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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-04-01 Daily Xml
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Bills

Disability Inclusion (Restrictive Practices - NDIS) Amendment Bill

Committee Stage

In committee.

Clause 1.

The Hon. J.M.A. LENSINK: I would like to make some remarks at clause 1 to address some of the concerns raised in second reading speeches. The Disability Inclusion (Restrictive Practices—NDIS) Amendment Bill, as has been stated, aims to protect and improve the rights of South Australians with disability under the National Disability Insurance Scheme, who may be subject to the use of restrictive practices.

It creates a new streamlined regime for the consistent authorisation of the use of restrictive practices under the NDIS and supplements the existing legislative framework for NDIS participants, which does have significant gaps in South Australia. The NDIS Act and the NDIS rules, which detail behaviour support planning requirements, are our source of authority and constrain what we can operationalise within our own legislation as we must maintain alignment with national requirements.

In relation to consultation, extensive consultation on the draft bill commenced on 15 December 2020 and concluded on 29 January 2021 and was led by the YourSAy platform in conjunction with the Department of Human Services' social media campaign. This broad public consultation across the community was complemented by targeted consultation with key stakeholders in the sector, including people with lived experience, which I understand was through JFA Purple Orange.

The feedback received from different platforms identified an opportunity to strengthen the bill to ensure people with a disability have a voice relating to the restrictive practices that may be used on them. In response, the draft bill was slightly amended, and a provision has been included to reflect that a behaviour support plan has been developed in consultation with people with disability. This re-emphasises what is already required in the NDIS (Restrictive Practices and Behaviour Support) Rules 2018.

The consultation process highlighted the high degree of interest and engagement by people with disability and the disability sector on the next steps of the reform process, the development of the regulations and guidelines, and the education and training of the sector. The government has carefully considered all feedback and made determinations about how to address individual points, and we will use this feedback in shaping the regulations.

In relation to the position of the senior authorising officer within the Department of Human Services, the role of the senior authorising officer within the Department of Human Services was raised in feedback, and I can confirm that this role will be separate from the service delivery arm of the department. The position will be responsible for the authorisation of higher level 2 restrictive practices, and level 1 under certain circumstances, in addition to the review of level 1 restrictive practices. This role will also have an ongoing role in leading the education and training of NDIS providers relating to the authorisation of restrictive practices.

The Department of Human Services is best placed to establish this new regime, in consultation with people with disability, the sector and the NDIS commission, having led the state in national negotiations on disability policy, including the NDIS, and specifically in relation to restrictive practices. I have committed, along with all disability ministers, to national consistency, and my department is actioning this on my behalf.

If the senior authorising officer was to reside within the Office of the Public Advocate, as is being suggested through some amendments, this would be inconsistent with the national principles for the authorisation of restrictive practices, which outline that authorisation regimes must be established separate to guardianship arrangements. This is also in line with the state government working with the NDIS commission and other states and territories to develop nationally consistent minimum standards in relation to restrictive practices under the NDIS Act.

Situating the senior authorising officer role in the Office of the Public Advocate would also pose a conflict of interest for the Public Advocate and their role under the Guardianship and Administration Act 1993. The Guardianship and Administration Act was established to provide for the guardianship of persons unable to look after their own health, safety or welfare, or to manage their own affairs. The Public Advocate has a specific legislatively defined role to speak on behalf of people with disability under their guardianship, and as an appointed guardian—like any other appointed guardian—the Public Advocate has a role in the development of the behaviour support plan, as outlined in the NDIS rules.

Placing the senior authorising officer role within the Office of the Public Advocate removes an important safeguard for people with disability who are under guardianship. It creates a potential conflict of interest if the Public Advocate has contributed to a behaviour support plan that then needs to be approved by the senior authorising officer.

The functions and duties of the senior authorising officer can be effectively managed within a larger government agency, such as DHS, that has existing delineations between its service delivery, policy and advisory responsibilities. The conflict of interest for the senior authorising officer and the Public Advocate may not be effectively managed within a small statutory office, where the specific legislative functions may be in direct conflict.

In relation to level 1 and level 2 authorisations, during the consultation there were quite differing views on what constitutes a level 1 and level 2 restrictive practice. Some respondents believe that all restrictive practices are intrusive and some called for stronger safeguards and rules for higher risk practices. Others suggested a matrix approach, as some practices are highly intrusive but low risk, or low intrusiveness but high risk. Some respondents provided examples of practices that should be included in level 1 and level 2, and for this reason the types of level 1 and level 2 restrictive practices will be determined through further consultation in the regulations.

Generally speaking, a level 1 restrictive practice is considered low level unless intrusive and would have a lower impact on the person's dignity, freedoms and human rights. The authorised program officers within the NDIS provider will be responsible for the authorisation of low-level restrictive practices, which may include locked cupboards or fridges, which is an environmental restraint; locked windows or gates, again an environmental restraint; or a buckle guard to keep a person in their seat while being transported or to stop a behaviour of concern, which is a mechanical restraint.

A high-level restrictive practice is one or multiple restrictive practices that, combined, can have a greater impact on a person's dignity, freedoms and human rights. The authorisation will remain with the senior authorising officer. Examples of this may include clothing that limits someone's movement and which the person cannot remove, which is a mechanical restraint, and certain ways of holding a person to stop them from moving, which is a physical restraint.

As the Hon. Connie Bonaros outlined in parliament, this is complex work. While I agree with her in principle that it would be of great interest to the parliament to have these outlined in the act, the details necessitate it being placed through regulation. We also need to support changes that may be required as we shape this critical work to get it right, which will require significant consultation with people with disability and the broader sector. And over time, the types of restrictive practices may need to be added or changed.

In relation to the review of a behaviour support plan, the Hon. Clare Scriven has highlighted the opposition's concern that the authorised program officer and the senior authorising officer may authorise the use of restrictive practices without a review date or a cessation date. The bill requires that the authorised program officer and senior authorising officer who authorise the use of restrictive practices must set out 'the date (if any) on which the authorisation ceases to have effect' and 'any other information required by the regulations'.

The prescribed NDIS provider must also comply with the restrictive practices guidelines. The details of review schedules and cessation dates will be addressed in the regulation guidelines, which are being developed in consultation with people with disability, their families and the sector. In addition to these requirements, the NDIS (Restrictive Practices and Behaviour Support) Rules 2018, which are established under the NDIS Act 2013, have very clear requirements to set up and review behaviour support plans. This includes information about time frames as well as who is required to be consulted in their development.

A requirement for the specialist behaviour support practitioner under the NDIS is that each participant's behaviour support plan is reviewed at least every twelve months. However, consideration is also given to whether the participant's needs, situation or progress create a need for more frequent reviews, including if the participant's behaviour changes, or if a new provider is required to implement the plan.

The registered NDIS provider that implements a behaviour support plan, which may include the use of a restrictive practice, is required to notify the practitioner if there has been a change in circumstances that requires the behaviour support plan to be reviewed. This may include the review of a restrictive practice. A reportable incident involving the use of a restrictive practice—either in emergency use or unauthorised use—must be reported to the NDIS commission, reviewed and monitored to identify actions for improved outcomes.

There are roles outlined under the NDIS for the NDIS commission, the practitioner and implementing provider to review and monitor the use of restrictive practices, including the requirement for the need of more frequent reviews. Any time a behaviour support plan is reviewed due to a change in circumstances which requires the plan to be amended earlier than the 12-month review, if the amendment includes a new restrictive practice or amendments to the existing use of a restrictive practice they must be authorised or re-authorised.

The 12-month review of a plan must also include new authorisation of a restrictive practice if the plan includes a restrictive practice. The senior authorising officer and authorised program officers are required to abide by all these requirements, so suggestions that there are no time frame or review requirements are inaccurate and are effectively covered within the bill.

Regarding the title of senior authorising officer, there has been strong support for the establishment of the role of the senior authorising officer in South Australia. The primary issue that was raised during our consultation about this role was the title, with some stakeholders indicating a preference for the title of senior practitioner.

The position title for the senior authorising officer is to ensure that there is no confusion between the authorisation of restrictive practices in South Australia and the role of the NDIS Quality and Safeguards Commission's senior practitioner. It also suggests that the role is not responsible for the broader sector—outside of NDIS participants and providers—as is the case in some other jurisdictions. For these reasons, while the feedback was considered, we felt it was not appropriate to change the title.

In relation to the qualifications through the consultation on the draft bill, the government sought views on the skills and experience of an authorised program officer and the senior authorising officer, who are the decision-makers required in undertaking the role of authorising restrictive practices. While we have indicated these would be more detailed in the regulations and guidelines, we have taken on board feedback that qualification and skill requirements for the authorised program officer role have not been established in the bill. In response, I will be moving an amendment to the bill regarding the inclusion of the term 'appropriate qualifications, skills and experience', as outlined in the regulations to the relevant APO and SAO sections of the bill.

In relation to conflicts between the authorised program officer and the NDIS service provider, conflicts between the APO and the NDIS service provider have been raised; however, the APO will not be authorising restrictive practice if it is not in a behaviour support plan, which requires consultation with a person with disability and their family, carer or guardian. Decisions may be reviewed by the senior authorising officer and the SA Civil and Administrative Tribunal, so we believe that this potential conflict is managed effectively. I thank all honourable members for their contributions and look forward to further committee consideration of this bill.

The Hon. C.M. SCRIVEN: I thank the minister for her comments, which do touch on some of the issues that have been raised and some of the amendments that are going to be forthcoming. I will have more to say on those individual clauses. First of all, some general questions at clause 1. With regard to the public submissions to YourSAy, why was a default position not adopted where submissions were made public and were only not published if the author requested that they not be published?

The Hon. J.M.A. LENSINK: I am advised that the feedback came through via a range of quite disparate platforms, if you like, and that is why it was all consolidated. It included via social media and the like, so to have published all of that would have perhaps not been very useful to understanding what the consensus of the submissions were. Obviously, there were written submissions and there were people who used the YourSAy platform and the like. There was also the client reference group and Julia Farr Purple Orange. The format in which they would have taken feedback would have been verbal and through supported decision-making of clients. It was quite a disparate range of feedback, so that is why we consolidated it into a particular document that we have made publicly available.

The Hon. C.M. SCRIVEN: Can the minister understand that that has led to some concern around transparency in that essentially it has been moderated? That is one word that could be applied. Notwithstanding the fact that they came in different forms, there is not a clear reason why they could not still have been published unless they were requested not to be so at the request of the participant.

The Hon. J.M.A. LENSINK: Sorry, could you just repeat the last bit?

The Hon. C.M. SCRIVEN: I said notwithstanding that they could have been requested to be kept confidential by the participant if the participant in the feedback had so wished.

The Hon. J.M.A. LENSINK: Clearly, if anybody made a confidential submission then that would always be respected. I think the honourable member raising that as having been moderated is not something that my department has had concerns raised about in regard to the format in which it has been provided.

The Hon. C.M. SCRIVEN: Has the government published a list of organisations or individuals that provided submissions, whether those were via YourSAy or by the other mechanisms?

The Hon. J.M.A. LENSINK: No, my understanding is that we have not actually published a list of all the organisations that made submissions, but certainly in the consultation report there is some data about the number of social media impressions (I think they call them), including comments, posts and likes, as well as the substance, if you like, of the feedback that was received.

The Hon. C.M. SCRIVEN: So it was not a full list of those who made submissions included?

The Hon. J.M.A. LENSINK: Again, I think it goes to the disparate and perhaps modern world that we live in, in that the way the feedback was received was through a number of platforms. How long is a piece of string? Do you consider whether somebody likes a post on Facebook to be something that you would include in a formal list of organisations or not?

The Hon. C.M. SCRIVEN: What community feedback was not consistent with the final bill as it has been moved, and why were those suggestions not adopted?

The Hon. J.M.A. LENSINK: I think that I have outlined in my clause 1 contribution some of the consistent suggestions that came through with consultation. Can I use as an example the title of the senior authorising officer: there was a consistent view among, I guess, a significant number of stakeholders that they considered that that would be an appropriate alternative. We have responded to those and further detail is also available in the summary of feedback.

The Hon. C.M. SCRIVEN: Has anyone made representations to express their disappointment either with changes being adopted or not adopted?

The Hon. J.M.A. LENSINK: Yes, there have been a select few.

The Hon. C.M. SCRIVEN: Could you outline what organisations they were and what provisions they related to?

The Hon. J.M.A. LENSINK: I do not have permission to do that, so I will not.

The Hon. C.M. SCRIVEN: Have those making representations asked that they not be made public?

The Hon. J.M.A. LENSINK: In these matters one would generally ask individuals or organisations if they have permission prior to the event rather than take a default position that unless they asked to be kept confidential that that remains so. I will always err on the side of protecting people's privacy, as the honourable member knows.

The Hon. C.M. SCRIVEN: What provisions did they relate to?

The Hon. J.M.A. LENSINK: In addition to the matter of the title that I referred to previously, there was some concern about the coverage of this particular bill, that it should either include all people with disabilities and not just NDIS participants, but also that it should be a broader statewide piece of legislation.

What took place last year was that we had a working group across government, which included Dr David Caudrey, considering the disability side, Attorney-General's, Health and a range of other agencies because the government recognises that a statewide legislation would help to bring some consistency to the use of authorised practices across the state, but that is a very complex piece of work.

We needed to get on and get this sorted out for NDIS participants because it is causing difficulties for participants, their guardians, families and carers in terms of achieving a regime which is much more streamlined. One of the additional issues was whether there was an independent person to be consulted with in relation to the authorisation of a restrictive practice, but this is already covered by the NDIS rules.

The Hon. C.M. SCRIVEN: Were they the only two issues that were raised with stakeholders being disappointed?

The Hon. J.M.A. LENSINK: There were about three or four, I think, that I have raised.

The Hon. C.M. SCRIVEN: But there were not others that you have not mentioned; this is my question.

The Hon. J.M.A. LENSINK: I cannot comprehensively exclude any others, but those are the major matters that have been raised that people, subsequent to the consultation, said they thought should have been addressed.

The Hon. C.M. SCRIVEN: Can the minister outline why the government bill did not contain reporting mechanisms in relation to restrictive practices, which, after all, can result in people effectively being held in isolation, among other things? Why were those reporting mechanisms not in the original bill?

The Hon. J.M.A. LENSINK: I think there are two issues that the honourable member may be referring to. I will address both of those. The first matter relates to APO approvals to the senior authorising officer, and the government was always intending to include that in the regulations. I understand the honourable member has an amendment in relation to annual reporting, and that is an amendment that the government will be accepting.

The Hon. C.M. SCRIVEN: I was trying to establish why the annual reporting was not included in the original bill.

The Hon. J.M.A. LENSINK: If I can point out, too, that this is probably one of the underlying themes in part of this debate in relation to this bill. It needs to be understood that the state government is trying to retrofit, if you like, a piece of legislation within the constraints of the Australian commonwealth parliament's NDIS rules. There are obviously already reporting mechanisms to the NDIS commission in relation to restrictive practices; in fact, I think it forms the largest number of reports to the commission at the moment, so we do need to be careful in this space about replicating processes that already exist, in that they may place unnecessary administrative burden either on providers or on the state itself, or indeed on families.

The Hon. C.M. SCRIVEN: I am not sure that has quite answered the question, but I am glad the government has indicated they will be accepting the amendment. Was any feedback received in regard to the proposed searching powers?

The Hon. J.M.A. LENSINK: The advice that I have received is no, not to DHS's awareness. My understanding of those particular clauses in this bill is that, like all of these restrictive practices, they must be used as a last resort. They exist for the safety of the participants, so they are part of the duty of care to the participant and will only be used under particular circumstances where there is a risk to the participant. It may include things like concealing of food, which may pose a choking hazard or serious health risk, or concealment of unsafe items, including sharp objects that people might use to place themselves or others at risk. It is very much about risk and safety for the participant and others, as indeed all of this bill regime is about.

The Hon. C.M. SCRIVEN: Did the minister say that she had not received feedback about that searching? I did not quite hear that at the beginning.

The Hon. J.M.A. LENSINK: Yes, the advice from my department is they are not aware of any issues raised on that.

The Hon. C.M. SCRIVEN: Did the minister seek input from SAPOL or the Law Society with regard to the proposed searching powers?

The Hon. J.M.A. LENSINK: Apart from the usual means by which organisations or other agencies can be consulted, clearly SAPOL would be consulted through the cabinet process. The Law Society was specifically asked whether they had any feedback, and their response was that they choose not to provide feedback on this particular piece of legislation. Of course, there were the other open fora such as YourSAy, so it was fairly well publicised that this was taking place.

The Hon. C.M. SCRIVEN: I am happy to be corrected if I am wrong, but my understanding is that the police have to be invited to respond—it is not an automatic part of the cabinet process. Please let me know if I am mistaken on that.

The Hon. J.M.A. LENSINK: Having been a member of cabinet for three years, while I cannot talk about cabinet-specific matters I can advise that all agencies are contacted through that process for their feedback.

The Hon. C.M. SCRIVEN: Did the minister not think that perhaps, given that searching is a particular area of expertise of SAPOL, it might have been prudent to specifically request some feedback about those aspects of the bill?

The Hon. J.M.A. LENSINK: I will give the honourable member the benefit of the doubt of not having been a minister, but it is a standard process through cabinet that all agencies are invited to produce feedback. They are well aware of that. They do not need to be reminded to do their homework, with due respect.

The Hon. C.M. SCRIVEN: The minister said they did not provide feedback. Is that correct? Is that what the statement was?

The Hon. J.M.A. LENSINK: I see hundreds of these documents, so I cannot specifically recall what feedback they provided to cabinet. If I could recall it I would not be able to refer to it anyway because it would be subject to cabinet confidentiality.

The Hon. C.M. SCRIVEN: Did the minister seek any advice or input from the former senior practitioner on this bill?

The Hon. J.M.A. LENSINK: I personally did not seek advice from anyone because that is the role of the department. My understanding is that a number of individuals and organisations provided feedback through that process. I am not going to disclose who may or may not have contacted me because I do not have their permission.

The Hon. C.M. SCRIVEN: I am taking it as the minister saying that she does not contact people. That is what it sounded like. Did her department seek advice or input from the former senior practitioner?

The Hon. J.M.A. LENSINK: I am not quite sure what the honourable member is trying to imply. Once again, I will give the honourable member the benefit of the doubt. We have these discussions, which are open to anybody to provide feedback. We do not necessarily seek out individuals to say, 'By the way, have you seen this?' There is a process. There is also an email database, the Disability Engagement Group, that has a very broad number of people, which may or may not include the former practitioner. He may well have received information via that means. I would have been very surprised if he was not aware that this was taking place.

The Hon. C.M. SCRIVEN: Did the minister or her department not think that perhaps with his decades of experience it might have been particularly useful in terms of looking at this bill to specifically seek out that expertise?

The Hon. J.M.A. LENSINK: I have already responded to this line of questioning.

The Hon. C. BONAROS: I just want to jump in there on that point of consultation, because we have heard about who potentially has not been consulted with. Can the minister provide us with some information about the qualifications and experience of those who have actually led the charge in terms of the changes? I think that will go some way to informing us of the sort of experience that we have had in drafting these reforms.

The Hon. J.M.A. LENSINK: I thank the honourable member for her question. If I can just refer again to the working group, which was established last year as the cross-government working group to look at how we could construct both an appropriate regime for what we are dealing with now but also across government. That working group included Dr David Caudrey, who is the independent Disability Advocate; the Office of the Public Advocate; very senior officers within the Attorney-General's Department; a representative from Health; and Dr John Brayley, who has been the Public Advocate but is currently the Chief Psychiatrist.

They were tasked last year with that framework group. More recently, in pulling out the parts that relate to what we are dealing with for this, we had an officer within the Attorney-General's Department who pulled a lot of that information together, and also JFA Purple Orange conducted the consultation on behalf of government with people with lived experience. So some very senior and experienced people have helped to reach the point at which we are today.

The Hon. C. BONAROS: Just by way of follow-up, they would have been looking at this specifically through the lens of the interaction between the state legislation and the NDIS scheme.

The Hon. J.M.A. LENSINK: Yes. The mechanics of that are—I will be corrected if I am wrong—the officer within AGD who was brought back from the disability royal commission had previously worked for the state government. She had been working for the disability royal commission. She was re-employed by the Attorney-General's Department to pull this particular piece of legislation together, bearing in mind the NDIS rules and the like and the Disability Services Act, the guardianship act and any of the other acts that currently lawfully allow restrictive practices in South Australia.

The Hon. C. BONAROS: I think it goes without saying then, but I would like the minister to confirm that she is satisfied that we have pooled individuals and groups with extensive experience, in the considerations that we are actually undertaking at the moment, from both jurisdictions as well.

The Hon. J.M.A. LENSINK: I can say I am very confident that the relevant skills and expertise at a state level were applied and that the commonwealth was also consulted on this and that we also, through JFA Purple Orange, consulted people with lived experience. This is not to say that everybody will agree with the final bill that is before the council, but we believe that any concerns that have been raised have been addressed. I can but repeat that we are constrained by the NDIS rules.

The Hon. C. BONAROS: I just want to follow up on the issue of SAPOL's involvement. I need practical examples when it comes to this piece of legislation, so they are what I am going to refer to. The provisions that we were referring to in relation to SAPOL really relate to keeping individuals safe, so is it ordinarily the case that in this area we would expect SAPOL's input when we are not necessarily dealing with police matters but things like preventing a choking hazard, things like preventing someone sneaking some biscuits into their pocket when they have a choking hazard, things like ensuring that when someone has an item on them that might be dangerous to themselves that can be taken from them?

I am not seeing the correlation between that and what you would ordinarily expect SAPOL to comment on. Notwithstanding that, if there are other areas where we are looking at taking away items from somebody and retaining them, do we have other provisions in this or other pieces of legislation that would appropriately deal with other concerns that we may have above and beyond those that present an immediate risk to somebody's safety?

A biscuit in the hands of somebody who has a choking hazard could be life-threatening, so you would expect that somebody should be able to remove that from them quite quickly to prevent them from choking. Another unsafe item they might have at their disposal could equally present the same sort of risk. So do we have other mechanisms to deal with risks beyond those that I have just explained that present an immediate risk to somebody's life, basically?

The Hon. J.M.A. LENSINK: I thank the honourable member for her question and I will attempt to answer it as best I can. In relation to SAPOL, I can probably only speculate about what they might say but, having been in this parliament for quite some time, in relation to other pieces of legislation I think generally their view is that they prefer to have more things in the statute books for search powers, but I will just leave that there. In relation to these particular provisions, they are very much about the risk to the participants in care, and they are similar provisions to legislation that exists in the Mental Health Act.

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