1. INTRODUCTION
The government has asked the New South Wales Law Reform Commission to review the Disability Services Act 1993 (the DSA) and the Disability Services Regulation 1993. We must look at whether:
- the policy objectives of the DSA are valid and
- the terms of the DSA are appropriate for securing those objectives.
We must also consider the cost of the DSA and the costs of any changes we propose to make.
2. HAVE YOUR SAY
The Law Reform Commission wants to know what people with a disability, their families and carers think about the DSA. We have prepared a paper which raises issues and asks questions (IP 16). This is a summary of the main issues and questions raised in that paper.
3. WHAT IS THE DSA?
The DSA is the framework the Government uses to deliver support and services to people with a disability. It gives the Government power to fund services and tells it how it can exercise that power. The Ageing and Disability Department gives funding to non-government services and to the Department of Community Services to provide a range of services including accommodation support, early intervention and referral, independent living training, post school options, respite care and research and development.
4. BALANCING COMPETING INTERESTS
The main focus of the DSA should be on people with a disability. However there are a number of competing interests and factors that must be balanced. These include:
- individual rights of people with a disability and the needs and responsibilities of families and service providers
- the needs and rights of children and those of parents and other adults
- meeting need and balancing the State Government budget
What should the balance between these competing interests or factors be?
5. OBJECTIVES OF THE DSA
The main policy objective of the DSA is to ensure that people with a disability have the same basic human rights as other members of the community. This means:
- ensuring people with a disability receive the services they need to participate in the community to the maximum of their potential
- furthering the integration of people with a disability into the community
- complementing services available generally to people with a disability in the community
- enabling people with a disability to become more independent and have employment opportunities and
- promoting a positive image of people with a disability and enhance their self-esteem.
6. PRINCIPLES AND APPLICATIONS
The “principles” in the DSA set out the rights of people with a disability. They include the right of people with a disability to:
- be respected for their human worth and dignity
- live in and be part of the community
- develop to their capacity physically, socially, emotionally and intellectually
- receive support in order to have a reasonable quality of life
- choose their own lifestyle
- participate in decisions that affect their lives
- receive services in the least restrictive way possible
- complain without fear of victimisation
- be protected from neglect and abuse.
The “applications of principles” in the DSA say that services must:
- ensure that no single organisation has control over all or most aspects of the life of a person with a disability
- meet the individual goals and needs of the person with a disability
- co-ordinate with general community services
- be accountable to service users
- ensure that people with a disability have access to advocacy support necessary to help them participate in decisions about the services they receive
- support family relationships and preserve the cultural and linguistic environment of the person with a disability
- respect the privacy and confidentiality of service users.
Some submissions to the Law Reform Commission say there should be special principles and applications for particular groups, for example, children.
7. TRANSITION PLANS
The DSA says that only services that comply with the principles and applications of principles should get funding. Some funded services did not comply when the DSA commenced so the DSA set up a transition process and required services to complete this within three years. However some services still do not comply. This is mainly because there is not enough funding available. New provisions are needed to deal with the situation where services do not currently comply with the DSA.
8. QUALITY ASSURANCE
The DSA does not say how services are to be checked to see whether they comply with the principles and applications. The Ageing and Disability Department has developed a set of standards which it uses to measure whether services comply with the principles and applications. Services must assess themselves and sometimes the Department sends officers to visit services. Some submissions to the Law Reform Commission say that the standards are confusing and do not reflect what the principles and applications say. They say they prevent flexible and innovative service provision. Other submissions say that services want guidance about how to comply with the principles and applications.
9. ADVOCACY
The DSA does not specifically provide for funding for advocacy for people with a disability using services.
How, if at all, should the DSA provide for advocacy for people with a disability using services?
10. DISABILITY SERVICES REGULATION
The Minister has excluded some services from the operation of the DSA by providing in the Disability Services Regulation 1993 that some services are not covered — most Home and Community Care Services and one accommodation service for people with multiple sclerosis.
Should the Minister have the power to exclude a service from the operation of the DSA? If so, in what circumstances?
11. DISABILITY SERVICES PLANS
The DSA requires some public authorities to prepare a plan which says how they will conform with the principles and applications of the DSA. A number of submissions say that the provisions in the DSA are too vague and that they are not enforceable.
12. ENFORCEMENT OF THE DSA
Some submissions say that the Minister should have more powers to take action if a service does not comply with the DSA. For example, the DSA could give the Minister the power to:
- appoint an administrator
- stop a service from admitting any more clients
- monitor a service more frequently.
What action should the Minister be able to take if a service does not comply with the DSA?
13. EMERGENCY PROTECTION
There are no provisions in the DSA which enable the Ageing and Disability Department or other body or individual to take immediate and effective action where a service’s breach of the principles and applications is causing immediate harm or high risk of harm to an individual or individuals.
What procedures and powers, if any, are needed to enable immediate action to be taken to protect people suffering immediate harm in a service?
14. OTHER ISSUES?
Are there any other issues about the DSA or the Disability Services Regulation you would like to raise?
WE WANT YOUR COMMENTS
The full version of the issues paper (IP 16) is available from the New South Wales Law Reform Commission in printed format as well as large print format (spiral bound).
You can respond to this summary by:
writing or on audio tape or disk to:
Mr Peter Hennessy
Executive Director
NSW Law Reform Commission
GPO Box 5199, Sydney NSW 1044
[DX 1227 Sydney]
The closing date for submissions is 14 December 1998.
