Where someone is unable to fully participate in these conversations and has no one to help them, local authorities will arrange for an independent advocate. Chapters 6 Assessment and eligibility , 10 Care and support planning , and 7 Independent advocacy discuss this in more detail. Chapter 15 integration and cooperation sets this out in more detail. In combination, the 2 Acts enable areas to prepare children and young people for adulthood from the earliest possible stage, including their transition to adult services.
This is considered in more detail at chapter It will be just as important for them to put in place a system where people have the information they need to take control of their care and support and choose the options that are right for them. People will have an opportunity to request their local authority support in the form of a direct payment that they can then use to buy their own care and support using this information.
Chapters 3 Information and advice and 12 Direct payments explain this in more detail. The Care Act ensures that people will be able to move to a different area without suddenly losing their care and support and provides clarity about who will be responsible for care and support in different situations.
It also includes measures to help young people move to the adult care and support system, ensuring that no one finds themselves suddenly without care on turning Chapters 20 Continuity of care , 19 Ordinary residence and 16 Transition to adult care and support set this out in more detail. The Care Act puts in place a new framework for adult safeguarding and includes measures to guard against provider failure to ensure this is managed without disruption to services.
Chapters 14 Safeguarding , and 5 Managing provider failure set this out in more detail. Local authorities should make arrangements to have a qualified and registered social work professional practice lead in place to:.
The principal social worker should also be visible across the organisation, from elected members and senior management, through to frontline social workers, people who use services and carers. Local authorities should therefore ensure that the role is located where it can have the most impact and profile. This can take several different forms, including direct casework, co-working, undertaking practice development sessions, mentoring.
This represents a fundamental shift in social work practice in relation to safeguarding, with a focus on the person not the process. Local authorities should, therefore, ensure that principal social workers lead on ensuring the quality and consistency of social work practice in fulfilling its safeguarding responsibilities.
In particular they should have extensive knowledge of the legal and social work response options to specific cases and in general. To meet the challenges of the future, it will be vital that the care and support system intervenes early to support individuals, helps people retain or regain their skills and confidence, and prevents need or delays deterioration wherever possible. This guidance sets out how local authorities should go about fulfilling their responsibilities, both individually and in partnership with other local organisations, communities, and people themselves.
In considering how to give effect to their responsibilities, local authorities should consider the range of options available, and how those different approaches could support the needs of their local communities. The use of such terms is aimed to illustrate what type of services, facilities and resources could be considered, arranged and provided as part of a prevention service, as well as to whom and when such services could be provided or arranged. However, services can cut across any or all of these 3 general approaches and as such the examples provided under each approach are not to be seen as limited to that particular approach.
Prevention should be seen as an ongoing consideration and not a single activity or intervention. These are services, facilities or resources provided or arranged that may help an individual avoid developing needs for care and support, or help a carer avoid developing support needs by maintaining independence and good health and promoting wellbeing.
They are generally universal for example, available to all services, which may include, but are not limited to interventions and advice that:. The main aim is to bring those people that feel socially isolated and lonely into their local communities.
In an evaluation of a new hub there was significant improvement on a friendship scale with scores moving from people feeling isolated or with a low level of social support at the beginning of the hub to very or highly socially connected at follow up. I look forward to Fridays each week and enjoy the social aspect of the club too.
In order to identify those individuals most likely to benefit from such targeted services, local authorities may undertake screening or case-finding, for instance to identify individuals at risk of developing specific health conditions or experiencing certain events such as strokes, or falls , or those that have needs for care and support which are not currently met by the local authority.
Targeted interventions should also include approaches to identifying carers, including those who are taking on new caring responsibilities. Carers can also benefit from support to help them develop the knowledge and skills to care effectively and look after their own health and wellbeing. Tertiary prevention could include, for example the rehabilitation of people who are severely sight impaired see also chapter 22 sight registers.
This can help develop mechanisms to cope with stress associated with caring and help carers develop an awareness of their own physical and mental health needs. Prevention services are, however, something that should always be considered. For example, at the end of life in relation to carers, prevention services could include the provision of pre-bereavement support. The National Audit of Intermediate Care categorises 4 types of intermediate care:. Rehabilitation services can include provisions that help people attain independence and remain or return to their home and participate in their community, for example independent living skills and mobility training for people with visual impairment.
This could involve, for instance, reaching beyond traditional health or care interventions to help people develop or regain the skills of independent living and active involvement in their local community. These interventions may differ from those for people without caring responsibilities. Examples of services, facilities or resources that could contribute to preventing, delaying or reducing the needs of carers may include but is not limited to those which help carers to:.
This is not creating or adding to their caring role but including them in an approach supporting the person to live as independently as possible for as long as possible.
In regard to carers, the local authority should consider how they can be supported to look after their own health and wellbeing and to have a life of their own alongside their caring responsibilities.
For this group of people prevention needs to be considered through other means, such as the provision of community services and activities that would help support people to maintain an independent life. An older man lives alone with some support from his daughter who works full-time. He needs occasional personal care to remain living independently with dignity, and it is likely that these needs will increase.
An assessment would consider all of his needs, including those currently being met by his daughter, along with the outcomes he wishes to achieve. Community groups, voluntary organisations, and buddying services could support the father to reduce the social isolation that he may be feeling and maximise opportunities to look after his own health and wellbeing and participate in local community activities.
This, in turn could lessen the impact of caring on his daughter and enable her to continue to support her father effectively alongside paid employment. In this example, the aspects of wellbeing relating to social wellbeing and family relationships might be promoted. Local authorities should actively promote participation in providing interventions that are co-produced with individuals, families, friends, carers and the community.
Such interventions can contribute to developing individual resilience and help promote self-reliance and independence, as well as ensuring that services reflect what the people who use them want. Derby City Council used co-production to develop clear and easy to use customer information to support their new customer journey for self-directed support.
New information that has been produced includes an assessment form, support planning tools for people using services, customer leaflets and a staff handbook. A small project team held discussions and workshops to identify information that needed improving to be clearer and suggestions for improvement, for example, a new assessment form.
Staff working in adult social care assessment teams had training on how to make best use of the new suite of information. The inclusive approach taken to re-designing the information took longer than an internally managed process, but has resulted in better information, informed people using services and bringing their own perspective and experience. The co-production approach led to the development of key principles which can be used in other areas of communication.
The approach is being continued. A good starting point for a discussion that helps develop resilience and promotes independence would be to ask: This approach recognises the value in the resources of voluntary and community groups and the other resources of the local area. Local authorities should develop a clear, local approach to prevention which sets out how they plan to fulfill this responsibility, taking into account the different types and focus of preventative support as described above.
Developing a local approach to preventative support is a responsibility wider than adult care and support alone, and should include the involvement, by way of example, of those responsible for public health, leisure, transport, and housing services which are relevant to the provision of care and support. This could include connecting to other key areas of local preventative activity outside care, including housing, planning and public health.
Understanding the breadth of available local resources will help the local authority to consider what gaps may remain, and what further steps it should itself take to promote the market or to put in place its own services. Local approaches to prevention should be built on the resources of the local community, including local support networks and facilities provided by other partners and voluntary organisations. Considering the services, facilities and resources which contribute towards preventing or delaying the development of needs for care and support is a core element of fulfilling this responsibility.
A local authority should engage local providers of care and support in all aspects of delivery and encourage providers to innovate and respond flexibly to develop interventions that contribute to preventing needs for care and support.
In doing so, a local authority should draw on existing analyses such as the Joint Strategic Needs Assessment, and work with other local partners such as the NHS and voluntary sector to develop a broader, shared understanding of current and future needs, and support integrated approaches to prevention. Understanding unmet need will be crucial to developing a longer-term approach to prevention that reflects the true needs of the local population. This assessment should also be shared with local partners, such as through the health and wellbeing board, to contribute to wider intelligence for local strategies.
Preventative services, facilities or resources are often most effective when brought about through partnerships between different parts of the local authority and between other agencies and the community such as those people who are likely to use and benefit from these services. At 82, Beryl was diagnosed with stomach cancer and admitted to hospital.
As a result of a major operation, she now has a permanent colostomy bag. After only a month Beryl was successfully discharged from hospital to her own home with a reablement package from Leicester City Council and support from the housing association, Midland Heart, to help her regain her independence.
If Beryl had not received this support, she would have been discharged to a more costly care home. The support service has assisted her attendance at medical appointments with her GP and monitored the impact of her medication. Preventing needs will often be most effective when action is undertaken at a local level, with different organisations working together to understand how the actions of each may impact on the other.
Across the local landscape, the role of other bodies including the local NHS for example: GPs, dentists, pharmacists, ophthalmologists , welfare and benefits advisers for example at Jobcentre Plus , the police, fire service, prisons in respect of those persons detained or released with care and support needs, service providers and others will also be important in developing a comprehensive approach.
This responsibility includes in particular a focus on integrating with partners to prevent, reduce or delay needs for care and support. Helping people to access such types of support when they need it is likely to have a significant impact on their longer-term health and wellbeing, as well as potentially reducing or delaying the need for ongoing care and support from the local authority.
There are a number of interactions and access points that could bring a person into contact with the local authority or a partner organisation and act as a trigger point for the local authority to consider whether the provision of a preventative service, or some other step is appropriate.
These might include, for example:. Local authorities and the voluntary sector should work together on how it can share this information to gain a fuller picture of local need as possible. Authorities should bring data from these different sources together to stratify who in the community may need care and support in the future and what types of needs they are likely to have, and use this information to target their preventative services effectively.
Approaches to identifying those people who may benefit from preventative support should consider how to locate people in such circumstances, for example:. In addition to any more targeted approaches to communicating with individuals who may benefit from preventative support, this service should include information and advice about preventative services, facilities or resources, so that anyone can find out about the types of support available locally that may meet their individual needs and circumstances, and how to access them.
A preventative approach requires a broad range of interventions, as one size will not fit all. However, where a local authority is not required to carry out such an assessment under the Care Act, it should nonetheless take steps to establish whether the person identified will benefit from the type of preventative support proposed.
The local authority is not required to provide a care and support plan or a support plan where it only takes steps under section 2 of the Care Act; however, it should consider which aspects of a plan should be provided in these circumstances, and should provide such information as is necessary to enable the person to understand:.
Where the person refuses, but continues to appear to have needs for care and support or for support, in the case of a carer , then the local authority must proceed to offer the individual an assessment. This is regardless of whether, in fact, the adult or carer is assessed as having any care and support needs or support needs. As part of the assessment process, the local authority considers the capacity of the person to manage their needs or achieve the outcomes which matter to them, and allows for access to preventative support before a decision is made on whether the person has eligible needs see chapter 6 on assessment.
This should not assume that others are willing or able to take up caring roles. A young carer becomes vulnerable when their caring role risks impacting upon their emotional or physical wellbeing and their prospects in education and life. A local authority may become aware that a child is carrying out a caring role through an assessment or informed through family members or a school. A local authority should consider how supporting the adult with needs for care and support can prevent the young carer from under taking excessive or inappropriate care and support responsibilities.
This is to ensure that all people are provided with targeted, personalised information and advice that can support them to take steps to prevent or reduce their needs, connect more effectively with their local community, and delay the onset of greater needs to maximise their independence and quality of life.
Where a person has some needs that are eligible, and also has some other needs that are not deemed to be eligible, the local authority must provide information and advice on services facilities or resources that would contribute to preventing, reducing or delaying the needs which are not eligible, and this should be aligned and be consistent with the care and support plan for the person with care needs, or support plan for the carer.
The Care and Support Preventing Needs for Care and Support Regulations continue to allow local authorities to make a charge for the provision of certain preventative services, facilities or resources.
The regulations also provide that some other specified services must be provided free of charge. Some effective forms of prevention result from partnerships with other public services, voluntary and community organisations and other providers.
In developing these partnerships local authorities should consider what obstacles there may be which might prevent people on low incomes from benefitting from the activities and take reasonable steps to avoid this. In some cases, charging may be necessary in order to make a preventative service viable or keep a service running.
This does not need to follow the method of the financial assessment used for mainstream charging purposes; and the use of such a process is likely to be disproportionate. In any event, a local authority must not charge more than it costs to provide or arrange for the service, facility or resource. This is for all adults, irrespective of whether they have eligible needs for ongoing care and support.
Although such types of support will usually be provided as a preventative measure under section 2 of the Act, they may also be provided as part of a package of care and support to meet eligible needs. In these cases, regulations also provide that intermediate care or reablement cannot be charged for in the first 6 weeks, to ensure consistency.
In some cases, for instance a period of rehabilitation for a visually impaired person a specific form of reablement 2 , may be expected to last longer than 6 weeks. Whilst the local authority does have the power to charge for this where it is provided beyond 6 weeks, local authorities should consider continuing to provide it free of charge beyond 6 weeks in view of the clear preventative benefits to the individual and, in many cases, the reduced risk of hospital admissions. Poorly considered exit strategies can negate the positive outcomes of preventative services, facilities or resources, and ongoing low-level care and support can have significant impact on preventing, reducing and delaying need.
Mr A is a 91 year old man who lives alone with his dog in his house. He is usually independent, is a passionate cook and enjoys socialising. He drives a car. Whilst out walking his dog he suffered a stroke, he fell, causing a fractured neck of femur.
He was admitted to hospital and underwent surgery for a hip replacement which meant he had to follow hip precautions for 6 weeks. The stroke had left him with slight left-sided weakness and problems with concentration, sequencing and attention. He was transferred to a community hospital for rehabilitation where the physiotherapists PTs and occupational therapists OTs worked on mobility, transfers, personal care following hip precautions, stair climbing and kitchen tasks.
Cognitive screens were completed and the OTs targeted their input on helping improve concentration, sequencing and attention. Mr A was discharged, independently mobile using a frame, independent transferring using equipment and stair climbing with supervision.
To fulfil its duty under section 4 of the Act, a local authority is likely to need to go further than providing information and advice directly though direct provision will be important by working to ensure the coherence, sufficiency, availability and accessibility of information and advice relating to care and support across the local authority area. Importantly, this duty to establish and maintain an information and advice service relates to the whole population of the local authority area, not just those with care and support needs or in some other way already known to the system.
Local authorities cannot fulfil their universal information and advice duty simply by meeting eligible needs, and nor would information and advice always be an appropriate way of meeting eligible needs.
The service should also address, prevention of care and support needs, finances, health, housing, employment, what to do in cases of abuse or neglect of an adult and other areas where required.
This chapter of guidance should therefore be read in conjunction with guidance throughout this document, including:. Local authorities should ensure that people are able to access all of these types of financial information and advice which help people plan and pay for their care. In doing so local authorities should take account of the services currently in place and actions already taken and plans with partner organisations resulting from Joint Strategic Needs Assessments and Joint Health and Wellbeing Strategies.
The information and advice service must cover the needs of all its population, not just those who are in receipt of local authority funded care or support. For example, people may often require information and advice before they need to access care or support services, to consider what actions they may take now to prevent or delay any need for care, or how they might plan to meet the cost of future care needs.
When a local need for additional information and advice services is identified, local authorities should recognise the relevance of independent and impartial advice and should consider carefully whether services should be provided by the local authority directly or by another agency, including independent providers. This is a very broad group, extending much further than people who have an immediate need for care or support.
It will only be achieved through working in partnership with the wider public and local advice and information providers. This may include information and advice on:. Information and advice must be open to everyone who would benefit from it. People access information and advice from a wide variety of sources. The authority should take account of information standards published by the Information Standards Board for Health and Social Care under the provisions of the Health and Social Care Act Information and advice should only be judged as clear if it is understood and able to be acted upon by the individual receiving it.
Local authorities will need to take steps to evaluate and ensure that information and advice is understood and able to be acted upon. Staff providing information and advice within a local authority and other frontline staff should be aware of accessibility issues and be appropriately trained.
Local authorities must seek to ensure that all relevant information is available to people for them to make the best informed decision in their particular circumstances, and omission or the withholding of information would be at odds with the duty as set out in the Act. Local authorities should consider when this might most effectively be provided by an independent source rather than by the local authority itself. This is particularly likely to be the case when people need advice about how and whether to question or challenge the decisions of the local authority or other statutory body.
Depending on local circumstances, the service should also include, but not be limited to, information and advice on:. Local authorities should particularly be aware of the needs of individuals with complex but relatively rare conditions, such as deaf-blindness.
Reasonable adjustments could include the provision of information in accessible formats or with communication support. The duty in the Care Act will not be met through the use of digital channels alone, and information and advice channels are likely to include all of the following:. Local authorities must ensure that their information and advice service has due regard to the needs of these people.
These include, but are not limited to:. From the point of first contact with or referral to the authority consideration of the duty to provide for independent advocacy to support involvement in assessment, planning and reviews should be undertaken see chapter 7 on independent advocacy.
More complex issues may require more intensive and more personalised information and advice, helping people to understand the choices available to them, while general enquiries may require a less intensive approach. For example, providing a person with too much information, more than they can take in, perhaps at a time of crisis, can be counter-productive.
This can prevent them asking the right questions and can mask the articulation and identification of needs that they have, for which they could benefit from information and advice. All contact for information and advice should take account of this and be able to respond with an assessment of needs when appropriate see chapter 6. This could include enabling access to the support of registered social work advice for those providing information and advice to people contacting the local authority.
The focus should be on enabling people to access what they need through a tailored range of services that assists people to navigate all points and aspects of their journey through care and support. People with good and impartial financial information and advice have a better understanding of how their available resources can be used more flexibly to fund a wider range of care options. This section should be read in the context of the overarching chapter and all requirements set out in this chapter, for example on accessibility and proportionality, must also be applied to financial information and advice.
It should provide some of this information directly to people in its community. However, where it would not be appropriate for a local authority to provide it directly, the local authority must ensure that people are helped to understand how to access independent financial advice. The local authority must have regard to the importance of identifying those who may benefit from financial advice or information as early as possible. This should be complemented by broader awareness raising about how care and support is funded.
Local authorities may also include how care and support costs interact with retirement decisions. Actions taken by a local authority to do this should include:. This long-term outlook means that people will want to access financial information and advice at different points in their journey to enable them to make sustainable plans to pay for their care.
The local authority should provide a service that covers this breadth and that facilitates access to the full spectrum of financial information and advice — from basic budgeting tips to regulated advice — to ensure that people within its area who would benefit can access it.
They should also be aware and provide for the fact that some people will be less able to protect themselves from theft, fraud and financial exploitations see chapter 14 on safeguarding.
This must include the charging framework for care and support, how contributions are calculated from both assets and income and the means tested support available; top-ups see chapter 8 on charging ; and how care and support choices may affect costs. In the case of top-ups, the local authority should ensure that someone is willing and able to pay for them — this information will be fundamental in helping with this.
The local authority should use the knowledge it has of the local care market — types of care and local providers of information and advice — to complement and develop the overarching narrative on how care funding works at the national level. This would include both domiciliary and residential care.
This will be of particular relevance where a person will be meeting the total cost of care and support themselves or may be considering taking out a deferred payment agreement see chapter 9 on deferred payments or purchasing a financial product. At the lower end of the spectrum, people may just need some basic information and support to help them rebalance their finances in light of their changing circumstances.
Topics may include welfare benefits, advice on good money management, help with basic budgeting and possibly on debt management. The local authority may be able to provide some of this information itself, for example on welfare benefits, but where it cannot, it should help people access it. In many situations the role of the local authority will be to understand the circumstances of the person, understand their preferences and help them to access the tailored information and advice that they need to make well-informed decisions.
Where a person lacks capacity, the authority must establish whether a person has a deputy of the Court of Protection or a person with Lasting Power of Attorney acting on their behalf. The local authority may consider the timing and context of any retirement decisions a person might be making and how this interacts with paying for their care and support. They should advise people of the ways to pay that others in similar circumstances would usually consider and the range of information and advice they should be considering to help make their decision.
The local authority should take a role in joining up information and advice organisations locally so they can work collaboratively. The local authority should help information and advice providers and people to understand the role of each information and advice provider so people can access the right provider at the right time and not be sent round in circles. Local authorities should provide and publicise links and information on access to wider sources of information and advice, including those available nationally.
Staff should have the knowledge to direct people to the financial information and advice they need, explaining the differences and potential benefits from seeking regulated or non-regulated financial advice. This should include both generic free and fee-based advice as well as services providing regulated forms of financial advice.
Local authorities should make people aware which independent services may charge for the information and advice they provide. The local authority should ensure that they do this on a transparent basis. But this must not mean preventing them making their own choices and having control over their lives. Everyone in the community should understand the importance of safeguarding and help keep people safe see chapter 14 on safeguarding.
The information and advice provided must also cover who to tell when there are concerns about abuse or neglect and what will happen when such concerns are raised, including information on how the local Safeguarding Adults Board works. The local authority must make its own arrangements for dealing with complaints in accordance with the regulations.
The information and advice service should be aligned with wider local authority strategies such as market shaping and commissioning, and with joint area strategies with health. The development of such plans should have regard to some common principles, including:.
These national resources include guidance on principles for local information and advice strategies, case studies and practice examples. It must also co-operate more generally with each of its relevant partners taking account of their respective functions see chapter 15 on integration, cooperation and partnerships.
The plan and the resulting service should adapt to changing needs and as a result of feedback and learning on what works best. The plan should be reviewed at agreed intervals.
As a minimum, the process of developing a local plan should include:. Some of the factors and circumstances that local authorities should consider in doing this will often be identified in Joint Strategic Needs Assessments. These factors may include, but are not limited to:. This may be another statutory party, such as a GP or other NHS professional, other professionals, such as a solicitor or funeral director, care and support and housing providers, or a local group, user-led or charitable organisation, rather than the local authority itself.
Local authorities should consider whether independent sources of information and advice may in some circumstances be more trusted — and therefore more effective — than the local authority itself see chapter 15, para. In particular, people should be signposted to appropriate independent information and advice when they are entering into a legal agreement with a local authority or other third party, such as a deferred payment agreement or committing to a top-up, or they wish to question, challenge or appeal a decision of the local authority or other statutory body.
A local authority plan should therefore allow for the urgent provision of information and advice when necessary.
Local authorities should work with health organisations and other partners to provide targeted information and advice to people in these critical situations and where people have long-term health conditions such as dementia see paragraph 3. Where appropriate, local authorities should signpost or refer people to national sources of information and advice where these are recognised as the most useful source.
Local authorities are encouraged to explore how they can make the most of cost-effective partnership opportunities with national providers. Referral or signposting to national sources should only occur where this is deemed to be in the best interests of the person and their circumstances and should not take the place of local services necessary for local authorities to discharge their duty under the Act.
Local authorities will need to find the appropriate balance between local and national provision to cost-effectively meet their local need. The role of the local authority is critical to achieving this, both through the actions it takes to commission services directly to meet needs and the broader understanding of and interactions it undertakes with, the wider market, for the benefit of all local people and communities.
This can be considered a duty to facilitate the market, in the sense of using a wide range of approaches to encourage and shape it, so that it meets the needs of all people in their area who need care and support, whether arranged or funded by the state, by the individual themselves, or in other ways. The ambition is for local authorities to influence and drive the pace of change for their whole market, leading to a sustainable and diverse range of care and support providers, continuously improving quality and choice, and delivering better, innovative and cost-effective outcomes that promote the wellbeing of people who need care and support.
Local authorities have a vital role in ensuring that universal services are available to the whole population and where necessary, tailored to meet the needs of those with additional support requirements for example housing and leisure services. Market shaping and commissioning should aim to promote a market for care and support that should be seen as broadening, supplementing and supporting all these vital sources of care and support.
Commissioning and market shaping are key levers for local authorities in designing and facilitating a healthy market of quality services. Market shaping activity should stimulate a diverse range of appropriate high quality services both in terms of the types of services and the types of provider organisation , and ensure the market as a whole remains vibrant and sustainable.
It also includes working to ensure that those who purchase their own services are empowered to be effective consumers, for example by helping people who want to take direct payments make informed decisions about employing personal assistants. From the s onwards care services have been increasingly procured from the independent sector for example, not directly commissioned from and provided by an authority itself and covered all services that the authority arranged for people receiving state funding.
Since when personalisation became a mainstream policy, commissioning has also covered activity to ensure that sufficient and appropriate services are available to meet the needs of growing numbers of people with personal budgets and direct payments.
This has changed the commissioning role, as purchasing decisions have been increasingly devolved to individuals and families and direct procurement using block contracts has reduced. Commissioning has come to be shaped more by the outcomes commissioners and individuals identify, rather than volumes of activity expected and commissioners have sought to facilitate flexible arrangements with providers for other forms of service to support choice and control, such as Individual Service Funds ISFs.
Contract management is the process that then ensures that the services continue to be delivered to the agreed quality standards. Commissioning encompasses procurement but includes the wider set of strategic activities. Market shaping, commissioning, procurement and contracting are inter-related activities and the themes of this guidance will apply to each to a greater or lesser extent depending on the specific activity.
Outcomes should be considered both in terms of outcomes for individuals and outcomes for groups of people and populations. Local authorities should consider the emerging revised Care Quality Commission standards for quality and any emerging national frameworks for defining outcomes.
Local authorities should ensure that achieving better outcomes is central to its commissioning strategy and practices, and should be able to demonstrate that they are moving to contracting in a way that has an outcome basis at its heart.
Local authorities should consider emerging best practice on outcomes-based commissioning. Moving to an outcomes-based approach therefore means changing the way services are bought: Moving to an outcomes-based approach will need to recognise that some outcomes are challenging to assess and local authorities may wish to consider involving service providers when considering how service evaluations can be interpreted.
Outcomes should be used as a principal measure for quality assurance of services. Whilst payments-by-outcomes may be theoretically the most appropriate approach for outcomes-based services, it is recognised that proxies for outcomes may be required to make the approach practical.
Care logs documenting punctual assistance in meal preparation, in conjunction with positive feedback from the person receiving care about support received might be used as part of the basis of payment. It is also recognised that whilst these mechanisms are more commonplace in other types of commissioning, they are in their infancy for adult social care.
Any move to payments by outcomes should be achieved such that smaller, specialist, voluntary sector and community-based providers are not excluded from markets or disadvantaged, because for example, they did not have appropriate IT systems. This guidance is intended to support peer review and self-assessment of local authority commissioning, and represents a practical approach that underpins the themes of this statutory guidance.
This includes how the authority facilitates and commissions services and how it works with other local organisations to build community capital and make the most of the skills and resources already available in the area. In doing so, they must have regard to ensuring the continuous improvement of those services and encouraging a workforce which effectively underpins the market through:.
The quality of services provided and the workforce providing them can have a significant effect on the wellbeing of people receiving care and support, and that of carers, and it is important to establish agreed understandable and clear criteria for quality and to ensure they are met. High quality services should enable people who need care and support, and carers, to meet appropriate personal outcome measures, for example, a domiciliary care service which provides care 2 days a week so that a carer who normally provides care can go to work, is not a quality service if it is not available on the specified days, or the care workers do not arrive in time to allow the carer to get to work on time.
For example, a working age person should be able to choose care and support tailored for their situation, and not be faced with only a choice of facilities designed for older people, as this is unlikely to be appropriate to their situation, regardless of how high quality the facilities may be in their own contexts.
Local authorities should consider care and support services for their appropriateness for people from different communities, cultures and beliefs. This is particularly important, for example, for young people with care and support needs and young carers transitioning to adulthood.
For instance, many young people with learning disabilities leave full-time education at around this age and require new forms of care and support to live independently thereafter. Ensuring that services are made available to meet those needs is better for the quality of life of the young person in question. This could include things such as employment support, training, developing friendships or advice on housing options.
It is equally important to think about ways of supporting carers at this time: Similar issues can affect young carers. Local authorities must consider how to help foster, enhance and appropriately incentivise this vital workforce to underpin effective, high quality services.
And have regard to funding available through grants to support the training of care workers in the independent sector:. Local authorities should consider encouraging the training and development of care worker staff to at least the standard of the emerging Care Certificate currently being developed by Health Education England, Skills for Care and Skills for Health.
Remuneration must be at least sufficient to comply with the national minimum wage legislation for hourly pay or equivalent salary. This will include appropriate remuneration for any time spent travelling between appointments.
Guidance on these issues can be found on the HMRC website. This should support and promote the wellbeing of people who receive care and support, and allow for the service provider ability to meet statutory obligations to pay at least the national minimum wage and provide effective training and development of staff. It should also allow retention of staff commensurate with delivering services to the agreed quality, and encourage innovation and improvement.
Local authorities should have regard to guidance on minimum fee levels necessary to provide this assurance, taking account of the local economic environment.
This assurance should understand that reasonable fee levels allow for a reasonable rate of return by independent providers that is sufficient to allow the overall pool of efficient providers to remain sustainable in the long term. The following tools may be helpful as examples of possible approaches:. Local authorities should consider the skills and capabilities needed to support new approaches to commissioning, for example, outcomes-based and integrated commissioning. Local authorities should have regard to the emerging skill levels and qualifications being developed for commissioning staff by Skills for Care.
This will ensure that there are a range of appropriate and high quality providers and services for people to choose from. Where needed, based on expected trends, local authorities should consider encouraging service providers to adjust the extent and types of service provision.
This could include signalling to the market as a whole the likely need to extend or expand services, encourage new entrants to the market in their area, or if appropriate, signal likely decrease in needs — for example, drawing attention to a possible reduction in care home needs, and changes in demand resulting from increasing uptake of direct payments.
The process of developing and articulating a Market Position Statement or equivalent should be central to this process. The local authority may be the most significant purchaser of care and support in an area, and therefore its approach to commissioning will have an impact beyond those services which it contracts. Local authorities must not undertake any actions which may threaten the sustainability of the market as a whole, that is, the pool of providers able to deliver services of an appropriate quality, for example, by setting fee levels below an amount which is not sustainable for providers in the long-term.
Local authorities should review the intelligence they have about the sustainability of care providers drawn from market shaping, commissioning and contract management activities. For example, where a local authority has arranged services for people with a provider that appears to be at risk, undertaking early planning to identify potential replacement service capacity. Where it is apparent to a local authority that a provider is likely to imminently fail financially, either through its own intelligence or through information from the CQC , the authority should prepare to take steps to ensure continuity of care and support for people who have their care and support provided by that provider see chapter 5 on managing provider failure.
This is important in order to facilitate an effective open market, driving quality and cost-effectiveness so as to provide genuine choice to meet the range of needs and reasonable preferences of local people who need care and support services, including for people who choose to take direct payments, recognising, for example, the challenges presented in remote rural areas for low volume local services. This may be achieved by encouraging different types of service provider organisation, for example, independent private providers, third sector, voluntary and community based organisations, including user-led organisations, mutual and small businesses.
Local authorities should note that the involvement of people with specific lived experience of the type of needs being met, may lead to better outcomes for people who use services and carers as they directly empathise with service users. This should recognise that the different underpinning philosophies, cultural sensitivity and style of service of these organisations may be more suited to some people with care and support needs.
Local authorities should consider encouraging and supporting providers or taking other steps to promote an appropriate balance of provision between types of provider , having regard to competition rules and the need for fairness and legal requirements for all potential providers who may wish to compete for contracts.
The TLAP guidance commissioning for provider diversity may be helpful to commissioners. If the authority decides to augment such universal services by directly contracting itself with one or more provider organisations, it should nevertheless continue to ensure that the overall mix of available services presents meaningful choice to people who need these services. Local authorities should encourage choice over the way services are delivered, examples would include: Alongside the suitability of living accommodation in Section 1 of the Act, Local authorities should consider how they can encourage the development of accommodation options that can support choice and control and promote wellbeing.
Personalised care and support services should be flexible so as to ensure people have choices over what they are supported with, when and how their support is provided and wherever possible, by whom. The mechanism of Individual Service Funds by service providers, which are applicable in many different service types, can help to secure these kinds of flexibilities for people and providers.
Many local authorities, for example, are utilising web-based systems such as e-Marketplaces for people who are funding their own care or are receiving direct payments to be able to search for, consider and buy care and support services on-line, consider joint purchases with others. This often involves offering information and advice about, for example, the costs and quality of services and information to support safeguarding.
This should include facilitating organisations that support people with direct payments and those whose care is funded independently from the local authority to become more informed and effective consumers and to overcome potential barriers such as help to recruit and employ personal assistants and to assist in overcoming problems and issues.
This should include where appropriate through services to help people with care and support needs understand and access the systems and processes involved and to make effective choices. This is a key aspect of the new duty to establish and maintain a universal information and advice service locally as set out in Section 4 of the Care Act. Services should be encouraged that allow carers who live in one local authority area but care for someone in another local authority area to access services easily, bearing in mind guidance on ordinary residence.
The TLAP guidance on co-production may be helpful, in particular the web-based tool People not process — Co-production in Commissioning. Local authorities should have in place published strategies that include plans that show how their legislative duties, corporate plans, analysis of local needs and requirements integrated with the Joint Strategic Needs Assessment and Joint Health and Wellbeing Strategy , thorough engagement with people, carers and families, market and supply analysis, market structuring and interventions, resource allocations and procurement and contract management activities translate now and in future into appropriate high quality services that deliver identified outcomes for the people in their area and address any identified gaps.
JSNA is a process that assesses and maps the needs and demand for health and care and support, supports the development of joint Health and Wellbeing Strategies to address needs, understands community assets and informs commissioning of local health and care and support services that together with community assets meet needs.
Strategies should be informed by and emphasise preventative services that encourage independence and wellbeing, delaying or preventing the need for acute interventions. The ambition is for market shaping and commissioning to be an integral part of understanding and delivering the whole health and care economy, and to reflect the range and diversity of communities and people with specific needs, in particular:.
Local authorities should publish and make available their local strategies for market shaping and commissioning, giving an indication of timescales, milestones and frequency of activities, to support local accountability and engagement with the provider market and the public. It may be helpful for Market Position Statements from neighbouring local authority areas to be coordinated to ensure a degree of consistency for people who will use the documents; this is particularly true for urban areas.
Local authorities should consider how their strategies related to care and support can be embedded in wider local growth strategies, for example, engaging care providers in local enterprise partnerships. Standards should be in line with the codes of practice drawn up by the Department of Communities and Local Government. While the duties under section 5 of the Care Act fall upon local authorities, successful market shaping is a shared endeavour that requires a range of coordinated action by commissioners and providers, working together with the citizen at the centre.
This includes recognising that incapacity to make a decision may be decision-specific, time-specific and support-dependent:. While some people may lose some or most capacity permanently—for example, a person in the late stages of dementia—others may only temporarily lose capacity Similarly, an inability to make decisions in one area—such as the management of money—does not necessarily mean that a person is unable to make other decisions about other aspects of their personal circumstances, such as decisions around health care or accommodation Some people who struggle to make a decision alone might be capable of making their own decision with the support of a trusted person[.
The Disability Alliance went on to assert:. The denial of legal capacity deprives people with disability of basic human rights, including the right to give consent to medical treatment and interventions, the right to control fertility, right to bodily integrity, the right to liberty and security and the right to access to justice.
The Law Institute of Victoria said:. Lack of understanding results in unchallenged authority exercised over the person by the SDM, resulting in an abusive or exploitative relationship. For example, a common situation we encounter is when the person is in a facility and not allowed to receive visits or phone calls, or see an independent doctor.
Although this behaviour contravenes the general principles of the Guardianship and Administration Act Queensland GAA , it is often condoned by residential facilities that are unaware that the decision maker is in breach of their obligations.
First, when decision-making is removed from the hands of a person, it becomes easy for the decision-maker—whether it be parent, carer, or departmental officer—to then make decisions on behalf of that individual that may seem 'to be in their best interests' but may actually be completely counter to the wishes of that person.
Second, in every situation where a person has been forced to cede their own autonomy to another, there is the opportunity for abuse of that decision-making power. Finally, when the erosion of control from people with disability is normalised it makes it easier for society to accept that even those people with disability not subject to a legal guardianship order can have their will subverted as happens with the use of restrictive practices or forced medical treatments.
This is in line with Australia's reservation regarding Article 12 of the Disability Convention which relates to equal recognition before the law:.
Australia declares its understanding that the Convention allows for fully supported or substituted decision-making arrangements, which provide for decisions to be made on behalf of a person, only where such arrangements are necessary, as a last resort and subject to safeguards.
On the basis of the initial reports of various States parties that it has reviewed so far, the Committee observes that there is a general misunderstanding of the exact scope of the obligations of States parties under article 12 of the Convention. Indeed, there has been a general failure to understand that the human rights-based model of disability implies a shift from the substitute decision-making paradigm to one that is based on supported decision-making.
States parties must holistically examine all areas of law to ensure that the right of persons with disabilities to legal capacity is not restricted on an unequal basis with others. Historically, persons with disabilities have been denied their right to legal capacity in many areas in a discriminatory manner under substitute decision-making regimes such as guardianship, conservatorship and mental health laws that permit forced treatment.
It suggested that reform of Commonwealth, state and territory law be consistent with the following national decision-making principles to 'recognise people with disabilities as persons before the law and their right to make choices for themselves':.
In September the CRPD Committee [UN Disability Committee] made a recommendation in its concluding observations to Australia that the Law Reform Commission inquiry should look at how Australian law and policy could be brought into conformity with the CRPD including in areas such as informed consent to medical treatment and access to justice.
It is worth reflecting on the direction that that report is trying to take away from an historic divide between assessing people as either having or lacking legal capacity to one in which we recognise people's capacity to speak on their own behalf on a spectrum and that even those people who are most profoundly disabled and have limited ability to speak on their own behalf nevertheless should have their wishes and aspirations and their concerns taken into account without simply substituting somebody to make a decision for them.
JacksonRyan Partners submitted that there would always be some people for whom their disability meant they would be unable to participate in supported decision-making, and substitute decision-making is a necessary safety net for those people.
The Law Council considers that as a last resort substituted decision-making under Australian guardianship and administration laws are important elements in safeguarding against abuse and neglect. However, the Law Council considers that supported decision-making that emphasises the will and preferences of the individual should be utilised as much as possible. I think that even if we reach the decision that it is okay to still have substituted decision making there is a separate question of: It is the committee's view that while legislative reform is clearly a necessary step to effect these reforms, more work needs to be done to investigate supported decision-making models in Australia and oversee jurisdictions to ensure that the most sustainable form of supported decision-making is implemented in Australia.
Many of the practices would be considered crimes if committed against people without disability, or outside of institutional and residential settings. Dr Steele contended that these forms of violence include:.
It also appears that often in the case of people with disabilities what would otherwise be recognised, quite clearly, as abuse is believed to be a natural part of the support provision. Dr Steele argued that generally, non-consent is the boundary between lawful or non-lawful violence and abuse:.
However, this is problematic in the context of people with disability because it is their very perceived inability to consent by reason of mental incapacity which has provided a legal opening to enable others to determine what can be done to their bodies.
Laws relating to court or tribunal authorisation of third party consent, substituted decision making schemes and civil and forensic mental health legislation all sit within this opening.
For me the term 'structural violence' is to act as an umbrella to encapsulate many different forms of various social and institutional failings that have real if not always immediately appreciable consequences, and often quite devastating consequences in people's lives.
This is particularly true across cultures and time for people with disability. People with disability are subject to multiple and aggravated forms of human rights violations. Virtually every Australian with disability encounters human rights violations at some point in their lives, and many experience it every day of their lives. In Australia it is possible for people with disability to die of starvation in specialist disability services, to have life-sustaining medical treatment denied or withdrawn in health services, to be raped or assaulted without any reasonable prospect of these crimes [being] detected, investigated or prosecuted by the legal system, and to have their children removed by child protection authorities on the prejudiced assumption that disability equates to incompetent parenting.
In these circumstances people with an intellectual incapacity are considered to have legal incapacity to make autonomous decisions about their lifestyle, health, accommodation, work and financial affairs. Public advocates have stronger powers than public guardians.
In , a NSW parliamentary inquiry recommended that NSW switch to a public advocate to enhance adult protective services. For example, they could identify an adult with an intellectual disability and make an application on behalf of that person to have a guardian appointed. NCAT can also make decisions relating to consent, financial management orders, and reviewing guardianship appointments.
Guardianship law and mental health legislation are examples of current legislative frameworks that, by their very nature, give rise to the perpetration of torture and ill-treatment of people with disability in institutional and residential settings. State and territory guardianship and mental health laws primarily regulate the area of legal capacity and substitute decision-making in Australia.
While state and territory laws in this area vary, they all breach, are inconsistent with, or fail to fulfil Australia's obligations under international human rights law, including for example Article 12 of the Convention on the Rights of Persons with Disabilities CRPD. These state and territory laws provide different and inconsistent tests for assessing a person's ability to exercise legal capacity, which leads to uncertainty, confusion and inappropriate application of legal principles.
There is no nationally consistent legislation that outlines principles and provisions for assessing what constitutes a valid decision that should be recognised by the law.
Moreover, existing legislation does not focus on measures such as supported decision making that would enable or support a person with disability to make decisions so that their decisions are recognised as valid before the law. People with disability in institutional settings are more likely to be subject to guardianship proceedings for the formal removal of their legal capacity. This facilitates and may even authorise forced interventions. Queensland Aged and Disability Advocacy Inc.
QADA argued that the main systemic response to abuse is to be 'protective', through the appointment of a substitute decision maker. Within this model, the Law Reform Commission has recommended that the 'role of persons who provide decision-making support should be acknowledged and respected—including family members, carers or other significant people chosen to provide support'. It is very significant, and yet we have very good guardianship legislation in Queensland that says that the voice of the person and their informal supporter should be taken into account.
It often—I would say more than often—does not happen that way. In instances where a service provider does challenge that guardianship—in some cases it is a hospital. And if a parent is an informal supporter then quite often if they have encountered difficulties with the service provider and there are restrictive practices involved they will feel the need to seek guardianship just to have that authority—which they should not have to do, because, even though it is not meant to strip authority and autonomy from the person, in effect that is what happens in practice.
Everyone then deals with the guardian. If the service provider does not like the decisions made by the guardian they will certainly challenge their authority and seek to have them removed. I had a gentleman who was in a nursing home.
A social worker put in an application for a guardianship. He [the subject of the guardianship application] never knew that the hearing was on and then when he actually went the tribunal found that he had [legal] capacity. If you do not go, it is all—the other issue with some of the hearings is that of restricted practices. They work for DSQ and DSQ wants the person to live in the facility because they do not want them to live elsewhere because it is easier for them.
So the information going into the guardianship hearing is by the same organisation or place where you are going to be living. I find that quite problematic. Many of our clients report that their doctor also has a professional affiliation to the facility or the SDM. This results in a violation of confidentiality toward the person with a disability.
Rather than keeping the information confidential to the person with a disability, there is often a strongly perceived lack of impartiality by the treating doctor. This can result in a report that aligns with the needs of the facility or the SDM, rather than one that accurately reflects abilities of the individual with a cognitive disability, or no report being produced at all.
Often our clients realize this and are reluctant to seek assessment from "their" doctor. It results in difficulties in accessing reports, as often the person in an institutional setting has difficulties accessing another doctor in the community, without attracting more challenges from the institution. Many of our volunteer advocates spend time trying to access alternative medical reports from another independent doctor. This activity is made more difficult when the SDM is unwilling to pay for a visit or report, which is likely when the purpose of the report is to challenge their authority over the person with a disability.
However more importantly, the willingness of OPA to provide guardians for people with disabilities could be seen to be assisting DHHS to commonly make guardianship applications against parents, simply when the parents will not agree with something DHHS intends to do to their family member. The lawyers contacted both the professional Guardian and private Administrator to seek permission to visit the woman.
She was granted permission and booked an interpreter and together they visited the site. The professional Guardian separately contacted the Aged care residential accommodation provider and advised them that permission was not granted and as a result they refused entry to both lawyer and interpreter.
Ms Julie Phillips notes that in Victoria, guardians from the OPA 'can make decisions for people with disabilities without meeting them and in direct defiance of family wishes'. Another issue is that the DHHS will often argue for a public trustee, such as the OPA, to be appointed as a guardian even when family members are capable and willing to fulfil this function:.
DHHS made a guardianship application in relation to "Jane" who has an intellectual disability and severe language disorder. The only reason for the application was that Jane's mother, Mrs Smith, would not give her permission for Jane to be placed in an inappropriate accommodation service. The track record of DHHS in relation to Jane had been one of incompetence, and inability to effectively manage challenging behaviours.
Mrs Smith was not proven to be or accused of being anything other than a caring mother who was attempting to uphold the rights of her daughter. Despite not being able to find any significant fault with Mrs Smith, she was not given guardianship rights, and they were awarded to OPA.
Our experience of dealing with [Terri's] case manager was that she would make decisions on Terri's behalf regardless of what Terri wanted or needed and regardless of what myself or Terri's siblings wanted for Terri. Many are categorised as troublemakers, as unnecessarily combative, or even mentally ill, for refusing to withdraw complaints about poor treatment.
The families of the existing residents made multiple complaints to the service provider and to the DHHS about the inappropriate placement before the alleged assault took place, but were dismissed as over-zealous and intolerant. The staff member working at the time of the alleged assault did not take steps to prevent the attacks, hiding himself in the locked staff area.
He was not dismissed by the service provider despite admitting negligence "Jack's" family are lobbying to have him moved into more suitable housing but must negotiate these new arrangements with the same DHHS staff who have threatened to apply for guardianship if they persist with their complaints. From my experience, once a Guardianship Order is made, the person simply becomes a commodity. The 'individual' ceases to exist.
That person is stripped of any human rights, freedoms or entitlements to interact within the community or maintain family relationships as they would wish. The protected person and the family and friends are also subject to legal action by the Tribunal if they publicly identify the protected person and their complaints whilst under a guardianship order —essentially a legal gag clause.
In many cases guardianship is a positive protective measure, but in too many cases the appointment of a guardian can have a severe negative impact on people's lives:. Ms Marion Bright told the committee of difficulties she faced in trying to advocate for her daughter, an adult with an intellectual impairment.
We have to protect her rights. Then he asked if I had guardianship, and I said, 'No, I'm her mother. I was shaking, but I thought, 'I can't say anything, because I need this information, because I want to get justice for Lauren.
Then, before I hung up, I said to him, 'So should I look at getting guardianship? I was already distressed. Attorneys-general across Australia have been in receipt of representations from various groups suggesting that, when a person reaches the age of 16 or 18, where their family have been their key source of support historically, there would be some sort of automatic or streamlined conversion of the parental responsibility into guardianship.
I know for example that the Victorian parliament considered that issue. But to my knowledge none of the parliaments in any of the jurisdictions has actually agreed to provide some sort of automatic guardianship to families in the absence of an evaluation of the circumstances. Guardians will typically operate with the notions of safety and duty of care uppermost in mind and will often have a bias towards more conservative models of support that reflect that duty of care, rather than those patterns of support that bring greater proximity to ordinary life chances.
The problem with proximity to ordinary life chances is that it comes with risk. There is a risk in life. Anything that we try to undertake in life will involve a modicum of risk. It is about how we manage that risk and stack the odds in favour of success, rather than trying to avoid the presence of risk altogether.
This client was aged 47 and was in an aged-care facility and had an intellectual disability, no speech and a physical disability. We received the referral from a day service provider, who had the following concerns: There were signs of skin deterioration in the area and a distinct lack of personal care Our advocate investigated the matter and discovered that this particular young person—47, in an aged facility—had no family support network, did not have the capacity to make informed decisions, did not have a legal guardian and had been taken off the electoral roll by the aged-care facility.
The care plan did not stipulate how to shower or what equipment to use during showering and dressing. The client had not received medical attention for her swallowing difficulties. She had not been provided with a half-price, multipurpose taxi program card. She did not have any support to access the community on weekends.
She did not have a companion card. She had untreated rashes on her arms and legs. She had long periods of time where she had not been seen by a GP because there was no backup plan when the GP who was assigned to the nursing home was on leave. She had clothing that was communally laundered, but her items were not named.
She had a bowel chart that showed long periods of time when there was no bowel movement recorded. She was being left in front of the TV while the elderly residents were being fed their evening meal.
Three of my advocates worked on this case over a period of time. We eventually addressed many of the problems by applying to the Victorian Civil and Administrative Tribunal and getting a guardianship order in favour of the Office of the Public Advocate.
Unfortunately, the client passed away four months after that guardianship order was enforced by VCAT. She died from medical complications associated with the swallowing and the chest infections. However, given the volume of evidence this is clearly an issue of great concern in the community.
Mr G is from a remote community and around three years ago the Public Guardian [PG] was appointed as his financial manager. For the first two years of that order the PG did not take control of Mr G's finances and he continued to suffer financial exploitation.
This included a well meaning non-indigenous community member unofficially assuming management of Mr G's finances - and having his Centrelink benefits deposited directly into her personal account.
Elise has lived in a group home with several other people for 10 years. She is middle aged with intellectual disability and has difficulty with communication. She receives DSP paid into her personal bank account and staff take her to the bank to withdraw her DSP which is then paid into the household working account run by the group home. Elise needed her advocate to help her complain. The advocate sought assistance from IDRS. Initially the NGO promised financial statements but then said the matter would be investigated by its own auditors.
The matter was reported to the police. Five months later there were still no accounts and the NGO refused to answer questions posed by the advocate.
In the end it was a year before any accounts were provided. The police advised the advocate that so many people had access to the account that they did not have enough evidence to charge anyone. When the police asked to interview staff, they refused to be interviewed. No-one was charged by police. No action was taken against the service provider. The advocate suspected there were 5 other residents with similar stories.
The committee has been furnished with examples of individuals who ingratiate themselves into the lives of a person with disability beyond their reasonably expected service capacity. It is not uncommon for these people to abuse the trust placed in them by a person with disability:. Abuse by a SDM [substitute decision-maker] is not regarded as a crime or misdemeanor, or an unlawful activity. For example, there is no quick, effective and low cost way for a matter to be prosecuted in the lower courts to secure restitution of monies stolen by an SDM.
For example, a private administrator, estranged family member was appointed by QCAT, when the person Tony was in a coma. The person was expected to make a full recovery from their disability within 18mths. The person made a full cognitive recovery, but was left with severe physical deficits, resulting in their being placed, as a young person in an aged care facility. QCAT declared the person capable and issued enforceable directions regarding reclaiming outstanding monies.
The committee is of the view that this issue requires greater oversight and investigation. The use of interventions that have the effect of restricting the rights or freedom of movement of a person in order to protect them.
Examples include lap belts, hand mitts, removing mobility aids such as walking frames and sedation of a person to control their behaviour.
The Law Reform Commission report found that:. As a result, there are significant concerns about the use of restrictive practices in Australia. This evidence will be examined later in this chapter. We would prefer not to use the sanitised language of restrictive practices, and instead call them what they are, such as bondage, drugging and being locked up.
If you did that to a person who did not have a disability it would be a criminal offence. The Restrictive Practice Framework was endorsed by the Council of Australian Governments Disability Reform Council in March and intended to reduce the instances of restrictive practices within the mental health and disability services sectors.
The issue of restrictive practices in schools is discussed later in this chapter. The focus of these restrictive practices legislative regimes is on regulating the standard of care in disability services either provided by or funded by state government human services departments. They reflect the dual concern with ensuring safeguards and an adequate standard of care and support in government-provided services as well as ensuring service providers are protected from civil and criminal liability for the use of such practices.
These regimes therefore do not extend to the use of restrictive practices on people with intellectual impairment in hospitals and other health facilities, aged care facilities, other supported residential services such as boarding houses or where care is provided by family or private carers. That is, if a person with disability was provided with funds for their disability, from either a state government department, or the National Disability Insurance Agency, and with those funds purchased services from a non-funded disability service, then the restrictive practices regulatory regimes would arguably not apply.
A summary of the different legislation, and the agencies and departments across all Australian jurisdictions can be found in Table 4. This voluntary code of practice 'provides the basis for the disability sector to develop operational policy and guidelines for eliminating the use of restrictive practices' and 'applies to all services provided and funded by the [DSC] for children and adults with disability'. The key changes are:. First, the Mental Health Act's objectives have been extended to ensure people with a mental illness are provided with care and treatment with the 'least possible restrictions on human rights and human dignity'.
Under section 23 2 a of the Disability Act , the 'Senior Practitioner is responsible for ensuring the rights of persons who are subject to restrictive interventions and compulsory treatment are protected and that appropriate standards in relation to restrictive interventions and compulsory treatment are complied with'.
Aspects of the Senior Practitioner's role are highlighted below:. In , the Office of the Public Advocate released a voluntary policy to prevent and eliminate restrictive practices in the disability sector for use by guardians and advocates. In March of this year, a similar policy was released for the residential aged care sector.
The SP has powers to investigate instances where restrictive practice is alleged to have been used and can make recommendations and even directions to a provider to use alternate options. The SP is empowered to apply financial penalties to any provider who does not reasonably follow the directives of the SP. This legislation works from the principle that restrictive practices are only to be used when no other option is available and only with the approval of a psychiatrist or a registered senior nurse.
It is an unlawful act for any other person to apply restrictive practices to any other person subject to a penalty. For NSW declared mental health units, a NSW Health guideline states the use of physical restraint should be an option of last resort and outlines when forms of restraint may be suitable.