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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-03-04 Daily Xml
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Disability Inclusion (Restrictive Practices - NDIS) Amendment Bill

Introduction and First Reading

The Hon. J.M.A. LENSINK (Minister for Human Services) (15:49): Obtained leave and introduced a bill for an act to amend the Disability Inclusion Act 2018. Read a first time.

Second Reading

The Hon. J.M.A. LENSINK (Minister for Human Services) (15:51): I move:

That this bill be now read a second time.

The Disability Inclusion (Restrictive Practices—NDIS) Amendment Bill aims to protect and improve the rights of South Australians with disability under the National Disability Insurance Scheme (NDIS) who may be subject to the use of restrictive practices. It creates a new regime for the authorisation of the use of restrictive practices under the NDIS and supplements the existing legislative framework for NDIS participants.

All governments have been working with the NDIS Quality and Safeguards Commission to develop a regulatory framework in relation to restrictive practices in line with the National Disability Insurance Scheme Act 2013 of the commonwealth (NDIS Act) and the national principles for restrictive practices authorisation—the shorthand is national principles—that were supported at the disability ministers' meeting on 24 July 2020 as a key milestone in the path to national consistency. Other jurisdictions have enacted new legislation that complements the requirements of the NDIS Act and aligns with the national principles.

In South Australia, restrictive practices are currently regulated by a range of legislation including the Mental Health Act 2009, the South Australian Civil and Administrative Tribunal Act 2013, the Advance Care Directives Act 2013, the Consent to Medical Treatment and Palliative Care Act 1995 and the Guardianship and Administration Act 1993. A preliminary assessment of the national principles indicates that there are gaps in our current system.

The bill establishes a more simplified framework and will provide appropriate safeguards against unlawful use of restrictive practices. Under the existing legislative framework, South Australia uses a guardianship model to regulate restrictive practices, which gives a guardian the power to consent to restrictive practices, unless there is use of force or detention, in which case additional powers must be approved through application to the South Australian Civil and Administrative Tribunal (SACAT).

The introduction of the NDIS has resulted in an increase in the number of applications for guardianship orders, which will be avoided by implementing an appropriate authorisation regime for restrictive practices, as outlined by this legislation. There is also currently limited ability to legally review practices that have the potential to infringe the human rights of people and have insufficient safeguards against unlawful use of restrictive practices and inappropriate decision-making.

The authorisation process for the use of restrictive practices for NDIS participants in South Australia outlined in the bill addresses these complexities and limitations. It also supports the government's commitment to people with disability to reduce and eliminate the use of restrictive practices and, where required, supports the use of appropriately measured and ethical practices. An authorisation process outlined in legislation provides the strongest safeguard to people with disability and can ensure any restrictive intervention can only be used:

as a last resort;

when there is a risk of harm to the person or others;

if the use is the least restrictive way of ensuring the safety of the person or others;

when the use is in accordance with an NDIS behaviour support plan; and

when its use is not prohibited.

The bill will amend the Disability Inclusion Act 2018 to regulate the authorisation of the use of restrictive practice for participants in the NDIS and provides an operational structure for the new role of the senior authorising officer.

The bill aims to create a more streamlined risk-based authorisation process for South Australia. It enables a graduated level of authorisation in line with the level of risk or intrusiveness a restrictive practice or collection of restrictive practices impose on a person. However, it is also flexible enough to allow service providers to fulfil their duty of care to their staff and ensure that the participant is not at risk of harm to themselves and others.

It also enables smaller service providers to seek authorisation from the senior authorising officer for lower risk restrictive practices where they are unable to engage a person with the requisite skills and experience to authorise restrictive practices in their organisation. In summary, the purpose of this bill is to, first, provide for the regulation of restrictive practices for participants of the NDIS. Secondly, create the new role of the senior authorising officer to:

authorise specified persons in prescribed NDIS providers to authorise the use of specific lower risk restrictive practices, which will be classed as level 1 practices;

authorise, if required, lower risk or higher risk (level 2) practices, or both;

provisions for revocation of the authorisation of restrictive practices, and vary in certain circumstances;

assist the minister to produce and disseminate restrictive practices guidelines;

build sector capacity through education and training on restrictive practices and improve awareness to minimise the use of restrictive practices for the disability sector; and

review and regulate the authorisation of restrictive practices.

Thirdly, it is to provide for the review of decisions, and fourthly, capture and record the authorisation of restrictive practices that are deemed to be necessary and necessary information gathering and sharing provisions.

Without appropriate legislative intervention there are risks that restrictive practices will continue to be used without authorisation and consideration of the person's behaviour support plan. The consequence is risk of significant harm to people with disability from the unnecessary use of restrictive practices. NDIS service providers are also at risk in the absence of an appropriate authorising framework. In the long term, quality supports underpinned by a comprehensive safeguarding process will better support the reduction.

The bill will allow the protection of the most vulnerable people in South Australia and prevent harm from the unnecessary use of restrictive practices. It will also enable South Australia to meet the national principles, where there is a streamlined authorisation process covering all NDIS participants and it is enshrined in legislation. It is important that this legislation is not delayed to support the safeguarding of people with disability. I commend the bill to members and seek leave to insert the explanation of clauses in Hansard without my reading it.

EXPLANATION OF CLAUSES

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Disability Inclusion Act 2018

4—Amendment of section 3—Interpretation

This clause amends section 3 of the principal Act to insert a definition of the SACAT.

5—Insertion of Part 6A

This clause inserts new Part 6A into the principal Act as follows:

Part 6A—Restrictive practices

Division 1—Preliminary

23A—Application of Part

This section sets out the person, NDIS providers and uses of restrictive practices to which the new Part applies.

23B—Interpretation

This section defines terms and phrases used in the new Part.

23C—Meaning of detention

This section defines the meaning of detention when used in the new Part.

23D—Prohibited restrictive practices

This section is a regulation making power allowing the regulations to prohibit the use of certain kinds of restrictive practice.

23E—Limits on kinds of restrictive practices that may be used by person

This section clarifies that the new Part does not authorise a person to use a restrictive practice of a particular kind if they are prevented from doing so by a condition imposed on an authorisation under the new Part, or do not hold any other authority that may be required under another Act to use the practice.

23F—Interaction with other Acts and laws

This section sets out the relationship between the new Part and various existing Acts and laws.

23G—Principles

This section sets out principles that must be observed in relation to the operation of the new Part.

23H—Minister to publish restrictive practices guidelines

This section requires the Minister to publish guidelines for the purposes of the new Part. The section makes procedural provision in relation to the preparation etc guidelines, and requires the Minister to lay the guidelines before Parliament and publish them on a website.

Division 2—Senior Authorising Officer

23I—Senior Authorising Officer

This section enables the appointment of a Senior Authorising Officer, who is to be a Public Servant.

23J—Functions of Senior Authorising Officer

This section sets out the functions of the Senior Authorising Officer under the new Part.

23K—Power of delegation

This section is a standard power of delegation.

Division 3—Authorised Program Officers

23L—Authorised Program Officers in respect of prescribed NDIS providers

This section enables the Senior Authorising Officer to authorise a person as an Authorised Program Officer in respect of a particular NDIS provider. That authorisation must comply with requirements to be set out in the regulations. The Senior Authorising Officer may revoke such an authorisation for any reason the Senior Authorising Officer thinks fit.

Division 4—Use of restrictive practices other than those involving detention

23M—General provisions relating to use of restrictive practices

This section makes provisions of general application to the use of restrictive practices under the new Part, clarifying the specified aspects relating to such use.

23N—Authorised Program Officer may authorise use of level 1 restrictive practices

This section provides that an Authorised Program Officer for a particular NDIS provider can authorise the use of level 1 restrictive practices (as defined) by the NDIS provider. The authorisation may only occur in the specified circumstances and must comply with the section, the regulations and the restrictive practices guidelines. The section also makes procedural provision relating to the use of such restrictive practices by the NDIS provider.

23O—Authorisation of use of level 1 or 2 restrictive practices by Senior Authorising Officer

This section enables the Senior Authorising Officer to authorise the use of level 1 or 2 restrictive practices (as defined) by a particular NDIS provider. The authorisation may only occur in the specified circumstances and must comply with the section, the regulations and the restrictive practices guidelines. The section also makes procedural provision relating to the use of such restrictive practices by the NDIS provider.

23P—Revocation of authorisation to use restrictive practices

This section provides that the Senior Authorising Officer may revoke an authorisation under the specified sections if the Senior Authorising Officer considers it appropriate to do so.

Division 5—Information gathering and sharing

23Q—Senior Authorising Officer may require information from State authorities

This section confers on the Senior Authorising Officer a power to require a State authority to provide specified information.

23R—Senior Authorising Officer may require information from other persons

This section allows the Senior Authorising Officer a power to require other persons (including but not limited to NDIS providers) to provide specified information. The section creates an offence for a person to fail to comply with such a requirement.

23S—Senior Authorising Officer may notify NDIA or the NDIS Quality and Safeguards Commission

This section authorises the Senior Authorising Officer to notify the NDIA or the NDIS Quality and Safeguards Commission of certain matters that have come to the attention of the Senior Authorising Officer.

23T—Senior Authorising Officer may disclose etc information to other jurisdictions

This section authorises the Senior Authorising Officer to both receive and make use of specified information, and to disclose specified information to certain persons and bodies in other jurisdictions whose duties include screening of people who work with people with disability.

23U—Disclosure of information to prevent harm

This section authorises the Senior Authorising Officer to disclose information to an appropriate person or body if the Senior Authorising Officer is of the opinion that to do so is reasonably necessary to prevent harm being caused to a person with disability.

23V—Disclosure of information for research purposes

This section allows the Senior Authorising Officer to disclose information for the purposes of research of a specified kind.

23W—Provision of other information to Senior Authorising Officer

This section clarifies that persons and bodies may provide to the Senior Authorising Officer any information that the person or body reasonably believes is relevant to the functions of the Senior Authorising Officer under the principal Act. No liability attaches for doing so, provided the person acted in good faith and without negligence.

23X—Information sharing for national register or database

This section allows the Senior Authorising Officer to disclose information for the purposes of providing information for entry on a national register or database relating to the use of restrictive practices.

Division 6—Dispute resolution

23Y—Internal review by Senior Authorising Officer

This section confers on a person who is aggrieved by a decision of an Authorised Program Officer or a prescribed NDIS provider under the new Part a right to a review of the decision by the Senior Authorising Officer. The section also makes procedural provision in relation to such reviews.

23Z—Review of decisions by South Australian Civil and Administrative Tribunal

This section confers jurisdiction on the SACAT to review decisions of the Senior Authorising Officer under the new Part, as well as other decisions identified by the regulations (if any).

Division 7—Miscellaneous

23ZA—Limitation of liability

This section limits the liability of the persons and bodies as specified in the section.

23ZB—Offence to hinder or obstruct Senior Authorising Officer etc

This section creates offences for a person to hinder or obstruct the Senior Authorising Officer in the course of doing their duty, or an NDIS provider in the course of using restrictive practices.

23ZC—False or misleading statements

This section creates an offence for a person to make false or misleading statements in information provided under the new Part.

23ZD—Evidentiary provision

This section makes evidentiary provisions relating to the proof of certain matters under the new Part.

Debate adjourned on motion of Hon I. Pnevmatikos.

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