As seen in Chapter 16*1 Disability Overview, under the National Disability Agreement, the Commonwealth Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) does not itself provide any specialist services, but funds and monitors some employment and advocacy services.
By contrast, the Victorian DHS directly provides a number of specialist accommodation, case management and support services, as well as funding and monitoring a range of local government and non-government services. Most of the government operated services are for people who have an intellectual disability and who are eligible for services under the Disability Act.
Funded local government and non-government services include services for people who have an intellectual disability, as well as services funded under the Disability Act for people who have other sorts of disabilities and need specialist services.
Further information on the Disability Act and also the State Autism Plan can be obtained from the DHS website at www.dhs.vic.gov.au/disability.
Requests for services for a person who has an intellectual disability may be made directly to disability service providers. A formal assessment may not be required if disability is accepted as self-evident. (Under the previous legislation, an assessment and declaration of eligibility to receive intellectual disability services, using the definition of intellectual disability in the legislation (the IDPSA, now repealed) had to be made prior to provision of services.)
As with intellectual disability, requests for services for people who have other disabilities may be made directly to disability service providers. A formal assessment may not be required if disability is accepted as self-evident. (Under the previous legislation, an assessment and declaration of eligibility to receive disability services had to be made prior to provision of services).
Depending on the individual child or person's type/s of disability, disability services may be requested for children under the category of intellectual disability (s.3(b) of the Disability Act), or, where more relevant, under one of the other categories, including:
- section 3(a) – sensory, physical, acquired brain injury or neurological impairment (e.g. for neurological impairment and Autism/ASD see: "Autism Spectrum Disorders", above); or
- section 3(c) – developmental delay*.
* A definition of "developmental delay" is provided in Chapter 16*1 Disability Overview, under "Disability Act 2006".
Sections 49 and 50 of the Disability Act set out the process for requesting disability services, which may include a request to the Secretary for a decision as to disability. If the decision is that the person does not have a disability, an appeal may be made to the Victorian Civil and Administrative Tribunal (VCAT) (s.50).
An application for a review must be made within 28 days after the person receives the written advice from the Secretary.
Eligibility to receive services under the Disability Act does not give rise to an "entitlement" to services. It should be noted that there is extensive unmet need for disability services in the Victorian community, with many people on waiting lists for appropriate accommodation and other vital services; governments frequently cite "finite resources" as the reason for this. Disability advocates continue to lobby government for adequate resources and for an entitlement to disability services.
Services provided or funded by the DHS are considered to be "voluntary", except for "security residents" or "forensic residents" (for more details, see: "Intellectual disability" in Chapter 3*1 Disability and Criminal Justice). However, note that people who are neither security nor forensic residents may be subject to restrictive practices without consent in accordance with restraint and seclusion provisions under Parts 7 and 8 of the Disability Act, regarding restrictive interventions and compulsory treatment (see: "Restraint and seclusion" below).
Services include case management (e.g. linking clients to a range of services), preparation of a service plan (termed a "Support Plan" under the Disability Act (see below), and also referred to as a "Person Centred Plan"), outreach support in the person's home, respite, long-term accommodation, recreational and vocational services.
Under the Disability Act, a person with a disability, or a person on their behalf, may request assistance with planning from a disability service provider. The provider must, within a reasonable time, arrange for the assistance to be provided (s.53). A person receiving "on-going disability services" must be provided with a Support Plan within 60 days of commencing to regularly access the disability services (s.54). Review of the Support Plan may be requested at any time and must occur at least once every three years.
Section 52 of the Disability Act sets out "Guiding Principles for Planning", including, among others, that it should be individualised, directed at the person, consider (where relevant) the role of family and other significant persons, advance participation in the community, be underpinned by the right of the person to exercise control over their own life, and maximise choice and independence. Planning for people who have an intellectual disability should be undertaken in accordance with these principles.
The new approach to planning is referred to as person-centred planning. A person who has an intellectual disability must be offered assistance with planning by the disability service provider from whom they have requested disability services. The assistance must be provided within "a reasonable time" after an offer of services is accepted (s.55).
Prior to 1 July 2007, under the IDPSA (now repealed) people who had an intellectual disability had the "right" to receive a "Review of their Plan" by either the DHS or the IDRP (Intellectual Disability Review Panel, now disbanded). The Disability Act does not provide a "right" to have a plan independently reviewed. Instead, a person who is unhappy about the contents of their plan may "make a complaint" to the service provider, which must have a complaints mechanism in place. The person may also make a complaint to the Disability Services Commissioner ("the Commissioner"). The Commissioner may accept or reject the request to deal with a complaint, or may decide to deal with some aspects of the complaint, but not others.
Investigation and/or conciliation may follow the making of a complaint to the Commissioner (see: ss.14, 16 & 107–124 of the Disability Act). Complaints about various other decisions or actions of service providers, not only planning issues, may also be made to the Commissioner. To date, the Commissioner has usually chosen to conduct conciliations rather than investigations. Unfortunately, unlike its predecessor the IDRP, the Commissioner does not make recommendations. The conciliation process itself may, however, lead to some beneficial outcomes for complainants. It is often a slow process due to limited resources.
It is generally expected that a complaint to the Commissioner will have first been made to the service provider itself, in an effort to resolve the issue. The Commissioner may, however, decide to consider a complaint where one has not first been made to the service provider. It may be useful to advise the Commissioner of an issue and that a complaint is being made to a service provider, so that the Commissioner will be aware of a situation in advance of it possibly becoming a complaint to the Commissioner.
The Disability Act provides for some matters, such as disability accommodation tenancy issues and restraint and seclusion matters, to be dealt with by VCAT (see below).
Further information about complaints to the Commissioner can be obtained from the Office of the Disability Commissioner's website at www.odsc.vic.gov.au. (See: "Contacts" in Chapter 16*1 Disability Overview for further contact details.) Further information on the Disability Act and complaints mechanisms can be obtained from the DHS website at www.dhs.vic.gov.au/disability.
The laws set out in the Health Records Act 2001 (Vic) ("HRA"), 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: Chapter 21*5 Privacy 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 and the IPA applied in respect of the provision of disability services by disability service providers (ss.97(2)(a) &97(3)).
See generally: "Privacy and confidentiality", in Chapter 19*1 Health Law.
Sometimes people who have an intellectual disability may need to be restrained or put in a secluded place to prevent them from injuring themselves 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:
Note
restraint means chemical restraint or mechanical restraint;
Note
seclusion means the sole confinement of a person with a disability at any hour of the day or night:
Note
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; orNote
in any room in the premises where disability services are being provided of which the doors and windows are locked from the outside; orNote
to a part of any premises in which disability services are being provided.
Division 5 of the Disability Act sets out the Senior Practitioner's functions 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 which 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).
See: "Contacts" in Chapter 16*1 Disability Overview, for the Office of the Senior Practitioner's details. Further information on restraint and seclusion can be obtained from the DHS website at www.dhs.vic.gov.au/disability and the Senior Practitioner’s website at www.dhs.vic.gov.au/ds/osp.
Aversive therapy is now prohibited. The provisions in the IDPSA which 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. 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: Division 2 of the Disability Act, "Provisions Relating to the Management of Money").
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: Part 5 "Residential Services"). Appeals may be made to VCAT in relation to some tenancy issues (see: "Tenancy" in Chapter 16*1 Disability Overview).
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 DHS website at www.dhs.vic.gov.au/disability.
For assistance with regard to housing and residency issues contact AMIDA, the housing advocacy group for people with disabilities (see: "Contacts", in Chapter 16*1 Disability Overview). See: Chapter 16*1 Disability Overview, for a general discussion of rights of people with disabilities.
Provision for protection of the rights of people who have an intellectual disability is now contained in the Disability Act. (Prior to 1 July, 2007, the Intellectual Disability Review Panel (IDRP, now disbanded) was the independent statutory body set up under the IDPSA (now repealed) to protect the rights of people who have an intellectual disability).
The Disability Act provides for the establishment of an Office of Senior Practitioner within the DHS and an independent Disability Services Commissioner, as well as the right for review of certain decisions by VCAT. 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 the DHS website at www.dhs.vic.gov.au/disability.
Services that advocate on behalf, or in support, of people who have an intellectual or other disability, are discussed in Chapter 16*2 Advocacy. (Also see: Chapter 16*1 Disability Overview, regarding the Review of National Disability Advocacy Services.)
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SERVICES :: Last updated: Thu Jul 1st 2010