SUBMISSION COVER SHEET
Person: Leanne Pearman (corresponding author)
Organisation and position: Executive Officer, WAIS
Address: City West Lotteries House 2 Delhi St Suburb/town: West Perth
State: WA Postcode: 6005
Website: www.waindividualisedservices.org.au
This submission:
Contains NO confidential material
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RESPONSE TO THE NDIS DRAFT LEGISLATION
ABOUT WAIS
Western Australia’s Individualised Services (WAIS) is an incorporated association of disability services providers in Western Australia who specialise in the provision of individualised services to people with disability to enable them to remain in their family home or live in their own home and to engage with their local community.
WAIS comprises 22 member organisations drawn from Perth and rural Western Australia who utilise individualised funding from the Western Australian Disability Services Commission and other sources (government and private) to support more than 1,000 people with disability in individualised support arrangements. Many of these arrangements have been in place for more than a decade.
Approximately one third of the people supported are younger people with disability who are supported to live in their family home. Another third are adults who are supported to live in their own homes (usually provided through public housing) with the live-in and/or visiting support that they need. The remaining third are adults and teenagers supported to participate in various community activities during weekdays and on weekends.
Further information about WAIS and its member organisations (or any enquiries related to this submission) can be obtained from the corresponding author of this WAIS submission.
WAIS members include: Baptistcare, Community Vision, Directions Family Support
Association, Enable Southwest, Future Living Trust , Inclusion WA, Lifestyle Solutions, My
Place, Community Living Association, Perth Home Care Services, Wheatbelt Individual
and Family Support Association (WIFSA), One 2 One, Anglicare, Family Support WA,
Identity WA, Lower Great Southern Family Support Association, Midway Community Care,
Mosaic Community Care, Rocky Bay, Valued Independent People (VIP), Workpower Inc,
UnitingCare West.
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Part 2—Objects and principles
5 General principles guiding actions of people who may do acts or things on behalf of others
There is an opportunity in the NDIS legislation to strengthen the requirements for supported and shared decision making that are integral to the Representation Agreement Act of British Columbia. The following section is a quote from an information sheet at:
http://www.nidus.ca/PDFs/Nidus_FactSheet_RA_Overview.pdf.
“The duties of a representative are outlined in Section 16 of the Representation Agreement Act, which says that your representative must act honestly, in good faith, and within the law. Your representative’s first responsibility is to assist you to make your own decisions. If your representative has to make a decision on your behalf, he or she must check with you first to determine your current wishes. If your current wishes cannot be determined or are not reasonable to carry out, then any pre expressed wishes must be followed. If these are unknown, decisions are made according to your values and beliefs. As a last resort, your representative may make a decision based on what he or she thinks is best for you (your best interest). “
Section 24 Disability Requirements
For people whose disability is a result of a psychiatric condition there should always be the potential for recovery to live a meaningful life. There may be periods of increased level of impairment and at these times the type and intensity of support may be significantly different. Thus it is not only impairment that varies in intensity but also the support. The likelihood of continuing for the person’s lifetime could be difficult to predict with certainty. The requirement for accepting the need for life time support may deter people who would legitimately be eligible for the scheme to seek participation.
Section 26 Requests that the CEO may make
The processes for determining eligibility are described very clinically e.g. “undergo an assessment”, “undergo a medical, psychiatric or psychological examination” and these are not compatible with determining capacity for social and economic participation.
The CEO has significant power in being able to direct a participant to undergo an assessment, which may not be applicable or required for determining eligibility.
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Access to specialists, psychologists, psychiatrists etc is difficult potentially creating significant delays in determining eligibility.
Section 27 National Disability Insurance Scheme rules relating to disability requirements and early intervention requirements
The rules and criteria developed in this section will be crucial for setting not only the function of the Act but also the tone in terms of how people are regarded and respected.
Part 2 Participants Plans
Section 31 Principles relating to plans
The principles themselves are strong and thorough.
The interpretation of “so far as reasonably practicable” is the critical element that could weaken the effectiveness of the principles.
Section 32 CEO must facilitate preparation of participant’s plan
The word ‘facilitate’ can have a number of meanings, particularly with a process of planning. There needs to be some clarity of what this means in the context of plans. If the CEO is to facilitate, this may not be practical or the best person to carry it out. The participant may have done a range of planning prior to coming to the agency, and therefore this would need to be upheld and respected. There could be a conflict of interest whereby the CEO is facilitating plans that end up formulaic and not reflective of creative supports available.
While it is recognised that there should not be inordinate delays in the preparation of a plan, the prescription of the agency being the initiator means that people may then feel they must make a decision about their plan before they are ready. The experience of many families is that being willing to accept support is a process that can take considerable time.
WAIS supports the need for a mechanism for a participant to be able to opt out of having a plan.
The issue of the emergence of professional planners could be a considerable one, due to equality of access to those services, the cost and regulation of those services, and the issue of quality.
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Section 33 Matters that must be included in a participant’s plan
It is positive that the participant determines the statement of goals and aspirations.
(3) The words “or described generally” are crucial as the specific identification of the support or strategy at the initial stage of the plan is often not possible particularly for the achievement of social and economic participation.
There is a risk that plans are written for the sole purpose of getting resources and not related to having a ‘real life’. Vulnerable people who are seeking support could be at risk of being guided and accepting a ‘plan’ to ensure they get what they need.
(6) This statement is not consistent with the Options 3 & 4 being canvassed by the Regulation Impact Statement. Even if a plan is being managed by the agency it is very likely that some components that are best purchased by a “ registered provider of supports” rather than “provided”. For example equipment, home modification, membership of a sporting club or evidence based therapies or interventions.
(8) Recording a plan in writing should not then become the only “official” version of the plan. If it is the participant’s plan, then other modes tailored for the individual should still be “official”, without the Agency having to record it separately.
Section 34 Reasonable and necessary supports
The requirement that “the CEO must be satisfied of all of the following in the relation to funding or provision of each such support” is not realistic. There are eight requirements. Not every support type can reasonably be effective for “social and economic participation” plus “ be something that couldn’t reasonably be provided by informal networks” whilst also having evidence to prove current good practice. For people to have choice and control, which is the bedrock of the NDIS, people need to be able to decide for themselves what is beneficial, what is reasonable and what is value for money.
(e) The criteria are especially variable in terms of the circumstances of the individual and their family.
Section 35 National Disability Insurance Scheme rules for statement of participant supports
The rules developed in this section will be crucial for setting not only the function of the Act but also the tone in terms of how people are regarded and respected with value or imposed upon with unnecessary restrictions.
The rules in this area need to be based on the fundamental basics for participants to purchase flexible, responsive and creative supports. The foundation of self-direction
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is the ability to be able utilise support resources in a way that makes a difference to the person and their family.
Section 36 Information and reports for the purposes of preparing and approving a participant’s plan
The processes in (2) (b) for gaining information for preparing a statement of participant supports or deciding whether to approve a statement as described are very clinical and disempowering e.g. “ undergo an assessment”, “undergo a medical, psychiatric or psychological examination” and are not logically connected to achieving social and economic participation.
Access to specialists, psychologists, psychiatrists etc are difficult to get support from and could delay the development of a plan given the wait list and time for appointments.
The CEO has significant power in being to direct a participant to undergo an assessment, which may not be applicable or required for the specific purpose of planning.
Section 37 When the plan is in effect
The CEO has significant power to approve or not approve a participant’s plan. Serious consideration is required in determining the criteria that could lead to a plan not being approved.
The operation of this section is critically related to 33 (3) because the requirement that a plan cannot be varied once it comes into effect will be unnecessarily restrictive and counterproductive unless there is flexibility to change the type of support if it is found to not be effective in achieving the stated goal. Reviewing of plans is critical to ensure flexible and responsive services.
Section 39 Agency must comply with the statement of participant supports
There needs to be a statement that indicates the plan is in accordance with Section 34.
There needs to be consideration as to what the safeguards are to ensure the plan is followed and what consequences there may be if the agency and/or the participant do not comply with the supports in the participants plan.
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Division 3 – Managing the funding for supports under participants’ plans
Section 42 Meaning of managing the funding for supports under a participant’s plan
In relation to 42 (2) (d), there is an opportunity in the NDIS legislation to strengthen the requirements for supported and shared decision making that are integral to the Representation Agreement Act of British Columbia. The following section is a quote from an information sheet at
http://www.nidus.ca/PDFs/Nidus_FactSheet_RA_Overview.pdf
“The duties of a representative are outlined in Section 16 of the Representation Agreement Act, which says that your representative must act honestly, in good faith, and within the law. Your representative’s first responsibility is to assist you to make your own decisions. If your representative has to make a decision on your behalf, he or she must check with you first to determine your current wishes. If your current wishes cannot be determined or are not reasonable to carry out, then any pre expressed wishes must be followed. If these are unknown, decisions are made according to your values and beliefs. As a last resort, your representative may make a decision based on what he or she thinks is best for you (your best interest). “
Section 43 Choice for the participant in relation to plan management
The terminology “to a specified extent” is important. It is not clear that the options of a mix and match of (a) – (c) is possible. For example a participant may choose a registered plan management provider or plan nominee to manage the purchase of accommodation support and manage his or her own social inclusion funding. This option is not uncommon and should be available.
Please see comment for 42 (2) (d) in relation to section 43 (2) (b).
Reviewing and Changing Participants Plans
Section 44 Circumstances in which participant must not manage plan to specified extent
In statement (2), there needs to be more clarity around the criteria for risk. Participants could be denied the opportunity to manage their own supports due to an over zealous risk management approach or an agency being risk averse. Section 2
b) is offensive as it states that there are decisions which NO participant can be trusted to make in a matter which is about them.
The rules become critical with identifying the criteria for risk assessment (3) and also the support strategies to enable the participant to continue to manage the plan.
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Section 50 Information and reports for the purposes of reviewing a participant’s plan
The processes in (2) (b) for gaining information for preparing a statement of participant supports or deciding whether to approve a statement as described are very clinical and disempowering e.g. “ undergo an assessment”, “undergo a medical, psychiatric or psychological examination” and are not logically connected to determining many disability supports in terms of quantum or effectiveness.
Whilst the plan is directed and owned by the participant, the CEO appears to have inordinate amount of power in relation to the preparation of the plans, the execution of the plans and the review of the plans. This leaves a great risk of the CEO holding all the power given the plan is required prior to getting resources allocated, which is directly against the intent of the NDIS.
Part 3 Registered Providers of Support
Section 69 Application to be a registered provider of supports
See Section 33 (6) for comment
Section 73 National Disability Insurance Scheme rules for registered providers of supports
The rules developed in this section will be crucial for setting not only the function of the Act but also the achievement of flexibility, innovation and responsiveness.
For example, In (1) (c), for participants to have flexibility to choose who they have supporting them, specific qualifications may not be required and in fact, prescribing criteria about employee qualifications may hinder both the participant and the agency from engaging the most suitable employee.
The rules in relation to this part of the legislation should take into account feedback received about the Regulation Impact Statement.
Section 74 Children
(1) (b) There needs to be some criteria as to how the CEO would determine a suitable person.
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The CEO has significant power if they are deciding who is going to be determining the person, if not the parents, in relation to things to be done as per the child’s support plan. This area will have close connection to the Child Protection legislation in each jurisdiction and it seems inappropriate and discriminatory to set up another set of legislative rules for children with disability given the emphasis on people with disability being citizens first and accessing mainstream services.
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