addressing the abuse, neglect and exploitation of at-risk adults following the introduction of the...

Addressing the abuse, neglect and exploitation of

at-risk adults following the introduction of the NDIS

Presentation to National Disability Summit,

Melbourne, 13 March 2013

John Chesterman, Manager of Policy and Education

Introduction

OPA is an independent statutory authority with the following key

functions:

• guardian of last resort

• investigates applications to Vic. Civil and Administrative Tribunal

• coordinates 3 volunteer programs

» Community Visitors program

» Independent Third Person program

» Community Guardianship program

• advocates (individual and systemic)

• provides an advice service

• delivers community education

Four key ways to address the abuse,

exploitation and neglect of at-risk adults

1. Ensure participants have greatest role possible in decision-making

2. Clear regulatory framework

3. Rigorous safeguards

a. Complaints

b. Incidents

c. Monitoring wellbeing

4. Workforce development


• NDIS is designed on a market-purchaser or consumer choice model, in which

people with disabilities to a large extent will determine how funds available to

purchase supports and services are spent.

• Making decisions about which services and supports to utilise will present few

challenges or problems to many people with disabilities.

• But many people with cognitive impairments and profound mental ill health

will require either significant support in making purchasing decisions, or may

require others to make such decisions on their behalf.

• The provision of increased funds on a consumer choice model has

implications:

» for individual decision making, and

» for workforce planning.


• One of the key principles underpinning the United Nations Convention on the

Rights of Persons with Disabilities concerns supported decision making, which

can be defined as the requirement that people with disabilities be supported to

play as great a role as possible in making and implementing the decisions that

affect them.

• There is reference in the NDIS Bill and the Rules Consultation Paper to

supported decision making

» e.g. clause 80(4) of the Bill suggests the Rules may require nominees

‘to support decision-making by the participant personally’

» The Rules Consultation Paper talks of CEO appointments of nominees

‘in strictly limited circumstances … when the person with disability is

unable to be supported in their decision making and unable to consent

to a nominee’.

• But aspects of the developing NDIS framework are not consistent with a

supported decision-making approach.

Nominee provisions in the NDIS Bill

• Nominee provisions (‘plan nominees’ and ‘correspondence nominees’) mirror in some

ways the provisions concerning ‘payment nominees’ and ‘correspondence nominees’ in

the Social Security (Administration) Act 1999.

• ‘Plan nominees’ will be able to undertake ‘preparation’ and ‘review’ of participants’ plans,

and ‘management of the funding for supports’. Plan and correspondence nominees will

have most relevance for participants with significant cognitive impairments or mental ill

health.

• While participants are able to request the appointment of nominees, in effect the CEO of

the NDIS Launch Transition Agency may appoint plan nominees and correspondence

nominees for participants so long as the written consent of the people being appointed

has been provided, and so long as the CEO has taken into account the ‘wishes’ of the

relevant participant.


The NDIS legislation is an opportunity for our national parliament to adopt contemporary

understandings of the position of people with disabilities, and the need to allow people to make

their own decisions (with support, when this is needed), as required by the Convention on the

Rights of Persons with Disabilities.

In line with this, OPA has recommended that the NDIS legislation more fully adopt the

principles articulated in the Convention on the Rights of Persons with Disabilities by:

a. Incorporating a presumption that participants have decision-making capacity;

b. Enabling participants to appoint their own nominees (rather than just request their

appointment);

c. Permitting the CEO only to appoint nominees in situations where participants are

themselves unable to make appointments;

d. Requiring, in situations where a participant has a decision-making impairment that inhibits

his or her ability to appoint a nominee, that any preferred nominee of a participant should

still occupy that role, unless such an appointment would be deleterious to the participant’s

personal and social wellbeing.

OPA has also called for a clear process by which the appointment of nominees can be

challenged by an interested party (such as a family member) where there are concerns for the

personal and social wellbeing of a person with a disability.

Recognition of state and territory

substitute decision-making appointments

• Most people with a significant cognitive impairment or mental illness do not

have a formal substitute decision maker in place.

• Having said that, many people have formally appointed substitute decision

makers, who should be recognised by the NDIS (either in the Act or the Rules).

Formal substitute decision making:

• tribunal appointed guardians and administrators (review mechanisms: tribunal

appointments can be challenged and some jurisdictions allow merits reviews of

guardianship decisions)

• personally appointed representatives under enduring powers of attorney

(review mechanisms: tribunals can overturn enduring powers of attorney,

though monitoring of these is minimal).

Recognition of state and territory

substitute decision-making appointments

• The NDIS Bill provides only for limited recognition of state and territory-based substitute

decision-making arrangements:

‘In appointing a nominee of a participant … the CEO must have regard to whether a

person has guardianship of the participant under a law of the Commonwealth, a

State or a Territory’ (Clause 88(4)).

• Reference to ‘guardianship’ may be meant to include guardianship of children as well as

guardianship and administration appointments in relation to adults, but that does not

appear to apply to appointments made under enduring powers of attorney.

• The Rules Consultation Paper makes clear that where participants are unable to make

their own decisions one option includes: ‘recognition of formal legal arrangements … in

place … such as the Public Trustee and guardianship arrangements’.

• Clearly representatives appointed under appropriate enduring powers of attorney would

be well placed to act as nominees for adults with decision-making impairments (having

been selected by principals to play substitute decision-making roles in the event of a

loss of decision-making capacity).


Challenge of introducing national scheme in a field (disability services) regulated by states and territories.

• Not a unique challenge to disability services. Applies in other policy areas (e.g. health, education). Vertical fiscal imbalance makes this an embedded feature of Australia’s federal system of government.

Dangers of overriding state and territory regulation:

• Unless ‘best’ model chosen, standards in some jurisdictions might fall

• Financial and administrative costs of ‘doubling up’

• Lack of corporate memory/experience

Dangers of leaving regulation to the states and territories:

• Uneven standards across the country (and unmet expectation that a national program will be nationally regulated)

• Lack of nexus between funding and monitoring has a range of governance and performance implications (e.g. monitoring will tend to be reactive rather than embedded)

We often hear about the costs of federalism. One of the benefits is that we can cherry pick the best from existing schemes and implement them nationally.


Middle way in disability services: utilise existing state and territory regulation, while

establishing national consistency and baseline national standards.

How the NDIS will work with existing state and territory protective mechanisms: state and

territory laws hold sway unless inconsistent with the NDIS legislation.

NDIS Bill, clause 207.

‘It is the intention of the Parliament that this Act is not to apply to the exclusion of a law of a

State or Territory to the extent that that law is capable of operating concurrently with this Act.’

COAG Agreement 2012

‘The existing Victorian quality assurance and safeguards framework … will apply in the

Barwon launch site as it applies to the relevant new and existing funded client support

programs for the launch subject to further development of and transition to a nationally

consistent risk-based quality assurance approach in the longer term that does not diminish

Victoria’s existing quality assurance system and safeguards.’

Intergovernmental Agreement for the NDIS Launch, Schedule B (bilateral agreement Commonwealth and Victoria),

par. 15.


At State level in Victoria, our safeguards framework includes:

• Community Visitors

• Disability Services Commissioner

• Senior Practitioner

• Protections contained in range of legislation, including:

» Disability Act

» Guardianship and Administration Act

» Mental Health Act

» Supported Residential Services (Private Proprietors) Act

» Charter of Human Rights and Responsibilities Act.

What would be contained in ‘a nationally consistent risk-based quality assurance

approach’? Does this include safeguards?


• Challenge in developing nationally consistent safeguards:

» Should not lower safeguards in any jurisdiction.

» Should maintain, at a minimum, and ideally improve current protections.

• National consistency is not easily achieved when significantly different protections

exist throughout the country. For example:

» Does national consistency require all jurisdictions to create the equivalent of a

Senior Practitioner (or even the appointment of a national Senior Practitioner) to

monitor restrictive interventions?

» Or does national consistency (which is different to national sameness) require

something broader, such as a requirement that restrictive interventions be

authorised by an external agency?

• No right answer, but a best answer will ensure that:

» State and territory safeguards will continue to apply for now; and

» National consistency will ultimately require commitments to higher level

safeguarding principles, rather than sameness.


While safeguards might incorporate many aspects, three important features

concern:

a. Complaints

b. Incidents


3a. Complaints

The NDIS Bill is silent on complaints processes.

OPA agrees with the Victorian Disability Services Commissioner:

‘As the choice of plan management and the way in which funds are

managed are likely subjects of complaints and disputes, the Act and the

NDIS Rules should require that the Agency and registered plan

management providers have complaint processes and that participants, or

persons on behalf of participants, have access to an independent

complaint body …’

Victorian Disability Services Commissioner, Submission on NDIS Bill to Senate Standing Committees on Community

Affairs, p. 11.

3b. Incidents

How should the NDIS incorporate incident monitoring in its overall monitoring of service provision by government and non-government disability service providers?

• Incidents are perhaps one of the most critical indicators of risk. How an organisation responds to critical incidents is a valuable indicator of their commitment to continuous improvement.

• OPA is developing an Interagency guideline for responding to the abuse and neglect of at-risk adults (IGUANA) in partnership with a range of agencies in Victoria.

• Currently, the NDIS bill retains state and territory protections where they are not inconsistent with the new scheme.

• OPA agrees with the Victorian Disability Services Commissioner that there is a clearer way of maintaining current protections:

‘One option is to state that NDIS funded or provided services are to be treated as if funded or provided by States or Territories so as to allow for existing safeguards (such as Senior Practitioner, critical incident reporting etc) and the right to complain to existing bodies.’

Victorian Disability Services Commissioner, Submission on NDIS Bill to Senate Standing Committees on Community Affairs, p. 18.

3c. Monitoring wellbeing

General monitoring principles

• We need to recognise that the usual market protection mechanisms (complaints and survey-based monitoring) do not apply in the same way to the provision of services to people with significant cognitive impairments. (Who is the purchaser? How meaningful is the choice of services and of providers?)

• Additional monitoring is required which will need to evaluate the utility of services to the person concerned and their impact on the participant’s personal and social wellbeing (e.g. a family member spends money in a way that benefits him/her more than the person concerned).

• The draft NDIS Bill does not incorporate a specific monitoring function for any entity, though it does establish an Independent Advisory Council. The Council’s functions (clause 144) encapsulate some generic monitoring functions, but specifically do not, for instance, extend to advice on individual matters.

• Monitoring general wellbeing can only be done by visiting the person.


Who should do the visiting?

• In addition to ‘audit’ type visits concerning service provision, OPA is of the view that Community Visitors should be one of the monitoring mechanisms for people with cognitive impairments and mental ill health living in residential services.

• The Productivity Commission called for Community Visitors to be one aspect of the monitoring provided by the proposed National Disability Insurance Agency, and suggested that OPA’s Community Visitors scheme should be the model for jurisdictions that don’t have existing community visitors schemes (Disability Care and Support Inquiry Report, vol. 1, pgs. 81, 509).

• Key here is our Community Visitors program’s:

» Use of volunteers

» Production of an annual report

• The advantages of Community Visitors is that they:

» Are independent of service providers

» Visit regularly and get to know individuals and communication styles


• Earlier point – until nationally consistent approach is developed, the state and

territory-based regulatory systems apply. Here in Victoria, that includes

Community Visitors.

• OPA wants our Community Visitors program to be involved in monitoring the

pilot launch site in Victoria in the Barwon region, and is seeking to work with

the Launch Transition Agency to enable this to happen. Other community

visitors schemes already in operation could likewise monitor launch sites.

• Important for the pilots to make use of existing monitoring mechanisms to

enable them to be as informative as possible about the benefits and

shortcomings of the scheme, which will enable the full roll out of the scheme to

be as beneficial to people with disabilities as possible.


Who should be visited by Community Visitors?

Private homes? Supported accommodation? What if the lines are blurred?

Community Visitors are provided for in three Acts:

Disability Act, Mental Health Act, Supported Residential Services (Private Proprietors) Act

Victoria’s move to embrace Individual Support Packages has enabled some people with cognitive impairments to pool funds and move to new residences (buying in services). Can OPA’s Community Visitors continue to visit people in this situation, whom they used to visit when they resided in community residential units (group homes)?

Victoria’s Disability Act has been amended so that a ‘residential service’ is an accommodation setting in which a range of criteria are met. This covers residential accommodation:

• ‘provided by, on behalf of, or by arrangement with, a disability service provider’

• ‘provided as accommodation in which residents are provided with disability services’

• ‘supported by rostered staff that are provided by a disability service provider’; and

• ‘admission to which is in accordance with a process determined by the Secretary’.

This may provide a guide for other jurisdictions.


• Monitoring of the NDIS by Community Visitors would be an add-on to their

usual monitoring role.

• Most disability accommodation will continue to be funded by states and

territories, so visiting criteria (in jurisdictions that have community visitors) will

continue to apply.

• There may be a need to specify in federal legislation that Community Visitors

can visit when:

» NDIS funds are used for accommodation purposes (e.g. in purchasing

respite services), and

» The provision of accommodation and support are connected and both

are managed by, or on behalf of, a disability service provider.


A final key way to address the abuse, neglect and exploitation of at-risk

adults:

• A steady/reliable workforce

» Professionalisation (career path etc)

» Trained in abuse prevention and response

• With an influx of new NDIS funding there are some key challenges here:

» Future workforce planning

» Regulation of increasing number of for-profit providers (in addition to

not-for-profit and government providers).

» While this will continue to be state and territory-based, is there a

role for national policy development here (e.g. a national workforce

register? ODSC suggestion).

A final point – NDIS vs mainstream services

Reasonable and necessary supports

• ‘For the purposes of specifying, in a statement of participant supports, the general supports that will be provided … the CEO must be satisfied [that]: … (f) the support … is not more appropriately funded or provided through other general systems of service delivery or support services offered … :

(i) as part of a universal service obligation; or

(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability’. NDIS Bill, clause 34.

• ‘For some people with disability, the Agency will provide assistance by referring them to community based and mainstream organisations that can best support their needs’. NDIS Rules Consultation Paper, p. 5

• Fear that NDIS may lead to mainstream service retreat. E.g. when is a disability-specific health service

» a general system of support with reasonable adjustments – i.e. continue to be provided by states and territories

» something more appropriately funded through the NDIS?

• What constitutes mainstream or ‘general systems of service delivery’? See papers presented to La Trobe University Annual Roundtable on Intellectual Disability Policy, December 2012 (convened by Professor Chris Bigby).

Conclusion




a. Complaints

b. Incidents



Thank you

addressing the abuse, neglect and exploitation of at-risk adults following the introduction of the...

Health & Medicine

plan nominees

payment nominees

appointment of nominees

individual decision

correspondence nominees

greatest role possible

ndis bill nominee provisions

review of participants