5.26 In order to ensure consistency with the UN Convention on the Rights of Persons with Disabilities (CRPD) and the National Decision-Making Principles, and given concerns about the current nominee provisions, the ALRC proposes that the NDIS Act and Rules be reviewed and amended.
5.27 The ALRC proposes amendment of the objects and principles provisions of the NDIS Act and that the existing NDIS nominee scheme be replaced with the proposed Commonwealth decision-making model in Chapter 4. This would encourage the implementation of supported decision-making in this key area of Commonwealth law.
5.28 Many of the ideas underlying supported decision-making have already been incorporated in some respects into the NDIS Act, Rules and Operational Guidelines. However, in order to implement the proposed model, these should be reviewed to reflect the idea that all participants, with the appropriate level of support, should be entitled to make decisions expressing their will and preferences in the context of the NDIS.
5.29 Accordingly, the NDIS Act, Rules and Operational Guidelines should be amended to provide a mechanism for the appointment of supporters by participants. In circumstances where a participant may desire, or require, fully supported decision-making, there should also be provision for the appointment of a representative.
5.30 Stakeholders strongly endorsed the need for supported decision-making in the NDIS to enable participants ‘to obtain support to make and implement their own decisions’. This is likely to be of particular significance for a number of groups of people with disability. The Centre for Rural Regional Law and Justice and the National Rural Law and Justice Alliance emphasised, for example, the importance of supported decision-making arrangements ‘for people living in regional and rural communities, where local family and neighbourhood networks can be particularly strong and supportive’.
5.31 The application of the Commonwealth decision-making model may go some way to avoiding the appointment of guardians and other substitute decision-makers ‘in lieu of appropriate support, assistance, information or case management’. The interaction between supporters and representatives and state and territory appointed decision-makers is discussed in more detail below.
5.32 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, including in relation to decision-making. Provisions which recognise and facilitate the involvement of informal supporters in the NDIS are important, and are consistent with the National Decision-Making Principles. However, as outlined in Chapters 2 and 3, the ALRC considers there are significant benefits to making provision for formal supported decision-making.
5.33 The ALRC does not intend to be overly prescriptive about how the Commonwealth supporter model might operate in the context of the NDIS. For example, while proposing that participants should be entitled to appoint a supporter or representative, the ALRC does not intend to prescribe practice.
5.34 The ALRC has not examined funding mechanisms or practical matters involving funding and resources. Whether there is a general duty to provide support and, if so, who should bear the cost of support are significant issues. In the context of the NDIS, one potential option, which might 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. On the one hand, it may be inappropriate to use individual participant funding for decision-making support, which should arguably be provided by the NDIA or Government in order to ensure compliance with international obligations under the CRPD with respect to the provision of supports. The Nominee Rules provide that ‘it is expected that the Agency will assist nominees in fulfilling’ a duty to develop the capacity of participants, may provide a basis for arguing such responsibility was envisaged to 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 appropriately be independently funded under the NDIS.
5.35 The next section outlines how decision-making could and should work under the NDIS. In particular, the ALRC makes a number of proposals and asks questions in relation to:
amendment of the objects and principles in the NDIS Act;
education, training and guidance.