Submissions Re Review of Disability Standards for Education 2005

UNIVERSITY OF WESTERN SYDNEY

SUBMISSIONS RE REVIEW OF DISABILITY STANDARDS FOR EDUCATION 2005

Introduction

1.  The University of Western Sydney (UWS) is one of the fastest growing education institutions in Australia, with over 40,000 domestic and international students. With eight satellite campuses all based in the Greater Western Sydney metropolitan area, UWS is proud of the vast cultural and ethnic diversity of its students. It has the highest number of low socio- economic students of any tertiary institution in Australia, at 24% of its student cohort.
Further, 60% of its students are first in family to attend university. Recent student surveys have also revealed that UWS’ multicultural student base is drawn from 170 countries of birth with over a third of students born overseas and over a hundred different languages spoken at home.

2.  UWS is committed to making reasonable adjustments to teaching and learning, assessment, placement and other activities to enable students' to participate in their course. UWS prides itself on providing comprehensive student support services, with specialist units including disability services, counselling, welfare and advocacy, to name a few.

3.  In our experience, the Disability Standards for Education 2005 (Standards) have, for the most part worked well, and have provided important guidance for universities and other education providers about their responsibilities under the Disability Discrimination Act 1992 (Cth) (DDA).

4.  However, there are a couple of ways in which we submit the Standards could be improved to provide greater clarity about rights and responsibilities.

Discussion

Access, participation, knowledge and awareness

5.  In the main since their introduction, the Standards have led to education providers becoming more aware and committed to the provision of services to facilitate the access and inclusion of people with disability in education. They provide a useful guide to the types of services which should be provided but also the issues which should be considered in the educational environment as well as being able to be used as a tool to encourage compliance.

6.  UWS has been very mindful to ensure it meets its obligations in line with the Disability Discrimination Act and Standards in the development and review of University-wide policies and procedures and systems. For instance, providing greater online educational access, UWS is aware of the need to incorporate universal design features in online materials and resources.

7.  Statistics show that the Standards have resulted in greater participation in education by people with disability. This is evident in the increasing numbers of students registered with the UWS Student Disability Service (Service). In the past 4 years, there has been a 34.75% increase in the number of students with disability accessing the Service with numbers rising from 984 students in 2011, to 1326 students in 2014.

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8.  The UWS Equity and Diversity Unit and the Disability Service have implemented a number of strategies to promote awareness of the Standards and provide support to students with disabilities.

Understanding and advocacy

9.  The Standards are drafted in a way that allows a reader to interpret categories in a clear and consistent way. They articulate how a particular standard is applied, steps a provider can take to comply and how compliance can be evaluated.

10.  However, although the Standards clearly articulate the rights of people with disabilities, they are silent on the responsibilities of the target group. Similarly, the responsibilities of education providers are outlined but not their rights. In our view, this is an area of the Standards that needs to be remedied in order to provide further clarity for both education providers and people with disabilities.

11.  Further, it is not clear that students with disabilities are necessarily aware of the Standards.

UWS does accept however that this is not necessarily an issue as long as access and participation is assured. This issue is further explored below in the context of inherent requirements.

Inherent requirements

12.  Inherent requirements, in the context of study, are the essential elements of a course, or unit of study, that all students must meet in order to successfully progress through and complete that course.1 These are not, and should never be, a means for excluding students with disabilities from pursuing a particular program of study. Rather, they are a means by which universities can ensure that all students who undertake a course will be able to complete it successfully and, if they choose to do so, practice in their chosen profession.

13.  UWS accepts that it is the responsibility of universities to ensure that any prescribed inherent requirements are just that, and do not act as an unnecessary form of “gatekeeper” to a particular profession. However, the reality is that most professional courses conducted by universities are accredited by professional bodies, who in turn are charged with maintaining certain professional standards to meet both government and community expectations and, in the case of health professions, to ensure public health and safety.

14.  UWS is one of a number of Australian universities that has implemented “inherent requirements” in relation to a number of courses, in particular, health professional courses, including medicine, nursing and midwifery, podiatry, physiotherapy and so on. These inherent requirements are widely published (through UWS’ website and in student information packages), so that students can make informed decisions before they apply or enrol. Importantly, students are not refused entry if they cannot fulfil those inherent requirements at that time. However, their capacity to progress through that course may be affected in circumstances where reasonable adjustments cannot be made to accommodate

their particular disability. UWS’ capacity to make an assessment and respond appropriately

1 McNaught, Keith (2013) “The Potential Impacts of ‘Inherent Requirements’ and ‘Mandatory Professional Reporting’ on students, particularly those with Mental Health Concerns, register with University Disability/Support Services”, Journal of the Australian and New Zealand Student Services Association, 27

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of course will always depend on when, and to what extent, the student discloses their particular disability, assuming it is known to them at the time they first enrol (which is not always the case).

15.  One particular example is where a student who is about to undertake a clinical placement realises only then that he or she cannot comply with NSW Health requirements for performing certain medical procedures because he or she suffers from a physical health condition that would, if he or she performs a particular procedure, breach those requirements. While, in such circumstances, UWS will genuinely assess whether performance of that particular procedure is really an inherent requirement of the course, and whether alternative arrangements are available by way of reasonable adjustment, it is often

the case that there is no genuine alternative. This not only leaves the student in an invidious position, depending on how far they have progressed through their course: it also exposes the university to a claim of unlawful disability discrimination, often regardless of how much “up front” information it has provided for the student. This not a desirable situation either for the student or for the university.

16.  While, in such circumstances, the university would normally work with the student to find a suitable alternative course, the student may not often be receptive to this idea, particularly if the student is really keen to pursue a particular career. It can become extremely difficult for the university to manage expectations in these situations.

17.  There is of course no mandatory requirement that universities incorporate inherent requirements into their degree courses. However, the reality is that most professional degrees are accredited by professional bodies. In acknowledgement of this, section 4.3(c) of the Standards set out measures a provider may implement for prospective students, including:

… information about entry requirements, the choice of courses or programs, progression through those courses or programs andthe educational settings for those courses or programs is accessible to the student and his or her associates in a way that enables the student, or associates, to make informed choices.”

18.  Inherent requirements” also form an “exception” to the requirement of the making of

reasonable adjustments in Part 3 of the Standards. Section 3.4(3) specifically provides:

In assessing whether an adjustment to the course of the course or program in which the student is enrolled, or proposes to be enrolled, is reasonable, the provider is entitled to maintain the academic requirements of the course of program, and other requirements or components that are inherent in or essential to its nature.

19.  However, there are difficulties in relation to the inherent requirement exception, including that it:

(a)  assumes that the student has disclosed, is aware of or has been diagnosed with, his or her disability at the time they enrol. As noted above, it is our experience that one or more of those circumstances applies, particularly for students who have mental health issues;

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(b)  does not take into account that a student’s failure to meet inherent requirements

could still expose a university to a claim of unlawful discrimination; and

(c)  does not take into account the operation of privacy legislation2, including the restriction on disclosure of personal and health information, that may inhibit a university from identifying whether the student meets the inherent requirements of the course, which in some cases can pose a risk to public health and safety.

20.  The challenge for universities in making reasonable adjustments for students suffering from mental illness is illustrated in the recent decision of the NSW Civil and Administrative Tribunal in BKY v The University of Newcastle [2014] NSWCATAD 39. There, student BKY sought an extension of time to complete a medical degree outside of the 8-year time period set by that University. For the period of enrolment, BKY suffered from Bipolar II Disorder, Borderline Personality Disorder and severe psychosocial stressors of which symptoms were present during the course of study. BKY claimed that the Newcastle University’s refusal to extend the period of time to complete her studies was direct discrimination on the basis of her disability.

21.  One of the factors raised by the University in relation to its decision to refuse the extension of time was that the Dean was concerned about both the impact of continuing the degree on BKY’s health as well as her suitability to practise as a medical practitioner, the latter being an inherent requirement. The Tribunal stated:

“Professor Symonds was very concerned about the applicant’s ability to practise due to her psychiatric conditions. The completion of the medical degree does not mean that she can automatically practise as a medical practitioner. Her psychiatric conditions are already registered with the NSW Medical Council. The Tribunal notes that … fitness to practise as a medical practitioner is governed by the NSW Medical Council and if the Medical Council deems that the applicant is not fit to practise, then she will not be able to do so.”

22.  Although BKY’s case was decided by reference to the provisions of the Anti-Discrimination Act 1977 (NSW), it is still relevant because the Tribunal appears to discount or ignore the question of whether BKY was able to meet the inherent requirements of the medical degree. This decision does not sit well with the exception in section 3.4(3) of the Standards. The clear message in BKY’s case is that the question of whether BKY could practise safely was a

question for the NSW Medical Council. However, it is problematic because ignores the reality of course accreditation process, and maintains what we submit is a fiction that provision of education and eligibility to practice are always separate and distinct issues. For the reasons outlined above, and with great respect to the Tribunal, this is unrealistic and wrong, particularly in a climate where government policy has an increasing focus on ensuring that university students are ready for employment by the time they graduate.

23.  From the experience of UWS, there remains confusion about the difference between inherent requirements and compulsory requirements. Inherent requirements are specific to a

particular course and are the essential components of a course or unit that demonstrate the abilities, knowledge and skills to achieve the core learning outcomes of the course or unit. In the University context, compulsory requirements are broader and can include both

compliance with the policies, procedures and regulations which are applicable to all students

2 UWS is subject to the Privacy and Personal Information Protection Act 1998 (NSW)

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at the University but also the mandatory requirements associated with the course of study, for example, attendance, completion of assignments.

24.  There also needs to be greater emphasis in the Standards on the obligation of education providers and students with disability to understand inherent requirements and on the educational institution of the importance of Inherent Requirements in determining reasonable adjustments. Although Part 6 of the Standards encompasses Curriculum development, accreditation and delivery however in reality, it does not adequately address accreditation and in particular accreditation by external professional bodies,

Non-discrimination in Education

25.  The Standards provide a tangible framework to assist the Disability Service to ensure the University’s continued commitment to meeting the needs of students with disability.

26.  UWS continues to invest significantly in disability services and access for students in facilitating compliance with the Standards:

(a)  Discrete Units charged with responsibility for Equity and Diversity and Student Disability;

(b)  Documented University Disability Action Plan 2011 – 2015

(c)  Established policies – Disability Policy and Reasonable Adjustment in the

Workplace for People with Disabilities

(d)  Employment of a team of highly qualified and experienced Disability Advisors, with at least one Disability Advisor located at each of the five campuses, supported by a Disability Services Co-ordinator who organises educational support staff and administrative personnel

(e)  Provision of an Assistive Technology Officer to support students with disability in the use of assistive technology