Recommendation 5–2 The National Disability Insurance Scheme Act 2013 (Cth) and NDIS Rules should be amended to include provisions dealing with supporters consistent with the Commonwealth decision-making model.
5.45 The Commonwealth decision-making model recommended by the ALRC would introduce the concept of formal supported decision-making in the NDIS. While there is currently no provision for the nomination of formal supporters under the NDIS Act, the model would formalise the role played by nominees as supporters, such as family members.
5.46 As discussed in Chapters 2 and 3, the central idea, already recognised by the NDIS Act, is that participants should be supported to make their own decisions. A participant would be entitled to appoint a supporter to support them to make NDIS-related decisions. Importantly, even where a participant appoints a supporter, ultimate decision-making authority remains with the participant. Where a participant chooses to appoint more than one supporter, it would be a matter for the participant to determine what specific functions each supporter might play.
5.47 Importantly, providing mechanisms for the appointment of formal supporters and representatives under the NDIS Act should not diminish the involvement of and respect for informal support in decision-making. Provisions which recognise and facilitate the involvement of informal supporters in the NDIS are consistent with the National Decision-Making Principles.
5.48 The ALRC recognises the danger of over-formalising the role of informal supporters, but argues that it is necessary to provide some mechanism for legislative recognition, especially when dealing with third parties. Even where people have ‘natural’ or informal support from families, they may want to appoint a particular person to help them deal with the NDIS. Providing some legal recognition of such a role may help prevent situations where the NDIA is not sure whom to deal with, for example, where there is conflicting communication or advice from family members.
5.49 The NDIS represents a fundamental shift in funding for, and provision of, disability services in Australia. In addition to existing mechanisms, such as the Sector Development Fund, supporters would play a key role in ensuring prospective participants and participants receive appropriate support to engage with the NDIS.
5.50 A participant or prospective participant should be able to appoint a supporter or supporters at any time during their engagement with the NDIS. Appointment by a participant would be the only mechanism by which a supporter may be appointed. Making provision for the appointment of supporters may also limit instances of carers, family members, service providers or others seeking appointment of a nominee or guardian under state or territory law because they incorrectly assume it is necessary, or simply to facilitate registration as a participant with the NDIS.
5.51 Most importantly, applying the Commonwealth decision-making model to the NDIS should ensure that, where a supporter is appointed, ultimate decision-making authority remains with the participant. Any decision made by a participant with the support of a supporter should be recognised by the NDIA, service providers and others as the decision of the participant.
5.52 A participant should be entitled to appoint whomever they want as their supporter, if they want one. Stakeholders have highlighted, however, that there are many instances where a person will not have any available support, and an independent body may be required to provide support. Justice Connect and Seniors Rights Victoria suggested that,
ideally, an independent body would be provided with sufficient resources and funding to ‘employ suitably qualified people to take on the role’ equivalent to the OPA/State Trustees in the Victorian jurisdiction.
5.53 Advocacy for Inclusion also submitted that, where a person has no existing natural support, ‘they should have access to formal supporters who have undergone appropriate checks and training so that they can select a person they are comfortable with’.
5.54 Other stakeholders emphasised the importance of independent advocacy in supporting NDIS participants. There seems no reason why individual advocates or advocate organisations should not be appointed as a participant’s supporter. Only a participant would have the authority to appoint a supporter and would also have the power to suspend or revoke the appointment at any time.
5.55 The National Disability Advocacy Program (NDAP), managed by the Department of Social Services, funds advocates at NDIS trial sites. These advocates can ‘assist people to participate in decision making and increase their capacity to understand the service delivery options available to enable them to meet their goals’. Funding also allows advocates to provide assistance to people seeking merits review of NDIA decisions before the Administrative Appeals Tribunal (AAT), by providing a support person.
5.56 One option, which might help address the issue of funding for supporters and representatives, may be to include funding for these decision-making arrangements as part of participant packages of support. This might include support to allow a participant to make supported decisions in the management of their own funds.
5.57 It may be inappropriate, however, to use individual participant funding for decision-making support. Arguably this should be provided separately by the NDIA or other government agency—through programs such as the NDAP—in order to ensure compliance with international obligations of State Parties under the CRPD with respect to the provision of support. The Nominee Rules provide that it is ‘expected that the Agency will assist nominees in fulfilling’ a duty to develop the capacity of participants. This may be a basis for arguing that NDIA responsibility for support was envisaged, to at least a certain extent, in the drafting of the NDIS Rules. On the other hand, provision of support to make decisions with respect to the NDIS might be exactly the type of reasonable and necessary support that should be funded under the NDIS.
Functions and duties
Functions of a supporter
5.58 Under existing arrangements, a plan nominee’s role may encompass decisions relating to the preparation, review or replacement of the participant’s plan; or management of funding for supports under the plan. The scope of the role of a correspondence nominee is narrower, and more closely reflects the functions of a supporter, who is able to make requests to or receives notices from the NDIA on behalf of the participant.
5.59 The functions of a supporter under the NDIS should include those set out in Recommendation 4–4. For example, a supporter should be able to liaise with the NDIA on behalf of the participant or prospective participant to obtain information relevant to assessment, planning, or the management of NDIS funds. A supporter may attend planning meetings and support the participant to make decisions about what their goals and aspirations are, and what supports are required. A supporter should also endeavour to ensure the participant’s decisions are given effect.
5.60 The recommended duties of a supporter amend and expand upon the duties of nominees under the existing system. The ALRC recommends that a supporter’s duties should include:
supporting the NDIS participant to make the decision or decisions for which they are appointed;
supporting the NDIS participant to express their will and preferences in making a decision;
acting in a manner promoting the personal, social, financial and cultural wellbeing of the NDIS participant;
acting honestly, diligently and in good faith;
supporting the NDIS participant to consult with ‘existing appointees’, family members, carers and other significant people in their life in making a decision; and
assisting the NDIS participant to develop their own decision-making ability.
5.61 A key duty owed by supporters is the duty to develop the decision-making ability of the participant. A similar duty is already owed by nominees under the NDIS Rules, which provide that a nominee has a duty to ‘apply their best endeavours to developing the capacity of the participant to make their own decisions, where possible to a point where a nominee is no longer necessary’. The importance of the duty to assist a person to develop their own decision-making capacity is discussed in Chapter 4.
5.62 While there is currently no duty of nominees to support the participant to make decisions, this type of duty may have been intended under the NDIS Rules. That is, in deciding who to appoint as a nominee, the CEO is to have regard to the degree to which the proposed nominee is willing and able to ‘involve the participant in decision-making processes’, and ‘assist the participant to make decisions for himself or herself’. It is important that there be a similar duty on supporters to support a participant to make decisions and to express their will and preferences.
5.63 It is appropriate to add financial and cultural wellbeing to this list, reflecting the role supporters may play in supporting participants to make decisions relating to NDIS funds, and the importance of culturally sensitive and appropriate support. This idea of sensitivity to cultural and linguistic circumstances is not an existing duty owed by nominees. However, in deciding whom to appoint as a nominee, the CEO is to have regard to the degree to which the proposed nominee is ‘sensitive to the cultural and linguistic circumstances of the participant’.
5.64 A nominee currently has a duty to consult ‘any court-appointed decision-maker or any participant-appointed decision-maker’ and ‘any other person who assists the participant to manage their day-to-day activities and make decisions (for example, a person who cares for the participant)’ in relation to doing acts under, or for the purposes of, the NDIS Act. If more than one person is appointed as plan nominee, each of them also owes a duty to consult with the others. In order to reflect the supported rather than substitute decision-making role played by supporters, the ALRC considers that the supporter duty be modified to be a duty to facilitate consultation with the same categories of people.
5.65 The duties supporters should owe include the duty to support the participant to make the decision or decisions in relation to which they were appointed and to express their will and preferences, and to act honestly, diligently and in good faith. As discussed below, safeguards should be in place to ensure, for example, that supporters do not abuse their position for their own self-interest.