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Office of the Public Advocate Inquiry into the social inclusion of Victorians with a disability Submission to the Parliament of Victoria, Family and Community Development Committee 13 February 2014 Contact: John Chesterman Manager, Policy and Education Office of the Public Advocate Main writer: Mark Feigan Policy and Research Officer Office of the Public Advocate Office of the Public Advocate Level 1, 204 Lygon St, Carlton, Victoria 3053 Tel: 1300 309 337 Fax: 1300 787 510 www.publicadvocate.vic.gov.au Contents 1. About the Office of the Public Advocate submission ..................................... 3 2. Summary of recommendations ......................................................................... 4 3. Definitions and terminology .............................................................................. 6 4. Victorians with a disability and social inclusion ........................................... 18 5. Disability Act (2006) ......................................................................................... 27 6. Looking to the future ....................................................................................... 33 7. References ........................................................................................................ 34 13 February 2014 2 1. About the Office of the Public Advocate submission 1.1. The Office of the Public Advocate (OPA) is a statutory office, independent of government and government services that works to protect and promote the rights, interests and dignity of people with disabilities. 1.2. OPA provides a number of services to work towards these goals, including the provision of advocacy, investigation and guardianship services to people with cognitive impairments or mental illnesses. In the last financial year, 2012–13, OPA was involved in 1,590 guardianship matters, 386 investigations and 394 cases requiring advocacy. 1.3. Under the Guardianship and Administration Act, OPA is required to arrange, coordinate and promote informed public awareness and understanding through the dissemination of information about these topics. 1.4. The OPA Advice Service offers information and advice on a diverse range of topics affecting people with a disability. The issues raised by people contacting OPA are often complex, requiring a high level of expertise. During 2012–13, the Advice Service handled 13,835 enquiries, a 3.3 per cent increase from the previous year. The contact patterns have been very consistent over the last few years. The majority of telephone calls are from people who do not have a disability. The largest group of callers was family and friends (39.4 per cent), followed by health and community services (27.4 per cent). Most calls related to guardianship and administration (33 per cent) and enduring powers of attorney (25 per cent). The other significant category of calls related to medical consent and healthcare treatment (12 per cent). 1.5. OPA coordinates a Community Education Program where staff address both professional and community audiences on a range of topics including the role of OPA, guardianship and administration, enduring powers of attorney and medical decision-making. Last year, the program delivered 189 presentations to a total audience of 6271 people. The largest audience group for presentations was health and community professionals (48 per cent). The remaining presentations were to general public audiences, tertiary students, and legal and justice services. 1 1.6. Advocacy on behalf of people with a cognitive impairment is fundamental to our work, and this submission particularly focuses on social inclusion issues for Victorians having high support needs associated with a significant cognitive impairment. 1.7. This OPA submission directly addresses the questions asked in the Family and Community Development Committee’s submission guide. 1 Office of the Public Advocate, "Office of the Public Advocate Annual Report 2012-13," (Melbourne: 2013). 13 February 2014 3 2. Summary of recommendations RECOMMENDATIONS 1. The Victorian Government should adopt and, where appropriate, incorporate into new guardianship and powers of attorney legislation, the supported decision- making proposals made by the Victorian Law Reform Commission in its Guardianship Final Report. 2. The government should monitor the effectiveness of the Office of the Public Advocate's supported decision-making trial, and undertake to consider provision of ongoing funding for this program should it prove to be beneficial to otherwise isolated people with cognitive impairments. 3. ‘Social inclusion’ should be defined to mean that all Victorians, including Victorians with disability, are respected and valued, and are encouraged, supported and able to take part fully in the life of our society. 4. The government, in liaison with the National Disability Insurance Agency, should develop and implement a plan for the closure of all remaining residential institutions for people with disability in Victoria. 5. The government should develop in consultation with relevant parties a holistic disability justice strategy that gives priority to evidence-based ways of quickly and sustainably reducing the number of people with disability incarcerated due to inadequate support for their disability needs. 6. The government should embark upon a well-conceived and sustained awareness-raising campaign that promotes the social inclusion of people with disability and mental ill health. 7. The government should increase funding for all aspects of disability service delivery so that funded services, advocacy organisations and safeguarding bodies can meet the requirements of the Disability Act and the goals of the Victorian State Disability Plan. 13 February 2014 4 RECOMMENDATIONS continued 8. The Parliament should consider amending the Disability Act so that its important safeguards and positive measures for people with an intellectual disability are extended to people with other forms of established and significant cognitive impairment. 9. The government should monitor, evaluate and address the effect that the consumer choice philosophy, which is central to the operation of the National Disability Insurance Scheme and recent state disability funding reforms, is having on the social inclusion of Victorians with significant cognitive impairment or mental ill health. 13 February 2014 5 3. Definitions and terminology 3.1 What needs to happen to ensure that people’s individual disability and experience are accounted for in efforts to increase their social inclusion? 3.1.1 Context Since the twin reforming Acts of 1986, the Intellectually Disabled Persons Services Act and the Mental Health Act, Victoria has increasingly implemented personalised and community-based services and treatment, with the goal of inclusion in the mainstream of society. There has been an accelerating shift away from the block or de-individualised treatment of people with disability requiring significant assistance in daily activities. This shift in thinking and service approaches towards inclusion is not yet fully completed. The UN Convention on the Rights of Persons with Disabilities 2006 (the Convention) draws attention to the measures still required to advance the full social inclusion of people with disability, with considerable applicability to the committee’s terms of reference.2 The Convention was signed by the Commonwealth of Australia in 2007 and ratified in 2008. OPA welcomes the Committee’s terms of reference and its inquiry into the social inclusion of Victorians with disability. The inquiry by this committee follows in the footsteps of the pioneering policy development work done by the ‘Premier’s Committee’ in 1979.3 That committee identified the tension in public policy that existed then between treating people with (intellectual) disability as if they were considered as fundamentally different, ‘a special, vulnerable group‘, or being considered as equals, the same as other people in their rights‘.4 This inquiry is occurring in a changed and still changing world where that question has been mostly, although not completely, settled. This inquiry can help ensure that Victoria continues to advance towards achieving the inclusive policies and services required by people with disability for a dignified and full life, articulated by the Convention. OPA notes the following obligations upon the Victorian Government arising from the Convention that are of particular importance for developing and implementing inclusive policies and services: promoting and protecting human rights in all programs and policies (Article 4) recognition as persons before the law (Article 12) providing better services by promoting staff training (Article 16) ensuring all services and facilities are effectively monitored by independent bodies to prevent all forms of violence, abuse and exploitation (Article 16) identifying, investigating and wherever possible prosecuting all instances of violence and abuse (Article 16) providing accommodation support without obliging people to live in a particular living arrangement and supporting the opportunity to choose one’s place of residence and living arrangements (Article 19) access to appropriate disability services and supports (Article 19) 2 United Nations General Assembly, "Convention on the Rights of Persons with Disabilities," (United Nations, 2006). 3 Jack L. Evans, "Report of the Victorian Premier's Committee (on Mental Retardation): Blueprint for the 1980's," Australian Journal of Mental Retardation 5, no. 6 (1979). 4 Mark Feigan,
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