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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
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DISABILITY SERVICES (RIGHTS, PROTECTION AND INCLUSION) AMENDMENT BILL

Committee Stage

In committee.

(Continued from 12 November 2013.)

New clause 3A.

The Hon. K.L. VINCENT: I move:

Amendment No 1 [Vincent–2]—

Page 3, after line 1—Before clause 4 insert:

3A—Insertion of heading

Before section 1 insert:

Part 1—Preliminary

Members are probably well aware of the intent of this amendment, given my explanation last evening and an explanatory email that went out to them last night. The version of this amendment that we have before us is a slightly amended one, given that parliamentary counsel thankfully picked up on a small administrative oversight last night that would have led to a report having to be tabled by the minister one clear day after being received. I agree that this is unworkable in many instances and so it now reads that the report must be tabled as soon as possible. That is the only change to this amendment.

Members are aware that the intent of the amendment is to clearly legislate the role of the senior practitioner so that their powers and objectives are clearly defined in legislation. It is my understanding that all other jurisdictions in Australia which have a senior practitioner have that role mandated in legislation, and I believe that we must afford the same protection to our senior practitioner.

The amendment defines the powers of the practitioner, defines when they are to table reports, but also importantly defines the types of restraint that they are to have jurisdiction over, including chemical restraint, meaning the administration of a chemical substance to a person for the primary purpose of subduing or controlling the behaviour of that person.

It is my understanding, from consulting with doctors on this issue, that this is a very common practice, where a person, particularly living in an institutional setting, will be brought to a doctor and have their support worker or other person say, 'Oh, their behaviour is escalating, they clearly need another dose of their medication', when in fact the person may be non-verbal, for example, and simply trying to express that they have a toothache.

To my mind it is completely unacceptable that we have people doped up to the eyeballs to subdue behaviours that are considered challenging when they could just as easily be managed with a more appropriate behaviour management plan. For example, a person might be taken for a walk if they begin to become agitated. It is really about challenging some of those ingrained thinking patterns in service provision.

It also deals with compulsory treatment, of course very important, since this bill seeks to move disability services into a human rights framework. It is important that we deal very clearly with the issue of compulsory treatment. 'Mechanical restraint', meaning the use of any object or device for the primary purpose of restricting the free movement of a person, does not include the use of objects or devices for therapeutic purposes or to enable safe transportation of that person.

We are not talking about a seat belt in a car here—we are talking about the mechanical restraint such as tying a person's hand behind their back, or indeed a very pertinent example I have been given from professionals in this field, where service providers may put a person or a client in an armchair, for example, which the service provider is well aware that the person cannot get out of independently, as a way of managing that person's movement. So, physical and mechanical restraint are dealt with in that manner.

Broadly speaking, a 'restrictive intervention' means any intervention used to restrict the rights or freedom of movement of people with a disability, including restraint, as mentioned before, seclusion and segregation. As I said last night and for the past few weeks, I do believe it is very important that we have these definitions and the powers of the practitioner in legislation, because it is what is happening in other jurisdictions and because I do not want to see a case where a lack of a legislated role enables overzealousness or inaction.

We want a clearly defined role so that every person coming in and out of that role over time has the same mandate. If that mandate needs to be changed over time to add more definitions of restraint, and so on, then so be it—that is a duty of the parliament of that day, but I do not think that silence is acceptable on this issue in the meantime. I encourage all members to support this sensible amendment.

The Hon. I.K. HUNTER: I thank the honourable member for her amendments and indicate that the government will not support them. I will take a brief moment to explain why. The Hon. Ms Vincent has three amendments, I understand. The first two, I think, are technical and work is being done on the third part. I will speak to the whole of her structure.

In August this year the Hon. Tony Piccolo, Minister for Disabilities, announced the appointment of a senior practitioner for an initial 12-month period to provide an opportunity to assess the impact of the role and engage the response of the broader disability sector and disability advocates. The South Australian senior practitioner role is a focus on the provision of advice and guidance in the sector around the rights of people with disability, with a particular focus on restrictive practices.

In addition to this important advisory role, our senior practitioner will contribute to policy and guidelines in relation to restrictive practices and other and other safeguarding issues. The Hon. Kelly Vincent's amendments are, I am advised, almost a verbatim cope of part 3, division 5, of the Victorian Disability Act 2006. In comparison with the South Australian SA Disability Services Act 1993, the Victorian act is extremely detailed and long, with 10 parts over 243 pages.

There is an act that sets out not only the terms of office and powers of various positions, including the Victorian senior practitioner, but also detailed instructions about the rules, boundaries, expectations, appeal rights of every office holder, etc., board and programmatic instrument in the act. What this means is that those who are impacted by the functions and powers of office holders are clear about what rules there are that they must follow.

In the case of the senior practitioner, the Victorian legislation deals over several parts and literally dozens of sections with the rules for disability service providers and residential facilities, to conduct themselves in order to comply with the rules that the senior practitioner monitors. Part 7 of the act provides incredibly detailed instructions on restrictive interventions and part 8 deals with compulsory treatment—there are six incredibly detailed provisions. Importantly, the Victorian legislation provides their senior practitioner with significant powers within the context of important checks and balances. Not only are the rules laid out clearly, but there are also clear mechanisms for appeal and review of decision-making.

By taking one component of Victorian legislation, as the Hon. Ms Vincent is arguing, without the entire web that makes it a fair, reasoned, transparent and accountable measure, has the potential to create a range of perverse outcomes. Where the important checks, balances and safeguards do not exist for statutory positions holding significant powers, as proposed in the amendments, there is always the risk of poor decision-making and a lack of trust in the system by the community.

The Victorian Senior Practitioner has a policing, judgement and fine-imposing role. In South Australia we are seeking an advisory function. We do not have the scale of disability restrictive practices context as has existed in Victoria. We have a sector that shows itself to be keen to pursue good practice and person-centred approaches.

The government wants to encourage the sector to seek the advice and guidance of a senior practitioner. We do not want to create a whole new bureaucracy around a senior practitioner so that a new policing, judgement and fining regime can spring up. In South Australia we would rather direct resources to early intervention, creating inclusive and accessible services, fostering person-centred approaches and helping people to do the right thing.

The Hon. Kelly Vincent is no doubt aware that Victoria's act was the product of a long and comprehensive consultation process. Its act is reflective of the express wishes of the Victorian disability community. In South Australia we have also undertaken a long consultation process over several years through the former social inclusion board and then the Department for Communities and Social Inclusion. More recently, minister Piccolo has undertaken further community consultation in relation to SA's disability legislation.

The social inclusion board's Strong Voices report did not recommend a senior practitioner. It actually recommended against such a position, noting the existing roles of the Public Advocate and the Health and Community Services Complaints Commissioner. There has never been a strong call for a senior practitioner in South Australia's consultations, I am advised. In the most recent ministerial consultation process, which determined the final form of the amendment bill that we are debating, the issue of a senior practitioner was not strongly argued for. Indeed, it was minister Piccolo who made the announcement of the position as an additional safeguarding initiative.

The most important flaw in the amendments we argue, proposed by the Hon. Kelly Vincent, is the complete lack of detail and context proposed for the senior practitioner and the regime that the position would be required to implement. That is a very dangerous proposition indeed, in our view. It is a position that none of us should be supporting.

In essence, whilst we do not disagree with the Hon. Kelly Vincent and what she is intending to do, we say these things: the context has not been picked up on from Victoria appropriately—a small part of Victoria's legislation is being pulled across in this amendment. This was not consulted on in terms of the South Australian community consultation process and we argue that it is not necessary because we already have statutory authorities—the Health and Community Services Complaints Commissioner, the Public Advocate, the principal community visitor and the Equal Opportunity Commissioner—who are all available to be appealed to in various circumstances. We argue strongly that the amendments should not be agreed to.

The Hon. R.I. LUCAS: I rise to indicate that the shadow minister for disabilities, the member for Morphett, either this morning or late last evening (probably this morning), has had a discussion with Mr Bruggemann to discuss the issue of legislation or not, and related issues. The member for Morphett advises me that Mr Bruggemann indicated that the Western Australian Senior Practitioner does not have legislation, but clearly there are, as I understand from what the Hon. Ms Vincent said, other jurisdictions which do. The minister has referred to the Victorian legislative experience to indicate that that is one.

I must admit that I have not had a chance to have a discussion with the member for Morphett, other than receiving the email from him just before we met this morning. His summary of the discussion he had with Mr Bruggemann includes the following, 'The Victorian Senior Practitioner has set aside his powers under the legislation to see how it goes.' I am not sure what that actually means, and I have not had a chance to discuss with the member for Morphett what Mr Bruggemann meant by that. I will certainly ask a question of the minister in a moment to see whether his learned adviser might be able to interpret that phrase for us.

Putting that to the side, clearly there are differing arrangements in other jurisdictions, and from the Liberal Party's viewpoint I think it is fair to say that on many things we are a broad church. There are some within our party who are interested to look at the notion of legislative backing for the position; there are others who believe that it is not required.

We are in the fortunate position in South Australia that we will be able to look not only at our South Australian experience but also at the experience of other jurisdictions which differ, as I understand it. Western Australia does not have legislative backing, so we are informed, and Victoria evidently does; from what the Hon. Ms Vincent says, perhaps there are other jurisdictions that do as well.

Our position, as advised by the member for Morphett, will be that we will not support the amendments being moved at this stage, but if elected in March 2012 we will review the position in 12 months' time to consider this issue again.

The CHAIR: It is 2014.

The Hon. R.I. LUCAS: What did I say?

The CHAIR: You said 2012.

The Hon. R.I. LUCAS: Did I? I am only two years behind. I am gently reminded by the Chair that it is March 2014; 12 months after that, if we are elected, we will review the position in relation to the experience in South Australia and in the other jurisdictions, as I said, some of which, I am informed, do have legislative backing and some of which do not.

We, as a party, are not locking ourselves into a position one way or another permanently on this particular issue. There will be the opportunity, should we be elected in March 2014, for all those views—those differing views not only within our party room but also amongst stakeholders, I would imagine, in terms of an appropriate course of action—to be put and, as I said, if elected, for us to consider a position after that particular review.

The Hon. D.G.E. HOOD: I do not normally speak when both opposition and government are of the same view on a particular amendment or bill, but on this particular one I will speak briefly just to register Family First's support for the amendment. We will support it on this occasion, although it looks like it will be defeated today; however, should it reappear at some future time, we would be likely to support it then as well.

The Hon. J.A. DARLEY: I rise very briefly to indicate my support for the Hon. Kelly Vincent's amendments and to commend her for her work on this issue. I understand the amendments are modelled on the provisions of the Victorian and Queensland legislation. In Victoria, the Senior Practitioner is generally responsible for ensuring that the rights of people who are subject to restrictive interventions and compulsory treatment are protected and that appropriate standards are complied with in relation to restrictive interventions and compulsory treatment.

The Senior Practitioner also has extensive powers to set standards and guidelines and to monitor and direct disability service providers in relation to the use of restrictive interventions and compulsory treatment. Such a proposal ought to be welcomed in this jurisdiction also. It is very fitting that the amendments be considered in the context of this debate, given that the bill before us relates directly to the promotion of the rights of people with disabilities and ensuring they are able to exercise greater choice and control over their lives.

The annual report of the Senior Practitioner in Victoria tends to suggest that some progress is being made in that jurisdiction in terms of alternative ways of supporting people with disabilities and assisting service providers in providing ways to reduce their use of restrictive interventions. At the very least, the legislation appears to enable the Senior Practitioner to implement standards and guidelines which service providers and medically trained people are required to follow.

This raises the question of exactly how is it that restrictive interventions are monitored in this state at present? I understand from the Hon. Kelly Vincent that the government has, on an informal basis, introduced a senior practitioner in this jurisdiction, with some resourcing attached. My questions are: what powers, if any, does that person have in terms of compliance and enforcement in this jurisdiction, and how can they perform their role effectively if their role is not enshrined in legislation?

The Hon. T.A. FRANKS: I rise on behalf of the Greens to indicate that we too will be supporting the amendment put forward by Dignity for Disability for the reasons put forward so far by other members of the crossbench.

The Hon. R.I. LUCAS: I have a question for the minister, albeit indirectly. I am just wondering whether the minister, through his learned adviser, can throw any light on the advice that the member for Morphett received?

The Hon. I.K. HUNTER: My apologies; I thought the honourable member indicated that he would be asking me that at a later stage. However, yes, I can. My advice is that the Senior Practitioner in Victoria has advised various people—I understand it is public knowledge—that he does not want to be using his enforcing powers. So, in reference to the phrase the Hon. Mr Lucas used about setting aside his powers, he sees them as not being desirable; rather, I understand, he has indicated that he wants to work with the sector in a way that our senior practitioner here wishes to. I am also advised, tangentially, that the preference of the senior practitioner in South Australia, Mr Bruggemann, is not to have legislative powers. As I understand it he sees his role as working and encouraging the sector towards the goals that we set as a community and as a government.

The Hon. Mr Darley mentioned the Victorian situation, which seems to be improving somewhat. I would say to him 'Yes, and those improvements can all be done without legislative powers for a senior practitioner.' In fact, the situation is that the Senior Practitioner in Victoria is doing just that and setting aside, as the Hon. Mr Lucas said, his enforcing powers, not wanting to use them.

In terms of the question asked, I think, by the Hon. Mr Darley, of course the senior practitioner will use his moral authority in reporting to the agency in case of problems, and requiring them to be fixed, but, as I mentioned earlier, he can also refer situations to any of the statutory officers I mentioned to address the problem.

The Hon. S.G. WADE: My questions are, if you like, supplementary to the questions asked by the Hon. Mr Darley. In terms of supporting the authority of the senior practitioner in South Australia without legislation, has the government taken any action, or is it considering taking any action, to issue policies and guidelines for Public Service providers of disability services in relation to their relationship to the senior practitioner, and does it intend to insert, or has it inserted, any provisions in relation to service agreements with non-government service providers in terms of their relationship with the senior practitioner?

The Hon. I.K. HUNTER: I guess we will be. We do have restrictive practices policies and we will be revisiting those in light of the senior practitioner's guidance and adjusting them accordingly. I am also advised that the sector is, in fact, positively embracing the senior practitioner in his role. Rather than him having an issue trying to get access to different organisations, they are actually inviting him out to assist them in adjusting their own practices and policies.

The Hon. S.G. WADE: I was also wondering if the minister or his advisers were aware, considering that Western Australia is a non-legislated senior practitioner model, whether there are any other elements of the model in Western Australia that are used to support the role of the senior practitioner that we could consider adopting here?

The Hon. I.K. HUNTER: The answer is that, no, we do not have access to the details of the Western Australian model at that level with us now, but certainly we could expect that the agency would be looking at them.

The Hon. K.L. VINCENT: Just to sum up briefly, suffice to say that I am disappointed that my amendments will not be passing today. I would like to thank all crossbench members, in particular, for their support.

I am happy to continue to work on this issue with governments and parliaments, current and future, to ensure that the senior practitioner has appropriate powers and protection. However, I hasten to add also that the minister mentions the Health and Community Services Complaints Commissioner as a possible avenue for dealing with some of these issues. It would be remiss of me not to flag that not only was our previous commissioner, Leena Sudano, quite open about the fact that, due to a lack of resources, she felt she could not do her job as efficiently and as effectively as she would have liked to, but we now have Mr Tully who, to the best of my knowledge, is working reduced hours due to lack of resourcing.

So, I do not think that we can say that the HCSCC is quite ready to pick up the slack in these areas when it is clearly not dealing as effectively as it might like to with some of the jurisdictions that, in fact, it does have a mandate over. I guess that is an issue I would flag; that is, that before we expect these jurisdictions to pick up the slack, we need to make sure that they are properly resourced themselves.

New clause negatived.

The CHAIR: The Hon. Ms Vincent, you have two related amendments?

The Hon. K.L. VINCENT: Yes. I am happy to follow the view of the committee, but I am happy to regard those as consequential. I cannot see any reason why not.

Remaining clauses (4 to 13) and title passed.

Bill reported without amendment.

Third Reading

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Aboriginal Affairs and Reconciliation) (11:28): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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