Submission to the Senate Community

Affaris Legislation Committee

National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017

July 2017

Contact: John Chesterman Director of Strategy Office of the Public Advocate

Prepared by: Sophia Spada-Rinaldis, Policy and Research Officer tess McCarthy, coordinator policy and research

office of the public advocate Level 1, 204 lygon street, carlton, victoria 3053 Tel: 1300 309 337 www.publicadvocate.vic.gov.au

Recommendations

Recommendation 1

The independence of the Commissioner should be strengthened by provision in the Bill to require the Commissioner to be appointed for a term of 5 years.

Recommendation 2

The Commissioner should be required to report annually to the Minister on their functions in relation to:

• registration and reportable incidents
• complaints
• behaviour support functions.

Recommendation 3

The Minister should be required to table the annual report in each house of the Australian Parliament.

Recommendation 4

The Bill should more clearly set out requirements in relation to:

• provider registration
• reportable incidents
• complaints.

Recommendation 5

The Commissioner should be empowered to conduct investigations where there are allegations or concerns about people with disability being abused, neglected, or exploited.

Recommendation 6

The Commissioner should be powered to undertake Commissioner-initiated investigations.

Recommendation 7

The Commissioner should be empowered to conduct a randomised audit of behaviour support plans to determine if the plans are compliant with legislative requirements and consistent with best practice.

Recommendation 8

The National Disability Insurance Scheme Act 2013 (Cth) quality and safeguards amendments should be reviewed on the second anniversary of their comecement.

Introduction

The Office of the Public Advocate (OPA) welcomes the opportunity to respond to the Senate Community Affairs Legislation Committee inquiry into the National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017 (Cth) (the Bill).

The Office of the Public Advocate recognises that the Bill establishes the Australian Government’s regulatory responsibilities under the NDIS Quality and Safeguarding Framework. This framework was decided by the Disability Reform Council in 2016, it purpose being to deliver a nationally consistent approach to quality and safeguarding.

OPA remains concerned that the framework does not go far enough to protect and promote the rights of persons with disabilities. The NDIS consumer choice model, operating as it will in a competitive market, will continue to create significant challenges for people with cognitive impairment, particularly where they may have limited supports in their life.

While current state protections continue to apply until the national quality and safeguards framework is implemented, it is important to note that more immediate reform has been sought in Victoria. This reform is a result of recent inquiries undertaken with a view to improve safeguards for people with a disability around violence, abuse, neglect and exploitation.1 With so much reform and improvement in practice, OPA is concerned that the Bill does not reflect those lessons learnt from the investigations and inquiries nor adequately respond to the changing nature of disability service provision.

In Victoria, particularly since the 1980’s, regulation has attempted to improve service delivery and practice in terms of human rights. Despite the NDIS’s profound potential to transform the lives of people with disability, OPA is concerned that the deregulation of the disability service system places people with disability at increased risk of violence, abuse, neglect and exploitation.

Under the Guardianship and Administration Act 1986 (Vic), OPA is required to

arrange, coordinate and promote informed public awareness and understanding about substitute decision making laws and any other legislation dealing with or affecting persons with disability. OPA has undertaken various systemic advocacy activities throughout the establishment of the National Disability Insurance Scheme (NDIS) and the development of a nationally consistent quality and safeguarding framework.

OPA provides an Advice Service, which responds to complex issues requiring a high level of expertise. During 2015–16, OPA’s Advice Service responded to 17,469 enquiries. Most calls (61 per cent) related to guardianship, administration or enduring powers of attorney. Ten per cent of all enquiries related to violence, abuse, exploitation or neglect.

OPA coordinates four volunteer programs: the Community Visitors Program, the Community Guardian Program, the Independent Third Person Program, and the Corrections Independent Support Officer Program. The office provides training and support to more than 800 volunteers.

About Community Visitors

Community Visitors are empowered by law to visit Victorian accommodation facilities for people with disability or mental illness at any time, unannounced. They monitor and report on the adequacy of services provided, in the interests of residents and patients.

The work of the Community Visitors is relevant to this submission. Community Visitors play a vital role in safeguarding and promoting the rights of people residing in disability residential services, residential services and mental health facilities in Victoria. Given the current quality and safeguarding arrangements in each state and territory continue during transition, Community Visitors have been able to observe and report on various issues experienced by residents of disability services who are NDIS participants.

OPA considers that the role of Community Visitors is a glaring omission in the Bill. OPA eagerly awaits the outcome of the independent evaluation of community visitors schemes operating in each state and territory, as was indicated in the NDIS Quality and Safeguarding Framework.

This is particularly important given the need to consider the scope of a community visitor function, and how it might integrate with other escalation pathways and oversight mechanisms contained in the Bill. There continues to be a need to confirm whether community visitors should be volunteers or paid visitors, what training community visitors need, the resourcing levels required and which body would coordinate any program.

About this submission

OPA wishes to preface this submission with two overarching comments.

OPA submits that protections afforded to NDIS participants need to be more clearly articulated in legislation. The Bill prescribes for NDIS Rules and NDIS Practice Standards to be made to determine particular details and conditions in relation to various quality and safeguarding mechanisms. While OPA acknowledges that there are assorted reasons why some finer details are included in delegated legislation rather than the statute itself, the content of that delegated legislation can be vulnerable to change, and this could place the rights of people with disability at risk.

Further, it is difficult to comment comprehensively on the Bill without knowledge of the accompanying Rules and Practice Standards which will in effect contain much of the important requirements.

The second overarching comment relates to the information sharing provisions in the Bill. The new arrangements, intended to replace a complex and fragmented system of quality and safeguards in each state and territory, must be supported by robust information sharing practices to support the legislative framework.7 The Bill must enable the development of effective, accessible, respectful and reasonable information sharing mechanisms between the Australian Government, the NDIA, and various state and territory safeguarding bodies.

Current practical barriers to accessing and sharing information often inhibit the ability of OPA Advocate Guardians to fulfil their state statutory functions within the NDIS. Effectively, this causes administrative difficulties in our mission to protect and promote the rights of people with disability, and protect those people from violence, abuse, neglect and exploitation.

Part one: NDIS Quality and Safeguards Commission

In preparing this submission, OPA has considered the NDIS Quality and Safegards Commission (the Commission) against Victoria’s current and proposed safeguarding arrangements.

The Second Reading speech to the Disability Act Amendment Bill 2017 (Vic) notes the intention to set the benchmark for the future role of the NDIS quality and safeguarding framework in safeguarding the rights, dignity and safety of people with a disability.8 OPA hopes the Commission will replicate the strongest elements of the Victorian model.

OPA makes comment below about a number of key elements of the Commission.

7 See, for example, recent changes introduced in the Family Violence Protection Amendment (Information Sharing) Act 2017 (Vic) which were enacted following recommendations made by the Victorian Royal Commission into Family Violence: The royal commission identified barriers to information sharing that needed to be addressed to enable more effective risk assessment and risk management, particularly so that agencies can share relevant information about perpetrators as needed to keep victims safe’: at Victoria, Parliamentary Debates, Legislative Assembly, 23 March 2017, 931,

(Martin Pakula, Attorney-General).

8 Victoria, Parliamentary Debats, Legislative Assembly, 25 May 2017, 1513 (Martin Foley, Minister for Housing, Disability and Ageing).

Independence of the Commission

OPA questions the reality of the independence between the Commissioner and the Minister.9 The risk of interference would be lessened if the appointment of the Commissioner occurred through a more independent mechanism. In Victoria, the Governor in Council appoints the Public Advocate and the Disability Services Commissioner. Further, each position is not subject to the Public Administration Act 2004 (Vic), reinforcing the independence of each position.10 OPA acknowledges that enacting similar provisions in relation to the appointment of the Commissioner would not be consistent with the Public Service Act 1999 (Cth). As such, OPA makes a recommendation for a longer appointment term, which would serve as an additional safeguard.

Recommendation 1

The independence of the Commissioner should be strengthened by provision in the Bill to require the Commissioner to be appointed for a term of 5 years.

Reporting requirements

The independence of the Commission would be strengthened by a specific requirement to report annually about the Commission’s activities to the Australian Parliament. OPA considers that this would promote accountability and greater public scrutiny. Legislation could prescribe the information to be included in publications; it should include the work of the Commission, complaints received, how complaints are managed, and resolved, as well as any data collected by the Commissioner through its behaviour support function.

Under section 35 of the Disability Act 2006 (Vic), Community Visitors report annually to the Minister, who must cause the report to be laid before each house of Parliament. This important function ensures providers and government are held to account, and offers transparency with dignity.

Recommendation 2

The Commissioner should be required to report annually to the Minister on their functions in relation to:

• registration and reportable incidents
• complaints
• behaviour support.

Recommendation 3

The Minister should be required to table the annual report in each house of the Australian Parliament.

Legislative articulation

OPA wishes to make a further overarching recommendation in relation to the functions of the Commissioner, much of the particulars of which the Bill prescribes to NDIS Rules and NDIS Practice Standards. OPA believes the requirements of those functions should be more clearly articulated in legislation. We elaborate on this under each function below.

Recommendation 4

The Bill should more clearly set out requirements in relation to:

• provider registration
• reportable incidents
• complaints.

Registration of providers

The NDIS Quality and Safeguards framework suggests a tiered registration system that differentiates providers delivering high from low risk supports. This model focuses on the level of risk related to the service that is provided, rather than the level of risk associated with the participant both because of their impairment and because of society’s disabling factors.11

The Bill provides for conditions of registration to be determined by NDIS Rules. OPA is of the view that it is important that clause 73B of the Bill prescribes that this information will appear in the NDIS Rules. The Rules should include guiding principles for provider registration that reflect a person centred approach.12

Incident Reporting

The reports from the Victorian Ombudsman and the Federal Senate inquiries each recommended a ‘national watchdog’ as a single point of accountability for complaints relating to the NDIS. Both further recommended that NDIS service providers be engaged in mandatory reporting of abuse, neglect, and exploitation of people with disability. OPA is reassured to see these two mechanisms in the Bill.

OPA would like to see greater articulation in legislation of the particulars relating to incident reporting, rather than delegating such matters to NDIS Rules. This could include, for example, the manner and period within which reportable incidents must be reported to the Commissioner, and actions that must be taken in relation to a reportable incident.

Community Visitors from both the disability services and the supported residential services streams consistently note that underreporting is common practice and responses to reports are inconsistent, despite legislated mandatory reporting systems. The increasing casualisation of the disability workforce compounds this, and brings with it challenges in implementation of the legislative framework.

The Victorian Ombudsman highlighted the importance of raising awareness and building capacity within the disability workforce to identify abuse and follow the prescribed response. OPA has concerns that funding may not be adequate to enable all providers to meet those requirements.

Complaints

OPA welcomes the system by which anyone is authorised to make a complaint; this is an important safeguard. OPA’s submission to the NDIS Code of Conduct noted that complaints-based systems nonetheless come with inherent flaws, as a range of factors can prevent people from placing a complaint. In the context of service provision, these can be, for instance, a participant’s lack of knowledge or fear of losing services. OPA notes the acknowledgment in the Explanatory Memorandum to the Bill that people with disability need to feel safe to make a complaint or provide negative feedback.

In Victoria, the role and accessibility of Community Visitors and independent advocates provide an avenue for people with limited supports in their lives, who may be unable, or who may be unwilling due to reasons of intimidation or coercion, to complain. Individual advocacy must continue to be adequately funded in order to respond to the changing disability services environment.

In Victoria, particulars in relation to complaints are contained more clearly in the Disability Act. For example, the Act specifies timelines in relation to provision of information by the Disability Services Commissioner to disability services providers in relation to a complaint received and investigated. The Bill delegates such details to NDIS Rules. The Bill should also include provisions in relation to publication of data about complaints, which is also delegated to be prescribed in NDIS Rules.

In the consumer driven market environment of the NDIS, the publication of information about complaints represents a necessary safeguard as it equips participants with the tools and knowledge to safely choose providers. Through public reporting, the Commissioner enacts core functions and fulfils the objects of the NDIS Act to support the independence of people with disability, and, more importantly, to enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports.13

Investigation

OPA’s earlier comment about the need for greater legislative articulation of key requirements delegated to Rules and Standards applies equally to the investigation powers of the Commissioner. The Bill provides for rules to be made that may deal with the matters in relation to which the Commissioner may authorise an inquiry, on his or her own initiative.

OPA would like to see broader investigation and monitoring powers for the Commissioner, which currently seem to be limited to pursuing matters where they originate from suspected breaches of registration conditions, the NDIS Code of Conduct, reportable incidents or complaints.

The 2017 amendments to the Victoria Disability Act provide a model

for these powers in the provision for commissioner initiated investigations. Clause 128B of that amendment bill provides that such an own motion investigation may be in relation to the provision of a disability service or provision of a disability service to a person with a disability. This power extends to systemic advocacy. The Disability Services Commissioner may conduct an investment in relation to the provision of disability services or regulated disability services if the Disability Service Commissioner identifies a persistent or recurring systematic issue about abuse or neglect in the provision of the services. This is an important power.

We repeat a recommendation made in the Australian Guardianship and Administration Council, in its submission to the Proposal for a NDIS Quality and Safeguards framework:

• Recommendation 5: The Commissioner should be empowered to conduct investments where there are allegations or concerns about people with disabilities being abused, neglected, or exploited.

OPA also considers that the Commissioner should have the power to initiate investments,a provision that would contribute to delivery quality and safe services supports.

Recommendation6: The Commissioner should be empowered to undertake commissioner-initiated investments.

In linking earlier discussion public reporting OPA refers here to the 2017 amendments to the Disability Act which broaden the matters on which the Disability Services Commissioner must report to Minister These include number type initiated investigations and outcome of the investigation and number any follow up investigations those initiated investigations and outcomes of the follow-upinvestigations See recommendations point one this matter.

Auditing

OPA welcomes Commission’s auditing functions but repeats retention community visitors scheme address key gap NDIsquality safeguarding frame work Community Visitors add value quality assurance offering independent unannounced audit monitoring disability service safeguard rights person disable.

Behaviour Support Function

OPA limits comments role national senior practitioner (title articulated Explanatory Memorandum not Bill) distinct Victorian Senior Practitioner particular continuing responsible authorisation restrictive practices might useful explicitly refer position person administer commissioners behaviour support function.

Page 10

OPA wishes to highlight that Victoria was the first jurisdiction in Australia to provide guidelines and safeguards for the use of restrictive interventions within its disability specific legislation. OPA considers the Victorian Disability Act process, which applies to disability service providers, to be current best practice, although OPA notes that Community Visitors report that compliance with the legislation is variable. This will apply to the amendments to the NDS Act.

In Victoria, the Disability Act regulates the use of restrictive practices through creation of the position of the Senior Practitioner. The use of restraint and seclusion must be incorporated in the person’s behaviour support plan that must be lodged with the Senior Practitioner. The Disability Act also establishes reporting obligations and external review mechanisms of this process.

OPA is encouraged that authorisation of the use of restrictive practices remains a state and territory responsibility, at the very least in the early stages of full implementation. OPA has expressed concern previously that the robust safeguarding system provided in this area would be compromised with the aspiration of national consistency. In time, the model of Victoria’s Senior Practioner should be implemented across Australia.

OPA would like to see the Bill reflect a requirement for the Commissioner to report annually on data relating to the use of restrictive interventions as part of its monitoring and reporting functions. See recommendation 1 on this point. OPA makes a further recommendation:

• Recommendation 7
  • The Commissioner should be empowered to conduct a randomised audit of behaviour support plans to determine if the plans are compliant with legislative requirements and consistent with best practice.

OPA submits that the role of the Victorian Senior Practitioner is not just one of authorisation and approval. Importantly, functions include giving directions to disability service providers in relation to restrictive interventions, compulsory treatment, behaviour management plans and treatment plans. Interaction between the national senior practitioner and state and territory authorising mechanisms must be carefully considered to ensure the crucial support provided to disability service providers continues to be offered, evidence-based and accessible.

OPA’s submission to the Victorian consultation on Rights in Specialise Disability Accommodation (SDA) raised the crucial role the Senior Practitioner plays in protecting tenancy rights of people living in SDA. Limiting our comments here to information sharing, OPA stresses that it is crucial that the Victorian Senior Practitioner is able to raise concerns with relevant providers in first instance. Where not satisfied by the response, or if the concern requires immediate action or is of a very serious nature, then the Senior Practitioner should be able to raise concerns with the Commission and the CEO of the NDIA.

Part Two: Other Measures amendments

OPA acknowledges that the amendments in the Bill made in response to the independent review of the NDIS Act in 2015 are largely administrative and focus on ensuring the effective operation of the legislation or providing clarification. This is a missed opportunity to address broader practical and systemic issues which were raised in numerous submissions to that review.

The key points in OPA’s submission to that review highlighted the misalignment of state and territory substitute decision-making regimes and the nominee provisions under the NDIS Act. Clarity is needed to ensure effective protection and promotion of the rights of people with disability where they are involved in both systems. OPA made a number of points in relation to compliance with the United Nations Convention on the Rights of Persons with Disabilities, and that the nominee provisions are not compliant with article 12(4).16

OPA considers that it is necessary to review the amendments made to the NDIS Act in two years.

Recommendation 8

National Disability Insurance Scheme Act 2013 (Cth) quality and safeguards amendments should be reviewed on the second anniversary of their commencement.

Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 999 UNTS 3 (entered into force 3 May 2008) art 12(4).