The Disability Act protects the rights of people with an intellectual disability, including privacy provisions, restrictions on restraint and seclusion and use of aversive therapy and money management provisions.
Protection of rights in the Disability Act
Protection of the rights of people who have an intellectual disability is in the Disability Act.
The Disability Act provides for the establishment of an Office of Senior Practitioner (now called the Office of Professional Practice, including a Senior Practitioner (Disability)) within the DHHS and an independent Disability Services Commissioner, as well as the right for review by VCAT of certain decisions. Much of the work previously undertaken by the IDRP is now spread between the Disability Services Commissioner, the Senior Practitioner and VCAT. Further information on these provisions can be obtained from www.dhhs.vic.gov.au. Currently, these Victorian state bodies also protect the rights of people receiving services under the NDIS. In the longer term it is likely that a national protective framework and complaints bodies will be established.
Services that advocate on behalf, or in support of, people who have a disability, are discussed in Disability: asserting your rights.
The laws set out in the Health Records Act 2001 (Vic) (“HRA 2001”), the Information Privacy Act 2000 (Vic) (“IPA”) and the Privacy Act 1988 (Cth) allow a person to take action if their privacy is breached (see Privacy and your rights).
The Disability Act contains diluted privacy provisions (see s 58 in relation to duties of disability service providers providing residential services). The Disability Act also stipulates that standards in relation to information management and privacy and confidentiality must not be lower than those that would apply if the HRA 2001 and the IPA applied in respect of the provision of disability services by disability service providers (s 97(2)(a), (3)).
See generally “Privacy and confidentiality” in Health and the law.
Sometimes people who have an intellectual disability may need to be restrained or put in a secluded place to prevent them from injuring themself or others. The Disability Act’s provisions relating to restraint and seclusion are contained in part 7 (Restrictive Interventions) and part 8 (Compulsory Treatment). Definitions are set out in section 3, as follows:
restraint means chemical restraint or mechanical restraint;
seclusion means the sole confinement of a person with a disability at any hour of the day or night:
a in any room in the premises where disability services are being provided of which the doors and windows cannot be opened by the person from the inside; or
b in any room in the premises where disability services are being provided of which the doors and windows are locked from the outside; or
c to a part of any premises in which disability services are being provided.
Division 5 of the Disability Act sets out the functions of the Senior Practitioner (Disability) in relation to supervision of restrictive interventions and in researching and educating service providers in best practice in relation to behavioural management strategies. The Senior Practitioner will clearly be guided by the principles contained in the Act, in particular the principle that states that “if a restriction on the rights or opportunities of a person with a disability is necessary, the option chosen should be the option that is the least restrictive of the person as is possible in the circumstances” (s 5(4)). The Senior Practitioner uses the term “behaviours of concern” in preference to the previously used term “challenging behaviours”.
Decisions in relation to restraint and seclusion may be reviewed by VCAT (s 146).
Aversive therapy is now prohibited. The provisions in the IDPSA that permitted its use in limited circumstances were repealed in 1997. Aversive therapy includes “any pain-inducing treatment” or “any deprivation of basic human needs”.
The Disability Act stipulates that service providers must not act as administrators (legally appointed managers of a person’s money). The Residents’ Trust Fund established under the IDPSA is continued, and accurate, detailed accounting records are to be maintained and copies made available to clients (see div 2 Disability Act).
People who have an intellectual disability live in many different types of accommodation. Their rights in these different settings vary. The Residential Tenancies Act 1998 (Vic) specifically excludes people who have a disability and who live in supported accommodation from mainstream tenancy rights. Whether or not this is discriminatory remains to be tested.
From 1 July 2007, the Disability Act changed the law in relation to the rights of residents. The Act includes an extension of some tenancy rights to people who are living in supported accommodation, but these fall short of the tenancy rights provided to others in the community, having numerous provisos attached (see pt 5 “Residential Services”). Appeals may be made to VCAT in relation to some tenancy issues (see “Tenancy” in Understanding disability and the law).
The Disability Act provides that all residents must be provided with information in the form of a Residential Statement when they commence residing at a residential service (s 57). Further information on the rights of residents can be obtained from the DHHS website (at www.dhs.vic.gov.au/disability).
For assistance with regard to housing and residency issues contact AMIDA (Action for More Independence and Dignity in Accommodation), the housing advocacy group for people with disabilities (see “Contacts” in Understanding disability and the law). See Understanding disability and the law, for a general discussion of rights of people with disabilities.