Admin, Author at Queensland Advocacy Incorporated

Voluntary Assisted Dying – Findings and Recommendations Released

The Queensland Health, Communities, Disability Services and Domestic and Family Violence Prevention Committee has released their findings and recommendations on voluntary assisted dying.

You can read the full report here and the submission QAI made to the Inquiry in April 2019 here.

This is a short excerpt from the report:

This paper provides a summary of the findings and recommendations from Report No. 34 on voluntary assisted dying. The report is one of three reports and a volume of additional information from the Inquiry into Aged Care, End-of-Life and Palliative and Voluntary Assisted Dying.

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Recommendations

The following recommendations were agreed by the majority of the committee. For further information please
refer to comments by committee members in the full report

Willmott and White draft legislation
The committee recommends the Queensland Government use the well-considered draft legislation submitted to the inquiry by Professors Lindy Willmott and Ben White as the basis for a legislative scheme for voluntary assisted dying.
Limit eligibility to over 18s
The committee recommends that any voluntary assisted dying scheme in Queensland limits eligibility to adults aged 18 years or older.
Limit eligibility to Australian citizens ordinarily residing in Queensland
The committee recommends that any voluntary assisted dying scheme in Queensland limits eligibility to Australian citizens or permanent residents ordinarily resident in Queensland.
Eligibility linked to diagnosis
The committee recommends that any voluntary assisted dying scheme in Queensland requires that, to be eligible to access voluntary assisted dying, a person must be diagnosed by a medical practitioner as having an advanced and progressive terminal, chronic or neurodegenerative medical condition that cannot be alleviated in a manner acceptable to the person, and that the condition will cause death.
No precise timeframes for a person’s anticipated death
The committee recommends that any voluntary assisted dying scheme in Queensland should not propose precise timeframes for a person’s anticipated date of death within which voluntary assisted dying may be accessed due to the complex, subjective and unpredictable nature of the prognosis of terminal illness.
Eligibility limited to people with decision making capacity
The committee recommends that any voluntary assisted dying scheme in Queensland limits eligibility to people with decision-making capacity.
Research into improving options for people who do not have decision-making capacity
The committee recommends that any voluntary assisted dying scheme in Queensland requires further research, consultation and examination to be undertaken with respect to improving end of life options for people who do not have decision-making capacity, particularly in relation to ensuring Advance Health Directives are fit for purpose and effective.
Assessments, qualifications, medications and protections from liability
The committee recommends that any voluntary assisted dying scheme in Queensland includes: controls on the qualifications required for participating practitioners; the requirement that two independent medical practitioners assess any person wishing to access voluntary assisted dying; rigorous governance of systems for prescribing, dispensing and disposing of any voluntary assisted dying medications; protections from liability for practitioners and patients participating in the scheme; and thorough documentation and reporting requirements.
Education campaigns
The committee recommends that any voluntary assisted dying scheme in Queensland includes comprehensive education campaigns to inform health practitioners and the general public about the scheme, its eligibility requirements and the rights and responsibilities of health practitioners.
Eligibility for people with mental illness
The committee recommends that any voluntary assisted dying scheme in Queensland provides that a person who is otherwise eligible to access the scheme not be rendered ineligible only because the person has a mental health condition, provided that the person has decision-making capacity.
Medications not be specified
The committee recommends that any voluntary assisted dying scheme in Queensland does not limit or prescribe the medications that may be used for voluntary assisted dying.
Self-administration of substance or administration by a practitioner
The committee recommends that any voluntary assisted dying scheme in Queensland stipulates that the coordinating practitioner may determine whether self-administration of the substance or administration by the practitioner is the method best suited to the patient.
Insurance implications of VAD
The committee recommends that safeguards should be included in any voluntary assisted dying scheme in Queensland to ensure that participation in voluntary assisted dying does not nullify life insurance, funeral or health insurance held by a person accessing voluntary assisted dying.
Counselling should not be mandatory
The committee recommends that any voluntary assisted dying scheme in Queensland does not require that every person seeking access to voluntary assisted dying receives counselling as a condition of their eligibility.
Assessment of applicants where doctors are not available
The committee recommends that the Minister should consider including flexibility in any voluntary assisted dying scheme in Queensland for applicants in rural and remote areas of Queensland where a doctor or second doctor are not available, to permit a registered nurse who meets the training and other requirements to participate in the scheme to assess an applicant for voluntary assisted dying and to administer the voluntary assisted dying medication.
Discussion to be instigated by the person wishing to access VAD
The committee recommends that any voluntary assisted dying scheme in Queensland stipulates that discussion with a medical practitioner about accessing voluntary assisted dying can be instigated only by the person wishing to access voluntary assisted dying.
Conscientious objection rights for medical practitioners
The committee recommends that any voluntary assisted dying scheme in Queensland provides health practitioners who may have a conscientious objection to participating in voluntary assisted dying to opt not to participate, provided that the rights of the patients to access the scheme are also protected.
Accessibility of VAD where available doctors conscientiously object
The committee recommends that any voluntary assisted dying scheme in Queensland ensures that voluntary assisted dying is genuinely accessible to people with a life-limiting condition whose local doctor has a conscientious objection to voluntary assisted dying.
Establishment of a review body to oversight the scheme
The committee recommends that any voluntary assisted dying scheme in Queensland provides for the establishment of a review body similar to the Victorian Voluntary Assisted Dying Review Board to provide oversight of the scheme.
Mandatory training of practitioners
The committee recommends that any voluntary assisted dying scheme in Queensland requires that health practitioners involved in administering or conducting assessments for voluntary assisted dying complete mandatory training developed by the Department of Health in conjunction with peak health professional bodies.
Review of the scheme after 3 years
The committee recommends that any voluntary assisted dying scheme in Queensland includes a requirement that the scheme be reviewed within three years from the date of proclamation to ensure the legislation is effective and working appropriately.

QAI Concerned for People with Disability in Congregate Care Amid COVID-19 Pandemic

On 4 March 2020 QAI Director, Michelle O’Flynn, sent a letter to a number of relevant officials regarding QAI’s concerns for people with disability living in congregate care arrangements in light of the potential for transmission of COVID-19.

At this stage QAI is yet to receive a response from any of the officials who received the letter, which included several government ministers and officials within the National Disability Insurance Agency (NDIA), National Disability Services (NDS) and the Public Guardian.

QAI will persist in our efforts to gain answers and action on this, as our concerns have only increased over the last few weeks with the rapid escalation of the pandemic and our government’s lack of appropriate response to safeguard those most vulnerable.

You can read the full letter here.

QAI Commits to Continuing Advocacy Services Throughout COVID-19 Pandemic

QAI Management and Staff are, like everyone, trying to do our best to understand and respond to the best of our abilities to the unique risks presented by COVID-19.

We are a creative and dynamic organisation and prioritise our commitment to support, defend, protect and promote the needs, rights and lives of the people we serve.

The QAI Response Team are Michelle O’Flynn (Director), Emma Phillips (Deputy Director & Principal Solicitor) and Carly Dennis (Principal Solicitor).

While many of our staff have moved to working from home and we are working hard to ensure that our technology and structure will support new ways of working, we will continue to provide our service.

Our creative staff already have experience working via email, phone and video link to outreach people and this will continue. Face-to-face service delivery is suspended at present, although we will find ways and means to ensure that critical moments are dealt with appropriately. We remain open for business and are available via our usual telephone, email, website and social media contacts.

We care about you and will check in with you about any advocacy actions undertaken and work with you just as we always do. As a caring organisation we are also doing all we can to ensure the safety and well-being of our own staff.

Just as every person is learning to improve on everyday things like hygiene and cleaning, we too will find new and innovative ways to ensure that we meet the needs of clients, stakeholders and allies.

However, as we build a new approach to advocacy support, there may be delays in response, or different ways of responding. Please keep an eye on our website, Facebook and Twitter as these may be the best means of communicating should there be any technical glitches.

We will also need to hear from you if you are required to self-isolate. We welcome information from you in whichever form you can communicate with us.

On behalf of QAI’s Management Committee and staff, I wish you all the best during this challenging time. I firmly believe that we will all emerge from these difficult times with new ways to support and advocate and will continue to deliver excellent outcomes for clients, allies and the disability sector. We will update you if the advice from government causes us to make any further changes to our service delivery. We urge you to keep safe and follow the advice from the Queensland and Australian Governments.

Michelle O’Flynn, Director

25 Mar, 2020
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Emma Phillips at lectern giving presentation

Emma Phillips Gave a Presentation on the Human Rights Act Qld and Disability

Emma Phillips, QAI’s Deputy director and Principal Solicitor, gave a presentation on February 7^th to the Australian Lawyer’s Alliance called “Righting inhuman wrongs – How the new Human Rights Act 2019 (Qld) can assist clients with disability and mental illness”.

You can view the slides from Emma’s presentation here.

NDIS decision delays have deadly consequences, says QAI

16^th January 2020

For immediate release

Following today’s report that more than 1200 Australians – including 65 children – have died while waiting for NDIS packages, leading disability advocacy organisation Queensland Advocacy Incorporated (QAI) says urgent reforms are needed to introduce greater accountability for the government agency managing the scheme.

“Too many people living with disabilities are waiting far too long for support they need to live the ordinary life they’re entitled to,” says QAI director Michelle O’Flynn.

Part of the problem, O’Flynn explains, is that while the legislation governing the NDIS imposes strict timelines on people who need support (to respond to NDIS requests for more information, for instance), in most cases the National Disability Insurance Agency is not subject to the same timeline requirements.

O’Flynn says further that the NDIA will often reject applicants’ claims at first instance, only to reverse its decision on internal review or appeal to the Administrative Appeals Tribunal six or even twelve months later.

“As a result, we often see clients who, in our view, are needlessly put through additional and unwarranted stress – and when someone is already trying to manage with very little support, that additional stress may be the last straw,” says O’Flynn.

While it’s impossible to attribute some of these deaths directly to their experience of waiting for NDIS support packages, O’Flynn says that what it does highlight is just how important adequate, resourced and appropriate supports are for people living with disabilities, many of whom experience lower life expectancies compared with other people.

“The NDIS does have the ability to immediately improve a person’s quality of life,” says O’Flynn, “by implementing and sticking to timeframes, by communicating properly with people about how their applications are going, by being as consistent as possible about their funding decisions, by respecting decisions of the Federal Court and generally by removing as much uncertainty about the process as possible.

“At QAI we’ve seen that the NDIA is capable of doing the right thing, and its facilitation of funding and quality personalised supports have certainly improved the lives of thousands of people, but it shouldn’t be attained after a protracted and delayed fight to the finish. On far too many occasions the NDIS has, in our view, needlessly delayed or obstructed the process. And delays in this area can have dire and tragic consequences.”

QAI welcomes the reviews (by parliament’s Joint Standing Committee on the NDIS, and by David Tune) currently on foot, and is hopeful that they eventually result in better accountability being built into the governing legislation.

“But the NDIS doesn’t need to wait for the reviews to report,” O’Flynn says. “It could commit to timelines today.”

Contact: Michelle O’Flynn, Director, QAI

David Tune singing from departmental songsheet on NDIS timeframes, says QAI

23 January 2020

For immediate release

Leading disability advocacy organisation Queensland Advocacy Incorporated (QAI) has slammed the report of David Tune’s review into the National Disability Insurance Scheme Act.

“The recommended timeframes are incredibly disappointing,” says QAI director Michelle O’Flynn.

“The major problem that many people with disabilities have with the current NDIS Act is that it doesn’t contain any meaningful timeframes that force the National Disability Insurance Agency to act in a timely manner,” says O’Flynn.

The NDIA sensationally admitted this month that 1200 Australians have died while enduring lengthy waits for NDIS packages. In its submission to the Tune review, QAI suggested that 28 days – with an option to extend – was long enough for most Agency decisions.

“David Tune’s report recommends timeframes for the NDIA to make particular decisions that are as long as 70 and 90 days in some cases. In our experience at QAI, those timeframes are much longer than current practice, where we generally see these decisions being made within four to six weeks.

“The risk is that the NDIA would interpret timeframes as long as 70 and 90 days as new, even lower standards. That would be a complete failure of the whole review process.”

O’Flynn says that the combined effect of these timeframse could mean that accessing the NDIS and having your first NDIS Plan approved could take up to 216 days – and that’s assuming no need for any internal reviews, external appeals or meetings to discuss the plan.

“That’s far, far too long for people who are wading through a bureaucratic nightmare to simply access much-needed disability supports,” O’Flynn says.

While O’Flynn acknowledges the federal government’s commitment to a “participant service guarantee” that would include timeframes, she says it’s still unclear as to whether the guarantee would be part of the legislation.

Other disappointing omissions from the Tune report are the lack of any recommendations to improve access to the NDIS scheme for non-citizens (including New Zealand citizens) and people over the age of 65, whose only choice in many cases is to access very minimal aged care supports.

“QAI held high hopes that this review would mean significant improvements in the operation of the NDIS, which is very, very important for people living with disabilities,” O’Flynn says. “When it responds to the review, we urge the government to really think about what these timeframes mean for people who just need support. After all, that’s the reason the NDIS exists.”

QAI is an independent, community-based system and individual advocacy organisation for people with disability in Queensland with over 30 years’ experience advocating for systems change, through campaigns directed at attitudinal, law and policy reform.

Contact: Michelle O’Flynn, Director, QAI

Phone: 0481 381 528; (07) 3844 4200

Cover page of NDIS Act 2013 with a red pen on top

Review of the NDIS Act – QAI Submission

QAI made a submission in October 2019 to the NDIS Consultations team at the Department of Social Services on their review of the NDIS Act and NDIS Participant Service Guarantee.

The submission makes recommendations with regard to the following:

key provisions of the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’) which we submit should be introduced, amended or repealed;
key provisions of the NDIS Act which should be protected; and
important considerations relevant to the development of a Participant service guarantee.

You can read the recommendations and submission in full here.

Free and Equal: An Australian conversation on human rights – QAI Submission

QAI made a submission in October 2019 to the Australian Human Rights Commission on Free and Equal: An Australian conversation on human rights.

QAI’s Recommendations:

The Australian Human Rights Commission should support introduction of a federal Human Rights Act which protects the fundamental civil, political, economic, social and cultural rights contained in the United Nations treaties Australia has signed and ratified.
QAI submits that a federal Human Rights Act should protect all civil and political rights, as well as a broad range of economic, social and cultural rights.
In the initial period of operation of a Human Rights Act, court access could be limited to breaches of civil and political rights only, with the remaining rights progressively realised by becoming actionable after a designated period.
A federal Human Rights Act should include an accessible enforcement mechanism and remedies for breach.
QAI supports a model akin to the ‘dialogue mode’ of human rights protection implemented through the Queensland and Victorian human rights legislation, under which human rights are taken into account when developing, interpreting and applying the law and a dialogue between the different arms of government (legislature, executive and judiciary) is facilitated.
The right to life, the right to freedom from torture and slavery, freedom from forced work, the right to liberty and security of person, humane treatment when deprived of liberty, and the right to a determined period if liberty is deprived, the right to a fair hearing and the rights of children in the criminal process should be absolute or non-derogable (not able to be denied, limited or restricted in any way). Other human rights are not absolute and can be subject to reasonable and proportionate limitations.
A federal Human Rights Act should recognise the equal, inalienable human rights of all human beings and explicitly acknowledge that the exercise of one person’s human rights must respect the human rights and dignity of other humans.
A federal Human Rights Act should include an independent cause of action for breaches of the human rights protected in the Act, the ability to make a complaint to the Australian Human Rights Commission and for the complaint to be heard and reconciled by the Commission. It should include the full range of judicial remedies for breach, including declarations, injunctions, orders to cease the offending conduct and damages, and should protect complainants against adverse costs orders, except in exceptional circumstances. A federal Human Rights Act should include provision for class actions to be brought, in recognition that human rights are often of special significance to a particular group, with standing given to appropriate representative organisations in the position to support or represent individuals and groups of people whose human rights have been breached and who have specialised skills or knowledge that is helpful for a particular group(s).
The federal Government should provide a broad program of education to increase Australia’s literacy about human rights.
Government must take the lead in modelling progressive change, such as by imposing and honouring quotas for the employment of persons with disability in government departments and requiring all government schools, social welfare, health and other services to be properly accessible and inclusive.
The government should call on the Australian corporate sector and community organisations to pledge their commitment to protecting human rights and developing a human rights culture in Australia.
The Australian Human Rights Commission will have a pivotal role in educating individuals, the community and government departments and agencies on their rights and responsibilities under the human rights legislation and international law and supporting attendance at United Nations conferences and sessions.
QAI submits that a federal Human Rights Act should include provision for statutory review of the legislation within designated timeframes. Review must be authentically undertaken, with action in response to recommendations monitored, including review of relevant case studies, reports by NGOs and reporting by the United Nations.
It is vital that adequate resources are committed to realise human rights law, policy and practice.

You can read the full submission here.

Priorities for Federal Discrimination Law Reform – QAI Submission

QAI made a submission in November 2019 to the Australian Human Rights Commission on the Priorities for Federal Discrimination Law Reform. Upwards reaching arms labelled with key tenants of human rights. Prosperity, equality, freedom, justice and hope.

Summary of QAI’s Recommendations:

QAI supports the summary of proposed priorities for federal discrimination law reform.
QAI considers that the Federal Government should undertake structural and substantive reform of the current discrimination laws, consolidating the separate discrimination statutes into a single Act that is comprehensive, consistent and extends reasonable adjustments to impose a specific positive duty across all protected attributes in all protected areas of life.
QAI submits that existing protected attributes should be extended to include carer’s responsibility, volunteers and interns, accommodation status and subjection to domestic and family violence.
The legislation should reflect and incorporate the obligations Australia has assumed at international law.
Gaps in coverage for carer’s responsibility, volunteers and interns, accommodation status and domestic and family violence must be addressed.
All permanent exemptions should be reviewed not only in light of the overall purpose of discrimination law to promote equality and fair treatment, but also having regard to the purpose and intent of the CRPD.
Current compliance mechanisms administered by the Commission are necessary and helpful and QAI supports their continuation. We note the significant problems with the temporary exemptions available under the DDA and consider that the granting of exemptions can undermine the strength and power of discrimination law.
QAI strongly supports the Commission’s position that there is a need for greater awareness-raising activities and possibly industry support to promote compliance, as well as robust review processes to measure the effectiveness of the Disability Standards. QAI considers that the introduction of voluntary audits, a general inquiry function and positive duties would be of significant value.
QAI strongly supports the introduction of a positive duty for public entities to proactively take measures to eliminate unlawful discrimination and harassment and advance equality.
QAI agrees that complaints processes must be available and accessible for all people.
QAI notes that the nature of confidential conciliations reduces the likelihood that matters will resolve and places the complainant in the position of having to proceed to a less accessible and available forum, which is a significant limitation of discrimination law.
QAI proposes extending the timeframe to 12 months, with extensions available, to cover complex disputes and circumstances where vulnerable complainants have been unable or unwilling to take action earlier.
QAI strongly supports the provision of greater clarity about the ability for representative actions to be brought and agrees this would enable a greater focus on systemic discrimination issues and reduce the pressure on individual complainants.
QAI submits that there should be no costs orders made against a complainant, except in very exceptional cases where there has been a clear demonstration of a deliberate and vexatious misuse of process. Strong safeguards should be in place regarding legal representation.
QAI considers that there must be measures introduced to address the particular vulnerability of persons experiencing intersectional discrimination that includes harassment and vilification. Protections for vilification under federal discrimination law should be at least equivalent to the protections offered by state law and should attract both civil and criminal penalties in appropriate cases.
Discrimination should not remain the sole remedy under Commonwealth law for a vulnerable person who has experienced an unlawful breach of their human rights. It is time to enact a federal Human Rights Act or Charter, which translates the international human rights Australia has agreed to respect and protect into binding domestic law.

You can read the full submission here.

…Recommendations

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Recommendations