Office of the Public AdvocateThank you to the Committee for the invitation to speak today and for your continued efforts to improve the NDIS.
- Acknowledgement of country
As Victoria’s Public Advocate I am appointed by the Governor-in-Council and am answerable to the Victorian Parliament. My office, the Office of the Public Advocate, is established under Victoria’s Guardianship and Administration Act 2019 with the primary function of promoting the human rights of persons with disability. One of my functions is to serve as Victoria’s ‘adult guardian of last resort’ and, on request, to investigate a person’s circumstances and provide advice on whether a guardianship order is appropriate. Over the last five years, I have been appointed to act as guardian for 1292 NDIS participants; 557 of whom were still under guardianship at the end of June 2023.
When I am appointed guardian by VCAT, I am given powers which are tailored to the individual’s circumstances to ensure that the least restrictive order is made to promote the person under guardianship’s human rights. This is a legal requirement in Victoria imposed by the Charter of Human Rights and Responsibilities Act 2006.
The NDIS was designed to promote ‘choice and control’ for people with disability. It is quite difficult to comprehend how a scheme premised on participant control has resulted in nationwide growth of the use of adult guardianship. In other words, human rights limitations are placed on large numbers of participants so they can access a system designed to promote choice and control. The introduction of the NDIS systems and processes resulted in a change in relationship between service providers and people with a disability. An unintended consequence of this market-based system is the alarming increase the use of guardianship, which in turn has impacted on the autonomy of people with a disability. This is at odds with a key object of the National Disability Insurance Scheme Act 2013 and with the intention of Victoria’s Guardianship and Administration Act.
An analysis of OPA’s data over the last 5 years shows people under public guardianship who are also NDIS participants are likely to spend twice as long under guardianship than those who are not NDIS participants. OPA’s recent report, Reflections on Guardianship discusses present drivers of guardianship as they relate to the NDIS and provides a data driven account of guardianship trends over a five-year period. The report found not only are there more young people on orders, but that they also spend more time subject to guardianship.
In our experience, the most common shared characteristic of NDIS participants under guardianship is their dearth of close relationships with people other than paid workers. Or, in some cases, they have informal supporters who disagree with each other. This lack of social capital is central to understanding why guardianship is being relied upon, despite an object of the NDIS Act to support the independence and social and economic participation of people with disability; and, to promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community.
To oversimplify, the NDIS is a market-based system, premised on agreements being reached between the service provider and the participant. Where the participant does not yet have the skills to navigate these service relationships, and they have no informal supporters to help them explore appropriate support options, who steps in? Sometimes it is exploitative service providers. Unfortunately, all too often, Guardianship orders are sort by service providers because guardians are seen by many as a means of accessing enhanced NDIS supports.
The significance of this issue was demonstrated in July when an NDIA (Acting) Assistant Director wrote to OPA seeking education for their staff on what to do in situations where the “participant’s only relationships are with paid providers” and they are “making all the decisions on behalf of a participant” and the NDIA believes “there is a significant conflict of interest and [hold] concern[s] about” the decisions being made. The NDIA began their email by saying they “don’t have any internal advice on how to manage this situation”.
By way of example, I was recently appointed guardian for an NDIS participant, following an application made by a support coordinator who had tried all least restrictive methods to obtain better NDIS supports/change of circumstances forms with the NDIS. The provider attempted to use a statement of support to ensure that the person received the right level of supports but this was rejected by the NDIS, citing the need for a signature from the participant who cannot physically hold a pen and has been assessed as not having decision-making capacity. According to the applicant for guardianship, numerous requests for change of circumstances/plan reviews have been rejected by the NDIS and there is no plan nominee or signature. VCAT formed the view there was no less restrictive alternative available, and I was appointed guardian.
Perhaps more commonly, participants can become subject to guardianship where the person’s support services are non-existent, very dysfunctional or threatening to completely fall apart. Sometimes the person is also resistant to receiving services, and in a market-based system, this proves difficult to navigate and may present a serious threat to their wellbeing.
I am currently guardian for an NDIS participant with complex mental health diagnosis living in social housing. They are supported by multiple agencies including MACNI (state initiative for people with multiple and complex needs). The participant does not engage with services, the guardian or with assessment processes. In my view, the guardianship order is futile.
The guardian is of the view that the participant has the capacity to make and implement decisions and therefore it can be difficult for a guardian to intervene when a potential decision is to be made. The participant’s will and preference is to not have a guardian and to make their own decisions. I supported this approach and sought to have the guardianship order revoked, noting there were no current decisions to be made. Unfortunately, this recommendation was unsuccessful. The participant’s mental health service provider argued they would benefit from continued advocacy by an agency with recognised authority to intervene with the NDIS. The VCAT member agreed, believing that OPA had a role to play in advocating to the NDIA for adequate services.
These examples – and the email correspondence from the NDIA - highlight the NDIA’s lack of clear internal guidance and consistent practice around seeking participant consent and processes around decision-making for people who have a significant decision-making disability. Addressing this gap would greatly reduce the pressures on state and territory guardianship bodies and tribunals and help prevent the unnecessary and inappropriate use of guardianship for participants. Tackling this gap also requires funding for peer support networks and disability advocacy organisations, as well as funding for supported decision-making services, and education and training about supported decision making.
Thin markets, especially prevalent for people with complex support needs, delays in establishing a functional and accessible ‘services of last resort’ system and the unaddressed gap left by the move away from a case manager model of support coordination all help create circumstances that can lead to guardianship.
Addressing these service gaps and having a workable approach to people who need supports but are reticent to engage with services will reduce the numbers of people subject to guardianship, as will resourcing less restrictive options for people to access supported decision-making services.
Establishing clear and coherent NDIA policies and procedures and escalation methodology that accommodate the needs of people with significant cognitive disability will benefit even greater numbers.
Further, a strong and effective participant safeguarding framework and clear NDIA responses to suspected exploitation and abuse. In our submission to the NDIS Review’s Participant Safeguarding proposals paper, we highlighted the information sharing barriers currently preventing state and territory adult safeguarding bodies from working productively with the NDIA and the NDIS Quality and Safeguards Commission in the interests of people with a cognitive disability.
Finally, you requested a range of data which my office has compiled. This will be forwarded to you.
I welcome your questions.
