasmanian Government in developing the next iteration of legislation for the delivery of disability services in Tasmania.

1 Department of Health and Human Services, undated, Disability Services Bill 2011 Fact Sheet, pp 1-22 ibid

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3 REVIEW COMMITTEE

The Government appointed a Review Committee to provide impartial advice to the Minister for Human Services (now Minister for Disability Services and Community Development). The Committee had the support of a private consultant who consulted with people who require and access disability services, members of organisations that administer these services and stakeholders with specialised knowledge of the Act and/or experience with people with disability.

Terms of ReferenceThe Committee agreed the following Terms of Reference:3

Purpose

The purpose of the Review Committee will be to consider and provide advice on: a. the operational effectiveness of the Disability Services Act 2011 since implementation b. interoperability of the Disability Services Act 2011 with other legislation c. issues with the Disability Services Act 2011 which have arisen as a result of the Tasmanian

Bilateral Agreement for transition to the National Disability Insurance Scheme (NDIS).

Role and functions

1. Approve and direct a consumer and communication engagement plan relating to the Review.

2. Inform and enable a methodology for measuring the perceptions of interested parties, e.g. survey and consultation. This must include methods which will assist in the active participation of individuals with disability in the Review.

3. Consider issues arising from the consultation process and provide a written report to the Minister for Human Services addressing:

the operational effectiveness of the Act since implementation interoperability issues between the Act and other legislation immediate legislative issues resulting from transition to the NDIS.

4. It is anticipated that a further review of the Act will be required to reflect legislative requirements in an environment where a full scheme NDIS is in operation. These requirements are out of scope for this Review but will be noted for future review.

5. The Review Committee will be supported in its work by an appropriately experienced consultancy.

Review Committee membershipThe Terms of Reference required the Review Committee to be made up of:

A consumer representative through the Minister’s Disability Advisory Committee (MDAC) A provider representative through National Disability Services Tasmania A representative of advocacy services through one of the three funded advocacy

organisations The Senior Practitioner

3 Department of Health and Human Services 2017, Disability Services Act 2011 Review: Review Committee Terms of Reference

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A representative of Disability and Community Services A representative from the Department of Justice Ex-officio support by DCS

Committee Members

Barbara Hingston (Chair) Health, Mental Health and Social Services;

Member of MDAC

Donna Bain Self Help Workplace (provider representative, National Disability Services Tasmania)

Karen Renetzeder Department of Justice (replaced by Sonia Weidenbach)

Jane Wardlaw Consumer representative

Jenny Dixon Speak Out Advocacy (advocacy organisation)

Natasha Street MDAC (consumer representative)

Ingrid Ganley Disability and Community Services

Charley Hodgson Senior Practitioner

Bruce Paterson DHHS – Legislative Review and Legal Support

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4 METHODOLOGY FOR MEASURING PERCEPTIONS OF INTERESTED PARTIES

The Review provided a range of opportunities for people across Tasmania to contribute their views about the Act. This was summarised in the Stakeholder Engagement Plan.

Significant efforts were made to connect with people with disability who use specialist disability services, their families and carers, and providers of specialist disability services, to understand their experience of the Act, how well it delivers safe, quality services, aligns with other legislation and supports transition to the NDIS.

Information processes brought the Review to the notice of stakeholders and set out the options for written submissions, face-to-face consultations, online survey and/or direct contact with the consultant.

Six consultations were conducted in the north-west, north and south of the state with people with disability, their families and carers, service providers, and the public.

Information processesStakeholder information session

A range of stakeholders with experience in legislative matters relating to people with disability were invited to an information session to ensure as many people as possible with an interest in the Review were informed about it. The session encouraged engagement with the disability sector in Tasmania and sought support in promoting the Review across stakeholder networks. Stakeholders at this session included representatives from:

Mental Health Tribunal Guardianship and Administration Board Equal Opportunity Tasmania Legal Aid Commission Advocacy Tasmania Commissioner for Children and Young People

Scoping paper

The Review was supported by a Scoping Paper which provided a brief background to the Act, an overview of the context of the review and a summary of the processes available to contribute views, opinions and ideas. The Paper was developed to enable informed engagement with the disability sector in Tasmania, to generate discussion, and encourage participation in the Review.

Webpage

A dedicated webpage was posted on the DHHS website to explain the Review and provide access to the Scoping Paper and the online survey. Email contact details were also available.

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Social media

DHHS used social media networks such as Facebook and Twitter to publicise the Review and opportunities to participate.

Call for submissions

Advertisements were placed in the three Tasmanian daily newspapers – The Mercury, The Examiner and The Advocate – inviting participation in the Review, via written submissions, attendance at consultations in Hobart, Launceston and Devonport or by completing the online survey. Consultant contact details were also available.

Consultation processesStakeholder meetings

The Review Committee and MDAC provided expert input to the Review in dedicated discussions with the consultant at the beginning of the consultation process. These provided a diversity of experience and opinions that helped to inform the consultations with people with disability, their families and carers, service providers and the wider community.

The consultant also met with the Interim Commissioner for Children and Young People and two members of his staff. The discussions considered the impact on, and applicability of the Act to, children and young people.

At the conclusion of the consultation process, an expert stakeholder roundtable was convened to provide input to the assessment and evaluation of the information gathered. Attendance at this roundtable included representatives of:

Carers Tasmania Department of Education Equal Opportunity Tasmania Ombudsman and Health Complaints Commissioner Commissioner for Children and Young People Baptcare

This group noted their concern about the limited number of people who had participated in the Review process (refer also to A note about numbers on page 13).

Disability and Community Services staff consultation

Disability and Community Services staff provided practical insights and on-ground experience of the Act. Staff from the north-west, north and south of the State participated in the consultation.

Consultations with people with disability, providers and public

Six community consultations were conducted – two in Devonport, two in Launceston and two in Hobart. Participants included people with disability, service providers and advocates, training providers, members of the public and DCS staff members. Stakeholders on the West Coast of Tasmania, and on King Island

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were also given the option of a videoconference consultation but this was not taken up. The Schedule of Consultations is at Appendix 2.

Individual consultations

Three one-on-one telephone conversations were conducted at the request of persons with disability. Two were members of the Committee and one a person with a direct-funded individual plan provided for under the Act.

Written submissions

Four written submissions were received: Guardianship and Administration Board, Mental Health Tribunal, Commissioner for Children and Carers Tasmania.

Survey

An online plain English survey was posted on the dedicated webpage. It was designed to guide respondents through key aspects of the Act and to get an understanding of their experiences under the Act. Many of the survey responses reflected frustrations and concerns about the NDIS rather than their experience with the Act.

Issues register

Prior to engagement of the consultant, DCS had compiled an Issues Register which recorded issues raised about the Act since its introduction. Fifteen issues were identified – some had already been addressed, some had been superseded, and some were relevant to, and are noted in, this Review.

Summary of consultationsStakeholder consultations 4 consultations (35 people)

DCS staff consultation Joint videoconference consultation (20 people statewide)

Public consultations 42 people with disability, service and training providers, advocates and community

Individual consultations 3

Written submissions 4

Survey responses 41

A note about numbers

Participants at the consultations and stakeholder meetings indicated that the disability sector is experiencing high demand for its time and expertise and feels too thinly spread in trying to provide adequate responses to the range of issues being raised with it. Changes necessitated by the full roll-out of the NDIS, and consultations being conducted with the sector on a separate issue at the same time as the Review consultations, were cited as examples.

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Despite the modest participation in this Review process, the high quality of the contributions has provided vital information for immediate consideration, and essential learnings for the future review to be conducted following the full implementation of the NDIS.

Learnings for the next review

Given the pressures on the disability sector and the importance of the next review, the following matters need to be considered:

Provide longer lead times for consultation sessions to allow for the involvement of more individuals and organisations

Schedule some consultations out of hours and at accessible sites Consider all communication needs including information/surveys in Easy English to ensure

equitable access for people with intellectual and cognitive disability Make best endeavours to ensure no other consultations are in progress with the sector.

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5 CURRENT STATE OF PLAY

The NDIS has significantly changed the landscape for the provision of specialised services to people with disability. Trial sites for the NDIS were introduced 18 months after the commencement of the Disability Services Act 2011. As people enter the NDIS, they transition from the Tasmanian Act to requirements set out under the NDIS Act and a set of nationally harmonised rules that govern the quality of services, safety and overall experiences of people with disability.

National Disability Insurance SchemeThe NDIS will provide all eligible Australians under the age of 65 who have a permanent and significant disability with the reasonable and necessary supports they need to enjoy an ordinary life. It is designed to help people with disability achieve their goals including greater independence, community involvement, employment and improved wellbeing.4

People are entering the NDIS in Tasmania by age group. It is currently available to eligible people aged between 4 and 34 years. From 1 July 2018, the NDIS will be available for children aged 0 to 3 and adults aged 35 to 49. By 1 July 2019 the NDIS will be available to all eligible Tasmanians.

The NDIS is supported by nationally-agreed rules and policies to ensure the best quality service system and experiences for all people with disability. National Standards for Disability Services have been agreed and were promulgated in the Tasmanian Government’s Disability Services Regulations 2015 (the Regulations). They apply to all DHHS-funded providers relating to the design, administration and provision of specialist disability services.5

National Quality and Safeguarding FrameworkThe NQSF is designed to ensure high quality supports and safe environments for NDIS participants. It seeks to help participants and providers access information and resolve issues quickly, and strengthen the capability of participants, the workforce and providers to participate in the NDIS market.6

During transition, states and territories will maintain their current arrangements and responsibilities to protect people with disability. In Tasmania, the Regulations define the quality and safety standards that apply.

National Quality and Safeguards CommissionA NDIS Quality and Safeguards Commission is being established to protect the rights and safety of people with disability; the Commission includes a Complaints Commissioner and national Senior Practitioner. The functions of the Commission are supported by rules which are being agreed nationally:

Registration and Practice Standards Rules Behaviour Support Rules Incident Management and Reportable Incidents Rules

4 National Disability Insurance Agency 2016, About the NDIS, ndis.gov.au5 Disability and Community Services 2015, Fact Sheet: Tasmanian Disability Services Regulations 2015, Department of Health and Human Services, Tasmania6 Department of Social Services 2016, NDIS National Quality and Safeguarding Framework, Australian Government,

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Complaints Rules Protection and Disclosure of Information Rules NDIS Code of Conduct

These developments will all underpin the disability services support system in Tasmania going forward.

Impact of current ReviewThe NDIS and related reforms are strengthening the disability service system in ways not seen previously. It is now less than 15 months until all people with disability eligible for the NDIS will experience this strengthened regime in Tasmania.

The full roll-out of the NDIS and its associated structures and rules are expected to address many of the issues raised in the consultations. A key responsibility of this Review is to ensure that issues not being addressed in this way, or which need more urgent attention, are identified for more immediate action. The comprehensive review of the Act following the full roll-out will then more reliably identify possible gaps in policy, authority, practice and service delivery, informing the residual role of the Tasmanian Government in support of people with disability.

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6 STRATEGIC THEMES AND RECOMMENDATIONS

The strategic themes are a synthesis of the rich and varied conversations that took place during the consultations, and issues raised in the written submissions and surveys. There are 14 strategic themes that have been considered by the Review Committee; the recommendations that follow reflect both legislative and non-legislative approaches to their resolution.

The themes address the three areas for examination by the Review.

Operational effectiveness in the delivery of safe, quality servicesTheme 1: Interpretation and Principles

Participants viewed the Act as a broad framework lacking detail and prescription; they generally believed the intention of the Act is sound, but wanted key concepts more clearly defined, in part to reduce the scope for different interpretation.

The Principles in particular were viewed as high level ‘directional statements’ not directly linked to the declaration of rights affirmed in the Convention on the Rights of Persons with Disabilities (CRPD). To address this, it is suggested the 16 general principles set out in the NDIS Act be adopted. This approach removes the need for a definition of disability, an issue raised by the Guardianship and Administration Board in their detailed submission.

Recommendation 1: Amend the Disability Services Act 2011 to harmonise definitions with those in the NDIS Act 2013.

Recommendation 2: Align the Disability Services Act 2011 with the Convention on the Rights of Persons with Disabilities and other international obligations.

Theme 2: Inclusion and control in planning and reporting

While the Act provides for people with disability to be included in strategic planning, it omits the requirement for the direct experiences of, and outcomes for, people with disability to be reported. Participants desired a more genuine inclusion of people with disability in strategic and operational planning and reporting. This relates to both legislation and practice.

Concern was also expressed about the number of people with disability actively engaged in the consultation processes of this Review. Issues raised include providing longer lead times for participation; timing consultation sessions for the convenience of participants; ensuring consultations are not competing with other engagement demands for the sector; and accessibility to information and surveys in plain and Easy English.

Recommendation 3: Develop consultation policies that deliver comprehensive and genuine engagement with people with disability taking full account of their needs and circumstances.

Recommendation 4: Ensure appropriate, inclusive engagement with people with disability is included in future disability services legislation.

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Theme 3: Protection, compliance and accountability

Currently there is a view that protection of people with disability in support and accommodation services and in private residences is inadequate. There is no requirement for mandatory reporting of abuse for adults with disability, and participants felt there were inadequate processes for complaints and investigation of abuse in Tasmania. Enforcement of quality and safety standards was seen as limited, and the absence of a community or authorised visitors scheme was regarded as a significant omission to ensure compliance under the Act.

The NQSF is expected to address many of these issues. Under the Quality and Safeguards Commission, there is a Complaints Commissioner with rules and processes covering complaints and the management of reportable incidents. Under the Commission, workers will be required to adhere to a National Code of Conduct, although there are concerns that the Code is very broad in its approach. In the transition period, Tasmanian Regulations provide processes for feedback and complaints.

The Health Complaints Act 1995 has a broad definition of health which could also allow disability complaints to be considered by the Health Complaints Commissioner in Tasmania. Amendments have been proposed to this Act to implement the Code of Conduct for Unregistered Health Practitioners (e.g. not registered under the national scheme). This Code of Conduct could also apply to workers in the disability sector who are not covered by the national Complaints Commissioner.

Recommendation 5: Work with the Quality and Safeguards Commission’s Complaints Commissioner to ensure they are acting in the interests of people with disability in Tasmania in a timely manner.

Recommendation 6: Ensure workers in the disability sector in Tasmania are held accountable to an appropriate Code of Conduct.

Theme 4: Role of Senior Practitioner

The functions of the Senior Practitioner are defined in the Act, and the office holder will continue to have a pivotal role following full implementation of the NDIS. There is a view that the current role is not clearly understood, particularly in relation to system oversight; there is a lack of transparency in discharging their obligations; and some stakeholders perceive that the office holder may have a conflict of interest as they are both part of the funding body and charged with investigating concerns under those funding agreements. The role was described as responsive and open to dialogue, but needing to be more visible, transparent and formal in approach.

The Quality and Safeguards Commission includes a national Senior Practitioner with responsibility for implementing behaviour support rules, and monitoring and analysis. These new arrangements and rules are expected to strengthen the role of the Senior Practitioner in Tasmania.

Recommendation 7: Amend the Disability Services Act 2011 to articulate recognition that the role of the Senior Practitioner is to act independently in relation to matters under Division 4 of the Act – ‘Investigations and directions’.

Recommendation 8: Ensure the independence of the role of the Senior Practitioner is prioritised in the development of new disability services legislation and is in alignment with the role of the Senior Practitioner outlined in the NDIS Quality and Safeguarding Framework.

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Theme 5: Restrictive interventions

The intention of the Act is to provide the best rules for occasions when behaviour needs to be limited or restrained for the safety of the person with disability or others. Participants expressed concern about two issues: the administration and enforcement of restrictive interventions was inadequate and not clearly understood by frontline workers; and, in appropriate circumstances, the need for interim authorisation to be granted where this is in the person’s best interests while formal longer-term authorisation is considered. There was also a lack of clarity relating to the use of restrictive interventions in schools.

Under the NQSF there will be nationally-agreed standards for restrictive interventions. The states and territories retain a central role in the authorisation and administration of, and education about, restrictive interventions, and Tasmania will consider the specific functions needed in a future review of the Act. There are plans to expand the office of the Senior Practitioner to respond to the need for increased education of disability support workers and others about restrictive interventions.

Recommendation 9: Insert an authority under the Disability Services Act 2011 to allow interim authorisations for restrictive interventions to be granted subject to appropriate safeguards.

Theme 6: Information sharing

Participants expressed concerns about inconsistent information-sharing processes and inappropriate disclosure of identifiable information. Issues include identifying a wider range of entities allowed to share information under the Act given the burgeoning array of service providers emerging under the NDIS; and inconsistencies with information-sharing requirements under the NDIS. Alignment of the NDIS and Tasmanian Acts with the Personal Information Protection Act 2004 and the Privacy Act 1988, will be considered under the nationally-aligned Protection and Disclosure of Information Rules.

Recommendation 10: Amend the Disability Services Act 2011 to improve the scope and effectiveness of information-sharing provisions.

Theme 7: Children and young people

Concerns were raised in the consultations about the apparent omission of children from the Act and inconsistencies or omissions relating to the Education Act 2016. The Act makes only one reference to children in the Principles (Section [2]): The following principles are to be applied in respect of relevant activities: [j] the fact that the capacities of children with disability may evolve as they mature, and the right of children with disability to preserve their identities as equal citizens, are to be respected.

The voice of children was described as ‘non-existent’ and concerns raised about alignment of this Act and other Tasmanian legislation with both the Convention on the Rights of the Child which references children with disability, and the relevant clauses in the CRPD that relate to children.

Recommendation 11: Publish and disseminate information, including a Fact Sheet, that clarifies how children with disability are included in the Act, having regard to international obligations (Convention on the Rights of the Child and Convention on the Rights of Persons with Disability) to children and young people.

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Interoperability with other Tasmanian legislationTheme 8: Legislative alignment

Participants raised a wide range of issues relating to other Tasmanian legislation, ranging from the need to align specific definitions and terminology to potential omissions. Among concerns raised were the need for better regulation of, and protections for, workers, and ‘cost shifting’ due to the selective use of legislation or lack of understanding of which is the dominant act.

Some issues are expected to be addressed by the NDIS NQSF, for example, regulation of workers. Other issues are suggested for consideration in a future review including alignment with the Education Act 2016 and consideration of children and young people and relevant linkages with other acts, for example, Youth Justice Act 1997 and Children, Young Persons and their Families Act 1997

There is a critical need for further engagement across government to ensure legislative alignment is achieved for people with disability based on best practice, harmonised national rules and international obligations; and to provide clarity about the order in which the Acts prevail.

Recommendation 12: Clarify the scope of the Disability Services Act 2011 in relation to children with disability in different settings, for example, school, home.

Legislative issues during transition to the NDISTheme 9: Individual plans

All individuals funded under the Act are required to have an individual plan. Participants identified gaps in the development of the most effective individual plans and unnecessary approval requirements, for example, approval by the Secretary. Issues of choice and control, and empowering people with disability to tailor plans to better meet their goals and aspirations, need to be more effectively addressed.

Recommendation 13: Review and revise approval processes at sections 11(2)(b) and 12(4) of the Disability Services Act 2011 to ensure the policy framework of ‘choice and control’ replaces the need for approval of plans by the Secretary or any other entity.

Issues out of scope of this ReviewTheme 10: Support for advocacy and other support services

General concern was expressed about the future of advocacy which is not funded under the NDIS Act. This issue is the subject of a national conversation and will be considered by DCS as part of the full rollout of the NDIS.

Concern was also raised about the future funding and viability of some support services provided to people with disability, for example, specialised sport, recreation, social participation and other programs.

Recommendation 14: Work to ensure independent advocacy, inclusion and support organisations continue to be viable and meet the needs of people with disability.

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Theme 11: Worker training

Concerns were raised about inadequate or inappropriate training for disability support workers. These ranged from training in specifics, for example, the Poisons Regulations and restrictive practices, to insufficient consideration of the skills needed for providing best practices of support to children.

Recommendation 15: Continue to invest in education, training and capacity building for disability support workers in Tasmania.

Theme 12: Communication and education

Many people attending the consultations were unfamiliar with the 2011 Act and its influence and impact on their various experience, roles and activities. Education about the rights and responsibilities defined under the Act, as well as communication of the CRPD, were seen as highly desirable across all stakeholder groups including people with disability, carers and service providers.

There was also a specific concern raised that eligible clients had not been made aware of the option of self-directed funding other than through word-of-mouth.

Recommendation 16: Develop and implement a targeted stakeholder engagement strategy that builds understanding of the protections, possibilities, authorities, and responsibilities conferred under the Disability Services Act 2011.

Theme 13: Client experience during transition

Planning processes between the NDIS and the Act have already been aligned and the State Government is committed to funding an individual until their NDIS Plan is signed off and approved. It is noted that NDIS Local Area Coordination is provided by Mission Australia and Baptcare – these organisations also provide gateway services under the Act. While regional differences in approach were reported, these organisations should consistently provide an effective bridge for those transitioning from service provision under the Act to service provision under the NDIS. This does not appear to be a legislative issue.

Recommendation 17: Provide feedback to the National Disability Insurance Agency about client experiences during the transition process to the NDIS.

Theme 14: Planning for the future

This Review has been conducted during a period of transition and palpable uncertainty. There is a range of views about how well the NDIS will serve people with a disability once fully implemented, from optimism that it heralds a new dawn for people with disability, to a ‘wait and see’ approach, to scepticism about whether it will deliver on its promise.

The introduction of the NDIS has elevated the conversation with people with disability and recognised their right to be part of our community and to make decisions for their lives based on free and informed consent and as active members of society. This brings new challenges including how government ensures that services that have not traditionally focused on, or considered the inclusion of, people with disability discharge their responsibilities to them.

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To meet this challenge, the Tasmanian Government has just completed the third stage of the whole-of-government approach to ensuring government departments implement socially just policies and practices for Tasmanians with disability. Known as Accessible Island, the 2018-2021 strategy will continue a rights-based, social model of disability and recognises that many challenges faced by people with disability are not due to the functional limitations of individuals but the failure of society to meet their needs.

Recommendation 18: Work with stakeholders to ensure services are delivered in line with the requirements of the National Disability Strategy 2010-2020 and Accessible Island: Tasmania’s Disability Framework for Action 2018-2021.

Other issuesThe Matrix of Stakeholder Requests on the following pages is a full report of the other issues identified from the consultations. The table aligns each issue with the relevant section of the Act and provides a roadmap for their consideration as follows:

What can be done legislatively in the short term under this Review? What needs to be considered in a future review? What needs to be considered once the NDIS is fully implemented? Issues requiring no further action, non-legislative action or that fall outside the scope of this

Review.

The structure of the Matrix is detailed on the following page.

Recommendation 19: Consider and implement as appropriate, the recommended actions set out in the Matrix of Stakeholder Requests.

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7 MATRIX OF STAKEHOLDERS REQUESTS

The Matrix of Stakeholder Requests provides a roadmap for addressing the many and varied requests made by stakeholders throughout the consultation process. It suggests six pathways for response as follows:

Matters for the current Review This section identifies matters for action in the current Review. It asks the question: ‘What legislative change is needed to deliver on the State’s responsibilities?’

Matters for consideration in the future review It is likely the Act will need major structural change following full implementation of the NDIS. This section identifies matters for consideration in the more comprehensive review to be conducted following full roll-out of the NDIS.

Matters addressed by the NDIS/NQSFThis section identifies matters that are expected to be addressed by the implementation of the NDIS and the associated NQSF. It asks the question: ‘How much will be “fixed” by the NDIS?’

Other action Matters identified in this section can be better addressed through non-legislative means. This section suggests possible actions.

No actionThis section identifies matters which have already been addressed.

Issues outside the scope of this ReviewThis section, at Appendix 3, identifies matters which are beyond the scope of this Review but are worthy of note for actioning as appropriate.

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MATRIX OF STAKEHOLDERS REQUESTS

MATTERS FOR CURRENT REVIEW

Section Change Request Explanatory Notes Raised bySection 4(1)InterpretationDisability

Change the definition of disability

GAB suggests adopting their 1995 definition of disability:“disability means any restriction or lack (resulting from any absence, loss or abnormality of mental, psychological, physiological or anatomical structure or function) of ability to perform an activity in a normal manner.”

It is more than 20 years since the GAB adopted their definition of “disability” and policy and practice have moved considerably over those two decades

Current State definition broadly aligns with NDIS definition which identifies “Disability requirements” rather than a definition of “disability”

GAB submission is not recommended – see Review Committee Recommendation 1

Guardianship and Administration Board

Section 4(4)(b)Reference to person nominated by person with disability

Remove both “trustee” and “administrator”

The GAB noted that trustees and administrators deal with financial matters and may not have the skills or the inclination to act as nominated persons and so should be removed from this sub-section.

Amend in current review

Guardianship and Administration Board (GAB)

Section 5Principles

Review Principles to align with NDIS and CRPD particularly relating to children and young people

Principles in the Act are high level, “directional” statements that may not be specific enough to deliver safe, quality services to people with disability

There is no overarching human rights framework in Tasmania therefore the CRPD needs to be incorporated more transparently into the Principles, particularly those pertaining to children and young people in Article 7; aspects relating to children and young people

ConsultationsCommissioner for Children

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Section Change Request Explanatory Notes Raised byshould also be incorporated operationally across the Act (Individual Plans, Restrictive Interventions)

Section 5 (2)(a) needs to be worded to align with Section 5 of the NDIS Act to strengthen promotion of a child’s best interests. This imposes a duty on child representatives to ascertain the wishes of a child and recognises that their ability to undertake acts and make decisions increases as they develop

Review PrinciplesContinued

Adopt Section 4 of the NDIS Act: “General principles guiding actions under this Act as Principles under the Act” to assist with harmonising definitions with the NDIS Act – see Review Committee Recommendations 1 and 2

Section 5Principles

Amend gender equality Principle

Gender equality now needs to embrace a wider definition of gender beyond men and women

Amend in current review if not addressed by adopting NDIS Principles

Consultations

Section 7(10)Strategic Plan

Deletion of “purchase” of strategic plan

The current requirements of subsection 7 (10) that the Secretary ensure that an up-to-date copy of the strategic plan is available for viewing “or purchase” by the public is no longer relevant as the Strategic Plan is now published on the DHHS website

Delete “or purchase” in current review

Consultations

Section 28 (3)(a)Rights of authorised officers after entry to premises

Replace “request” with “right”

A person with disability who is requested to answer questions is currently entitled to “request” that another person be present

This should be a “right” – it goes to the heart of choice and control Amend in current review

Consultations

Section 34Interpretation of Part 6

Definition of “physical restraint”

A definition of physical restraint, detention and seclusion is needed See Review Committee Recommendation 1


Section 35(d)Functions of

Add guardian to list of people

The Senior Practitioner is required, under Section 35(d), to give advice to “the Secretary, the Guardianship and Administration Board,

Guardianship and Administration

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Section Change Request Explanatory Notes Raised bySenior Practitioner in relation to restrictive interventions

given advice by the Senior Practitioner

disability service providers and funded private persons” The GAB has requested the addition of “guardian” to this list. Others

that could also potentially be added are carers, person responsible or nominated person

Consider additions in current review

Board

Section 36 (3) Update references to Mental Health Act 1996

New Mental Health Act was promulgated in 2013 – the Acts Interpretation Act applies to any references to the previous Mental Health Act

Include Chief Civil Psychiatrist in addition to Chief Forensic Psychiatrist

Update in current review

Mental Health Tribunal

Sections 42(3)(a) and 45(4)(b)Approvals to carry out restrictive interventions; andReview, amendment and revocation of approval by GAB

Power to give 90-day approval

The GAB:o seeks a power to give a 90-day provisional approval of a practice

that may constitute a restrictive intervention for 90 days prior to hearing

o raises concerns about how a person with disability and incapacity can nominate another to be consulted with under these provisions

GAB draws a parallel with their ability to make an emergency order under the Guardianship and Administration Act 1995 (the GA Act), and the potential need for the appointment of a guardian and/or administrator

Address in current review – see Review Committee Recommendation 10


Section 45Review, amendment and revocation of approval

Extend approvals for restrictive intervention at conclusion of a review hearing

The GAB submits that the length of approvals for restrictive interventions granted at the conclusion of a review hearing could be “increased up to 2 years”

Address in current review


Section 45Review,

Provision of notice that approval has

GAB submits that notice should be provided to any person the Board deems has a “proper interest”, which would include any “Person

Guardianship and Administration

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Section Change Request Explanatory Notes Raised byamendment and revocation of approval by GAB

been granted without a hearing

Responsible”, as defined in section 4 of the GA Act DHHS provides such notice as a matter of practice Address in current review

Board

Section 48Review by Magistrates Court (Administrative Appeals Division)

Appropriate jurisdiction for review

GAB submits that it would be the appropriate jurisdiction to review a decision of the Secretary or a person authorised by a funded disability services provider to approve or not to approve a proposed individual plan. It believes it has the relevant expertise to review these decisions rather than Magistrates and submits it creates a confusing appeals pathway to the Supreme Court

This issue needs to be considered in conjunction with the Department of Justice which has expertise in relation to appropriate review pathways

It also needs to be considered in a wider policy context of whether “approval” of a plan is a role for the State given requirements of choice and control

See Review Committee Recommendation 14

Guardianship and Administration BoardStaff

Section 50(1)(d) Update references to Mental Health Act 1996

New Mental Health Act was promulgated in 2013 – the Acts Interpretation Act applies to any references to the previous Mental Health Act

Add Chief Civil Psychiatrist to Section 50 (1) (f) Complete update in current review


Section 50(3)(b)Sharing of information

Consent for information sharing

Section 50(3)(b) is not well drafted and not sufficient to allow the sharing of information without consent apart from cases involving the safety of the person

If a person can consent they should be the one to do so Consider in light of information-sharing arrangements agreed under

the NDIS – see Review Committee Recommendation 11

Crown Solicitors Office

Section 50(6)Sharing of information

Clarity about information sharing entities

GAB submits that section 50(6) needs clarification so an information-sharing entity can provide information to another entity concerning a person with a disability who lacks the capacity to consent to the


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Section Change Request Explanatory Notes Raised byrelease of the information

Carers Tasmania submits that information sharing needs clarity and alignment with the Carer Recognition Act 2010 and the Tasmanian Carer Policy 2016

Address in current review including adding allied health professionals to list of information-sharing entities

See Review Committee Recommendation 11

Carers Tasmania

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MATTERS FOR CONSIDERATION IN FUTURE REVIEW

Section Change Request Explanatory Notes Raised bySection 4(1)InterpretationRestrictive intervention

Definition of “Restrictive Intervention” does not include an action authorised under any Acts relating to provision of mental health services or to guardianship

Regulation of restrictive interventions will remain the State’s responsibility after full implementation of the NDIS

Definitions, and alignment with other Tasmanian legislation, to be considered in the future review


Section 4(1)InterpretationRestrictive intervention

Definition of “safe transportation”

There is some confusion about the definition of “transportation” and whether it includes wheelchair transport

This needs to be clarified so that “transportation” is taken to mean transportation in a vehicle

Definitions to be considered in the future review in light of national agreement

Staff(Issues Register)

Section 4(1)InterpretationRestrictive intervention

Restrictive intervention during transport

There is no requirement for a behaviour support plan to be prepared in relation to “safe transportation”

Behaviour support plans are required under the NDIS NQSF and a new State act will align with the NQSF

Definitions to be considered in future review


Division 2Individual plans

Role of Carer made more explicit under Individual Plans

Carers are included in the NDIS Act including:o supporting a carer through a range of supports in a participant’s

NDIS plano ability to submit a Carer Statemento request a separate interview to support the person they care for in

the planning process Carers may be considered a “nominated person” under the Act but

Carers Tasmania

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Section Change Request Explanatory Notes Raised byconsideration needs to be given to specific reference to carers in Tasmanian disability legislation

Consider in future reviewSection 7 (3-9)Strategic planSection 9 (2)Budget oversight

Inclusion of the lived experience, performance in relation to the Principles, and the quality of plans developed under the Act

Section 7 details what the Strategic Plan must “set out” – the current requirements are mostly administrative. The Act measures funding not outcomes

The reporting requirements set out in Section 9 could be expanded to report on outcomes of safety, quality etc. Currently, outcome statements are contained within Funding Agreements

The NDIS Outcomes Framework will inform future planning and reporting

It is not yet clear which groups will be covered under a new State Act and what the desired outcomes will be, so this needs to be considered in future review

Consultations

Sections 11(2(a), 12(2), 12(3)Approval of individual plans

Clarification of “nominated person”

“Nominated person” is used throughout the Act – there needs to be clarification of the definition of a “nominated person”

This definition to be considered in future review


Section 14Grants

Include role of brokers or coordinators of individual plans

Concerns were raised regarding the independence and capability of brokers and coordinators in the disability services system – this category of service provider is not specifically covered under the Act

A new State act may consider the role of brokers or coordinators Consider in future review

Consultations

Sections 20 and 21Review of grants to disability research providers and

Inconsistency of timeframes for review of grants

Section 20 relates to disability research providers and sub-section (1) states: “The Secretary must conduct a review of a grant that is being or has been received by a funded disability research provider” without specifying a timeframe

Section 21(1) relates to grants to a funded private person and states: “The Secretary, at least once each year during which a funding agreement is in force… must conduct a review of the grant”


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Section Change Request Explanatory Notes Raised byfunded private persons

Consider alignment of timeframes in future review

Section 30Functions and powers of Senior Practitioner

GAB to direct reports and investigations or other action by the Senior Practitioner whether a restrictive intervention is approved or not

GAB seeks increased powers in relation to the Senior Practitioner Roles and functions of the Senior Practitioner will undergo significant

revision in a new State Act subject to clarity about the ongoing role of the State under the NDIS

The independence of the Senior Practitioner may be considered in this process including for the GAB to be able to direct the Senior Practitioner to follow up or monitor use of practices, even if they are not deemed restrictive

Consider in future review once the states and territories and Australian Government have reached agreement on roles and responsibilities


Section 30Functions and powers of Senior Practitioner

Increased powers for Senior Practitioner

Roles and functions of the Senior Practitioner will undergo significant revision in a new State act subject to the ongoing role of the State under the NDIS

Consider in future review once the states and territories and the Commonwealth Government have reached agreement on roles and responsibilities

Consultations

Part 6 Approvals of restrictive interventions to require behaviour support plan

A restrictive intervention should only be approved and implemented in accordance with a behaviour support plan which is required in other Australian jurisdictions

The practice is required under the NDIS NQSF Consider in future review with new State act to align with NQSF


Section 33Persons to provide assistance to Senior Practitioner

Quantum and meaning of penalties

Penalties arise under Section 33 – Persons to provide assistance to Senior Practitioner, &c; and Section 36 Use of unauthorised restrictive intervention prohibited; there are no penalties under Part 4 Monitoring of Grants

Consultations

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Section Change Request Explanatory Notes Raised bySection 36Use of unauthorised restrictive intervention prohibited

Quantum and meaning of penaltiescontinued

There is currently no capacity under the Act to create new offences in the Regulations or impose infringement penalties for existing offences

To create new offences or impose infringement penalties for existing offences will require amendment of the Act and the amount of infringement penalties would then be prescribed by DHHS through regulations under the Act

Consider in future reviewSection 35Functions of Senior Practitioner

Power to monitor implementation and use of behaviour management/support plans

GAB submits their functions should include the “power to monitor the implementation of behaviour management plans and use of behaviour management techniques, if a restrictive intervention is approved or not, when directed by the Secretary or the GAB”

Roles and functions of the Senior Practitioner will undergo significant revision in a new State act subject to the ongoing role of the State under the NDIS; the independence of the Senior Practitioner needs to be considered in this process

Consider in future review once the States and the Commonwealth have reached agreement on roles and responsibilities


Section 37(1)Applications for approvals to carry out restrictive interventions

Add ‘person with a sufficient interest’ and ‘NDIS nominated person’ to those who can apply for approvals

Extend the definition of those who can apply for an approval to carry out restrictive interventions to “a person with a sufficient interest” and “NDIS nominated person”

A “person with a sufficient interest” would need to be defined Consider in future review

Guardianship and Administration BoardStaff(Issues Register)

Division 3Approvals by Guardianship and Administration Board

Power to hear matters on its own motion

The GAB seeks a power to hear any matter relating to a restrictive intervention on its own motion.

It notes an earlier experience during a hearing in which “a service provider was seen to be applying an idiosyncratic interpretation of the provisions”


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Section Change Request Explanatory Notes Raised byPower to hear matters on its own motionContinued

The Board currently has the power to hear a matter on its own motion in respect of all applications under the GA Act except in relation to applications for the review of enduring guardianship

Initially consider in review of the powers and functions of the GA Act Consider outcomes in future review

Section 42Approvals to carry out restrictive interventions

Power to appoint mediators

GAB submits it should have a power to appoint mediators, when appropriate, in respect of applications for approval to carry out a restrictive intervention or an application for review under the Act

Regulation of restrictive practices will be reviewed following full implementation of the NDIS

Consider in future review


Section 45Review, amendment and revocation of approval by GAB

Extend entities that can bring an application to any person or entity with “a sufficient interest”

GAB submits that in many instances it is unlikely the person with the disability has the capacity and resources to make a review application or the capacity to appoint a nominee

GAB proposes the addition of a person or entity with “a sufficient interest” – which would need to be defined in the Act



Section 45Review, amendment and revocation of approval by GAB

Power to review any decision about restrictive interventions not just approvals

Intention of the GAB is unclear This issue is noted and will be considered in future review


Section 46Senior Practitioner to investigate, &c., use of restrictive interventions

Scope of interventions by the Guardianship and Administration Board

GAB submits that Section 46 limits the scope of intervention by the Board and it should be able to intervene in the same range of circumstances as it can intervene to appoint a Guardian, including by a Board’s own motion review

This is a significant realignment of responsibilities Consider in future review


Alignment and Better alignment The Commissioner for Children submits that the Act needs to better Commissioner for 35

Section Change Request Explanatory Notes Raised byclarity with other

legislationalign with other legislation that it intersects with and provide clarity about which legislation applies in particular circumstances

Confusion arises, for example, when the Act intersects with the Education Act 2016; Children, Young Persons and Their Families Act 1997; Youth Justice Act 1997; Mental Health Act 2013

NDIS Act has been reviewed against other legislation Further alignment to be achieved in future review – see Review

Committee Recommendations 12 and 13

ChildrenConsultations

Discrimination on basis of family responsibilities

Role of Anti-Discrimination Act 1998

Carers Tasmania suggests that the Anti-Discrimination Act 1998 may be relevant to the review, particularly where it makes it unlawful to discriminate on the basis of family responsibilities

It is suggested there is a need to clarify and make more explicit, carer roles and responsibilities in a new State act


Carers Tasmania

Mental health and disability

Clarify mental health/disability linkages

There is a need to clarify situations where dual diagnosis arises and create stronger linkages for clients experiencing mental health issues and disability

The Mental Health Tribunal poses the question, When is mental ill-health considered a disability?

This issue may be addressed by the NDIS Consider in future review


MATTERS ADDRESSED BY NATIONAL DISABILITY INSURANCE SCHEME / QUALITY AND SAFEGUARDING FRAMEWORK

Section Change Request Explanatory Notes Raised bySection 34Interpretation of Part 6Section 38Approvals to carry out

Definition of and approvals for “chemical restraint”

GAB regards definition of “chemical restraint” as “a significant omission from the current Act” and is problematic under current requirements of the GA Act

GAB submits that the Secretary should be able to approve chemical restraint under Section 38

The Commissioner for Children submits that it is desirable to regulate

Guardianship and Administration BoardCommissioner for ChildrenConsultations

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Section Change Request Explanatory Notes Raised byrestrictive interventions

chemical restraint to “promote the reduction and elimination of its use and to uphold the rights of children with disability” and suggests the Mental Health Act 2013 provides an example of a legislative framework

This issue will be addressed through a nationally-agreed definition of restraint, including chemical restraint, to be included in the NQSF rules under the NDIS

Compliance of service providers

Stronger compliance measures for service providers

Detail is lacking in the Act to hold service providers to account Investigative powers of Senior Practitioner are not strong enough Breaches are not acted on and there is no effective oversight of

standards This issue is addressed by a strong practice framework and Code of

Conduct during transition to NDIS Service providers registered with the NDIS will be covered by the

NQSF

Consultations

Workforce skills, capability and training

Increased training of staff

Training needs to be aligned to the CRPD, ensures staff understand their obligations under the Act and in relation to restrictive interventions and poisons use, delivers improved practice, and is “carer inclusive”

Concern about TAFE focus on adults/group homes Question about the capability of staff to work with children with

autism The issue of workforce skills, development and training are expected

to be addressed by the NQSF See Review Committee Recommendation 14

Guardianship and Administration BoardConsultations

Independent monitoring/ quality assurance

Consider Community/ Authorised Visitors Scheme

Random visits needed for monitoring and compliance – they could be modelled on Mental Health’s approach but that is an institutional random visiting scheme

Raises issues of privacy for those caring for people with disability in homes

Issue under discussion nationally – States with a

Consultations

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Section Change Request Explanatory Notes Raised byCommunity/Authorised Visitors Scheme are likely to continue

Monitoring and quality assurance are covered by the NQSF which will need to be monitored to ensure effectiveness

Mechanism for complaints

Complaints processes

Tasmania currently lacks a process of independent review – no powers for the Secretary to investigate

There are Standards for feedback and complaints in the Regulations that relate to funded disability services providers; DCS also has a complaints process

There is potential for conflict of interest as the Senior Practitioner is part of the funding organisation

The Health Complaints Commissioner is confined to health services; however, the Health Complaints Act 1995 under which the Health Complaints Commissioner functions is currently under review. Amendments have been proposed to implement the Code of Conduct for Unregistered Health Practitioners – this could also apply to workers in the disability sector

There is no Disability Complaints Commissioner in Tasmania Carers Tasmania suggests alignment with the Mental Health Act 2013

Part 2 Oversight Provisions. The Official Visitor Program can receive complaints from representatives or support persons of the patients and a person who, in the opinion of the Official Visitor, has a genuine interest in the patient’s welfare

The NDIS Quality and Safeguards Commission has a Complaints Commissioner and a dedicated complaints team to address complaints from people with disability funded by the NDIS – see Review Committee Recommendations 5 and 6

Consultations

DHHS Disability and Community Services staff

Changes and reductions in State-employed staff

Concern was expressed that the reduction of DCS staff will leave service gaps and contribute to the loss of corporate knowledge and expertise

This is expected to be addressed by NDIS roll-out

Consultations

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OTHER ACTION

Section Change Request Explanatory Notes Raised bySections 11 and 12Individual plans

Individual plan definition, approval processes and resolution

Sections 11 and 12 set out requirements for when an individual plan is required for either a person or a funded disability services provider as a term or condition of a grant

Sections 11(4) and 12(4) outline who may approve individual plans but there is no reference to a resolution mechanism in cases where a plan is not approved

The Act does not define a plan, the approval process required or resolution mechanisms

This matter is currently addressed through policies and procedures – approval processes may change or be eliminated under policy framework of ‘choice and control’. See Review Committee Recommendation 14


Part 6 Need to communicate about the use of restrictive practices

Carers Tasmania submits that consumers, carers and family members need to be communicated with about the use of restrictive practices with “dignity, respect, courtesy and compassion” and references the Principles for Communicating about Restrictive Practices with Consumers and Carers published by the National Mental Health Commission as a potential approach

This is a practice issue that can be addressed by the Senior Practitioner issuing guidelines

Carers Tasmania

Section 36 (3)Use of unauthorised restrictive intervention prohibited

Ability of parent to authorise a restrictive intervention

GAB notes that a parent does not have authorisation under any act unless they are appointed guardian under the GA Act. A parent is unable to authorise a restrictive intervention for a child under 18 years

The Board submits that a guardian as defined in the Children, Young Persons and their Families Act 1997 should be able to consent to or authorise a restrictive intervention for a child under 18

The Board notes that in the GA Act “a parent can be Person Responsible for a child under the age of 18 years and consent to


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Section Change Request Explanatory Notes Raised bymedical treatment”

Ability of parent to authorise a restrictive interventionContinued

This issue needs clarification for, and the education of, parents. Advice received suggests that some parents of people with disability assume they are guardians although their “children” are 18 or older. This can particularly be the case if the person with disability is still living at home

The Act is largely silent on children – to address this “silence” it is suggested that a wider conversation about children and where and how they most appropriately fit into the regulatory framework be undertaken

One possibility is a guideline issued by the Senior PractitionerSection 42 (6)Approvals to carry out restrictive interventions

Alignment between the Guardianship and Administration Act 1995 and Disability Services Act 2011

The reference to “Part 10 of the Guardianship and Administration Act 1995” lacks congruence with Section 36 (2)(a) and (b) of the GA Act to which it refers

This issue will be addressed in DHHS’ response to review of the GA Act


Section 43(1)Circumstances in which approvals may be granted

Incompatibility of the Disability Services Act 2011 and Guardianship and Administration Act 1995

The GAB notes a guardian who could be appointed to approve a restrictive intervention cannot take account of “other persons interests” as required under the Act

It is suggested this issue be considered as part of the GA Act review


Mechanism for complaints

Complaints processes

Tasmania currently lacks a process of independent review – no powers for the Secretary to investigate

While there are Standards for feedback and complaints in the Regulations that relate to funded disability services providers and DCS has a complaints process, there is opportunity for a mechanism to be included in the review of the Health Complaints Act 1995. It is

Consultations

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Section Change Request Explanatory Notes Raised byexpected to include the National Code of Conduct for Health Care Workers which could include carers and disability support workers and allow the issue of prohibition orders and public warnings for workers who breach the code

See Review Committee Recommendations 5 and 6Restrictive interventions

Seamless restrictive practices in-school and out-of-school hours for children

It is not clear whether there are restrictive intervention policies and procedures in schools

Under the NDIS, a child’s plan incorporates in- and out-of-school restrictive practices

This issue is a policy matter for the Department of Education ensuring alignment with the Act

Consultations

Reporting of abuse

Mandatory reporting of abuse for people with disability

Reporting of abuse is not mandated for people with disability Current national developments that support the reporting of abuse

include national worker screening, a national complaints process and the National Abuse and Neglect Hotline

This will largely be addressed by national worker screening that is currently being implemented

Consultations

Worker health and safety

Worker health and safety relating to clients with challenging behaviours

Concerns were raised about worker health and safety when subject to clients with challenging behaviours

Examine Work Health and Safety Act 2012 for appropriate coverage of workers in this situation

Consultations

Individual plans Easier transition from State-funded to NDIS-funded plan

Aligning funding processes for individual plans with NDIS processes will assist transition

Planning and practice has been streamlined through a template that guides inclusions in individual plans and provision of transition support

The gateway providers – Baptcare and Mission Australia – are also appointed to provide Local Area Coordination services under the NDIS which should assist transition

Consultations

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Section Change Request Explanatory Notes Raised by This issue will be addressed through streamlined practice See Review Committee Recommendation 18

Gateway Support through transition to NDIS

Gateway has a key role in supporting client transfer to the NDIS Difficulties are being experienced with referral processes Gateway also has a vital role in navigating different funding streams

e.g. HACC, Mental Health, Disability, Youth Services Gateway is not working as well as desired in this transition role –

participants reported difficulty working with gateways, creating a service gap

Refer to DCS for action

Consultations

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NO ACTION

Section/Issue Change Request/Comment

Explanatory Notes Raised by

Section 4(1)Interpretationrestrictive intervention

Definition of “therapeutic purpose”

There is now a clear interpretation of “therapeutic purpose” (Foss v Guardianship and Administration Board) and no change should be made to this exception

An amendment currently before Parliament provides a revised definition

No further action needed


Section 44(3)Provisions in respect of approvals by the GAB

Extend approval for restrictive intervention

The GAB submits the approval for restrictive intervention should be extended from six months to 12 months

An amendment currently before Parliament provides for approval “not exceeding 2 years, as agreed to by the Senior Practitioner and specified on approval”

No further action needed


Use of alternative therapies (e.g. medicinal cannabis)

Inability of the disability service system to respond to a client using medicinal cannabis or other alternative therapies

Medication guidelines are governed by the Poisons Act 1971, not the Disability Services Act 2011

If use is approved there are no barriers to a support worker administering in line with Disability Services (DHHS) medication guidelines

Member of the Review Committee

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APPENDIX 1 – REVIEW COMMITTEE TERMS OF REFERENCE

Department of Health and Human ServicesDisability Services Act 2011 Review

Review Committee - Terms of Reference (TOR)Purpose

The purpose of the Review committee will be to consider and provide advice on:1. the operational effectiveness of the Disability Services Act 2011 since

implementation2. interoperability of the Disability Services Act 2011 with other legislation3. issues with the Disability Services Act 2011 which have arisen as a result of the

Tasmanian Bilateral Agreement for transition to the National Disability Insurance Scheme (NDIS).

Background

The Disability Services Act 2011 (the Act) was given effect by the Parliament of Tasmania and commenced in January 2012. A condition of the Act is to undertake a review, as soon as practicable, three years from commencement. Due to the National reform agenda and development of national policy areas, such as the National Quality and Safeguard Framework for the NDIS, it was recommended to the Minister for Human Services to delay the Review which would otherwise have been required in 2015. In 2015 Tasmania introduced the Disability Services Regulations to support the intent of the Act and to align with the National Disability Standards.At the Disability Reform Council meeting on 2 September 2016, Ministers agreed to progress the National Quality and Safeguard Framework (the Framework), a Regulatory Impact Statement and the outcomes of the review of the National Disability Insurance Scheme Act 2013 to the Council of Australian Governments (COAG). As the above activity has progressed to COAG and the Framework has been released, this means that the review of the Tasmanian Disability Services Act 20ll can now progress.

Role and Function of the Review Committee

1. Approve and direct a consumer and communication engagement plan relating to the Review.

2. Inform and enable a methodology for measuring the perceptions of interested parties, eg. survey and consultation. This must include methods which will assist in the active participation of individuals with disability in the Review.

3. Consider issues arising from the consultation process and provide a written report to the Minister for Human Services addressing: the operational effectiveness of the Act since implementation interoperability issues between the Act and other legislation immediate legislative issues resulting from transition to the NDIS.

4. It is anticipated that a further review of the Act will be required to reflect legislative requirements in an environment where a full scheme NDIS is in operation. These requirements are out of scope for this Review, but will be noted for future review.

5. The Review Committee will be supported in its work by an appropriately experienced consultancy.

Members

Chair: A consumer representative through the Ministers Disability

Advisory Committee.

Membership: A provider representative through National Disability Services Tasmania.

A representative of Advocacy providers through one of the three funded advocacy organisations.

The Senior Practitioner. A representative of Disability and Community Services (DCS). A representative from the Department of Justice. Ex-officio support provided by DCS. NB. the TOR will be updated to reflect individual names once

they have accepted a place on the Review Committee.

Communication during the life of the Review

The Chair, on behalf of the Review Committee, will provide progress updates to the Minister for Human Services as required.

Public communication in regard to the outcomes and outputs of the Review Committees work should be communicated via the Chair.

Timeframes

In recognition of the volunteer nature of the Disability Services Act 2011 Review Committee, it is anticipated that in order to address the requirement of the TOR, the Review Committee will need to meet on a face to face basis four times and that some additional communication will be undertaken out of session. It is expected that the review period would be over a period of six months commencing in July 2017. At the end of the Review, it would be expected that the Review Committee would hand down a report with a series of recommendations. 1st meeting – TBD2nd meeting – TBD3rd meeting – TBD4th meeting - TBD

APPENDIX 2 – SCHEDULE OF PUBLIC CONSULTATIONS

Public forums aimed at persons with disability, their families and carers VENUE TIME

DEVONPORTWaterfront Function

Centre17 Devonport Road

29 November 201710am – 12pm

RSVP 24 November [email protected]

LAUNCESTONThe Tramsheds

4 Invermay RoadInveresk

30 November 201710am-12pm


HOBARTC3 Convention

Centre64 Anglesea Street

South Hobart

4 December 201710am-12pm


Public forums aimed at providers of specialist disability services VENUE TIME

DEVONPORTWaterfront Function

Centre17 Devonport Road

29 November 20171.30-3.30pm


LAUNCESTONThe Tramsheds

4 Invermay RoadInveresk

30 November 20171.30-3.30pm


HOBARTC3 Convention

Centre64 Anglesea Street

South Hobart

4 December 20171.30-3.30pm


mailto:[email protected]






APPENDIX 3 – ISSUES OUTSIDE SCOPE OF REVIEW

Issue Concerns Explanatory Notes Raised byIndividual plans Individual plans

are onerous to manage

Time and expertise is needed to manage an individual plan Could in part be addressed by model policies and procedures and

more education

Consultations

Standards Clarity that current regulations are the six national standards

Make clear the current regulations are the six national standards Structure and organise as in other states

Consultations

Website Better design and usability for people with disability

Web-based resources are good tools for people with disability The current DHHS website is difficult for people with disability to

navigate and use DHHS to address

Consultations

Groups not covered by NDIS

Future coverage for those that fall outside the NDIS

Includes, for example, people with complex communication needs, children with autism

Address any categories of people that fall outside the NDIS in the next review once the roll-out of the NDIS is complete

ConsultationsSurvey

Access to / availability of services

Better service availability for specific groups and in rural areas

There are access difficulties for clients with a psycho-social disability Community access may be biased to those with an intellectual

disability; those with physical disabilities may be disadvantaged There is a limited range of services available, particularly in rural

areas There can be long waiting times for children with autism spectrum

disorder The implementation of the NDIS supports service expansion

ConsultationsSurvey

Documents

Disability Services Act Review July 2018 · Web viewThis approach removes the need for a definition of disability, an issue raised by the Guardianship and Administration Board in