What should a ‘nationally consistent risk-based quality assurance approach’ involve?

Presentation to National Disability Summit, Melbourne, 18 March 2014

John Chesterman, Manager of Policy and Education

Introduction

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.

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

Introduction

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

• 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)

Introduction

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 Act, section 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.’

Introduction

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?

Introduction

•  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.

What should a ‘nationally consistent risk-based quality assurance approach’ involve?

1.  Prioritising personal choice – including support for people who need it 2.  Clear complaints mechanism 3.  Advocacy support 4.  On-site monitoring 5.  Investigation of situations of concern

1. Prioritising personal choice

•  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.

1. Prioritising personal choice

• 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 Act to supported decision making » e.g. section 80(4) of the Act suggests the Rules may require nominees

‘to support decision-making by the participant personally’. » The NDIS (Nominee) Rules provide that appointments of nominees

should occur ‘only when it is not possible for participants to be assisted to make decisions for themselves’.

Convention on the Rights of Persons with Disabilities

UN Committee on the Rights of Persons with Disabilities, advance unedited concluding observations on Australia, 4 October 2013 (par. 25):

‘The Committee recommends that [Australia] uses effectively the current [Australian Law Reform Commission] inquiry process to take immediate steps to replace substitute decision-making with supported decision-making and provides a wide range of measures which respect the person’s autonomy, will and preferences and is in full conformity with article 12 of the Convention …’

Australian Law Reform Commission inquiry

‘Equal recognition before the law and legal capacity for people with disability’

This is examining ‘all relevant Commonwealth laws and legal frameworks that either directly, or indirectly, impact on the recognition of people with disability before the law and their exercise of legal capacity on an equal basis with others’.

Final report due August 2014.

Australian supported decision-making developments

•  South Australian Supported Decision-Making Trial (from 2010) •  A range of other state/territory initiatives:

» ACT » NSW

•  Academic work » inc. Jo Watson, Lucy Knox, Chris Bigby, Paul Ramcharan, Michelle

Browning • Dept. Human Services (Vic) Supporting Decision Making guide (2012) •  Australian Supported Decision-Making Network (March 2013, next meeting 7

April 2014) • OPA Conference ‘Supported decision making: From theory to practice’

(October 2013)

OPA (Vic)’s new project

OPA won a grant from the Victoria Law Foundation to run a pilot volunteer supported decision-making program.

The program (beginning in April 2014) involves non-financial decision making and will connect isolated people with cognitive impairments with volunteer supporters.

2. Complaints

The NDIS Act provides for decisions to be appealed to the AAT.

When it comes to complaints, for now the state and territory complaints mechanisms prevail (e.g. in Victoria the Disability Services Commissioner is the key complaints authority).

2. Complaints: key questions

• Will a new national complaints mechanism be created?

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 Community Affairs Legislation Committee, 2013, p. 11.

• How will people be supported and encouraged to complain? Note the success of the Victorian Disability Services Commissioner’s ‘It’s OK

to complain’ core message.

3. Advocacy

Access to advocacy support will be increasingly important as: •  individuals will retain greater control over decision making and •  some will require assistance to negotiate an ever-more complex service

system.

4. On-site monitoring

General monitoring principles

•  We need to recognise that the usual market protection mechanisms (including 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 NDIS Act does not incorporate a specific monitoring function for any entity, though it does establish an Independent Advisory Council. The Council’s functions (section 144) encapsulate some generic monitoring roles, but specifically do not, for instance, extend to advice on individual matters.

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

4. On-site monitoring

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 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

4. On-site monitoring

•  Earlier point – until nationally consistent approach is developed, the state and territory-based regulatory systems apply. Here in Victoria, that includes Community Visitors.

•  Important for the pilot/launch sites 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.

4. On-site monitoring

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’ (which CVs visit) is defined as 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.

4. On-site monitoring

•  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.

5. Investigating situations of concern

Ensure a statutory authority has power to investigate situations of concern. This is probably best organised at the state/territory level.

Who should investigate situations of concern (including allegations of wrongdoing and instances of neglect)?

In Victoria the Office of the Public Advocate is the best placed to do this.

Victorian Law Reform Commission Guardianship Final Report (2012)

Responding to abuse

Recommendation 328. ‘… the Public Advocate should have the function of receiving and investigating complaints in relation to: (a) the abuse, neglect or exploitation of people with impaired decision‑making ability …’

Recommendation 329. ‘ … where the Public Advocate believes that an investigation is warranted she should be able to conduct an investigation on her own motion …’

Enhanced powers for OPA would include the ability to obtain warrants to inspect private premises.

5. Investigating situations of concern

Recommendation 2. ‘The Victorian parliament should grant the Public Advocate the broader investigation power as recommended by the Victorian Law Reform Commission. This would enable the Office of the Public Advocate to investigate (following a complaint or on its own motion) “the abuse, neglect or exploitation of people with impaired decision-making ability”’.

John Chesterman, ‘Responding to violence, abuse, exploitation and neglect: Improving our protection of at-risk adults’, Churchill Fellowship report, 2013.

Washington State

Nova Scotia, Canada

Scotland: example of local authority approach

Scotland ‘Act against harm’ campaign

Conclusion

What should a ‘nationally consistent risk-based quality assurance approach’ involve?

•  Prioritising personal choice – including support for people who need it •  Clear complaints mechanism •  Advocacy support •  On-site monitoring •  Investigation of situations of concern

Thank you