Introduction and key legislation
The role of the Public Advocate was established under the Guardianship and Administration Act 1986 (Vic) (“GAA”), in response to evidence that the rights of some people with disabilities had not been adequately protected. The Public Advocate’s office is known as the OPA.
“Disability” is defined in the GAA as intellectual impairment, mental disorder, brain injury, physical disability or dementia.
OPA has responsibility for promoting the rights and independence of people with a disability and has powers to provide advice and assistance, to investigate and to advocate on their behalf (ss 15, 16).
OPA provides advice and assistance with complaints about services, treatment or attitudes of government departments and other agencies.
Whenever possible, existing complaints systems are used, as well as the Victorian Ombudsman, the Victorian Equal Opportunity and Human Rights Commission, Health Services Commissioner, the Disability Services Commissioner and the Mental Health Complaints Commissioner.
If these avenues are inappropriate, OPA may investigate the complaint directly, representing the interests of the person with a disability in negotiating to resolve the disputed issues.
OPA takes up issues of a systemic nature, investigating and researching matters that develop out of individual complaints. These activities may lead to law reform, the preparation of submissions to government, or the publication of reports.
Handbooks have also been produced by OPA, including:
•OPA 2012, Securing Their Future: Planning for the Future When You Care for a Person with a Disability;
•OPA 2015, Take Control: A Guide to Powers of Attorney and Guardianship, 12 edn.
These publications can be downloaded from the OPA website at www.publicadvocate.vic.gov.au. Multiple hard copies may be obtained from Victorian Legal Aid.
Generally, where there is an allegation of abuse, maltreatment or exploitation of someone with a disability, OPA has power to intervene if the person is in need of guardianship.
If the investigation is blocked in any way by the person or agency involved in the alleged abuse and there is evidence that the person is being illegally detained or is likely to suffer serious harm, an order can be sought from the Guardianship List of the Victorian Civil and Administrative Tribunal (VCAT) authorising active intervention with police assistance.
VCAT may appoint the OPA as a “plenary guardian”, “limited guardian” or “alternative guardian” (for discussion of these terms, see Understanding guardianship). OPA does not accept appointments as administrator.
An order for guardianship can only be made where the person concerned is over 18 years of age and has a disability that affects their capacity to make “reasonable judgments”, and where a legally binding decision needs to be made on the person’s behalf. As the most restrictive option, guardianship is seen as a last resort. In all cases, the least restrictive options are sought for the person with a disability.
Ideally, guardianship is given to a relative or friend (i.e. someone who knows, understands, and is familiar with the person’s needs and who will act in their best interests). However, if a relative or friend is not available, or if these people have a conflict of interest, the OPA can be appointed as guardian instead. An order for guardianship or administration can be tailored to suit the person’s particular needs. For more information, see Understanding guardianship.
The Community Visitors Program was established by the Mental Health Act 2014 (Vic), the Disability Act 2006 (Vic) (“Disability Act”) and the Supported Residential Services (Private Proprietors) Act 2010 (Vic). The program is administered and coordinated by OPA.
Community Visitors are community representatives who regularly visit services and institutions for people with psychiatric or intellectual disabilities, and supported residential services registered with the DHHS, or those in the non-government sector. They have power to make inspections, to have access to reports and documentation and to consult with anyone involved in the provision of services or the administration of a facility.
They visit on a regular basis to talk to residents/clients on issues such as:
•adequacy of services;
•standards within the facility; and
•care and treatment being received.
They respond to queries and inquire into complaints. If the issues are unable to be resolved at a local level they can be raised with OPA and ultimately with the government minister responsible. Section 18A of the GAA gives the Public Advocate the same powers as Community Visitors to visit, inspect and inquire.
The Independent Third Person (ITP) Program is coordinated by OPA. Police Operating Procedure 184.108.40.206 requires that an ITP be present where a victim, suspect or witness who is to be interviewed by police has an intellectual disability, a mental illness, acquired brain injury or dementia. OPA runs information and training sessions for people wishing to volunteer as ITPs.
ITPs are not advocates for people but are there to facilitate communication, help the person know their rights and support the person through the process.
Corrections Independent Support Officers (CISO) are volunteers and Office of the Public Advocate staff who provide assistance and support to prisoners with an intellectual disability in all Victorian prisons during internal prison disciplinary hearings. These occur when prisoners are charged with a breach of the internal prison management regulations or rules.
The role of the CISO is to provide information to the prisoner about:
•the disciplinary hearing procedures;
•the prisoner’s rights during the process;
•assist with communication; and
•support the prisoner during the hearing.
The CISO provides this support to ensure the prisoner is provided with the best opportunity to understand and effectively participate in the hearing.
OPA’s Advice Service offers advice and information on guardianship and administration applications to VCAT, powers of attorney and guardianship, and advocacy. OPA’s Community Education Program provides written materials and speakers.