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 a Victorian Disability Services Commissioner, as well as the right for review by the Victorian Civil and Administrative Tribunal (VCAT) of certain decisions. Further information on these provisions can be obtained from www.dhhs.vic.gov.au. Until recently, these Victorian state bodies also protected the rights of people receiving services under the NDIS. Recent amendments to the Disability Act included additional safeguards for Victorians with a disability, including additional and increased functions and powers for the Victorian Disability Services Commissioner, until the NDIS Quality and Safeguards Framework commenced in mid-2019.
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) (“IP Act”) 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 IP Act applied in respect of the provision of disability services by disability service providers (s 97(2)(a), (3)). The NDIS Act provides for privacy in sections 60–67H.
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 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.
The Disability Act (s 5) sets out the functions of the Senior Practitioner (Disability) in relation to:
• supervising restrictive interventions;
• educating service providers about best practice in relation to behavioural management strategies.
The Senior Practitioner (Disability) is guided by the principles in the Disability Act. In particular, they are guided by the following principle:
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.
The Senior Practitioner (Disability) uses the term “behaviours of concern” in preference to the previously used term “challenging behaviours”.
Decisions about restraint and seclusion may be reviewed by VCAT (s 146).
For the contact details for the Senior Practitioner (Disability), see “Contacts”.
Aversive therapy is now prohibited. The provisions in the Intellectually Disabled Persons’ Services Act 1986 (Vic) (repealed) 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 (div 2) stipulates that service providers must not act as administrators (legally appointed managers of a person’s money), nor as Residents’ Trust Fund, and accurate, detailed accounting records are to be maintained and copies made available to clients. Similar provisions apply to specialist disability accommodation funded by the NDIS.
People who have an intellectual disability live in many different types of accommodation. Their rights in these different settings vary.
Changes have recently been made to the Residential Tenancies Act 1997 (Vic) (“RT Act”) to ensure that the residential rights of NDIS participants living in specialist disability accommodation are fully protected. The recent changes also clearly set out the duties of providers of specialist disability accommodation – including penalties for non-compliance.
Part 12A of the RT Act:
• strengthens protections for residents of specialist disability accommodation against unreasonable eviction;
• allows residents of specialist disability accommodation to continue to receive and request visits from community visitors.
Consumer Affairs Victoria (CAV) regulates the new Part 12A of the RT Act and provides resources to help specialist disability accommodation residents and providers understand their rights and obligations. CAV also provides updates on legislation related to specialist disability accommodation. More information is available on CAV’s website (www.consumer.vic.gov.au).
Appeals may be made to VCAT in relation to some tenancy issues (see “Tenancy” in Understanding disability and the law).
For assistance with housing and residency issues, contact Action for More Independence and Dignity in Accommodation, which is the housing advocacy group for people with disabilities (see “Contacts”).