NDIA Accountability Project

Review of the Disability Discrimination Act 1992

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REVIEW OF THE DISABILITY DISCRIMINATION ACT 1992

October 2025

Tasc Community Legal Centre

Who is Tasc …………………………………………………………………………………………………………………….. 3

Introduction: ……………………………………………………………………………………………………………………. 3

Key Recommendations ………………………………………………………………………………………………….. 5

  1. Definition of Disability (Consultation Questions 1, 3, and 4) ……………………………………… 5
 Rationale for Change to Definition................................................................................          5

 Principles to guide the definition: .................................................................................           5

Proposed DDA Section 4 (Interpretation): .............................................................................. 7

2. Positive Duty: (Consultation Question 51) ……………………………………………………………….. 8

 Rationale for Positive Duty .................................................................................................    8

 Implementation Considerations .................................................................................              8

 Benefits of a Positive Duty .................................................................................................     9

3. Access to Justice and Policing (Consultation Question 31 & 32) …………………………… 9

 Rationale .........................................................................................................................         9

 International and Domestic Legal Framework .................................................................     10

Why Access to Justice Must Include Policing …………………………………………………………….. 11

Evidence highlights the scope of the problem: .................................................................     11

 Exclusions from the DDA in Policing Contexts .................................................................... 12

Recommendations ................................................................................................................. 12

4. Consultation Question 32 – Exclusions ………………………………………………………………….. 12

 Conclusion .................................................................................................................            13

5. Access to Healthcare and Eliminating Discrimination for People with Disabilities (Consultation Questions 1, 2, 3 &13) ……………………………………………………………………………. 13

 Rationale for Access to Healthcare........................................................................................ 13

 International and Domestic Law Framework ........................................................................ 13

Consequences of Systemic Bias .................................................................................           14

Hidden Bias Within Health Care ………………………………………………………………………………. 14

Modernising the Disability Discrimination Act .................................................................   14

Models of Disability .................................................................................................             15

 Othering and Intersectionality ............................................................................................... 15

Case Study ............................................................................................................................. 15

 Learnings from Case Study Relevant to The Disability Discrimination Act Review ........... 17

Recommendations ................................................................................................................. 17

Conclusion: …………………………………………………………………………………………………………………… 18

Who is Tasc

Tasc Community Legal Centre is a not-for-profit organisation that serves over 4,000 people per year across more than 400,000 square kilometres of Ipswich and Southwest Queensland. Now in our 42nd year, Tasc has developed from a small community legal centre to a committed provider of high-quality legal advice, social justice, and advocacy services. Tasc is one of the largest regional community legal and advocacy services in Queensland, where the community and staff work together in partnership to continue to enable justice and change lives.

We are focused on social justice and support, and advocate for our clients, who are culturally and linguistically diverse, and come from the most vulnerable and marginalised sectors of our community. They include First Nation people, refugees and those with disabilities, mental illness, and financial disadvantage. We do our best to support the community we work with to promote, protect, and preserve their legal and human rights.

Introduction:

People with disability in Queensland find themselves at the sharp end of severe societal disparities, their quality of life compromised, and their vulnerability laid bare to exploitation and neglect. This experience is felt by people with a disability whenever navigating multiple service systems only to find, in most cases, their autonomy undermined and their needs ignored.

Urgent action is imperative from all quarters of government and society to fortify a sustainable social framework. This framework must guarantee equitable access to resources for those with disability, their families, and support networks.

Tasc commends the Australian Government and the Attorney-General’s Department for their continued commitment to protecting and promoting the rights of people with disability, and for recognising the need to ensure that Australia’s anti-discrimination laws deliver genuine equality and justice.

We particularly welcome the focus of the Disability Discrimination Act 1992 (Cth) (“DDA”) Review on the implementation of the recommendations arising from the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (“Disability Royal Commission”).

Tasc was actively engaged throughout the life of the Disability Royal Commission. Our advocates supported people with disability to participate in hearings and consultations. Throughout this

engagement, we witnessed both the immense courage of individuals who came forward to share their experiences and the profound distress that revisiting those experiences caused. We acknowledge the strength and resilience of people with disability across Queensland and recognise that the DDA Review represents an important opportunity to transform their voices into lasting legislative and systemic reform.

The DDA Review presents an important moment to address systemic shortcomings and to strengthen the legal and practical mechanisms that enable people with disability to assert their rights with confidence and dignity.

Key priorities in this submission:

1.  **Definition of Disability:** Adopt a modern, barrier-focused definition that reflects the social and interactional models of disability, aligned with the *Convention on the Rights of Persons with Disabilities* (“CRPD”) and international best practice.
2.  **Positive Duty:** Introduce a statutory positive duty requiring duty holders to proactively prevent discrimination, implement reasonable adjustments, and ensure accessibility.
3.  **Policing and Justice:** Amend the DDA to explicitly cover all police duties and powers, including custody, transport, questioning, and diversion, with clear, limited exemptions.
4.  **Healthcare Access:** Ensure equitable access to medical care through proactive obligations and barrier-focused legal protection.

These reforms are essential to transform the DDA from a reactive instrument into a framework that ensures dignity, equality, and meaningful participation for all Australians with disability.

Observations on Current DDA Shortcomings

Building on our experience, Tasc has identified several areas where the DDA, in practice, continues to fall short of its purpose. While the Act provides a critical framework for prohibiting discrimination, systemic and structural barriers often prevent people with disability from fully realising their rights.

  • Complex Complaint Processes: Legal pathways are often inaccessible and intimidating, particularly for people with psychosocial disability or neurodivergence.
  • Reactive Remedies: The Act responds after discrimination occurs, rather than preventing it.
  • Inconsistent Enforcement: Application across sectors is uneven.
  • Limited Coverage: Key sectors, including policing and healthcare, lack explicit inclusion, leaving gaps in protection.

By sharing our experience and perspective, we hope to contribute to meaningful reforms that uphold human dignity, strengthen accountability and ensure that inclusivity is not an aspiration but a lived reality for all.

Key Recommendations

1. Definition of Disability (Consultation Questions 1, 3, and 4)

Rationale for Change to Definition

It is Tasc’s position that our own submissions should be secondary to the submissions of any organisation that is constructed of, governed by or whose aims are specifically for the advancement and inclusion of persons who are persons who identify as a disabled person. Tasc further acknowledges that our submissions are made as a body that advocates on behalf of persons who face disadvantage and note that some of the persons that we assist identify as disabled persons.[1]

Tasc acknowledges that the DDA was drafted with the intention to encompass all persons with a disability;[2] Tasc is supportive of the need for the existing definition of disability to ‘better reflect modern understandings of disability’,[3] and a move away from ‘negative and deficit-based language’.[4] In constructing our view of how ‘disability’ should be defined, our organisation has paid special heed to both the CRPD,[5] and the PWDDA Language Guide (‘the Language Guide’).[6]

Principles to guide the definition:

Article 3 of the Convention provide the general principles of the Convention, namely:

  • Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;

[1] United Nations Convention on the Rights of Persons with Disabilities and Optional Protocol, opened for signature 30 March 2007, 61 UNTS 106 (entered into force on 4 November 2016) art 4 (“Convention on the Rights of Persons with Disabilities and Optional Protocol”). [2] Australian Government, ‘Disability Discrimination Act 1992 Review’ Disability Discrimination Act 21 citing Australian Government Productivity Commission, Review of the Disability Discrimination Act 1992, Productivity Commission Inquiry Report, Volume 1, 30 April 2004, 14–15 and 41. [3] Australian Government, ‘Disability Discrimination Act 1992 Review’ Disability Discrimination Act 21 (‘DDA Review’). [4] Ibid 21. [5] Convention on the Rights of Persons with Disabilities and Optional Protocol (n 1). [6] People with Disability Australia, ‘PWDA Language Guice: A guide to language about disability (Aug 2021 update)’ (“PWDA Language Guide: A guide to language about disability”).

  • Non-discrimination;
    • Full and effective participation and inclusion in society;
    • Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
    • Equality of opportunity;
    • Accessibility;
    • Equality between men and women; and
    • Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.

The Language Guide uses the term ‘disability’ in the context of the social model of disability, which describes disability as a social construct,[7] and rejects the medical model of disability which perceives disability as a deficit,[8] and which deviates from the ‘norm’.[9] Tasc recognises the criticisms of the social model, and the relatively recent emergence of the interactional model which ‘understands disability as a relationship between intrinsic factors, (such as impairment, the person’s attitudes to impairment, her personal qualities and abilities and her personality) and extrinsic factors (such as environments, support systems, oppression, the attitudes and reactions of others and wider social, economic and cultural factors)’.[10] It is Tasc’s position that disability is an evolving concept,[11] and as such that the definition under the revised Act should focus upon the barriers faced by persons who identify as disabled commensurate with the social model of disability,[12] and that allows for recognition of the interactional model’s relationship between intrinsic and extrinsic factors approach.

We support the drafting of legislation in line with the Accessible Canada Act 2019, which provides a definition of disability as:

any impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment — or a functional limitation — whether permanent, temporary or episodic in nature, or evident or not, that, in interaction with a barrier, hinders a person’s full and equal participation in society[13]

[7] Ibid. [8] Ibid. [9] Ibid. [10] Linda Steele, ‘Making sense of the Family Court’s decisions on the non-therapeutic sterilisation of girls with intellectual disability’ (2008) 22(1) Australian Journal of Family Law 1, 9. [11] Convention on the Rights of Persons with Disabilities and Optional Protocol (n 1) preamble (e). [12] PWDA Language Guide: A guide to language about disability (n 6). [13] Accessible Canada Act 2019 s 2.

However, we do not support the use of the term ‘impairment’ which reflects the medical model of disability. It is our position that the Canadian definition should be varied as follows:

Any medical condition, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment — or a functional limitation — whether permanent, temporary or episodic in nature, or evident or not, that, in interaction with a barrier, hinders a person’s full and equal participation in society.

Tasc further defers to the Accessible Canada Act 2019 with respect to a focus upon the barriers met by persons who identify as disabled within an ableist society, and it is our position that the definition supported above be further supported by the definition ‘barrier’ pursuant to and in line with the Canadian legislation as follows:

barrier means anything — including anything physical, architectural, technological or attitudinal, anything that is based on information or communications or anything that is the result of a policy or a practice — that hinders the full and equal participation in society of persons with an impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment or a functional limitation. (obstacle)

Proposed DDA Section 4 (Interpretation):

Our proposed new definition of a disability under section 4 should focus on a more functional and social model approach.

“Disability means a long-term or recurring physical, mental, intellectual, or sensory impairment which, in interaction with barriers, may hinder full and effective participation in society on an equal basis with others.”

“Disability includes impairments that are permanent, recurring, or expected to last for a significant period, and includes disabilities that are imputed.”

“For the avoidance of doubt, disability includes psychosocial disability, neurodivergence, and behaviour that is a symptom or manifestation of an impairment.”

This proposed new definition allows for a number or changes:

1. A less complex and legalistic definition in easy-to-understand language.
2. The removal of stigmatising language “organisms causing disease.”
  1. To align with the CRPD ratified by Australia in 2008.[14] 4. With a focus should be on the interaction with barriers under a social model approach; 5. Empathising psychosocial disability. 6. Aligning s 4 of the DDA with CRPD Article 1 ensures constitutional validity under the external affairs power and demonstrates compliance with treaty obligations.[15]

2. Positive Duty: (Consultation Question 51)

Rationale for Positive Duty

The current framework of the DDA remains largely reactive, relying on individuals with disability to initiate complaints after discrimination has occurred. This approach places an unfair burden on people with disability and does not effectively prevent discrimination or address systemic barriers. Introducing a statutory positive duty would transform the DDA into a preventative and proactive legislative instrument, moreover, one that promotes equality, inclusion, and accessibility before harm occurs.

Implementation Considerations

For a positive duty to be effective and sustainable, government must ensure:

  • Clear guidance on what constitutes “reasonable and proportionate” steps for different sectors and sizes of organisations;
  • Training and support for duty holders to embed inclusive and accessible practices;
  • Adequate resourcing for the Australian Human Rights Commission to educate, monitor, and enforce compliance;
  • Meaningful participation of people with disability in developing and monitoring the framework; and
  • Phased implementation to manage transition and minimise administrative burden.
  • Work in conjunction with the current Disability Standards, with the implementation staged progressively across different sectors.

[14] Australian Government Department of Health, International Rights (Web Page) https://www.health.gov.au/topics/disability-and-carers/empowering/international-disability-rights. [15] Australian Human Rights Commission, Improved Rights Protection for People with Disability (Web Page) https://humanrights.gov.au/our-work/projects/improved-rights-protection-people-disability-2009.

Benefits of a Positive Duty

A well-designed positive duty would:

1. Prevent harm before it occurs by shifting the focus from remediation to prevention, reducing reliance on individual complaints.
2. Drive systemic change by requiring organisations to examine and improve internal culture, policies, and practices.
3. Promote inclusion and accessibility by embedding principles of universal design, digital accessibility, and reasonable adjustments in everyday operations.
4. Provide clarity and accountability by setting clear expectations for what constitutes compliance and allowing the Australian Human Rights Commission (“AHRC”) to monitor and enforce compliance.
5. Align Australia with international best practice by being consistent with approaches in the UK, Canada, and New Zealand, and comparable to the positive duty introduced under the *Sex Discrimination Act 1984* (Cth) in 2022.

The inclusion of a positive duty under the DDA represents a critical reform to ensure equality and inclusion for people with disability. It moves Australia beyond a reactive, complaint-based framework toward one that actively prevents discrimination, dismantles systemic barriers, and upholds the rights and dignity of all people with disability.

3. Access to Justice and Policing (Consultation Question 31 & 32)

Rationale

Access to justice for people with disability begins at the first point of contact with the justice system, typically police. People with disability experience systemic barriers at this stage, including discrimination, lack of reasonable adjustments, and exclusion from diversionary or support pathways.[16]

While the current DDA defines services broadly, it does not explicitly include policing activities, creating legal uncertainty and undermining equality before the law.

The Disability Royal Commission (“DRC”) identified this gap and recommended explicit inclusion of policing services within the DDA, alongside limited, strictly defined exclusions for immediate

[16] The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Final Report 2023) vol 8 (“Disability Royal Commission”).

threats to life or safety. Tasc’s legal, advocacy, and social work experience confirms the critical need for reform to prevent discrimination,[17] ensure procedural fairness, and align domestic law with Australia’s obligations under the CRPD and domestic human rights legislation.

  • International obligations: The International Covenant on Civil and Political Rights (“ICCPR”) guarantees equality before the law, fair trial rights, and procedural fairness.[18] The CRPD requires states to ensure effective access to justice for persons with disability on an equal basis with others, including appropriate accommodations and procedural supports.[19] The CRPD specifically places on obligation upon State Parties to take appropriate measure to provide access to justice for persons with disabilities.[20] The convention places an obligation upon Australia, as a state party to equal access to the justice system, for persons with disabilities including at the investigative and other preliminary stages of legal proceedings.[21] Our submissions, require Australia to codify in domestic law its obligations under Article 13.2 of the CRPD – “to promote appropriate training for those working in the field of the administration of justice, including police and prison staff.”

It is Tasc’s submission that the suggested legislative changes to the DDA, would better protect the human rights of people with disabilities including their right to access to justice, right to liberty and security of person and the right to freedom from exploitation, violence and abuse.[22]

Evidence presented to the UN in 2025:
  • At the eighteenth Session of the State Parties to the Convention on the Rights of Persons with Disabilities an Australian First Nations and disabilities advocate named Tahlia-Rose Vanissum, shared her experience of the Australian justice system.[23] Vanissum’s experiences of inflexible and violent Western models of justice support the findings of the Disability Royal Commission and the submissions of Tasc Community Legal Centre of a need for legislative requirements for police training.[24]

[17] TASC National, Casework and Advocacy Data, 2023–24 (unpublished) (“TASC Data”). [18] International Covenant on Civil and Political Rights, opened for signature December 16, 1966, 999 UNTS 171 (entered into force 23 March 1976). [19] Convention on the Rights of Persons with Disabilities and Optional Protocol (n 1) art 13. [20] Ibid art 12.3 and 13. [21] Ibid art 13.1. [22] Ibid art 13, 14 and 16. [23] Conference of States Parties to the Convention on the Rights of Persons with Disabilities, 18th sess, UN Doc CRPD/CSP/2025/5 (10–12 June 2025) (16). [24] Ibid.

  • Domestic obligations: The Human Rights Act 2019 (Qld) recognises equality before the law and the right to security of the person.[25] Reports by the Australian Human Rights Commission and the Law Council of Australia highlight persistent systemic barriers for people with disability in engaging with policing and justice systems.[26]

Why Access to Justice Must Include Policing

Access to justice begins at the first point of contact, often the police. Police are gatekeepers who decide:

  • Who is diverted, arrested, or detained.
  • Who receives support or referral pathways.
  • How questioning and transport are conducted.

Discrimination or inadequate adjustments at this stage compromise the entire justice trajectory. Tasc practitioners observe:[27]

  • Upstream barriers: Advocates encounter systemic exclusion during initial police contact, particularly in mental health crises.
  • Downstream consequences: Lawyers see the impact in courts, including procedural disadvantage and unmet needs.
  • Regional/remote impact: In areas where police are the primary crisis responders, systemic gaps are magnified.

Evidence highlights the scope of the problem:

  • People with disability are overrepresented in custody, with nearly 1 in 3 incarcerated individuals having a disability or chronic condition compared with 1 in 5 in the general population.[28]
  • First Nations people with cognitive or psychosocial disability are disproportionately investigated, charged, and detained.[29]
  • 70% of women and 58% of men with disability experiencing physical assault do not report it to police.[30]

[25] Human Rights Act 2019 (Qld), s 13-15. [26] Australian Human Rights Commission, Disability Justice Strategies an Introduction, 2022. [27] Tasc Data, 2023–24 (n 17). [28] Disability Royal Commission (n 16) vol 8. [29] Ibid. [30] Ibid.

  • Barriers to reporting include fear of retaliation, lack of trust in police, inaccessible complaints processes, and cultural or social stigma.

Exclusions from the DDA in Policing Contexts

While immediate threats to life or safety may justify limited exclusions, broad or poorly defined exemptions risk undermining the purpose of the DDA.

  • Problems with broad exemptions: Overused in practice, applied inconsistently in mental health crises, and may erode accountability.
  • Any exclusion should satisfy necessity, proportionality, and least-restrictive means, consistent with CRPD Article 13 and domestic human rights obligations.
  • Routine duties must remain covered: Questioning, custody, and transport should not be exempt.

Recommendations

Consultation Question 31 – Inclusion of Police Services

Amend the DDA to explicitly include services provided by police officers while policing duties and powers, covering attendance, custody, transport, questioning and diversion (Rec 7.3, Rec 8.19).

1. Introduce a positive duty requiring police to take reasonable and proportionate steps to prevent discrimination and provide reasonable adjustments. While many of these measures already exist in policing guidelines, they are inconsistently applied and rarely enforceable. Embedding them as a legal obligation would ensure consistency across jurisdictions and create accountability when standards are not met.
2. Develop national guidance for policing, co-designed with people with disability and advocacy organisations, to embed trauma-informed, accessible, and culturally safe practice.
3. Ensure independent and accessible complaints and oversight mechanisms for people with disability to challenge discriminatory police conduct.
4. Require mandatory and ongoing disability awareness and trauma-informed training as a core competency for all police officers.

4. Consultation Question 32 – Exclusions

1. Any exclusions should be strictly limited to immediate life-threatening circumstances where urgent action is necessary to protect safety.
2. The principle of necessity and proportionality should be applied to ensure that responses are the least restrictive and time-limited.
  1. Exemptions should not extend to routine policing duties such as questioning, custody, or transport, which must remain fully subject to the DDA. 4. Exemptions must not extend to routine policing duties (e.g., questioning, custody, or transport). 5. Record and monitor all instances where an exclusion is invoked, with independent oversight to ensure transparency and accountability. 6. Develop nationally consistent guidance and mandatory training to ensure exclusions are only used in genuine emergencies and not misapplied to disability-related behaviours or crises.

Conclusion

Reforming the DDA to explicitly cover police services while carefully limiting exemptions is essential to:

  • Ensure meaningful access to justice from the first point of contact.
  • Reduce systemic discrimination and procedural disadvantage.
  • Align domestic law with Australia’s obligations under the CRPD and human rights legislation.
  • Improve confidence, trust, and safety for people with disability in their interactions with police.

5. Access to Healthcare and Eliminating Discrimination for People with Disabilities (Consultation Questions 1, 2, 3 &13)

Rationale for Access to Healthcare

The DDA has provided a legislative framework for preventing discrimination against people with disabilities in Australia. However, significant gaps remain, particularly in healthcare access, understanding of intersectional discrimination, and the integration of positive duties.

International and Domestic Law Framework

Tasc submits that domestic Australian legislation should take steps to better enshrine the principles outlined in Article 25 of the CRPD.[31] This convention outlines that this includes provision of quality, affordable health services in rural areas.

[31] Don Mackay, ‘The United Nations Convention on the rights of persons with disabilities’ (2006) 34 International Law and Comparative Law Journal 323 (“United Nations Convention on the rights of persons with disabilities”).

Equitable Access to Medical Care

Article 25 of the CRPD states that “parties shall recognise that persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability; and that parties shall take all appropriate measures to provide persons with disabilities with the same range, quality and standard of free or affordable health care and programmes as provided to other persons”. This includes asking those in positions of care and support to enhance their efforts at meeting the needs of all people and by increasing efforts aimed at those needing more intensive support.[32]

Consequences of Systemic Bias

  • Failure to address bias can result in preventable harm and reinforce disadvantage. Healthcare professionals often underestimate the abilities and quality of life of people with disabilities, which affects diagnosis, treatment, and overall health outcomes.[33]

Hidden Bias Within Health Care

  • Healthcare professionals, while often denying bias, demonstrate attitudes consistent with the general population’s negative perceptions toward disability. Research indicates that unconscious bias and lack of disability knowledge contribute to inequities in patient care.[34]
  • Bias is compounded by medicalised perspectives and assumptions that reduce individuals to their impairments rather than considering them as whole persons. Addressing these biases requires both education and structural change within healthcare systems.

Modernising the Disability Discrimination Act

  • The United Nations Convention on the Rights of Persons with Disabilities (CRPD) requires that people with disabilities have the right to the highest attainable standard of health without discrimination.[35] . As noted above, Article 25 obligates states to provide equitable health services and targeted support for those with complex needs.[36]
  • Updating the DDA to reflect CRPD principles ensures that healthcare and other sectors recognise both rights and responsibilities for people with disabilities.

[32] Ibid. [33] Ursula Meidert et al, ‘Unconscious bias among health professionals: a scoping review’ (2023) 20(16) International Journal of Environmental Research and Public Health 6569. [34] Laura Van Puymbrouck, ‘Explicit and implicit disability attitudes of healthcare providers’ (2020) 65(2) Rehabilitation Psychology 101. [35] United Nations Convention on the rights of persons with disabilities (n 31). [36] Convention on the Rights of Persons with Disabilities and Optional Protocol (n 1).

Models of Disability

One way in which to modernise the Act focuses on changes to the ways in which disability is conceptualised. Historically, disability has been defined through medical which focus on individual pathology, deficit, or perceived moral failure. These approaches reduce people to their impairments, framing disability as a personal tragedy or condition to be “fixed”.[37]

In contrast, contemporary understandings recognise that disability arises from systemic, attitudinal, and environmental barriers that prevent full participation on an equal basis with others. Limitations are therefore not inherent to the person but emerge from the interaction between the individual and an unaccommodating society.[38]

The social and human rights models of disability emphasise inherent dignity and autonomy, positioning the person and not their impairment, at the centre. These models locate responsibility within social structures and public systems to remove barriers, promote inclusion, and ensure equality of opportunity.[39]

Othering and Intersectionality

  • Othering is a process where individuals are relegated to outsider status based on visible or perceived differences, facilitating discrimination and dehumanisation.[40] Healthcare professionals may unconsciously “other” patients based on disability, age, socioeconomic status, or mental health diagnoses.
  • Discrimination often intersects across multiple, aggravating, identity factors, compounding disadvantage.[41] Effective reforms must consider these intersecting factors to prevent cumulative harm.

Case Study

The following case study highlights the serious barriers experienced by a person with a disability in accessing healthcare. Furthermore, it illustrates how diagnostic overshadowing, exclusion from supported decision making and lack of accountability can result in

[37] Rhonda Olkin, ‘Conceptualizing disability: Three models of disability’(2022) American Psychological Association 29. [38] Anna Lawson and Angharad E Beckett, ‘The social and human rights models of disability: towards a complementarity thesis’ (2021) 25(2) The International Journal of Human Rights 348, 348. [39] Ibid. [40] Jean-Francois Staszak, ‘Other/otherness’ (2008) 8 International encyclopedia of human geography 43. [41] Aurora Brinkman et al, ‘Shifting the discourse on disability: Moving to an inclusive, intersectional focus’ (2023) 93(1) American Journal of Orthopsychiatry 50, 50.

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discriminatory treatment and neglect and underscores the need for reform within the DDA to embed positive duties and clearer obligations on healthcare providers.

Background

“Darcy “(pseudonym) was one of a group of residents being transitioned from supported independent housing to new accommodation following the closure of a facility that had been their home for many years. Tasc was engaged to ensure that the residents rights, preferences and wellbeing were being heard and responded to during this process. Prior to the move, Darcy reported persistent pain in his upper stomach. He stated that the workers “knew the pain was there and would give him paracetamol in a few hours”. Darcy, a man in his early sixties was a gentle and polite individual who had spent decades adapting to institutional life and accommodating the needs of others before his own.

Despite his pain, Darcy was cogent, oriented to time and place, insightful, and eager to socialise with new people. In time he began sharing aspects of his life that were important to him – he was hopeful that his new residence would feel like a home and that it would be within walking access to the CBD. He had begun sharing points of sadness in his life while simultaneously expressing the hope that this move would be a fresh start.

Incident and Hospitalisation

Two days after moving into his new residence, he fell and was admitted to hospital. He had not hit his head but was reportedly rattled and confused. When his Tasc advocate saw Darcy in hospital four days later, he was agitated and disoriented. Less than a week later, the agitation and disorientation were worse. While he could ask for water and sit up, he could not answer questions on a mental status exam.

When the advocate raised concerns about the lack of medical investigation, the possible side effects of sedating medications, and the need to contact his GP or consider his preferences, the clinicians dismissed these points. They indicated that, regardless of the pending guardianship application, their treatment plan would not change.

The advocate was subsequently denied access for several weeks. Almost a month later, the lead support worker overseeing Darcy’s transition informed Tasc that Darcy had died. She herself had only been notified after receiving a call from the hospital morgue asking what should be done with his remains. No cause of death was communicated.

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Learnings from Case Study Relevant to The Disability Discrimination Act Review

This case study provides some critical learnings that are relevant for the review.

  1. Recognition of Discrimination in the Delivery of Healthcare The DDA should recognise discrimination arising from diagnostic overshadowing and failure to provide medical investigations or treatment due to assumptions about disability
  2. Introduction of Positive Duties for Health care Providers A positive duty should require healthcare services to take reasonable steps to ensure that people with a disability receive care on an equal basis with others, this includes proactive considerations of capacity, communication needs and supported decision making frameworks.
  3. Formal Recognition of Advocates and Support Persons The DDA should require healthcare providers to engage appropriately with recognised advocates or support persons when a person’s capacity is in question or when requested by the person with a disability.

Recommendations

  • Introduce a Positive Duty requiring Health care providers to take active steps to prevent discrimination and promote inclusion.
  • Require hospitals and health services to document how supported decision-making principles were applied in each case involving a person with a disability including how advocates and or support persons were involved.
  • Develop materials addressing the root causes of othering, focusing on interpersonal skills applicable across all patient interactions.
  • Include people with disabilities in co-designing guidance for positive duty obligations.
  • Update hospital policies and develop software tools to guide, document, and standardise decision-making for patients with disabilities.
  • Ensure exemptions are harder to achieve and link responsibility to funding and key performance indicators.
  • Train hospital staff and implement public awareness campaigns to integrate CRPD principles into policy and practice.
  • Establish disability liaison officer positions within hospitals and relevant organisations to provide guidance and oversight.

Together, these changes would address the systemic failures exemplified in the case study and move Australia closer to fully realising the right to health for people with disability.

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Conclusion:

Tasc is grateful for the opportunity to contribute to this consultation. We welcome any follow-up questions and are happy to provide further information or clarification on any matters raised in this submission. We look forward to working with Government to ensure that the rights of people with disability are fully realised and protected under Australia’s law.

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References

Articles

  • Aurora H Brinkman, Gianna Rea-Sandin, Emily M Lund, Olivia M Fitzpatrick, Michaela S Gusman and Cassandra L Boness, Aurora Brinkman et al, ‘Shifting the discourse on disability: Moving to an inclusive, intersectional focus’ (2023) 93(1) American Journal of Orthopsychiatry 50.
  • Anna Lawson and Angharad E Beckett, ‘The social and human rights models of disability: towards a complementarity thesis’ (2021) 25(2) The International Journal of Human Rights 348, 348.
  • Don Mackay, ‘The United Nations Convention on the rights of persons with disabilities’ (2006) 34 International Law and Comparative Law Journal 323.
  • Ursual Meidert, Godela Donnges, Thomas Bucher, Frank Wieber and Andreas Gerber-Grote, ‘Unconscious bias among health professionals: a scoping review’ (2023) 20(16) International Journal of Environmental Research and Public Health 6569.
  • Rhonda Olkin, ‘Conceptualizing disability: Three models of disability’(2022) American Psychological Association 29.
  • Jean-Francois Staszak, ‘Other/otherness’ (2008) 8 International encyclopedia of human geography 43.
  • Linda Steele, ‘Making sense of the Family Court’s decisions on the non-therapeutic sterilisation of girls with intellectual disability’ (2008) 22(1) Australian Journal of Family Law 1.
  • Laura Van Puymbrouck, ‘Explicit and implicit disability attitudes of healthcare providers’ (2020) 65(2) Rehabilitation Psychology 101.

Legislation

  • Accessible Canada Act 2019.
  • Disability Discrimination Act 1992 (Cth).
  • Human Rights Act 2019 (Qld).
  • Sex Discrimination Act 1984 (Cth).

Treaties

  • International Covenant on Civil and Political Rights, opened for signature December 16, 1966, 999 UNTS 171 (entered into force 23 March 1976).

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  • United Nations Convention on the Rights of Persons with Disabilities and Optional Protocol, opened for signature 30 March 2007, 61 UNTS 106 (entered into force on 4 November 2016).

Other

  • Australian Government Department of Health, International Disability Rights (Web Page) https://www.health.gov.au/topics/disability-and carers/empowering/international-disability-rights.
  • Australian Government, ‘Disability Discrimination Act 1992 Review’ Disability Discrimination Act 21.
  • Australian Government Productivity Commission, Review of the Disability Discrimination Act 1992, Productivity Commission Inquiry Report.
  • Australian Human Rights Commission, Disability Justice Strategies an Introduction, 2022.
  • Australian Human Rights Commission, Improved Rights Protection for People with Disability (Web Page) https://humanrights.gov.au/our-work/projects/improved-rights-protection-people-disability-2009.
  • People with Disability Australia, ‘PWDA Language Guice: A guide to language about disability (Aug 2021 update)
  • TASC National, Casework and Advocacy Data, 2023–24 (unpublished)
  • The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Final Report 2023).