DISABILITY SERVICES (MISCELLANEOUS) AMENDMENT BILL
04/04/2012
FULL TEXT OF THE BILL: RTF | PDF
The Hon. K.L. VINCENT (16:56): obtained leave and introduced a bill for an act to amend the Disability Services Act 1993. Read a first time.
The Hon. K.L. VINCENT (16:56): I move:
That this bill be now read a second time.
Before I officially begin, I note that we have Mr John Gardner, the shadow minister for disability, with us in this chamber and I thank him for attending. Ever since I came into this parliament I have been talking about the need to move toward a consumer-driven, entitlement-based system within disability services in this state. This includes talking about the need for reform to the South Australian Disability Services Act, which moved the act away from its current ‘the provider knows best’ model toward one that empowers consumers and protects them by introducing genuine enforceable standards which consumers can expect when accessing disability support services, such as in-home support workers as one example.
Indeed, calling for the government to amend the South Australian Disability Services Act to enable this was one of the very first planned models the Dignity for Disability Party announced via a press conference in the weeks following my coming into this place. This is, of course, something the disability community has been calling for for many years, especially during the consultation period for the recent Strong Voices report. I am pleased to see that Monsignor David Cappo, who was at that time social inclusion commissioner and what was his social inclusion unit, have in that report recommended all the measures covered in my amendment bill, and I will touch on exactly what are those measures very shortly.
Before then, however, I inform members of a little of the history of this bill. Truth be told, I had originally had this bill drafted in mid-2011, at which point the disability community’s future had been in hiatus for almost two years, hinging upon the results of this report, that is, the Strong Voices report. Around that time we also saw Monsignor David Cappo publicly announce that the original deadline for the tabling of the report would have to be set forward by a few months. This was understandably met with much anger and frustration by many in the community who had, in some cases literally, marked the original release date in their diaries as the day they would finally be able to at least start planning for their futures, and in some cases even make decisions as to whether they would pack up and leave the state or even the country, such was the power and the import of this report.
Yet, the original release date came and went and the report was eventually tabled in the government’s own good time. Do not get me wrong here, Mr President, apart from this outrageous delay, I have very little issue with the report itself. As I said, the content of this very bill mimics recommendations in that report, but as I also said, it was drafted a short time before the report was released. Through meetings with Monsignor David Cappo and representatives of the social inclusion unit, as well as conversations with consumers, service providers and, of course, attending consultation sessions myself, I had begun to get a very clear picture of what was expected by those people to be in the report in terms of legislative change.
Well, Mr President, months after the release of the report and months after minister Hunter was appointed to the disability portfolio, we are yet to see even a draft of this new legislation on the government’s part. I am going to be as fair as I can. Granted, a few months is not a very long time, but when we consider that these months come on top of the two-year research and consultation period undertaken by the social inclusion unit and then the four-month delay in finalising the report, not to mention the UN Convention on the Rights of Persons with Disability to which Australia has been a signatory since 2008, the National Disability Strategy Consultation Report of 2009 (also known as the Shut Out report) into the experience of people living with a disability in Australia, as well as every other piece of investigation that has been done into the sector, these months start to look like a very long time indeed.
Even knowing this, I was willing to be patient. I was willing to give minister Hunter a chance, and I must say, in many respects, I have not been disappointed. The minister does show great willingness to learn about the sector that he now represents. He seems to demonstrate genuine empathy for that sector too, but what the minister so far has failed to demonstrate is genuine understanding of the gravity of the need for this new disability services act to be drafted—and drafted now. I knew this when he stood up in this very chamber just a few short weeks ago and informed us that he intended to undertake yet another round of consultation before drafting his new act. I knew something needed to be done, so here we have my bill.
Do not misunderstand me; I am, of course, like most members in this place—if not all—a great believer in the necessity for consultation with relevant communities and professionals when drafting legislation. These are, after all, the people whom the proposed legislation is intended to serve. However, I am a believer in responsible consultation and I do not believe that asking the disability community, a sector which has been waiting to have its rights appropriately upheld on a legislative level for years already, to wait even longer is at all responsible.
Certainly, I may be of a different opinion if the Strong Voices report was, say, two, five or even 10 years old, but as we all know, this report was finalised just last year. It is in line with vast community opinion. It is a solid blueprint for that infamous human rights based disability services framework we keep bantering on about in this place. It is a step forward in making that framework real and, more than anything, this report is a mandate for us as a parliament to take action toward making that framework real and doing it now.
To further ratify this need, I would like to read a short passage from the Shut Out report which I mentioned earlier:
Persons with disability are subject to multiple and aggravated forms of human rights violations, including the neglect of their most basic survival related needs. These human rights violations do not only occur in far off places that lack enlightened legislation and policies, or the resources needed to meet basic needs. They occur every day, in every region, of every state and territory in Australia. Virtually every Australian with disability encounters human rights violations at some points in their lives, and very many experience it every day of their lives.
In 2009, in one of the most enlightened and wealthiest nations in the world, it is possible for persons with disability to die of starvation in specialist disability services, to have life-sustaining medical treatments denied or withdrawn in health services, to be raped or assaulted without any reasonable prospect of these crimes being detected, investigated or prosecuted by the legal system, and to have their children removed by child protection authorities on the prejudiced assumption that disability simply equates with incompetent parenting.
I think that everyone in this chamber knows that the things I have just listed in that quote are just some of the human rights violations to which people with disabilities can be particularly susceptible. I also think that it is no secret that here, in 2012, when it comes to addressing these issues, nothing much has changed since the Shut Out report was tabled.
My bill proposes three separate yet interrelated matters to help lessen the frequency and severity of such human rights abuses against people with disabilities. The first of these measures is outlined in Part 3 of this bill; namely, the appointment of a disability services commissioner, which is already written into legislation in Western Australia, the ACT and Victoria; with Victoria being the state upon which much of this bill is based.
The commissioner’s role is to set and oversee compliance to standards and guidelines for disability services provision. The commissioner may do this by carrying out the prescribed functions as detailed in the bill. I will read them out, because I think they are important to have on the record. They are as follows:
(a)To receive, assess, investigate and resolve complaints relating to disability services.
(b)If appropriate, to conciliate where a complaint has been made in relation to a disability services provider.
(c)To make recommendations for providing disability services and preserving and increasing the rights of people who use those services.
(d)To review and identify the causes of complaints and to recommend ways to remove, resolve or minimise these causes.
(e)To provide information, education and advice in relation to disability service rights and responsibilities and procedures for resolving complaints and other matters, if any, determined to be appropriate by the commissioner.
(f)To encourage and assist disability services users to resolve complaints directly with disability services providers.
(g)To assist disability service providers to develop and improve training and procedures to deal with and resolve their own complaints.
(h)Maintain a record of all complaints received by the commissioner.
(i)To inquire into and report on any matter relating to disability services on the commissioner’s own motion or at the request of the minister.
(j)To advise and report to the minister on any matter relating to disability services or the administration or operation of this act.
(k)To provide information, advice and reports to registration authorities and to work with registration authorities to develop or improve procedures relating to the assessment and investigation of complaints and grievances.
(l)To maintain links with disability service providers, organisations that have an interest in the provision of disability services and to consult and cooperate with these agencies and authorities which are involved in protecting the interests and rights of members of the community in the area of the provision of disability services, including the public advocate, the state Ombudsman, the Australian Human Rights Commission, and to perform the functions conferred on the commissioner by or under this or any other act.
As you can see, Mr President, by maintaining working relationships with consumers and the advocacy bodies that I have just mentioned, as well as others, the disability services commissioner would be adequately connected and informed to perform their primary function of making recommendations regarding disability services.
That function, I think, is really the axis of this whole bill. You see, it is all very well and good for this government to stand here in this chamber and talk endlessly about the need for a new human rights based framework for the disability sector—I think we can all agree on that need—but the fact is that without someone whose specific role it is to aid the government in implementing genuine standards which the disability community has a right to expect, and the adequate resources and networks to aid and inform this work, I simply do not see how this can be successfully done.
This brings me to some other proposed functions of the commissioner of which I would like to make specific mention: first, to receive, assess, investigate and resolve complaints relating to disability services; and, if appropriate, to conciliate where a complaint has been made in relation to those services. This function of the proposed commissioner is so vital simply because I know from the sheer volume of correspondence which my office receives from constituents concerned about a disability-related service which they or a loved one is receiving that people are currently confused about where to go to make such a complaint and they are unsure of their rights should they choose to make one. Many report that they are afraid that their services will be cut if they do complain.
I ask you this, Mr President: how can we create a system that is truly based on human rights when those very humans for whom the system was created to serve are afraid to speak up when they are unhappy? How is it that South Australia has got to the point where consumers really seem to believe that they are living under some kind of dictatorship, rather than being assisted by a system that works alongside them and can flex to suit their life? Not only that, how have governments allowed this mentality to reign for so long? I think it is vital to note that I believe that this function of the commissioner is particularly important, given the defunding we have seen in recent times of disability advocacy bodies, as well as the government’s lingering silence on whether or not it will appoint a new Health and Community Complaints Commissioner to replace the outgoing one, Leena Sudano.
On that note, it would be remiss of me not to mention that there are measures within this bill to ensure the independence and objectivity of the commissioner in carrying out his or her work. Clause 14 of the bill provides:
1.In performing and exercising his or her functions and powers under the Act, the Commissioner must act independently, impartially and in the public interest.
2.Subject to this Act, the Minister cannot control how the Commissioner is to exercise the Commissioner’s statutory functions and powers.
Since it is this very government that has delivered the South Australian disability sector to its current situation of inadequate funding and service delivery to meet people’s most basic needs, it is vital that anyone appointed to the roles proposed under this bill has the power to act in such a way that allows them to do more than gain the government’s approval. We need people who are not afraid to speak out against governments and to show them the real problems in their own systems. This is why each of the facets of this bill—the disability services commissioner, the senior practitioner and the community visitors—are all covered by this independence clause.
Another function of the commissioner is particularly relevant here: to assist disability service providers to develop or improve training and procedures to deal with and resolve complaints. With the appropriate education and supports from the commissioner, agencies will be more able to handle complaints directly. Therefore, we are likely to see the commissioner taking on the role of resolving complaints less and less over time, freeing them to take up the more core functions of instating guidelines and standards for disability service delivery.
That being said, even as service providers handle more complaints independently, the commissioner will still be able to act as a safety net, if you like, to assist agencies and consumers in resolving complaints where appropriate. Vitally, this will also assist the commissioner in carrying out their duty to ‘review and identify the causes and complaints and to recommend ways to remove, resolve or minimise those causes’.
Of course, under a new disability services system that is truly based on human rights, we cannot simply go about appeasing individuals and addressing individual problems. A human rights-based framework must look at individual issues as being symbolic of greater underlying systematic failures and work to mitigate those failures holistically until every human receiving services under that system has the right to equal access to that system. It is little good solving individual issues if the individuals experiencing them are ultimately only going to be pumped back into the same old broken system, where the same old problems are likely to arise again over time.
By having a commissioner identify the patterns in the system and discover the links between the varied barriers in the sector, we can come up with holistic solutions to those issues, mitigating the effect of those issues on individual consumers, as well as lessening the likelihood of having those issues arise again. Part 6 of the bill further explains the role of the commissioner in this sense by outlining the ground on which a complaint may be made to that commissioner.
These include that a service provider has not provided or has inappropriately discontinued provided services; that a service or part of a service was not necessary or was inappropriate; that a disability service provider failed to act with appropriate skill, failed to respect the privacy and dignity of a client, or otherwise acted in an inappropriate manner; and so on. Part 6 also outlines the grounds on which people are eligible to lodge such a complaint, including outlining the appropriate actions to take in assisting someone to lodge a complaint where they may be a minor, deceased or otherwise unable to lodge it on their own behalf.
Part 6 of the bill also states the time frame in which a complaint regarding a particular service may be received by the commissioner. According to the bill, this would normally be up to six months after the incident being complained about had arisen. However, as members can see, the commissioner does have the power to, at their own discretion, take complaints which fall outside of that time frame should the commissioner see doing so as sufficiently beneficial.
Critically, to aid the commissioner in functioning effectively, the bill also makes it an offence for a disability service provider not to provide the commissioner with information requested as part of an inquiry by the commissioner. This carries a maximum penalty of $10,000. The Disability Services Commissioner would, of course, be obligated to make reports to the minister on their professional findings and recommendations. The bill provides:
(1)The Commissioner may, at any time, prepare a report to the Minister on any matter arising out of the exercise of the Commissioner’s functions under this Act.
(2)Subject to subsection (3), the Minister must, within 2 weeks after receiving such a report under this section, have copies of the report laid before both Houses of Parliament.
(3)If the Minister cannot comply with subsection (2) because Parliament is not sitting, the Minister must deliver copies of the report to the President and the Speaker, and the President and the Speaker must then—
(a)immediately cause the report to be published; and
(b)lay the report before their respective Houses at the earliest opportunity.
The roles of the commissioner proposed under this bill are obviously numerous, and I feel that many of them are relatively self-explicable. I am very happy to discuss them further with individual members if need be, so I will move on now to explaining the other sections of this bill.
Part 4 of this bill states that there should be a senior practitioner for the disability sector, whose role it is to oversee and make guidelines regarding the use of restrictive practices—in this bill named ‘restrictive interventions’—on people with disabilities. Broadly speaking, ‘restrictive intervention’ is a term given to the use of devices, including the use of mechanisms to physically restrain a person, or even the use of medications to chemically restrain them, that is, to use some device to lessen the severity of a person’s behaviour or, indeed, to inhibit them from exhibiting such behaviours at all.
Of course, there are occasions on which things which technically could be labelled as restrictive are necessary. A person may require medication to assist them in managing the effects of a psychiatric illness, for example, or someone whose disability means that they have very poor posture and balance might require a special belt or harness for car travel. These devices when used correctly are not necessarily objectionable.
The label ‘restrictive practices’ applies only, to the best of my knowledge, once the mechanism is used to restrict a person’s movement or behaviour in a way that causes harm or distress or violates their rights in some way. To give you some examples of real-life restrictive interventions at work, I have recently been collaborating with a GP who does not wish to be identified. Many of his patients have disabilities; intellectual disabilities in particular. He says that it is not uncommon for his patients with an intellectual disability to be accompanied to appointments by a support worker who requests an increase in the dosage of medication the patient is currently taking, because the patient has begun to exhibit aggressive behaviours.
Of course, aggression and violence need to be addressed, and in some cases of mental illness and so on appropriate medication can be one device for doing so. However, this doctor informed me that on several occasions he has undertaken a physical examination of the patient before agreeing to up the dosage, only to discover that the cause of the behaviour is the frustration the patient feels at not being able to tell their support worker that they are experiencing a lingering toothache or some other simple, physical symptom that could easily be addressed without medication.
This means that, potentially, there are people suffering genuine ill-health who are being doped up to the eyeballs, and suffering all the mental anguish that comes with that, including potential personality changes for example, just because no-one thought to undertake a more complete examination of the patient. I believe this to be a massive human rights violation, and I do not think any members in this chamber would disagree with me—especially when we consider that a holistic examination is something that most of us enjoy the ability to request and expect when paying a visit to our medical practitioner.
To give another example of chemical restraint being used as a form of restrictive intervention, just a few days ago I met with a constituent who has a 42-year-old son with an intellectual disability who lives in a supported residential facility in South Australia. She reported to me and my staff that her son needs help to go to the bathroom and, being non-verbal, the only way he can let support staff know when he needs to go is to bang on the table. His mother says that the staff often do not get him to the bathroom in time, so he wets himself. Like most of us, this man finds this experience very distressing, so he has been known to ‘grab the staff’ when they get to him. Disturbingly, instead of implementing a strategy which ensures that this man gets to the toilet on time, his mother alleges that the staff have instead chosen to give him Valium—occasionally more than one dose in a single day—to stop him showing such signs of distress.
I have another example, this time of physical restrictive practice. I once spoke on a panel of field experts on disability rights abuse issues. One of my fellow panel members was an interstate expert on the use of restrictive interventions. She told us that she had been to visit a supported residential facility housing people with disabilities in which she saw residents restrained using a type of soft glove with two open ends. The resident would happily stick their hands into them, taking the glove for some kind of toy, only to discover they could not get their hands out again. It was also mentioned that residents with lower than average personal mobility were at times placed in very deep armchairs, which they were unable to get out of independently, and left there.
As I said, there are, of course, times and situations when it is likely that some form of temporary restraint will need to be applied to a person—in instances where the person exhibits sudden or extreme violence, for example. However, I think we can all see from the examples I have just given that restrictive interventions are nothing more than an ill-considered, lazy approach to mitigating behaviours for a short time rather than holistic and longer term approaches focused on the underlying causes of the behaviour. This obviously results in huge denials of civil liberties and should not, must not be tolerated.
My bill proposes to mitigate this enormous problem with the appointment of a senior practitioner to set and oversee compliance with standards for the use of such restrictive interventions. To give an idea of the role of a senior practitioner, and the kind of person I would consider suitable for the position, I would like to tell you just a little bit about Queensland’s current Senior Practitioner Dr Jeffrey Chan. Dr Chan is nationally, and indeed internationally, recognised for his high level of expertise in the areas of forensics and restrictive interventions and people with disabilities.
He began his role as senior practitioner in the state of Victoria in 2006, following an amendment to that state’s disability act, on top of its human rights and responsibilities charter. He has apparently been so successful in that particular role that he has since moved to take on the same work in the state of Queensland.
To outline the roles and functions of this practitioner, I would like to read out a brief quote from a communiqué from the South Australian Council on Intellectual Disability (SACID), an organisation which, like the Dignity for Disability Party, has been calling for an amendment to the South Australian Disability Services Act like that which is proposed in this bill for quite some time. In the communiqué, the senior practitioner role is summarised as follows:
It is commonly accepted that challenging behaviour does not occur in a vacuum, it occurs in the context of relationships, the environment and a complex interplay of biological, sociological and physiological factors. Jeffrey—
That is Dr Chan—
encourages service providers to look at their own practice and question whether or not they continue to engage in restrictive practices because that is what they have historically always done. There is extensive evidence of both the significant risks to staff and people living with disability when restraint is applied and also the benefit to the lives of people living with disability and those who support them when strategies which support the reduction and elimination of restraint are effectively implemented and governed.
Evidence, research, practice and experience in Victoria have demonstrated the effectiveness of a senior practitioner who has significant legislative powers in the implementation of key strategies targeting: advancing disability support and practice; building partnerships and local capacity; and creating leaders. Ongoing data collection and timely reporting of this information and its meaning back to departments is an essential ingredient to inform the process and make change.
By having a senior practitioner in place to collect the data and recognise the patterns and underlying causes of the inappropriate uses of restrictive interventions can prevent the serious abuse of liberties, injuries and even death that may unfortunately occur and has been known to occur. However, in my opinion, we not only need to look at mitigating restrictive interventions from a human rights perspective but we also need to look at this as being a good thing from a cost-benefit perspective.
Documentation was passed on to my office from Dr Jeffrey Chan’s office, entitled Dollars and Sense of Restraint and Seclusion which suggests that restrictive intervention is financially a very costly measure to implement because of staff resources and the time directed towards it. The report states:
Restraint and seclusion use also contributes to violence in the workplace, increased workforce-related costs, a reduced quality and effectiveness of care, and imposes unquantifiable personal cost on people and workers alike.
In fact, the report shows that a study in the United Kingdom calculated the costs of conflict and containment in 136 adult acute psychiatric units and found that a single episode of manual restraint cost £145 (which is roughly $204.70AUD) because of the staff time and resources dedicated to it. This is why one of the major functions of the senior practitioner interstate is to assist staff in supported resident facilities to implement behaviour support plans for residents who exhibit what might be called challenging behaviours.
As I understand it, these plans help the support staff to implement strategies to lessen the severity of residents’ behavioural challenges by identifying what actually causes them, as well as instating more positive alternatives to the punitive measures of restrictive interventions which are likely to only result in exacerbations of the behaviour later.
Having a senior practitioner who can assess the use of restrictive interventions from both a forensic and a human rights perspective to assist disability support agencies to implement these behaviour support plans for their clients is positive for the long-term health and welfare of these clients.
It would also foster a cultural shift within the support workers, by getting them to truly think about their clients as people whose needs are just as varied and complex as those of any of us here in this chamber. It will encourage workers to take a real person-centred approach to their work and to think about the most effective ways to address the needs and abilities of both their clients and themselves in both the short and longer term.
It is vital that members remain ever mindful of the fact that the bill does not specifically ban or outlaw the use of restrictive practices per se. Part 8, section 75 of the bill states that a disability service provider may indeed make an application to the responsible minister to be allowed to use a practice which could be labelled as restrictive intervention. The minister, in cooperation with the senior practitioner, may approve or decline such an application, and this section of the bill makes clear the information required to do so. The minister also has the power to revoke an approval.
The bill clearly outlines the grounds on which the use of restrictive intervention may be deemed appropriate and consequently approved; namely, and I will read them out as I think they are important to have on the record:
Unless section 86 applies—
that is, the section which deals with the use of restraint in emergency situations—
restraint, seclusion or segregation can only be used—
(a)if the use of restraint or seclusion is necessary—
(i)to prevent the person from causing physical harm to themselves or any other person; or
(ii)to prevent the person from destroying property where to do so could involve the risk of harm to themselves or another person; and
(b)if the use and form of restraint, seclusion or segregation is the option which is the least restrictive of the person as is possible in the circumstances; and
(c)if the use and form of restraint, seclusion or segregation—
(i)is included in the person’s behaviour support plan; and
(ii)is in accordance with the person’s behaviour support plan; and
(iii)is only applied for the period of time that has been authorised by the Authorised Program Officer; and
(d)if seclusion is to be used—
(i)the person is supplied with bedding and clothing which is appropriate in the circumstances; and
(ii)the person has access to adequate heating or cooling as is appropriate in the circumstances; and
(iii)the person is provided with food and drink at the appropriate times; and
(iv)the person is provided with adequate toilet arrangements; and
(e)if any other requirements imposed by the Senior Practitioner are complied with.
Critically, this bill mandates that the details of each approved measure of restrictive practice must be written into the behaviour support plan of the individual clients or residents for whom they are approved for use, and no other method other than that which is written into the plan will be permissible.
Consequently, part 8, section 74 makes it an offence to use restrictive interventions on a disability service client without express approval to do so from a minister, and this offence carries a maximum penalty of $10,000. Additionally, a disability service provider who applies restraint or seclusion to a client outside of the parameters of sections 80 or 86 of the bill is guilty of a separate offence, this one carrying a maximum penalty of $35,000.
In addition, the senior practitioner would, much like the Disability Services Commissioner, be obligated to table an annual report on their work to the relevant minister, who is, in turn, obligated to table that report to both houses of parliament within six sitting days of receiving it. Like the commissioner, the senior practitioner also has the authority to present reports to the minister at any time, in which case the minister is given a little more time to table such a report.
As I said, I have documentation from the Office of the Senior Practitioner which strongly supports the case for instating the position in South Australia, and I am happy to share that information with members as they require it. For now, however, I will move on to discussing the final proposed function of this bill, that is, the establishment of a community visitors scheme for the disability sector. As members are no doubt aware, there is in fact a community visitors scheme or CVS already in operation in South Australia, which is specifically for people in government-funded accommodation who are in receipt of services under the mental health system. This came to be after an amendment to South Australia’s Mental Health Act in recent years.
Briefly speaking, this scheme operates by appointing community visitors who are trained and then given the job of randomly visiting residential facilities housing people with mental illness. While there the visitors can peruse the premises in any way which allows them to make objective detailed judgements on the standard of care and service being delivered. They are given the authority to interview both residents and staff in private—with the consent of these people of course—so that they can get a realistic and holistic idea of the real life experience of the people living and working in these facilities.
The visitors are therefore able to make assessments and reports of any witnessed abuse or neglect, or suspected abuse or neglect, of the residents, and indeed make recommendations to the responsible minister to any changes that could be made to the service delivery to improve the situation for these residents. This is important, I think, for a very obvious reason. The government simply cannot know the real extent of the problems, both on an individual and a more systematic level, which exist within disability-funded group accommodation, and know how to work towards correcting those problems if we do not have regular objective check-ins and reports on the real life status of the quality of service being delivered.
By expanding the CVS out into the broader disability community, where people with disability are in receipt of accommodation services, we can indeed advance the human rights of those people living in these facilities by giving them a platform through which their health and safety is monitored objectively, genuinely and regularly, and they are freely able to lodge a complaint about the service they are receiving within that facility—any complaint which they may have.
By having a team of trained community visitors we will also inherit a growing task force, if you like, of people who are knowledgeable on disability rights and protection issues, as well as knowing how to appropriately report concerns and suggested strategies for change in a way that will adequately inform and empower the relevant minister and departments to instigate appropriate long-term and short-term change.
Now, having explained the general concept and reason for being of the proposed CVS, I would like to move to mentioning just a few of the intricacies of this particular scheme proposed under this bill. Obviously this particular part of the bill only gives community visitors the authority to visit premises at which disability service providers, whether government or NGO, are providing accommodation services to people with disabilities—group homes like those provided at Minda, for example. This scheme would not apply therefore to South Australians living in their own private home.
The community visitors therefore are themselves appointed to the position by the Governor in collaboration with the public advocate. This will ensure both objectivity and appropriate discussion (that is, not just one person choosing based on their own opinion) around who is appointed to become a community visitor. Under clause 37 of the bill, community visitors are represented, supervised and trained by the community visitors board, which consists of the Public Advocate and two community visitors. This board may also refer a matter reported by a community visitor to whichever of the following organisations the board deems appropriate to deal with the matter. They are: the minister, the commissioner, the senior practitioner or the Ombudsman.
Each community visitor is appointed for an original term of three years. However, they are indeed eligible for re-appointment following this, providing, of course, that they wish to carry on in this position and there is no other reason that could result in their dismissal. This is important because again, it gives the opportunity for objectivity and fresh thinking if new visitors are appointed often, and yet it does not force the scheme to lose people who do make a valuable contribution to it just because their three years is up.
This is again important for getting that task force of disability awareness which I was touching on just before. Under this bill, community visitors are entitled to reimbursements for fees, travel costs and any other cost incurred as part of their duties, as deemed appropriate by the Governor. However, this bill does not specifically entitle visitors to a salary. Additionally, of great importance is the fact that there are quite stringent rules in this bill which outline who is eligible to be a community visitor.
Whilst holding office, a visitor is excluded completely from work in the Public Service. A person may not be appointed as a community visitor if they currently hold any appointment or employment within the department, meaning whichever administrative department it is eventually decided should be responsible for this bill should it pass into law. Nor can a person gain this position if they have any financial interest in any contract to which that department is party. Of course, this bill encourages the Governor to ensure to the fullest extent possible that both genders are equally represented in this position.
Under this bill, each community visitor has the power to visit the residential facilities to which this group applies and make assessments as to the standard of the premises themselves, as well as making judgement on whether or not the residents are getting enough information to enable them to make informed choices about their accommodation and the services they receive therein.
Where and how we live are choices many of us take for granted, and I think it is high time to afford people with disability this same luxury. The visitors also assess the level of inclusion and interaction with the community offered to these residents. Of course, the level of inclusion that a person has with their community should ultimately be up to them as individuals, but we need this monitoring to ensure that people living in supported residential facilities are at least being offered enough choices.
Community visitors also have the power, and indeed the mandate, to make reports on any incidences of abuse and neglect that they witness whilst on official visits to premises. A visitor is obligated to report any complaint about aspects of residential service made to them by a resident, a guardian, a medical agent, relative, carer or friend of a resident, or any other person providing support to that resident. Community visitors must act as advocates for the rights of residents living in the premises in which they carry out official visits.
They must do this by promoting proper resolution of issues raised and they must refer matters of concern relating to the organisation or delivery of disability services in South Australia to the public advocate, the senior practitioner, the commissioner, or any other appropriate person or body. In order to carry out this duty, under this bill visitors are afforded the authority to visit premises to which this bill applies without prior notice, at any time that they as an official community visitor think fit. This is vital if the government is going to see, finally, the true nature of its own facilities.
The minister may also instruct the visitors to carry out visits at times that the minister deems appropriate and, whilst a visitor is carrying out an official visit, this bill mandates that the disability service provider and any member of the staff or management of that residential service must provide the community visitor with such reasonable assistance as the community visitor requires to perform their duty effectively and give full and true answers, to the best of that person’s knowledge, to any questions asked by a visitor in the performance or exercise of that power. Failing to do so would be an offence carrying a maximum penalty of $5,000.
As I said before, a community visitor would have the power to conduct interviews with anyone wishing to speak with them in their official capacity regarding any complaint. A resident or a guardian—again, a medical agent, relative, carer or friend of a resident or any person providing support to that person—may make a request to see a community visitor and, where that request is not made directly to the visitor themself but, instead, to a manager of or a person in a position of authority at premises to which this part applies, that person must advise the community visitor of that request within two days of receipt of that request.
Of course, after making visits and collecting the relevant information, community visitors are obligated to make reports about their findings. Under clause 36 of this bill, a community visitor must, at least twice a year, submit a report to the community visitors board on all visits made since the last report. Additionally, a community visitor may, at any time, submit a report to the community visitors board containing any recommendations that the visitor considers should be considered by the board.
In closing, I think it is obvious how each of the proposed functions of this bill, while independent from each other, are each important pieces of the picture, parts of a new rights-based system by which consumers are given a voice, not silenced by red tape and a lack of support to have their voices heard. I believe that each of the functions of this bill are equally vital and must be instated to ensure a better, realistic and equitable future for South Australians with disability and for their support networks. After all, we cannot solve the current problems with the same thinking that created them.
I know that the government is planning to introduce its own disability services amendment bill to bring the act in line with the Strong Voices report eventually. I have already outlined in no uncertain terms why the Dignity for Disability Party believes that this cannot wait. If we wait for a convenient time to reform disability services in South Australia in a way that is line with both other states and the mindset behind the National Disability Insurance Scheme, it is likely that we will be waiting a long time. I believe the government can have no reason to reject this bill other than its desire to do one of its own and get those brownie points.
The government can accuse me of stealing its thunder, the government can accuse me of grandstanding but none of that matters. I believe, Dignity for Disability believes and the disability community at large knows that it is time to stand up and make a real change for the good of South Australia for its future. We have had the consultations, we have had the forums, we have had the reports and the blueprints. We have made the in-theory commitments and now, more than ever, it is time to make it real. I commend the bill to the house.
Debate adjourned on motion of Hon. G.A. Kandelaars.
