National Disability Services Submission: Supported decision making in NSW

Submission No 14

SUPPORTED DECISION-MAKING IN NSW

Organisation: National Disability Services

Date Received: 12 March 2026

National Disability Services

National Disability Services Submission:

Supported decision making in NSW

About National Disability Services

National Disability Services (NDS™) is Australia’s peak body for disability service organisations, and Australia’s biggest and most diverse network of disability service providers. Our valued members collectively operate several thousand services for more than 300,000 Australians with disability and employ a workforce of more than 100,000 people.

NDS is committed to a sustainable and diverse disability service sector, underpinned by the provision of high quality, evidence based practices and supports that strengthen, safeguard and provide greater choice for people with disability in Australia.

Acknowledgement of Country

NDS acknowledges the Aboriginal and Torres Strait Islander peoples as the Traditional Custodians of the lands, waters, and skies where we live, learn and work. We pay our respects to Elders past, present, and future and honour the enduring cultural authority, knowledge systems, and Ways of Knowing, Being and Doing that continue to strengthen communities across Australia.

1.0 Introduction and Overview

NDS is pleased to respond to the NSW Parliament Committee on Ageing and Disability Inquiry into supported decision making (SDM) for adults with disability and older people. As the national peak body representing disability service providers, NDS is committed to advancing practice that upholds the dignity, rights and autonomy of people with disability. The Terms of Reference (ToR) focus on lived experience, barriers across systems, culturally safe practice, the role and functions of the Ageing and Disability Commission (ADC), and safeguards to ensure substitute decision making (SubDM) is used only in limited and appropriate circumstances.

NDS position on SDM

NDS supports SDM as the best practice approach to uphold the rights, dignity and autonomy of people with disability and older people, and to enhance people’s ability to make their own decisions. SDM starts from the presumption that people have the right to make decisions about every aspect of their lives, and that where a person has difficulty making a decision, the first response must be to provide tailored supports that enable the person’s will, preferences and rights to direct the decision. When someone makes a decision on behalf of another person without their consent, a fundamental right is being denied. For people who need support when making a particular decision, SDM is an approach that demonstrates respect for peoples’ rights to make decisions about their own lives.

A long‑term vision of an Australian society that embeds supports for decision making, appropriately funded for all those who require it, is a welcome goal for us all to work towards. Deciding With Support is a resource funded by the NDIS Quality and Safeguards Commission and helps people and those supporting them to make decisions about their behaviour support plans.

NDS wholeheartedly agrees that a SDM framework is an opportunity to establish a shared understanding of concepts and principles of SDM. NDS also concurs with the broad

direction to move towards SDM and away from SubDM, noting the complexity of multiple systems and the need for clarity of roles and responsibilities.

NDS recognises SDM can be simple in concept but complex to do well. Effective SDM requires time, relationship building, accessible information and communication supports, skilled supporters, and safeguards to reduce coercion and conflict of interest. Because gaps will sometimes exist, for example, thin markets, lack of trusted supporters, fluctuating decision-making ability, or urgent decisions, SubDM must be strictly limited to a genuine last resort, used in appropriate and limited circumstances, with clear evidence that SDM has been attempted and with strong safeguards and review pathways.

NDS also emphasises that SDM must be implemented across the legal, financial, health, education, employment and care systems. In the NDIS context, providers are already obliged to support informed choice and independence, but SDM will not be consistently realised without whole of government alignment, clear guidance, training, and resourcing that recognises the real time cost of decision support.

In this submission, NDS comments on considerations for successful implementation of SDM in NSW that relate to systemic context and cross system barriers, the role of providers, safeguarding mechanisms, and the importance of broad stakeholder education. NDS has contributed to SDM reform and practice for several years, including through submissions to the Disability Royal Commission (DRC) on SDM and guardianship, and provides practical guidance and training for providers who support people with disability and older people.

The current policy landscape

United Nations Convention on the Rights of Persons with Disabilities

The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) aims to “promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities”. Under the Convention, the general principle of Article 3 is “Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons”. A SDM framework based on the will, preferences and rights of individuals is an essential component of a mature rights based model of support, and of an inclusive society.

The shift towards SDM and away from SubDM should be carefully implemented. Reform needs to avoid gaps that leave people with disability and older people without appropriate safeguards or decision support. SDM requires time to understand a person’s communication, build trust and develop skills. NDS considers there will still be situations where support arrangements change, a person’s decision making ability changes, markets are thin for specialist support, or a supporter has a conflict of interest on a particular issue. If last resort SubDM is not available, informal or ad hoc arrangements may develop, which can increase risk for people with disability and other parties. While NSW and national reform directions continue to mature, NDS notes the relevance of reform approaches that limit SubDM to a last resort where supports cannot fully resolve these gaps. The NSW Council for Intellectual Disability (CID)’s position statement on SDM and guardianship law reform similarly emphasises the national decision making principles work and the role of supports and adjustments in decision making capability.

NSW and National Reform

NSW has embedded SDM principles in policy, but it has not enacted a dedicated legislative framework. This contributes to inconsistent practice across systems and may create misalignment as Commonwealth reforms continue to develop. Australia’s obligations under the UNCRPD require jurisdictions to privilege SDM over SubDM.

National reform work provides clear direction and this inquiry sits within a broader national reform landscape. The NDIS Review includes a recommendation focused on better support for people with disability to make decisions about their lives, alongside related recommendations on navigation, safeguarding, reducing restrictive practices, and building skilled capability across agencies. The DRC also set out recommendations that cover SDM principles, decision making ability, formal supporters, safeguards, cultural safety, and representatives as a last resort.

In response to the DRC, NSW has indicated that systemic advocacy to promote SDM remains subject to further consideration, including in relation to Recommendation 6.13 on information and education. This inquiry is a timely opportunity to translate that intent into practical and consistent action, and codify SDM into NSW law.

2.0 NDS Recommendations

NDS supports SDM as the best‑practice approach to uphold rights, autonomy and dignity, recognising SDM must be operationalised through consistent cross system expectations, practical supports and safeguards, with SubDM retained only as a genuine last resort. We commend the Committee for a ToR that examines lived experience, cross system barriers, the ADC’s role, and mechanisms to minimise reliance on SubDM.

NDS recommends that the NSW Government:

1. Adopt a whole of government SDM Framework that applies across legal, financial, health, education, employment and care systems, with shared principles, definitions and practical guidance.
2. Make SDM the default approach, through policy and legislative change, so decisions are directed by the person’s will, preferences and rights, with safeguards against violence, abuse, neglect and exploitation.
3. Strengthen the ADC’s system leadership role to issue authoritative guidance, coordinate cross system implementation, and monitor and publicly report on SDM uptake.

4. Invest in SDM capability and infrastructure so SDM is operational, not aspirational, including workforce training, practical tools and resources, communication supports, and lived‑experience/peer and independent advocacy capacity.
5. Sufficiently fund independent advocacy and decision support pathways so people can access conflict free support to express will and preferences, navigate systems and participate in decisions, particularly where there is risk of coercion or conflict of interest.
6. Embed culturally safe SDM by resourcing Aboriginal community-controlled organisations and culturally and linguistically diverse (CALD) community organisations to co design and deliver culturally grounded SDM models.
7. Limit SubDM to genuine last resort, by requiring evidence that SDM has been attempted, ensuring orders are time limited and regularly reviewed, and establishing clear pathways to step down substitute arrangements where SDM becomes possible.
8. Investigate and address drivers of guardianship and financial management, including system factors that direct people into SubDM when SDM is absent and plan to reduce preventable substitution.
9. Align funding and commissioning settings to support SDM in practice, particularly for people with disability and older people.

These recommendations are consistent with national reform directions set out in the NDIS Review and the DRC.

Lived experience and co design are cross cutting requirements across all recommendations. SDM reform must be grounded in lived experience and co‑designed with people with disability including people with intellectual and cognitive disability, older people, families and supporters, and supported by practical education, capability building and accessible resources so rights‑based intent translates into consistent day‑to‑day practice across NSW systems.

NDS’s recommendations are mapped against the inquiry ToR below:

Terms of Reference	Recommendation
a) Lived experience	2, 4, 5
b) Barriers across systems	1, 2, 3, 4, 6, 7, 8, 9
c) Aboriginal and CALD	6
d) ADC role and function	1, 3, 4, 5
e) Changes / legislative amendments	1, 2, 3, 7
f) Limits on SubDM	2, 5, 7
g) Other related matters	1, 2, 3, 4, 5, 6, 8, 9

Recommendations

Recommendation 1: Adopt a whole of government SDM Framework

Across NSW systems, people with disability and older people encounter practical barriers to getting the support they need to make their own decisions, including inaccessible information, compressed decision timeframes, and inconsistent recognition of chosen supporters.

NDS supports SDM as the best practice approach to uphold the rights, dignity and autonomy of people with disability and older people, and to strengthen people’s ability to make their own decisions. SDM starts from the presumption that every person has the right to make decisions about their own life, and that if a person has difficulty making a particular decision, the first response should be to provide tailored supports that enable the person’s will, preferences and rights to direct the decision.

However, SDM is frequently undermined when it is treated as a disability specific concept or good practice applied inconsistently. NDS supports the development of a whole of government SDM Framework because people make decisions across all parts of life, including legal, financial, health, education, employment and care, and the barriers experienced in one system often drive people into more restrictive arrangements in another. It is noted by NDS and other peaks that SDM remains discretionary rather than embedded and is frequently overridden by risk averse cultures and capacity focused decision pathways.

A statewide framework provides the practical bridge between rights‑based commitments and day‑to‑day implementation. NDS’s resource People with Disability and SDM in the NDIS: A Guide for NSW Providers notes SDM can appear straightforward but is complex to do well, requiring time, relationship building, communication supports, and consistent organisational practices. Without shared guidance, workers and agencies default to ad hoc thresholds for capacity or move prematurely to SubDM, particularly in high‑pressure contexts such as health, mental health crises, and complex financial decisions.

A whole of government framework also supports consistency and interoperability across systems. CID’s position highlights that due to limited resources and knowledge, disability, health, legal and financial systems can funnel people into guardianship and financial management, and that informal and formal supporters are not adequately recognised or guided in good SDM practice. In practice, this means a person may have supporters and communication strategies that work well in one setting, but those supports may not be recognised by another agency, creating preventable escalation to substitute arrangements.

The DRC’s SDM principles provide a clear blueprint for what should sit at the core of a NSW framework. The DRC calls for reforms that recognise the equal right to make decisions, a presumption of decision making ability, respect for dignity and dignity of risk, recognition of informal supporters and advocates, and equitable access to support to enable people to participate in decisions and communicate will and preferences. A whole of government framework in NSW is a practical mechanism to translate these principles into consistent expectations and tools across mainstream systems.

NDS notes SDM is already embedded within key NDIS expectations for registered providers. The NDIS framework emphasises informed choice and independence, and NDS’s SDM Guide explains that providers must actively support participants to make their own decisions, have systems to ensure decisions made on a person’s behalf occur lawfully, and ensure staff have the training and tools to support decision making. NDS’s submission to the DRC also points to the opportunity for an integrated approach, ensuring SDM is reflected not only in safeguarding frameworks but in policies, processes and systems more broadly.

The NSW Government has referenced SDM in policy but has not yet codified SDM in a way that ensures consistent application across systems, creating the risk of ongoing inconsistency as Commonwealth reforms continue to evolve. A NSW SDM Framework would reduce this mismatch by providing a shared operating model for SDM across mainstream agencies and the disability sector.

NDS recommends the Framework include, at minimum:

a) Shared definitions and principles aligned with the DRC SDM principles, including will and preferences, presumption of ability, dignity of risk, access to support, and safeguards. b) Practical guidance that recognises decision making ability as decision specific and changeable over time and avoids relying on assessment tools designed for other settings without adaptation. c) Guidance on recognising and working with informal supporters, advocates, and peer supports, including conflict of interest considerations and safeguards to reduce coercion. d) A clear approach to cultural safety, including recognition of collective and relational decision making approaches for Aboriginal people and from CALD backgrounds. e) Standardised tools and templates that mainstream agencies can recognise, for example recording will and preferences, communication methods, supporter roles, and advance preferences, to reduce cross system rejection of SDM arrangements.

Implementation will only succeed if the Framework is accompanied by capability uplift and access to support. In 2025, NDS’s State of the Disability Sector report reported that only 15 per cent of providers in NSW identified there was sufficient advocacy for people they support illustrating the risk that SDM remains theoretical where people cannot access independent support to express will and preferences.

A whole of government framework, paired with resourcing and training, is therefore required to ensure SDM becomes a lived reality rather than an uneven practice dependent on individual services or discretionary judgement.

NDS supports a whole of government NSW SDM Framework because it is an effective way to operationalise rights based SDM principles consistently across systems, reduce premature reliance on SubDM, and align NSW practice with national reform directions and the DRC’s recommendations.

Recommendation 2: Make SDM the default approach

NDS’s SDM guidance emphasises that when another person makes decisions on behalf of someone without their consent, a fundamental right is denied, and that seeking another person to make a decision should be approached with extreme caution and treated as a last resort.

In practice, SDM is often applied inconsistently and can be displaced by risk averse cultures or capacity‑threshold thinking particularly in health, mental health, aged care, and statutory settings. People’s access to SDM can depend on individual practitioners, services or advocates rather than clear and consistent expectations across systems.

This is why NDS recommends NSW set a clear expectation, through policy and where required legislative change, that SDM is the default approach and SubDM is the exception. This approach aligns with the DRC’s direction that SDM should be embedded in guardianship and administration law and practice, and across other systems over time, so SubDM occurs only as a last resort and in the least restrictive manner.

Making SDM the default must include an explicit requirement that decisions are directed by the person’s will, preferences and rights. This is consistent with the National Disability Insurance Agency (NDIA)’s SDM Policy, which is guided by principles including that “decisions are directed by a person’s own will, preferences and rights.” It is also consistent with the SDM principles outlined in the DRC progress reporting, including a focus on respecting decision‑making rights and supporting participation.

Embedding “will and preferences” as a default requirement is critical because it shifts practice away from substitute pathways that can unintentionally prioritise administrative convenience, service risk management, or others’ judgements over the person’s expressed preferences. CID similarly notes that where substitute decision makers are appointed, people can be prevented from accessing their decision making rights, and that guardianship is not always operating as a true last resort.

NDS strongly supports the inclusion of safeguards alongside a default SDM approach. This is consistent with national directions: the NDIA policy principle set explicitly includes

“appropriate and effective safeguards against violence, abuse, neglect or exploitation.” It also aligns with the NDIS Quality and Safeguards Commission Practice Standards, which emphasise participant rights, independence and informed choice, and explicitly address participants’ rights to live free from violence, abuse, neglect and exploitation.

For NDS, safeguards in a default SDM model should operate in two ways. First, safeguards should protect the person’s decision making process, ensuring decision support does not become undue influence, coercion, or conflict of interest decision making by another name. This is particularly important where supporters are also service providers, family members under stress, or where a person is socially isolated.

Second, safeguards should protect the person from harm while respecting autonomy, recognising that dignity of risk is part of rights‑based practice, but safety obligations remain. The DRC’s SDM principles include explicit recognition of dignity and dignity of risk, and the need for equitable access to supports to enable participation and communication of will and preferences.

The DRC progress reporting shows NSW has recorded some SDM and guardianship reform recommendations as subject to further consideration, including in the cluster that positions representatives as a last resort. NDS considers this Inquiry a practical opportunity to translate national reform direction into clear NSW expectations where SDM is consistently applied and supported by safeguards that reduce the likelihood that SubDM is used by default.

Recommendation 3: Strengthen the ADC’s system leadership role

NDS supports strengthening the ADC’s system leadership role because SDM will not be embedded consistently across NSW without an authoritative, cross system steward. SDM will need to be consistently applied across NSW legal, financial, health, education, employment and care systems. A strengthened ADC role is therefore necessary to translate SDM expectations into consistent practice across NSW agencies and settings, and to reduce the conditions in which SubDM becomes the de facto pathway.

As noted previously, SDM remains unevenly understood and applied, and access to SDM depends on individual practitioners, services or advocates rather than enforceable expectations across systems. In that context, a system leader is required to set clear, authoritative expectations and to address the policy and practice gap that allows risk averse or capacity threshold approaches to override SDM in practice. The DRC Roundtable SDM and guardianship: Summary report (p.15) identified that being a supporter can be a heavy responsibility, including fears of “doing the wrong thing”. Clear, authoritative guidance and practical resources should acknowledge these concerns and provide workable, rights based solutions, particularly for providers operating in high consequence environments.

The DRC’s progress reporting also underscores the importance of system functions that go beyond individual cases, specifically information and education on SDM and systemic advocacy to promote SDM. NSW is recorded as continuing to consider these functions as part of its broader guardianship and SDM reform work, and the NSW Government response recognises that systemic issues relating to SDM align with the Commissioner’s existing systemic functions under the Ageing and Disability Commissioner Act. This creates a clear policy basis to strengthen the ADC’s leadership and reporting role in this area.

NDS recommends the ADC be empowered and resourced to issue authoritative, practice facing guidance that drives consistent implementation across agencies and settings where decision making is frequently contested, including during crisis, complex health decisions, restrictive environments, and complex financial decisions.

In practical terms, authoritative guidance from the ADC should do three things:

f) Clarify expectations for mainstream agencies and service systems that SDM is the starting point, consistent with national reform directions, so SDM is applied consistently. g) Support consistent recognition of supporters and participation across settings, so SDM is not accepted in one system and dismissed in another.

h) Reduce default SubDM by providing clear guidance on how to respond when decision making is complex, fluctuating or contested, so systems do not treat complexity as a trigger for SubDM.

The CID policy position recommends the development of an SDM framework: The Department of Communities and Justice (DCJ) should develop an SDM framework that includes policy and practice guidance on key concepts including decision making capability, will and preference, risk enablement, and cultural safety.

NDS supports the ADC being resourced to coordinate cross system implementation because SDM failure points often sit at the interface between systems. CID highlights that, in the absence of recognised SDM supports and guidance, multiple systems can direct people into guardianship and financial management. Coordination is therefore required to ensure SDM is workable across systems. The ADC is uniquely positioned to convene government agencies, disability representative organisations, advocates, and service providers around consistent practice expectations, and to identify and address system barriers that sit outside the remit of any one department or sector.

NDS recommends strengthening the ADC’s monitoring and reporting role because without visibility, SDM will continue to be applied unevenly, and SubDM can remain the default response in particular settings or cohorts without being detected early. Monitoring and reporting supports the national reform agenda. The DRC specifically recommends developing a national approach to collecting and publishing de identified data on support and representation arrangements, including numbers of formally appointed representatives and supporters and the extent of participation in proceedings, with appropriate disaggregation, including First Nations people and CALD people with disability.

In NSW, NDS recommends the ADC’s reporting include:

a) Where SDM is being applied effectively to lift and share practice examples across systems.
b) Where SDM is being bypassed including patterns that suggest SDM is not being attempted before substitute pathways are pursued.

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c) Indicators of default substitution such as trends in guardianship/financial management or other substitute arrangements where SDM supports may not have been available, recognised, or attempted.

Harmonisation across NSW systems is critical, including alignment between restrictive practice authorisation settings and SDM principles, with independent oversight and clear interfaces with existing regulatory bodies. Without this alignment, providers and decision makers will continue to face fragmented requirements that increase risk and administrative burden while undermining rights based practice.

Recommendation 4: Invest in SDM capability and infrastructure

NDS supports investment in SDM capability and infrastructure because SDM only works when systems and the workforce have the skills, time and tools to do it well. In order to deliver consistent SDM outcomes across NSW, broader capability uplift in mainstream systems and shared access to practical resources and communication supports is required.

Service providers who support people with disability and older people in NSW are a key element in facilitating SDM. NDS’s provider guidance identifies the minimum infrastructure required to embed SDM, including clear policies and procedures, training and supervision that reinforces rights, staff access to tools and resources, and systems that support lawful decision making processes. NDS contributes through practical resources and learning options, including the National SDM Guide and the SDM e-learning module. Through these resources, NDS has supported providers to consider policy and procedure to embed this human rights approach in their service provision.

Importantly, SDM capability cannot and should not only sit with service provider workforces alone. However, we need to take care in assuming all supporters, including families, professionals in other sectors and disability support staff, have the skills to support decision making.

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Building SDM infrastructure requires tools and education that support adoption across government agencies and the broader community, including targeted upskilling for advocates and other key stakeholders who influence decision pathways. This includes circumstances where systems default to substitute arrangements due to low SDM literacy or lack of recognised tools. This aligns with sector views that awareness and implementation remain low despite the existence of many resources, and that SDM should be embedded as a core skill across relevant workforces.

This approach is also consistent with disability representative organisations’ calls for structured state leadership on SDM capability. CID has specifically called for DCJ to develop an SDM framework with policy and practice guidance on will and preference, risk enablement, decision making capability and cultural safety. This reinforces the need for broader system stewardship and community wide capability building alongside provider training.

NDS agrees that the measures identified in the DRC Roundtable SDM and guardianship: Summary report are important components for successful implementation, including education and training opportunities for people with disability to build rights awareness and self advocacy, co designing best practice SDM resources with people with disability for different audiences, mandatory SDM training modules for health and other professional recertification, more robust piloting of SDM practices and sharing learnings, and strengthening education and capacity building of supporters.

NDS would also add targeted training in specific skill sets where decision complexity is heightened, including financial management and health related decision making, and notes that all new policy development and programs must involve service providers in design to support safe implementation.

NDS also notes the Roundtable’s observation that the supporter role can be a heavy responsibility, including fears of “doing the wrong thing”. Education and guidance should acknowledge these valid concerns and provide practical, rights based solutions, particularly for providers supporting people in high consequence settings.

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Clear plans are needed for building SDM knowledge and skills across the system so this does not default to an additional unpaid role for disability service providers. Providers are often turned to as a trusted connection for participants and families. However, system design should not rely on providers as the default source of navigation and decision support education without appropriate resourcing and accountability.

NSW should invest in accessible formats and supported communication, develop standardised SDM tools recognised across agencies, establish a planned dissemination approach with accountability so navigation does not default to providers, and develop specific strategies to reach self managing participants and families.

Recommendation 5: Adequately fund independent advocacy and decision support pathways

NDS supports funding independent advocacy and decision support because SDM cannot be relied on where the person does not have safe, trusted and redacted: conflict-free support, particularly in contested decisions, closed settings, or where there is risk of coercion or redacted: conflict-free conflict of interest. Whilst disability service providers may be integral to SDM in everyday practice, SDM requires safeguards against undue influence, and that decision support should not default to the interests or convenience of the supporting party. In the National SDM Guide, NDS explicitly cautions about conflict of interest and unconscious bias in who provides support, and notes that independent advocacy and specialist support may be needed to ensure a person’s will and preferences are genuinely heard.

There is strong evidence that current advocacy capacity is insufficient for the role the system requires. In NDS’s State of the Disability sector 2025, only 15 per cent of providers operating in NSW agree there is sufficient advocacy for the people they support which highlights a significant gap in independent supports that support choice, control and safeguards in practice. This aligns with broader advocacy sector evidence developed for the NDIS Review: DANA’s summary report on SDM identifies that advocacy organisations often lack capacity and capability for SDM due to funding constraints, training needs, and lack of recognition for the role, while also noting that SDM is time and redacted: resource-intensive

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and advocates face barriers accessing people who need SDM including people with disability who reside in group homes.

This recommendation is directly consistent with the DRC’s focus on strengthening advocacy as a safeguard and enabler of autonomy. The DRC progress reporting includes specific recommendations on additional funding for advocacy programs (Recommendation 6.21), improved data and reporting on met/unmet demand (Recommendation 6.22), and culturally safe disability advocacy (Recommendation 6.23).

NDS notes that the NSW Government has extended the NSW Disability Advocacy Futures Program with significant additional funding and is strengthening outcomes and reporting arrangements. This reinforces that advocacy investment is a recognised reform lever and should be aligned to SDM implementation.

This recommendation also aligns with the NDIA’s SDM Policy direction in the NDIS context, which recognises that where a person has no one to support redacted: decision-making, referrals to community and independent advocacy organisations may be needed.

NDS recommends funding be structured so that independent advocacy and decision support can be accessed in the situations where SDM is most likely to fail without conflict free support especially where:

a) the person is socially isolated or has no informal supporter;
b) there is an actual or perceived conflict of interest, including where service relationships, family dynamics, or system pressures may influence decisions; or
c) there is a heightened risk of coercion or exclusion from `redacted: decision-making` including in closed or restrictive settings.

Investment should also include capability uplift for advocates as SDM practitioners, consistent with the NDIS Review evidence that SDM support requires training and professional development, and the DRC’s emphasis on building advocacy systems, data and culturally safe practice.

A default SDM approach (Recommendation 2) and stronger ADC system leadership (Recommendation 3) will not deliver meaningful change unless people can access

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independent, redacted: conflict-free decision support when it is needed. NDS recognises the importance of properly funded advocacy as a practical safeguard that helps ensure SDM is not displaced by SubDM due to power imbalances, risk aversion, or administrative convenience.

NDS recommends that the role of service providers within SDM is explicitly defined in guidance and practice expectations, recognising that while providers are often central redacted: day-to-day supporters, people with disability and older people must be protected against undue influence where a supporter also has service delivery interests; this requires clear redacted: conflict-of-interest safeguards and accessible pathways to independent, conflict free decision support.

Recommendation 6: Embed culturally safe SDM

The Inquiry seeks evidence on lived experience, including the distinct experiences of Aboriginal people and people from CALD backgrounds, and this evidence should underpin SDM reform in NSW.

SDM reform will only be effective if it is grounded in the lived experience of people with disability and older people, and shaped by the realities of how decisions are currently made across systems. This is particularly important where people experience barriers to participating in decisions, or where systems rely on informal supports or practitioner discretion rather than consistent rights based practice.

The Inquiry highlights that SDM must work in the contexts where people navigate decisions, supports and risk. Lived experience evidence shows SDM can be unevenly understood and applied, with access often depending on informal supports, advocacy, or practitioner discretion rather than being embedded as a reliable rights based approach.

For Aboriginal and CALD communities, SDM must be culturally safe and community led, acknowledging diverse decision traditions, including collective processes, the role of Elders and kin, historical experiences with government, and the centrality of language, culture and trust. NDS therefore supports redacted: co-design and funding arrangements that enable Aboriginal Community Controlled Organisations and CALD community partners to

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develop and deliver culturally grounded SDM models, and notes redacted: co-design processes should explicitly include people with intellectual and cognitive disabilities.

The DRC’s SDM principles explicitly include recognition of diversity and cultural safety as guiding principles for SDM reform. The DRC also includes specific expectations about interpreter access. Interpreter access is a key enabler for autonomy and participation, including Auslan, First Nations sign languages and spoken languages other than English.

NDS recognises that culturally safe SDM in NSW cannot be achieved through translated materials alone and emphasises that culturally safe SDM depends on people being able to understand information and communicate will and preferences in the way that works for them. This includes accessible information, supported communication, and culturally safe ways of engaging with people and communities.

NSW already has an existing platform that can complement culturally safe SDM implementation through targeted supports and sector development funding under the Disability Advocacy Futures Program.

CID’s position statement highlights that people with intellectual disability, particularly First Nations people, experience high rates of guardianship and financial management, and that SDM frameworks must include cultural safety and practical supports.

NDS recognises that further work is required to develop culturally safe decision supports for First Nations people, including development of a First Nations SDM framework in partnership with First Nations people with disability.

NDS recommends NSW amplify and resource culturally safe SDM by funding Aboriginal redacted: community-controlled organisations and CALD community organisations to:

a) `redacted: Co-design` and deliver culturally grounded SDM models, including community decision protocols and culturally appropriate governance.
b) Provide interpreter/communication supports and culturally responsive information so people can participate and express will and preferences.
c) Pilot `redacted: community-embedded` SDM supporter roles for example, culturally grounded peer/supporter roles and evaluate outcomes to inform scaling.

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Recommendation 7: Limit SubDM to genuine last resort

NDS supports limiting SubDM only as a genuine last resort, because while guardianship and financial management may sometimes operate as a safeguard, it also removes or constrains a person’s legal agency and can become a default when SDM supports are not available, recognised, or properly attempted. NDS recommends that the NSW Government introduce clear statutory and practice guardrails so the system consistently starts with SDM and only moves to substitute arrangements when documented SDM efforts have been exhausted for the specific decision at hand.

CID’s position statement is explicit that guardianship should not be the first option and calls for “proof of SDM before guardianship”, requiring the applicant to present evidence of SDM strategies tried before NCAT makes a guardianship order. This direction aligns with the DRC’s reform architecture, including Recommendation 6.9 (“representatives as a last resort”) and related guardianship reform measures being tracked in the 2025 Progress Report, with NSW currently marked as “subject to further consideration” in this cluster.

NDS recommends the following decision gatekeeping rules that should apply when a tribunal or agency is considering SubDM:

a) Require evidence that SDM was attempted, and that attempts were decision specific and documented. NDS recommends NSW require documented, decision specific attempts at SDM, including what supports were tried, what adjustments were made, and what time was allowed before any tribunal or agency makes or endorses SubDM.
b) Time limit orders and require periodic review, with a presumption to restore SDM where feasible. NDS recommends substitute arrangements be time limited and reviewed regularly, with a default orientation to step back to SDM when it becomes possible. This is consistent with existing NCAT practice that guardians are appointed for a specified period and orders are reviewed at the end of their term.
c) Create clear step down pathways from substitute arrangements back to SDM. NDS recommends NSW establish clearer, simpler pathways to step down or revoke substitute arrangements when SDM is working so that SubDM does not

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become an entrenched, indefinite setting once imposed. This is part of NDS’s recommended “default to restoring SDM where feasible” approach. d) Anchor the threshold in “least restrictive” and the person’s will and preferences. NDS recommends NSW codify a redacted: least-restrictive test that is anchored in the person’s will and preferences, consistent with the DRC’s SDM principles and broader reform direction.

To make these guardrails real in day to day decision pathways, NDS notes the importance of tribunal facing implementation tools such as practice directions and bench books that reflect an SDM first orientation, alongside statewide guidance that supports consistent approaches to decision making ability and supports/adjustments.

Recommendation 8: Investigate and address drivers of guardianship and financial management

NDS supports targeted investigation into the drivers of guardianship and financial management because SubDM can become a “system solution” to system problems, particularly when people cannot access SDM supports, tools, or recognised supporters.

CID has called for NSW to investigate the increase in NCAT guardianship orders, including the causes, with stakeholder input and redacted: co-designed solutions. NDS considers this Inquiry an opportunity to recommend a structured NSW investigation that identifies preventable drivers of SubDM across systems people will access including legal, health, disability, aged care and financial systems. Findings should then be translated into a time bound action plan with measurable deliverables.

Without understanding the pathways that direct people into substitute arrangements, reforms risk treating guardianship/financial management growth as inevitable rather than preventable. The National Centre for Disability Advocacy Systemic Advocacy Insight Report 2025 highlights guardianship may be applied for as an “easy option” to manage certain situations and emphasises the need for guardianship to be used as a last resort.

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CID’s position statement also highlights that, due to a lack of resources and knowledge, multiple systems can push people into guardianship and financial management, and it frames “proof of SDM before guardianship” as a necessary safeguard.

The national reform directions explicitly emphasise the need for better data on support and representation arrangements. The DRC progress reporting for Recommendation 6.19 calls for a national approach to collecting and publishing de identified data on support and representation arrangements, including trends over time and disaggregation for priority cohorts. A NSW investigation and action plan should align with this direction by ensuring NSW data capture and reporting can inform both NSW reform and national monitoring. This includes visibility of trends in guardianship and financial management, and the extent to which people with disability who are the subject of proceedings participate in proceedings and how they participate.

NDS recommends the investigation culminate in a published NSW action plan that clearly identifies how people are moving into guardianship and financial management across systems and where SDM breaks down and sets out priority actions targeted at the most common preventable drivers identified through the investigation.

Aligned with the DRC’s emphasis on data collection and reporting, NDS recommends transparent monitoring measures so NSW can track whether reforms are reducing preventable SubDM and improving SDM access over time.

Recommendation 9: Align funding and commissioning to enable SDM

A long term SDM framework must be appropriately funded, and implementation requires a cost model that enables investment in SDM capability for people with disability, supporters and workforces. NDS supports aligned funding and commissioning settings across NSW so SDM can be delivered consistently in practice across all systems that support people with disability and older people in NSW. SDM cannot be expected to scale if the funding architecture does not recognise the time cost of decision support and the workforce inputs required to deliver it well.

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Disability service providers have a key role in SDM implementation, and that achieving SDM goals requires a funding approach that is “sufficient and well considered” for building the capability of people with disability, supporters, families and disability support staff. NDS supports pricing and commissioning settings that recognise SDM as real work (time, relationships, supported deliberation and communication support), and that enable providers to invest in SDM capability through training, supervision and practice leadership. Without effective market oversight and pricing/commissioning settings that recognise the cost of good practice, people with disability may not reliably receive the support they need to make decisions about their lives.

NDIS service providers have been encouraged to think of service provision in blocks of ‘billable hours’. Where individualised funding is tight and without recognition of the time and resources genuine decision making support takes, there is a risk that everyday opportunities for decision making may be missed, or ‘getting the job done’ may take precedence. Whilst speculative, gaps in funding for an individual could drive the need for SubDM higher. Funding capability development for people with disability and ensuring equitable access to support should be considered.

The NDIS Review Final Report highlights that people with cognitive disabilities can have limited opportunities to be involved in decisions about their lives and that there is no strategic approach to building redacted: decision-making capacity, reinforcing the need for deliberate investment in SDM supports and capability. Effective, safe SDM requires relationship building, time to understand a person’s communication, build trust and develop skills, along with accessible information and safeguards.

Disability service providers are trying to sustain a skilled workforce in an environment of high turnover and growing reliance on casual work. NDS’s Workforce Census 2025 shows NSW has the highest casual turnover nationally at 31 per cent, which makes sustained workforce development and consistent practice harder to maintain across services. SDM relies on skilled workers and takes time to do well, including time for supervision, training, redacted: relationship-building and supported deliberation, yet current price settings and planning approaches do not adequately recognise these inputs. The risk is that SDM becomes an

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unfunded expectation for disability service providers, even while expectations for quality and safeguards increase.

NDS’s State of the Disability Sector (2025) shows disability service providers are already delivering substantial amounts of unfunded but essential support including plan navigation, crisis responses and redacted: continuity-of-support activity that sits closely alongside SDM in practice. Providers reported approximately $69 million in unfunded supports over a redacted: 12-month period across the sample, averaging around $460,000 per organisation. In NSW specifically, provider viability pressures are acute. NSW data shows 44 per cent of providers report a loss and 29 per cent report breaking even, reducing the ability for providers to absorb additional unfunded requirements.

Clear plans are needed for building SDM knowledge and skills across the system so this does not default to an additional unpaid role for disability service providers. Providers report they are frequently turned to as a trusted connection for participants and families, and in NSW 87 per cent of providers agree or strongly agree that “helping people to understand and navigate the Scheme is taking us away from service provision”. NDS recognises the scale of unfunded supports and the fragility this creates for providers, particularly as the sector navigates a national complex reform agenda.

NDS notes that providers have trialled practical workarounds to ensure SDM is funded in NDIS plans, including equipping participants with quotes for planning processes that include time for people to develop redacted: decision-making skills; however, funding is inconsistently applied reinforcing the need for systemic funding alignment rather than ad hoc workarounds. Where SDM education, navigation and capability building are expected, funding and commissioning settings must resource this work so it can be implemented consistently and safely.

In the NDIS market, consistent safeguards and oversight are difficult when the provider market is predominantly unregistered: NDIA quarterly provider-market data (December 2025) indicated that around 6 per cent of active providers are registered with the NDIS Quality and Safeguards Commission and around 94 per cent are unregistered. Registered

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providers delivering NDIS services carry higher compliance and safeguarding obligations that underpin quality practice.

The DRC recognised this visibility gap and recommended that the NDIS Commission collect and publish clearer data about trends and risks in the unregistered provider market, including complaints, investigations and enforcement activity involving unregistered providers. NDS supports stronger market stewardship and more universal oversight settings so quality and safeguards are applied consistently across the whole provider market.

It is critical that funding and commissioning models recognise the real inputs required for safe, redacted: person-centred delivery for SDM and must explicitly resource best practice expectations so that SDM is implemented consistently and safely. NDS has argued that essential quality functions (including supervision, training and workforce development) should be funded through payment approaches outside participant plans.

3.0 Conclusion

NSW has a timely opportunity to move from policy aspiration to consistent, legislated SDM across the legal, health, financial and service systems people rely on every day. This submission sets out practical recommendations to strengthen system leadership, invest in capability including culturally safe models, ensure SubDM is a genuine last resort, and address the system drivers that funnel people into guardianship and financial management.

Critically, SDM will only be realised in practice if it is resourced as real work and funded accordingly, with funding, commissioning, and market stewardship settings that support quality and safeguards across the whole provider market and allow providers to invest in training, supervision and workforce development.

NDS welcomes the Committee’s focus on lived experience and implementation barriers, and stands ready to work with government and stakeholders to support an approach that strengthens autonomy, reduces preventable SubDM, and improves decision making supports for people with disability and older people across NSW.

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Contact

Lowri Williams

State Manager NSW

National Disability Services

redacted
redacted

NDS website

March 2026

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