Manager, Legislative Development and Review

1

8 February 2011

Mr Bruce Kemp

Manager, Legislative Development and Review

Disability, Child, Youth and Family Services

Department of Health and Human Services

3/99 Bathurst Street

HOBART7000

Dear Mr Kemp

Disability Services Bill 2011

Thank you for the opportunity to comment on the Disability Services Bill 2011.

I enclose my comments upon the contents of the Bill.

Please contact me if you have any questions about this response.

Yours faithfully

Anita Smith

PRESIDENT

Comments relating to particular provisions of the Disability Services Bill 2011

(15 December 2010 Draft)

Section 3 Objects / Subsection 3(f) should either include a reference to ensuring that restrictive interventions represent the alternative that is least restrictive of the person’s freedom of decision and action as is possible in the circumstances, or include a further object 3(g)to that effect.
Section 4 Interpretation / I agree with suggestions that options (a), (b) and (c) be deleted from the definition of “restrictive intervention” and therefore remove the relevant definitions from section 4. As discussed, chemical restraint is unlikely to be relevant as any drug therapies require prescription and consent in accordance with Part 6 of the GAA and are therefore already monitored to that extent.
Section 5 Principles / The principles could also include a reference to ensuring that restrictive interventions represent the alternative that is least restrictive of the person’s freedom of decision and action as is possible in the circumstances.
Section 10 Individual Plans / Persons with disabilities, their families, carers or advocates, may wish to challenge the contents of an individual plan. At present this could occur by complaining to the Secretary or the Minister or by taking a Judicial review action to the Supreme Court. I suggest consideration of creating an administrative review path through a more accessible path such as ensuring that the Plan is a ‘reviewable decision’ pursuant to the Magistrates Court (Administrative Appeals Division) Act 2001 and that relevant persons are listed as ‘interested persons’ for the purposes of that Act.
Section 15 / Q – whether the wording is sufficiently clear as to ensure that a service may attract and use funds from non-Government sources?
Section 17 Individual funding agreements / Similarly to the comments in relation to section 10, the creation of ‘agreements’ may lead to some dissatisfaction about the outcome and a clear review path may create some efficiencies for all parties. This may be slightly more difficult as it is framed as an ‘agreement’. Disputes are more likely to arise about the level of support offered by the Department in developing an ‘agreement.’
Section 27 / Q – whether the immunity in section 38 oughtnot be in section 27. An immunity in section 38 may unintentionally apply to disability service providers and the standard of care has been put at “good faith” which does not represent the usual duty and standard of care that disability service providers must observe with regard to their residents.
Section 28 / The functions in section 28(1)(a) and (b) are much broader than the functions later itemised in the Act. However they are not as broad as the functions I suggested in my last submission of being able to advise services about issues such as ‘duty of care,’‘privacy,’ ‘discrimination’ and client rights.
The Senior Practitioner has a very specialised role in overseeing restrictive interventions, and may not have the ability to advise on such broad issues as those allowed in section 28(1)(a) and (b).
Section 33 / Requires a reference to finding the least restrictive alternative within the functions of the Senior Practitioner
Section 32(2)(a) / Suggest it should read: : “the disability services provider establishes that the carrying out of the restrictive intervention was required in order to restrain the person from causing himself or herself or another person serious harm and that the intervention represented the least restrictive option in the circumstances”
Section 33 / Again as a provision that determines important individual rights should contemplate a review facility other than a Supreme Court action. There should also be a facility to review the Secretary’s determinations (where restrictive interventions are approved) on a periodical basis to ensure that if the need for an intervention wanes, the intervention is modified or ceased.
Also see general remarks below regarding concerns about the role of the Secretary.
Section 33(2)(a) / I have concerns about the use of the word “authorised” here as it is unlikely that the subjects of such determinations would have legal capacity to give authority. I suggest considering an alternative such as “nominated” or “elected” or else some kind of acknowledgement that the appointment of a person to be consulted in that process may occur without the person having capacity.
Additionally, I believe that a ‘person responsible’ (s.4 GAA) would have an interest in being consulted on these kinds of determinations.
Section 33(3) / Inclusion of a reference to “finding the alternative that is least restrictive of the person’s freedom of decision and action as is possible in the circumstances” is recommended in this provision.
Section 34(1) / I recommend that this provision include a provision that also enables the Senior Practitioner to report to the Secretary so as to make an appropriate linkage between section 34(1) and 34(2).
Section 38 / See comments above regarding section 27.

General comments about the process of approval for restrictive interventions:

I have two concerns about Part 6 of the Bill.

Firstly it does not explicitly resolve the relationships between restrictive interventions approved under this Bill and consent given by a guardian or the GAB pursuant to the Guardianship and Administration Act 1995.

Secondly, where very serious restrictive interventions are being contemplated, I have concerns that an administrative process may be inadequate to meet human rights standards for protection.

(i)Relationship between the Bill and the Guardianship and Administration Act 1995:

In this Bill there is an attempt to create an administrative approval process to make possibly unlawful actions lawful. A restrictive intervention upon a person who lacks capacity may constitute an assault or false imprisonment if there is no lawful source of authority or consent for that intervention. Other interventions such as withholding the person’s cigarettes or food might also constitute the tort of detinue. Some exceptions may exist for example:

(a)In emergencies to prevent harm to the person or another person,

(b)Under the terms of the Mental Health Act 1996, or

(c)With the consent of a guardian either appointed by the GAB or under an enduring guardianship.

As the Bill stands currently, there is potential for conflict between the role of a ‘person responsible’ and the role of the Secretary in approving the use of drugs for chemical restraint (see Reg 7(a) which requires the consent of either the Board or a ‘person responsible’ for the administering of drugs to control behaviour). My understanding is that because the Bill (if enacted) would be more specific legislation created later in time it would override the role of the ‘person responsible’ and the Board in this regard. I note however that change is contemplated for this provision and chemical restraint may no longer be relevant.

The question raised by the Bill in its current form is what relationship the Act (if enacted) would have with the ability of a guardian to consent to (and therefore authorise) certain actions. It is not desirable that every person who requires consideration of a restrictive intervention necessarily have a guardian as this would not represent the ‘least restrictive alternative’, therefore I am not suggesting that all restrictive interventions require a guardian’s consent. To my mind, there are three options:

(1)To explicitly exclude the authority of a guardian – which has the disadvantage of having an administrative process override a quasi-judicial process.

(2)To acknowledge that the provisions in Part 6 do not override any consent by a guardian or the Board – which has the disadvantage of creating a dual process and therefore possible uncertainty for service providers and clients (although there is already duality with the provisions of Part 6 of the Mental Health Act 1996).

(3)To replace the administrative processes of the Secretary with an application and hearing process before the GAB for some or all interventions.

After consideration, and taking into account the following issue about compliance with human rights instruments, I believe that option 3 may be the best outcome.

(ii)Whether the Bill meets requirements of human rights instruments:

Depending upon the kind of intervention proposed, I also hold some concerns about whether an administrative process by the Secretary is an appropriate forum in which to decide issues of bodily and personal restraint.

The UN Convention on the Rights of People with Disabilities provides (emphasis added):

“1. States Parties shall ensure that persons with disabilities, on an equal basis with others:

a) Enjoy the right to liberty and security of person;

b) Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.

2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention, including by provision of reasonable accommodation.”

Compliance with the objectives and principles of the Convention would mean such things as:

• Access to justice e.g. a right to be heard and be represented in any considerations about their liberty and to test the evidence presented.
• Safeguards about equality before the law including ensuring that processes of decision making “are free of conflict of interest and undue influence, are proportional and tailored to the person's circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body.” (Article 12)
• Such safeguards must be“proportional to the degree to which such measures affect the person's rights and interests.” (Article 12).

I believe that the provisions in the Bill will raise questions about whether the “consultation” process set out in section 33 of the Bill meets the requirements of procedural fairness and whether they are lawful within the meaning of the Convention. These are questions similar to those I raised about the DSEC processes in my letter to the Secretary dated 29 April 2008:

The entitlement to notice: Do persons who become the subject of information before the Secretary have written notice of the date and venue for that consideration with an invitation to attend?

The entitlement to representation: Are persons who become the subject of information before the Secretary informed of a right to representation, including legal representation, in the deliberations of the Secretary?

The ability to know the case against you and be heard: Is all of the information that is provided to the Secretary provided to the person to whom it relates and is he or she entitled to defend information that is adverse to his or her interests before the Secretary makes a decision?

The entitlement to test the evidence: Are the submissions of the service providers tested for the veracity, relevance and weight of the information?

Procedural fairness (natural justice): In addition to the above concerns, can the person to whom consideration relates request reasons for the Secretary’sdecision, can they be heard in relation to the Secretary’sprocedures, are the proceedings recorded, are the persons to whom the decisions relate told of the avenues for raising an appeal or a grievance against the decision?

Regular and periodical review:- Are the decisions of the Secretary subject to regular review by an independent body?

There is also the question of whether the Secretary as a decision maker is “free of conflict of interest and undue influence”? Take the following hypothetical example:

X is a young man with an intellectual disability and extremely challenging behaviours. He lives in a purpose-built house in a remote area funded for multiple staff providing 24 hour care.

X absconds from the house at night, runs onto a nearby road in front of a car. The driver swerves to miss him, collides with a tree and a passenger is killed.

The local newspaper runs a story that says that a lack of funding has caused drop in overnight staffing hours at the purpose-built house. The mother of the deceased passenger is calling upon the Minister to direct greater resources to the house to prevent X absconding again. The Secretary/Minister responds that there are no further resources to apply to the house and that allocation of staffing hours is a matter for the DSP. The issue rages in Question Time and the paper runs the story each day for a week.

The Secretary then receives an application for the physical restriction of X during sleeping hours.

Obviously, the Secretary is bound, in considering an application, to weigh up information carefully and in accordance with administrative principles even if subject to political and public pressure. However, the question of conflict of interest (or bias), in legal terms, is not usually assessed on whether the Secretary isactuallybiased but whether an objective bystander might apprehend that the decision-maker might not bring an impartial and unprejudiced mind to the case. In the example, an objective bystander may consider that the Secretary has competing forces (e.g. defence of earlier funding decisions, the appeasement of public concern, resolving the anxiety of the Minister, avoiding further publicity on the issue) in deciding whether X should be locked in overnight.

Therefore, as stated above, an option to replace the section 33 administrative processes of the Secretary with an application and hearing process before the GAB for some or all interventions may be more appropriate than the process set out in the Bill.

The question of proportionality is a relevant one. Some restrictive interventions have a limited impact upon a person’s freedom and therefore a full-blown quasi-judicial process would be unnecessary.

The practice of the Disability Services Ethics Committee (DSEC) in the past (although as you know it is my opinion they have undertaken this practice without authority) was apparently to distinguish between environmental restraints and personal or bodily restraints. They seemed to give (ultra vires) approval to environmental restraints (such as locking knife drawers, censoring etc) but where restraints have a more bodily or personal impact, they referred these matters for determination within a guardianship application before the GAB. I have been a long time critic of all things related to DSEC, but there may be some common sense in that approach.

The simplest option would be to assign to the Guardianship and Administration Board the powers currently proposed for the Secretary under section 33. This would fit comfortably with the Board’s functions under Part 6 of the GAA, as the tests were modelled on the Board’s existing powers under section 45.

A less simple, but more proportional, option would be to make a distinction between an protective environmental intervention (e.g. locking knife drawers and fridges, censoring) and a restrictive intervention which has an impact upon the liberty of the person (e.g. physical restraints, locking of doors). Applications for protective environmental interventions could be decided by the Secretary but more serious restrictive interventions proceed before the Board for determination. It would also make sense to enable the Secretary to elect for some protective environmental interventions to be determined by the Board if the Secretary believed that was appropriate for whatever reason.

Part 6 of the GAA is currently deficient in that it does not provide a finite term for determinations or an automatic review of decisions made under that Part. If restrictive interventions were a matter determined by the Board, it would be important that such determinations be limited in time and subject to regular reporting and periodical reviews.

In past consultations I have expressed a concern that if every restrictive intervention required approval by the Board, then we would be overwhelmed with applications. I believe that categorising restrictive interventions as environmental and personal (however described) might allow for simple administrative processing of limited interventions, but an appropriate process for more serious interventions.

The following flow chart hopefully explains the process:

Further consideration needs to be given to whether the Board or the Secretary might be given authority to approve of restrictive interventions in an emergency and for how long an intervention might be approved (e.g. 72 hours?) before the matter is reviewed fully.

I am happy to discuss these ideas further.

Yours faithfully

Anita Smith

PRESIDENT