Disability: Asserting your rights

The Public Advocate is an independent statutory office established under the Guardianship and Administration Act 1986 (Vic). On 1 March 2020, that Act was replaced by the Guardianship and Administration Act 2019 (Vic) (‘GA Act’), which continued the role. The GA Act places the promotion of human rights and the dignity of people with disability at its centre (s 7). This is a change from the 1986 Act, which focused more on promoting the ‘best interests’ of people with disability.

The Public Advocate’s functions on behalf of people with disability include:

• promoting the human rights of people with disability and developing their ability to act independently;
• protecting people with disability against abuse, neglect and exploitation;
• advocating on a systematic or individual level;
• coordinating programs that achieve these goals;
• informing the public about the laws affecting people with disability; and
• acting as guardian and medical treatment decision-maker of last resort.

‘Disability’ is defined in the GA Act to mean a neurological impairment, intellectual impairment, mental disorder, brain injury, physical disability, or dementia.

The Public Advocate’s office is known as the Office of the Public Advocate (OPA) (see ‘Contacts’ at the end of this chapter).

OPA provides information and advice to people with disability, their supporters and other members of the community about guardianship and administration, supportive guardianship and administration, applications to VCAT, enduring powers of attorney and supportive attorneys, supported decision- making, the rights of people with disabilities, medical treatment decision-making and advance care directives advocacy.

OPA’s community education program conducts regular education sessions and provides written resources and speakers.

OPA provides advice in relation to complaints about services, treatment or attitudes of government departments and other agencies.

Complaints can be made to the Victorian Ombudsman, the Victorian Equal Opportunity and Human Rights Commission, the Victorian Health Complaints Commissioner, the Victorian Disability Services Commissioner, the Victorian Disability Worker Commission, the National Disability Insurance Scheme (NDIS) Quality and Safeguards Commission, and the Victorian Mental Health and Wellbeing Commission.

If these avenues are inappropriate, OPA may investigate the complaint if it involves abuse, exploitation or the need for guardianship for a person with disability.

OPA can refer matters to the Community Visitors Program (see ‘Community Visitors Program’, below) and can seek government assistance on behalf of people with disability.

Where individual matters highlight a systemic issue with a law, policy or practice affecting multiple people, OPA may investigate, research and advocate about the issue to seek law reform or system change. These activities include the publication of position statements, preparation of submissions to government inquiries and the publication of reports. OPA has also produced guides to assist people to plan ahead, including Take Control (June 2022). These and other publications can be downloaded from OPA’s website at www.publicadvocate.vic.gov.au.

Generally, where there is an allegation of abuse, mistreatment or exploitation of someone with disability, OPA has the power to investigate if the person needs guardianship (s 16(1)(g) GA Act).

If the investigation is blocked by the person or agency involved in the alleged abuse, an application for guardianship may need to be made to VCAT (the Guardianship List), for VCAT to authorise an investigation (sch 1 clause 35 VCAT Act 1998) or make a guardianship order or both. Where there is evidence that the person is being illegally detained or is likely to suffer serious harm, VCAT can also authorise active intervention with police assistance (s 43 GA Act).

Community Visitors Program

The Community Visitors Program has a statutory base in the Mental Health and Wellbeing Act 2022 (Vic), the Disability Act 2006 (Vic) (‘Disability Act’) and the Supported Residential Services (Private Proprietors) Act 2010 (Vic). The program is administered and coordinated by OPA.

Community Visitors are community volunteers appointed by the Governor-in-Council who regularly visit:

• disability accommodation for people with psychosocial, cognitive or intellectual disabilities;
• registered supported residential services; and
• public mental health units.

Community Visitors have the power to enter unannounced and make enquiries, access documentation and consult with anyone involved in the provision of services or the administration of a facility.

They talk to residents on issues such as:

• the adequacy of services;standards within the facility;
• the care and treatment being received; and
• social and community inclusion.

Community Visitors respond to queries and enquire into complaints. If the issues are unable to be resolved at a service level, they can be raised with OPA, with the appropriate regulator and ultimately with the government minister responsible.

NDIS matters related to the quality of NDIS- funded services can be escalated to the NDIS Quality and Safeguards Commission (see ‘NDIS Quality and Safeguards Commission’, below).

Section 17 of the GA Act gives the Public Advocate powers similar to those of Community Visitors to visit, inspect and enquire into particular matters at specified premises.

The Independent Third Persons (ITP) Program is coordinated by OPA. ITPs are community volunteers appointed by OPA and are available 24/7 across Victoria.

Police Operating Procedure 4.6.3.2 requires that an ITP be present when police officers are interviewing a victim, suspect or witness who has an intellectual disability, a mental health issue or cognitive disability (e.g. acquired brain injury; dementia).

ITPs provide support to people by facilitating communication, helping the person understand and exercise their rights and assisting the person through police processes and procedures.

Corrections Independent Support Officers (CISOs) are community volunteers who assist and support people with a diagnosed intellectual disability in all Victorian prisons during internal prison disciplinary hearings. These hearings occur when prisoners are charged with a breach of the internal prison management regulations or rules.

CISOs ensure the person is provided with the best opportunity to understand and actively participate in the hearing. The role of a CISO is to:

• provide information to the person about the disciplinary hearing procedures;
• provide information about their rights during the process;
• assist with communication; and
• support the person during the hearing.

OPA also offers advice and information on guardianship and administration, supportive guardianship, supportive attorney, applications to VCAT, enduring powers of attorney and supportive attorneys, supported decision-making, the rights of people with disabilities, medical treatment decision- making, advance care directives, and advocacy. The OPA’s Community Education Program provides written materials and speakers.