National Disability Insurance Scheme
The National Disability Insurance Scheme (NDIS) is the most significant social welfare initiative of this generation. The NDIS signals a shift in the way people with permanent and significant disability access reasonable and necessary care and support in order to achieve their goals and aspirations.
OPA welcomes the introduction of the NDIS as a social insurance scheme to provide long-term care and support to people with disabilities. OPA remains concerned about how the consumer choice philosophy, which underpins the scheme, operates for people with cognitive impairments or mental ill health.
OPA believes choice and control is best enabled through access to advocacy, the availability of supported decision making to enhance legal agency, and continued use of substitute decision making arrangements, where necessary.
Areas of action
OPA has been involved in NDIS matters at both an individual and systemic level, and each informs the other. All of OPA's program areas have been directly involved in different aspects of the NDIS since its commencement in the Barwon trial site in Victoria in July 2013.
OPA has a direct role in supporting people in Barwon for whom it is guardian or advocate to make decisions that are in their best interests about services and supports they wish to access through the NDIS. OPA has a further role in identifying systemic administrative, legislative and policy issues that may place people with disability at greater risk of violence, abuse and neglect.
The trial is demonstrating the need for greater clarity about the various overlapping powers and different appointment processes for substitute decision-makers under federal, state and territory laws. For example, the Public Advocate must be guardian (with relevant powers) of the participant or prospective participant in order to accept appointment as 'plan nominee'.
OPA believes there are less restrictive alternatives to resolving matters than by appointing guardians, including the important role of independent advocates. This has broader implications for the role of substitute decision-making, supported decision-making and advocacy within the NDIS. Usage of the NDIS nominee provisions needs to be closely monitored and evaluated. OPA has prepared a report on this matter, Guardianship and the National Disability Insurance Scheme.
OPA has produced a guide to assist the National Disability Insurance Agency (NDIA) to determine when decision-making support, advocacy, and substitute decision making is needed for current and prospective adult NDIS participants who have significant cognitive impairments or mental ill health. Developed in consultation with the NDIA Victoria Trial Site, the guide seeks to navigate the complexities that exist in relation to current Victorian and Commonwealth laws.
OPA advocates for transition to a quality and safeguarding framework that is guided by a human rights approach to protection and service delivery.
The development of nationally consistent monitoring mechanisms of the NDIS on a number of program levels is important to achieve this.
OPA, in consultation with other state and territory members, prepared the Australian Guardianship and Administration Council’s (AGAC) submission to the Proposal for a National Disability Insurance Scheme Quality and Safeguarding framework consultation paper.
In the submission, AGAC argued that application of a consumer choice model creates difficulties for people with cognitive impairment that should not be underestimated. The submission highlighted the practical challenges faced by people with cognitive impairment, particularly where there is a lack of informal supports available to assist them.
AGAC proposed the following principles as crucial to the development of the framework, and to guide any evaluation of outcomes in the future. These principles are shaped by the rights enshrined in the Convention on the Rights of Persons with Disabilities:
- protection from violence, abuse, neglect and exploitation
- choice and control
- complaints resolution
- reduction and elimination of the use of restrictive practices.
The submission made 17 recommendations in response to the consultation paper, addressing the following areas:
- substitute and supported decision-making
- Community Visitors
- Disability Worker Exclusion Scheme
- restrictive practices.
OPA’s own submission to the Proposal for a NDIS Quality and Safeguarding framework consultation paper endorsed the recommendations contained in the AGAC submission. OPA’s submission promoted the role of the Community Visitors Program and the legislative framework regulating the use of restrictive practices in Victoria as important human rights safeguards for people with disability.
OPA is concerned that reduced protections and deregulation in this sector will place people with disability at greater risk of violence, abuse, neglect and exploitation.
Earlier work undertaken by OPA in the lead up to the launch of the NDIS trial sites included various submissions on a range of NDIS-related matters, including submissions to the Productivity Commission’s Inquiry into Disability Care and Support (2011), the NDIS Bill 2012, and NDIS Rules Consultation Paper (2013). OPA also made a submission to the independent review of the NDIS Act in 2015.
In the submission to the Productivity Commission’s inquiry, OPA welcomed the introduction of a scheme that acts as a no-fault social insurance scheme to provide long-term care and support to people with disabilities.
The submission raised concerns about replacing the current system of disability services with a scheme that is wholly individually determined. The submission also highlighted the importance and need for independent support and advocacy for people with disabilities to ensure that needs are being met if the scheme is introduced.
OPA’s submission to the NDIS Bill recommended that the NDIS legislation more fully adopt the principles articulated in the Convention on the Rights of Persons with Disabilities. The submission expressed OPA’s strong support for the continuation of Community Visitors schemes and noted the Productivity Commission’s support and reference to the Victorian Community Visitors as a desirable model to replicate in jurisdictions where schemes don't operate.
OPA’s submission to the NDIS Rules consultation paper raised concerns in relation to nominees under the NDIS Act and NDIS Rules and their power to be substitute decision-makers. The submission recommended the NDIS Rules contain a stronger statement about the ability of participants to appoint their own nominees; a clear process by which nominee appointments can be challenged; and greater recognition of state and territory substitute decision-making appointments.
The recent independent review of the NDIS Act provided an opportunity for OPA to contribute meaningfully to reform in this changing disability service environment. Recommendations focus on supported and substitute decision-making within the NDIS and address matters in relation to interaction with state and territory guardianship laws. The submission makes recommendations about improvements to better support the objects and principles of the NDIS Act.