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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-03-18 Daily Xml
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Disability Inclusion (Restrictive Practices - NDIS) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 4 March 2021.)

The Hon. T.A. FRANKS (17:24): I rise on behalf of the Greens to speak to the Disability Inclusion (Restrictive Practices—NDIS) Amendment Bill 2021. This bill will regulate the authorisation of the use of restrictive practices by participants in the NDIS and will provide for an operation structure for the new role of the senior authorising officer. We certainly support the aim of this bill, that is, to quote, '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'.

The Greens, across jurisdictions, are being critical of and have raised concerns about the use and lack of regulation of restrictive practices. But while the use of restrictive practices remains, it is good to see better clarity and regulation being offered in an attempt to bring jurisdictions together, in line with the National Disability Insurance Scheme Act 2013 and the national principles for restrictive practices authorisation.

We are also pleased that the minister has indicated in her speech that the government is committed to reducing and eliminating the use of restrictive practices. We welcome in this bill the inclusion of the ability to legally review the authorisation of restrictive practices, particularly when their use has the potential to infringe on people's human rights. This has certainly been lacking in the current legislative scheme.

Importantly as well, this legislation ensures the authorisation of the use of restrictive practices is properly recorded. We know that there have been issues around the unauthorised use of restrictive practices by NDIS providers. This has been well highlighted by Greens Senator, Jordon Steele-John, through the Senate estimates process, where he was able to reveal that 66,999 reports of unauthorised restrictive practice had been made to the NDIS Quality and Safeguards Commission over a period of 18 months, that being July 2018 to December 2019.

I note that this bill has undergone public consultation through YourSAy, and I have read the feedback on there with interest. I am also reassured that, as was indicated to my office on the briefing of this bill, the government will similarly consult on regulations and guidelines associated with this legislation. As was indicated to me during the briefing, and as is clear from reading this bill, it is a skeleton bill and I do understand that this is partly because of the way in which drafting of the bill has been limited by some of the national agreements and requirements.

That said, the Greens will have several questions for the government during clause 1 of the committee stage, and we will give those to the minister ahead of time so we can assure both our party and the community that this bill does exactly what it sets out to do. We are open to considering amendments, which I understand may be coming but have not yet been filed. We support this bill in principle, and we will see through the committee stage, we hope, a fruitful discussion that answers those questions. With that, we support the second reading.

The Hon. C. BONAROS (17:27): I rise to speak on behalf of SA-Best in support of the Disability Inclusion (Restrictive Practices—NDIS) Amendment Bill 2021. As has been mentioned, the bill seeks to amend the Disability Inclusion Act 2018 to address an anomaly which has become apparent following the introduction of the National Disability Insurance Scheme, or the NDIS as it is more commonly known in South Australia.

From 1 July 2018, all registered NDIS providers have been regulated by the NDIS Quality and Safeguards Commission. They must comply with reporting requirements in the event that a restrictive practice as defined in NDIS rule 6 is used for a client. A restrictive practice for NDIS purposes is defined as seclusion, chemical, mechanical, physical or environmental restraint. Providers must also adhere to the state legislative requirements in seeking guardianship approval to make decisions on behalf of a person living with a disability who is unable to give consent.

The crossover is confusing and is creating a drain on resources for even the simplest of measures. As it stands, an application needs to be made to SACAT to put something as simple as a seatbelt on a client. I understand from our briefing that there has been an increase in SACAT applications following the introduction of the NDIS, so we wholeheartedly agree that the approval process needs to be simplified.

We are satisfied that there are safeguards that will continue to protect the rights of people living with a disability. I understand the Attorney-General's Department is currently reviewing the use of restrictive practices in broader settings and I support wholeheartedly that approach. I also take on board and reiterate the concerns that have been raised by the Hon. Tammy Franks just a few moments ago. This is certainly an area that warrants further review.

The bill focuses specifically on the disability sector where restrictive practices can be vital in ensuring the safety of the person and of others. For a person living with a disability, it might mean a wheelchair seatbelt to prevent falling, a helmet to prevent head injuries or even locks on fridges or cupboards to prevent choking hazards.

Until the introduction of the NDIS in South Australia, their implementation was a relatively informal process made in close consultation with family members, but it has since become an arduous task in certain circumstances where it should not. The current 'confusing legislative landscape', as executive senior member Rugless put it, was outlined extensively in the 2019 SACAT decision of Re KF; Re ZT; Re WD.

I will not trouble you with the complete citation, but the tribunal considered three similar guardianship applications by disability care coordinators caring for adults in disability services accommodation facilities who were unable to consent themselves. In attempting to navigate those cases, it was clear SACAT was looking for guidance and simplification from parliament.

We are satisfied that this bill aims to simplify the process, while retaining necessary safeguards. I understand some issues may be raised around those safeguards, which obviously we will consider in time if they are raised. We are assured the bill retains robust review mechanisms designed to protect and safeguard people with a disability, but note again that if there are concerns, obviously we will consider those.

Higher level restrictive practices will continue to require SACAT approval, and that is certainly something we support. I understand, as has been mentioned already, this bill has been the subject of very broad consultation. The report tells us the Department of Human Services received and considered 27 written submissions after reaching out to over 130,000 people. I understand the bill was strengthened in response to some of the submissions it received during the consultation process to include, amongst other things, a behaviour support plan that must be prepared in consultation with the prescribed person.

What is still to be determined—and this will be done in the impending regulations—is exactly what will constitute a level 1 and level 2 restrictive practice. That is really where we get to the nitty-gritty of the scheme and where we are more likely to see the more contentious aspects of this framework. What this bill really provides is just the legislative framework. The nuts and bolts, the nitty-gritty and the contentious parts of the scheme will all be covered by the regulatory regime that is to follow.

I hazard a guess that a locked cabinet in disability support accommodation and the use of wheelchair seatbelts for involuntary movement may fall under these categories, but we have been assured that there will be a thorough consultation in the development of these regulations. As I said, this is where the contention is likely to arise. Luckily for the Legislative Review Committee, we will have a huge job on our hands once again.

We are always on the lookout for proper consultation to ensure that subordinate legislation lands where it should, and I should say at this point that our preference, from SA-Best's perspective as legislators, is usually for the substance of any proposal to be incorporated into the act itself rather than left to regulatory instruments. That is certainly my preference.

That said, given the complexity of the regulatory regime, and perhaps even the more contentious nature of it and the need for even further consultation, I acknowledge we are not in a position to deal with that now. However, I do not think I need to forewarn the government that I will be looking closely at the development of those regulations. We know that tools are available to us in this place to address them if they fall short of the community standards.

I have some personal, firsthand experience in this area, particularly when it comes to the use of restrictive practices. I am somebody's guardian, and I understand firsthand how difficult it is when decisions have to be made about even the simplest of things that a loved one might require, like the seatbelt on a wheelchair. It is easy to think that it might be as easy as saying, 'Person A has involuntary movements and they might fall over, so let's put a seatbelt on,' but the practical reality is that it is a much more difficult and arduous process than just putting a seatbelt on.

There is an entire process that you need to go through. There is SACAT that you need to go through. None of that is straightforward. The same applies to the locks on the fridge and the locks on the cupboards when someone has a choking hazard. These are not always straightforward processes, but now we have another complicating layer on top of that, and that is that the NDIS requirements do not marry up with our state requirements.

I understand wholeheartedly why we need this legislation. I understand that there may be concerns raised about this issue, which we will seek to address during the committee stage of the debate. I look forward to hearing those concerns, if they exist, and to the speedy passage of this legislation that is intended to make this process a lot smoother for the families involved.

The Hon. C.M. SCRIVEN (17:36): I indicate that I am the lead speaker for the opposition on this bill. The opposition supports the aims of this legislation in protecting and improving the rights of South Australians with disability under the National Disability Insurance Scheme (NDIS). We also support the protections that it provides to support workers of NDIS clients.

However, the opposition considers that this bill is fraught on a range of issues. These various issues have been raised with us during consultation with stakeholders, and it is our understanding that many, if not all, were raised in some way to the government during its YourSAy consultation. We thank the government for the briefing provided last week and for agreeing to a time line of debate—with second readings this week and the committee stage in the next sitting week—to ensure the opposition and those on the crossbench have adequate time to consult on the bill and amendments.

On the topic of consultation, the government claims to have consulted with people with lived experience, providers and other stakeholders. They may well have done, but it appears that they have not listened. Following the closing of consultation on the draft bill, there were little more than minor technical changes made. A number of recommendations that the opposition has seen in submissions supplied have clearly not been considered in any meaningful way.

The opposition has referred this bill to the Law Society of South Australia for further advice. The society will assess the request and provide a response next week. I thank them, given the tight time frame they have to review the legislation. We will be suggesting a number of amendments that have been carefully considered on the basis of feedback from stakeholders, in particular those with lived experience and providers who, during the course of the provision of supports, sometimes utilise restrictive practices in some form.

One significant change that we will be putting forward is the removal of the position of senior authorising officer from the Department of Human Services, as proposed by this bill. As we understand, that is a position that has already been advertised in the Notice of Vacancies. Instead, the opposition believes the position should be under the direction of the Public Advocate, not the Chief Executive of the Department of Human Services. Why? Because the Department of Human Services is itself a provider of NDIS services and in all likelihood a user of restrictive practices on people within their care. At best, this is a serious conflict of interest.

This would not be without precedent, as the government itself chose to establish the Disability Advocate at arm's length, within the Attorney-General's Department, when the role was implemented two years ago. There are a number of other concerns that have been raised by stakeholders. These include that the bill does not define what restrictive practices are within each level defined in the bill and that it gives the minister powers to define these by regulation. I think this has been mentioned by previous speakers as being of some concern.

NDIS behavioural support plans are reviewed annually; however, another concern is that the bill allows for both authorised program officers and the senior authorising officer to authorise the use of restrictive practices without a review and without a cessation date. So there is no end date on that. Another concern is that consultation with stakeholders has suggested that the name 'senior authorising officer' is not consistent with that of other jurisdictions, and there is no minimum standard for authorised program officers, potentially meaning that any person employed by a provider of supports may be able to authorise restrictive practices without qualification.

A further concern is that authorised program officers are not required to justify their use of restrictive practices, the decision-making process leading to their use or for what reasons they were used. Therefore, prior to the committee stage, the opposition will be lodging a number of amendments aimed to further protect vulnerable South Australians, and I will speak further on these at the committee stage. As the minister mentioned in her second reading speech:

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 opposition completely agrees. We will be supporting this bill, but we do want to make sure that the best interests of South Australia's most vulnerable people are taken into consideration and adequate provisions are considered by this place before that. I look forward to discussing in further detail the bill and our amendments during the committee stage of the bill.

The Hon. J.M.A. LENSINK (Minister for Human Services) (17:40): I thank the honourable members for their contributions this afternoon on this important piece of legislation, which will provide a proper regime for the authorisation of restrictive practices in South Australia. I think in these more contemporary times we are all of the view that we need to minimise these practices as much as possible and ensure that they are only used as a last resort. I also appreciate comments, particularly from the Hon. Connie Bonaros, that the current regime that operates in South Australia is difficult to navigate, because there are quite a few pieces in the regime.

I would like to particularly acknowledge the contributions of the Hon. Tammy Franks, the Hon. Connie Bonaros and the Hon. Clare Scriven in concluding the second reading today and say that I look forward to the committee stage of the debate.

Bill read a second time.

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