A representative from the Department of Justice Ex-officio support by DCS Committee Members Barbara Hingston (Chair) Health, Mental Health and Social Services; Member MDAC Donna Bain Self Help Workplace (provider representative, National Disability Services Tasmania) Karen Renetzeder Department of Justice (replaced by Sonia Weidenbach) Jane Wardlaw Consumer representative Jenny Dixon Speak Out Advocacy (advocacy organisation) Natasha Street MDAC (consumer representative) Ingrid Ganley Disability and Community Services Charley Hodgson Senior Practitioner Bruce Paterson DHHS – Legislative Review and Legal Support 4 METHODOLOGY FOR MEASURING PERCEPTIONS OF INTERESTED PARTIES The Review provided a of opportunities for people across Tasmania to contribute their views about the Act. This was summarised in the Stakeholder Engagement Plan. Significant efforts were made to connect with people with disability who use specialist disability services, their families and carers, and providers of specialist disability services, to understand their experience of the Act, how well it delivers safe, quality services, aligns with other legislation and supports transition to the NDIS. Information processes brought the Review to the notice of stakeholders and set out the options for written submissions, face-to-face consultations, online survey and/or direct contact with the consultant. Six consultations were conducted in the north and south of the state with people with disability, their families and carers, service providers, and the public. Information processes Stakeholder information session A range of stakeholders with experience in legislative matters relating to people with disability were invited to an information session to ensure as many people as possible with an interest in the Review were informed about it. The session encouraged engagement with the disability sector in Tasmania and
MATRIX OF STAKEHOLDERS REQUESTS MATTERS FOR CURRENT REVIEW Section Change Request Explanatory Notes Raised by Section 4(1) Interpretation Disability Change the definition of disability GAB suggests adopting their 1995 definition of disability: “disability means any restriction or lack (resulting from any absence, loss or abnormality of mental, psychological, physiological or anatomical structure or function) of ability to perform an activity in a normal manner.” It is more than 20 years since the GAB adopted their definition of “disability” and policy and practice have moved considerably over those two decades Current State definition broadly aligns with NDIS definition which identifies “Disability requirements” rather than a definition of “disability” GAB submission is not recommended – see Review Committee Recommendation 1 Guardianship and Administration Board Section 4(4)(b) Reference to person nominated by person with disability Remove both “trustee” and “administrator” The GAB noted that trustees and administrators deal with financial matters and may not have the skills or the inclination to act as nominated persons and so should be removed from this sub-section. Amend in current review Guardianship and Administration Board (GAB) Section 5 Principles Review Principles to with NDIS and CRPD particularly relating to children and young people Principles in the Act are high level, “directional” statements that may not be specific enough to deliver safe, quality services to people with disability There is no overarching human rights framework in Tasmania therefore the CRPD needs to be incorporated more transparently into the Principles, particularly those pertaining to children and young people in Article 7; aspects relating to children and young Consultations Commissioner for Children
Part 6 Approvals of restrictive interventions to require behaviour support plan A restrictive intervention should only be approved and implemented in accordance with a behaviour support plan which is required in other Australian jurisdictions The practice is required under the NDIS NQSF Consider in future review with new act to align with NQSF Guardianship and Administration Board Section 33 Persons to provide assistance to Senior Practitioner Quantum and meaning of penalties Penalties arise under Section 33 – Persons to provide assistance to Senior Practitioner, &c; and Section 36 Use of unauthorised restrictive intervention prohibited; there are no penalties under Part 4 Monitoring of Grants Consultations Section 36 Use of unauthorised restrictive intervention prohibited Quantum and meaning of penalties continued There is currently no capacity under the Act to create new offences in the Regulations or impose infringement penalties for existing offences To create new offences or impose infringement penalties for existing offences will require amendment of the Act and the amount of infringement penalties would then be prescribed by DHHS through regulations under the Act Consider in future review Section 35 Functions of Senior Practitioner Power to monitor implementation and use of behaviour management/support plans GAB submits their functions should include the “power to monitor the implementation of behaviour management plans and use of behaviour management techniques, if a restrictive intervention is approved or not, when directed by the Secretary or the GAB” Roles and functions of the Senior Practitioner will undergo significant revision in a new State act subject to the ongoing role of the State under the NDIS; the independence of the Senior Practitioner needs to be considered in this process Consider in future review once the States and the Commonwealth have reached agreement on roles and responsibilities Guardianship and Administration Board
Section 37(1) Applications for approvals to carry out restrictive interventions Add ‘person with a sufficient interest’ and ‘NDIS nominated person’ to those who can apply for approvals Extend the definition of those who can apply for an approval to carry out restrictive interventions to “a person with a sufficient interest” and “NDIS nominated person” A “person with a sufficient interest” would need to be defined Consider in future review Guardianship and Administration Board Staff (Issues Register) Division 3 Approvals by Guardianship and Administration Board Power to hear matters on its own motion The GAB seeks a power to hear any matter relating to a restrictive intervention on its own motion. It notes an earlier experience during a hearing in which “a service provider was seen to be applying an idiosyncratic interpretation of the provisions” Guardianship and Administration Board Power to hear matters on its own motion Continued The Board currently has the power to hear a matter on its own motion in respect of all applications under the GA Act except in relation to applications for the review of enduring guardianship Initially consider in review of the powers and functions of the GA Act Consider outcomes in future review Section 42 Approvals to carry out restrictive interventions Power to appoint mediators GAB submits it should have a power to appoint mediators, when appropriate, in respect of applications for approval to carry out a restrictive intervention or an application for review under the Act Regulation of restrictive practices will be reviewed following full implementation of the NDIS Consider in future review Guardianship and Administration Board Section 45 Review, amendment and revocation of approval by GAB Extend entities that can an application to any person or entity with “a sufficient interest” GAB submits that in many instances it is unlikely the person with the disability has the capacity and resources to make a review application or the capacity to appoint a nominee GAB proposes the addition of a person or entity with “a sufficient interest” – which would need to be defined in the Act Guardianship and Administration Board
Consider in future review Section 45 Review, amendment and revocation of approval by GAB Power to review any decision about restrictive interventions not just approvals Intention of the GAB is unclear This issue is noted and will be considered in future review Guardianship and Administration Board Section 46 Senior Practitioner to investigate, &c., use of restrictive interventions of interventions by the Guardianship and Administration Board GAB submits that Section 46 limits the scope of intervention by the Board and it should be able to intervene in the same range of circumstances as it can intervene to appoint a Guardian, including by a Board’s own motion review This is a significant realignment of responsibilities Consider in future review Guardianship and Administration Board Alignment and clarity Better alignment with other legislation The Commissioner for Children submits that the Act needs to better align with other legislation that it intersects with and provide clarity about which legislation applies in particular circumstances Confusion arises, for example, when the Act intersects with the Education Act 2016; Children, Young Persons and Their Families Act 1997; Youth Justice Act 1997; Mental Health Act 2013 NDIS Act has been reviewed against legislation Further alignment to be achieved in future review – see Review Committee Recommendations 12 and 13 Commissioner for Children Consultations Discrimination on of family responsibilities Role of Anti-Discrimination Act 1998 Carers Tasmania suggests that the Anti-Discrimination Act 1998 may be relevant to the review, particularly where it makes it unlawful to discriminate on the basis of family responsibilities It is suggested there is a need to clarify and make more explicit, carer roles and responsibilities in a new State act Consider in future review Carers Tasmania
This issue is a policy matter for the Department of Education ensuring alignment with the Act Reporting of Mandatory reporting of abuse for people with disability Reporting of abuse is not mandated for people with disability Current national developments that support the reporting of abuse include national worker screening, a national complaints process and the National Abuse and Neglect Hotline This will largely be addressed by national worker screening that is currently being implemented Consultations Worker health and safety Worker health and safety relating to clients with challenging behaviours Concerns were raised about worker health and safety when subject to clients with challenging behaviours Examine Work Health and Safety Act 2012 for appropriate coverage of workers in this situation Consultations Individual Easier transition from to NDIS-funded plan Aligning funding processes for individual plans with NDIS processes will assist transition Planning and practice has been streamlined through a template that guides inclusions in individual plans and provision of transition support The gateway providers – Baptcare and Mission Australia – are also appointed to provide Local Area Coordination services under the NDIS which should assist transition This will be addressed through streamlined practice See Review Committee Recommendation 18 Consultations Gateway Support through transition to NDIS Gateway has a key role in supporting client transfer to the NDIS Difficulties are being experienced with referral processes Gateway also has a vital role in navigating different funding streams e.g. HACC, Mental Health, Disability, Youth Services Gateway is not working as well as desired in this transition role – participants reported difficulty working with gateways, creating a service gap to DCS for action Consultations
APPENDIX 2 – SCHEDULE OF PUBLIC CONSULTATIONS Public forums aimed at persons with disability, their families and carers TIME DEVONPORT Waterfront Function Centre 17 Devonport Road 29 November 2017 10am – 12pm RSVP 24 November 2017 LAUNCESTON The Tramsheds 4 Invermay Road Inveresk 30 November 2017 10am-12pm RSVP 24 November 2017 HOBART C3 Convention Centre 64 Anglesea Street South Hobart 4 December 2017 10am-12pm RSVP 28 November 2017 Public forums aimed at providers of specialist disability services VENUE TIME DEVONPORT Waterfront Function Centre 17 Devonport Road 29 November 2017 1.30-3.30pm RSVP 24 November 2017 LAUNCESTON The Tramsheds 4 Invermay Road Inveresk 30 November 2017 1.30-3.30pm RSVP 24 November 2017 HOBART C3 Convention Centre 64 Anglesea Street South Hobart 4 December 2017 1.30-3.30pm RSVP 28 November 2017