Office of the Public Advocate
South Australia
Submission to the Joint Standing Committee on the National Disability Insurance Scheme Market Readiness.
23 February 2018
Contact Person about this submission:
Ms Anne Gale Public Advocate for South Australia
Introduction
The Office of the Public Advocate, South Australia (OPA) welcomes for the opportunity to provide a submission to Joint Standing Committee on the National Disability Insurance Scheme Market Readiness.
Role of the Public Advocate
The Public Advocate is an independent statutory officer appointed by the Governor to fulfil statutory responsibilities assigned under the s21 of the Guardianship and Administration Act 1993 (GAA). The Public Advocate also has responsibilities under the Advance Care Directives Act 2013 and Consent to Medical Treatment and Palliative Care Act 1995 as well as the Mental Health Act 2009 and Powers of Attorney and Agency Act 1984.
The Public Advocate is supported by OPA, to promote the rights and interests of people who may need assistance with decision making.
OPA promotes rights through delivering our services. Services includes giving advice, finding alternatives to guardianship, advocacy, investigations, resolution of certain disputes and acting as guardian of last resort. These are delivered by a team of professional and administrative staff.
The general functions of the Public Advocate are set out in s21 (1) of the GAA:
a) to keep under review, within the public and private sector, all programmes designed to meet the needs of mentally incapacitated persons; b) to identify any areas of unmet needs, or inappropriately met needs, of mentally incapacitated persons and to recommend to the Minister the development of programmes for meeting those needs or the improvement of existing programmes; c) to speak for and promote the rights of any class of mentally incapacitated persons or of mentally incapacitated persons generally; d) to speak for and negotiate on behalf of any mentally incapacitated person in the resolution of any problem faced by that person arising out of his or her mental incapacity; e) to give support to and promote the interests of carers of mentally incapacitated persons; f) to give advice on the powers that may be exercised under the Act in relation to mentally incapacitated persons, on the operation of the Act generally and on appropriate alternatives to taking action under the Act; g) to monitor the administration of the Act and, if he or she thinks fit, make recommendations to the Minister for legislative change;
The Public Advocate may be appointed as the guardian (or joint guardian) of a person with mental incapacity but only if the South Australian Civil and Administrative Tribunal (SACAT) considers that no other order would be appropriate.
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Introduction
The OPA appreciates the opportunity to provide a submission to the Joint Standing Committee on the National Disability Insurance Scheme Market Readiness. Please find our response to the consultation questions below.
Consultation questions
a. the transition to a market based system for service providers
The market system in South Australia is in its infancy but of particular concern is the market readiness for the provision of:
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Services in regional and particularly remote areas
Service provision in these areas has been historically challenging and particularly for remote communities. Clients have not always been able to access services needed due to tyranny of distance, transport, lack of critical mass for efficiencies in service provision; lack of skilled workers and the transient nature of the workforce. These issues will continue in a market based system and in fact could be hindered further given the extra costs of providing services in these areas. It is unlikely that a market response will mature if service providers do not know of or be offered incentives to provide in such location; or that clients are allocated extra funding in their plans to pay for the higher cost in service provision in these areas. This should be taken into consideration when developing participant plans and in growing a market response.
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Emergency and crisis responses (to replace provider of ‘last resort’ services).
In South Australia, the current state government role in such crisis service provision is due to cease on 30 June 2018 and it is unclear how appropriate service responses will operate after that date. The OPA understands that the NDIA is undertaking work on this issue, but clarity is needed as a matter of urgency as South Australia moves to full roll out. It is critical for clients to be able to access emergency accommodation and support services after hours (beyond 9.00am to 5.00pm) through their plans. However, it is equally imperative that the market can respond with service coordination and support to respond in such circumstances.
The roles and responsibilities of emergency responses needs to be transparent and if services or the market is not in existence, sufficient funds in clients at risk of emergency assistance must be built into plans. At this point in time, guardianship services are not resourced or expected to undertake service coordination, and as a result, a gap in service provision will arise if a participant requires emergency responses. The SA OPA understands that service coordination will not be available after hours and this is a significant gap in market service provision. This must be addressed as a matter of urgency.
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Service Coordination
The readiness of this services in South Australia is not readily apparent in all circumstances. Clients with complex needs require high levels of service coordination and available after business hours. There is little evidence that the market is ready to respond, particularly for complex customers with challenging behaviours. There is a significant risk that such clients will not be favoured by service providers (and therefore not provided with services) and the market must be
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matured as soon as possible to facilitate service coordination, particularly after hours. Again, there is little evidence that a market response will be available. This is critical for guardians who work with clients to make decisions about health, accommodation and lifestyle. In South Australia the Public Advocate’s delegate guardians are not service coordinators.
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Local Area Coordination
Only Feros is operating in South Australia at this stage and whilst Mission Australia and Bapcare have been recently appointed as LACS, it takes time for the services to understand the business of the Office of the Public Advocate and of adult guardianship. OPA has noted that it takes some time for the market provider to understand the role of guardians. The roles of planning, service coordination and decision making are blurred and market providers are ‘not mature in their understanding of the different roles and responsibilities.
b. participant readiness to navigate new markets
The Public Advocate delegates decision making authority to guardians within the OPA to make decisions about service provision on behalf of clients under guardianship who have been deemed eligible for NDIS. Some of these clients may have some capacity to provide their wishes in relation to lifestyle decisions and in some case are able to make these decisions in their entirety with support.
A significant number of clients under guardianship have limited understanding about the impact of transitioning from state based services to the NDIS. Due to their cognitive issues, their ability to navigate systems relating to the NDIS is significantly impaired.
In many cases, clients under guardianship require intensive case management and advocacy to ensure that they are provided with the correct information and as far as practicable including in the transition process. Whilst guardians are able to legally make the decisions on behalf of a participant, emphasis should be placed on ensuring that a participant is, as much as possible actively involved within the process.
Intensive and proactive support is required at the initial stages of transition to ensure that a client is able to access the scheme. Despite Local Area Coordination (LAC) being available to assist with this process, experiences so far within the OPA have found this service to be not readily accessible for clients with decision making incapacity. Instead the focus has tended on be on the guardian enabling the LAC process. Furthermore, where a LAC is involved, in some cases, their experience of what guardianship means for clients as well as the legal standing of guardianship orders has been limited.
A large number of clients under guardianship have lived in institutional care facilities for prolonged periods of their life. Despite the fact that they may now live in group homes, the initial decision to transfer them was made by the state services. Ensuring that these clients have understanding about alternative care arrangement should they wish this for themselves will require high levels of support coordination and targeted education. Any provision of education needs to take in to consideration a person’s mental incapacity and may need to be presented over several periods using multiple presentation styles.
To date, the market does not appear to be ready to respond to such situations and participants. This must be addressed as a matter of urgency to ensure the market to respond to the needs of participants with cognitive impairment.
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c. the development of the disability workforce to support the emerging market
The SA OPA has experienced low skill levels of some NDIA workers as well as market providers (LACS). The market is experiencing transition and some workers who are moving from state government employment to market providers. This has created a gap in OPA delegated guardians accessing former case managers to new service coordinators. As a result delegated guardians are being expected to fulfil such roles as the market is not ready to respond in a timely matter.
d. the impact of pricing on the development of the market
No comment
e. the role of the NDIA as a market steward
A focus on developing markets, particularly in regional and remote areas, and for emergency services is required in order to have a mature market. This may take time in a number of circumstances and where this occurs interim measures need to be implemented in order to avoid the service gaps outlined above. Market stewardship cannot be underestimated as a priority.
f. market intervention options to address thin markets, including remote Indigenous communities
Many issues relating to thin markets, including remote and indigenous communities have been outlined above. It is stressed that specialist services are required for NDIS participants who live in regional and remote areas, as well as the cultural needs that must be considered. As stated, market development in remote areas, for those with specific cultural needs, including indigenous, as well as participants with complex and high needs is urgent and critical. In the absence of market provision, alternative strategies are required as a matter of urgency.
In the absence of a market or where a thin market exists, participants’ plans must be adequately funded to accommodate the additional costs to engage a service provider from another location, including service coordination out of regular business operation hours.
g. the provision of housing options for people with a disability, with particular reference to the impact of Specialist Disability Accommodation (SDA) supports on the disability
At this stage, there is limited information about how housing options will be pursued and the rules are unclear. This is particularly critical for those participants who currently living in shared or group accommodation. The market is immature and it is likely that participants will simply ‘roll over’ into existing accommodation options (that may not be in accordance with the aspirational goals of NDIS). That is, participants may continue to live in shared or group homes with unrelated people without having choice to participate in alternative housing options due to a lack of the market providing choices.
In regard to many SA OPA clients who are currently inadequately housed they are unlikely to ‘qualify’ for high levels of SDA as they may not have ‘severe’ disabilities. For these clients, often living in supported residential facilities, in shared bedrooms, the SDA may not be sufficient to enable them to acquire their own independent accommodation.
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h. the impact of the Quality and Safeguarding Framework on the development of the market
Currently, a significant number of clients under guardianship have additional special powers orders in place which authorise the use of restrictive practises. Where a guardian is asked to make a decision about restrictive practise, a current Positive Behaviour Support Plan is required. The PBSP ensures that the guardian is only consenting to the use of restrictive practises as a last resort after a number of other strategies have been utilised. The plan also highlights the backgrounds and the number of professionals that have considered the situation prior to recommending the use of restrictive practise and reflects the oversight and review of such a plan. This information is key to ensure that when providing consent, the least restrictive option is being considered which is in accordance with state based guardianship legislation.
Currently, the wait for trained professionals who can undertake such plans is lengthy and in some situations, despite several alternatives being explored consent is provided without a PBSB. This is entirely due to the lack of trained PBS professionals and the inaccessibility of PBSP services. Many accommodation service providers recognise the importance of such plans however lack both the skill and/or resources within their own services to develop such plans. In some cases, behaviours of concern has arisen once the client has moved in to the accommodation on a permanent basis so accommodation providers are left to manage clients with little guidance, posing a risk for both client and worker.
The OPA understand that from 1 July 2018 the Quality and Safeguard Commission will have oversight of the use of restrictive practises which includes ensuring that participants have an up to date PBSP. From the 30th of September 2018, NDIS providers must notify the Commissioner of existing behaviour support plans for all clients within their service where restrictive practises exist. In many situations due to the lack of trained PBS practitioners and possible other factors, clients may not have a current PBSP. The understanding across the sector of restrictive practises as well as the potentially thin market (as described above) could result in the Commissioner receiving requests for extensions to this timeframe. There are current concerns that this then results in guardians continuing to provide consent for restrictive practises where no PBSP exists which increases the risk for clients being exposed inappropriate or unauthorised restrictive practices.
Whilst the OPA commends these targets and recognises the important role the Commission will play in ensuring appropriate use of restrictive practises, consideration needs to be given to the current lack of trained practitioners who can provide this service as well within some services an immature understanding of general restrictive practise frameworks and standards.
In preparation for the rollout in SA of the scheme, significant support needs to be given to the sector to ensure that they have a well-developed awareness of restrictive practice frameworks and are able to access and potentially employ qualified practitioners to undertake PBSP’s for their client base.
Over the last 12 months, the OPA has been contacted by a number of service providers seeking information about restrictive practices and requesting the OPA to review their internal restrictive practice policies in readiness for the NDIS. On several occasions, it has become apparent that service providers are experiencing challenges in understanding both legislative requirements and national standards. It has been OPA’s experience that on the whole, service providers want to provide a rights based service with a focus on least restrictive practices, however particularly the smaller service
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providers do not present as being “market ready.” Significant input, education and support is required to assist with this transition.
i. provider of last resort arrangements, including for crisis accommodation
The OPA has significant concerns about the arrangements for crisis response post June 2018 (see consultation question a-2). Currently clients under guardianship are able to access continuity of care arrangements with DCSI. These arrangements, enable a client to access emergency accommodation and/or services and on occasion funding for basic items such as food to ensure a person’s safety in the short term until alternative arrangements can be made.
Currently within DCSI, clients are able to contact Disability SA after hours should a crisis arise. Crisis can range from a breakdown of accommodation as result of an assault or a service provider being unable to manage behaviours of concern. Consideration need to be given to the provision of service coordination which responds after hours in the event of a crisis- (see consultation question a-3). Without this provision, guardians may be expected to provide such a response which is beyond their role, and can create a conflict of interest as well as being problematic as guardians do not have access to funding.
Many participants have limited capacity to navigate these systems and support services. Expecting that participants are able to access and navigate mainstream services during times of crisis is not reasonable and can place a client in a highly risky situation.
It is crucial that arrangements are in place in time for the rollout of full scheme to ensure that participants can continue to be provided with a disability focused response in an emergency. Without these arrangements in place, it is highly likely that clients will be inappropriately admitted to hospitals and on occasion, due to insufficient support find themselves within the correctional system.
j. any related matters
Nil.
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