Submission to the Joint Standing Committee on the NDIS: The provision of services under the NDIS for people with psychosocial disabilities related to a mental health condition February 2017
Contact:
Dr John Chesterman
Director of Strategy
Office of the Public Advocate
Written by:
Sophia Rinaldis
Policy and Research Officer
Office of the Public Advocate
Contributors:
Laura Green
Rosemary Barker
Leonie Swift
Office of the Public Advocate Level 1, 204 Lygon Street, Carlton, Victoria 3053 Local call: 1300 309 337 TTY: 1300 305 612 Fax: 1300 787 510 DX 210293 www.publicadvocate.vic.gov.au
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Background
The Office of the Public Advocate (OPA) is an independent statutory office of government
that works to safeguard the rights, interests and dignity of people with disabilities in Victoria.
The experience of the office in mental health derives from the Public Advocate’s role in
advocacy, investigation and guardianship services to people with cognitive impairment and
mental illness. Last financial year, OPA undertook 1645 guardianship matters and completed
494 investigations into the need for guardianship. The office also runs a volunteer program
supporting people with a disability or mental illness in interviews with police. Last year,
volunteer Independent Third Persons (ITPs) attended 2831 police interviews supporting
people with cognitive impairment and mental illness to understand their rights and
communicate with police.
OPA also supports the volunteer Community Visitors Program. In Victoria, under the Mental
Health Act 2014, Community Visitors visit people in 24-hour mental health settings including
acute units, community care units, secure extended care units and Prevention and Recovery
Care (PARCs) units. Last year, 76 Community Visitors conducted 1562 visits to mental
health facilities and identified 1452 issues relating to residents there. The Program is a
notable safeguard for people with mental illness.
OPA welcomes the opportunity to contribute a submission to the Joint Standing Committee
on the National Disability Insurance Scheme (NDIS) concerning the provision of services
under the NDIS for people with psychosocial disabilities related to a mental health condition.
Recommendations will draw on its previous submissions and will address the terms of
reference that relate to the work of OPA.
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Summary of recommendations
OPA’s recommendations are:
Recommendation 1: The NDIA should clarify its operational definition of ‘psychosocial
disability’.
Recommendation 2: The NDIA should publish further documentation regarding the access
criteria for the NDIS for people with a psychosocial disability arising from mental illness.
Recommendation 3: The NDIA and Victorian Government should collaborate on the
consistent collection of data for all mental health consumers being assessed against the
NDIS psychosocial disability access criteria.
Recommendation 4: The Victorian Government should include a map of NDIS and non
NDIS mental health programs and populations in its annual mental health report and
evaluate the impact of the NDIS on the mental health landscape.
Recommendation 5: The Victorian Government should report on mental health access and
outcomes for all mental health consumers – including NDIS participants – in its annual
mental health report.
Recommendation 6: The NIDA should communicate the extent to which LACs are expected
to support people with mental illness who are not eligible for the NDIS.
Recommendation 7: The NDIA should clarify which existing Australian Government-funded
mental health services will continue to be accessible to individuals who are not NDIS
participants.
Recommendation 8: The Victorian Government should publicly report which state-based
programs have been transferred to the NDIS and which ones remain available to Victorian
mental health consumers (who may not be NDIS participants).
Recommendation 9: The NDIA and the Victorian Government should acknowledge the
importance of individual and systemic advocacy to support people with a severe mental
illness through NDIS access and service provision. Advocacy services should be funded
independently from NDIS service provision.
Recommendation 10: The NDIA should dedicate efforts to ensure that NDIS plans of
individuals with a psychosocial disability align with recovery principles.
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Recommendation 11: NDIS planners assisting individuals with a primary psychosocial
disability should be trained mental health professionals.
Recommendation 12: Support coordinators assisting a participant with a primary
psychosocial disability should be required to hold professional certifications in mental health.
Recommendation 13: The NDIA should ensure appointed guardians can access the NDIS
portal and NDIS plans in their professional capacity, ie. without having to access via the
mygov citizen access pathway.
Recommendation 14: The NDIA should allow Community Visitors to access to all
documents relevant to the care of a person with a disability, including NDIS plans.
Recommendation 15: The NDIA should, during and beyond the roll-out, develop “an
outreach advocacy component (…) to ensure that people who are currently not in funded
services and who are not scheduled to be transferred to the NDIS, get access to information
and advocacy”.1
Recommendation 16: The Victorian government should continue to invest in community
based rehabilitation to provide “outreach for people needing support to access community
based services and/or the NDIS”.2
Recommendation 17: Individuals with psychosocial disability who are in receipt of forensic
disability services should be assessed for eligibility for the NDIS prior to their release from
custody and should be provided with supports to make necessary arrangements should they
return into custody.
Recommendation 18: The NDIA and the Victorian Government should each publicly
identify exactly which mental health services will be available to people involved in the justice
system, including post-release services.
1 Office of the Public Advocate. (2016). Submission to Information, Linkages, and Capacity-Building Framework consultation draft. 2 Page 3. VICSERV. (2016). State Budget Submission 2017-18: Towards a responsive mental health system in Victoria. 4
a. The eligibility criteria for the NDIS for people with a psychosocial disability
Defining ‘psychosocial disability’
The disability requirements provided in the NDIS Act 2013 are difficult to interpret when they
apply to psychosocial disability related to a mental illness. Notions that are particularly
abstract in this context are those of ‘permanency’ and ‘functional impact’, which the National
Disability Insurance Agency (NDIA) does not further qualify.3 Consequently, questions are
being raised within the mental health sector regarding the operational definition of
‘permanent psychosocial disability’ applied by the NDIA in determining eligibility for
participants enrolling into the scheme on this basis. The NDIA is presumably aware of this
issue, as it is explicitly presented in the Psychosocial Support Designs Project Final Report –
authored by the NDIA and Mental Health Australia. The lack of clarity has prompted Mental
Health Australia and the National Mental Health Commission4 to request clarification of the
NDIS access criteria for individuals with a primary psychosocial disability. OPA endorses
their recommendation:
Recommendation 1: The NDIA should clarify its operational definition of ‘psychosocial
disability’.
Recommendation 2: The NDIA should publish further documentation regarding the access
criteria for the NDIS for people with a psychosocial disability arising from mental illness.
Ineligible individuals
Victoria’s 10-year Mental Health Plan commits to ensuring “our continuing system is
responsive to the particular needs of people living with mental illness”5 throughout and
following the changes originated by the NDIS. A similar but more precise iteration of this
commitment is articulated in Agreed Action 5.1 of the Operational Plan Commitment between
the NDIA, State Government of Victoria and Commonwealth Government for transition to the
NDIS as follows:
3 National Disability Insurance Agency (August 2016). Completing the access process for the NDIS: tips for Communicating about Psychosocial Disability. 4 National Mental Health Commission (2014). Contributing lives, thriving communities: Report of the National Review of Mental Health Programmes and Services. 5 Page 8. State of Victoria. (2015). Victoria 10-year Mental Health Plan. 5
“The Victorian Government and the Commonwealth will identify cohorts or individuals
in Victoria for whom they have administrative responsibility that do not meet the
access requirements for NDIS and identify the number of people and programs where
this may apply”.
Agreed Action 5.1 firstly concerns the cohorts and individuals who are not eligible for the
NDIS; in the context of mental health, this will represent the majority of consumers. OPA
understands that the NDIS will only respond to a specific proportion of individuals with mental
illness: those with a permanent psychosocial disability who require ongoing supports, which
according to NDIA projections, represents approximately 64 000 Australians. The figure
indicates that less than 10 percent of the 690 000 Australians with severe mental illness and
an even smaller proportion of the 3 million Australians with mental illness will meet the
psychosocial disability access criteria for the NDIS. Evidently, the majority of individuals with
mental illness will require mental health services outside the scheme. Reports from the NDIS
roll-out in Victoria show that the commitment towards identifying individuals who are not be
eligible for the NDIS has not been prioritised: there remains “a large group of clients where it
is unclear to the agency why the clients were deemed ineligible”.6 In the case of psychosocial
disability, the gap is likely influenced by the unclear access criteria, but OPA stresses the
importance for governments and the NDIA to fulfil Agreed Action 5.1. This can only be
possible through the collection of reliable data on the characteristics of mental health
consumers who are and are not eligible for the NDIS.
Recommendation 3: The NDIA and Victorian Government should collaborate on the
consistent collection of data for all mental health consumers being assessed against the
NDIS psychosocial disability access criteria.
Agreed Action 5.1 of the Victorian Operational Plan also speaks of the responsibility of both
parties to deliver targeted mental health programs; governments and the NDIA should
identify which programs and activities will be required for mental health consumers who are
not eligible for the NDIS. The mental health landscape will undoubtedly continue to change, a
shift that risks being quite stark in Victoria with the reallocation of community mental health
funding. During and beyond the various reforms, the Victorian Government retains the
responsibility of ensuring no individual ‘falls through the cracks’ or gets left behind. In 2013,
the Mental Health Council of Australia recommended that governments produce an
exhaustive map of mental health programs alongside their targeted populations. Cohorts who
6 Page 11. VICSERV. (2015). Learn and Build in Barwon. 6
enrol in the NDIS could have been integrated into the map throughout the roll-out. The
proposed objective was to “identify areas of need that will not be addressed through NDIS
funded services and would provide a much clearer picture of what is likely to eventuate
should such programs be subsumed by the NDIS”.7 OPA notes that Victoria’s Mental Health
Services Annual Report lacked data of this nature and fears that, without this level of
reporting, many mental health consumers will ‘fall through the cracks’ as the NDIS rolls out.
Recommendation 4: The Victorian Government should include a map of NDIS and non
NDIS mental health programs and populations in its annual mental health report and
evaluate the impact of the NDIS on the mental health landscape.
The final component of Agreed Action 5.1 concerns government’s administrative
responsibility towards all individuals with mental illness. OPA repeats that this responsibility
extends to those who are and who are not eligible for the NDIS, those who decline the NDIS
or those who drop out of the NDIS after their initial engagement. The Victorian Government
will need to fund and provide mental health services in both the clinical and the community
mental health sectors, as the Council of Australian Government principles (COAG principles)
clearly illustrate that the NDIS is designed as a complement to state-operated mental health
services. The COAG principles stipulate that health systems remain responsible for the
treatment of mental health, the operation of mental health facilities, early intervention
services, and intensive case coordination when it is “related to mental illness”.8 Given that
only a small proportion of individuals with mental illness will be eligible for the NDIS, the
provision of mental health care remains the obligation of state governments. As outlined in
Victoria’s 10-year Mental Health Plan, the Victorian Government is accountable for
engendering positive outcomes for all individuals with mental illness, and particularly those
who are most vulnerable to abuse and exploitation. Consequently, OPA requests
accountability and urges for improvements in the level of reporting on mental health
outcomes in Victoria’s Mental Health Services Annual Report. In this year’s report – the first
to be published since the implementation of the new Mental Health Act – the figures were
scarce. For example, the total number of clients accessing mental health community support
services was provided, with no further outcomes associated to this group. Furthermore, no
NDIS-related data was published in the report. OPA expands on the recommendation it
made in its submission to Victoria’s 10-year Mental Health Plan:
7 Page 5. Mental Health Council of Australia. (November 2013). Mental Health and the National Disability Insurance Scheme: Position Paper. 8 Council of Australian Governments. (2015). Principles to determine the responsibilities of the NDIS and other service systems. 7
Recommendation 5: The Victorian Government should report on mental health access and
outcomes for all mental health consumers – including NDIS participants – in its annual
mental health report.
Finally, OPA is concerned about the lack of support provided to individuals once they are
determined to be ineligible for the NDIS. This issue appeared in the Barwon trial site report,
and OPA notes ongoing confusion with regards to determining which service provider is
liable once access to the scheme is denied. The Information, Linkages and Capacity Building
(ILC) framework suggests this responsibility should fall on Local Area Coordinators (LAC): to
“provide short term assistance to people who do not have an NDIS plan to connect them into
mainstream services and community activities”.9 Anecdotally, OPA found evidence of
instances in which individuals were left unassisted.
Recommendation 6: The NIDA should communicate the extent to which LACs are expected
to support individuals with mental illness who are not eligible for the NDIS.
b. The transition to the NDIS of all current long and short term mental health Commonwealth Government
funded services
OPA is concerned about funding reallocation in the NDIS context and expects that the
Australian Government will call on states and territories to account for how they will provide
high-quality, coordinated treatment to individuals with mental illness who are not eligible for
the NDIS. Funding needs to be clearly delineated to ensure the needs of these individuals
are adequately met.
Recommendation 7: The NDIA should clarify which existing Australian Government-funded
mental health services will continue to be accessible to individuals who are not NDIS
participants.
c. The transition to the NDIS of all current long and short term mental health state and territory funded services
OPA understands that the transition to the NDIS of mental health state-funded services in
Victoria is unique in comparison to other states and territories. There has been a lack of
9 National Disability Insurance Agency. (November 2016). Information, Linkages and Capacity Building
Commissioning Framework. 8
transparency about the redistribution of funds between both levels of governments, the
NDIA, and the mental health sector, which has generated confusion and worry. To OPA’s
understanding, the Victorian Government has reallocated the majority of the Community
Mental Health Support Services (CMHSS) funding to the NDIS. OPA is seriously concerned,
as it has doubts that the NDIS can effectively replace the service components that are
currently delivered by community mental health services. In fact, the COAG principles clearly
determine that the NDIS is designed to complement state-funded mental health services. In
Victoria, the CMHSS assist more than 12 000 individuals10 with mental illness who do not
require the intensive support provided by clinical mental health services and who do not
necessarily meet the eligibility criteria for the NDIS. This funding arrangement risks
fragmenting a robust and effective sector. It will create a significant dearth of services within
the community sector, and is likely to increase the burden placed on clinical services that do
not have the capacity to support this cohort.
Recommendation 8: The Victorian Government should publicly report which state-based
programs have been transferred to the NDIS and which ones remain available to Victorian
mental health consumers (who may not be NDIS participants).
d. The scope and level of funding for mental health services under the Information, Linkages and Capacity
Building Framework
OPA welcomes the ILC Framework while being aware that the bulk of the ILC will be
targeted towards what are currently known as ‘disability services’. OPA expects the overlap
between the ILC and the mental health sector will be minimal. OPA repeats that the Victorian
Government is, and will continue to be, accountable for the provision of comprehensive
mental health services.
Local Area Coordinators
OPA recognises the role played by LACs; they represent a much-needed support for the
successful implementation of the NDIS. OPA is pleased to see the continuation of the LAC
role in the NDIS Quality and Safeguarding Framework; LACs will continue to be required
once the roll-out is complete in order to support new mental health consumers who will
access the scheme.
10 State of Victoria. (October 2016). Victoria’s Annual Mental Health Services Annual Report. 9
Advocacy
In its submission to the ILC Framework, OPA elaborated on advocacy models that can be
useful to individuals with disability. Among others, individual and representative advocacy
along with the implementation of robust safeguards are known to comprehensively protect
the rights of people with disability. Meanwhile, the ILC framework maintains that individual
and systemic advocacy will not be funded under the NDIS. At present, individual advocacy
for mental health consumers is largely provided within the community sector. While OPA
appreciates the importance accorded to peer advocacy in the ILC, it also maintains the
necessity to retain a range of complementary advocacy models. Specialist models, such as
individual and systems advocacy add value because of the particular knowledge and
expertise acquired by their proponents. They can deploy this knowledge and expertise more
effectively than can generalist organisations that may lose focus if they are not guided by
consumer experiences.11 OPA is seriously concerned that the rights of people with mental
illness will not be safely upheld and protected in service provision under the NDIS.
In practice, OPA has witnessed the need for NDIS-related advocacy for individuals with
psychosocial disability resulting from mental illness. OPA’s clients are individuals with severe
mental illness; they rarely have the capacity to advocate for themselves and often have
limited social supports. OPA notes an obvious discrepancy in outcomes between those
clients who can self-advocate or who have advocacy supports and those clients who have no
capacity for advocacy. For example, some OPA clients who cannot clearly articulate their
needs were allocated supports under the NDIS that are insufficient or inappropriate. Others
obtained more accurate NDIS plans, only to then experience unreasonable delays in
receiving services. In these cases, OPA can provide advocacy or guardianship but does not
have the resources or mandate to maintain these roles for the duration of their NDIS plans.
While OPA welcomes the NDIS Quality and Safeguards Framework, it recognises that the
complaint mechanisms require participants to have the ability to self-advocate. If individual
advocacy is not funded through NDIS plans and if this service is no longer funded in the
community mental health sector, some of the most vulnerable mental health consumers will
see their wellbeing compromised. OPA reiterates a recommendation made previously:
Recommendation 9: The NDIA and the Victorian Government should acknowledge the
importance of individual and systemic advocacy to support people with a severe mental
11 OPA. (June 2016). Submission to the National Disability Advocacy Program Review. 10
illness through NDIS access and service provision. Advocacy services should be funded
independently from NDIS service provision.
e. The planning process for people with a psychosocial disability and the role of primary health networks in that process
In its 2014-2015 annual report, OPA described how “the NDIS planning process is extremely
difficult to navigate for people with cognitive impairment, unless they have either advocacy or
guardianship support”.12 In the case of individuals with mental illness, NDIS plans have to
consider the episodic nature of mental illness as well as overarching recovery goals. OPA
encourages planners to support individuals with mental illness to develop plans that are
holistic and can provide for wrap-around care that aligns with the Recovery Framework, but
is concerned as to how harmoniously the two models can be merged.
Recommendation 10: The NDIA should dedicate efforts to ensure that NDIS plans of
individuals with a psychosocial disability align with recovery principles.
Mental health consumers work with trained case managers/coordinators to define,
implement, and monitor their recovery goals. The capabilities required to deliver high-quality,
recovery-oriented care include an understanding of the “core principles, values, knowledge,
attitudes and behaviours, skills and abilities”13 of the framework. Case coordinators within the
sector receive training about the framework and possess the capacities required to adapt
each plan to their client’s unique ‘social determinants of health’. They understand that the
relationship with a client is a pillar of effective service delivery; in fact, empirical evidence has
consistently demonstrated the significance of a trusting, persistent, and unconditional
relationship in creating positive mental health outcomes.
Recommendation 11: NDIS planners assisting individuals with a primary psychosocial
disability should be trained mental health professionals.
In the provision of services for individuals with psychosocial disability under the NDIS, OPA
observes that there is no equivalent to case coordination in the NDIS. In other words, the role
as it exists within the mental health sector is not funded in the NDIS. The COAG principles
attribute the following responsibility to the health care system: “intensive case coordination
12 Page 10. Office of the Public Advocate. (2015). Annual Report 2014-2015. 13 Page 15. Commonwealth of Australia. (2013). A national framework for recovery-oriented mental health services. 11
(…) where a significant component of care coordination is related to the mental illness”.
However, OPA is aware that in most cases there is no clear delineation between the aspects
of case coordination that relate to mental illness and the ones that relate to broader
psychosocial disability. To divide the role in this way across sectors would hinder recovery.
In its current form, the NDIS service model creates a further chasm; the responsibilities of the
case coordinator are diffused across the LAC and support coordination roles, at the expense
of key components:
Local Area Coordinators “work directly with people who have an NDIS plan to connect into
mainstream services and community activities and get their plan into action”.14
Support coordinators provide “assistance to strengthen participants’ abilities to coordinate
and implement supports and participate more fully in the community. It can include initial
assistance with linking participants with the right providers to meet their needs, assistance to
source providers, coordinating a range of supports both funded and mainstream and building
on informal supports, resolving points of crisis, parenting training and developing participant
resilience in their own network and community.”15
Case coordination does include most components from LAC and support coordination roles,
but incorporates additional evidence-based practices that contribute to the achievement of
positive outcomes. These skills and practices are acquired through appropriate training and
certification. The NDIS Quality and Safeguarding Framework confirms that there will be no
certification requirements for workers in LAC and support coordination positions. In other
words, workers with little to no mental health training will be supporting mental health
consumers in their recovery journey. NDIS participants risk missing out on key elements of
recovery-oriented care, which are known to be associated with improved outcomes, such as
meaningful engagement and holistic care.
Recommendation 12: Support coordinators assisting a participant with a primary
psychosocial disability should be required to hold professional certifications in mental health.
Confidentiality of participant plans
The NDIS portal through which participants access their plan is subject to strict
confidentiality; only participants or their appointed plan nominee receive the permission to log
14 Page 12. National Disability Insurance Agency. (November 2016). Information, Linkages and Capacity Building Commissioning Framework. 15 Page 24. National Disability Insurance Agency and Mental Health Australia. (April 2016). Psychosocial Supports Design Project: Final Report. 12
on to the online system. OPA welcomes the importance accorded to privacy in the NDIS Act
2013, but, in some instances, the provisions result in delays that are unmanageable for OPA
guardians to efficiently assist their clients. Guardians are court appointed to act on behalf of
individuals with regards to specific matters. Without access to clients’ NDIS plans, guardians
face delays in decision-making, often leaving individuals without the services or supports
they require.
Recommendation 13: The NDIA should ensure appointed guardians can access the NDIS
portal and NDIS plans in their professional capacity, ie. without having to access via the
mygov citizen access pathway.
Legislative provisions around confidentiality have also impacted the work of Community
Visitors, a program that continues to operate during the NDIS roll-out. In Victoria, section
217.1.c of the Mental Health Act 2014 prescribes the authority to Community Visitors to
“inspect any document, other than a clinical record, relating to a person receiving mental
health services at the prescribed premises or any other record which is required to be kept
under this Act or the regulations”. Section 217.1.d of the same Act prescribes that
Community Visitors can access clinical records with the consent of the consumer. Among
other things, this enables them to inquire about and monitor current and future plans for
residents in the provision of care, support and community inclusion.
In practice, Community Visitors have faced resistance in consulting NDIS plans. The NDIA
has advised OPA that Community Visitors can only view participant plans with the consent of
the concerned individual. Many, if not most, of the people visited by Community Visitors have
significant disabilities and are unable to give such consent. As a consequence, the NDIS
planning process and resultant plans - the core mechanisms by which the NDIS is delivered
are unable to be reviewed and monitored by one of the key existing disability safeguarding
programs. OPA fears this issue will be exacerbated as the roll-out continues. OPA
recommends that:
Recommendation 14: The NDIA should allow Community Visitors to access to all
documents relevant to the care of a person with a disability, including NDIS plans.
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g. The role and extent of outreach services to identify potential NDIS participations with a psychosocial
disability
OPA’s clients are among the most vulnerable members of the community, isolated and often
disengaged from services. For OPA’s cohort, service engagement can be challenging and
thus, outreach is an essential component in the maintenance of supports. Outreach is an
exercise in persistency and trust building. Most importantly, providers must be creative in
adapting to the different conditions and circumstances they may come across. For instance,
an individual who refuses to answer the phone because of their mental illness may need to
be communicated with in other ways.
Over the years, OPA’s Community Visitors annual reports have recorded the prevalence of
individuals with complex mental illness residing in Supported Residential Services (SRS). In
pension-level SRS, supports are seldom comprehensive enough to provide holistic care.
Through its Community Visitors Program, OPA congratulated proprietors who assisted
residents to enrol in to the NDIS in the Barwon region. Despite their efforts, some proprietors
report that their efforts were met with bureaucratic hurdles, such as being asked to make
individual phone calls to register a group of individuals with the NDIA, rather than being able
to complete all registrations in one conversation. It is not within an SRS’ mandate to provide
this level of support and some proprietors – often in pension-level SRS – did not engage with
the NDIS. Yet, this is a sector that houses individuals with severe psychosocial disability who
are likely to be eligible for the scheme. To provide outreach services into sectors such as
SRS is necessary in making the NDIS accessible to isolated cohorts.
Recommendation 15: The NDIA should, during and beyond the roll-out, develop “an
outreach advocacy component (…) to ensure that people who are currently not in funded
services and who are not scheduled to be transferred to the NDIS, get access to information
and advocacy”.16
During the NDIS roll-out, existing mental health services are being asked to create the bridge
between mental health consumers and the NDIA. OPA stresses the importance of outreach
and repeats the recommendation made by VICSERV to the 2017-18 state budget:
16 Office of the Public Advocate. (2016). Submission to Information, Linkages, and Capacity-Building Framework consultation draft. 14
Recommendation 16: The Victorian government should continue to invest in community
based rehabilitation to provide “outreach for people needing support to access community
based services and/or the NDIS”.17
h. The provision, and continuation of services for NDIS participants in receipt of forensic disability services
OPA maintains the recommendations made in this submission on the need for outreach
services, responsive planners, and advocacy services, with special attention paid to the
unique needs of the forensic cohort. OPA adds the following recommendation:
Recommendation 17: Individuals with psychosocial disability who are in receipt of forensic
disability services should be assessed for eligibility for the NDIS prior to their release from
custody and should be provided with supports to make necessary arrangements should they
return into custody.
Given the relatively early stages of the NDIS roll-out in the metropolitan region in Melbourne,
it is difficult to comment on the operations of the scheme in relation to forensic services and
their patients. At this stage, it is impossible to evaluate the impact of the scheme on this
cohort. Nonetheless, the COAG principles pertaining to the justice system are likely to cause
gaps in services. The principles outline that the NDIS “will continue to fund the reasonable
and necessary supports”; a statement that is subject to differing interpretations. Moreover,
some of the responsibilities accorded to the justice system in the COAG principles are
seldom available; for example, ‘specific interventions to reduce criminal behaviours’ and
intensive case coordination are not currently provided by the justice system and there are
doubts that they will be under the NDIS. For instance, in its current form, the COAG
principles attribute the “management of offenders to ensure compliance with supervised
orders and conditions” to the justice system, when, in practice, this is not offered by
corrections officers. For individuals who have mental illness and who are involved with the
criminal justice system, the impact of disability can be complex. In the case of individuals
with psychosocial disability, it is easy to conflate which supports address disability and which
target criminal behaviour.
The Victorian justice system is currently experiencing considerable pressures; it does not
have the capacity to provide adequate care for prisoners with mental illness. The 2016
17 Page 3. VICSERV. (2016). State Budget Submission 2017-18: Towards a responsive mental health system in Victoria. 15
Report of the Review of Hospital Safety and Quality Assurance in Victoria reveals that “the
threshold for certifying prisoners for compulsory treatment [is] driven by availability of beds,
not just a prisoner’s mental health needs” (pg.140). The report estimates that in 2013-2014
the average wait time between certification and admission to Forensicare’s Thomas Embling
Hospital was 22.2 days, a figure that is likely to be higher at present. The report also states
that fewer than 40 per cent of certified prisoners are transferred within 28 days. The under
capacity of forensic mental health facilities in Victoria is a long-standing issue, being first
raised in 2003 and since repeated in reports by the Ombudsman, the Chief Psychiatrist, the
Auditor-General, and Forensicare. It contributes to lesser outcomes for prisoners and
increases the likelihood that they will require high-level post-custody community supports to
manage psychosocial disability. It is evident that the justice system does not have the
capacity to provide this support during custody or following release. OPA is concerned that
the COAG principles causes the most vulnerable individuals to be ‘abandoned’ by both the
NDIS and forensic services.
Recommendation 18: The NDIA and the Victorian Government should each publicly
identify exactly which mental health services will be available to people involved in the justice
system, including post-release services.
16