5.12 Decision-making under the NDIS Act incorporates elements of both supported and substitute decision-making, as well as informal and formal decision-making. There appear to be three key decision-making mechanisms operating in the context of the NDIS: autonomous decision-making by participants; informal supported decision-making; and substitute decision-making by nominees.
5.13 One of the key objects of the NDIS Act is to ‘enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports’. As a result, the focus of many aspects of the NDIS Act, NDIS Rules and Operational Guidelines is on facilitating participants to make their own decisions. However, some of the general principles which guide action under the NDIS Act and other mechanisms under the Act, such as the nominee provisions, may limit the scope for autonomous decision-making by participants.
5.14 The emphasis on the role of family, carers and others, and their involvement in providing informal support to participants, is an important element of the NDIS. The ALRC has heard that the appointment of nominees in trial sites has been low, with far greater involvement by family, carers and others as informal supporters.
5.15 The NDIS Act provides for a nominee scheme which, while incorporating some provisions designed to encourage supported decision-making (such as the duty of nominees not to act if a participant is capable of acting) in many ways reflects the existing scheme under social security law upon which it was modelled (essentially still a substitute decision-making scheme).
5.16 There are two types of nominees under the NDIS—‘plan nominees’ and ‘correspondence nominees’. A plan nominee may be appointed to prepare, review or replace a participant’s plan, or manage the funding for supports under the plan. The role of a correspondence nominee is narrower. A correspondence nominee may be appointed to do any other act that may be done by a participant under, or for the purposes of, the NDIS Act, but in practice is confined to making requests to the NDIA or receiving notices from the NDIA on behalf of the participant.
5.17 The NDIS Act provides that the CEO of the NDIA may appoint a plan nominee or a correspondence nominee either at the request of the participant, or on their own initiative.
5.18 The National Disability Insurance Scheme (Nominee) Rules 2013 (Cth) (Nominee Rules) provide further detail about whether a nominee should be appointed, who should be appointed as a nominee, duties of nominees, and cancellation and suspension of nominees. For example, r 3.1 provides:
people with disability are presumed to have capacity to make decisions that affect their own lives. This is usually the case, and it will not be necessary to appoint a nominee where it is possible to support, and build the capacity of, participants to make their own decisions for the purposes of the NDIS.
5.19 The Nominee Rules also acknowledge that the NDIS Act recognises and makes provision for the appointment of a nominee to ‘act on behalf of, or make decisions on behalf of, a participant’. The Rules state that
appointments of nominees will be justified only when it is not possible for participants to be assisted to make decisions for themselves. Appointments of nominees usually come about as a result of a participant requesting that a nominee be appointed.
It is only in rare and exceptional cases that the CEO will find it necessary to appoint a nominee for a participant who has not requested that an appointment be made.
5.20 In appointing a nominee, the CEO must take into consideration ‘the wishes (if any) of the participant regarding the making of the appointment’ and have regard to a number of other matters. In determining whether to appoint a particular nominee, there are also a range of matters the CEO must take into account. Appointment of a nominee may be indefinite or for a particular period.
5.21 Where requested by the participant, the CEO must cancel the appointment of a nominee who was appointed at a participant’s request. However, where a nominee was appointed on the initiative of the CEO, the CEO may cancel the appointment, but is not obliged to do so.
5.22 Nominees owe a duty to a participant ‘to ascertain the wishes of the participant and act in a manner that promotes the personal and social wellbeing of the participant’. Nominees also have a number of other duties, including a duty to:
develop the capacity of the participant; and
avoid or manage conflicts of interest.
5.23 Importantly, a plan nominee appointed on the initiative of the CEO is ‘able to do an act on behalf of the participant only if the nominee considers that the participant is not capable of doing the act’. A plan nominee appointed at the request of the participant has a duty to refrain from doing an act unless satisfied that: ‘it is not possible for the participant to do, or to be supported to do, the act himself or herself’; or it is possible, but the participant does not want to do the act himself or herself.
5.24 To a certain degree, the duties of nominees reflect those of supporters and representatives under the Commonwealth decision-making model, but require some amendment. For example:
duty to ascertain the wishes of the participant—the ALRC proposes a duty to support the participant to express their will and preferences in making decisions;
duty to develop the capacity of the participant to make their own decisions, where possible to a point where a nominee is no longer necessary—this duty should complement the ALRC’s proposed duty to support the participant to make their own decisions;
duty to consult in relation to doing acts under, or for the purposes of, the NDIS Act—to reflect the supported rather than substitute decision-making role played by supporters and representatives, this duty might be modified to be a duty to facilitate consultation, rather than to consult per se.
5.25 The need for amendment of some of these duties and the potential application of other duties to the roles of supporter and representative is discussed in more detail later in this chapter.