Disability Services Act 2011 (Tas)

Disability Services Act 2011 An Act relating to the funding of the provision of specialist disability services, and other goods or services, in relation to persons with disability, the regulation of the use of restrictive interventions in relation to such persons, the repeal of the Disability Services Act 1992 , the consequential amendment of certain legislation, and for related purposes [Royal Assent 21 September 2011] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Disability Services Act 2011 . 2. Commencement (1) The provisions of this Act commence on a day to be proclaimed. (2) However, if the provisions of this Act have not commenced before 1 January 2012, the provisions of this Act commence on that day. 3. Objects The objects of this Act are – (a) to provide for the funding of – (i) the provision of specialist disability services and certain other goods or services; and (ii) research or development activities; and (b) to provide for the effective planning, prioritisation and scrutiny of the provision of specialist disability services and grants under this Act; and (c) to set out principles that are to be applied in relation to the performance or exercise of functions or powers under this Act and in relation to certain activities to which this Act relates; and (d) to enable the setting of standards that are to be met by funded disability services providers in providing, or ensuring the provision of, specialist disability services; and (e) to ensure that funded disability services providers provide, or ensure the provision of, specialist disability services in a manner that meets those standards; and (f) to regulate the use of restrictive interventions by disability services providers and funded private persons. 4. Interpretation (1) In this Act, unless the contrary intention appears – accommodation support services means services which – (a) provide accommodation to persons with disability; or (b) provide the support needed to enable a person with disability to remain in the person's existing accommodation; associated area, in relation to a funded provider's premises, means – (a) the area, outside those premises, which is part of the property on which the premises are located; or (b) a room occupied, or to be occupied, by a resident of the premises; or (c) any common area; or (d) any facilities that are connected to the premises; authorised officer means a person who is authorised to enter premises under section 25 ; community visitor services means inspection of the provision of specialist disability services by disability services providers so as to ensure that – (a) the needs of persons with disability are being appropriately met in the provision of such services; or (b) the rights of persons with disability are being respected in the provision of such services; designated standards means – (a) the standards that are prescribed in regulations in accordance with section 6(1) ; or (b) if those standards have not been prescribed, the standards referred to in section 6(3) ; disability, in relation to a person, means a disability of the person which – (a) is attributable to a cognitive, intellectual, psychiatric, sensory or physical impairment or a combination of those impairments; and (b) is permanent or likely to be permanent; and (c) results in – (i) a substantial restriction in the capacity of the person to carry on a profession, business or occupation, or to participate in social or cultural life; and (ii) the need for continuing significant support services; and (d) may or may not be of a chronic episodic nature; disability research provider means a person or organisation that carries out research or development activities; disability services provider means a person or organisation that provides, whether or not for profit, specialist disability services but does not include – (a) a relative or friend of a person with disability who provides specialist disability services to the person; or (b) a prescribed person or body; employee, in relation to a funded provider, means – (a) an employee or agent of the funded provider; or (b) a person providing services voluntarily on behalf of the funded provider; funded disability research provider means a disability research provider that is receiving a grant under section 14(1)(b) ; funded disability services provider means a disability services provider that is receiving a grant under section 14(1)(a) ; funded entity means – (a) a funded provider; or (b) a funded private person; funded private person means a person who is receiving a grant under section 14(1)(c) ; funded provider means – (a) a funded disability services provider; or (b) a funded disability research provider; or (c) any other entity that is determined by the Secretary to be a funded provider for the purposes of this definition; funded provider's premises means premises – (a) that are owned, leased or occupied by a funded disability services provider and that are used by a disability services provider as a place in or from which to provide specialist disability services; or (b) in which research or development activities are being carried out by a funded disability research provider – and includes an associated area; funding agreement means a funding agreement entered into under Part 3 ; grant means a grant under this Act; individual plan, in relation to a person with disability, means an individual plan approved under section 11 or 12 in relation to the person; intake and assessment services means – (a) initial assessment of persons to determine if they are eligible to be provided with specialist disability services; and (b) the identification of which specialist disability services may be required by a person who is determined to be eligible to be provided with such services; intermediary services means the provision of assistance – (a) in the determination of the needs of a person with disability; or (b) in organising the delivery, by a disability services provider, of specialist disability services to a person with disability; or (c) to a person to whom a grant under section 14(1)(c) relates, to enable the grant to be effectively managed; operational area means an area determined under section 8 ; operational plan, in relation to an operational area, means the plan for that area approved under section 8 , as the plan is amended and in force from time to time; private funded premises means – (a) premises in which resides a person to whom a grant under section 14(1)(c) is made; or (b) premises in which resides a person with disability to whom a grant under section 14(1)(c) relates – but does not include supported accommodation; research or development activities means – (a) research in relation to the provision of specialist disability services; or (b) investigation of the need for specialist disability services; or (c) the planning, development or implementation of specialist disability services; or (d) the planning, development or implementation of training programs – (i) for persons engaged in the provision of specialist disability services; or (ii) for families of persons with disability and other persons who care for or assist persons with disability; or (e) investigation of outcomes achieved by persons with disability, or persons referred to in paragraph (d)(ii) , through the provision of specialist disability services or other goods or services; or (f) any other activities approved by the Minister under subsection (3) in relation to specialist disability services; restrictive intervention means any action that is taken to restrict the rights or freedom of movement of a person with disability for the primary purpose of the behavioural control of the person but does not include such an action that is – (a) taken for therapeutic purposes; or (b) taken to enable the safe transportation of the person; or (c) authorised under any enactment relating to the provision of mental health services or to guardianship; Secretary means the Secretary of the Department; specialist disability services means services specifically for, or related to, the support of persons with disability and includes, but is not limited to including, the following: (a) accommodation support services; (b) home care and family support services; (c) in-home community-based services; (d) intake and assessment services; (e) independent living training services; (f) information services and print disability services; (g) recreation services; (h) respite care services; (i) education or training services; (j) counselling, support or advocacy services; (k) community visitor services; (l) therapy services; (m) equipment services; (n) transport services; (o) intermediary services – but does not include a prescribed service; strategic plan means the strategic plan, approved under section 7 , as the plan is in force from time to time; supported accommodation means premises – (a) at which a person with disability resides permanently or temporarily; and (b) that are owned, leased or occupied, in whole or in part, by a disability services provider; therapeutic purposes includes treating (by diagnosing, curing or relieving) a disease, disorder, ailment, defect or injury and facilitating such treatment, but does not include preventing or reducing the risk of ailment or injury; Tribunal means the Tasmanian Civil and Administrative Tribunal. (2) In this Act, a person or organisation to which a grant is made under section 14(1) is to be taken to be receiving the grant for the period specified in the funding agreement in relation to the grant as the period for which the agreement is to be in force. (3) The Minister, in writing, may approve an activity as a research or development activity for the purposes of this Act. (4) A reference in this Act to a person nominated by a person with disability – (a) includes, if the person with disability is a child, a reference to a parent of the child and a person acting in loco parentis; and (b) includes a reference to a guardian or trustee of the person with disability or a person who is an administrator, within the meaning of the Guardianship and Administration Act 1995 , in relation to the person with disability. 5. Principles (1) The following are the general principles that are to guide actions under this Act: (a) people with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development; (b) people with disability should be supported to participate in, and contribute to, social and economic life to the extent of their ability; (c) people with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime; (d) people with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports; (e) people with disability should be supported to receive reasonable and necessary supports (including early intervention supports) within the meaning of the National Disability Insurance Scheme Act 2013 of the Commonwealth; (f) people with disability have the same right as other members of Australian society to be respected for their worth and dignity and to live free from abuse, neglect and exploitation; (g) people with disability have the same right as other members of Australian society to pursue any grievance; (h) people with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity; (i) people with disability should be supported in all their dealings and communications so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs; (j) people with disability should have their privacy and dignity respected; (k) the role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected; (l) the role of advocacy in representing the interests of people with disability is to be acknowledged and respected, recognising that advocacy supports people with disability by – (i) promoting their independence and social and economic participation; and (ii) promoting choice and control in the pursuit of their goals and the planning and delivery of their supports; and (iii) maximising independent lifestyles of people with disability and their full inclusion in the community; (m) innovation, quality, continuous improvement, contemporary best-practice and effectiveness in the provision of supports to people with disability are to be promoted; (n) positive personal and social development of people with disability, including children and young people, is to be promoted. (2) If this Act requires or permits an act or thing to be done by or in relation to a person with disability by another person, the act or thing is to be done, so far as practicable, in accordance with both the general principles set out above and the following principles: (a) people with disability should be involved in decision-making processes that affect them, and where possible make decisions for themselves; (b) people with disability should be encouraged to engage in the life of the community; (c) the judgements and decisions that people with disability would have made for themselves should be taken into account; (d) the cultural and linguistic circumstances, and the gender, of people with disability should be taken into account; (e) the supportive relationships, friendships and connections, with others, of people with disability should be recognised; (f) if the person with disability is a child – the best interests of the child are paramount, and full consideration should be given to the need to – (i) protect the child from harm; and (ii) promote the child's development; and (iii) strengthen, preserve and promote positive relationships between the child and the child's parents, family members and other people who are significant in the life of the child. (3) It is the duty of a person who may do a thing on behalf of a child to ascertain the wishes of the child concerned and to act in the best interests of the child. (4) It is the duty of a person who may do a thing on behalf of a child to provide disability, and age-appropriate, assistance in decision making by the child personally and to have regard to, and give appropriate weight to, the views of the child. (5) A person does not breach the duty imposed by subsection (3) or (4) by doing a thing if, when the thing is done, the person reasonably believes that – (a) he or she has ascertained the wishes of the child in relation to the thing; and (b) the doing of the thing is in the best interests of the child. (6) A person does not breach the duty imposed by subsection (3) or (4) by refraining from doing a thing if, at the relevant time, the person reasonably believes that – (a) he or she has ascertained the wishes of the child in relation to the thing; and (b) not doing the thing is in the best interests of the child. 6. Designated standards (1) The regulations are to prescribe standards that are to apply in relation to funded disability services providers. (2) Regulations for the purposes of subsection (1) may prescribe standards that are to apply to – (a) all funded disability services providers in respect of the design, administration and provision of specialist disability services by disability services providers; and (b) a particular kind of funded disability services provider in respect of the design, administration and provision of specialist disability services by such disability services providers. (3) Until designated standards are prescribed in regulations made under this Act, the designated standards for the purposes of this Act are to be the standards contained in Schedule 3 to the Disability Services Act 1992 as in force immediately before the commencement of this Act. PART 2 - Planning and Reporting Division 1 - Planning and budgetary oversight 7. Strategic plan (1) The Minister must approve a plan (the "strategic plan") by 1 January in the first year after this section commences and by 1 January of every third year after that year. (2) The Minister, before approving the strategic plan, is to consult with – (a) the persons or bodies that, in the opinion of the Minister, have experience or expertise in the provision of specialist disability services; and (b) persons with disability and persons who care for such persons; and (c) the persons or bodies that, in the opinion of the Minister, represent the interests of persons with disability. (3) The strategic plan is to set out – (a) the outcomes intended to be achieved in the State in relation to – (i) the administration of this Act; and (ii) the provision of specialist disability services; and (iii) grants provided under this Act; and (b) how it is proposed that the outcomes are to be achieved. (4) The strategic plan is to set out – (a) the objectives that are to be achieved across the State as a whole; and (b) the objectives that are to be achieved in particular parts of the State set out in the strategic plan. (5) The strategic plan is to set out – (a) the proportion of any funding, appropriated by Parliament in relation to persons with disability, that is to be used in the administration of this Act; and (b) the proportion of any funding, appropriated by Parliament in relation to persons with disability, that is to be used to enable grants to be made. (6) The strategic plan is to set out how the proportion of funding referred to in subsection (5)(b) is to be distributed between – (a) grants to disability services providers under section 14(1)(a) ; and (b) grants to disability research providers under section 14(1)(b) ; and (c) grants to persons under section 14(1)(c) . (7) The strategic plan is to set out how the proportion of funding that is to be distributed as grants under section 14(1)(a) is to be distributed between different kinds of specialist disability services. (8) The strategic plan is to set out how the proportion of funding that is to be distributed for the purposes set out in subsection (6)(a) , (b) and (c) is to be distributed for those purposes between the particular parts of the State set out in the strategic plan in accordance with subsection (4)(b) . (9) The strategic plan may include other matters that the Minister thinks fit in respect of matters to which this Act relates. (10) The Secretary is to ensure that an up-to-date copy of the strategic plan is available for viewing by the public. 8. Operational plans (1) The Secretary is to determine whether – (a) the State is to be regarded as one operational area for the purposes of this Act; or (b) the State is to be divided into more than one operational area for the purposes of this Act. (2) The Secretary is to approve, and review and amend from time to time as he or she thinks fit, a plan (the "operational plan") for the operational area, or each of the operational areas, determined under subsection (1) . (3) The Secretary, before approving or amending an operational plan, and in reviewing such a plan, is to consult with – (a) the persons or bodies that, in the opinion of the Secretary, have experience or expertise in the provision of specialist disability services; and (b) persons with disability and persons who care for such persons; and (c) the persons or bodies that, in the opinion of the Secretary, represent the interests of persons with disability. (4) An operational plan in relation to an operational area is to set out – (a) how the strategic plan is to be implemented in the operational area; and (b) how funding that is to be used in respect of the operational area in accordance with the strategic plan is to be distributed between – (i) the costs of administering this Act in that operational area; and (ii) the making of grants to persons or organisations in the operational area; and (c) how funding that is to be distributed in respect of the operational area in the making of grants to persons or organisations in the operational area is to be distributed between – (i) grants to disability services providers under section 14(1)(a) ; and (ii) grants to disability research providers under section 14(1)(b) ; and (iii) grants to persons under section 14(1)(c) . (5) The operational plan in relation to an operational area is to set out how the proportion of funding that is to be distributed in respect of the operational area as grants to disability services providers under section 14(1)(a) is to be distributed between different kinds of specialist disability services. (6) The operational plan for an operational area is to include – (a) how the objectives that are specified in the strategic plan to be objectives to be achieved across the State as a whole are to be implemented in the operational area; and (b) how the objectives that are specified in the strategic plan to be objectives to be achieved in a particular part of the State, specified in the strategic plan, that is in the operational area are to be implemented in that part of the State. (7) The Secretary is to ensure that an up-to-date copy of each operational plan is available for viewing by the public. (8) An operational plan may form part of a document containing plans in relation to matters other than matters to which this Act relates. 9. Budgetary oversight (1) The Secretary, as soon as practicable after the end of a financial year, must prepare an annual report in respect of the financial year. (2) The annual report in respect of a financial year is to – (a) set out how the strategic plan as in force for the financial year was implemented, in each of the operational areas, in accordance with the operational plan for that operational area; and (b) set out the extent to which the outcomes, referred to in section 7(3) , set out in the strategic plan as in force for the financial year, have been achieved, if at all; and (c) specify the amount appropriated by Parliament that was used for the purposes of the administration of this Act and the amount appropriated by Parliament that was used in the making of grants; and (d) detail how the amount used for the purposes of the administration of this Act was distributed between the operational areas; and (e) detail how the amount that was used in the making of grants was distributed during that year between – (i) different kinds of specialist disability services; and (ii) research or development activities; and (iii) grants to persons under section 14(1)(c) ; and (iv) each operational area; and (f) specify, in relation to each funded entity, the amounts that were provided by way of grants under this Act; and (g) contain the prescribed information, if any. (3) The annual report is not to contain the name or address of a person with disability. (4) The Minister is to lay a copy of the annual report before each House of Parliament by 31 October next following the end of the financial year to which the annual report relates. (5) If the Minister is unable to comply with subsection (4) within the period referred to in that subsection because either House of Parliament is not sitting at the expiration of that period, the Minister is to – (a) forward a copy of the annual report to the Clerk of that House of Parliament before the expiration of that period; and (b) lay a copy of the annual report before that House within the next 7 sitting-days of that House. Division 2 - Individual plans 10. Contents of individual plans An individual plan in relation to a person with disability is a plan that includes – (a) the outcomes that it is intended be attained by the person through the provision to the person of specialist disability services or the provision of other goods or services; and (b) the specialist disability services, and other goods or services, that may be required in order to attain those outcomes; and (c) any specialist disability services, or other goods or services, that may require financing under a grant; and (d) the rights and responsibilities of the person and any disability services provider or funded private person that provides specialist disability services to the person; and (e) the period for which the plan is to be in force; and (f) the prescribed matters, if any. 11. Approval of individual plans required by term or condition of grant to funded private persons (1) This section applies to a person if a term or condition, imposed in accordance with section 17(3) , of a grant to the person requires that there be an individual plan in relation to the person with disability to whom the grant relates. (2) A proposed individual plan in relation to a person with disability to whom this section applies, or an amendment to such a plan, is to be prepared by or on behalf of the person after consultation between – (a) the person, or if a person is nominated by the person with disability, the nominated person; and (b) the Secretary. (3) A person to whom this section applies or, if a person is nominated by the person with disability, the nominated person, may provide to the Secretary a copy of – (a) a proposed individual plan in relation to the person with disability; or (b) a proposed amendment to an individual plan approved under subsection (4) in relation to the person. (4) The Secretary may approve in relation to a person with disability – (a) an individual plan in relation to the person that is provided to the Secretary under subsection (3) ; or (b) an amendment, to an individual plan in relation to the person, that is provided to the Secretary under subsection (3) . 12. Approval of individual plans required by term or condition of grant to provider (1) This section applies to a person with disability and a funded disability services provider if – (a) the provider is providing specialist disability services to the person; and (b) a term or condition, imposed in accordance with section 15(3) , of a grant to the provider requires that there be an individual plan in relation to the person. (2) A proposed individual plan in relation to a person with disability to whom this section applies, or an amendment to such a plan, is to be prepared by or on behalf of the person after consultation between – (a) the person, or, if a person is nominated by the person with disability, the nominated person; and (b) the funded disability services provider. (3) A person with disability to whom this section applies, or, if a person is nominated by the person with disability, the nominated person, may provide to the funded disability services provider a copy of – (a) a proposed individual plan in relation to the person; or (b) a proposed amendment to an individual plan approved under subsection (4) in relation to the person. (4) A person authorised by a funded disability services provider to approve individual plans may approve in relation to a person with disability – (a) an individual plan in relation to the person that is provided to the funded disability services provider under subsection (3) ; or (b) an amendment, to an individual plan in relation to a person with disability, that is provided to the funded disability services provider under subsection (3) . PART 3 - Funding 13. Provision of specialist disability services (1) The Secretary may provide assistance in respect of the provision of specialist disability services to a person with disability. (2) In providing assistance to a person with disability the Secretary may – (a) provide specialist disability services – (i) indirectly to the person through disability services providers; or (ii) directly to the person; or (b) take the necessary action to encourage persons and organisations to provide specialist disability services to persons with disability who require the services. (3) The Secretary must not provide specialist disability services directly to any person under subsection (2)(a)(ii) unless the Secretary is satisfied that the provision of the services complies with – (a) the principles set out in section 5 ; and (b) the designated standards that apply to a disability services provider that provides such services. 14. Grants (1) The Secretary may make a grant to – (a)