Business risks
Monday, December 4, 2017
Justinian in Crime, Criminal justice, Disability, NDIS, Peach Melba

Human rights ... National Disability Insurance Scheme ... Systematic cracks ... The criminal justice system's disabled engagement with disability ... Peach Melba cites an example of someone who was rescued by ministerial intervention 

AUSTRALIA first ratified the UN Convention on the Rights of Persons with Disabilities in 2008. 

The CRPD has the highest ratification rate of any international human rights instrument. The involvement of grassroots organisations in its drafting was unprecedented. Its underlying philosophy is that disability is a social construct that is created when physical impairment encounters social barriers. 

The CRPD reframes existing human rights in the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights to recognise that persons with disabilities experience human rights violations because of their disabilities. 

The National Disability Insurance Scheme is Australia's implementation of its obligations under the CRPD, and an attempt to adopt the treaty's human rights approach to disability. 

Among other things, NDIS gives expression to article 19, the right to live independently and be included in the community, and article 26, which requires states to take effective and appropriate measures to enable people with disabilities to attain maximum independence, and full inclusion and participation in all aspects of life. 

Inner and outer Melbourne city dwellers only became eligible for the NDIS in November this year. Under the scheme, people whose applications are accepted receive a package of funds for "reasonable and necessary supports" to pursue their individual goals, live independently, participate in their community and in employment. 

Such choice and flexibility are respectful of the autonomy of individuals whose legal capacity has been wrongfully denied. The Federal Court ruled this year that where a "reasonable and necessary support" was identified, the National Disability Insurance Agency is obliged under statute to wholly or fully fund it. 

However, the scheme relies on the private service provider market. Where there is no service provider willing or able to meet the participant's needs, the insurance money cannot be used for its intended purpose. 

It is unclear which government entity is responsible for ensuring that the service market sufficiently meets the needs of those who require them. The NDIA (which implements the insurance scheme) has indicated that it is only a provider of funds. 

This is a systematic crack in the scheme, exemplified by the situation of 20-year-old Francis. As he requires specialist full-time care, Francis could not live with his family and was allocated a "squalid" public housing unit under the NDIS. This is a violation of the right to an adequate standard of living, including adequate housing, in article 28 of the CRPD. 

After Francis escaped from the public housing unit, he assaulted a bystander and was then held on remand in a maximum security prison. His imprisonment was effectively indefinite - Francis' bail applications were continually refused because there was no service provider that would offer him the care and home support he needs. 

His provider withdrew from the contract because it thought Francis was a "business risk". Distressed by the prison environment, Francis began self-harming, so the prison required that he be hand-cuffed whenever he was outside his cell. 

How the criminal justice system engages with disability is hugely problematic and an area where more training and awareness is needed, especially around human rights. 

The NSW government has just announced a pilot scheme called the Cognitive Impairment Diversion Program which will be trialled at Penrith and Gosford Local Courts for people who have been charged with summary offences.  

Francis' indefinite situation was resolved only when the Minister for Disability personally intervened to secure an accredited service provider for him. 

The Productivity Commission noted that relying on an uncompetitive market will lead to insufficient supply. The commission said that "a significant challenge in the transition phase is developing the support of disability services and growing the disability care workforce". 

A recent report into the adequacy of the agency found that in 2017 service providers were overwhelmed with demand for services. Only 47 percent of 516 providers could keep pace with the demand. The number of participants in NIDA has grown from 30,000 to 113,000 since the trial period ended in July last year. 

Among those at particular risk of being affected by market shortages are individuals with complex, specialised or very challenging behaviours, those who live in rural or remote areas, individuals requiring crisis care and accommodation, and Aboriginal and Torres Strait Islander Australians. 

To resolve the "supply and demand" disparity, the commission suggests that the NDIA develop a policy of "provider of last resort", which would guarantee access to services. 

Francis' situation indicates that the disability services market has not yet found a balance between a sustainable business and delivering positive outcomes for disabled people. 

Empowering all people to work and participate in their community is about recognition of inherent dignity, and which will have economic benefits. 

As the roll-out of the NDIS continues, the Commonwealth and State governments need to refine policies so that the scheme is capable of meeting complex and urgent needs while upholding Australia's international law obligations under the CRPD. 

From: Elif Sekercioglu

Article originally appeared on Justinian: Australian legal magazine. News on lawyers and the law (
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