Submission to the Joint Standing Committee on
the NDIS
27 February 2017
Who we are
The Australian Lawyers Alliance (ALA) is a national association of lawyers, academics and
other professionals dedicated to protecting and promoting justice, freedom and the rights
of the individual.
We estimate that our 1,500 members represent up to 200,000 people each year in Australia.
We promote access to justice and equality before the law for all individuals regardless of
their wealth, position, gender, age, race or religious belief.
The ALA started in 1994 as the Australian Plaintiff Lawyers Association, when a small group
of personal injury lawyers decided to pool their knowledge and resources to secure better
outcomes for their clients – victims of negligence. While maintaining our plaintiff common
law focus, our advocacy has since expanded to criminal and administrative law, in line with
our dedication to justice, freedom and rights.
The ALA is represented in every state and territory in Australia. More information about us
is available on our website.1
Responses to terms of reference a, d and h
- The Australian Lawyers Alliance (ALA) welcomes the opportunity to have input into
the issues raised by the terms of reference of Joint Standing Committee on the
National Disability Insurance Scheme’s inquiry into the provision of services under
the National Disability Insurance Scheme (NDIS) for people with psychosocial
disabilities related to a mental health condition. This submission makes comments
on Terms of Reference a, d and h.
- The ALA is well placed to make a submission to this inquiry as its members assist
people with compensation claims who are injured and disabled with mental health
issues. Members’ work requires consideration of expert opinion on psychiatric and
psychological diagnoses, treatment and prognosis. This also involves assessment of
future care and treatment costs of clients with psychosocial problems. Our
experience is that psychosocial issues provide more divergence of expert views than
any other area of medico-legal enquiry.
- The ALA has been involved with the NDIS since 2009, and made a submission to the
Productivity Commission Inquiry into the NDIS in 2010. It followed this up with a
major submission and giving evidence before the Senate Committee on Community
Affairs which reviewed the NDIS Bill in 2013.
- In considering the Terms of Reference for the present inquiry, the ALA considers it
is necessary to return to the Productivity Commission Draft and Final Reports
(Appendix M) on a National Disability Insurance Scheme, and the National Disability
Insurance Scheme Act 2013 (Cth) (NDIS Act) itself.
- The Productivity Commission Draft Report (Overview, p 22-3) stated that provision
had been made for daily support costs (not clinical services) for people with severe
mental illness. In its Final Report, (Appendix M) the number of such people with
“severe, persistent and complex needs” was estimated at 57,000.
Section 3(1) of the NDIS Act
Section 3(1) of the NDIS Act provides that the Scheme is directed to supporting the independence and social and economic participation of persons with disability, providing reasonable and necessary supports to participants, and enabling participants to exercise choice and control over planning and delivery of their supports. Section 5 provides guidance for people acting on behalf of participants, which emphasize protection and respect for difference, autonomy, self-determination and supported decision-making, in promoting the section 3 objects referred to above.
Disability requirements
The disability requirements in section 24 of the Act require a disability which is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, which are likely to be permanent, and result in substantially reduced functional capacity, and affect the person’s capacity for social and economic participation, and is a permanent condition. Section 25 makes similar provision for early intervention, where a condition may be prevented or alleviated so as to reduce the future need for supports. The NDIS Supports for Participants Rules 2013 provide in rule 7.6 dealing with mental health for “supports that are not clinical in nature and that focus on a person’s functional ability”, while rule 7.7 excludes supports and early intervention that are clinical in nature, residential treatment that is primarily serviced by clinical staff, and treatment of a co-morbidity which is clinical. In effect, the Rules as they relate to mental health are a more formalistic statement of the Productivity Commission Draft Report.
Term of Reference (a)
On Term of Reference (a), it is important, as the ALA emphasised in its 2013 submission, that there be a high degree of certainty provided for those seeking to be participants requiring support in respect of psychosocial disabilities under the NDIS. Even when one reaches the detail in the Rules, there is a lack of clarity of the dividing line between clinical and support services. That makes it particularly difficult for a potential participant to determine whether he or she is likely to be eligible, and if eligible, what supports may be provided by the NDIS.
Page 5
- While we are unable to provide comment as to the funding of services in Terms of Reference (d) dealing with adequacy of funding, the following observations relating to the question of NDIS funding in general are appropriate. The NDIS Act in sections 3(3) and 4(15) refer to the requirement of sustainability in fulfilling the objects of the Act.
We question the 57,000 figure from the Productivity Commission’s Final Report. Mental Health Australia’s submission (Submission 1 to this inquiry) indicates a plausible figure of 290,000. As this figure is considerably higher than the one that the Scheme was initially based on, there is a question of whether it can make adequate provision for those numbers on its full rollout. This was another area of emphasis in the ALA’s 2013 submission, as the Scheme has to deliver services, including early intervention services, to participants on a consistent basis, and the financial resources should be provided to deliver those services specified by the Act.
Sustainability should not be achieved by setting a bottom line which falls well short of providing reasonable and necessary support to participants, and delivering improved outcomes to participants through early intervention. That would negate the clear intention of the Act.
-
In relation to Term of Reference (h), forensic disability services are the responsibility of State and Territory justice systems. Often there are safety and security issues with forensic patients which require a high level of expenditure to secure staff and the patients from harm (including self-harm). The NDIS should not be rationed further by devoting a substantial proportion of its resources to people in this category.
-
We would be happy to engage further with the Joint Committee on the NDIS if invited. We thank the Committee for the opportunity given to participate on this important subject and look forward to the Committee’s Report.
Recommendations
The ALA makes the following recommendations:
- It is essential that the NDIS is modelded on, and funded for, an accurate level of need
providing reasonable and necessary support to psychosocial Scheme participants;
- The NDIS should not extend to forensic patients, who require high proportion of
resources. Current funding arrangements at the state and territory level should be
maintained.