7th February 2011
NDS Tasmania Response
Disability Services Bill 2011
Thank you for the opportunity to comment on the Disability Services Bill 2011 (the Bill). National Disability Services Tasmania (NDS Tasmania)and its members are keenly aware of the issues surrounding the current legislation and are deeply committed to seeing the rights of Tasmanians living with disability examined and more aligned with current thinking.
In Tasmania NDS represents over 50 non-government service providers working in the community to offer people living with disabilities a range of accommodation, employment, education and leisure options. We work with clients, carers, families and advocates to gain greater government and community recognition of the rights of Tasmanians living with disability.
NDS acknowledges that many of the issues raised through the initial consultation process have been addressed and note that the draft is a significant improvement on the legislation currently in place. With the majority of attendees at the consultations on 25th and 27th January being NDS members, NDS Tasmania also endorses the recommendations agreed to at these forums.
As the Peak Body representing specialist disability service providers NDS submitsfeedbackthat addresses various aspects of the Bill.
Firstly we wish to comment on the implementation planning and mechanisms in place to enact the Bill. NDS is concerned about the resourcing the potential outcomes of the Bill and wishes to emphasise the need to ensure that appropriate support is provided to implement proposed legislation. NDS understands significant work is also required to develop both the policies and guidelines that will underpin the legislation. Therefore we strongly recommend the involvement of NDS and Tasmanians living with disability in development of this supporting documentation.
NDS members are disappointed to see that in preparing the Bill, DHHS has not responded to the lessons learntin other jurisdictions, particularly Western Australia.
Specifically we refer to the need for an independent Disability Commission to ensure that the full potential of the Bill is realised. We note that the Steering Committee may not have supported broadening the scope of this legislative review to support the creation of a Disability Services Commissioner. However in drafting new legislation it is timely to considermodelsthat exist in other national and international jurisdictions. They provide a focus and independence that is not possible when disability policy is merged into a complex bureaucracy like DHHS, where there are so many competing priorities
NDS recommends an Independent Disability Commission, reporting to the Minister for Human Services toinclude:-
- A Disability Commissioner responsible for monitoring standards and progressing the rights of Tasmanians living with disability
- A main office in Hobart with two regional offices in Launceston and Burnie
- A Strategic Team of Professionals to manage Quality/ Safety and Contracts with NGO Specialist Service Providers and the four Gateways.
- Oversight of Federal /State Relations in implementing National Disability Policy, which complies with the United Nations Convention on the Rights of Persons with Disability
- Complaints Mechanism, Code of Practice, Consumer Rights Charter and Community Visitors Scheme
- Innovation, Research and Good Practice
This concentration of a focus on Disability Policy in just three offices would complement the role of the four Gateway Services that have direct contact with Consumers and Service Providers.
This approach to an independent Disability Commission would replace the current disjointed hierarchy which results in financial wastage, delays and convoluted processes. Both service providers and many consumers find the current departmental model both inefficient and confusing
NDSconsiders that the wording of the Bill is very much about standards rather than about meeting the needs of individuals and their families. A more holistic approach would serve to be more inclusive and may also assist in the drafting of the Bill in more accessible English.
It is essential that the Bill detail standards ensuring that guidelines supplement the legislation to guarantee consistent interpretation and implementation
Specific References:
Part 1 – Preliminary – 3. Objects
There is reference to specific services in 3.a.i however there is no mention of the Bill covering the provision of generic services which people living with disability may choose to access, and more so due to the changes mooted in the legislation. Similarly the Objects should include a statement to recognise the mutual responsibilities of the individual provider and government.
Part 1 – Preliminary – 4. Interpretation
Members of NDS have raised a range of concerns regarding the definition of disability. In general the view is that the definition is very broad and could be interpreted to encompass a wider group than previously. Whilst acknowledging the two new DHHS policies – Eligibility Policy for Access to Specialist Services (DS005) and Eligibility Guidelines for Access to Specialist Services (DS005 (A)) address these concerns, There also needs to be clarification in the Bill so there is no contradiction of interpretation.
An explanation of what significantsupport services means would clear up any ambiguity around interpretation of the word ‘significant’. That is, the level of support an individual receives may vary over time and due to changing circumstances. Support is still support whatever its form and level, and directly relates to eligibility to access services. NDS would like to see clarification of the term substantial restriction as we believe this is also open to interpretation, particularly for example given the complexity around, and hidden nature of, disabilities such as acquired brain injury.
It is the view of NDS that the interpretation of “restrictive intervention” within the Bill either needs to be broadened to include all aversive, restrictive and intrusive practices, or shortened to include none, with restrictive interventions more clearly defined in the guidelines and standards developed by the Senior Practitioner (Part 6 – 31. (a)). NDS considers this is clearly a responsibility for the Senior Practitioner and would also necessitate the ‘transfer’ of the interpretation of ‘chemical restraint’, ‘mechanical restraint’ and ‘seclusion’ from the Bill to the guidelines and standards As previously stated, NDS believes it is imperative that specialist disability service providers and Tasmanians living with disability work in partnership in the development of all policies and guidelines which will underpin the Bill.
Furthermore, the defining of key activities such as intake and assessment needs to be included in the definitions. NDS further recommends that peak body needs to be included under the interpretation of “specialist disability services”.
Part 1 – Preliminary – 5. Principles
Principle 5 must embrace the concept of “nothing about us, without us” and include a statement about self-determination. This section should also give a commitment to early intervention, life planning and transition planning and should demonstrate a much stronger and increased emphasis on children. Furthermore, there should be a statement within the Principles about the role and place of families as a key part of the decision making process, where appropriate.
Part 2 – Planning and Reporting
Division 1, sections 7 and 8 of Part 2 refer to strategic planning and operational planning and allude to the role of mechanisms recently established but do not name these. NDS considers that while the Area Advisory Groups and State-wide Advisory Group may be utilised in achieving the outcomes of the Strategic and Operational plans, their roles and responsibilities should not be prescribed in legislation. There is however a need to ensure that service users are clearly identified as being integral to the development of these plans. NDS understands consensus was reached at the recent consultations that Section 8 Area Operational Plans be replaced with State-wide Operational Plan.
Division 1 section 9 refers to quantitative measures relating to funding as the basis of reporting on the success of the sector. More work on other quantitative measures related to client output and outcome would justify the funding. Similarly a requirement for qualitative measures would demonstrate the real impact of the funding. NDS recognises that it is very difficult to measure success in these terms but believe that there should be an attempt to address this.
Division 2 needs to include a statement that ensures people living with disability are provided sufficient information and support to manage their own packages. A further statement should be added to ensure there is the ability to review packages and an indication as to the timing of reviews. There needs to be clear reference to an ability to amend a plan to specify desired services and/or support up-front when negotiating a package. An appeals process in this section needs to be articulated.
Part 4 – Monitoring of Grants
In changing the wording of Part 4 22 (1) from ‘The Secretary may give notice…’ to ‘The Secretary must give notice….’ it is also considered that there should be a practice of enforcing compliance and enacting the sanctions described where there is non-compliance. The lack of will on the part of government to do this is of some frustration to the sector.
Particular concerns with Sections 25 and 26 were raised by NDS members. This section is poorly drafted and needs to be written to ensure that discrimination does not occur as a result of the move to the user choice model and deregulation of services. Authorised Officers’ Right of Entry access needs to be enforced in all support settings including people’s homes. NDS also believes the Bill must be amended to ensure that the actions taken by Authorised Officers are relevant to the circumstance of entry ie filing cabinets or containers opened, or information requested, is appropriate to the situation.
The wording in Section 25 such asbeing appropriately dealt with is inappropriate and should be rewordedensuring that persons with a disability who reside in, or receive specialist services in the premises are receiving the necessary care and support. With regard to Section 26, subsection (2) – asking questions of a person living with disability would benefit from the addition of a sub-section entitling a person living with disability to be accompanied by or assisted by a person of their choice to answer questions. This would be consistent with Article 9(2) (e) of the International Convention about accessibility.
Part 5 – Senior Practitioner
The Senior Practitioner has oversight responsibilities in particular narrow areas and is clearly a bureaucrat. Being a public servant may compromise the role of the occupant of the position and the outcomes intended for the work they do. If the Act is viewed in terms of the outcomes that are achieved for people living with disability, then oversight mechanisms to ensure that their interests are met need to be fully identified. Perhaps this can be met by an independent Disability Commission where responsibilities could encompass:
- Best practice policy and practice
- Research and development
- Education and training
- Community Awareness
The issue of compliance is in some ways more difficult. Any immediate concerns about the health or welfare of a person living with disability needs to be supported by a mechanism that can INTERVENE with the requisite urgency and authority – the National Disability Abuse and Neglect hotline may be the best option. Other issues around operational matters could be managed through audits and reviews.
If the Senior Practitioner modelis retained then regional reference groups for wide consultation need to be formed.
Part 7 – Miscellaneous
Concerns expressed by NDS members regarding Part 7 relate mostly to item 37 - the sharing of information. For the most part the focus of sharing of information should be on welfare and wellbeing with informed consent. Where circumstances relate to safety then sharing without consent should be allowed.
In conclusion, NDS again reiterates its priorities
(a)the view that an independent Disability Commission is the desired model for the most efficient and effective implementation of the Bill and strongly encourages the Tasmanian Government to review the work conducted in this area by the West Australian government;
(b)the need for consultation with specialist service providers and Tasmanians living with disability around the development of any documentation required to underpin the Bill and
(c)the need for appropriate resourcing to fully implement the Bill.
Thank you again for the opportunity to comment.
Yours sincerely
Margaret Reynolds
STATE MANAGER
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Mobile: 0418 181 843