Proposed National Disability Insurance Scheme Human Rights Analysis

8. Delivery of disability services

The Productivity Commission’s recommendations with respect to the delivery of disability services for the proposed NDIS largely deal with data sharing and standards. This chapter deals with the delivery of disability services.

Recommendation 8.1

The NDIA should support consumer decision-making by providing:

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  a centralised internet database of service providers that indicates the ranges of products and services, price, availability and links to measures of performance and quality
  
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  well resourced and effective provision of advice and information to clients, as well as monitoring of their wellbeing. These services should be graduated in terms of the needs of the client and concentrated at key points, such as when entering the disability system or important transition periods.
  

HR Analysis Comment
Recommendation 4.14 deals with the provision of information to “support consumer decision-making.”
CRPD provides guidance in relation to the provision of information to people with disability. There is a general obligation in CRPD at Article 4.1(h) for States parties to “provide accessible information to persons with disabilities about mobility aids, devices and assistive technologies, including new technologies, as well as other forms of assistance, support services and facilities.” The accessibility of information must recognise the need for information in numerous formats, as per Article 21 (b) , and Article 26.3, with a need for statistics and data collection to be accessible to people with disability, as per Article 31.3 CRPD.
The accessibility of information must include the provision of appropriately translated information and interpreter services, which is reinforced by obligations in CRPD at Article 30 (4) in relation to the entitlement of people with disability, “on an equal basis with others, to recognition and support of their specific cultural and linguistic identity, including sign languages and deaf culture”. Article 13.2 of UN DRIP obligates States parties to ensure that “indigenous peoples can understand and be understood in political, legal and administrative proceedings, where necessary through the provision of interpretation or by other appropriate means.” Article 5 (e) (iv) ICERD obligates states parties to ensure non discrimination on the basis of race, colour, or national or ethnic origin in relation to “the right to public health, medical care, social security and social services.”
Article 22.2 CRPD stresses the importance of equal privacy protections being available to people with disability with respect to collection of personal, health and rehabilitation information. Sensitive information collected about people with disability must be safeguarded in accordance with this obligation.
As discussed above, there is a strong need for the NDIS to incorporate supported decision making in order to recognise the legal capacity of people with disability, and facilitate effective consumer decision making. The protections in Article 12 CRPD stress the fact that States parties must recognise that all people with disability have legal capacity, and must maximally support people with disability to realise this right in order to fully satisfy the obligations imposed by Article 12 CRPD, Australia must take ‘all appropriate measures’ to support people with disability to exercise their legal capacity, including through supported decision making.
Advocacy also has an important role in supporting consumer decision making and information. In order to give full effect to the Article 19 CRPD obligations for equal choice, full inclusion and participation, independent representation and advice must be an element within the system, with individual models of advocacy available to support decision making ‘on the ground’ and systemic advocacy to engage in change and monitoring. Given the prominence given to person centred decision making in the proposed NDIS, there may also be a role for self advocacy models, and there is a very clear role for advocates in providing information.
CRPD Article 4.1 (h), Article 12, Article 21 (b), Article 22.2, Article 26.3, Article 31.3

UN DRIP Article 13.2

ICERD Article 5 (e) (iv)

Recommendation 8.2

The Australian Government should fund and develop a national system for a shared electronic record of the relevant details of NDIA clients, including assessed need, service entitlements, use and cost of specialist disability services, outcomes and other key data items with privacy safeguards.

HR Analysis Comment
As per Recommendation 8.1, Article 22.2 CRPD stresses the importance of equal privacy protections being available to people with disability with respect to collection of personal, health and rehabilitation information.
CRPD Article 22.2

Recommendation 8.3

The NDIA should develop and implement a quality framework for disability providers, which would include:

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  the development of complete, nationally consistent standards that would apply to all funded specialist service providers and disability support organisations. The NDIA should monitor compliance with these standards and other regulations through a range of instruments, including graduated and rolling audits of service providers, community visitors, senior practitioners, independent consumer surveys, complaints, surveillance by case managers and interrogation of the electronic disability record
  
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  arrangements that encourage the diffusion of best practice throughout the disability sector
  
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  providing consumers with information about the quality and performance of service providers on the national internet database of service providers
  
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  establishing an innovation fund that providers would use for developing and/or trialling novel approaches to disability services.
  

HR Analysis Comment
Recommendation 8.3 proposes the development of national services standards to guide monitoring of services and support organisations.
CRPD, including the general obligations at Article 4, provide strong guiding principles for how national standards should be framed. Article 19, which deals with living independently in the community, has direct relevance to the proposed NDIS, and Article 26 CRPD which deals with habilitation and rehabilitation is also directly relevant, particularly with respect to ensuring all people with disability have choice and support programs that enable full participation.
The proposed standards must ensure that there are equal outcomes for all people with disability, including measuring progress for different population groups, including women, people from NESB, and Aboriginal and Torres Strait Islander people. As discussed above at Recommendation 4.1, Article 6 CRPD stresses full development, advancement and empowerment rights for women with disability; these rights are supported by the equal economic, social and cultural participation rights imposed by Articles 10-14 of CEDAW. Rights for cultural and linguistic minority groups are outlined in Article 30.4 CRPD, and supported by the rights to culture and language in UN DRIP (Articles 3, 5, 8, 11, 12, 13, 14, 21, 23, 31, 33 and 34) and by the equality obligations in ICERD (particularly Articles 1 and 5). As the proposed NDIS will be delivering services to children with disability, the best interests of the child obligations at Article 7 CRPD and Article 3 CROC are relevant.
CRPD Article 4, Article 6, Article 7, Article 19, Article 26, Article 30.4

CEDAW Article 10, Article 11, Article 12, Article 13, Article 14

CROC Article 3

UN DRIP Article 3, Article 5, Article 8, Article 11, Article 12, Article 13, Article14, Article 21, Article 23, Article 31, Article 33 and Article 34

ICERD Article 1, Article 5