Proposal 5–2 The National Disability Insurance Scheme Act 2013 (Cth) and NDIS Rules should be amended to include supporter provisions consistent with the Commonwealth decision-making model.
5.43 The Commonwealth decision-making model proposed 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, in part, formalise the informal role already recognised and played by the people most likely to be nominated as supporters, such as family members.
5.44 As articulated in Chapters 2 and 3, the central idea is that participants should be supported to make their own decisions in the context of the NDIS. 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 roles each supporter might play.
5.45 The NDIS represents a significant shift in funding for, and provision of, disability services in Australia. In addition to existing mechanisms such as the Sector Development Fund, the ALRC considers that supporters would play a key role in ensuring prospective participants and participants receive appropriate support to engage with the NDIS.
5.46 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 is 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.
5.47 As discussed in Chapter 4, the most important elements of the proposed supporter regime are recognition that where a supporter is appointed, ultimate decision-making authority remains with the participant; and that any decision made by a participant with the support of a supporter is recognised by the NDIA, service providers and others as the decision of the participant.
5.48 The other two elements of the Commonwealth decision-making model relevant to appointment is that it suggests the NDIS Act and Rules should be amended to provide for the appointment of a supporter by a prospective participant or participant at any time. The ALRC is interested in stakeholder feedback on the appropriateness of permitting prospective participants appoint a supporter for the purposes of engaging with the NDIA.
5.49 The ALRC suggests that a participant should be entitled to appoint whomever they wish as their supporter. Given many stakeholders emphasised the importance of independent advocacy in supporting participants in the context of the NDIS, there may be no reason why individual advocates or advocate organisations could not be appointed as a participant’s supporter. Only a participant would have the authority to appoint a supporter and must have the power to suspend or revoke the appointment at any time.
Role and duties
Potential roles of a supporter
5.50 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 role potentially played by a supporter in that they may make requests to the NDIA or receive notices from the NDIA, on behalf of the participant.
5.51 The ALRC suggests that the potential roles of a supporter under the NDIS might include those set out in Proposal 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 to.
5.52 The proposed duties of a supporter amend and expand upon the duties of nominees under the existing system.
5.53 The key duty currently owed by nominees, which the ALRC considers should apply to supporters, is the duty to develop the capacity of the participant. The Nominee Rules provide that nominees are required 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 ALRC welcomes stakeholder submissions on the appropriateness of imposing such a duty on supporters, recognising that the identity of the supporter is likely to affect their ability to fulfil this duty.
5.54 In addition, the Nominee Rules currently provide that ‘it is expected that the Agency will assist nominees in fulfilling this duty’ and the ALRC suggests that the NDIA should also play a role in assisting supporters to fulfil any such duty.
5.55 The duties currently owed by nominees that should apply to supporters, but require some amendment, include the duty to:
ascertain the wishes of the participant;
act in a manner that promotes the personal and social wellbeing of the participant;
act only where a participant is unable to do so.
5.56 Nominees currently owe a duty to ascertain the wishes of the participant. The ALRC proposes that this duty extend to supporting the participant to express their will and preferences in making a decision or decisions in relation to the NDIS.
5.57 Nominees owe a duty to act in a manner that promotes the personal and social wellbeing of the participant. The ALRC considers that it is appropriate to add financial and cultural wellbeing to this list, reflecting the potential 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 currently a duty owed by nominees. However, in deciding who 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’.
5.58 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 this duty might be appropriately modified to be a duty on supporters to facilitate consultation with these same categories of people.
5.59 The new 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.
5.60 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 duty of supporters to support a participant to make decisions and to express their will and preferences.
5.61 The other new duty proposed is the duty to act honestly, diligently and in good faith. The ALRC welcomes stakeholder feedback on the proposed supporter roles and duties articulated above as well as in relation to whether there should be additional duties placed on supporters in the context of the NDIS.