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Disability Services Bill 2011

Mr Speaker, I move –

That the Bill now be read for a second time.

The purpose of this Bill is to inform the way that specialist support

services are provided to people with disability. This Bill provides for the

funding of specialist disability services and related research and

development activities. The Bill establishes a requirement that all

services provided under this Bill will respect the inherent dignity of

people with disability, along with their individual autonomy, freedom to

make their own choices and their right to independence. The Bill

requires that care and support provided is person-centred and supports

the universally adopted principle of “nothing about us without us”. New

planning and reporting requirements have been developed. The Bill

proposes a quality and safety framework for services which includes a

statement of principles and requires that services meet specified

standards. The Bill also provides for new protections, including the

regulation of restrictive practices.

Mr Speaker I am proud to bring this Bill before the House. It represents

a truly contemporary approach to the delivery of services to people

with disability, an approach that puts the person at the centre of all that

we do in service delivery and seeks to ensure the services that are

delivered are of the highest standard. Before proceeding to consider the

main features of the Bill I will outline the background to its development

in some detail.

State Disability Agreement in 1991, which transferred the responsibility

for the administration of accommodation and support services from the

Commonwealth Government to the States and Territory Governments.

The scope of the Act was limited to specialist disability services that are

funded or provided by the Department of Health and Human Services.

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people with disability that are the responsibility of other agencies, such

as education or transport, or services that are governed by other

legislation. This Bill has a similar scope.

does not prescribe rights to individuals. However, the Act does place

expectations on government and funded service providers to observe

certain rights for people with disability. The Bill carries forward these

expectations.

Mr Speaker, in recent years there have been a number of key

developments that have redirected the focus of support services for

people with disability and that have resulted in the need to develop new

legislation. These include:

Convention sets out the legal obligations on States to promote

and protect the rights of people with disability. It makes a shift

from a world where people with disability were viewed as

“objects” of charity, medical treatment and social protection to a

world where they are viewed as “subjects” with rights, who are

capable of claiming those rights and making decisions for their

lives based on their free and informed consent, as well as being

active members of society.

a ten year plan for improving the life for Australians with disability,

their families and their carers. This Strategy focuses on achieving a

society that is inclusive and enabling, providing equality and the

opportunity for each person to fulfil their potential. Through this

strategy Tasmania has committed to developing a sustainable

specialist disability support system that is person centred and self

directed , and which maximises opportunities for independence

and participation in the economic, social and cultural life of the

community.

2008

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Disability Services last year has already led to significant changes in

the way Tasmania delivers services. This framework promotes a

new way of working in partnership between government and

services providers and the people that they support. It focuses on

people centred and self directed approaches, ensuring that the

individual or family is at the centre of the service delivery system.

A key aspect of these changes is that all direct service delivery is

moving across from Government provision to the community

sector.

expectation that government would ensure that such institutional

care could not happen again.

Mr Speaker, in my inaugural speech I spoke of the pain and suffering that

resulted through the incarceration of people in Willow Court. At that

time I pledged to use my position in Parliament to work towards the

creation of a socially inclusive Tasmania; a Tasmania which respects the

human rights of all its citizens and extends its care and support to

vulnerable members of our community.

Willow Court provided institutionalised care for people with disability.

Every-one aware of what was occurring within Willow Court was

affected by the tragic stories emanating from that place.

Willow Court shut its doors in 2000. It was closed in recognition that

practices such as the institutionalising of people with disabilities and the

consequent damage and abuse are not acceptable. The former Health

Minister, Judy Jackson, must be recognised for her courage and

determination in pushing through the closure of Willow Court eleven

years ago.

Government has formally recognised that institutional care is no longer

appropriate for people living with disability. However the closure of

Willow Court alone was not enough. More needed to be done to

ensure that the approach of institutional care could not happen again.

new legislation to prevent past mistakes being repeated.

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In October 2008 full support was given by all members of this House to

commence an investigation into the features of a new Disability Services

Act.

The investigation was to be undertaken by the Joint Standing Committee

on Community Development, looking at:

of the new Disability Services Act to ensure the approach of

institutional care as experienced in Willow Court could not

happen again;

Government’s obligations to protect human rights under the

United Nations Convention on the Rights of Persons with

Disabilities; and

disability service provision is consistent with modern approaches

to service provision.

Mr Speaker, in developing the new Bill consideration has been given to

the original terms of reference of the Standing Committee. The issues

contained within the terms of reference have also been considered

through an extensive consultation process and I thank most sincerely all

who contributed to that process and the development of this Bill.

Mr Speaker, before I detail the features of this Bill I would also like to

acknowledge the enormous contribution parents and carers make to the

lives of others and acknowledge and show appreciation of their role and

the personal sacrifices they make to fulfil that role.

The Tasmanian Government has been working closely with people with

disability, families, carers and community sector organisations to bring

significant change and improvement to the delivery of services.

I would also like to acknowledge the contribution of members of the

Steering Committee who have provided advice throughout the review of

the Disability Services Act 2011 and the development of this Bill.

I will now deal in detail with the intent and operation of the main

features of the Disability Services Bill.

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The definition of disability is important as it is used to determine

eligibility for specialist support services. This definition has been

expanded to include specific reference to disability resulting from

cognitive impairment. This is consistent with amendments to the

definition in the previous Commonwealth State Disability Agreement.

The definition also includes consideration of the impact that the

impairment has on the person’s capacity to participate in society. This

allows for an increased focus on the supports needed to access and

participate in society as so many of us take for granted.

Restrictive interventions are sometimes required to protect the person

with disability, or another person from serious harm. Provisions within

the level of protection required. It is necessary to define restrictive

intervention so as to be able to make provisions to protect people with

disability from the inappropriate use of restrictive interventions. A

significant feature of this Bill is that it requires approval for the use of

restrictive interventions, and that approvals will only be given after an

assessment that the intervention is in the best interest of the person

with disability, and that, it is the least intrusive intervention possible. The

Bill introduces a requirement that, where ever possible, government will

work towards the elimination of the use of restrictive practices. The Bill

also introduces penalties for the inappropriate use of restrictive

interventions.

This Bill requires that all activities under this Act will be provided in a

manner that meets the expectations established within the Principles.

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This means that any activity undertaken under this Act, whether it is by

the Minister, the Secretary of the Department, departmental staff,

researchers and funded service providers, must apply the Principles.

Mr Speaker, the Principles in this Act reflects the broader human rights

perspective in line with Australian ratification of the United Nations

Conventions on the Rights of Persons with Disability.

This means that

promoted;

disability should only be taken after the person has been

consulted;

person; and that

including the freedom to make their own choices and their right

to independence will be respected.

In a significant improvement to the current act the Principles also

include specific recognition of the specific needs of children with

disability.

The Bill requires that Standards be developed and incorporated into

regulations. Services provided under this Act will be required to comply

with the Standards. Given the new Standards which are being developed

nationally have not yet been finalised; provision has been made to carry

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Mr Speaker, this part introduces requirements for Government, in

consultation with service providers and people with disability, to develop

three yearly strategic and operational plans. The Bill also requires annual

reports against the plans. These provisions are intended to make clear

the role of government in planning and reporting, increasing both

accountability and transparency.

The Bill introduces a requirement that, where an individual is receiving

direct funding and support services, individual plans are to be developed.

The intent behind this requirement is to ensure that the needs of the

person are central to any service provided, and that services are

provided in a manner that is person-centred and self directed. The

planning process will provide increased choice and control for people

with disability, whilst encouraging service responses that are flexible,

innovative and effective. Individual plans will be broader than the

specialist support services that may be provided through the

Department. If a person is unhappy with a decision taken by the

Secretary in relation to an individual plan, they may seek review of that

decision through the Administrative Appeals Division of the Magistrates

Court.

Mr Speaker, the provisions within this Bill will allow the Secretary to

provide a grant to enable a person or organisation to provide specialist

disability services, research and development activity, or, in some

circumstances, purchase “other goods or services”. These provisions

allow for a more flexible approach to the provision of funding. The Bill

will allow for the provision of funds direct to an individual, allowing the

person or their family to self manage the provision of services. This is a

major step forward to the establishment of self directed services. This

will allow for greater flexibility when developing the most appropriate

suit of services to support a person. Provision has also been made to

enable the use of funds to purchase other goods or services, where

these are required to remediate the disadvantage or difficulty arising

from the persons disability.

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The Secretary is required to review grants at least every three years.

The review is to consider compliance with the principles, standards and

other terms and conditions. Importantly the review is also to consider

the extent to which the grant has enabled the quality of life of the

person receiving the service to be improved.

Grants provided to a private person will be reviewed at least once a

year. The focus of the review includes the individual plans, ensuring that

a persons needs and the appropriateness of services provided are

considered. The review of the individual plans will also consider how

well the obligations of other persons to provide services to the

individual have been fulfilled, and whether there has been adequate

coordination of the provision of services.

Mr Speaker, this Bill establishes a process for the Secretary to follow in

the case where services are not provided to the required standard. This

process has been modelled on provisions within the Aged Care industry.

It requires that in the first instance, the Secretary explore supporting the

service provider to address the areas of concern, through to providing

for the termination of funding agreements.

This Bill establishes the right of authorised officers to enter funded

premises. Similar provisions are in place in most other jurisdictions

across Australia.

It is intended that this right will only be used to determine the safety and

well being of the persons receiving the specialist disability support

services, the quality of services and whether the terms and conditions of

the grant are being met. It is expected that this provision will only be

used where there are reasonable grounds to be concerned for the safety

and well being of the person receiving the services, and other steps have

failed to ascertain this.

An authorised officer will be able to talk with the person receiving the

services (or their nominee), talk with staff and examine documentation

related to the concern.

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Mr Speaker these are important new provisions which are part of a

broader strategy to ensure the safety and well being of people receiving

specialist support services.

The current Disability Services Act provides for an Ethics Committee to

monitor programs and services in respect to aversive, restrictive and

intrusive treatment practices. This Bill proposes disbanding the Ethics

Committee, replacing it with a more appropriate suit of initiatives. This

will include establishing a Senior Practitioner, who will become the first

point of contact for matters relating to restrictive practices. The Senior

Practitioner will provide advice on requests for the approval of

proposed restrictive practices, and have the authority to investigate the

any inappropriate use of restrictive practice.

Currently the Ethics Committee has two main functions being:

and intrusive treatment practices; and

such programs or services or in relation to specific treatment

practices.

Under the current Departmental processes referral to the Ethics

Committee is required for funded service providers to proceed with

restrictive or intrusive practices.

There has been concern expressed as to whether the current legislation

adequately provides for the Ethics Committee to determine whether

individual behaviour management plans developed by funded service

providers, which include the use of restrictive and intrusive practices are

appropriate.

The Ethics Committee has provided advice that the current legislation is

insufficient to protect clients from inappropriate practices, and that the

Committee should be replaced with a structure that better meets the

needs of the sector. This view was widely supported throughout the

consultation process.

This Bill replaces the Ethics Committee with:

intervention be considered, appropriate approvals must be

in place,

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rest with either the Secretary of the Department for Health

and Human Services or the Guardianship and

Administration Board

responsibility assess and provide advice on requests for

approval;

providers on alternative behaviour management strategies;

funded services and,

framework.

Mr Speaker both the Ethics Committee and the President of the

Guardianship and Administration Board have expressed support for the

proposed arrangements outlined in this Bill.

Mr Speaker the establishment of the position of Senior Practitioner is an

important initiative within this Bill. This position will have responsibility

to provide a broad range of services that will contribute to the

reduction and, where appropriate, the elimination of restrictive

practices. This will include providing education and information on the

use of behaviour management techniques and on the rights of people

with disability that may be subject to the use of restrictive interventions.

The Senior Practitioner will also provide advice to the Secretary and the

Guardianship and Administration Board to inform their decisions on

whether to approve requests for the use of restrictive interventions.

This Bill establishes that the unauthorised use of restrictive interventions

is prohibited. Penalties of up to 200 units may be imposed for breaches

of this requirement. The Senior Practitioner will have authority to

investigate where there are reasonable grounds to believe that an

inappropriate restrictive intervention is being undertaken.

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Mr Speaker two pathways for the approval of restrictive interventions

are provided. The Secretary of the Department for Health and Human

Services approves environmental restrictions. An example of this may be

placing a lock on a fridge.

The Guardianship and Administration Board will have responsibility to

consider applications for restrictive interventions that involve personal

restrictions. Personal restrictions may include physical contact or an

action that restricts the liberty of movement of a person. The Board can

also approve environmental restrictions.

Where a person with disability, a disability provider or a funded private

person is dissatisfied with a decision by either the Secretary or the

Guardianship and Administration Board they may seek a review of the

decision by the Magistrates Court.

Mr Speaker the approval of any restrictive practice will not be taken

lightly. The Secretary may only grant an approval after they have

consulted with the person that the intervention will apply to; any person

with expertise in the carrying out of restrictive interventions of that type

and the senior practitioner. The Secretary must also be satisfied that the

restriction will be carried out to ensure the safety of the person or

others; that the intervention is the least restrictive as is practicable in

the circumstances and that the intervention is in the best interest of the

person with disability.

An approval by the Secretary expires 90 days after it is granted.

Similar requirements are established for the Guardianship and

Administration Board. Approval by the Board expires 90 days after it is

granted, unless the approval was granted at the conclusion of a Hearing,

in which case it may be in place for up to 6 months.

Mr Speaker, there are many provisions within this Bill which provides

authority to make decisions of great importance to individual lives.

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People with disability have access to a number of independent

complaints and dispute resolution bodies available to Tasmanians to

protect their rights. However through the development of this Bill it

became clear that there are a number of areas where additional review

processes are required. This Bill identifies a number of circumstances

where a person with disability, a disability services provider or a funded

private person may seek to have a decision taken by the Secretary

reviewed through the Administrative Appeals Division of the Magistrates

Court. This includes decisions to approve or not approve individual

plans, decisions to approve or not approve restrictive interventions.

The provision of support services often involves a broad range of people

across a number of disciplines working together. This can be difficult for

people with disability and their families to navigate. The individual plans

are intended to provide a way to document and coordinate the broad

range of services that may be required to adequately support a person

with disability. This Bill establishes a requirement that the Secretary will

take reasonable steps to assist in the effective coordination of support

services including health and psychiatric services, specialist education

services and other specialist assistance provided by both the Tasmanian

and Australian Government.

The coordination of services also requires effective communication

between those working together to provide support whilst maintaining

rights to privacy and the inherent dignity of the person with disability. .

This Bill limits the right to share information to circumstances where the

information is necessary or desirable for the assessment of need, to

determine whether services provided are appropriate, and for the safety

and welfare and wellbeing of the person or other persons. Wherever

possible this is to be with the consent of the person with disability to

whom the information relates.

I commend the Bill to the House.