Introduction and key legislation
The role of the Public Advocate was established under the Guardianship and Administration Act 1986 (Vic) (“GA Act”), 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 (see “Contacts”).
“Disability” is defined in the GA Act as intellectual impairment, mental disorder, brain injury, physical disability or dementia.
The OPA is responsible for promoting the rights and independence of people with a disability and can provide advice and assistance, investigate, and advocate on their behalf (ss 15, 16).
Note that the Guardianship and Administration Act 2019 (Vic) will come into operation on 1 March 2020 and will replace the GA Act. One of the major changes in the 2019 Act is that “disability” is redefined to include neurological disorders. The OPA will continue in essentially the same role under the new legislation.
The OPA provides advice in relation to complaints about services, treatment or attitudes of government departments and other agencies.
Complaints can be made to the Victorian Ombudsman, the Victorian Equal Opportunity and Human Rights Commission, Victorian Health Complaints Commissioner, the Victorian Disability Services Commissioner, the NDIS Quality and Safeguards Commission and the Victorian Mental Health Complaints Commissioner.
If these avenues are inappropriate, the OPA may investigate the complaint if it involves abuse or exploitation or the need for guardianship.
The OPA can refer matters to the Community Visitors Program (see “Community Visitors Program”) and can seek government assistance on behalf of people with a disability.
The 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 Securing Their Future: Planning for the Future When You Care for a Person with a Disability (2019) and Take Control: A Guide to Powers of Attorney and Guardianship, 14 edn (2018). These and other publications can be downloaded from the OPA’s website at www.publicadvocate.vic.gov.au.
Generally, where there is an allegation of abuse, maltreatment or exploitation of someone with a disability, the OPA has power to intervene if the person needs 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 Guardianship and medical treatment). The 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.
From 1 March 2020, the Guardianship and Administration Act 2019 (Vic) will come into effect; this Act places a greater emphasis on empowering people with disabilities.
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 Guardianship and medical treatment.
Community Visitors Program
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 the OPA.
Community Visitors are community representatives who regularly visit services and institutions for people with psychosocial or intellectual disabilities, and supported residential services registered with the DHHS, or those in the non-government sector.
Community Visitors have the 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 the OPA and ultimately with the government minister responsible. NDIS matters can be escalated to the NDIS Quality and Safeguards Commission.
Section 18A of the GA Act gives the Public Advocate similar powers as Community Visitors to visit, inspect and inquire.
The Independent Third Person (ITP) Program is coordinated by the OPA.
Police Operating Procedure 188.8.131.52 requires that an ITP be present when police officers are interviewing a victim, suspect or witness who has an intellectual disability, a mental illness, acquired brain injury or dementia.
The 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.
The Victorian Government is piloting an “Intermediaries Program” to assist children and people with disabilities who are victims or witnesses of certain crimes (mainly sexual offences). An intermediary assists the child or person with disability in their communication with police officers and court staff. The pilot involves five police stations (Box Hill, Fawkner, Frankston, Geelong and Knox) and Melbourne and Geelong courts.
Where an intermediary is not available, an ITP should be engaged.
Corrections Independent Support Officers (CISOs) are volunteers and OPA staff who assist and support prisoners with an intellectual disability in all Victorian prisons during internal prison disciplinary hearings. These hearings occur when prisoners are charged with a breach of the internal prison management regulations or rules. The role of a CISO is to:
• provide information to the prisoner about the disciplinary hearing procedures;
• provide information to the prisoner about their 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.
The OPA also offers advice and information on guardianship and administration applications to VCAT, enduring powers of attorney and supportive attorneys, supported decision-making, the rights of people with disabilities, medical treatment decision-making, advance care directives, and advocacy. The OPA’s Community Education Program provides written materials and speakers.