THE NSW DISABILITY INCLUSION BILL 2014 EXPOSURE DRAFTNATIONAL DISABILITY SERVICES (NDS) SUBMISSION

FEBRUARY 2014

TABLE OF CONTENTS

Executive summary and recommendations i – x

Introduction 2

Part One – Preliminary 4

Part Two – Disability planning 8

Part Three – Disability Council NSW 13

Part Four – Service standards 14

Part Five – Funding arrangements 15

Part Six – Restrictive interventions 26

Schedule Four – Amendment of the Ombudsman Act 33

Implementation 36

Conclusion 41

EXECUTIVE SUMMARY AND RECOMMENDATIONS

The following will summarise and provide the recommendations made by NDS in response to the exposure draft of the NSW Disability Inclusion Bill. Recommendations have been separated into proposed amendments to the Bill and suggested priorities for the Bill’s implementation.

Full explanation and details are provided in the body of this paper

RECOMMENDATIONS FOR AMENDMENTS TO THE BILL

Part 1 – Preliminary

• Objects and Principles

This Part has a positive emphasis on human rights, however the language used must further reinforce the concept of inclusion in order for the Bill to achieve it.

Recommendation 1: That the example amendments to language, provided on page 3 of the NDS submission, are incorporated into the Bill and further consideration is given to strengthening the language of the Objects and Principles of the Bill, driven by the goal of achieving inclusion.

Recommendation 2: That reference to the widely varying support needs of people with disability is added to the general principles of the Bill.

Recommendation 3: That the General Principles make reference to the Department of Family and Community Services NSW Carers Charter and the Carers (Recognition) Act 2010. Recognising carers in all aspects of supporting people with disability is important.

Recommendation 4: That Part 1, Division 2, Section 4.10 is amended to read “the crucial role of families, carers and/or significant others…”

• Principles recognising the needs of particular groups

There are two main concerns with this section. First, to name certain groups excludes them from a universal, inclusive approach. Second, to name only disability service providers in having the responsibility to recognise particular needs, other service providers are excluded. The recommendations address these issues.

Recommendation 5: That Part 1, Division 3, Section 5 be either removed or reframed along the lines of “Service providers have the responsibility to recognise diversity in the community, the varying roles of families and communities and the importance of consultation across the community in providing supports and services to people with disability.”

Recommendation 6: In Part 1, Division 2, Section 5 that (1), (2) and (3) “A disability service provider” is replaced with “The NSW Government and community”. This amendment may apply throughout the Bill.

• Definitions

A positive definition of ‘disability’ in this section is overshadowed by the failure to provide a definition for the title of the Bill, ‘inclusion’.

Recommendation 7: That a definition of inclusion is added to Part 1, Division 3, Section 7 of the Bill. NDS suggests the definition provided in the body of this document on page 7.

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Part 2 – Disability Planning

• The State Disability Inclusion Plan

State Disability Inclusion Planning is a positive step. In its current format, the legislation requires tightening to ensure that the State Disability Inclusion Plan provides the foundation for planning and implementation across all of government.

Recommendation 8: That Part 2, Division 1, Section 8.3 “The State Disability Inclusion Plan may be a document or part of a document prepared for another purpose if the document or part fulfils the requirements of subsection (1)” be omitted from the Bill.

Recommendation 9: That Part 2, Division 1, Section 9.3 be amended to read “A report on the outcome of the review and measures taken to implement the goals of the State Plan against appropriate indicators is to be tabled in each House of Parliament as soon as practicable after it is completed”.

Recommendation 10: That the following text is included in the Bill at Part 3, Section 16(1):

• to advise the Minister about the content and implementation of Disability Action Plans, including appropriate options for rewarding and correcting government departments and local councils

• to provide strategies to government departments and local councils to ensure obligations under their respective Disability Action Plans are fulfilled,

• to support local councils implement awareness raising mechanisms as part of their Disability Action Plan requirements, and

• to consult with people with disability and assist in the design and review of the State Disability Inclusion Plan.

• Disability Action Plans

Disability Action Plans (DAPS) should be genuine promises to the community that lead to implemention of strategies and breaking down of barriers to inclusion. The recommendations provide for more effective DAPs.

Recommendation 11: That at Part 2, Division 2, Section 10.5 an addition be made, reading “and (c) published in formats which are accessible”.

Recommendation 12: That Part 2, Division 2, Section 10.2(b) be amended to read “may consult with other entities the department or council considers appropriate, including the Disability Council, non-government service providers and peak bodies”.

Recommendation 13: That further consideration be given to the consequences for government departments and local councils for failing to compose and implement DAPs within the intention of the Bill. Recognition of the production and implementation of exceptional DAPs should also be considered.

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Recommendation 14: That the clause at Part 2, Division 2, 10.3(b), be amended to read: “include strategies to support people with disability which must address:

(i) providing access to buildings and facilities

(ii) providing access to information, reducing barriers to persons with disability accessing goods, services and facilities

(iii) reducing barriers to persons with disability obtaining and maintaining employment

(iv) achieving tangible changes in attitudes and practices which discriminate against persons with disabilities

Part 4 – service stanDarDs

The definition for ‘supported accommodation’ is inadequate in its current form.

Recommendation 15: That Part 4, Section 19.1(a) be replaced with “in this act, ‘supported accommodation’ means a context in which residential supports are provided by the Department, a funded provider or an organisation which is responsible for delivering support to people with disability.”

Recommendation 16: That the Sections included from 19.1(b) -19.3(b) be omitted from the Bill.

Part 5 – FunDing arrangements

• The meaning of “person in the target group”

It is important that there is no doubt regarding people with disability who are in the target group for this Bill.

Recommendation 17: That Part 5, Division 1, Section 23.1(c) be linked to regulations which detail the practical application of the sentence “significant reduction in a person’s functional capacity” in the same way that the NDIS Rules provide guidance in the application of the disability requirements for the NDIS.

Recommendation 18: That the Bill and/or forthcoming regulations address the role of DAPs, ALNSW and the transition of funding and supports from ADHC to other government departments for people with disability who are not eligible for the NDIS, in order to be consistent with and enact the spirit of ‘continuity of support ’.

• The provision of financial assistance

All possible scenarios for the provision of financial assistance must be included in the Bill.

Recommendation 19: That at Part 5, Division 2.24 (2) “the guardian of the person who has the function, under the Guardianship Act 1987 of making a decision in relation to the person…” is added to the list of possible recipients or administrators of financial assistance.

• Children over six years of age as defined in the target group

The Bill should align with NSW policy direction and current strategies.

Recommendation 20: That the clause at Part 5, Division 1, Section 23.3 be amended to read “For the purposes of this act, a person in the target group includes a child under nine years of age…”

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• Safeguarding and the provision of financial assistance for individuals

This and further recommendations are about ensuring that safeguards are robust.

Recommendation 21: That, as a precautionary measure, provision is made for the Community Services (Complaints, Reviews and Monitoring) Act 1993 to continue to apply to disability service delivery as a legacy feature of the Bill until a national process is fully implemented.

• Civil Liberties and decisions around individualised funding

While the reasons for denying a person individualised funding are reasonable, that these decisions are for the greater good of the community should be articulated.

Recommendation 22: That Part 5, Division 2, Section 24.8(b) be reworded to read “…the nature of the supports to be obtained and the assessment of risks to the individual and their community which might arise in providing financial assistance directly to the individual.”

• Human rights and agreements about financial assistance

In making financial agreements, the rights of the persons in the target group must be considered first.

Recommendation 23: That at Part 5, division 2, 28.2(b), statement (v) be inserted as statement (i) to reflect the importance of the human rights approach to this Bill.

• Probity checks

Recommendation 24: That, as a precautionary measure, reference to probity check requirements for employees of disability support services remain as a legacy feature of the Bill until a national process is established.

• Suspending and terminating financial assistance

It is understood that this division of the draft Bill is intended at least in part to provide for a person who is in the target group transitioning to the NDIS. This intention should be articulated to uphold the rights based approach of the Bill. These recommendations suggest changed emphasis and rephrasing in order to better reflect the Bill’s objects and avoid unintended consequences.

Recommendation 25: That at Part 5, Division 1, Section 22 Purpose of the Part should read:

“(1) The purpose of this part is to facilitate the provision of supports and services to persons in the target group and to facilitate the transition of financial assistance to persons in the target group from the Department in which this Act is administered to the National Disability Insurance Scheme.

(2) The purpose is to be achieved by the provision of financial assistance directly to individuals, or to eligible organisations (including the part of the Department in which this Act is administered), for the purpose of providing supports and services.

(3) The financial assistance is to be provided during the transition to the National Disability Insurance Scheme.”

Recommendation 26: That the example of hospitalisation be removed from the Bill as it does not reflect the reality of experiences of hospitalisation for people with disability accessing funded disability services.

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Recommendation 27: That Part 5, Division 4, Section 31.1(a) and Division 4, 32.1(a) be amended to read “the Director General reasonably believes based on evidence” or “the Director General can show that…” and Part 5, Division 4, Section 31.a(a)ii be amended to state that “the person in the target group no longer has use for the supports and services” or “the supports and services are no longer necessary”.

Recommendation 28: That Part 5 is reframed with a rights based approach to remedy its negative language. For example, Division 4, Section 31.1 be replaced with:

1) The financial assistance under this Part, being provided to an eligible organisation shall continue unless, by notice served on the person or eligible organisation, financial assistance should be suspended because:

(a) the Director-General can show that the supports and services are no longer necessary for the person in the target group.

• Financial assistance to promote the objects of the Bill

Recommendation 29: That at Part 5, Division 6.34(1) “… provide financial assistance to a government department, local council or any other entities…” be amended to read “… provide financial assistance to a government department, local council, peak body or any other entities…”

Part 6 – restrictive interventions

NDS is of the position that restrictive interventions should not be legislated in the way the Bill proposes. However, in the event that recommendation 30 is not upheld, further recommendations are made regarding restrictive interventions as subject of legislation.

Recommendation 30: That the use of restrictive practices by disability service providers remain regulated as it presently is, in government policy and procedure. Existing regulation should be amended to include all people with disability and consideration should be given to how better to resource restrictive practice procedures and how Government departments, local councils and private service providers may understand and implement appropriate behaviour support.

• The role of other environments in an inclusive community

This Bill resolves that people with disability are to be supported in the mainstream. It should be considered how restrictive interventions ought to be monitored throughout the NSW community.

Recommendation 31: That all relevant divisions in the Bill regarding the use of restrictive practices and positive behaviour support planning, “disability service provider” is replaced by “service provider”.

Recommendation 32: That in the definitions at Division 3 of Part 1 of the Bill, “service provider” be given a definition which is inclusive of all environments to which the Bill aims to apply.

• Children with disability and restrictive practices

It is the position of NDS that inadequate consideration has been given to the application of this legislation to children and young people with disability.

Recommendation 33: That further consultation take place regarding the appropriate processes for the approval of restrictive practices for children and young people in varied service settings.

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• Use of any restrictive practice in a positive behaviour support plan

The Bill fails to articulate that restrictive interventions are to be treated as an option of last resort and should only occur as part of a holistic positive behaviour support plan.

Recommendation 34: That at Part 6, Division 3, Section 43 a provision be added at (a) stating “uses positive behaviour support strategies as the primary approach.”

• Defining chemical restraint

The definition of chemical restraint in the context of restrictive practices in the Bill is confusing. This definition ought to be reconsidered in light of the existing ADHC policy.

Recommendation 35: That a clause removing ambiguity regarding where the use of psychotropic medication is and is not considered a restrictive practice in the case of existing diagnosed mental disorder, physical illness or conditions be inserted at Part 6, Division 1, Section 38.

• Restricted practice authorisation panels

Recommendation 36: That Part 6, Division 2, Section 42.4 be amended to read “A Restricted Practice Authorisation Panel consists of no less than 3 persons appointed by the Director-General or disability service provider…”

• Involvement of people with disability and those who are important to them in the development and review of plans

Any restrictive practice must be part of a supportive plan and subject to consultation and discussion with the person for whom the plan is being prepared as well as their family and/or carers and significant people in their life.

Recommendation 37: That Part 6, Division 3, Section 43.3 be amended to read: “In developing a behaviour support plan, the service provider must consult with:

(a) the person in the target group with whom the plan has been prepared,

(b) if a person other than the person with whom the plan has been prepared must give a consent to the use and form of seclusion or restraint – that person,

(c) the family and/or carer/s of the person with whom the plan has been developed and

(d) other persons specified as appropriate persons with whom a service provider must consult in reviewing a plan.

Recommendation 38: That at Part 6, Division 3, Section 43, Point (5) be moved to position (1) under Section 44.

Recommendation 39: That at Part 6, Division 3, Section 44.4 “A person for whom a behaviour support plan has been prepared [add - , a person they have nominated or the person’s guardian] may at any time ask the disability service provider to review the plan.”

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Recommendation 40: To align with the above recommendation regarding Section 43, that Part 6, Division 3, Section 44.5 be amended to read:

“In reviewing a behaviour support plan, the service provider must consult with:

(a) the person in the target group with whom the plan has been prepared,

(b) if a person other than the person with whom the plan has been prepared must give a consent to the use and form of seclusion or restraint – that person,

(c) the family and/or carer/s of the person with whom the plan has been developed and

(d) other persons specified as appropriate persons with whom a service provider must consult in reviewing a plan.”

• Use of restraint on person under 18 years of age

The general principles of this Bill identify that children and young people with disability have the right to participate in decisions which affect their lives and to respect as equal members of the community. Part 6, Division 3, Section 46 is incongruous with these principles.

Recommendation 41: That a provision is added in Part 6 of the Bill stating: “To ensure a child or young person is able to participate in decisions regarding restrictive practices under this Act, the young person must be provided with:

(a) adequate information, in a manner and language that he or she can understand, concerning decisions to be made,

(b) the opportunity and support to express his or her views according to his or her abilities,

(c) information about how his or her views may be taken into account and (d)an opportunity to respond to the decision made under this Act.”

scHeDule 4 – amenDment oF acts: amenDment oF tHe ombuDsman act

• Notification period

NDS is concerned that the period in which a Director-General or principal officer of a service provider must notify the Ombudsman of a reportable incident is mistaken.

Recommendation 42: That the clause at Schedule 7, Section 4B, 25N 3(a) be amended to read: “as soon as practicable, but not more than two days, after the Director-General or principal officer becomes aware of the reportable allegation or reportable conviction.”

• Transition to the NDIS

NDS is keen to ensure that mechanisms for reporting abuse and neglect continue to exist until safeguards under a national framework are implemented.

Recommendation 43: That it is clarified whether the Schedules of the Bill are transitional or legacy, and that the amendments to the Ombudsman Act are maintained until equivalent guarantees and safeguards are enacted under a national framework.

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RECOMMENDATIONS RELATED TO IMPLEMENTATION OF THE BILL

Part 2 – Disability Planning

• Disability Action Plans

These recommendations refocus DAPs on implementation and tangible outcomes.

Recommendation 44: That the regulations outline how resourcing will provide for the effective implementation of disability action planning.

Part 5 – FunDing arrangements

• Beyond background screening

For some employees, criminal record checks are not possible or effective, however a statutory declaration on its own does not verify a person’s criminal record or ‘suitability’. NDS recommends a ‘Swiss cheese’ approach to probity checking, preventing and responding to abuse and neglect.

Recommendation 45: That the regulations clearly define the conditions under which statutory declarations suffice as probity checks in place of criminal record checks and/or Working With Children Checks. Measures to ensure a check is carried out as soon as possible should be articulated.

Recommendation 46: That regulations are maintained which identify good practice guidelines for prevention, timely intervention and remediation of abuse and neglect, such as deliverables from the NDS Zero Tolerance project as well as others.

• The suspension and termination of financial assistance

NDS members are concerned about the practicality of the conditions under which suspension of financial assistance might occur. Members were also concerned about the potential impact of the roll out of the NDIS on those who will not be eligible for it.

Recommendation 47: That the regulations must outline a substantial minimum timeframe that must lapse before a suspension of financial assistance can be applied.

Recommendation 48: That the regulations articulate how NSW will provide continuity of support to people with disability who are receiving funded support through ADHC but will not be participants of the NDIS.

Part 6 – restrictive interventions

• Resourcing implications for service providers

There are significant resourcing and implementation matters that must be addressed in order to make regulating restrictive interventions manageable and productive for service providers and people with disability.

Recommendation 49: That regulations and practice guidance articulate resourcing, referral pathways and processes for implementation of the Part.

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• Data collection

The UNCRPD at Article 31 states that state parties are required to collect appropriate information, including statistical information, which will enable the formulation and implementation of policies which give effect to the Convention.

Recommendation 50: That the NSW Government establish baseline data and a data collection and monitoring strategy that will allow analysis and improvement of this law over time.

• Implementing restraint or seclusion in an emergency

Interpretation of the phrase “serious physical harm” in employing restraint or seclusion in an emergency must be very clear to effectively reduce the use of restrictive interventions.

Recommendation 51: That training is made available for workers involved in positive behaviour support providing skills in judgement calls on emergency use of restrictive interventions.

scHeDule 2 – PrescribeD criminal oFFenses

• Implementation of prescribed criminal offences requirements

Grey areas exist where criminal offences aren’t proscribed however do effect suitability for employment.

Recommendation 52: That practice guidance is published giving detail to the appropriate implementation of this schedule.

scHeDule 4 – amenDment oF tHe ombuDsman act

• Implementation of additional safeguards

NDS members considered the changes to the Ombudsman Act to be a positive initiative. Guidelines will provide advice around measures to implement or enhance broader safeguards than those introduced in the Bill.

Recommendation 53: That guidelines are maintained which detail resources for the implementation of additional safeguarding procedures.

imPlementation oF tHe bill tHrougH eDucation anD aWareness

Recommendation 54: That extensive education and training with all relevant stakeholders be rolled out following enactment of this Bill.

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CONCLUSION

To create an environment of inclusion in the NSW community, these reforms must be guided by considered resourcing, coherent overall strategies and an emphasis on implementation and outcomes. This submission makes recommendations which will strengthen the Bill, better align it with its philosophical underpinnings and more realistically position it to achieve its goals.

It must be highlighted that the translation of the policy driven goal of inclusion into reality is also about cultural change through conversation, advocacy and education. Continuing consultation with people with disability, the disability services sector and peak bodies on the state of inclusion and the efficacy of the Bill will be essential in achieving positive outcomes.

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Introduction

NDS welcomes the opportunity to comment on the exposure draft of the NSW

Disability Inclusion Bill. A growing understanding of social justice and an

appreciation of diversity is being reflected in Government’s willingness to

implement positive changes for people with disability in NSW. NDS applauds that

the Bill formally acknowledges the role of every organisation and individual in

NSW in creating an environment in which people with disability can live the life

they choose.

It is significant that this Bill has been named the Disability Inclusion Bill. Inclusion

refers to a process which combats all discriminatory attitudes and generates open

and welcoming communities. The aim of the Disability Inclusion Bill (the Bill) is to

set up a new environment in the community of NSW. By making official the

responsibility of government departments, local councils, and specialist disability

service providers for the recognising the rights and facilitating the community

inclusion of people with disability, the Bill intends to put the value of inclusion into

action.

This legislation should seek to remove the disadvantages and barriers which exist

as a result of society’s response to disability and emphasise access for those who

are most at risk of marginalisation and exclusion1. In implementation, the Bill must

result in change to the contextual conditions that limit inclusion2. For this, there

must be a clearly demonstrated pathway - and resources - for the community,

government departments and local councils to take on this responsibility.

There is a long way to go to achieve inclusion in NSW. Mainstream departments

are not yet inclusive. The recently released paper by the Australian Human Rights

Commission (ARHC) ‘Equal Before the Law – towards disability justice strategies’

and soon to be released paper from NDS regarding the experiences of people with

disability when hospitalised in NSW provide examples of the journey this state has

embarked upon but is yet to achieve fully

Case example 1: Access to justice

The AHRC report ‘Equal Before the Law’ describes that in every jurisdiction in

Australia there are significant problems accessing justice for people with disability.

The report reveals, amongst many other things, that:

1 UNESCO, 2005, ‘Guidelines for Inclusion: Ensuring access to education for all’ in Berlach, R. G. & Chambers,

D. J., 2011, Interpreting inclusivity: an endeavour of great proportions, International Journal of Inclusive Education, 15:5, 529 – 539, p.531 2 Biklen, B., 2000, Constructing Inclusion: lessons from critical disability narratives, in International Journal of

Inclusive Education, 4:4, 337-351, p.342

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Often, a person’s disability is not identified in a timely way when they come

into contact with the justice system and so the necessary supports and

adjustments are not provided.

Even when a person’s disability is identified the necessary adjustments and

supports are frequently not provided.

People with disability are not being heard because of erroneous perceptions

that they are unreliable, not credible or not capable of being a witness.

Styles of communication used by police, lawyers, custodial officers and courts

can be confusing and inappropriate3.

The report proposes that every state and territory design and implement a

thorough and coordinated strategy addressing all of the issues raised4.

Case example 2: Access to hospital care

The forthcoming NDS paper ‘People with disability and hospitalisation:

opportunities and challenges in NSW’ identified through consultation with NDS

members, that:

Hospital staff sometimes lack even the most basic understanding of disability.

Incorrect assumptions have had significant consequences.

People with disability are exposed to prejudiced and discriminatory attitudes in

the approach taken to their health care needs.

People with disability have been left unassisted in hospital, unable to clean

their teeth, eat their food or communicate pain experiences. People with

disability have been inappropriately discharged from hospital without support,

putting them at significant risk.

Often, disability service providers deliver support to people with disability who

are their service users in hospital despite not being resourced to do so. This

has a ripple effect on the organisation and others who use its services.

The paper will propose that resourcing, education and a coordinated approach

across NSW to supporting people with disability in hospital from admission through

discharge is necessary5.

The Bill will contribute to facilitating the hand-over of support provision from the

Department of Family and Community Services to the non-government disability

services sector, and the roll-out of the National Disability Insurance Scheme

3 Australian Human Rights Commission, 2014, ‘Equal Before the Law: towards disability justice strategies’,

Sydney, p.5 4 Australian Human Rights Commission, 2014, ‘Equal Before the Law: towards disability justice strategies’,

Sydney, p.6 5 National Disability Services, 2014 (yet to be published), ‘People with disability and hospitalisation:

challenges and opportunities in NSW’, Sydney

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(NDIS) over the next four years. This is an historical and significant shift and NDS

applauds the NSW Government’s proactive response.

The Department of Family and Community Services, Ageing, Disability and Home

Care (ADHC) has for some time existed in NSW as the ‘provider of last resort’. In

withdrawing from service provision, this safety net is also being removed. As such,

it is incredibly important that each aspect of the Bill is realistic, concrete and

enforceable. If inclusion and responsibility for appropriate support is to rest with

the whole community, this responsibility must be strategically disseminated and

understood by all who share it. Risks associated with this shared commitment

across the community must be mitigated through safeguards and controls.

NDS has consulted with members in the formation of this submission. Overall,

NDS members have expressed concern that aspects of the Bill do not reflect the

reality of service provision and the complexities that the disability service sector

manages on a daily basis. Members also found it philosophically confusing that

that the title of the Bill does not reflect its content. Members fed back that the Bill

fails to acknowledge and adequately deal with the gap in the provision of support

that exists now between the disability service sector and state government

department. That said, NDS members acknowledge that the intentions of this Bill

are earnest.

The message gleaned through consultation is that, while the Bill is the description

of a positive initiative, what it aims to achieve is far more complex than simply

changing the law. It is about the way the disability is viewed by the whole of

society. For this Bill to be effective, all parts of the NSW community must adapt.

Cultural change must be pushed for and resourced. This can come about through

continuous and permeating advocacy. Aspects of the Bill must be strengthened

and a considered plan developed to facilitate progress across the whole

community.

This submission will provide feedback on each Part of the Bill, beginning with a

summary of NDS members’ response to its Objects and Principles. Considerations

for implementation of the Bill will also be discussed.

Part One - Preliminary

Objects and Principles

NDS commends the emphasis on rights, participation and access that is evident

throughout the preliminary part of the Bill. This sets its tone and the moral

foundation upon which the Bill’s proposed Disability Action Plans, service

standards, funding arrangements and restrictive interventions are built. This Part

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of the Bill displays clearly the maturation of the NSW community since the

enactment of the NSW Disability Services Act in 1993.

Given the premise of the Bill, identified by its name, the language describing the

Bill’s objects and principles ought to be strengthened.

NDS members stated that if the purpose of this Bill is to acknowledge that the

community and State have a responsibility to genuinely facilitate the exercise of

the human rights and full participation of people with disability, the gravity of this

responsibility is not being communicated. The language throughout Division 2 of

the preliminary part of the Bill must reinforce the concept of inclusion in order for

the Bill to achieve it.

For example, at Part 1, Division 1, Section 3:

“(a) to acknowledge that people with disability have the same human rights as

other members of the community and that the State and the community have a

responsibility to facilitate the exercise those rights” may be amended to read “to

confirm that people with disability have the same human rights as other members

of the community and enshrine the responsibility of the State and community in

facilitating these rights in Law.”

and

“(e) to support, to the extent reasonably practicable, the purposes and principles of

the United Nations Convention on the Rights of People with Disabilities

(UNCRPD)” may be amended to read “to uphold the purposes and principles of

the UNCRPD and drive its implementation”.

Recommendation 1

That the amendments above are incorporated into the Bill, and further

consideration is given to strengthening the language of the Objects and Principles

of the Bill, driven by the goal of achieving inclusion.

NDS members identified that further consideration must be given to the following

points:

The breadth of impacts the many forms of disability may have for each

individual is not expressed, nor is the concept that people with disability need

widely varying levels and types support to live lives that are meaningful to them.

Recommendation 2

That reference to the widely varying support needs people with disability have is

added to the general principles of the Bill.

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The crucial role of families, carers and/or other significant persons is recognised

in the principles, at Part 1, Division 2, Section 4.10, but nowhere else in the Bill.

No reference is made in the Bill to the Carers Charter or the Carers

(Recognition) Act 2010 and their application to supporting people with disability.

Recommendation 3

That the General Principles make reference to the Department of Family and

Community Services NSW Carers Charter and the Carers (Recognition) Act 2010

in order to accentuate the importance of recognising carers in all aspects of

supporting people with disability.

In recognising the role of families, carers and significant others in the lives of

people with disability, the Bill does lack some nuance by assuming that people

with disability necessarily have and want to involve their family, carers and

others.

Recommendation 4

That Part 1, Division 2, Section 4.10 is amended to avoid the assumption that

people with disability always have and wish to involve both family and carers as

well as other significant people in their lives. This section should instead read “the

crucial role of families, carers and/or significant others…”

Principles recognising the needs of particular groups

Two particular concerns were identified by NDS members with Part 1, Division 2,

Section 5 of the Bill.

First, inclusion is a term which implies a universal approach. A person centred

approach to supporting people with disability should negate the necessity to

recognise the needs of particular groups in law because the focus is on

responding to the particular needs of each individual.

NDS members were concerned that the Bill undermines its own objects by

identifying the needs of particular groups. To name certain groups excludes them

from a universal, inclusive approach. This section of the Bill is therefore

counterproductive. Members reasoned that the general principles of the Bill are

adequate, and that the Commonwealth Disability Discrimination Act (1992) and the

Anti-Discrimination Act 1977 address the particular groups identified in the Bill.

NDS recognises that there are sensitivities around recognising the needs of

particular groups, for example with Aboriginal and culturally and linguistically

diverse groups, due to differences in the way disability may be perceived. If these

principles are to remain in the Bill, members identified that Section 5 should be

reframed as positive discrimination and a recognition of diversity, rather than an

isolation of particular groups.

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Recommendation 5

That Part 1, Division 3, Section 5 be either removed or reframed along the lines of

“Service providers have the responsibility to recognise diversity in the community,

the varying roles of families and communities and the importance of consultation

across the community in providing supports and services to people with disability.”

Second, the Bill acknowledges that the State and community have responsibility in

facilitating the rights of people with disability. Yet the principles recognising the

needs of particular groups only refer to disability service providers. NDS therefore

suggests that if these principles remain in the Bill, the value of inclusion be

reflected by removing the reference to disability specific services.

Recommendation 6

That in Part 1, Division 2, Section 5, (1), (2) and (3) “A disability service provider”

is replaced with “The NSW Government and community”. Such an alteration

emphasises whole of Government and community approach being fostered by this

Bill. This amendment may apply throughout the Bill.

Definitions

NDS applauds the alignment of the definition of disability with that of the United

Nations Convention on the Rights of People with Disability (UNCRPD).

In the list of definitions to be applied to the Bill, a clear omission exists. A definition

of inclusion must be added to the Bill. Without a tight conceptual focus, there is

space for the term to be misunderstood, lose value and become ephemeral6.

Setting the Bill up with a useful and applicable definition of inclusion encapsulating

its moral underpinning will strengthen its drive for implementation.

Recommendation 7

That a definition of inclusion is added to Part 1, Division 3, Section 7 of the Bill.

NDS suggests the definition is drawn from the following:

Inclusion is founded on a moral position which values and respects every

individual. Inclusion welcomes diversity as richness[1] and embraces the challenge

of providing the best possible environment for all people[2].

6 Berlach, R. G. & Chambers, D. J., 2011, Interpreting inclusivity: an endeavour of great proportions,

International Journal of Inclusive Education, 15:5, 529 – 539, p.529 [1]

Beckett, A. E., 2009, ‘Challenging disabling attitudes, building an inclusive society’: considering the role of education in encouraging non-disabled children to develop positive attitudes towards disabled people, British Journal of Sociology of Education, 30:3, 317 – 329, p.318 [2]

Berlach, R. G. & Chambers, D. J., 2011, Interpreting inclusivity: an endeavour of great proportions, International Journal of Inclusive Education, 15:5, 529 – 539, p.530

8

Inclusion involves welcoming and upholding the rights of all people as equal

members of a community. An inclusive community is free from discriminatory

beliefs, attitudes and practices. An inclusive community puts its values into action

to ensure that everyone belongs, participates and flourishes. True inclusion is a

natural safeguard[3].

Part Two - Disability Planning

This section of the Bill delivers positive steps towards a more integrated approach

to the delivery of services across the community to people with disability. Key

sections relating to consultation, development, conduct and reporting requirements

demonstrate a commitment to locating people with disability as a focus of

government planning processes. The Bill compels a greater level of

responsiveness and planning than in other jurisdictions such as Victoria and

Queensland.

The Bill proposes a significantly more robust process for engagement with the

Minister and clear requirements for consulting with people with disability. NDS

applauds this strengthening of reporting mechanisms from their current form in the

Disability Services Act 1993.

In the interests of ensuring meaningful outcomes and the most robust processes,

NDS has identified a number of areas for improvement around the enforceability

and utility of Part 2 of the Bill. A number of recommendations relayed by NDS

members around the process of Disability Action Planning are presented here.

The State Disability Inclusion Plan

The establishment of a State Disability Inclusion Plan relating to service access

and promoting the participation of people with disability is welcomed as a new

approach to this whole of government initiative. In its current format, the legislation

requires further tightening to ensure that the process is not confused with or

subsumed by existing plans such as the forthcoming National Disability Strategy

NSW Implementation Plan (which is suggested as a substitute in the information

booklet).

NDS is of the position that the Bill needs to go further to ensure that the State

Disability Inclusion Plan provides the foundation for planning and implementation

[3]

Cologon, K., 2013, Inclusion in Education. Towards equity for students with disability. Children with Disability Australia and Children and Families Research Centre, Institute of Early Childhood, Sydney, p.6

9

across all of government. In consultation with members, the State Disability

Inclusion Plan was identified as having the potential to:

‘create consistency’ in recognising the disadvantages and reduced access

which people with disability experience

provide a framework for inclusion planning across all areas of society

ensure that the individual needs of people with disability are recognised

and respected whether or not they are or will be eligible for the NDIS

engage with the whole community.

At present, the statement “the State Disability Inclusion Plan may be a document

or part of document prepared for another purpose” (Part 2, Division 1, Section 8.3)

does not provide legislative certainty for this important planning process. Nor does

it separate the State Disability Inclusion Plan from other processes such as the

National Disability Strategy NSW Implementation Plan (NIP). This Bill and its

implementation are actions amongst many of the NIP and ought to remain

discrete.

NDS urges the government use the State Disability Inclusion Plan to frame and

present the implementation of measures to support the inclusion of people with

disability as core to all of government business. A genuine commitment to the

State Disability Inclusion Plan provides a rare and valuable opportunity to recast

how inclusion, as a concept being transformed into action, is addressed across all

levels of government and by authorities. As a discrete document, it will offer the

government a platform to showcase best practice and case-studies which

emphasise how tangible actions are improving inclusion.

Recommendation 8

That Part 2, Division 1, Section 8.3 “The State Disability Inclusion Plan may be a

document or part of a document prepared for another purpose if the document or

part fulfils the requirements of subsection (1)” be omitted from the Bill.

Reporting on the State Disability Inclusion Plan

In keeping with the spirit of the Bill there is an imperative to ensure that the

planning process recognises the complexities associated with promoting inclusion

for people with disability. This process must stretch beyond the role of improving

access and participation to acknowledge that addressing barriers to inclusion

requires a conscientious and active focus across all areas of government.

NDS members have identified the need for reporting on the State Disability

Inclusion Plan to extend to actions taken to implement it. At present, reporting

requirements only address “consistency with whole of government goals” (Part 2,

Division 1, Section 9.2). The requirement to report on the implementation of

Disability Action Plans (DAPs), which NDS endorse, (Part 2, Division 2, Section

10

11.2) should be replicated for the State Plan. Benchmarks and indicators for

implementation which address policies, practices and cultures can be found in

existing documents such as the ‘Inclusion Index’7 and should be referred to in the

regulations and/or practice guidelines.

Recommendation 9

That Part 2, Division 1, Section 9.3 be amended to read “A report on the outcome

of the review and measures taken to implement the goals of the State Plan against

appropriate indicators is to be tabled in each House of Parliament as soon as

practicable after it is completed”.

Disability Action Plans

As noted, the Bill proposes improved reporting requirements when compared with

the Disability Services Act 1993 and the existing guidelines for Disability Action

Planning (1993). The focus on processes and outcomes is particularly positive.

NDS supports the Bill’s requirement that local councils and government

departments must consult with people with disability in creating and reviewing their

DAPs. This legislative commitment has the potential to facilitate stronger

engagement and embraces the general principles of the Bill itself. To complete this

process, DAPs must be published in an open forum and in accessible formats so

as to ensure their inclusivity.

Recommendation 10

That at Part 2, Division 2, Section 10.5 an addition be made, reading “and (c)

published in formats which are accessible”.

A shift in focus and language used in the Bill towards a greater emphasis on

outcomes and actions must occur. NDS draws attention to the language which is

used in Part 5, Division 3, Section 28.2(b), for example “[agreements must specify]

the outcomes to be achieved”. A suitable focus on implementation and results

would strengthen DAPs.

The non-government sector’s role in the provision of disability services should be

acknowledged in the legislation. NDS members are positioned to provide practical

and evidence-based advice on how local councils and government departments

can plan for and address barriers to inclusion experienced by people with

disability. Consequently, the Bill should reference non-government organisations

as a sector to consult in assisting with the development and implementation of

DAPs.

7 Booth, T. & Ainscow, M. 2002 Index for Inclusion: developing learning and participation in schools, Centre

for Studies on Inclusive Education

11

Recommendation 11

That Part 2, Division 2, Section 10.2(b) section be amended to read “may consult

with other entities the department or council considers appropriate, including the

Disability Council, non-government service providers and peak bodies”.

The Utility of Disability Action Plans

If it is the case that NSW must legislate the inclusion of people with disability,

DAPs should be genuine promises to the community. If DAPs are to be identified

in law they should represent more than proposed strategies to make the

mainstream more accessible. Departments and local councils ought to have a

responsibility to implement strategies that break down barriers to inclusion.

Reporting on successes and key actions when unable to succeed should be part

of this process.

NDS is concerned about the lack of provisions addressing circumstances in which

an unsatisfactory DAP is developed or, alternatively, a satisfactory DAP is

developed but not implemented. The potential for the Disability Council to act as a

facilitator and provide advice to improve standards and practice should be

considered.

Recommendation 12

That further consideration is given to the consequences for government

departments and local councils for failing to compose and implement DAPs within

the intention of the Bill. Recognition of the production and implementation of

exceptional DAPs should also be considered.

At present, the criteria included at Part 2, Division 2, Section10.3(b) do not provide

compelling direction in regards to what needs to be reported on within DAPs. NDS

believes that the language which is included in this section does not compel

authorities to report on relevant matters. The selection of the words “for example”

in regards to the criteria listed, allows authorities discretion as to which themes are

reported on. This is compounded by the use of “have regard” in relation to how

authorities must respond to the general principles of the Bill. NDS fears that this

approach will not result in councils and government departments publishing

meaningful material which assist in the provision of comprehensive and quality

services to people with disability.

Case example 3 – Housing NSW’s Disability Action Plan

There is a disconnect in the complexities addressed in the Housing NSW Disability

Action Plan and those that are included in its annual reporting of the

implementation of their Plan. A close reading of the Housing NSW Disability Action

Plan 2009-2013 demonstrates an excellent level of awareness and sensitivity in

12

regards to how the agency can best use its resources to respond to the needs of

people with disability and create a more inclusive approach to service delivery.

These complexities, however, are not translated in reporting on actions in the

Housing NSW section of the Family and Community Services annual report.

In consulting with NDS members, the current Housing NSW DAP was identified as

lacking:

a focus regarding what actions were being taken to move people out of

disadvantage

key performance indicators for inclusion outcomes

information about actions taken, progress against targets or milestones and any

reasons for a target not to be reached

strategic focus addressing how actions link to a broader platform such as the

State Inclusion Plan.

In its current form, the Bill does not demand any more of departments or local

councils which are presently failing to achieve inclusion.

NDS members have identified similar implementation issues across a range of

local councils and state government agencies. In the case of housing policy,

improved utility of DAPs would result in increased knowledge within housing of

current challenges in accessing to affordable housing (e.g. waiting list periods and

design concerns). A functioning disability planning process may build a useful

information sharing platform.

Local councils and government departments should also be required to report on

strategies implemented to achieve attitudinal change and promote understanding

of the barriers to inclusion which people with disability experience.

NDS draws attention to the Victorian Disability Services Act 2006 as a model of

best practice in appropriate criteria for DAP reporting. The proposed amendment

reflects and strengthens the language of the draft Bill to provide greater

compulsion for local councils and government departments to report on these

areas.

Recommendation 13

That the clause at Part 2, Division 2, 10.3(b), be amended to read: “include

strategies to support people with disability which must include:

(i) providing access to buildings and facilities,

(ii) providing access to information,

(iii) reducing barriers to persons with disability accessing goods, services and

facilities;

(iv) reducing barriers to persons with disability obtaining and maintaining

13

employment;

(v) achieving tangible changes in attitudes and practices which discriminate

against persons with disability through disability awareness raising activity.

Part Three - The Disability Council NSW

NDS welcomes the government’s ongoing commitment to the Disability Council

NSW (the Council) and endorses the proposed realignment of its roles. It is

apparent in the Bill that the Council will remain a key body in promoting the

inclusion of people with disability in NSW.

There are opportunities to utilise Council members’ collective experience to ensure

effective reporting and implementation of local council and government

department DAPs. NDS is heartened by the provisions included at Part 3, Section

16(e-h) in regards to the promotion and monitoring of inclusion initiatives.

However, as indicated in discussing DAPs, more provisions are needed to drive

the strongest possible outcomes for people with disability through Disability Action

Planning and reporting processes.

NDS has identified scope to fine-tune the Bill concerning the Disability Council in

its role supporting Disability Action Planning and in the design and review of the

State Disability Inclusion Plan.

Disability Action Planning

At present, the role of the Disability Council NSW in contributing to the disability

action planning process is loosely defined. This is apparent from the Council’s

position as a body which “advises” the Minister and government departments on

the content and implementation of DAPs (Part 3, Section 16, (e) and (f). NDS

believes that further detail ought to be provided regarding how the Council will

provide advice to the Minister in regards to the DAP process.

NDS members identified the Disability Council as an appropriate body for

recommending corrective actions for local councils and government departments

that do not submit satisfactory DAPs or take measures to implement their

respective plans. The Council should also be empowered to reward and

encourage authorities that best promote the inclusion of people with disability.

NDS commends that the Bill includes provisions for the Disability Council NSW to

be provided funds through which to exercise its new functions (Part 3, Section 17)

and considers appropriate resourcing very important in the efficacy of this new

role.

14

State Inclusion Planning

NDS members identified that, as part of the development of the State Inclusion

Plan, the Minister is not required to consult with people with disability or other

organisations within the disability sector. The Minister must be held to the same

standards as government departments and local councils. To ensure that the

Council is given “a greater input on what is important to people with disability, and

contribute more to government improvements”8, NDS recommends that the Bill

provide the Council with an active role in the development of the State Inclusion

Plan to ensure that it is able to shape whole of government disability policy.

Recommendation 14

That the following text be included in the Bill at Part 3, Section 16(1):

to advise the Minister about the content and implementation of disability

action plans, including appropriate options for rewarding and correcting

government departments and local councils

to provide strategies to government departments and local councils to

ensure obligations under their respective disability actions plans are

fulfilled,

to support local councils implement awareness raising mechanisms as part

of their disability action plan requirements, and

to consult with people with disability and assist in the design and review of

the Disability Inclusion Plan.

Part Four - Service Standards

This section of the submission deals with the meaning of supported

accommodation at Part 4, Section 19. In the development of service standards, it

is important they are applicable to all relevant scenarios.

The definition provided for “supported accommodation” does not reflect a wide

enough range of accommodation support services provided to people with

disability. At present, the definition; a “premises in which: a person with disability

(the first person) is living in a shared living arrangement (whether short-term or

permanently) with at least one other person with disability” (Part 4, Section 19.1

(a)) assumes that a person with disability has to live with at least one other person

with disability.

8 NSW Department of Family and Community Services, 2013, Disability Inclusion Bill Information Booklet,

p.18

15

There are many circumstances where this is not an accurate representation of

supported accommodation. In consultation with NDS members, this definition was

found to exclude:

in-home support which is not provided within the supported accommodation

service type

people using flexible drop-in support arrangements

situations in which a person with disability is residing with one or more

people without disability

co-tenancy

situations in which a person with disability is living with one or more family

members with disability

individuals who receive a mixture of support from service providers in both

in-home and supported premises arrangements

assisted boarding houses.

The importance of an appropriate and comprehensive definition of ‘supported

accommodation’ is critical to the function of the Bill. This will be is expanded upon

in the section of this submission addressing amendments to the Ombudsman Act.

To reflect the value of choice and control in living arrangements, NDS

recommends altering the Bill as follows:

Recommendation 15

That Part 4, Section 19.1(a) be replaced with the following clause:

In this act, “supported accommodation” means a context in which residential

supports are provided by the Department, a funded provider or an organisation

which is responsible for delivering support to people with disability.

Recommendation 16

That the Sections included from 19.1(b) -19.3(b) be omitted from the Bill.

Part Five - Funding Arrangements

The funding arrangements were considered in detail during consultation with NDS

members. A range of issues emerged, from the target group to probity checking of

potential employees and safeguards. These issues are detailed in this section of

the submission. Overall, this Part of the Bill and its particular focus on eligibility,

termination and withdrawal is not viewed by NDS members as consistent with the

premise of the Inclusion Bill.

16

The meaning of “person in the target group”

The ‘target group’ for the draft Bill aligns closely with the NDIS disability

requirements9.

The NDIS disability requirements use of the phrase “substantially reduced

functional capacity”10. This phrase is supported by the NDIS Rules for becoming a

participant. The Rules provide details describing what this term means when

applied11. NDS suggests that in aligning to the NDIS target group, the Bill also

refer to a detailed definition of “significant reduction in a person’s functional

capacity” in order to remove any doubt over its meaning.

Recommendation 17

That Part 5, Division 1, Section 23.1(c) be linked to regulations which detail the

practical application of the sentence “significant reduction in a person’s functional

capacity” in the same way that the NDIS Rules provide guidance in the application

of the disability requirements for the NDIS.

In aligning with the target group for the NDIS the funding arrangements of this Bill

apply only to a proportion of people with disability. In effect, the Bill assumes that

the mainstream and community will have the capacity to take responsibility for

meeting all of the support needs of people with mild and moderate disability; that it

will be implemented effectively by local councils and government departments.

This fact highlights the importance of the implementation of robust DAPs.

It is likely that there are people who currently receive funded supports but will not

be eligible for the NDIS. In such a case, ensuring that an individual who continues

to require support from other sources does in fact receive that support is not

addressed in the Bill. NDS is of the position that there must be a planned

approach to transitioning support capabilities into the community in order to

achieve the ‘smooth change-over’ for which the Bill aims.

AbilityLinks NSW (ALNSW) will have a role in this through its work with

communities, government departments, organisations and local councils to

promote the inclusion of people with disability12. Yet, ALNSW is external to the

disability support system and does not itself have a role in providing supports. In

other words, unless concerted and planned efforts address the barriers to

inclusion that exist in the community and government departments, people who

are not in the target group may fall through substantial gaps generated as ADHC

withdraws from service provision and the NDIS rolls out.

9 National Disability Insurance Scheme Act, 2013, Australian Commonwealth Government, Section 24, 1

10 National Disability Insurance Scheme Act, 2013, Australian Commonwealth Government, Section 24, 1(c)

11 National Disability Insurance Scheme (Becoming a Participant) Rules 2013, Australian Commonwealth

Government, Section 5.8 12

NSW Government, Ability Links NSW Specifications and Guidelines, Sydney, 2013, p.5

17

Strengthening and amending the Bill according to NDS’s recommendations is vital.

The amendments recommended by NDS to the sections dealing with DAPs in

particular will go some way to ensuring that people with disability do not find

themselves the mainstream and find themselves without specialist support

services in a mainstream community that lacks the capacity to support them.

Recommendation 18

That the Bill and/or forthcoming regulations address the role of DAPs, ALNSW and

the transition of funding and supports from ADHC to other government

departments for people with disability who are not eligible for the NDIS, in order to

be consistent with and enact the spirit of ‘continuity of support13’.

The provision of financial assistance

Division 2, Section 24.2 states that an individual receiving funds may nominate a

person to receive funds on their behalf. No reference is made to the Guardianship

Act 1987 or Guardianship Orders which have an impact on who may make

decisions regarding the support of a person with disability.

Recommendation 19

That at Part 5, Division 2.24 (2) “the guardian of the person who has the function,

under the Guardianship Act 1987 of making a decision in relation to the person…”

is added to the list of possible recipients or administrators of financial assistance.

Children over six years of age

A child under six years of age who has developmental delay within the meaning of

the National Disability Insurance Scheme Act 2013 (Commonwealth) is considered

to be a person in the target group of the NSW Disability Inclusion Bill 2014.

In NSW, the recent focus has been on improving access to the mainstream

community and services for children aged zero to eight years. It is described in

Department of Family and Community Services (FaCS) documentation that the

zero to eight life stage is critical for healthy development, and improved outcomes

across the lifespan14. Cited as a move away from diagnosis based approach and

towards a functional understanding of disability, these initiatives acknowledge that,

for some children, identifying disability may not occur until later childhood, after the

first few years of school. The zero to eight age range recognises that, for some

families, a myriad of additional barriers may exist to identifying the need for

diagnosis and accessing early intervention supports. Delays or a late diagnosis

13

Intergovernmental Agreement on the NDIS Launch, Schedule A: Bilateral Agreement for NDIS Launch between the Commonwealth and New South Wales, Part 3, 10, 2012, p.3 and http://www.ndis.gov.au/participants/continuity-support

14 Ageing Disability and Home Care, Strengthening Supports for children and families 0 – 8 years strategy.

Information sheet, Sydney, 2013, p.1

18

can mean missing out early intervention funding and services. The impact of this

across the rest of a child’s lifespan can be significant. Making support available

throughout this crucial time reflects an investment model which minimises the

human cost for a child and their family.

NDS suggests that the target group identifying children aged zero to six is

changed to zero to eight to reflect the Bilateral Agreement between NSW and the

Commonwealth Government for the NDIS Launch15, EarlyLinks NSW16 and the

‘Strengthening Supports for Children 0 – 817’ initiative. Including the ages of seven

and eight in the target group will achieve consistency in NSW based policy and

practice, and will remove any doubt about the eligibility for support of a child who

is older than six years.

Recommendation 20

That the clause at Part 5, Division 1, Section 23.3 be amended to read “For the

purposes of this act, a person in the target group includes a child under nine years

of age…”

Safeguarding and the provision of financial assistance for individuals

NDS applauds the inclusion in the Bill that the Minister must have regard to the

views of the individual in the provision of financial assistance. However, NDS has

noted inconsistencies between the Bill and its supporting information concerning

safeguarding and regard for an individual’s views and preferences.

The information booklet accompanying the Bill states that initial consultation on the

Disability Services Act review indicated that people who are vulnerable and need

support in making decisions should have access to safeguards. In describing how

more choice and control will be delivered to people with disability, the booklet

states that the Bill aims to increase choice by continuing “to fund people and help

them manage their own supports and deal with risks”18. The booklet describes

that, in such a way, people with disability are enabled to move their funding away

from poor quality service providers. Individualised funding is regarded as a

safeguard in itself.

The Bill does not refer to individualised funding as a safeguard, nor to any other

safeguards in the provision of financial support to individuals. Instead it states that,

in making decisions about the form financial assistance should take, the Minister

might have regard to “… the nature of the support to be obtained and any risks

15

Schedule A, Bilateral Agreement for NDIS Launch between the Commonwealth and NSW, 2012, Canberra, p.4 16

ARDT Consultants & ADHC, 2013, Future directions for diagnosis support, Sydney, p.6 17

Ageing Disability and Home Care, Strengthening Supports for children and families 0 – 8 years strategy. Information sheet, Sydney, 2013 18

ADHC, Disability Inclusion Bill 2014 – Consultation Draft, Sydney, 2013, p.20

19

involved in providing assistance directly to the individual”. The Bill (perhaps

inadvertently) lends itself to denying a certain avenue of choice, control and

safeguarding to people with disability due to the nature of their disability and/or the

availability of a nominee or preferred plan managing organisation.

In essence, the Bill seems to accept that, while poor services may exist, only for

those for whom individualised funding is deemed suitable will have the safeguard

of the option to change providers. NDS suggests that further consideration be

given to where individually managed funding is not viewed as an option, as this

group may arguably include the most vulnerable people with disability.

Safeguarding through the Community Services (Complaints, Reviews and

Monitoring) Act

As identified in the NDS submission to the initial review of the Disability Services

Act, the Community Services (Complaints, Reviews and Monitoring) Act 1993

fulfils several crucial safeguarding functions in the administration and delivery of

funded supports to people with disability19. These include overseeing the

processes involved in complaints handling in community services, as well as

mechanisms for independent review and monitoring of the welfare of vulnerable

people via the Community Visitors Scheme. NDS is pleased that both of these

safeguarding functions are maintained in the new legislative environment.

In its present form, Part 5 of the Bill will be repealed in full as of 2018, regardless

of the existence of a national framework. The mechanism of Part 5, Division 5,

Section 33 in referring to the Community Services (Complaints, Reviews and

Monitoring) Act 1993 must continue to exist until the intended national framework

for complaints and monitoring under the NDIS is implemented. This continuity will

be crucial to ensuring there are no inadvertent gaps in enforcing the rights of

people with disability to live free from abuse and neglect.

Recommendation 21

That as a precautionary measure, provision is made for the Community Services

(Complaints, Reviews and Monitoring) Act 1993 to continue to apply to disability

service delivery as a legacy feature of the Act until a national process is fully

implemented.

Civil liberties and decisions around individualised funding

NDS acknowledges that there are reasons that a person in the target group might

not be able to have their funds individualised between the commencement of this

Bill and the full implementation of the NDIS. Indeed, in deciding how to provide

19

National Disability Services, NDS Submission: NSW Disability Services Act Review, Sydney, 2013, p.10

20

financial assistance to an individual, their nominated person, organisation or a

combination of these may include individual circumstances but also the contexts

and circumstances of service provision. This is not made clear in the Bill.

By omission from the listed reviewable decisions at Part 5, Division 5 of the Bill,

rejection of a person’s request for individualised funding over a block funded place

cannot be reviewed. NDS supports this position as an avenue for Government to

provide organisations, until the full implementation of the NDIS, with block funding

arrangements where it is necessary for their sustainability, and where the failure of

providers would have a negative impact on people who are in the target group and

who use the services concerned.

However, the current wording under Part 5, Division 2, Section 24.8(b) ‘Provision

of financial assistance’, exposes the Bill to a perception of paternalism and

intrusion into the civil liberties of individuals who are in the target group. Put

simply, it cannot be perceived that Government is impinging on an individual’s

rights and freedoms by making judgments about whether they are or are not

financially ‘trustworthy’.

Civil liberties are not threatened where a regulatory body makes decisions that are

for the greater good of the community, and that this is the intention should be

articulated.

Recommendation 22

That Part 5, Division 2, Section 24.8(b) be reworded to read “…the nature of the

supports to be obtained and the assessment of risks to the individual and their

community which might arise in providing financial assistance directly to the

individual.”

Human rights and agreements about financial assistance

It is important to keep the rights of people in the target group as the primary

consideration in the provision of financial assistance. In any agreement entered

into with a non-government organisation, it is vital that the rights of the persons in

the target group are considered first and upheld. This should be reflected in the

order of specifications required by agreements made by the Director General,

particularly with organisations, about the provision of financial assistance.

Recommendation 23

That at Part 5, division 2, 28.2(b), statement (v) be inserted as statement (i) to

reflect the importance of the human rights approach to this Bill.

21

Probity checks

People with disability continue to be at greater risk of neglect and abuse than

people without disability. At the same time, the NDIS foreshadows significant

changes for the disability workforce. Projections indicate that the demand for

disability support workers is likely to double, at a time of similarly increasing

demand for workers in the aged-care sector. This will see an intensifying of the

competition for skilled staff. Where workforce demand is high, organisations will be

under pressure in their recruitment processes, including those related to

background checks.

Simultaneously, workers will need to develop the skills required to support the

move to individualised planning, funding and supports. The ‘Ready Together’

framework and the NDIS will see increased delivery of services to people in

environments that are hard to regulate, such as people’s own homes and

community settings. Most individuals involved in supporting people with disability

are respectful, responsible and do the right thing. However such environments

may offer increased opportunity for abuse and exploitation of vulnerable

individuals. These changes reinforce the need to build safeguards into the system

at all levels to minimise risks. As such, this opportunity to improve responses to

abuse, as well as methods to reduce the risk of abuse occurring in the first place,

is important.

At present, there is no single national framework setting out the requirements for

obtaining Working With Children Checks (WWCC) or criminal history checks. Each

State and Territory has its own procedures, and there are significant differences

between them. In contrast to NSW, the ACT and Victoria carry out ‘working with

vulnerable people’ background checks. In the ACT, the working with vulnerable

people background check is presently being phased into law20. NDS members

have identified that a similar background screening process would be well

received by NSW disability service providers. Furthermore, several members have

expressed concern and frustration that the existing WWCC in NSW cannot be

used to bar offenders from working with vulnerable adults.

In NSW, the Disability Standards in Action state that the recruitment practices of

service providers must meet all probity requirements and make sure the ‘right’

workforce is recruited21. In the Bill, the probity requirements are that the

organisation must be satisfied that a new employee is a “suitable person” to be

involved in the provision of supports and services to persons in the target group

(Part 5, Division 3, Section 30.2). A criminal record check must also be obtained

(Part 5, Division 3, Section 30.3).

20

Australian Capital Territory, Working with Vulnerable People (Background Checking) Act 2013 21

Family and Community Services, Department of Ageing Disability and Home Care, 1998, NSW Disability Standards in Action, Standard 6, p.11

22

Any approach to probity checking for workers in the disability services sector

would benefit from being consistent throughout the country and the sooner such a

framework is introduced, the better. In the absence of a national framework and a

background checking process for working with vulnerable people in NSW, probity

checking for workers should remain compulsory in NSW during and following the

roll out of the NDIS. Recommendations for further safeguarding through screening

are provided in the ‘implementation’ section of this submission.

Recommendation 24

That, as a precautionary measure, reference to probity check requirements for

employees of disability support services remain as a legacy feature of the Bill until

a national process is established.

Suspending and terminating financial assistance

The draft Bill states at Part 5, Division 4, Section 31 that the Director General may

suspend assistance to individuals in the target group on grounds including where

the Director General ‘reasonably believes’ the person in the target group (or a

person on behalf of the person in the target group) is (i) no longer using the

supports and services or (ii) is obtaining the supports and services other than by

way of financial assistance. Similarly, at Part 5, Division 4, Section 32, termination

of financial assistance rests with the Director General’s reasonable belief of non-

compliance.

It is understood that this division of the draft Bill is intended at least in part to

provide for a person who is in the target group transitioning to the NDIS. As an

NDIS participant, an individual will no longer require funded disability support

through NSW. That facilitating this transition is the intention of this Part of the Bill

should be articulated. Without doing so clearly, Part 5, particularly around

suspending and terminating financial assistance, fails to be consistent with the

rights based objects of the Bill.

Recommendation 25

That at Part 5, Division 1, Section 22 Purpose of the Part should read:

“(1) The purpose of this part is to facilitate the provision of supports and services

to persons in the target group and to facilitate the transition of financial assistance

to persons in the target group from the Department in which this Act is

administered to the National Disability Insurance Scheme.

(2) The purpose is to be achieved by the provision of financial assistance directly

to individuals, or to eligible organisations (including the part of the Department in

which this Act is administered), for the purpose of providing supports and services.

(3) The financial assistance is to be provided during the transition to the National

Disability Insurance Scheme.”

23

NDS members have identified potential unintended consequences of the wording

of this division, the implications of which are significant and contrary to the stated

objects and principles of the Bill.

The example given in the draft Bill of a situation in which suspension of supports

and services may occur is during the hospitalisation of a person in the target

group. The public hospital system and its capacity to support people with disability

poses challenges and barriers to many, as identified in Case Example 2 on page

2. When in hospital, people with disability may require a level of support which is

equal to or of higher intensity than their everyday requirements. There is no

consistent practice across the state in determining how resources should be

supplied to support a person with disability in hospital appropriately. The NDS

paper referenced in Case Example 2 will describe numerous cases where required

supports and services have not been available and the consequences have been

significant for individuals, hospitals and disability service providers.

That the Director General must simply ‘reasonably believe’ that a person in the

target group is no longer using supports and services provides scope for financial

assistance to be suspended on grounds which are based in policy rhetoric and do

not reflect reality for people in the target group. NDS members expressed disbelief

that the example of hospitalisation had been used to describe the reasonable

suspension of financial assistance. Many service providers battle with this very

scenario on a daily basis. Many people with disability remain in hospital, are

neglected, are denied rehabilitation (physical and drug/alcohol related

rehabilitation examples were provided) based on inappropriate eligibility

assessments and a lack of capacity of rehabilitation staff. People with disability are

often discharged inappropriately because the health system is unable to

adequately support their needs.

To use the current example in the context of financial arrangements, until a

strategy for appropriate funds and supports is made available for people with

disability while they are hospitalised, the provision of financial support provided

under the Bill must be assessed according to each unique situation.

Recommendation 26

That the example of hospitalisation be removed from the Bill as it does not reflect

the reality of experiences of hospitalisation for people with disability accessing

funded disability services.

NDS members gave further examples of problematic consequences of the

proposed suspensions of financial assistance. Persons in the target group who are

in custody or incarcerated will, more likely than not, require extra support. If an

individual is incarcerated or hospitalised for a period of time from a group

24

supported accommodation environment, that accommodation will require ongoing

use of capital to continue to function.

The same may be assumed for service involvement for children and young people

who are in the Care of the Minister, and voluntary or involuntary users of mental

health services, for example.

NDS takes the position that “to obtain the supports and services other than by way

of the financial assistance” (Division 4, Section 3.11(a)ii) may allow services to be

suspended for people with disability who have active, supportive and involved

carers, family members and/or friends. In any effort to create an inclusive

community, carers, family and friends must also have their rights to participate fully

through employment and other pursuits respected. For these reasons too, use of

financial supports by people in the target group should not be generalised and

must be considered ‘case by case’.

It is a simplistic notion that financial assistance may be suspended and reinstated

for either an organisation or an individual without administrative consequences

and a ripple effect for many beyond the individual concerned. Members provided

NDS with several scenarios in which suspending financial assistance to an

individual or organisation, for the reasons outlined in the Bill would have serious

and negative consequences.

Case example 3:

An organisation provides support to Angela*. Angela has high and complex

medical and support needs. Staff have been recruited and trained specifically to

support Angela. For certain tasks, more than one support worker is required.

Angela lives in a group home.

When Angela experiences a health complication, she requires support from her

trained support workers in hospital. Angela’s group home still requires adequate

staffing to support the other residents. If, as the draft Bill allows, Angela’s financial

assistance is suspended while she is in hospital, not only does she not receive the

support she is entitled to during a period in one’s life where support is incredibly

important, but her group home also potentially loses a staff member who supports

other residents too.

For Angela’s support workers, their income becomes uncertain. The implication is

that they are without equivalent employment until her financial assistance is

reinstated. There is no indication about how long the administrative task of

suspending and reinstating financial assistance might take. Certainly, the burden

of doing so outweighs any savings suspending the service might make.

Angela’s specialist support workers, who have had their shifts rostered for over a

month, find their regular income suspended, and there are consequential

difficulties in their lives. There are further IR implications for Angela’s organisation.

25

Angela’s organisation and the other residents who share her home have been

adversely effected. Angela’s right to choice, control and participation in decisions

that affect her life have all been denied.

*Not her real name.

The expectation and assumption that the necessary support would be simply

picked up elsewhere is dangerous. It would be unfortunate for this provision in the

Bill to result in buck-passing between sectors or from ADHC to families and/or

carers.

As such, it is far more suitable to state that the Director General may suspend

assistance only where “the person in the target group no longer has use for the

supports and services” or “the supports and services are no longer necessary”.

Recommendation 27

That in Part 5,Division 4, Section 31.1(a) and Division 4, 32.1(a) be amended to

read “the Director General reasonably believes based on evidence” or “the

Director General can show that…” and Part 5, Division 4, Section 31.a(a)ii state

that “the person in the target group no longer has use for the supports and

services” or “the supports and services are no longer necessary”.

Financial assistance to promote the objects of the Bill

Peak bodies have an important role in promoting all of the stated objects of the

Bill. As such, it is appropriate that the Bill allows for financial assistance to be

provided to peak bodies for this purpose.

Recommendation 28

That at Part 5, Division 6.34(1) “… provide financial assistance to a government

department, local council or any other entities…” be amended to read “… provide

financial assistance to a government department, local council, peak body or any

other entities…”

Conclusion regarding Part five – financial arrangements

The draft Bill has brought attention to current and real concerns that service

providers hold regarding the interface of disability support with other Departments.

The concerns this submission outlines strengthen the argument for stronger

Disability Action Plans.

In articulating financial arrangements, the Bill fails to espouse the objects and

principles laid out in its introduction. The provisions in this part, particularly those

identified above, are not rights based and do not promote independence or

26

economic inclusion. Nor do they enable people with disability to exercise choice

and control. The language of the Bill is negative and excluding.

Recommendation 29

That Part 5 be reframed with a rights based approach to remedy its negative

language. For example, Division 4, Section 31.1 be replaced with:

1) The financial assistance under this Part, being provided to an eligible

organisation shall continue unless, by notice served on the person or eligible

organisation, financial assistance should be suspended because:

(a) the Director-General can show that the supports and services are no

longer necessary for the person in the target group.

Part Six - Restrictive Interventions

Feedback provided to NDS upon the initial round of consultation for the review of

the Disability Services Act suggested that members felt there is currently adequate

regulation and policy around restrictive practices in NSW. Members emphasised

that, given the gravity of the subject matter, reforms around the current system

cannot be rushed without significant work being done in consultation with

appropriate stakeholders.

NDS acknowledges that the intention of regulating restrictive practices is to

demonstrate the importance of careful thinking and reduction of the use of

practices which restrict, remove or impinge upon the human rights of individuals

with disability. This move also realises the need for care to be taken in engaging

certain behaviour support styles with all people with disability. However,

consultation showed that there remains significant apathy and concern at

legislating restrictive interventions as proposed in the Bill.

That the use of restrictive practices has been situated in a piece of legislation

which is aimed at addressing inclusion was regarded by members as ill-fitting,

perplexing and contradictory. In the manner Part 6 is presented, the objects,

principles and rhetoric of the Bill were felt to be lost. In the realms of restrictive

practices it is incredibly important that the approach taken is enabling, sensitive

and considerate of our person centred environment. Members were concerned by

the tone of the restrictive practices section of the Bill. For example, at Part 6,

Division 2, Section 1 (a) the Bill describes “strategies to help in dealing with the

person’s behaviour…” NDS refers to the Ageing and Disability Department

document published in 1997 regarding positive behaviour support for an example

of more positive and rights based language. For example, describing a positive

approach to an individual service plan as a plan designed in a collaborative way by

27

staff, the person with disability, families, advocates and/or guardians22. Such

nuance is lost in the Bill.

Restrictive practices as described in the Bill are characterised by exclusion,

segregation and necessary exceptions to upholding the human rights of people

with disability. In its current form, not enough has been done to shift the underlying

understandings of the purpose of restrictive practices and no emphasis has been

placed on the human rights of people with disability to whom this Part applies.

Restrictive practices are by their very nature highly invasive and excluding. They

apply to a small proportion of the disability population.

Recommendation 30

That the use of restrictive practices by disability service providers remain regulated

as it presently is, in government policy and procedure.

Existing regulation should be amended to include all people with disability.

Consideration should be given to how better to resource restrictive practice

procedures and how Government departments, local councils and private service

providers may understand and implement appropriate behaviour support.

Members were particularly disappointed that the Bill has been drafted with little or

no regard to the major concerns that were identified in the previous NDS

submission. These are identified in the following paragraphs.

Considerations for presence of restrictive practices in the

Disability Inclusion Bill:

NDS believes that, despite our position stated above, it is unlikely that restrictive

practices will be removed from the Bill. As such, this section of the submission will

outline the most important considerations that must be applied to any references

to restrictive practices that remain in the final version of the Bill.

The role of other environments in an inclusive community

From an historical perspective, disability legislation has only ever been concerned

with formal service provision by disability specific organisations. The overarching

goal of the Bill, on the other hand, is to recognise human rights and inclusion

outside disability services and throughout the whole community.

This Bill is intended to have impact beyond disability services by applying to all

government services and departments; an approach which reflects the reality of

22

NSW Ageing and Disability Department, 1997, The Positive Approach to Challenging Behaviour, policy and guidelines, Sydney, p.22

28

any individual’s interaction with their community. Yet, in its current form the Bill

would not subject any other government departments or funded services to the

same standards and rigour in how they support people with disability.

In order for any department, funded service or local council to be inclusive it, too,

must demonstrate the importance of reducing and thinking carefully about the use

of practices which restrict or remove the human rights of individuals with disability.

Therefore, further consideration needs to be directed outside the specialist

disability sector where restrictive practices may also be employed to support

people with disability. The Department of Justice, Health and Education and

Communities are primary examples, but all departments must be equally

responsible.

If the Bill is enacted in its current form, NDS predicts that inequity in standards and

practice will emerge that will undermine the achievement of a reduction in

restrictive practices across the community. There is dubious purpose in

introducing penalties for restrictive practices if behaving in a prohibited way only

applies in one of many settings.

There is merit in creating universal restrictive practice policies and procedures that

sit underneath any potential legislation and can be adhered to within all relevant

settings. Alternatively, DAPs should include responses to restrictive interventions

legislation. Educating the community and coordinating positive behaviour support

planning across settings would be integral to such an approach.

The inclusion of restrictive practices in the Bill has raised further questions of

consistency amongst NDS members. Namely, should restrictive practice

regulations apply in the family home? ADHC and other departments providing tier

two and three services are meant to provide support for all people with disability

who require it. Yet, this Bill will exist in context of a rationed system. There is no

guarantee at all that families will get the support they need to engage in a positive

approach to challenging behaviour. Similar to the failure to include other

departments and services in restrictive practice regulations, here lies an ethical

gap.

If these regulations do not apply in the family home, nor in settings outside of

specialist disability service provision, given that the premise of the Bill is about all

people with disability in all environments of the community experiencing access to

their rights and inclusion, the rationale for these gaps should be addressed.

Recommendation 31

That in all relevant divisions in the Bill regarding the use of restrictive practices and

positive behaviour support planning, “disability service provider” is replaced by

“service provider”.

That it is considered how these divisions might also apply to the NSW community.

29

Recommendation 32

That in the definitions at Part 1, Division 3 of the Bill, “service provider” be given a

definition which is inclusive of all environments to which the Bill aims to apply.

Children with disability and restrictive practices

One of the guiding principles of the Bill is that the special needs of children with

disability are respected. NDS acknowledges that the use of seclusion with a

person less than 18 years of age is prohibited in the Bill, but members argue that

this does not go far enough. Children with disability have different vulnerabilities,

exposure to different service settings and different clinical needs. There are also

added complexities in the role of the family and their right to parent their child with

disability in the manner of their choosing (within the boundaries of the law).

Lending emphasis to the discussion above regarding the role of other

environments, children with disability take part in early intervention settings, attend

therapies and go to pre-school, school, camps and after school care. The NSW

Government has identified that services for children are most beneficial when

provided in integrated environments along with a range of specialist supports and

early intervention services23. The Bill does not address how the rights and support

needs of children and young people will be met across this range of mainstream

settings.

The varied service settings in which children and young people with disability find

themselves demonstrate the necessity for an approach to restrictive practices that

acknowledges their different needs. The restrictive practices consent process

should vary from that of adults.

Recommendation 32

That further consultation take place regarding the appropriate processes for the

approval of restrictive practices for children and young people in varied service

settings.

Use of any restrictive practice in a positive behaviour support plan

The Bill fails to communicate that restrictive practices should never be the primary

or only approach to behaviour support. Proactive support and the continuous

development of positive behaviour support plans must be given emphasis.

23

NSW Government, 2013, Ability Links NSW Specifications and Guidelines, Sydney, p.7

30

Recommendation 34

That at Part 6, Division 3, Section 43 a provision be added at (a) stating “uses

positive behaviour support strategies as the primary approach.”

Defining chemical restraint

The distinction that the use of chemical substances for the purpose of influencing

a person’s behaviour and/or movement is a restricted practice unless it enables

the treatment of a diagnosed mental disorder, physical illness or physical

condition, as described in Section 38, is too vague. Its implication is that the use of

psychotropic medication is not considered a restrictive practice in the case of its

prescription in relation to a diagnosed condition.

As the definition stands, the prescription of any psychotropic medication, for

routine or episodic use, might never be subject to the rigour of another restrictive

practice where there is a formal diagnosis giving rise to this prescription. Members

report that clarity and guidance is crucial in this area. This was particularly the

case for regional and remote NSW where prescribing doctors may have less

experience working with people with disability in a person centred way due to

various regional health workforce drivers.

Members expressed that the use of psychotropic medication on a PRN or episodic

basis, as described in the current ADHC policy manual on behaviour support24

gives suitable and adequate guidance on what use of medication should be

considered as a restrictive practice. In the least, NDS members felt that the

definition in the Bill needed to be aligned with current policy.

Recommendation 35

That at Part 6, Division 1, Section 38 the definition of chemical restraint in the

context of restrictive practices is reconsidered in light of the existing ADHC policy.

In the least, a clause removing ambiguity regarding where the use of psychotropic

medication is and is not considered a restrictive practice in the case of existing

diagnosed mental disorder, physical illness or conditions.

Restricted practice authorisation panels

NDS acknowledges the importance of having no less than three participants sitting

on a restrictive practices panel. To limit restrictive practice panels to no more three

panellists, however, is prescriptive. Panel procedures need to be holistic and

flexible. Best practice should be captured in good practice guidelines.

24

Ageing, Disability and Home Care, 2009, Behaviour Support: Policy and Practice Manual, Part 1 (A) Behaviour Support Policy, p.25

31

Recommendation 36

Part 6, Division 2, Section 42.4 be amended to read “A Restricted Practice

Authorisation Panel consists of no less than 3 persons appointed by the Director-

General or disability service provider…”

Involvement of people with disability and those who are important to them in

the development and review of plans

Any restrictive practice must be part of a supportive plan and subject to

consultation and discussion with the person for whom the plan is being prepared

as well as their family and/or carers and significant people in their life.

Consultation with the person with whom the plan is being prepared and others

involved, including appointed Guardians, is probably the most important element

of this process.

Recommendation 37

That Part 6, Division 3, Section 43.3 be amended to read

“In developing a behaviour support plan, the service provider must consult with:

(a) the person in the target group with whom the plan has been prepared,

(b) if a person other than the person with whom the plan has been prepared must

give a consent to the use and form of seclusion or restraint – that person,

(c) the family and/or carer/s of the person with whom the plan has been developed

and

(d) other persons specified as appropriate persons with whom a service provider

must consult in reviewing a plan.

Recommendation 38

That at Part 6, Division 3, Section 43, Point (5) be moved to position (1) under

Section 44.

Recommendation 39

That at Part 6, Division 3, Section 44.4 “A person for whom a behaviour support

plan has been prepared [add - , a person they have nominated or the person’s

guardian] may at any time ask the disability service provider to review the plan.”

Recommendation 40

To align with the above recommendation regarding Section 43, that Part 6,

Division 3, Section 44.5 be amended to read:

32

“In reviewing a behaviour support plan, the service provider must consult with:

(a) the person in the target group with whom the plan has been prepared,

(b) if a person other than the person with whom the plan has been prepared must

give a consent to the use and form of seclusion or restraint – that person,

(c) the family and/or carer/s of the person with whom the plan has been developed

and

(d) other persons specified as appropriate persons with whom a service provider

must consult in reviewing a plan.”

Use of restraint on person under 18 years of age

The general principles of this Bill identify that people with disability have the right

to participate in decisions which affect their lives, including those involving risk. So,

too, do the principles identify that children with disability have the right to respect

as equal members of the community. Part 6, Division 3, Section 46 is incongruous

with these principles.

To be involved in obtaining consent for the use of restraint on a person who is

under eighteen years of age, a child or young person must be, according to the

Bill, over sixteen, not in need of a legally appointed guardian and not subject to

any parental responsibility orders. By omission, there is no requirement that a

person under the age of eighteen must be consulted or even participate in

decisions about the use of restrictive interventions. Division 3, Section 46 is a

good example of where the language and content of this Bill may be strengthened

to be more consistent with its purpose of inclusion and acknowledgment of rights.

In keeping with the principles of the Bill, and to ensure that all children and young

people participate in decisions which affect their lives, a provision similar to that

contained in the Children and Young Person’s (Care and Protection) Act 1998,

Section 10 should be added. Such provisions don’t mean the young person who is

a person in the target group necessarily gets the outcome that they want, but

means they have a voice in the process.

Recommendation 41

That a provision is added in Part 6 of the Bill stating:

“To ensure a child or young person is able to participate in decisions regarding

restrictive practices under this Act, the young person must be provided with

(a) adequate information, in a manner and language that he or she can

understand, concerning decisions to be made,

(b) the opportunity and support to express his or her views according to his or her

abilities,

(c) information about how his or her views may be taken into account and (d)an

opportunity to respond to the decision made under this Act.”

33

Schedule Four - Amendment of the Ombudsman

Act

The empowerment of the NSW Ombudsman as an impartial and independent

watchdog in monitoring incidents of abuse and neglect demonstrates consistency

with the Bill’s principle that “people with disability have the right to live free from

neglect, abuse and exploitation” (Part 1, Division 2, Section 4.7).

NDS welcomes the clear definition for a ‘reportable incident’ provided in the Bill. In

its current form, the Bill’s introduction means that NSW joins Western Australia as

the other only jurisdiction in Australia providing a pathway between the

management of reportable incidents and an independent state body.

Overall, NDS members considered the changes to the Ombudsman Act to be a

positive initiative. The introduction of mandatory reporting of certain issues

represents a much needed change in approach. Feedback focused on the need

for a clear avenue for service providers, particularly those based in regional or

remote areas (in some cases as a sole provider), to pursue reportable incidents.

NDS members welcomed the investigative powers granted to the Ombudsman in

the Bill. The decision not to limit who is able to file a complaint leading to the

investigation of a reportable incident was also endorsed by NDS members. This

represents best practice in complaints handling and provides a contrast to other

Australian jurisdictions which all place limitations on the way complaints may be

received.

In order to ensure that maximum protection can be achieved within the framework

provided, NDS has prepared a range of recommendations to strengthen this

section of the Bill.

Reportable incidents and supported accommodation

There is a need to ensure that the definition of ‘supported accommodation’ (Part 4,

Section 19.1) is amended to ensure that the Ombudsman’s investigative powers

are not unduly limited. As addressed, this definition covers only a portion of the

supported living arrangements available to people with disability.

NDS members are concerned that the proposed protections may not extend to

people with disability who are most vulnerable. For instance, an individual with

disability who is not engaged with formal accommodation or centre based support

may be at higher risk than people with disability who receive comprehensive

residential care. Limited service engagement by a person with disability can

significantly reduce the opportunity for instances of abuse or neglect to come to

light. This is particularly applicable to individuals with disability who are isolated

from their community. Members are hopeful that the forthcoming national

34

framework addresses this issue and that Recommendation 22 of this submission

is accepted.

Notification period

NDS is concerned that the period in which a Director-General or principal officer of

a service provider “must give the Ombudsman notice of a reportable allegation or

reportable conviction of which… [they] become aware” is mistaken. In its current

form, the Bill has this period listed “as soon as practicable, but not less than 30

days, after the Director-General or principal officer becomes aware of the

reportable allegation or reportable conviction” (Schedule 7, Section 4B, 25 3(a)).

This section also allows for a later date to be negotiated with the Ombudsman.

NDS members felt that this time period, in effect over a month in every case, is

unacceptable.

The time-line provided in the Bill does not reflect the same degree of urgency in

mandatory reporting when compared with other Australian jurisdictions. For

instance, under Victorian guidelines, service providers are required to report on

incidents within one to two days, in Western Australia the timeline is seven days25.

NDS believes that the seriousness of abuse and neglect should be reflected in the

reporting timeframes and brought into line with other jurisdictions.

Recommendation 42

That the clause at Schedule 7, Section 4B, 25N 3(a) be amended to read: “as

soon as practicable, but not more than 2 days, after the Director-General or

principal officer becomes aware of the reportable allegation or reportable

conviction.”

Transition to the NDIS

As expressed in discussion of financial arrangements in this submission, NDS is

keen to ensure that mechanisms for reporting abuse and neglect continue to exist

until safeguards under a national framework are implemented. This will ensure that

the rights of people with disability are maintained while the sector transitions to the

NDIS and a new approach to service delivery and safeguards is fine-tuned.

Recommendation 43

That it is clarified whether the Schedules of the Bill are transitional or legacy, and

that the amendments to the Ombudsman Act are maintained until equivalent

guarantees and safeguards are enacted under a national framework.

25

Critical Client Incident Management Instruction; Western Australia: Disability Services Commission (2013)

35

Recommendations for the Bill from the Ombudsman

NDS understands that the submission forthcoming from the NSW Ombudsman’s

office will contain the following recommendations:

that the casual workforce operate under the new powers recommended for

the Ombudsman,

that reportable incidents feed into probity checking systems in the style of a

working with vulnerable people check, and

that ‘serious unexplained injuries’ is added to the meaning of ‘reportable

incident’ at Schedule 4, Part 3B, Section 25L.

NDS supports these recommendations and refers to the Ombudsman’s

submission for more detail.

36

Implementation

This submission has thus far concentrated on recommending changes which will

strengthen the Bill. To support these amendments and the achievement of positive

outcomes, the following recommendations relate to the implementation of the

Disability Inclusion Bill once it is enacted.

Disability Planning

In implementing DAPs which are successful in breaking down barriers to inclusion,

dedicated resources for each local council and government department will be

necessary.

Recommendation 44

That the regulations outline how resourcing will provide for the effective

implementation of disability action planning.

Beyond background screening

Part 5, Division 3, Section 30.6 states that the regulations may make provisions

relating to “…the use of a statutory declaration to verify a person’s criminal record

when a criminal record check cannot be conducted or obtained...” NDS

acknowledges that for some employees criminal record checks are not possible or

effective. For example, a new employee may have recently moved to NSW from

overseas.

A statutory declaration on its own does not verify a person’s criminal record or

‘suitability’. In the regulations, those cases where the use of statutory declarations

under the new Bill are to be applied should be clearly defined.

Recommendation 45

That the regulations clearly define the conditions under which statutory

declarations suffice as probity checks in place of criminal record checks and/or

Working With Children Checks. Measures to ensure a check is carried out as

soon as possible should be articulated.

Screening alone does not suffice and needs to be coupled with policy and practice

development for safe environments, and robust accountability frameworks for

responding to allegations. Outside of criminal record checks and the WWCC, it will

be important that employees are recruited, selected and appointed through

transparent, accountable and robust processes. Practice guidance and support

materials should be maintained in order to make the concept of a ‘suitable person’

for service providers practical and achievable. An example of such practice

guidance is NDS’s “Zero Tolerance: preventing and responding to abuse and

37

neglect of people with disability accessing services” project, which commenced in

July 2013.

The Zero Tolerance project is developing a practical framework, with resources for

service providers, based on prevention, early intervention and remediation of

cases of abuse and neglect involving people with disability within service settings.

The project seeks to increase service providers’ understanding of best practice in

a range of settings through which to recognise, prevent and respond to abuse and

neglect of people with disability.

It is anticipated that this project will contribute to the development of national

approaches to safeguards within the disability sector that better protect the rights

of children, young people and adults with disability, as well as their families and

carers.

Recommendation 46

That regulations are maintained which identify good practice guidelines for

prevention, timely intervention and remediation of abuse and neglect, such as

deliverables from the NDS Zero Tolerance project as well as others.

The suspension of financial assistance

To circumvent potential negative impacts on people with disability and the

specialist services support them that might result from the suspension of financial

assistance, further clarity is required on the implementation of this section of the

Bill.

Recommendation 47

The regulations must outline a substantial minimum timeframe that must lapse

before a suspension of financial assistance can be applied.

Termination of financial assistance

It is proposed at Part 5, Division 4, Section 32.1 that where the Director General

reasonably believes non-compliance has occurred financial assistance may be

terminated.

As identified, there are likely to be individuals receiving funded supports via ADHC

who will not be eligible for the NDIS. When ADHC completes its withdrawal from

service provision these individuals will turn to the departments of Community

Services, Housing, Justice, Health and Education and others to support them.

Terminating support from a person who is in the target group is an important

decision. Such a decision must be taken with robustness of thought and care in

38

order to uphold the principle of continuity of support to which NSW has

committed26.

Any individual who is not eligible for the NDIS must be satisfied that they are

receiving adequate support outside of ADHC and in the community before

supports and services may be terminated. The regulations must prescribe how

NSW will ensure this continuity of support.

Recommendation 48

That the regulations articulate how NSW will provide continuity of support to

people with disability who are receiving funded support through ADHC but will not

be participants of the NDIS.

The resourcing implications of regulated restrictive interventions

To influence positive change in the community, there must be full acknowledgment

of the resource allocation that compliance with such regulation involves.

Referral pathways and processes need to be properly established. There are

significant costs associated with positive behaviour support planning. Specialists

must be sourced and funded to sit on restrictive practice authorisation panels. As

flagged in NDS’s initial submission, attempting to reduce the use of restrictive

practices risks a ‘bottle neck’ of applications waiting for assessment, delays and

negative consequences for people with disability. This is particularly relevant for

the rural and remote application of the Bill. How behaviour support is to be

managed in the interim period between planning and approval is not addressed.

Recommendation 49

That regulations and practice guidance articulate resourcing, referral pathways

and processes for implementation of Part 6.

Data collection on the efficacy of regulated restrictive interventions

The purpose of this section of the Bill is to reduce the use of restrictive practices.

In consultation, members sought detail around the type of scrutiny that would

follow regulation. NDS suggests that in order to ensure over time that the legal

regulation of restrictive interventions is having the desired effect, it is important to

establish baseline data on current levels of restrictive practices. Indeed, the

UNCRPD at Article 31 states that state parties are required to collect appropriate

information, including statistical information, which will enable the formulation and

implementation of policies which give effect to the Convention. 26

Intergovernmental Agreement on the NDIS Launch, Schedule A: Bilateral Agreement for NDIS Launch between the Commonwealth and New South Wales, Part 3, 10, 2012, p.2 and on http://www.ndis.gov.au/participants/continuity-support

39

Recommendation 50

That the NSW Government establish baseline data and a data collection and

monitoring strategy that will allow analysis and improvement of this law over time.

Implementing restraint or seclusion in an emergency

It is important in making an exception to the rules regarding restrictive

interventions, that care and exacting language is used. The very presence of

restrictive interventions in the Bill, by the explanation provided in the Information

Booklet, speaks to the seriousness with which the NSW Government regards their

use.

With this in mind, NDS is concerned that without further clarification Part 6,

Division 3 Section 49(b) leaves far too much room for interpretation of the phrase

“serious physical harm” in employing restraint or seclusion in an emergency.

Recommendation 51

That training is made available for workers involved in positive behaviour support

providing skills in judgement calls on emergency use of restrictive interventions.

Implementation of prescribed criminal offences requirements

Grey areas exist where criminal offences aren’t prescribed however do effect

suitability for employment.

For example, the Bill does not recognise financial crimes such as fraud as a

prescribed criminal offense. Given the vulnerability of some people with disability,

such an inclusion should be considered, or guidance material made available.

Similarly, if a role involves a significant amount of driving, service providers must

consider the relevance of repeated dangerous or negligent driving offences which

do not reach the threshold of being proscribed.

Recommendation 52

That practice guidance is published giving detail to the appropriate implementation

of this schedule.

Implementation of safeguards additional to the amendments to the

Ombudsman Act

Guidelines should provide advice around measures to implement or enhance

broader safeguards than those introduced in the Bill. This could include reference

to the NDS Zero Tolerance project, information around the Community Visitors

Scheme and client-led evaluations.

40

The existing Community Visitors Scheme has been identified as an effective

mechanism for the independent review and monitoring of vulnerable people. As

discussed in our submission to the initial review of the Disability Services Act, NDS

members have provided consistent feedback that the scheme is an important

feature of the overall service delivery environment, citing its independence as key

to upholding the rights of people with disability.

NDS suggests that the guidelines address the use of client-based reviews of

disability services. It is the firm view of NDS that, in a person centred world,

complaints handling should occur amongst those closest to service delivery. Such

an arrangement should be a natural consequence of truly personalised services

and supports.

This approach could take the form of client-to-client evaluation. An example of this

approach, ‘The Q-Kit’ has been rolled-out in the United Kingdom through an

initiative led by Southdown Housing. The program provides a forum for specially

trained service users to talk with their peers as a means of feeding back quality

around service delivery and quality concerns27. This form of safeguard provides a

sensitive model for identifying environments in which reportable incidents may

occur and complements a person centered approach.

Recommendation 53

That guidelines are maintained which detail resources for the implementation of

additional safeguarding procedures.

Implementation of the Disability Inclusion Bill through education and

awareness

Extensive education in government departments, local councils and the wider

community about the Disability Inclusion Act and its objects and principles will be

necessary following its enactment.

In particular, the Department of Family and Community Services should consider

the provision of training workshops to ensure that bodies are sufficiently equipped

to develop and implement meaningful DAPs.

Recommendation 54

Extensive education and training is implemented with all relevant stakeholders

following enactment of this Bill.

27

Southdown Housing, ‘The Q-Kit’, viewed online at http://www.southdownhousing.org/services/learning-disability-support/the-q-kit/ 13 February 2014.

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Conclusion

The NDIS and its revolution of the disability service sector is critical to improving

the inclusion of people with disability. In NSW, so too is the transfer of

responsibility for supporting people with disability to government departments and

local councils beyond ADHC. To create an environment of inclusion in the NSW

community, these reforms must be guided by considered resourcing and coherent

overall strategies.

While the NSW Government is withdrawing from disability service provision, its

responsibility to ensure the inclusion of people with disability remains unchanged.

Much work is needed, as identified by the examples throughout the submission, to

ensure that people with disability are appropriately supported in the mainstream by

government departments and local councils in the mainstream. NDS members are

not satisfied that this is adequately reflected in the Bill.

NDS members are ardent in their belief that while the conceptual foundation of the

Bill is positive, there are parts which are misplaced and inappropriate and the

language does not communicate in the manner of the Bill’s own objects and

principles. Of particular concern are Parts Five and Six, for which detailed

comments and analysis are provided.

This submission has made recommendations which will strengthen the Bill and

better align it with its philosophical underpinning. It is important that these

recommendations are implemented. The best possible implementation will

contribute to meaningful citizenship for our whole community.

In this context, a ‘top-down’ approach cannot be the whole answer. The translation

of the policy driven goal of inclusion into reality is also about cultural change. This

is a story of ongoing work and a thorough process of conversation, advocacy and

education. Continuing consultation with people with disability, the disability

services sector and peak bodies on the state of inclusion and the efficacy of the

Bill will be essential in achieving positive outcomes.

about national Disability services

National Disability Services is the peak body for non-government disability services. Its purpose is to promote quality service provision and life opportunities for people with disability. NDS’s Australia-wide membership includes more than 900 non-government organisations, which support people with all forms of disability. NDS provides information and networking opportunities to its members and policy advice to State, Territory and Federal governments.

contact inFormation

Scott Holz NSW State Manager National Disability Services 02 9256 3118 scott.holz@nds.org.au

nDs.org.au