March 2019 - Queensland Advocacy Incorporated

NDIS Appeals Advocacy funding commitment to deal with backlog of complaints

Media release

28 March 2019

The decision by the Federal Government to maintain the current level of funding for National Disability Insurance Scheme (NDIS) appeals advocacy, rather than proceed with proposed cuts, in the upcoming financial year is good news for advocacy organisations already struggling to meet demand. The proposed cuts were based on a misconception that cases would have provided learnings to improve the system. Sadly, this has not eventuated – the National Disability Insurance Agency’s (NDIA) delayed decisions and attempts to stall processes have created a backlog and the demand for advocacy support shows no signs of decreasing. The Government has appeared to recognise this with this funding commitment.

Leading disability advocacy organisation Queensland Advocacy Incorporated (QAI), one of the organisations funded to provide advocacy support for people with disability and their families appealing decisions by the NDIA, welcomed the news.

“The continuation of current levels of funding for this program for at least the next financial year is a relief,” QAI Director Michelle O’Flynn said today. “Our five NDIS appeals support advocates have been working to capacity yet are still unable to support the many vulnerable people with disability and families needing support to access or receive adequate funding under the NDIS. A decrease in advocacy funding would have been catastrophic. There is great need for advocacy in this emerging space to ensure that people with disability are not left without the supports they need. We are grateful that the Federal Government, through the commitment of this further funding, has recognised this. We are also pleased with the decision to continue funding the National Disability Advocacy Program Decision Support Pilot, which enables QAI to continue to provide decisionmaking support for people seeking to engage with the NDIS. This is greatly needed support for very vulnerable Queenslanders.”

QAI supported the introduction of the NDIS as a means of vesting choice and control over their lives in the hands of people with disability. As the NDIS nears full roll-out across Australia, QAI maintains a watching brief on the scheme. “The NDIS, while in many ways a positive change for the disability sector, was never going to be a panacea,” Ms O’Flynn said. “However, the severity of the problems, in the implementation of the scheme and in the governance and decision-making by the NDIA, has left many Queenslanders with disability in very vulnerable, disempowered and disadvantaged situations. We are actively engaging in systems advocacy work to highlight the key issues facing people with disability seeking support from the scheme and bring about change.”

Queensland Advocacy Incorporated (QAI) is an independent, community-based disability advocacy organisation with an exemplary track record of effective systems and individual advocacy. QAI’s mission is to promote, protect and defend the fundamental needs and rights and lives of the most vulnerable people with disability in Queensland. QAI’s work is directly informed by the voices and stories of the people with disability and mental illness with whom QAI works and advocates for. Further information about QAI’s NDIS Appeals Support Program is available on our website: www.qai.org.au.

Media contact: Michelle O’Flynn 0481 381 528

Information provided in this release is not intended to constitute legal advice and should not be construed as such. You should obtain your own legal advice before applying any information provided in this release to specific issues or situations.

Royal Commission TORs

QAI’s comments on the Draft Terms of Reference for a Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability

Letter to Department of Social Services re draft TORs for disability RC 20190325

OPCAT submission – Stage 2

QAI submission – OPCAT in Australia FINAL

QAI Submission: Recording Mental Health Review Tribunal hearings

The Mental Health Review Tribunal is conducting a project regarding the Electronic Recording of Tribunal hearings. They asked for feedback from patients, support persons, legal representatives, advocates, clinicians, family members and carers, or anyone else about how they feel about audio recording Tribunal hearings. Up until now, the only official record taken of the hearing has been the handwritten notes of the Tribunal members.

QAI made its submission on 11 March 2019.

We submitted that Tribunal hearings should be audio recorded for the following reasons:

To ensure an accurate record of proceedings;
To assist Tribunal members with the preparation of a statement of reasons and improve their quality. The large number of hearings, the similar nature of successive case details, and reliance on personal memory and handwritten notes can impede accurate recollection of hearings from which to prepare a statement of reasons, sometimes many days or weeks after the hearing has taken place;
To assist in clarification of issues, even in the absence of a request for a statement of reasons, for example, discrepancies in limited community treatment conditions or reasons for an adjournment;
To enable legal representatives to properly consider prospects of appeal, particularly where clients were not represented at the Tribunal hearing;
To improve both Tribunal and legal representative engagement in hearings, who are currently occupied in taking detailed notes of the hearing;
To improve client engagement and understanding of the process and their treating team’s reasons for making certain recommendations, which may ultimately improve their recovery;
To facilitate natural justice and transparency;
To support training and professional development of Tribunal staff.

Our recommendations were that:

QAI’s position is that Mental Health Review Tribunal hearings be audio-recorded.

This change to Tribunal process must be accompanied by education for patients about why proceedings are recorded and how that recording may be accessed and used. This education has to occur long before the hearing and will likely have to happen through clinicians, Independent Patient Rights Advisors, and legal advisors.

Patients (and their legal guardian) should, at least to begin with, have the ability to opt out of having their hearings recorded. While there was a difference of opinion between lawyers whether recording hearings was an access to justice issue which could not be opted out of, ultimately, the balance of opinion was that given the Tribunal was a therapeutic jurisprudence in which sensitive issues were being raised in a closed hearing, the patient should have the right to choose whether their hearing is recorded provided they have capacity to do so. In circumstances where the client lacks capacity, it may be appropriate for the Tribunal to rely on clinical evidence on whether recording hearings would cause serious harm to the health of the person, similar to a confidentiality order. It is noted that as time goes by, and recording hearings becomes more understood, accepted and widespread, this will become less of an issue. The ability to opt out might be limited to an initial 12-24 month roll out period following which recording hearings becomes compulsory.

At the least, recordings should be available to the Tribunal panel, the parties to the hearing, their legal representatives and any formally appointed guardian/attorney. There may be a case for allowing other people to have access to the recording, for example, the treating team or a non-legal representative, subject to the reason for the request and person’s privacy.

Recordings should be provided to the patient (and their legal representative and guardian/attorney) for free or at nominal cost.

There needs to be a clear written process for requesting and obtaining recordings. The process must include: any time limits on requests (we submit any time limits should be generous and based on genuine administrative limitations or burdens, which can be overcome by a legitimate reason for requesting the recording); and timeframes within which the Tribunal must respond to requests.

Audio-recordings should be available in a variety of formats to maximise accessibility and privacy, eg, deaf clients may need a transcription, while some clients might want to just listen to their recording so that they do not have to keep a CD with them.

We would support the provision of oral statements of reasons included as part of the audio recording of the hearing, to take place of written statements of reasons.

Man in wheelchair opposite parents sitting on bed

ABC Tropical North: Parents of quadriplegic man say NDIS delay extended hospital stay by six months at ‘$1,500 per day’

Prime Minister skimps on Royal Commission

MEDIA RELEASE

1 March 2019

Prime Minister skimps on abuse of people with disability: The Disability Royal Commission must not be delayed

The further political posturing around the long overdue Royal Commission into violence, abuse and neglect of people with disability is deplorable.

Leading disability advocacy organisation Queensland Advocacy Incorporated (QAI) has called for a Disability Royal Commission for many years. These calls have been supported by many people with disability in our community and many other advocacy and human rights organisations.

QAI Director Michelle O’Flynn expressed dismay at the further delay tactics engaged in by the Federal Government. “The pressing need for a disability Royal Commission has long been recognised,” she said today. “The 2015 Senate Inquiry into violence, abuse and neglect against people with disability in institutional and residential settings reported on the alarming nature and extent of violence, abuse and neglect that vulnerable Australians with disability have and continue to experience and made a raft of recommendations for urgent actions.”

The first recommendation made by the Senate was for the Federal Government to call a Royal Commission, the terms of reference for which were to be determined in consultation with people with disability, their families and supporters, and disability organisations. This recommendation was made in November 2015. During the three and a half years that the Government has failed to action this key recommendation, countless incidences of violence, abuse and neglect have been endured by Australians with disability. The calling of this Royal Commission is long overdue.

“The Senate was clear in stating: ‘the situation for people with disability is unacceptable,’” Ms O’Flynn noted. “Why then, three and a half years later, are we still waiting?”

“The Federal Government is now deferring establishing a Royal Commission for the purported reason that it requires commitments by the state and territory governments to this inquiry, including commitment to enter into cost-sharing arrangements to fund it. This is unacceptable. The Royal Commission into Institutional Responses to Child Sexual Abuse and the Royal Commission into Aged Care Quality and Safety were both fully funded by the Federal Government. No distinction should be made on this occasion – this must not be used to justify further delay,” Ms O’Flynn said.

QAI calls upon the Federal Government to:

Commit the full funding necessary to ensure a comprehensive and complete inquiry is convened, using the Royal Commission into Institutional Responses to Child Sexual Abuse as a model for the appropriate scope and standing of this Commission;
Appoint a person with appropriate understanding and expertise to head the inquiry and ensure the inquiry is led by Commissioners with lived experience of disability;
Ensure that the terms of reference for the inquiry are developed in genuine consultation with people with disability and that people with disability are actively engaged in the design and conduct of the inquiry; and
Commit to responding in a timely manner to the recommendations of the inquiry.

Media contact: Michelle O’Flynn 0481 381 528