The Office of the Public Guardian – Submission to the Joint Standing Committee on the NDIS
Introduction
The NDIS legislation, Tasmania’s Guardianship and Administration Act 1995 and the United Nations Convention on the Rights of Persons with Disabilities provide a human rights approach to supported and substitute decision-making arrangements.
Collectively, they affirm:
- Adults are assumed to have the capacity to make a decision unless it is established that the person is unable to understand, retain and weigh up information relevant to the decision, and to communicate the decision by some means.
- Adults with disabilities have the right to make their own decisions, or to participate as fully as possible in decision-making.
- Persons with disability are to be provided with support to help them make and implement decisions.
- Families, carers, other significant people and advocates have a legitimate and vital role in supporting people with disabilities with decision-making.
- Substitute decision-making should only be used as a last resort, when all forms of support have been exhausted.
- Capacity is specific to the decision at hand. It can fluctuate depending on a range of factors, including the complexity of the decision, the person’s physical and emotional health, and, importantly, the support they have to make the decision.
Supported Decision-Making Practice
Although it is not always possible, supported decision-making is, and for many years has been, the preferred practice approach of the Office of the Public Guardian in Tasmania. It allows the represented person choice and control over decisions in their life. It also empowers them to build capacity and helps them to work towards not needing a guardian.
The Guardianship and Administration Act, 1995 (Tas) is currently in the process of reform, providing a legislative basis for a definitive shift to a ‘rights, will and preference’ decision-making approach to guardianship and administration. This will be achieved by removing of the ‘best interests’ test for determining how decisions should be made concerning people with impaired decision-making ability and substituting a ‘will and preference’ test. This means that substitute decision-makers should only override the wishes and preferences of persons in narrow circumstances, including the prevention of serious harm. The draft Bill also provides new objects and principles, including applying the principles of the United Nations Convention on the Rights of People with Disabilities and removing the criteria of disability as a stand-alone test of impairment.
The Office of the Public Guardian’s NDIS Decision-Making Process
When appointed by the Tasmanian Civil and Administrative Tribunal (TasCAT) to make NDIS-related decisions, guardians will advocate for supported decision-making where possible. A guardian will make a substitute decision, only in circumstances where the person cannot be supported to make a decision themselves about the services they receive.
Where a substitute decision is required, the guardian provides written consent to confirm the decision made. Guardians do not sign service agreements on behalf of the participant but ask the Support Coordinator to ensure the service agreement aligns with the participants plan and goals.
When the Public Guardian is able to practice or promote supported decision-making, it can often result in the guardian needing to make no decisions for the person - as the guardian advocates for others to step in to support the represented person in maintaining choice and control over the services they receive. Despite this, when a guardian is appointed, the NDIS routinely expects the guardian to be actively involved in NDIS planning and review processes, despite the guardian advocating for the participant to be supported to make their own decisions. There appears to be an ongoing perception within the NDIS that when a guardian is appointed, they must be actively involved to represent the participant, even when the participant can fully participate themselves, either with or without support. This is perhaps driven by the wording of the authority given to guardians, to make any decisions required in respect of any NDIS plan development, plan implementation and/or plan review, which is very broad and unspecified. The OPG would like to see further education and development across the NDIS to ensure that supported decision-making can be acknowledged and sustained, even when a substitute decision-maker is appointed. An example of where the NDIS has failed to recognise supported decision-making and participation of the participant and their supports in decisions is provided below:
When contacted to arrange a planning meeting for GS, the guardian advised that, in line with the best practice principles of guardianship of supported decision-making and least-restrictive options, they would not participate in the planning meeting as GS would participate with supporters who know her well and had sufficient expertise in her future goals and support needs.
The number of NDIS participants for whom the OPG acts as guardian
Within previous Public Guardian Annual Reports, it has been noted that the number of NDIS participants for whom the OPG acts as guardian has markedly increased since the roll out of the scheme. Details of the number of NDIS participants under the guardianship of the Public Guardian over the past 4 financial years is as follows:
| Active cases - proportion by NDIS | 2019/20 | 2020/21 | 2021/22 | 2022/23 |
|---|---|---|---|---|
| participation | 57% | 59% | 52% | 64.5% |
Since the scheme’s initial roll out, the OPG has observed and experienced NDIS processes creating high numbers of decisions and other associated activity, resulting in an enormous impact on the OPG’s workload. In these cases, the primary role of the guardian is effectively one of advocacy - often supporting the represented person to make decisions themselves regarding services under their NDIS plan.
During the initial roll out of the scheme, there was a view that a substitute decision-maker was required to validate the contractual requirements of the NDIS. That thinking seems to have matured, with Support Coordinators now often recognising their role as a decision- making support for NDIS participants. Scrutiny applied through the Tribunal in ensuring the least restrictive option has resulted in a greater understanding of the options outside of the appointment of a guardian for NDIS decision-making.
Arguably, the scheme did not initially respond adequately to the needs of people with a cognitive disability and this has strengthened over recent years as the scheme matures. However it should be noted that, despite efforts of the scheme to invest in supported decision making and exhausting all alternative options prior to seeking a substitute decision, there is still a cohort for which a substitute decision maker is viewed as the only viable option. There remain occasions where a person is appointed a guardian due to the belief
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that the person cannot understand the complex paperwork and processes of the NDIS. There was a recent guardianship appointment made by TasCAT:
- Guardianship was proposed for an NDIS participant who had been under a Care and Protection Order until he turned 18 years of age. Child Safety Services made a guardianship application on his behalf, just after his 18th birthday.
At the time of the guardianship hearing, the participant already had an array of NDIS-funded supports in place. He was living in supported accommodation with 24/7 support. He had an NDIS Support Coordinator, a Behavioural Support Practitioner (BSP) and a Plan Manager involved. A new 12-month NDIS Plan was in place.
At the Tribunal hearing, the Support Coordinator, Child Safety Officer and BSP provider all advocated strenuously for the appointment of a guardian, believing it was necessary for substitute NDIS decisions to be made for the participant. They explained that the participant lacked understanding of “complex NDIS processes”. In particular, service agreements, which were described as legal documents that contain complicated jargon and detailed financial content.
The guardian in attendance submitted that when appointed, the Public Guardian only provides consent for the involvement of a service with the participant, it is not responsible for taking complex jargon or financial content into account. Further, the most critical NDIS services were already in place for the participant and that the participant seemed willing and able to make support-related decisions for himself. She advocated for the least restrictive alternative – for attempts to be made to support the participant make his own NDIS decisions prior to consideration of guardian appointment.
The Public Guardian was appointed to make NDIS decisions on behalf of the participant. Since this appointment, the Public Guardian has encouraged the participant’s service providers to support him to make his own NDIS-related decisions. It has not been necessary for the Public Guardian to make any substitute decisions on his behalf to date.
The need for guardianship appointments in these instances requires further consideration.
I note the positive efforts made by the NDIS in terms of support for people within the NDIS to make their own decisions via the NDIS Supported Decision Making Framework, 2023. Within the framework, guardians are referred to as representatives, as they have the authority to make decisions on behalf of the person they represent. It does not explore how NDIS processes can acknowledge supported decision-making when a substitute decision-maker/representative is in place, i.e. accepting that the representative may step back from direct decision-making if it has been assessed that the person can be supported to make their own decisions. Additionally, the policy framework has largely focused on capturing existing decision-making (including substitute decision-makers such as guardians) rather than on clearly increasing the capacity within the NDIS and the services it funds to support participant decision-making in a way that specifically responds to reducing the need for substitute appointments for NDIS purposes.
There is reference within the framework relating to “funding of decision support” which outlines the commitment of the NDIS to consider what decision-making support needs a participant may have, and indicates that decision-making support can be funded by NDIS
Where the support is “reasonable and necessary”
Further, it outlines where decision-making support may come from, which include:
- Microboards
- Circles of support
- Network facilitator
- Decision coaches
These mechanisms may enable the establishment of formalised networks of support for a participant, however, for many it may not be individualised or flexible enough to assist the participant to fully participate in decisions over time. The OPG would like to see an increased appetite for “reasonable and necessary” support to be funded in certain NDIS plans, such as those participants who do not have family members or other informal supporters who are available and able to assist them to make relevant decisions. This would help to reflect the additional time and resources required to undertake supported decision-making and could build the capacity of participants to maintain choice and control on an ongoing basis. Additionally, funded support within a participant’s Plan could be utilised as an alternative to a guardian being appointed with NDIS decision-making powers. It would be important for NDIS to proactively identify this support option in circumstances where the person is subject to a Guardianship Order or proposed Guardianship Order. Further development of this option would be beneficial in responding to the increased numbers of NDIS participants for whom the OPG is appointed, by avoiding Guardianship Orders being made.
The ability of NDIS to effectively respond to participants presenting with psycho-social disabilities.
NDIS processes remain to be counterproductive for people presenting with a psycho-social disability. When represented persons are asked to look at and sign service agreements, due to the very nature of their disability, this can increase their anxiety and paranoia. This can then lead to an application for a guardian to be appointed which propels the person into a bureaucratic and formal tribunal process. The cohort would benefit from the NDIS scheme looking at a better way of serving them, which is more focussed on the individual’s needs rather than the financial risk management of the Agency. There seems to be an inequity where the CEO of the NDIS can appoint a plan nominee for a participant whose decision-making incapacity comes from an intellectual disability but not if that impairment is due to a mental illness.
Additional areas that would benefit from further development
The OPG holds concern about situations where a NDIS participant is receiving “all of life” service provision from one primary service provider. For example, a participant has support coordination, day support and accommodation support provided by one organisation. This could lead to conflicts of interests. For example, a support coordinator who is employed by the same organisation as the day and accommodation support may be hesitant and conflicted if they identify that their own employer is not adequately meeting the needs of the participant. This poses a conflict of interest and may limit objectivity and person-centred service provision.
-participant had “all of life services” with one provider. Changing the support coordinator and then possibly other service/s has led to the issues for the application in the first instance dissipating, and a revocation of the guardianship order.
The OPG would like to see NDS develop a policy position on all of life support being provided by one organisation and approve these arrangements only in exceptional circumstances with regular oversight and monitoring.
As previously detailed in a joint submission from the national Public Guardians and Advocates, other improvements to the facilitation of meaningful participant engagement with NDIS processes could include:
- Simplified and standardised service agreements which participants and their support networks can understand;
- A single point of contact, such as Support Coordinators, for participants and their support networks;
- Streamlined application processes and reduced red-tape to lessen the administrative burden and quantity of transactions for participants, their support networks and the NDIS. A recent example of where NDIS administration processes appear to be overly complex and time-consuming is as follows:
A guardian spoke to a Planner and confirmed the correct address for a participant when involved in a planning meeting. A week following the planning meeting, the planner still didn’t have the current address and they advised they couldn’t update it and asked the guardian to email enquiries. As requested, the guardian emailed inquiries and they reply stating that they are unable to update the address following an email request and that the guardian needed to call 1800800110.
This is a frustrating and time-consuming situation for the guardian, but more importantly it raises significant concerns about how participants and their families manage to navigate the often conflicting advice and complex administration steps involved in simply updating a participant’s home address.
Thank you for the opportunity to participate in the upcoming Joint Standing Committee Hearing on the NDTS. I look forward to attending the hearing in person, with my colleagues, to further expand on this submission.
Sincerely,
Angela McCrossen Acting Public Guardian Office of the Public Guardian Tasmania