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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

Debate resumed.

The Hon. C. BONAROS: Just turning to those particular provisions (and I note that we will get to these clauses when we deal with them specifically in terms of the amendments), we have provisions here which allow somebody, for instance, to search the prescribed person's clothing or possessions, or take possession of anything they may consider to be harmful to them, and that they can retain those for as long as is necessary for reasons of safety. These provisions we are talking about, to confirm: we are not going in and taking somebody's general possessions. This is something that poses an immediate and potentially life-threatening risk to an individual.

I can point to an obvious example, without getting personal—the choking hazard is one that I am very familiar with. Sometimes individuals are PEG fed, for instance, but who like food and will do anything to get their hands on a chocolate biscuit, a Tim Tam or a Monte Carlo, or whatever the case may be. In our instance, it is biscuits. The threat and the risk that that biscuit poses to this individual is life-threatening. It can mean ending up in hospital and having your lungs pumped and whatnot, and keeping an individual alive.

I am trying to crystallise what it is that we are actually talking about here. We are talking about things that could result in someone's death or very serious health implications if they have access to those. We know, from whatever setting they may be in, that those opportunities for people to take possession of things that can be very dangerous are ever present. Would the minister agree with that analysis?

The Hon. J.M.A. LENSINK: Yes, I completely agree with all of what the honourable member has said, and thank her for providing those examples. To go back a couple of steps to another underlying concept that I think we need to bear in mind with all of this debate, a lot of restrictive practices are taking place at the moment which are 'unlawful'. That means that, if there is not a provision in a statute somewhere that says that a particular action can take place, then it is unlawful.

If we are referring to these specific instances themselves, at common law that can be considered assault. We have a situation where someone may remove a personal item from someone because they are concerned about the risk to that person, which, as is stated in this clause, is the specific and sole reason that can be done, namely, the safety of that person or others because of those objects being in their possession, yet it could be considered theft, assault or a range of things.

A provider in that circumstance who removes those items in that sort of circumstance at present can be sued by that person. There are a range of other practices taking place at the moment that are all considered unlawful. That is why these clauses are there. It has been explained to me (and I am no lawyer, that is my plea) that South Australia is a common law jurisdiction in these things in relation to a range of offences against people, so we need to bear in mind that, if there is not an explicit statute that enables that to take place, it is unlawful and therefore all these providers currently are being exposed.

The Hon. C. BONAROS: In terms of the retention of those items, can the minister explain how we envisage that would play out? We might remove a chocolate biscuit and that removes an immediate risk, but it might not be a chocolate biscuit. It might be a sharp object; it might be a pair of scissors. I am guessing. It might be a very valuable hairpin that happens to be in the possession of the person but could also pose some risk to that individual. What do we think will be the process once we have retained that item? What are the next steps?

The Hon. J.M.A. LENSINK: I can advise the honourable member that we will be publishing guidelines that will address a range of these things going forward. Particularly if this was a new situation that had not been anticipated, it would be reported to the commission that it had taken place, but it would also, going forward, need to be part of the behaviour support plan and some sort of appropriate means would need to be found. The behaviour support plans are all about addressing things in the least restrictive way, bearing in mind the dignity and choice of that individual. Those with expertise would be invited to assist with some way of managing that in the least restrictive way going forward.

The Hon. C. BONAROS: So if we are talking about an item that might have some sentimental value to this person but we know it is dangerous, for instance, for them to hold onto it, the guidelines would say, potentially, we are going to remove this from harm's way but at some point, in some way, it should be returned to the individual. It might be placed somewhere where they do not have direct physical access to it, but it will be left in their possession, just in a safe manner, if that is appropriate. Do you envisage that the guidelines will actually canvass those sorts of issues? We know what happens to anything that is actually removed from a person when they do not want, necessarily, for that item to be removed.

The Hon. J.M.A. LENSINK: Yes, I do not know that the guidelines will go to that level of detail, but the anticipation would be that the item could be accessed in a safe way. Again, I am speculating or thinking aloud here, but it may well be that it is displayed in a locked glass cabinet or something of the like. I think that would be something that would need to be determined by the behaviour support practitioner and in the support plan, bearing in mind the level of sentimental value that the person might have to it.

I just reiterate that none of the measures in relation to restrictive practices can be used in a punitive way. I think in the past some of the workers or providers might have told someone they had been naughty and therefore they could not have access to it; that is just anathema to where disability practice is going forward. The behaviour support plans should particularly address something that is as high level and serious, and as high a risk, as these particular examples.

The Hon. C.M. SCRIVEN: I have two questions as follow-ups to the two parts that we have just had. First of all, when the minister talked about some of the restrictive practices, without this being unlawful and the possibility of prosecution, can she advise how many prosecutions there have been for that type of behaviour in the last 10 years and how many of those prosecutions have been successful?

The Hon. J.M.A. LENSINK: We do not have that sort of information, but we do know that it is a significant risk and therefore, particularly if you were to speak to the providers, they know they are exposed all the time. SACAT is being utilised all the time because people seek guardianship orders so that they can reduce the legal risk to themselves. We cannot not address this significant gap that we have in our legislation. To be honest, the commonwealth will give us a kick up the backside if we do not get on with it.

The Hon. C.M. SCRIVEN: As the minister is aware, the opposition is supportive overall of the bill, but can she also advise if she is aware of any prosecutions whatsoever?

The Hon. J.M.A. LENSINK: There is a particular case that we often refer to as the 'locked door' case, which on my understanding is in the aged-care space and which is going to the High Court. It has thrown a lot of what was thought to be established practices in relation to restrictive practices and has meant that there is a much higher level of scrutiny. I think from a human rights perspective you would say that is the right way to go. It is certainly something that needs to be addressed.

The Hon. C.M. SCRIVEN: Just to be clear, if a search needs to happen to save someone's life under the new law but there has not been a restrictive practice authorisation, will the workers continue to be at legal risk and, if so, how will that be managed?

The Hon. J.M.A. LENSINK: It is a bit of a hypothetical; if you ask a lawyer, you will get a very convoluted answer, which is no reflection on anybody who may or may not be in this chamber. But it would depend. I guess that is usually the lawyer's response. There may be circumstances under which a particular action is covered under another act such as the Consent to Medical Treatment and Palliative Care Act—you know the one I am referring to. They are bearing in mind, too, that there is also the cross-government work that I have referred to several times which is intended to pick up all these sorts of issues to make sure that those gaps are also closed.

The Hon. C.M. SCRIVEN: Was any consideration given to including a provision in this bill to ensure that those workers would be protected—specifically, say they are potentially removing a risk or hazard that is life-threatening where there is not a restrictive practices authorisation in place?

The Hon. J.M.A. LENSINK: In addition to the cross-government work that is taking place to cover the other gaps, I think the honourable member might be conflating that this could potentially be an unanticipated action that needs to be taken in an emergency and is not part of a behaviour support plan.

Any practice that is placed or anticipated in a behaviour support plan, including those actions in this clause, does not expose those workers. It is the emergency unanticipated event where people may be at risk that is a risk, but there are provisions with the Quality and Safeguards Commission that those events must be reported within a short space of time.

My broad understanding is that the sector and the legislators would know that these emergency situations are highly unusual and you would anticipate that the welfare of the person who is at risk or the welfare of others is the primary consideration. That is one of the underlying principles in this legislation.

The Hon. C.M. SCRIVEN: So is it the minister's view that such a provision, specifically in this bill, is not needed?

The Hon. J.M.A. LENSINK: The NDIS rules do constrain us somewhat in this space and so we have to be consistent with those. It is a very complex space. I think there are many hypotheticals that we can think about across legislation, such as: if somebody is subject to a restrictive practice and they are a mental health patient, they are an NDIS client, and they happen to be in the Youth Training Centre, which act are you using to restrain them? That is one of the complexities where the government is working towards closing all of those gaps and having some level of consistency because there are practices that have evolved over time.

Clause passed.

Clauses 2 to 4 passed.

Clause 5.

The Hon. C.M. SCRIVEN: I move:

Amendment No 1 [Scriven–1]—

Page 4, lines 26 to 29 [clause 5, inserted subsection 23B(1), definition of level 1 restrictive practice]—Delete the definition and substitute:

level 1 restrictive practice means a restrictive practice of the following kinds:

(a) mechanical restraint (being the use of a device to prevent, restrict, or subdue a person's movement for the primary purpose of influencing a person's behaviour but not including the use of a device for therapeutic or non-behavioural purposes);

(b) environmental restraint (being the restriction of a person's free access to all parts of their environment (including items or activities));

(c) any other restrictive practice declared by the regulations to be a level 1 restrictive practice;

With the indulgence of the chamber, I will also refer to my amendment No. 2. These two amendments continue to allow restrictions to be defined by regulation, which is an important point that I will emphasise. Importantly, they set out some basic differentiation between level 1 and level 2 restrictions. It still allows for further definition through regulation but it, importantly, sets some basic differentiation between level 1 and level 2. This is important for people with disability and their carers and will assist with further upcoming consultation on regulations.

Level 1 under this amendment would include mechanical and environmental restraints, which may include things like wheelchair seatbelts, locks on cupboards or secured property gates. The intention is to ensure that these matters are dealt with as level 1 restraints, which may be authorised more quickly and with less administrative burden. Per the second amendment, a combination of level 1 restrictions may amount to a level 2 restriction, so by having multiple level 1 restrictions that could amount to a level 2.

Level 2 will include seclusion, chemical and physical restraints that have greater impact on a person's physical and psychological wellbeing and which may also place carers at greater risk. These are intended to be dealt with as level 2 because they require greater oversight. As noted, level 2 could also include a combination of a number of level 1 restrictions.

This means that there will be more clarity of the legislation itself rather than waiting and referring to regulations, and it is the opposition's view, following consultation with various stakeholders within the sector, that this will provide a greater level of guidance if these are included in the legislation.

The Hon. J.M.A. LENSINK: The government opposes these amendments that seek to designate all mechanical and environmental restraints as level 1 practices and designate seclusion, chemical restraint and physical restraint, or a combination, as level 2. The amendment does not reflect—as I outlined I think in my clause 1 speech—that through the consultation there was a range of different views about what constituted level 1 and level 2, and some being that there needed to be a matrix, if you like, as well.

We believe a lot more work needs to be done to tease out these particular categories, not do the blunt instrument which is what these amendments are. These amendments do not reflect that mechanical and environmental restraints exist on a continuum of intrusiveness and impact on people with disability. More intrusive forms of environmental and mechanical restraints require a high level of oversight and should not be designated as a level 1 restrictive practice.

For instance, persistent one-to-one supervision could be included as an environmental restraint, even though I think we can all anticipate the circumstances in which that could be incredibly intrusive. Another environmental example could include restriction of access to a communications device for someone who has complex communication needs. That one speaks for itself. There is a range of mechanical restraints that by this amendment would be included, which could include straitjackets, shackles—either soft or hard—or weighted blankets on children, which may serve to restrict their capacity to breathe, so we think this is something that is impossible to support.

Further, the designation of specific types of practices as level 1 or 2 fails to recognise the impact of restrictive practices on people with disability, and that people with disability may experience the same practice in different ways based on their needs and life experiences. We are just really saying that every individual needs to be taken into consideration. That particular feedback about individuals was consistent across disability service providers, carers and people with disability and people with lived experience.

It is appropriate that level 1 and 2 restrictive practices are prescribed in the regulations, which the government has committed to on numerous occasions. Prescribing this level of detail in the bill at this stage of the process does not reflect or allow consultation with people with disability or other stakeholders. Furthermore, the second amendment does not reflect the impact of informed consent and involvement in decision-making by the NDIS participant or on their experience of a restrictive practice. I think that covers both of those particular amendments.

The Hon. C. BONAROS: I have some questions, both of the mover and the minister, because I think this is where we really get to the nitty-gritty of things in relation to restrictive practices and the concept of splitting them into levels. The minister made reference to shackles and straitjackets, and clothing that limits someone's movements. What sorts of things does the mover envisage would be covered by a level 1 restrictive practice?

I think most of us would consider that things like a weighted blanket, shackles and clothing that restricts one's movements should not be defined as a level 1 restrictive practice. Have you had some advice about the sorts of things, practical things, so we can actually identify what would fit under the mechanical restraints, environmental restraints and other restrictive practices declared by the regs?

The Hon. C.M. SCRIVEN: With the indulgence of the honourable member who has asked the question, if she is happy with this, it actually leads to a question that I was about to ask of the minister, which I think will help to inform her question as well. The first part of that is: can the minister advise whether straitjackets and shackles are currently used by Disability SA?

The Hon. J.M.A. LENSINK: No.

The Hon. C.M. SCRIVEN: Are they permitted to be used by Disability SA?

The Hon. J.M.A. LENSINK: No.

The Hon. C.M. SCRIVEN: If they are not permitted to be used in South Australia, they could not be considered under this restrictive practices bill; is that correct?

The Hon. J.M.A. LENSINK: The honourable member is referring to what our practices are in Disability SA, and I have responded to those. I am pointing out the folly of this amendment. I do not think the Labor Party has thought through the details of this. If we are going to use the blunt instrument of categorising things as level 1, based on whether they are either a mechanical or an environmental restraint, these are the sorts of things that this amendment will potentially categorise as level 1.

The Hon. C. BONAROS: Can I jump in there just to assist in the process? I think we have chosen two extremes, straitjackets and shackles, because those are the things that immediately come to mind. Can the minister confirm, for instance, the example of a weighted blanket? I think we know that there are other clothing items, or there may be other items, that actually are intended to limit someone's movements. Is it the view of either member that those things may, under this amendment, be considered level 1 restrictions?

We are not, potentially, talking about the extremes, although in my view nothing is out of the question. Until recently, we still saw spit hoods being used in our juvenile setting in this jurisdiction, so nothing should be left to chance. There are other clothing items, things like weighted blankets, for instance, that may be used and they are used specifically for the purpose of constraining or limiting someone's movements. So there may not be a straitjacket, but there might be something else that is used for that purpose; is that correct?

The Hon. J.M.A. LENSINK: The advice that I have—and I will be a little bit convoluted in this because I think there are a few elements to consider in this debate, some of which includes considering what practices might have been considered in the past as appropriate which now we balk at. One of the examples that I often use with colleagues who have not worked anywhere in the sector is the use of bedsides in hospital beds which, when I was practising 35 years ago, was something that you automatically have in hospitals to stop someone falling out of bed. That is now a restrictive practice. Some people raise their eyebrows.

The point of it being that it restricts someone's free movement and therefore is to potentially address their behaviour, particularly for people who might wander. So the practice these days is that beds are close to the floor. For someone they are concerned about falling out of bed they will have a mat on the floor to alert the staff so that if they get out of bed then they can just make sure they have not fallen over and the like.

There can also be other grey areas such as a chest strap in a wheelchair, something which is to control someone's behaviour. If it is to control someone's behaviour—stop them from voluntary behaviour—then that is a restrictive practice. But if it is for someone who does not have control over their torso and they will fall over, that is being considered as therapeutic practice. Some of these things have some nuances.

I do admit that the use of a straitjacket is an extreme example that does not fit with current practices, but it does demonstrate that these particular amendments have not been well thought through. Past practices within DHS are that there were, I am advised, seamstresses within the Highgate building, or the Julia Farr building, who constructed garments for patients who either had particular involuntary movements or they might have had a muscle weakness in a particular limb or it may well have been to stop a particular behaviour that the agency at the time needed to deal with for their own convenience. There are some these areas which are hard to nail down in a black-and-white sense, which is again why I think this is an arbitrary way of dealing with level 1.

The Hon. C. BONAROS: I think the minister has made a good point there. Again, in a practical sense it might not be something as obvious as a strap, a shackle or anything like that, but you can very easily turn your mind to things like, for instance, someone who does have those sorts of issues with movement being extraordinarily tucked in to a bed, a hotel-style bed, where you cannot get those sheets out. So for somebody being extraordinarily tucked in and then perhaps having a weighted blanket or even just a normal blanket thrown over the top it could very well result in what would be deemed to be a restrictive practice because you are actually restricting an individual's movement in ways that are questionable.

You are not using a straitjacket, you are not using a belt, you are not using any of these things, but it is not unforeseeable that we could be using other means of keeping somebody in their place. I think the bedsheets and the blankets is a very good example of that. For me, there is some concern around what level they would fall in under the proposal.

The Hon. J.M.A. LENSINK: I think that is a very good example and I thank the honourable member for raising it because it obviously depends on the individual. If you have someone who does not have a lot of motor control, it is definitely a restrictive practice. If it is someone who has as much movement as my five-year-old son, he would wriggle his way out of there in five minutes. So yes, it is very much about the individual and individual circumstances.

The Hon. C.M. SCRIVEN: I have a couple of points there to respond to. First of all, I am glad that the minister has acknowledged that shackles and straitjackets are prohibited in South Australia.

The Hon. J.M.A. Lensink: No, I did not say that.

The Hon. C.M. SCRIVEN: Okay; my apologies if I have misunderstood what the minister said.

The Hon. J.M.A. Lensink: We do not use them in Disability SA.

The CHAIR: Order! Perhaps the minister might like to stand and put that on the record.

The Hon. J.M.A. LENSINK: Yes. The member has misrepresented me. What she asked me was: does Disability SA use shackles? The answer is no. If she had been cognisant of some of the media, the Chief Psychiatrist has been intervening in the mental health settings in relation to the use of hard shackles, so they are not illegal.

The Hon. C.M. SCRIVEN: I think the point still remains that the minister has indicated that shackles and straitjackets are extreme examples that are not likely to be used here. I think one of the points that has been missed is that the amendment moved in my name does not set out every example. It is not intended to do that. As I have mentioned, there will be the opportunity in regulations for further differentiation, but the request that we have had from experts within the sector is that there be a level of definition, and the amendment here is as a result of that.

In responding to a couple of comments in regard to what the purpose of a restraint might be and how that would influence its designation, I point out to members that paragraph (a) states:

(a) mechanical restraint (being the use of a device to prevent, restrict, or subdue a person's movement for the primary purpose of influencing a person's behaviour but not including the use of a device for therapeutic or non-behavioural purposes);

I think some of the examples that have been put here rest on that—whether it is to influence the person's behaviour or not. I think that will assist.

In terms of the bedsheets, which I think is also a very useful example, that is the kind of level of differentiation that can occur at the regulation level. However, having a descriptor of level 1 and level 2 is giving that general guidance as to the sorts of practices that are envisaged by this and then there is the opportunity to go into the matrix, as the minister referred to it—develop a matrix that would be then reflected in the regulations. This responds to experts within the sector who would like to have that broad guidance set out in the legislation.

The Hon. C. BONAROS: I think the Hon. Clare Scriven has misunderstood my point. My point is that those sorts of practices should not be level 1 restrictions. They should be level 2 restrictions because they fall more within the ambit of those restrictions that are intended to actually physically restrain a person, and so I do not think they are appropriate in level 1. That is the point that I have been trying to make through my contribution.

In my view, I think we are getting into murky waters about what is a level 1 and what is a level 2 restraint. I do not like the idea of somebody using things like bedsheets and weighted blankets to keep a person in a bed at level 1. That is clearly, in my view, something that should probably be considered a level 2 restriction because you are actually using another means to physically restrain a person.

I note that our preference is always as legislators to prescribe as much as we can in legislation rather than regulation, but I think we have to acknowledge in this area that there are practical implications that we are not going to be able to overcome easily. If we tie ourselves in knots over what is a level 1 and what is a level 2 restraint and do not consider these adequately, and acknowledge also that there are going to be changes—and I think we acknowledge that there have to be changes to the sorts of things that would be identified as a restraint and what level of authorisation someone needs to use those—I think we are getting into dangerous territory.

I make it abundantly clear—I have said in this place time and time again—our legislation should always be the primary focus and having clauses in legislation should be the primary focus. But I am concerned that at a practical level, even when I can come up with an example like bedsheets, we are getting into risky territory by trying to put these things into baskets in the way that we have described. I have some real concerns about that.

The Hon. C.M. SCRIVEN: If I could just clarify, I absolutely take on board the points that the Hon. Ms Bonaros is making. If this was to be the sole determinant, then I would absolutely agree with her, but what we are looking at here is these amendments give guidance as to the types of restrictive practices and then those specific examples are exactly what would then be worked out in the regulations. So I do not think we are actually necessarily talking in opposition to each other on this amendment.

Specifically, the points that the Hon. Ms Bonaros raises are why the regulations have a very important part to play. To give this first level of guidance, as requested by many in the sector, certainly will not prevent what the Hon. Ms Bonaros is keen to see and I think we are probably all keen to see. I think the two are entirely consistent in terms of intent.

The Hon. J.M.A. LENSINK: I have grave concerns that if this amendment is passed it will lead to unintended consequences. I think the consultation the Labor Party has done is inconsistent with the consultation feedback that we received. The feedback that we received is that these issues are very nuanced. As they say in the sector, 'Nothing about me without me,' so we need the voice of lived experience to be advising us on the guidelines to make sure that we get them absolutely right. I believe that this is an arbitrary allocation that is going to jeopardise the good management of restrictive practices going forward.

The CHAIR: The Hon. Ms Bonaros, I will call you but what I am going to do is say that we have canvassed this clause at some great length—

The Hon. C. BONAROS: Well, it is an important clause, Chair.

The CHAIR: —so it is my intention to go to a vote fairly soon. I will go to the Hon. Ms Bonaros.

The Hon. C. BONAROS: I think both members have addressed the point that I am trying to make and herein lies the problem really. We have consultation by the government, we have consultation by the opposition on a different level and we are asked to make a decision based on whose consultation is right. That is always a very tricky position for the crossbench to be in, but I think in this instance I am not inclined to support amendments that have not been through what I would deem a robust consultation process, which I anticipate the government have put their proposals through.

I am extremely concerned about unintended consequences. Having said that, if some of the concerns the opposition member has raised do come to fruition, then we will have the opportunity to consider those when the regulations are actually drafted. We know the bulk of these practices will be dealt with in regulation, and frankly I am more comfortable with that notion than I am with supporting amendments that could potentially have some unintended consequences.

The Hon. C.M. SCRIVEN: I want to thank the honourable member for her very considered response. Whilst we are obviously coming to a different conclusion, I think everyone within the chamber is seeking the same outcome, which is the best outcome for people with a disability as well as their carers. So I thank everyone for their contribution.

The Hon. J.A. DARLEY: For the record, I will not be supporting this amendment.

The Hon. T.A. FRANKS: The Greens will not be supporting this amendment.

Amendment negatived.

The CHAIR: I presume, the Hon. Ms Scriven, you will not be moving your amendment No. 2?

The Hon. C.M. SCRIVEN: Correct. I move:

Amendment No 3 [Scriven–1]—

Page 6, line 10 [clause 5, inserted subsection 23B(1), definition of Senior Authorising Officer]—Delete 'Officer' and substitute:

Practitioner

I will mention for the benefit of the council that there are 60 consequential amendments from this amendment, so obviously this will be the test amendment and the others will not be required to be moved if it is not passed. This amendment changes the terminology 'senior authorising officer' to 'senior authorising practitioner'. These amendments respond to feedback from stakeholders who believe that the title 'practitioner' should be used in preference to 'officer', and would be consistent with similar roles that have existed in the past in South Australia and in other organisations.

The proposed changes also support other amendments that would require clinical skills for this role and place it outside the Department of Human Services, that together improve the operation of the system and send a clear message about safeguarding and high-quality clinical practice. I note that the minister in her contribution at clause 1 said that the reason for the preference for 'senior authorising officer' versus 'practitioner' was to avoid confusion with the national NDIS position.

The opposition would point out that the word 'officer' is used in so many contexts throughout, frankly, many different organisations, government organisations in particular, that the risk of confusion is actually greater with the term 'officer' rather than 'practitioner'. This is in response to feedback from stakeholders, who feel that 'senior authorising practitioner' is a far preferable title to use.

The Hon. J.M.A. LENSINK: The government is not supporting this amendment, which changes the title of the senior authorising officer to the senior authorising practitioner, for several reasons that I will outline. The honourable member referred to authorised officers being in a lot of legislation—that is true. Things that come to mind include environmental legislation, but I do not think anybody will be confusing authorised officers under the Natural Resources Management Act—'we are coming to check on your low-flow bypasses', which is something we have talked about many times in this place, as honourable members would remember.

We think senior authorising officer reflects the actual position. The word 'practitioner' is used at the national level for quite a different position. I think there may have been some references in consultation to the Victorian legislation where there is a practitioner, but I point out that they have had that legislation for some time prior to the advent of the NDIS, and I think they also may have some overarching legislation—it is a broader role. South Australia does not have that broader overarching position, so therefore we think it is quite risky that that change be made.

We also have some amendments to the qualifications of the person. Practitioner is part of the health language, if you like. We are seeking to broaden the level of skill experience for these particular roles so that it does not just have a health lens—we would probably prefer a disability lens to a health lens in any case—but also has some of that legal experience, with a mind to human rights as well.

The Hon. J.A. DARLEY: I indicate that I will not be supporting this amendment or any other consequential amendment.

The Hon. C. BONAROS: I appreciate what the opposition is trying to do through this amendment. Frankly, I think our concern on this side of the chamber is that the qualifications and skills far outweigh any title in terms of the importance that should be front and centre on this. I do not personally have any objection to the use of 'senior authorising officer', but I would like to see those further amendments moved that actually prescribe the level of qualification and skill that those individuals should have because I think that is what will be the defining feature of these provisions in the end.

Whatever you call them, I think it is clear that when you have appropriate levels of qualification, skill and experience, it will not be somebody—there are all sorts of examples that have been given—who is clearly unqualified who is going to be in these roles. It will be somebody with a requisite level of experience and a requisite level of skill. I do not really see the need for changing it to 'practitioner'.

I acknowledge that 'practitioner' is one of those terms that is used both in the health setting and in the legal setting. It really is of no consequence to me or to us in SA-Best. I think the focus really needs to be on the qualifications and experience in this instance, so I am satisfied with the clause as it is proposed by the government, particularly if that is going to do away with any other confusion that we have with the NDIS scheme.

I think the whole point of this is to try to minimise as much as we can the inconsistencies between the two schemes and also the language that is used in those. I do not think we have any major concerns around the use of the term 'senior authorising officer'—well, we do not, actually.

The Hon. C.M. SCRIVEN: I thank the honourable member for her comments. I can see her point. I think the issue comes down to the fact that the title influences the perception of the role. Skills and qualifications are far more important, and we have further amendments in regard to that, but in terms of perception the term 'officer' is often used for administrative positions, frankly, in huge numbers of organisations. My understanding is the feedback was that the perception of what the role has the authority to do is also of relevance to those who gave that feedback. Can I just ask on that, did the government consider using the term 'senior authorising practitioner' instead of 'officer'?

The Hon. J.M.A. LENSINK: I thank the honourable member for the question. I think I have outlined, when she was asking me about the sorts of matters that have been raised, that in the consultation phase this is one of the matters that was raised. We considered it, and for the reasons I have outlined we decided to stay with this particular title, which we think actually reflects what the person does.

The Hon. C. BONAROS: Just as an aside—and it does not relate to the change in use—I do have one question in relation to the power of delegation for senior authorising officers. There is a provision that allows for those functions to be delegated to a specified person or body. That requirement has to be made in writing and there are a number of other conditions that apply. Could you give us an example of what other body or person might be specified for those purposes?

The Hon. J.M.A. LENSINK: I am advised that the allocation through the budget is for three positions which will sit beneath, if you like, the senior authorising officer. So it is anticipated that those would be the other officers who would be delegated to.

Amendment negatived.

The CHAIR: I presume the Hon. Ms Scriven is not going to move amendment No. 4?

The Hon. C.M. SCRIVEN: Correct. I will not be moving amendments Nos 4, 5, 6, and 7.

The Hon. J.M.A. LENSINK: I move:

Amendment No 1 [HumanServ–1]—

Page 6, line 11 [clause 5, inserted section 23B(1), definition of Senior Authorising Officer]—Delete 'authorised' and substitute:

appointed

My advice is that it is a technical amendment, because it refers to the employment, if you like, of the senior authorising officer. It is more appropriate that we 'appoint' that person, as in appoint to a particular role, rather than 'authorise' them.

The Hon. C. BONAROS: I think that is an entirely appropriate amendment.

Amendment carried.

The Hon. J.M.A. LENSINK: I move:

Amendment No 2 [HumanServ–1]—

Page 9, lines 13 to 18 [clause 5, inserted section 23I(1)]—Delete 'to be the Senior Authorising Officer for the purposes of this Part (being a person who, in the opinion of the Chief Executive, has the appropriate clinical qualifications and experience to perform the functions and exercise the powers conferred on the Senior Authorising Officer by or under this Part)' and substitute:

who holds the qualifications, and has the experience, prescribed by the regulations to be the Senior Authorising Officer

This matter goes to the matter the Hon. Ms Bonaros raised in relation to the qualifications being appropriate. We seek to amend so that the senior authorising officer's qualifications and experience actually be prescribed in the regulations, which is something that we will be consulting on. This will also enable greater detail and consultation on the requirements for both the senior authorising officer and the authorised program officers.

The CHAIR: No other contributions?

The Hon. C.M. SCRIVEN: Yes, sir, there is. I think this amendment is in competition with my amendment No. 8 [Scriven-1].

The CHAIR: Yes, which you need to move.

The Hon. C.M. SCRIVEN: I move:

Amendment No 8 [Scriven–1]—

Page 9, line 14 [clause 5, inserted section 23I(1)]—Delete '(being a person who, in the opinion of the Chief Executive, has the appropriate clinical qualifications and experience to perform the functions and exercise the powers conferred on the Senior Authorising Officer by or under this Part)' and substitute:

(being a person who has the clinical qualifications and experience prescribed by the regulations for the purposes of this subsection)

In relation to this amendment, members might recall that the original bill simply says that the Chief Executive of DHS may form an opinion about a person's clinical skills and experience. This amendment strengthens that by requiring that the regulations outline the clinical skills.

The government has moved, as we have just heard, a competing amendment, but that does not refer to clinical skills, despite the original bill doing so; however, it does require the regulation to outline the required skills and experience. The opposition obviously prefers my amendment, but we do note that both amendments improve the original bill.

The Hon. C. BONAROS: I am just seeking some guidance here because I think in both amendments we are deleting those lines that refer to:

…a person who, in the opinion of the Chief Executive, has the appropriate clinical qualifications and experience to perform the functions and exercise the powers conferred on the Senior Authorising Officer…

In the Hon. Clare Scriven's amendment, we then have 'clinical qualifications' included. In the government's amendment, we have 'qualification and experience' but we do not have 'clinical qualifications', though it was part of the original proposal by the government. Does the government have any objection to 'clinical qualifications', given that it was already referred to in the original clause that is now being deleted?

The Hon. J.M.A. LENSINK: I thank the honourable member for her question. I think the person who will fulfil this role will need to be many things. The word 'clinical', again, is a bit of that health terminology—not that there is anything wrong with people with health qualifications (I declare my conflict of interest). We do appreciate that there may be other primary skill sets that need to be considered as part of this and that the primary qualification of that individual may actually be a legal one.

The feedback indicated that there was a range of qualities that people with disability particularly are interested in, which are a knowledge of a disability service, experience in the field, tertiary qualifications, working knowledge of law and human rights, being person centred and some level of management experience. It is quite broad—it is not broad, actually; it is quite a high level of experience for that particular role that we are looking for. We did not want it to be leaning too much necessarily to the health side of it, although it may well be somebody who has allied health as their primary qualification.

The Hon. C.M. SCRIVEN: Does the minister envisage that the person who holds this position could be someone who does not have a clinical qualification?

The Hon. J.M.A. LENSINK: Correct. We did not want to limit it too far. We do wish for them to have experience with disability but 'clinical' necessarily implies that it is someone with an allied health background and who has worked in hospitals. That is what the word 'clinical' means to many of us and we did not want to be too narrow in that respect.

The Hon. C.M. SCRIVEN: Given that 'clinical' was in the original bill, was that changed in response to feedback and—to the extent that the minister is willing to share that information—if so, from whom?

The Hon. J.M.A. LENSINK: It broadly reflects the consultation that we had, which was that there was a broad range of skills and experience that people, through consultation, wanted to see in that role.

The CHAIR: I will just outline to the committee the way in which I am going to put the question. The question will be that the words 'to be the Senior Authorising Officer for the purposes of this part' on page 9 at lines 13 and 14 stand as printed. If members are supporting the Hon. Ms Scriven they would vote yes, and if they are supporting the minister they would vote no.

The Hon. C.M. SCRIVEN: Just as a point of clarification: if it stands as printed, does that not mean that both amendments are not being agreed to, both the minister's amendment and my own?

The CHAIR: There is a structure for this. What we need to do is firstly vote on this and then there is a way forward. I suppose the simplest way of saying it is that you are striking out words but different words. What I am about to do is to give the committee the opportunity to determine which is the form that members wish to go down to. So those who are supporting the position of the Hon. Ms Scriven will vote yes, and those supporting the position of the minister will vote no. Once we get that determination then I have a further way of outlining it to the committee. This will be the test. Is everybody clear about what the motion is?

The Hon. C. BONAROS: Yes, but I think just for the record and for the sake of the Deputy Leader of the Opposition it might be clear if I confirm that, whilst I do not disagree with what the opposition is trying to achieve here, I am very mindful of what the government is trying to achieve by not necessarily having someone who potentially does not have the clinical qualification. I think the end result will be that we will have someone with a clinical qualification, but there is a concern that we might be limiting the field by having that in there. On that basis, I will support the government's position.

The Hon. J.A. DARLEY: I will be supporting the government on this one.

The Hon. T.A. FRANKS: The Greens are supporting the government, so just to clarify that for the deputy leader.

The CHAIR: I am going to put the question. I remind honourable members that those who are supporting the Hon. Ms Scriven should vote aye, and those supporting the minister should vote no.

Question resolved in the negative.

The CHAIR: Now the question is that the remaining words proposed to be struck out by the minister stand as printed. To support the minister you would vote no. I am going to put the question that the remaining words proposed to be struck out by the minister stand as printed.

Question resolved in the negative.

The CHAIR: The further question is that the words proposed to be inserted by the Minister for Human Services be so inserted.

Question agreed to.

The CHAIR: The Hon. Ms Scriven, is the next one you will be moving amendment No. 12?

The Hon. C.M. SCRIVEN: That is correct. I will not be proceeding with amendments Nos 9, 10 or 11.

The CHAIR: So you will move amendment No. 12.

The Hon. C.M. SCRIVEN: I move:

Amendment No 12 [Scriven–1]—

Page 9, after line 25 [clause 5, inserted section 23I]—Insert:

(5) In this section—

Chief Executive means the Chief Executive of the Attorney-General's Department.

This amendment seeks to avoid any real or perceived conflict of interest where, as it currently stands, the Chief Executive of DHS would have the power to direct both NDIS service providers and the person who makes decisions about restrictive practices for both government and non-government service providers—remembering, of course, that DHS is itself a service provider.

The Legislative Council previously recognised the issue of conflict of interest within the disability area when it rejected the proposal to merge the Public Advocate and the Public Trustee, so there is certainly precedence in terms of the change that we are proposing.

I note that in her contribution on clause 1 the minister seemed to think that we were seeking to move this particular responsibility to, I think, guardianship. I am not sure if she has misunderstood that; we are actually seeking for it to come under the auspices of the Attorney-General's Department to avoid conflict of interest and be consistent with some previous practices of ensuring that there is no real or perceived conflict of interest. It is important that there is no perceived conflict of interest, given that DHS is a service provider as well.

The Hon. J.M.A. LENSINK: At risk of being repetitive, the amendment seeks to provide the Chief Executive of the Attorney-General's Department the authority to appoint the senior authorising officer. The government does not support this amendment. The senior authorising officer, apart from the authorising role, will have an ongoing role in leading the education and training of NDIS providers, relating to the authorisation of restrictive practices. There is strong alignment between the senior authorising officer's functions and the broader work of the Department of Human Services, which has a broad role in the NDIS transition and a range of NDIS issues going forward, as well as its role in inclusion.

DHS has led the state in national negotiations on disability policy and has been very intimately involved in the development of a restrictive practices policy going forward. I note that the Hon. Ms Scriven, in her second reading contribution, did suggest that the senior authorising officer role should be under the direction of the Public Advocate, so that is where some of these comments are reflected. That would be inconsistent with the national principles that outline that authorisation regimes must be established separate from guardianship arrangements. Situating the senior authorising officer role in the Office of the Public Advocate would pose a conflict of interest for the Public Advocate in their role under the Guardianship and Administration Act.

The Public Advocate has a specific legislatively defined role to speak on behalf of people with disability under their guardianship. As an appointed guardian, like any other appointed guardian, the Public Advocate has a role in the development of the behaviour support plan, which is 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 also creates a potential conflict of interest if the Public Advocate has contributed to a behaviour support plan that includes a restrictive practice.

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 much smaller statutory office, where their legislative functions may be in direct conflict. The amendment would also result in an incongruence between this section and the existing provisions of the Disability Inclusion Act, where 'chief executive' refers to the Chief Executive of the Department of Human Services.

The Hon. C.M. SCRIVEN: Thank you. I point out again that we are not proposing that this role must be under the Public Advocate but simply that it must be under the Attorney-General's Department, and therefore those conflicts that the minister is referring to are not applicable. We will state again that this is about not just avoiding conflict of interest but also perceived conflict of interest, which is vitally important for people living with a disability, their carers and everyone involved in the sector to have confidence in the process.

The Hon. J.A. DARLEY: I indicate that I will not be supporting this amendment.

The committee divided on the amendment:

Ayes 7

Noes 12

Majority 5

AYES
Bourke, E.S. Hanson, J.E. Hunter, I.K.
Maher, K.J. Ngo, T.T. Pnevmatikos, I.
Scriven, C.M. (teller)
NOES
Bonaros, C. Centofanti, N.J. Darley, J.A.
Franks, T.A. Hood, D.G.E. Lee, J.S.
Lensink, J.M.A. (teller) Lucas, R.I. Pangallo, F.
Parnell, M.C. Stephens, T.J. Wade, S.G.
PAIRS
Wortley, R.P. Ridgway, D.W.

Progress reported; committee to sit again.

Sitting suspended from 13:03 to 14:15.

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