Your Right To Have A Disability Advocate
WHAT IS A DISABILITY ADVOCATE?
The National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) says that an advocate is:- A person who is separate from an agency, the NDIS Commission and any NDIS providers who provide support services to the person with a disability; and
- Advocates independently for the person with a disability, to help them exercise choice and control and to have their voice heard in matters which affect them; and
- Acts at the direction of the person with the disability by expressing their wishes and rights; and
- Is free of any relevant conflicts of interest[1].
IT IS YOUR RIGHT TO RECEIVE ADVOCACY SUPPORT AND INFORMATION WHEN YOU MAKE A COMPLAINT ABOUT AN NDIS SERVICE PROVIDER
The NDIS Act says that when a person with a disability makes a complaint about an NDIS Service Provider, the provider must cooperate with and make arrangements for advocates to support the individual with a disability if they choose to be supported by an advocate in the complaint process.[2]The NDIS Practice Standards also say that people with disabilities should be provided with information and access about how to make a complaint about a service provider and about their right to access an advocate[3].
The NDIS Code of Conduct (the NDIS Code) makes it clear that people with disability have full and equal rights to make their own decisions, live how they choose and receive the support that they need. The NDIS Code also says that people with disability have a right to question, seek extra information about or refuse any part of their service delivery and that the onus is on the service provider to communicate in a way that ensures that people with disabilities understand and make their own preferences and concerns known to them[4].
As many individuals with disability are unable to articulate their concerns or are unaware of their human rights, service providers should ask participants with disabilities whether they require the assistance of an advocate to ensure that the person’s concerns can be made known to the service provider.
IT IS YOUR RIGHT TO RECEIVE ADVOCACY SUPPORT AND INFORMATION WHEN A REPORTABLE INCIDENT OCCURS
What is a reportable incident?
The NDIS Act says that a Reportable Incidents include situations which involve:- the death of a person with disability; or
- serious injury of a person with disability; or
- abuse or neglect of a person with disability; or
- unlawful sexual or physical contact with, or assault of, a person with disability; or
- sexual misconduct committed against, or in the presence of, a person with disability, including grooming of the person for sexual activity; or
- the use of a restrictive practice in relation to a person with disability, other than where the use is in accordance with an authorisation (however described) of a State or Territory in relation to the person[5].
WHAT THE NDIS PRACTICE STANDARDS (THE STANDARDS) SAY ABOUT YOUR RIGHT TO BE REFERRED TO AN ADVOCATE FOR GENERAL SUPPORT
The Standards set out the rights of people with disabilities and the responsibilities of NDIS service providers who deliver supports and services to them.[7]The Standards say that people with disability must be supported by their providers to make informed choices, exercise control and maximise their independence relating to the supports that they are being provided with.[8]
As advocates help people with disabilities speak up about what they want, get the information they need to make their own decisions, and explore the choices they want to make about their life, service providers should support people with disability to make informed choices by facilitating advocacy support and assistance.[9] This support may also include assisting people with disabilities to access an advocate of their choosing, in addition to allowing them to have an advocate present in the complaint handling process.[10]
WHAT THE STANDARDS SAY ABOUT YOUR RIGHT TO BE REFERRED TO AN ADVOCATE WHEN YOU ARE AT RISK OF VIOLENCE, ABUSE, NEGLECT, EXPLOITATION OR DISCRIMINATION
The Standards make it clear that people with disability have the right to access supports which are free from violence, abuse, neglect, exploitation and discrimination[11].Below is a brief summary of what violence, abuse, exploitation and discrimination mean:
- Violence –is a form of physical abuse. It can involve hitting, slapping or other forms of physical harm. Violence can also include yelling or saying things that make you feel scared or threatened.
- Abuse – also has many other forms including verbal abuse, sexual abuse, emotional or psychological abuse and economic abuse.
- Neglect – neglect can occur when a service provider fails to care for a person with a disability properly which then puts them at risk;
- Exploitation - can occur when a person with a disability is treated unfairly for the benefit of the person who is exploiting them;
- Discrimination – is where a person is treated less favourably or not given the same opportunities as others in a similar situation because of their disability, sex, age or race.
ADVOCACY SUPPORT WHEN INFORMED CONSENT CANNOT BE PROVIDED
In some situations a disability advocate may provide advocacy assistance to a person with a disability even when they are unable to provide consent that they require advocacy support.This may include circumstances where formal consent is not required from a guardian, administrator or enduring power of attorney and the decision being made in relation to the person with a disability is not in their best interests. This authority comes from the Disability Act 2006 (Vic) which states that people with disabilities have the same rights and responsibilities as other members of the community and should be empowered to exercise those rights and responsibilities.[13] In many situations, people with disabilities, especially those who do not have capacity to provide informed consent are unable to exercise their rights due to impairments associated with their disability.
In these situations, a disability advocate may assist a person with a disability to exercise their rights by advocating on their behalf in situations where they are unable to do so for themselves or where they are unable consent to have an advocate assist them.
This may include (but are not limited to) situations where:
- The person’s human rights are being violated under domestic legislation and international human rights treaties that Australia has ratified;
- The person requires respect for their human worth and dignity;[14]
- The person is at risk of abuse, neglect or exploitation;[15]
- The person has capacity for physical, social, emotional and intellectual development;[16] or decisions need to be made for the person to have an opportunity to develop and maintain skills to participate in activities that affect them[17]
- The person requires services which support their quality of life;[18]
- The person requires assistance to exercise control over their life;[19] or
- A decision needs to be made to enable the person with a disability to exercise their right to a high quality of care and development opportunity while they live in a residential institution.[20]
[2]NDIS Act s 73W (ab).
[3]National Disability Insurance Scheme Practice Standards (NDIS Practice Standards), Page 10.
[5]NDIS Act, s 73Z (4).
[6]NDIS Act s 73Z(3).
[7]NDIS Practice Standards Page 5.
[8]NDIS Practice Standards Page 6.
[9]NDIS Practice Standards Page 6.
[10]NDIS Practice Standards Page 6.
[12]NDIS Practice Standards, Page 7.
[13]Disability Act 2006(Vic) (Disability Act), s5.
[14]Disability Act, s 5(2)(a).
[15]Disability Act, s 5(2)(b).
[16]Disability Act, s 5(2)(C).
[17]Disability Act, 6(1)(b).
[18]Disability Act, s 5(2)(g).
[19]Disability Act, s 5(2)(d).
