Proposal 5–3 The National Disability Insurance Scheme Act 2013 (Cth) and NDIS Rules should be amended to include representative provisions consistent with the Commonwealth decision-making model.
5.62 In certain circumstances, a participant may require fully supported decision-making. While this should only occur in line with the National Decision-Making Principles, as a last resort, the ALRC proposes the introduction of Commonwealth representatives as a mechanism for the provision of fully supported decision-making under the NDIS.
5.63 A representative under the Commonwealth decision-making model is an individual or organisation appointed by a participant, or through some other mechanism to support a participant to make a decision or decisions in relation to their participation in the NDIS. The role of a representative is to support a participant to express their will and preferences in making decisions; where necessary, to determine the will and preferences of a participant and give effect to them or, as a last resort, consider the human rights relevant to the situation in making a decision. Such decisions may relate to the planning process, the participant’s plan, supports funded by the NDIS, interaction with service providers, or similar matters.
5.64 Many of the elements contained in the proposed model are already incorporated into the NDIS Act, Rules or Operational Guidelines. For example, consistent with the ALRC’s approach, nominees are appointed as a last resort, and there are duties on nominees to ascertain the wishes of the participant and to act in a manner that promotes the personal and social wellbeing of the participant.
5.65 The NDIS Act provides that the CEO of the NDIA may appoint a plan nominee or a correspondence nominee at the request of the participant, or on the initiative of the CEO. There are a range of matters the CEO of the NDIA must take into account in determining whether to appoint a particular nominee. In addition, the CEO has the power to make an appointment for a particular period and power to limit the scope of the appointment.
5.66 Stakeholders expressed particular concern about provisions which enable the CEO of the NDIA or their delegate to appoint a nominee on the initiative of a delegate, as distinct from at the request of the participant. For example, the Physical Disability Council of NSW submitted that the provision ‘is not consistent with person centred practice’.  The Disability Advocacy Network Australia expressed concern that power is ‘largely unfettered’ and gives the CEO or delegate
considerable freedom to appoint or cancel appointment of a nominee with or without the agreement of the participant or respect for the participant’s wishes, with or without regard for any existing guardianship, power of attorney or other substitute decision-making arrangement for the participant, and most importantly with or without first seeking to support and enable the participant to make the required decisions for him/her-self. This appointment power appears to give little regard to enabling the decision-making capacity of participants.
5.67 Children with Disability Australia submitted that the CEO of the NDIA should not have power to appoint a representative, and ‘if the circumstances exist where the CEO believes a nominee should be appointed other than at the participant’s initiative it should be dealt with by the relevant systems for obtaining administration or guardianship orders’.
5.68 The preferable appointment method for a representative is appointment by a participant. However, as discussed in more detail in Chapter 4, there are a number of other potential options for appointment, including appointment by a court, tribunal or other body with Commonwealth jurisdiction, and retaining the CEO’s power to appoint, but in more limited circumstances than at present.
5.69 Regardless of the way in which a representative is appointed, if there is an external mechanism for appointment, stakeholders such as OPA (Vic) submitted that
the participant’s preference of nominee should be respected unless there are very good reasons for not doing so (such a reason would be that the appointment of the person would jeopardise the personal and social wellbeing of the participant).
5.70 The ALRC is interested in stakeholder feedback on the most appropriate mechanisms in the context of the NDIS to appoint a representative for a person who requires full decision-making support.
Role and duties
Potential roles of a representative
5.71 Under the current nominee provisions, the role of a plan nominee may encompass decisions relating to the preparation, review or replacement of the participant’s plan; or management of funding for supports under the plan. However, the Nominee Rules provide for limitations on the matters that a plan nominee is appointed to deal with:
For example, the appointment might be restricted so as to prevent the nominee from specifying the goals, objectives and aspirations of the participant. In such a case, the nominee might still have authority with respect to the management of funding under a plan. Alternatively, the CEO might appoint 2 or more plan nominees, and, in each instrument of appointment, limit the matters in relation to which each person is the plan nominee.
5.72 Despite this provision, some stakeholders have expressed concern about the existing role played by plan nominees which tends to be ‘a global appointment’, and relies on the discretion of the nominee to limit the use of their power; in particular the power to make substitute decisions when a person cannot be supported to make their own decisions’.
5.73 The scope of the role of a correspondence nominee is narrower and more closely reflects the role potentially played by a supporter. For example, a correspondence nominee may make requests to the NDIA or receive notices from the NDIA, on behalf of the participant.
5.74 The ALRC considers that a representative should perform some or all of the roles articulated in Proposal 4–7. These mirror the potential role of supporters and are discussed in more detail below.
5.75 In line with the National Decision-Making Principles, the ALRC suggests that in introducing the concept of representative under the NDIS, consideration be given to potential categories of representatives and ensuring that any appointment is decision-specific and limited in scope and time. For example, it may be appropriate to separate representative roles between those who provide general support in relation to interaction with the NDIA and planning, and those who are involved in financial decisions.
5.76 Representatives under the NDIS will play a key role in providing support to participants requiring full decision-making support. As a result, representatives should be subject to the duties and responsibilities articulated in Proposal 4–8. The ALRC considers that a representative should have the same duties as a supporter, and a number of additional duties. It is important that representatives owe specific additional duties under the NDIS Act and Rules, even where they are an existing state or territory appointed decision-maker (an issue discussed further below) and are therefore subject to duties under state and territory legislation.
5.77 The key duties the ALRC proposes that a representative should owe under the NDIS Act and Rules include:
providing of support to a participant to express their will and preferences in making decisions;
where it is not possible to determine what the wishes of the participant, determining what the person would likely want based on all the information available;
where the first two dot points are not possible, considering the human rights relevant to the situation;
acting in a manner promoting the personal, social, financial and cultural wellbeing of the person who requires decision-making support;
providing of support to the participant to consult with ‘existing appointees’, family members, carers and other significant people in their life when making a decision; and
developing the capacity of the person who requires decision-making support to make their own decisions.
5.78 The application of many of these duties to support is discussed above. There are a number of additional duties appropriate for NDIS representatives, who provide fully supported decision-making support. One such duty is to support the participant to express their will and preferences. This is not currently reflected in the duties of nominees to ‘ascertain the wishes of the participant’, which does not necessarily require provision of support to express will and preferences. However, there is some suggestion that this type of duty was intended under the NDIS Rules, as 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’, ‘assist the participant to make decisions for himself or herself’ and ‘ascertain what judgements and decisions the participant would have made for him or herself’. Nonetheless, the ALRC considers it is necessary for a representative to have an explicit duty to support a participant to express their will and preferences.
5.79 While the focus of supported decision-making under the NDIS should be on supporting a participant to express their will and preferences, there is a need to make provision for circumstances in which a representative is providing fully supported decision-making. In such circumstances, the representative must determine what the person would likely want based on all the information available. This may require engagement with NDIA, service providers, family members and others to establish things such as the nature of decisions the participant has made in the past, and their values and beliefs. Where this is not possible, the representative must consider the human rights relevant to the situation.