Victorian state disability plan 2017 - 2020
Submission to the Office for Disability
4 July 2016
Contact
Liz Dearn Coordinator,
Policy and Research Unit
9603 9509
Prepared by
Mark Feigan
Senior Policy and Research Officer
Contributions from
Natalie Tomas
Senior Policy and Research Officer
Laura Green
Coordinator, Independent Third Person Program
Office of the Public Advocate
Level 1, 204 Lygon Street, Carlton, Victoria, 3053
DX 210293 Local Call: 1300 309 337
TTY: 1300 305 612 Fax: 1300: 787 510
www.publicadvocate.vic.gov.au
1. About the Office of the Public Advocate
The Office of the Public Advocate (OPA) is an independent statutory office with a range of
functions and powers under the Guardianship and Administration Act 1986 (Vic). OPA
safeguards the rights and interests of people with disability in Victoria.
Our services include the provision of guardianship, investigation and advocacy to people
with cognitive impairments or mental illness. In the last financial year, OPA was involved in
1511 guardianship matters, 438 investigations and 381 advocacy matters. OPA also
coordinates the Community Guardianship Program, the Community Visitors Program and
the Independent Third Person Program (ITP). These programs support over 900 volunteers.
The Community Visitors undertook over five thousand visits last year. OPA also plays a role
in community education, the provision of advice and information and undertakes research,
policy development and systemic advocacy.
2. The four themes
The discussion paper notes that the ‘plan is about increasing Victoria’s inclusion and
accessibility through concrete actions over the next four years’. OPA supports this
intention.
The State Plan provides a platform for the State of Victoria to declare its continuing role in
improving the everyday life of people with disability during and after NDIS implementation.
To this end, the plan should clearly articulate the state’s enduring responsibilities across a
broad range of issues, some of which are not addressed in the discussion paper. Critical
issues for people with disability include access to mainstream services, advocacy, social
inclusion, human rights promotion, criminal justice and safeguards to prevent violence,
abuse, neglect and exploitation. We have particularly addressed these last issues in our
submission below.
2.1 Active citizenship
2.1.1 Exclusion
The pervasive disadvantage and social exclusion experienced by people with disability was
brought to public attention 35 years ago by the 1981 International Year of Disabled
Persons. Since then, Victoria has been an international leader in reform of the law and
disability support system to bring about full societal membership for all people with
disability.
The recent announcement of the closure of Colanda is one of the last remaining steps
towards the deinstitutionalisation of the disability system. The next State Disability Plan
presents a major opportunity to declare how Victoria will continue taking the lead on action
towards full inclusion and citizenship.
Despite the good progress made in Victoria, OPA continues to be deeply concerned at the
entrenched social exclusion and disadvantage that denies many Victorians with disability
the right under article 19 of the Convention on the Rights of Persons with Disabilities, to live
independently and participate in the life of the community. Too many people with disability
are still living in daily hardship, with limited opportunities for even basic levels of
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participation. Action needs to be taken to counter this hardship, particularly where it results
from barriers or dysfunction at the interface of different service systems.
Persistent examples of social exclusion that have been repeatedly reported by us and
others over the last thirty years involve people living long term in inappropriate settings like
sub-acute hospital settings, prisons, respite services, mental health wards, prisons and
aged care settings because of a lack of suitable community based accommodation and
support.
One example of this problem is the current situation in hospital sub-acute settings. People
with disability can languish in hospital for more than six months following acute health
treatment due to a combination of risk-adverse behaviour and a lack of alternative options
with adequate supports.1 Another example occurs in psychiatric acute and mental health
community care settings. There are still more than fifty people around Victoria who continue
to be confined for long periods following readiness for discharge, due to lack of availability
of alternative accommodation and support.
Many hundreds of people with disability are living in Supported Residential Services without
the high-quality support they need to live an ordinary life. Other people with disability
continue to live in aged care services, despite their young age. Some people with disability
are being civilly detained in services, when a less restrictive option should be available,
except for a lack of an alternative option. Elsewhere, some people occupy places in respite
services long-term, that were intended for short term stays. In Victorian prisons, people
having a mental illness or an acquired brain injury are over-represented.2
In contexts like sub-acute hospital, respite and mental health settings, the lack of alternative
placement contributes to the problem of ‘blocked beds’, with the upstream impact on other
patients and/or people with disability.
Some of the people affected by these inappropriate placements may have some of their
needs better addressed through NDIS participation. Others will not. Considerable public
expenditure is involved in keeping people in these inappropriate and expensive settings and
placements.
As the discussion paper states, ‘there is a pressing need to do better for all Victorians with a
disability’. There is also a pressing responsibility upon the Victorian Government to tackle
the deep and pervasive exclusion and neglect that individuals with disability experience.
Recommendation 1
The Victorian Government should establish a mechanism for remedying the
inappropriate placement of people with disability in SRSs, aged care, sub-acute,
prison, respite and mental health facilities and incorporate this into the State
Disability Plan. Specifically, the plan should mandate the formation of a flagship
inter-departmental taskforce, with representation from all relevant portfolios and
measurable targets. This taskforce would collate existing information on the
scope of this problem. The taskforce would deploy reinvestment and capacity
building approaches, which call forward savings from avoided future
expenditure. Over the four years of the plan, an evaluation must be able to show
that no one remains in an inappropriate setting, which does not meet their
needs and human rights.
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2.1.2 Inclusion
Our concerns expressed above also bring attention to the concept of Active Citizenship.
The discussion paper assumes that with some support, all people with disability are able to
participate as active informed citizens across all domains of life. This approach is a good
guiding principle and goal. It requires us to think about ways of supporting every person so
they may participate in the life of the community as fully as possible. It can also disguise the
situation for some people with disability who have significant cognitive impairment. Their
disability can restrict their decision-making capacity and ultimately their civil and political
participation.
This real-life capacity restriction for some people with disability necessitates a range of
safeguards and measures, including mechanisms to enhance inclusion like supported and
substituted decision making arrangements. We emphasise that many people with disability
are vulnerable and are at continuing risk of not having their basic needs met. This issue will
be dealt with further below. In the context of active citizenship, we recommend the following.
Recommendation 2
The State Disability Plan should adopt the concept of Inclusive Citizenship to
replace Active Citizenship.
2.2 Rights and Equality
2.2.1 Abuse
OPA has made many recent submissions on the issue of widespread violence, abuse and
neglect affecting people with disability. We refer to the recommendations of the
Parliamentary Inquiry into abuse in disability services by the Family and Community
Development Committee; the Royal Commission into Family Violence; the Senate Standing
Committee on Community Affairs Inquiry into violence and abuse against people with
disability in institutional and residential settings; and the Victorian Ombudsman’s Inquiry into
the reporting and investigation of violence and abuse.
The Family and Community Development Committee have recently highlighted the need for
concrete action on a number of fronts, including the continuing need for advocacy funding.3
This supports the Victorian Ombudsman’s conclusions which support an increase in funding
for advocacy.
Recommendation 3
The State Disability Plan should incorporate the recommendations on
safeguards and related measures that have been made by the four recent
inquiries into violence and abuse.
2.2.2 Risk management
Another issue is how the State Plan encompasses the full extent of state responsibilities
and required measures within the wide scope of Rights and Equality. Our view is that the
discussion paper has too narrowly defined the scope of relevant issues and responsibilities.
For example, the role played by prisons and the wider criminal justice system has not been
included. This is a serious omission when people with disability and mental illness are
accepted as being over-represented in prisons as both victims and offenders. The recently
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released Enabling Justice Project Consultation Paper highlights the extent of this problem in
the case of people with an acquired brain injury.4 We are very concerned that the successful
deinstitutionalisation policy is being undermined by an unnecessary and wasteful social
warehousing of people with disability in our state’s prisons.
This problem is an indicator of limitations in the interplay of our mainstream service system
approaches with disability issues and disability services. Another example of this issue
exists in relation to the Child Protection System. The conclusion of our 2015 report
Rebuilding the Village: Supporting families where a parent has a disability concisely states
the problems that exist, with application to some broader attitudinal and practice barriers
that also exist in other mainstream settings.
[P]erceptions about the capacity of parents with disability to successfully raise their
children should be subjected to rigorous examination and, where necessary,
corrected. All families should be approached first from the perspective of finding what
supports and assistance are needed to solve problems and strengthen the family’s
ability to successfully raise their children, rather than from the perspective of focusing
on the risks of their children being abused and neglected. Assessments of capacity
and need should be integrated into the provision of education and support and be
provided in the ways that research shows are most successful. Where there is an
unacceptable risk of harm that cannot be alleviated, the out-of-home care system
should be improved in ways that promote the flourishing of children and support their
family of origin, rather than severing these fundamental relationships. Finally, child
protection processes should be evaluated to see how they can be made less
intimidating, critical and negative and more open, supportive and compassionate
towards families.5
This discussion highlights the broad problem of how risk to self and risk to others is often
being mismanaged in a range of mainstream and service settings, with the costs of risk
management practices shifted onto the person with disability or mental illness, rather than
elements of the risk being taken by the state, where it more equitably and properly belongs.
This is particularly so for our justice and protections systems where human rights concerns
must be paramount.
Concern about the potential inequity that has come to pass in our current systems was
expressed 40 years ago by Terry Carney in the 1976 Report of the Victorian Premier's
Committee on Mental Retardation. This report became the blueprint for subsequent
legislative reforms beginning in the 1980s. His concern was that people with disability could
be ‘short-changed’ by inadequate rights protection, resulting in the individual being forced to
bear the cost of failure in risk-taking that was inherent in our emerging policy and human
rights frameworks.6
The state plan should directly address this issue so that risk is rebalanced. The state will
hold more risk so that risks are removed from or more equitably shared with the person with
disability or mental illness at issue, other community members, service providers and
businesses. Such human-rights compatible risk-management strategies will involve
participation of the person in the risk-reduction strategies7
Recommendation 4
The State Disability Plan should provide a whole-of government approach to
rebalanced risk-management approaches, giving priority to education, justice
and child protection systems and that this be incorporated into the Plan.
Consideration could be given to supporting or establishing a ‘Centre of
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Excellence’ for developing knowledge and safeguards supporting the
implementation of least-restrictive and solution-focused alternatives.
This may be accomplished through the establishment of a revamped Disability
Services Commissioner, incorporating an expanded Senior Practitioner role,
with broad own-motion powers to investigate and advise across portfolios. This
approach would build upon key recommendations of the recent inquiries into
abuse.
2.2.3 Safeguards
The above discussion of abuse prevention and risk treatment has raised the issue of
safeguards, which are not dealt with in the Discussion Paper. Safeguards are rights
protection measures, and should be considered as enduring elements of state
responsibility, even while safeguards will also be an important aspect of the NDIS.
The introduction of the NDIS is leading to deregulation of the disability service system which
places some people with disability at increased risk of violence, abuse, neglect and exploitation.
The consumer-choice model of the NDIS creates difficulties for people with cognitive
impairment, who may need support to actively participate in decisions around the services and
support they receive. The power imbalance inherent in the service provider-consumer
relationship raises questions about how empowered people with disability will feel to advocate
for their rights, complain about their service or negotiate for the service that they need.
Recommendation 5
The State Disability Plan should clearly state that Victoria’s existing safeguards
for people with disability and mental illness will be maintained, improved and
expanded to the full NDIS scheme. Through the Plan, Victoria must map out
how continuity of safeguards under the Disability Act 2006, Guardianship and
Administration Act 1986, Charter of Human Rights and Responsibilities Act
2006 and related legislation will be maintained.
The full range of safeguards must include:

access to independent individual and systemic advocacy

visitation by independent Community Visitors, equivalent to the Victorian
scheme

mandatory reporting to police of abuse reports

a single independent oversight body with clear jurisdiction and powers
for dealing with serious incident reports: monitoring, investigation and
follow-up

residential tenancy protections

human rights protections provided by the Victorian Charter of Human
Rights and Responsibilities Act 2006

an expanded Disability Services Complaints Commissioner

Disability Worker Exclusion Scheme and a Working with Vulnerable
People Check scheme

human-rights compatible supported and substituted decision-making
arrangements

social inclusion strategies and avoidance of dependence on a single
provider for all supports.
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2.3 Economic participation
The fall in public sector employment of people with disability, noted in the consultation
paper is disappointing, when progress has been made in other areas of economic
participation. The discussion paper raises pertinent employment issues that we agree need
to be addressed by the Disability Plan. The requirement under the Disability Act 2006 for
Disability Action Plans under s.38, which require public sector bodies to prepare a plan for
the purpose of reducing barriers to persons with disability obtaining and maintaining
employment, is one mechanism for improving this situation.
Recommendation 6
The State Disability Plan should outline a mechanism for the maintenance of
Disability Act s.38 provisions requiring Disability Action Plans by public sector
bodies, even if there are changes in our laws arising from full transition to the
NDIS.
2.4 Making the most of the NDIS
As the proposed vision statement makes clear, the State of Victoria has a continuing strong
role to play in advancing inclusion and the rights of people with disability. This role
continues outside NDIS service provision.
It is expected that the roll-out of the NDIS will involve continuing learning and trial of new
systems. State support for people with disability must include actively supporting eligible
people to become NDIS participants, while continuing to provide safety-nets and
supplementary measures for people with disability who are not NDIS eligible, through the
maintance of residual service systems.
An important principle underlying the introduction of the NDIS was to avoid the situation of
people ‘falling through the cracks’. Supporting this principle in practice requires leadership
from the Victorian Government, a whole of government approach and continuing liaison and
negotiation with the NDIA and Disability Reform Council.
All Victorians have an interest in a viable NDIS, which will not be advanced by attempts at
cost-shifting or service abandonment. From this perspective, we are concerned about
reports that the Home and Community Care program may cease without a ready alternative
for many people with disability currently receiving support through this long-lived and valued
scheme.
The state has an important and continuing policy and practice role for advancing inclusion
and improved outcomes for people with disability in key areas of state responsibility
including health, education, housing, justice system and child protection, which require
continuing leadership by the State Of Victoria.
As recommended above, the State Plan should clearly state how Victoria’s existing
safeguards for people with disability and mental illness will be maintained, improved and
then expanded to the full NDIS scheme.
The safeguard mechanisms that Victoria has developed over the last 40 years have had a
significant role in promoting service quality, across a range of service types. For example,
improvements in disability accommodation practice that have been instigated and enhanced
through the observations and information provided by Community Visitors. The State Plan
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needs to recognise and support the continuing role of Community Visitors in areas that may
not be covered by national safeguard systems like residential services not covered under
the specialist disability accommodation framework.
Recommendation 7
The State Disability Plan should outline the Victorian Government’s plan for
monitoring inclusion and accessibility to the service system for people with
disability who are not eligible for the NDIS.
3. Driving outcomes
The State Plan needs to prepare the ground for full transition to the NDIS, and also provide
for a period of review at the conclusion of the transition to full implementation. The State
Plan can then set out a process for evaluation, review and consultation to prepare for
transition to the next State Plan, when the disability landscape post-NDIS implementation is
clearer.
It is not immediately clear in what manner the success of the plan should be gauged. For
example, should the success of the plan be assessed from the outcomes achieved for
individuals; particular populations of people with disability, for instance, people with an
acquired brain injury; or some chosen indicators of social inclusion?
Proper evaluation of the plan will require careful design of the plan so that it its logic and
underlying principles are clearly articulated. Engaging consultants in the earliest stages to
map and benchmark the current service system and perform the evaluation and assist with
development of meaningful measures will assist the coherence of the plan and achievement
of real outcomes. Expertise could be sought from bodies such as ANZSOG, the Australian
and New Zealand School of Government, to advise on the plan and its evaluation.
Recommendation 7
The State Disability Plan should provide for a comprehensive and independent
evaluation to review learning from the plan, its successes and next steps, in the
context of a completed transition to NDIS.
Endnotes
1
Murray, S. and Office of the Public Advocate (2012). Decisions concerning the discharge
from hospital of Victorian guardianship clients aged 65 years and over. Carlton, Office of the
Public Advocate. While this paper describes the issue in relation to people over 65 years of
age, the same process can also occur for people under 65 years of age with decisionmaking impairment.
2
Enabling Justice Project (2016). Enabling Justice Project consultation paper: people living with
an acquired brain injury using their experiences of the criminal justice system to achieve
systemic change. Melbourne, RMIT University & Jesuit Social Services.
Victorian Ombudsman (2015). Investigation into the rehabilitation and reintegration of prisoners
in Victoria. Melbourne: 161.
8
3
Family and Community Development Committee (2016). Action needed to stop abuse in
disability sector.
4
Enabling Justice Project (2016). Enabling Justice Project consultation paper: people living
with an acquired brain injury using their experiences of the criminal justice system to
achieve systemic change. Melbourne, RMIT University & Jesuit Social Services.
5
Carter, B. (2015). Rebuilding the village: supporting families where a parent has a
disability, Office of the Public Advocate.
6
Carney, T. (1976). Enquiry into mental retardation, report on the law. Report of the
Victorian Committee on Mental Retardation Report to the Premier of Victoria. V. C. o. M.
Retardation. Melbourne, Government Printer Victoria: 151 -164.
7
Green, D. and D. Sykes (2007). Balancing rights, risk and protection of adults. Planning
and support for people with intellectual disabilities: issues for case managers and other
professionals. C. Bigby, C. Fyffe and E. Ozanne. Sydney, University of New South Wales
Press: 65-83.
References
Carney, T. (1976). Enquiry into mental retardation, report on the law. Report of the Victorian
Committee on Mental Retardation Report to the Premier of Victoria. V. C. o. M.
Retardation. Melbourne, Government Printer Victoria: 151 -164.
Carter, B. (2015). Rebuilding the village: supporting families where a parent has a disability,
Office of the Public Advocate.
Enabling Justice Project (2016). Enabling Justice Project consultation paper: people living with an
acquired brain injury using their experiences of the criminal justice system to achieve
systemic change. Melbourne, RMIT University & Jesuit Social Services.
Family and Community Development Committee (2016). Action needed to stop abuse in disability
sector.
Green, D. and D. Sykes (2007). Balancing rights, risk and protection of adults. Planning and
support for people with intellectual disabilities: issues for case managers and other
professionals. C. Bigby, C. Fyffe and E. Ozanne. Sydney, University of New South Wales
Press: 65-83.
Murray, S. and Office of the Public Advocate (2012). Decisions concerning the discharge from
hospital of Victorian guardianship clients aged 65 years and over. Carlton, Office of the
Public Advocate.
Victorian Ombudsman (2015). Investigation into the rehabilitation and reintegration of prisoners in
Victoria. Melbourne: 161.
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