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This is a Bill, not an Act. For current law, see the Acts databases.


DISABILITY AMENDMENT BILL 2012

                 PARLIAMENT OF VICTORIA

                Disability Amendment Bill 2012



                      TABLE OF PROVISIONS
Clause                                                                     Page

PART 1--PRELIMINARY                                                           1
  1      Purposes                                                             1
  2      Commencement                                                         3
  3      Principal Act                                                        3

PART 2--AMENDMENT OF DISABILITY ACT 2006                                      4
  4      Definitions                                                          4
  5      New section 3A inserted                                              6
         3A       Disability service provider taken to be providing
                  residential services                                        6
  6      Annual report                                                        6
  7      Constitution of the Disability Services Board                        6
  8      Functions of the Senior Practitioner                                 7
  9      Community visitors                                                   7
  10     Functions of a community visitor                                     7
  11     Certain persons deemed to be community visitors                      7
  12     Reports by community visitors                                        7
  13     Disability Action Plans                                              7
  14     Guiding principles for planning                                      8
  15     Residential statement                                                8
  16     Duties of disability service provider providing residential
         services                                                             9
  17     Entry to a resident's room                                           9
  18     Heading to Division 2 of Part 5 substituted                          9
  19     Application of Division                                              9
  20     Declaration of residential service as a community residential
         unit                                                                10
  21     Residential charge                                                  10
  22     Notice of increase in residential charge                            10
  23     Receipts for payment                                                10
  24     Residential charge must be reduced if service items are reduced     10
  25     What can VCAT order on an application under section 71?             10
  26     Notice of temporary relocation                                      11
  27     Termination of residency                                            11
  28     Notice to vacate by disability service provider                     12
  29     Effect of notice to vacate                                          12


571119B.I-28/2/2012                   i       BILL LA INTRODUCTION 28/2/2012

 


 

Clause Page 30 Application to VCAT for review of notice to vacate 13 31 Application to VCAT for possession order 13 32 Possession orders 13 33 Issue of warrant of possession 13 34 New sections 85A to 85D inserted 13 85A Extension of time for warrant to be executed 13 85B Warrant of possession 14 85C Lapsing of possession order and lapsing or cancellation of warrant of possession 15 85D Execution of warrant 15 35 Management of money of a resident 16 36 Section 105 substituted 17 105 Report on complaints 17 37 Section 106 substituted 17 106 Duty to take all reasonable steps to prevent adverse effects 17 38 New Division 5A of Part 6 inserted 18 Division 5A--Complaints to contracted and funded service providers 18 106A Internal process for complaints 18 106B Report on complaints 18 106C Duty to take all reasonable steps to prevent adverse effects 18 39 Section 107 substituted 19 107 Purpose of Division 19 40 New section 108A inserted 19 108A Definition 19 41 Section 109 substituted 20 109 What matters can be the subject of a complaint? 20 42 Withdrawal of complaint 20 43 Preliminary assessment of complaint 20 44 Circumstances in which the Disability Services Commissioner may decline to consider a complaint 21 45 Notice of decision to consider or not to consider complaint 21 46 Consideration of complaint suitable for conciliation 21 47 Dealing with a complaint 21 48 Investigation of a complaint 22 49 Notice of decision and procedures 23 50 Circumstances in which notice is not to be given 23 51 Duty to stop proceedings 23 52 Warrants 24 53 Visiting of residential service 24 54 New section 133 substituted 24 133 Purpose and application of Part 24 55 Section 134 substituted 25 134 Use of restrictive interventions 25 571119B.I-28/2/2012 ii BILL LA INTRODUCTION 28/2/2012

 


 

Clause Page 56 Approval to use restrictive interventions 25 57 Authorised Program Officers 25 58 Use of restraint and seclusion 26 59 Use of restraint and seclusion must be included in behaviour management plan 26 60 Review of behaviour management plan by disability service provider 27 61 Independent person 28 62 Powers of Public Advocate 29 63 Requirements for the use of restraint and seclusion 30 64 Review by VCAT 30 65 Use of restraint or seclusion in an emergency 31 66 Reports 31 67 Offence 31 68 Use of other restrictive interventions 31 69 New Division 1AA of Part 8 inserted 32 Division 1AA--Preliminary 32 150A Restrictions on liberty or freedom of movement 32 70 Authorised Program Officer must prepare treatment plan 32 71 Application for review of treatment plan 33 72 Preparation of treatment plan 34 73 Annual review of security order and treatment plan 35 74 Application for review of treatment plan 36 75 Transfer of persons detained in prison under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 36 76 Section 184 repealed 36 77 Approval to use supervised treatment 36 78 Application for a supervised treatment order 37 79 New section 196A inserted 37 196A Application for determination regarding expiry of supervised treatment order 37 80 Senior Practitioner may make assessment order 39 81 New section 199A inserted 39 199A Application for review of assessment order 39 82 New Division 6 of Part 8 inserted 40 Division 6--Restrictive interventions under treatment plans 40 201A Purpose and application of Division 40 201B Use of restrictive interventions 40 201C Authorised Program Officers 41 201D Use of restraint and seclusion 41 201E Use of restraint and seclusion must be included in treatment plan 43 201F Reports 44 201G Offence 45 201H Use of other restrictive interventions 45 571119B.I-28/2/2012 iii BILL LA INTRODUCTION 28/2/2012

 


 

Clause Page 83 New sections 226 to 231 inserted 47 226 Community visitors 47 227 Behaviour support plans 47 228 Possession orders 48 229 Warrants of possession 48 230 Group homes 48 231 Treatment plans 49 PART 3--AMENDMENT OF OTHER ACTS 50 84 Accident Compensation Act 1985--Definitions 50 85 Human Services (Complex Needs) Act 2009--Definitions 50 86 Transport Accident Act 1986--Definitions 50 87 Victorian Civil and Administrative Tribunal Act 1998-- Schedule 1 50 11AE Commencement 50 11AIA Application for review of assessment order 51 88 Victorian Civil and Administrative Tribunal Act 1998-- Schedule 2 51 PART 4--REPEAL OF AMENDING ACT 52 89 Repeal of amending Act 52 ENDNOTES 53 571119B.I-28/2/2012 iv BILL LA INTRODUCTION 28/2/2012

 


 

PARLIAMENT OF VICTORIA Introduced in the Assembly Disability Amendment Bill 2012 A Bill for an Act to amend the Disability Act 2006 to clarify procedures, address administrative issues and strengthen the rights of persons with disabilities under that Act, to amend the Human Services (Complex Needs) Act 2009 to confer powers and functions on the Secretary to the Department of Human Services, to make consequential amendments to certain other Acts and for other purposes. The Parliament of Victoria enacts: PART 1--PRELIMINARY 1 Purposes The main purposes of this Act are-- (a) to amend the Disability Act 2006 to-- 5 (i) clarify the definition of residential service; and (ii) change the eligibility requirements for membership of the Disability Services Board; and 571119B.I-28/2/2012 1 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 1--Preliminary s. 1 (iii) provide for community visitors to be appointed generally, rather than for particular regions; and (iv) clarify the requirements for Councils in 5 relation to Disability Action Plans; and (v) remove the requirement of a disability service provider to give a residential statement when accommodation is provided to a person with a disability 10 on a short term basis for the purpose of providing respite to a carer of the person with a disability; and (vi) provide additional procedural matters in relation to possession orders and 15 warrants of possession; and (vii) provide an additional category of persons who may give consent for a disability service provider to manage the money of a resident; and 20 (viii) provide for complaints made in relation to contracted service providers and funded service providers, including by giving the Disability Services Commissioner jurisdiction over those 25 complaints; and (ix) provide additional procedural matters in relation to complaints; and (x) make separate provision in relation to restrictive interventions used on a 30 person for whom a treatment plan is, or is required to be, made; and (xi) change the circumstances in which the presence of an independent person is required to be involved in a review of a 35 behaviour support plan; and 571119B.I-28/2/2012 2 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 1--Preliminary s. 2 (xii) provide for the approval of treatment plans by the Senior Practitioner; and (xiii) provide for VCAT to make a determination in relation to the expiry 5 of a supervised treatment order; and (xiv) provide for the review of an assessment order by VCAT; and (xv) make other minor and technical amendments; and 10 (b) to amend the Human Services (Complex Needs) Act 2009 to confer powers and functions under that Act on the Secretary to the Department of Human Services; and (c) to make consequential amendments to 15 certain other Acts. 2 Commencement (1) Subject to subsection (2), this Act comes into operation on a day to be proclaimed. (2) If this Act does not come into operation before 20 1 July 2012, it comes into operation on that day. 3 Principal Act In this Act, the Disability Act 2006 is called the See: Act No. Principal Act. 23/2006 and amending Act Nos 80/2006, 25/2007, 69/2009, 74/2009, 91/2009, 13/2010, 29/2010, 29/2011 and 83/2011. Law Today: www. legislation. vic.gov.au __________________ 571119B.I-28/2/2012 3 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 4 PART 2--AMENDMENT OF DISABILITY ACT 2006 4 Definitions (1) In section 3(1) of the Principal Act, for the definition of Authorised Program Officer 5 substitute-- "Authorised Program Officer means-- (a) in relation to a disability service provider who is the Secretary, a person appointed as an Authorised Program 10 Officer by the Secretary; (b) in relation to any other disability service provider, a person appointed as an Authorised Program Officer by the disability service provider and 15 approved by the Secretary;". (2) In section 3(1) of the Principal Act, for the definition of behaviour management plan substitute-- "behaviour support plan means a plan developed 20 for a person with a disability which specifies a range of strategies to be used in supporting the person's behaviour including proactive strategies to build on the person's strengths and increase their life skills;". 25 (3) In section 3(1) of the Principal Act, the definition of community residential unit is repealed. (4) In section 3(1) of the Principal Act, for the definition of residential service substitute-- "residential service means residential 30 accommodation-- (a) provided by, on behalf of, or by arrangement with, a disability service provider; and 571119B.I-28/2/2012 4 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 4 (b) provided as accommodation in which residents are provided with disability services; and (c) supported by rostered staff that are 5 provided by a disability service provider; and (d) admission to which is in accordance with a process determined by the Secretary;". 10 (5) In section 3(1) of the Principal Act insert the following definitions-- "contracted service provider means a person who has entered into a contract with the Secretary under section 10 to provide services to a 15 person with a disability; disability service provider providing residential services includes a disability service provider taken to be providing residential services under section 3A; 20 funded service provider means a person who-- (a) provides services to a person with a disability; and (b) receives from the Secretary funding provided under section 9 for the 25 purpose of providing those services; group home means a residential service which is declared to be a group home under section 64;". 571119B.I-28/2/2012 5 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 5 5 New section 3A inserted After section 3 of the Principal Act insert-- "3A Disability service provider taken to be providing residential services 5 A disability service provider is taken to be providing residential services in relation to accommodation that is provided by another person if the other person is providing the accommodation-- 10 (a) on behalf of the disability service provider; or (b) by arrangement with the disability service provider.". 6 Annual report 15 After section 19(1)(a) of the Principal Act insert-- "(ab) information about any occasions on which the Disability Services Commissioner considered, under section 113(4)(b), that it 20 was reasonable to take longer than 90 days for the preliminary assessment of a complaint, including-- (i) the reasons why the Commissioner considered that it was reasonable; and 25 (ii) information about how the complaint was or is being dealt with; and". 7 Constitution of the Disability Services Board In section 20(3)(c) of the Principal Act omit "or members of any association which acts as a 30 representative, advocate or adviser for disability service providers or disability service users". 571119B.I-28/2/2012 6 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 8 8 Functions of the Senior Practitioner In section 24(1)(e) of the Principal Act, for "behaviour management plans" substitute "behaviour support plans". 5 9 Community visitors (1) In section 28(1) of the Principal Act omit "for each region". (2) In section 28(2) of the Principal Act, for "Each" substitute "A". 10 10 Functions of a community visitor In section 30 of the Principal Act omit "in the region for which the community visitor is appointed". 11 Certain persons deemed to be community visitors 15 In section 31(1)(a) of the Principal Act omit "for every region". 12 Reports by community visitors In section 34(1) of the Principal Act-- (a) for "community visitors for a region" 20 substitute "community visitors who visit premises in a particular region"; (b) after "visits made" insert "in that region". 13 Disability Action Plans For section 38(4) and (5) of the Principal Act 25 substitute-- "(4) If a Council determines to prepare a Disability Action Plan, the Disability Action Plan is to be prepared for the purposes referred to in subsection (1). 30 (5) If a Council determines to prepare a Disability Action Plan or is taken to have prepared a Disability Action Plan under 571119B.I-28/2/2012 7 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 14 subsection (2), the Council must report on the implementation of the Disability Action Plan in its annual report under section 131 of the Local Government Act 1989. 5 (5A) A Council must ensure that the matters referred to in subsection (1) are addressed in the Council Plan prepared under the Local Government Act 1989 if the Council-- (a) has determined not to prepare a 10 Disability Action Plan; and (b) is not taken to have prepared a Disability Action Plan under subsection (2).". 14 Guiding principles for planning 15 The note at the foot of section 52(2)(k) of the Principal Act is repealed. 15 Residential statement (1) In section 57(1) of the Principal Act, for "A disability service provider" substitute 20 "Subject to subsection (1A), a disability service provider". (2) After section 57(1) of the Principal Act insert-- "(1A) A disability service provider providing residential services is not required to give a 25 residential statement under subsection (1) when a person with a disability commences residing at the residential service if-- (a) the person with a disability is only residing at the residential service on a 30 short term basis; and (b) the disability service provider is providing the accommodation for the purpose of providing respite to a carer of the person with a disability. 571119B.I-28/2/2012 8 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 16 (1B) Nothing in subsection (1A) affects the obligation of a disability service provider to provide information under section 89.". (3) For section 57(2)(c) of the Principal Act 5 substitute-- "(c) the name and contact details of the disability service provider;". (4) In the example at the foot of section 57(2)(e) of the Principal Act, for "management" substitute 10 "support". (5) Section 57(11) of the Principal Act is repealed. 16 Duties of disability service provider providing residential services (1) In section 58(1)(h)(i) and (ii) of the Principal Act 15 omit "or their agent". (2) In section 58(2)(a) and (c) of the Principal Act, for "behaviour management plan" substitute "behaviour support plan". 17 Entry to a resident's room 20 In section 60(2)(g) of the Principal Act, for "behaviour management plan" substitute "behaviour support plan". 18 Heading to Division 2 of Part 5 substituted For the heading to Division 2 of Part 5 of the 25 Principal Act substitute-- "Division 2--Group homes". 19 Application of Division In section 63 of the Principal Act, for "community residential unit" substitute "group home". 571119B.I-28/2/2012 9 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 20 20 Declaration of residential service as a community residential unit (1) In the heading to section 64 of the Principal Act, for "community residential unit" substitute 5 "group home". (2) In section 64(1) of the Principal Act, for "community residential unit" substitute "group home". (3) In section 64(2) of the Principal Act, for 10 "community residential unit" (where twice occurring) substitute "group home". 21 Residential charge In section 65(1) of the Principal Act, for "community residential unit" substitute 15 "group home". 22 Notice of increase in residential charge In section 66(1) of the Principal Act, for "community residential unit" substitute "group home". 20 23 Receipts for payment In section 69(2)(b)(iii) of the Principal Act, for "community residential unit" substitute "group home". 24 Residential charge must be reduced if service items 25 are reduced In section 70(2)(a) of the Principal Act, for "community residential unit" substitute "group home". 25 What can VCAT order on an application under 30 section 71? In section 72(2)(b) of the Principal Act, for "community residential units" substitute "group homes". 571119B.I-28/2/2012 10 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 26 26 Notice of temporary relocation (1) In section 74(1) of the Principal Act, for "community residential unit" (wherever occurring) substitute "group home". 5 (2) In section 74(3)(a) and (b), (5), (9) and (12) of the Principal Act, for "community residential unit" substitute "group home". (3) For section 74(8) of the Principal Act substitute-- 10 "(8) If the notice of temporary relocation was given on a ground other than the ground specified in subsection (1)(h), the room may only be used-- (a) for emergency purposes; or 15 (b) on a short term basis for the purpose of providing respite to a carer of a person with a disability.". (4) In section 74(11)(a) and (b) of the Principal Act, for "behaviour management plan" (where twice 20 occurring) substitute "behaviour support plan". 27 Termination of residency (1) In section 75 of the Principal Act, for "community residential unit" substitute "group home". (2) For section 75(b) of the Principal Act 25 substitute-- "(b) if the disability service provider gives the resident a notice to vacate in accordance with section 76, on the earliest of the following days-- 30 (i) the day on which the resident vacates the room and group home; or 571119B.I-28/2/2012 11 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 28 (ii) the day specified in a possession order made under section 84 in relation to the notice to vacate as the day by which the resident must vacate the room and 5 group home;". 28 Notice to vacate by disability service provider (1) In section 76(1) of the Principal Act, for "community residential unit" (wherever occurring) substitute "group home". 10 (2) In section 76(2)(a) of the Principal Act, for "on any ground" substitute "on the same ground". (3) In section 76(5)(a) and (b) of the Principal Act, for "community residential unit" substitute "group home". 15 (4) In section 76(6)(c) of the Principal Act omit "or their agent". (5) For section 76(6)(d) of the Principal Act substitute-- "(d) must be given to-- 20 (i) the resident; and (ii) the resident's guardian or the resident's administrator, if any.". 29 Effect of notice to vacate (1) In section 77(1)(b)(ii) of the Principal Act, for 25 "determined." substitute "determined; or". (2) After section 77(1)(b)(ii) of the Principal Act insert-- "(iii) other alternative accommodation is provided for the resident.". 30 (3) In section 77(2) of the Principal Act, for "community residential unit" substitute "group home". 571119B.I-28/2/2012 12 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 30 30 Application to VCAT for review of notice to vacate Section 82(5) of the Principal Act is repealed. 31 Application to VCAT for possession order (1) In section 83(1) of the Principal Act omit 5 "a notice of temporary relocation or". (2) In section 83(2) of the Principal Act omit "the notice of temporary relocation or" (where twice occurring). 32 Possession orders 10 (1) In section 84(1) of the Principal Act omit "82 or". (2) In section 84(1), (6)(a) and (6)(b) of the Principal Act, for "community residential unit" substitute "group home". (3) In section 84(1)(a) and (b) and (2) of the Principal 15 Act omit "the notice of temporary relocation or". (4) In section 84(7) of the Principal Act, for "community residential unit" (where twice occurring) substitute "group home". 33 Issue of warrant of possession 20 (1) In section 85(1) of the Principal Act omit "82 or". (2) Section 85(3) of the Principal Act is repealed. 34 New sections 85A to 85D inserted After section 85 of the Principal Act insert-- "85A Extension of time for warrant to be 25 executed (1) On the application of the person who obtained the warrant of possession, VCAT may from time to time make an order extending the time in which the warrant of 30 possession may be executed. 571119B.I-28/2/2012 13 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 34 (2) An order under subsection (1) must not at any one time extend the time in which a warrant of possession may be executed by more than 30 days after the day on which the 5 time for execution of the warrant would otherwise expire. (3) An order may not be made under subsection (1) if the time for execution of the warrant has passed. 10 85B Warrant of possession (1) A warrant of possession must-- (a) be in a form prescribed by rules made under the Victorian Civil and Administrative Tribunal Act 1998; 15 and (b) be directed-- (i) to a member of the police force; or (ii) to an authorised person; and (c) give brief details of the possession 20 order; and (d) be signed by the principal registrar. (2) The warrant of possession authorises the person to whom it is directed-- (a) to enter the room and group home, by 25 force if necessary; and (b) with such assistance as is necessary, to compel all persons for the time being occupying the room to vacate the room and the group home and give 30 possession of the room to the applicant for the possession order. 571119B.I-28/2/2012 14 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 34 (3) A warrant of possession does not authorise the person to whom it is directed to remove any goods from the room or group home. (4) Entry under a warrant of possession must not 5 be made-- (a) between the hours of 6 p.m. and 8 a.m.; or (b) on a Sunday or public holiday. (5) The Secretary may authorise any person or 10 class of persons either generally or in a particular case to execute warrants of possession. 85C Lapsing of possession order and lapsing or cancellation of warrant of possession 15 (1) A possession order is discharged if the person who obtained the order does not apply to the principal registrar for a warrant of possession within 6 months after the date of the order. 20 (2) A warrant of possession issued under section 85 lapses if it is not executed within the time stated in the possession order which must not exceed 30 days after the date of issue of the warrant. 25 (3) VCAT may at any time cancel a warrant of possession issued under section 85. 85D Execution of warrant As soon as practicable, but not later than 60 days after a warrant of possession is 30 issued, the person to whom the warrant is directed must-- 571119B.I-28/2/2012 15 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 35 (a) return the warrant to the principal registrar; and (b) specify in writing whether the warrant has or has not been executed.". 5 35 Management of money of a resident (1) For section 93(1) of the Principal Act substitute-- "(1) A disability service provider providing residential services may manage or control 10 an amount of money of a resident, being not greater than the prescribed amount, if the disability service provider has written consent to do so from-- (a) the resident; or 15 (b) the resident's guardian; or (c) the resident's administrator; or (d) a person who gives the disability service provider money to be managed for the resident, if the disability service 20 provider is satisfied that the person-- (i) is a member of the resident's family or is otherwise significant in the life of the resident; and (ii) informally manages or controls 25 the resident's money.". (2) In section 93(3) and (4) of the Principal Act, for "manages or controls" substitute "manages, controls or holds on trust under subsection (2)". (3) For section 93(3)(a) and (b) of the Principal Act 30 substitute-- "(a) keep a copy of the consent given in accordance with subsection (1) in relation to that money; 571119B.I-28/2/2012 16 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 36 (b) if the money is not deposited in a trust account in accordance with subsection (2), keep the money of the resident in a secure place;". 5 (4) In section 93(4) and (5) of the Principal Act, for "the resident or the resident's guardian or the resident's administrator" substitute "the person who gave consent under subsection (1)". 36 Section 105 substituted 10 For section 105 of the Principal Act substitute-- "105 Report on complaints A disability service provider must provide an annual report to the Disability Services Commissioner including information about 15 the number and type of complaints and the outcome of the complaints.". 37 Section 106 substituted For section 106 of the Principal Act substitute-- "106 Duty to take all reasonable steps to 20 prevent adverse effects A disability service provider to whom a complaint is made must take all reasonable steps to ensure that the following persons are not adversely affected because the complaint 25 has been made-- (a) the person who made the complaint; (b) if the complaint was made on behalf of another person, that other person; (c) a person with a disability.". 571119B.I-28/2/2012 17 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 38 38 New Division 5A of Part 6 inserted After Division 5 of Part 6 of the Principal Act insert-- "Division 5A--Complaints to contracted and 5 funded service providers 106A Internal process for complaints (1) A contracted service provider must institute and operate a system to receive and resolve complaints received by the contracted 10 service provider in respect of services provided to persons with a disability by the contracted service provider. Penalty: 120 penalty units. (2) A funded service provider must institute and 15 operate a system to receive and resolve complaints received by the funded service provider in respect of services provided to persons with a disability by the funded service provider. 20 Penalty: 120 penalty units. 106B Report on complaints A contracted service provider or funded service provider must provide an annual report to the Disability Services 25 Commissioner including information about the number and type of complaints and the outcome of the complaints. 106C Duty to take all reasonable steps to prevent adverse effects 30 A contracted service provider or funded service provider to whom a complaint is made must take all reasonable steps to ensure that the following persons are not adversely 571119B.I-28/2/2012 18 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 39 affected because a complaint has been made-- (a) the person who made the complaint; (b) if the complaint was made on behalf of 5 another person, that other person; (c) a person with a disability.". 39 Section 107 substituted For section 107 of the Principal Act substitute-- "107 Purpose of Division 10 The purpose of this Division is to provide for an independent and accessible process for dealing with complaints about-- (a) the provision of services by disability service providers; and 15 (b) the provision of services to persons with a disability by contracted service providers and funded service providers.". 40 New section 108A inserted 20 After section 108 of the Principal Act insert-- "108A Definition In this Division-- service provider means a disability service provider, contracted service provider or 25 funded service provider about whom a complaint is made.". 571119B.I-28/2/2012 19 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 41 41 Section 109 substituted For section 109 of the Principal Act substitute-- "109 What matters can be the subject of a complaint? 5 A complaint may be made to the Disability Services Commissioner if the complaint-- (a) arises out of the provision of services by a disability service provider; or (b) arises out of the provision of services to 10 a person with a disability by a contracted service provider or a funded service provider; or (c) is that a disability service provider, contracted service provider or funded 15 service provider has acted unreasonably by not properly investigating, or not taking proper action upon, a complaint made to the service provider.". 42 Withdrawal of complaint 20 (1) In section 112(3) of the Principal Act, for "investigate" substitute "deal with". (2) In section 112(3)(a) of the Principal Act omit "disability". 43 Preliminary assessment of complaint 25 For section 113(4)(a) and (b) of the Principal Act substitute-- "(a) the period of 90 days; or (b) a period longer than 90 days that the Disability Services Commissioner considers 30 reasonable--". 571119B.I-28/2/2012 20 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 44 44 Circumstances in which the Disability Services Commissioner may decline to consider a complaint (1) In section 114(3) and (4)(b) of the Principal Act, for "disability service provider" substitute 5 "service provider". (2) In section 114(4)(a) and (b) of the Principal Act, for "disability service" substitute "service". 45 Notice of decision to consider or not to consider complaint 10 In section 115(2) of the Principal Act, for "disability service provider concerned" substitute "service provider". 46 Consideration of complaint suitable for conciliation In section 116(2)(a) and (c), (3)(a), (b) and (c), 15 (4), (5), (6)(b) and (d) of the Principal Act, for "disability service provider" substitute "service provider". 47 Dealing with a complaint (1) In section 117(1)(b) of the Principal Act, for 20 "warranted." substitute "warranted; or". (2) After section 117(1)(b) of the Principal Act insert-- "(c) it is reasonable to stop dealing with the complaint.". 25 (3) After section 117(1) of the Principal Act insert-- "(1A) Within 14 days after the Disability Services Commissioner decides to stop dealing with a complaint, the Disability Services Commissioner must give written notice of 30 the decision to the service provider and the person who made the complaint. (1B) The notice must specify the reasons for the decision to stop dealing with the complaint.". 571119B.I-28/2/2012 21 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 48 (4) In section 117(2), (3) and (4) of the Principal Act, for "disability service provider" substitute "service provider". (5) After section 117(5) of the Principal Act insert-- 5 "(6) The Disability Services Commissioner may re-open any complaint that the Disability Services Commissioner has stopped dealing with under subsection (1)(c) if the Disability Services Commissioner considers it is 10 reasonable to do so. (7) A complaint is re-opened under subsection (5) or (6) when the Disability Services Commissioner gives written notice of the decision to re-open the complaint to the 15 service provider and the person who made the complaint. (8) The notice must specify the reasons for the decision to re-open the complaint.". 48 Investigation of a complaint 20 (1) In section 118(2) of the Principal Act, for "disability service provider concerned" substitute "service provider". (2) In section 118(4)(a) of the Principal Act, for "disability service provider" substitute "service 25 provider". (3) In section 118(7) of the Principal Act, for "disability service provider" (where twice occurring) substitute "service provider". 571119B.I-28/2/2012 22 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 49 49 Notice of decision and procedures (1) In section 119(1)(a), (5), (8) and (9) of the Principal Act, for "disability service provider" substitute "service provider". 5 (2) In section 119(2), (3), (4), (6) and (7) of the Principal Act, for "disability service provider" (where twice occurring) substitute "service provider". 50 Circumstances in which notice is not to be given 10 (1) For section 120(1) of the Principal Act substitute-- "(1) The Disability Services Commissioner need not comply with section 115(2), 116(3) or 118(2) if the Disability Services 15 Commissioner considers that if a notice or document under that section is given to a service provider-- (a) the health, safety or welfare of a person to whom the service provider is 20 providing services may be affected; or (b) the proper investigation of the complaint would be prejudiced.". (2) In section 120(2) of the Principal Act, for "disability service provider" substitute "service 25 provider". 51 Duty to stop proceedings (1) In section 121(1)(a), (2) and (3)(b) of the Principal Act, for "disability service provider" substitute "service provider". 30 (2) In section 121(4) of the Principal Act, for "matter" substitute "complaint". 571119B.I-28/2/2012 23 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 52 52 Warrants In section 124(16) of the Principal Act, for "disability service provider and a disability service provider's" substitute "service provider and a 5 service provider's". 53 Visiting of residential service In section 129(2) of the Principal Act omit "for the region in which the residential institution is located". 10 54 New section 133 substituted For section 133 of the Principal Act substitute-- "133 Purpose and application of Part (1) This Part applies to persons with a disability (other than persons for whom a treatment 15 plan is in force or is required to be prepared under Part 8). (2) The purpose of this Part is to protect the rights of persons to whom this Part applies by ensuring that restrictive interventions 20 are-- (a) included in behaviour support plans for those persons only in accordance with this Part; and (b) used on those persons only if the 25 requirements imposed by this Part are complied with. Note Division 6 of Part 8 contains corresponding protective provisions in relation to persons for whom treatment 30 plans are in force or are required to be prepared under Part 8.". 571119B.I-28/2/2012 24 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 55 55 Section 134 substituted For section 134 of the Principal Act substitute-- "134 Use of restrictive interventions A disability service provider must not use a 5 restrictive intervention on a person to whom this Part applies unless there is in force an approval under section 135. Penalty: 240 penalty units.". 56 Approval to use restrictive interventions 10 (1) In section 135(2)(b) of the Principal Act omit "and rank". (2) After section 135(2) of the Principal Act insert-- "(2A) An application for approval may request the approval of more than one person to be 15 appointed as an Authorised Program Officer for the disability service provider.". (3) For section 135(4)(c) of the Principal Act substitute-- "(c) must approve the title of any position and the 20 name of the holder of the position to be appointed as an Authorised Program Officer.". (4) After section 135(4) of the Principal Act insert-- "(5) The Secretary may approve more than one 25 person to be appointed as an Authorised Program Officer for the disability service provider.". 57 Authorised Program Officers In section 139(1) of the Principal Act, after "used" 30 insert "on a person to whom this Part applies". 571119B.I-28/2/2012 25 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 58 58 Use of restraint and seclusion (1) In section 140 of the Principal Act, after "can only be used" insert "on a person to whom this Part applies". 5 (2) In section 140(c)(i) and (ii) of the Principal Act, for "behaviour management plan" substitute "behaviour support plan". (3) For section 140(c)(iii) of the Principal Act substitute-- 10 "(iii) is not applied for longer than the shorter of the following periods-- (A) the period of time that has been authorised by the Authorised Program Officer; or 15 (B) the period of time during which the use of the seclusion or restraint is necessary under paragraph (a); and". (4) At the foot of section 140 of the Principal Act insert the following note-- 20 "Note Section 201D is a corresponding provision in relation to persons for whom treatment plans are in force or are required to be prepared under Part 8.". 59 Use of restraint and seclusion must be included in 25 behaviour management plan (1) In the heading to section 141 of the Principal Act, for "management" substitute "support". (2) In section 141(1) of the Principal Act for "a person with a disability" substitute "a person 30 to whom this Part applies". (3) In section 141(1)(b) of the Principal Act omit "with a disability". 571119B.I-28/2/2012 26 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 60 (4) In section 141(2) of the Principal Act-- (a) for "behaviour management plan" substitute "behaviour support plan"; (b) for "person with a disability" substitute 5 "person to whom this Part applies". (5) In section 141(2)(a) of the Principal Act, for "behaviour management" substitute "behaviour support". (6) In section 141(3) of the Principal Act, for 10 "behaviour management plan" (where twice occurring) substitute "behaviour support plan". (7) In section 141(3)(a), (b) and (c) of the Principal Act, for "person with a disability" substitute "person for whom the behaviour support plan is 15 prepared". 60 Review of behaviour management plan by disability service provider (1) In the heading to section 142 of the Principal Act, for "management" substitute "support". 20 (2) In section 142(1) of the Principal Act, for "behaviour management plan" substitute "behaviour support plan". (3) For section 142(2) of the Principal Act substitute-- 25 "(2) A person for whom a behaviour support plan has been prepared under section 141 may at any time request the disability service provider to review the behaviour support plan.". 30 (4) In section 142(3) of the Principal Act, for "behaviour management plan" (where twice occurring) substitute "behaviour support plan". 571119B.I-28/2/2012 27 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 61 (5) In section 142(3)(a), (b) and (c) of the Principal Act, for "person with a disability" substitute "person for whom the behaviour support plan was prepared". 5 61 Independent person (1) In section 143(1) of the Principal Act-- (a) for "person with a disability" (where first occurring) substitute "person to whom this Part applies"; 10 (b) for "person with a disability" (where secondly occurring) substitute "person". (2) In section 143(1)(a) and (b) and (2)(a) of the Principal Act, for "behaviour management plan" substitute "behaviour support plan". 15 (3) In section 143(1)(b) of the Principal Act, for "so;" substitute "so.". (4) Section 143(1)(c) and (d) of the Principal Act are repealed. (5) After section 143(1) of the Principal Act insert-- 20 "(1A) Subject to subsection (1B), if changes are proposed to a behaviour support plan as a result of a review of the plan by a disability service provider, an Authorised Program Officer must ensure that an independent 25 person is available to explain to the person for whom the behaviour support plan was prepared-- (a) the details of those changes; and (b) if those changes involve the inclusion 30 of a more restrictive form or use of restraint or seclusion, any matter related to the inclusion of the restraint or seclusion. 571119B.I-28/2/2012 28 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 62 (1B) An Authorised Program Officer is not required to ensure that an independent person is available under subsection (1A) if-- 5 (a) it is not proposed, as a result of the review, that a more restrictive use or form of restraint or seclusion be included in the behaviour support plan; and 10 (b) the person for whom the behaviour support plan was prepared has had his or her behaviour support plan reviewed by the disability service provider in the last 12 months; and 15 (c) during that review, an independent person was available in accordance with this section.". (6) In section 143(2) of the Principal Act, after "the Public Advocate" insert "or the Senior 20 Practitioner". (7) In section 143(2)(a) of the Principal Act, for "person with a disability" substitute "person for whom a behaviour support plan was prepared". (8) In section 143(2)(b) of the Principal Act, for "this 25 Part" substitute "sections 140, 141, 142 and 143". (9) In section 143(3) and (4) of the Principal Act, for "person with a disability" (where twice occurring) substitute "person to whom this Part applies". 62 Powers of Public Advocate 30 In section 144(1)(b) of the Principal Act, for "behaviour management plan" substitute "behaviour support plan". 571119B.I-28/2/2012 29 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 63 63 Requirements for the use of restraint and seclusion (1) In section 145(1) of the Principal Act, for "behaviour management plan" substitute "behaviour support plan". 5 (2) In section 145(1) and (4)(b) of the Principal Act, for "person with a disability" substitute "person to whom this Part applies". (3) In section 145(2) and (4) of the Principal Act, for "behaviour management plan" (where twice 10 occurring) substitute "behaviour support plan". (4) In section 145(3) of the Principal Act-- (a) for "behaviour management plan" (wherever occurring) substitute "behaviour support plan"; 15 (b) for "person with a disability" (where twice occurring) substitute "person to whom this Part applies". 64 Review by VCAT (1) In section 146(1) of the Principal Act-- 20 (a) for "person with a disability" substitute "person for whom a behaviour support plan is prepared"; (b) for "behaviour management plan" (where twice occurring) substitute "behaviour 25 support plan". (2) In section 146(3)(a), (b) and (c) of the Principal Act, for "behaviour management plan" substitute "behaviour support plan". (3) In section 146(3)(b) and (c) of the Principal Act, 30 for "person with a disability" substitute "person for whom the behaviour support plan was prepared". 571119B.I-28/2/2012 30 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 65 65 Use of restraint or seclusion in an emergency (1) In section 147(1)(a) of the Principal Act, for "behaviour management plan" substitute "behaviour support plan". 5 (2) In section 147(1)(a) and (b)(i) of the Principal Act, for "person with a disability" substitute "person to whom this Part applies". (3) In section 147(2) of the Principal Act, for "person with a disability" substitute "person to whom this 10 Part applies if". (4) In section 147(2)(a) of the Principal Act omit "if". 66 Reports (1) In section 148(1)(b) and (2)(e) of the Principal Act, for "behaviour management plan" substitute 15 "behaviour support plan". (2) In section 148(3) of the Principal Act, for "person with a disability" substitute "person to whom this Part applies". 67 Offence 20 (1) In section 149 of the Principal Act, for "person with a disability" substitute "person to whom this Part applies". (2) After the penalty at the foot of section 149 of the Principal Act insert the following note-- 25 "Note Section 201G provides a corresponding offence in relation to persons for whom treatment plans have been prepared.". 68 Use of other restrictive interventions (1) In section 150(2) of the Principal Act, after "used 30 by disability service providers" insert "on persons to whom this Part applies". 571119B.I-28/2/2012 31 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 69 (2) For section 150(2)(b) of the Principal Act substitute-- "(b) require a disability service provider to develop a behaviour support plan for a 5 person-- (i) to whom this Part applies; and (ii) in respect of whom the disability service provider is using other restrictive interventions;". 10 (3) At the foot of section 150 of the Principal Act insert the following note-- "Note Section 201H is a corresponding provision in relation to persons for whom treatment plans are in force or are 15 required to be prepared under Part 8.". 69 New Division 1AA of Part 8 inserted After the heading to Part 8 of the Principal Act insert-- "Division 1AA--Preliminary 20 150A Restrictions on liberty or freedom of movement A disability service provider must not detain a person with an intellectual disability otherwise than in accordance with this Part. 25 Penalty: 240 penalty units.". 70 Authorised Program Officer must prepare treatment plan (1) At the foot of section 153(2)(c) of the Principal Act insert the following note-- 30 "Note Division 6 of this Part contains provisions in relation to the use of restrictive interventions in accordance with, and the inclusion of restrictive interventions in, a treatment plan.". 571119B.I-28/2/2012 32 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 71 (2) After section 153(3)(a) of the Principal Act insert-- "(ab) explain to the person with a disability that the person can seek a review of the treatment 5 plan by VCAT under section 155 at any time if the person wants to do so; and". (3) In section 153(3)(b) of the Principal Act, after "Senior Practitioner" insert "for his or her approval". 10 (4) After section 153(3) of the Principal Act insert-- "(3A) On receiving a treatment plan under subsection (3)(b), the Senior Practitioner-- (a) must consider the acceptability of the treatment plan, having regard to-- 15 (i) the provisions required to be included in the treatment plan by subsection (2); and (ii) any law, policy or practice that the Senior Practitioner considers is 20 relevant; and (b) may-- (i) if he or she is satisfied that the treatment plan is acceptable, approve the treatment plan; or 25 (ii) direct the Authorised Program Officer to change the treatment plan; or (iii) apply to VCAT for a review of the plan under section 155.". 30 71 Application for review of treatment plan In section 155(1) of the Principal Act, for "Officer" substitute "Officer, the Senior Practitioner". 571119B.I-28/2/2012 33 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 72 72 Preparation of treatment plan (1) After section 167(1) of the Principal Act insert-- "(1A) A treatment plan must include provisions which-- 5 (a) specify the treatment that will be provided to the person with an intellectual disability in the residential institution or residential treatment facility during the period that the 10 security order remains in force; (b) state the benefit to the person that the person with an intellectual disability is expected to receive from the treatment; (c) specify any restrictive interventions that 15 are to be used; Note Division 6 of this Part contains provisions in relation to the use of restrictive interventions in accordance with, and the inclusion of restrictive 20 interventions in, a treatment plan. (d) specify the process and criteria applying in respect of the person with an intellectual disability obtaining leave of absence from the residential 25 institution or residential treatment facility; (e) set out a proposed process for the transition from being a resident in a residential institution or residential 30 treatment facility to living in the community.". 571119B.I-28/2/2012 34 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 73 (2) After section 167(2)(a) of the Principal Act insert-- "(ab) explain to the person with an intellectual disability that the person can seek a review 5 of the treatment plan by VCAT under section 169 at any time if the person wants to do so; and". (3) In section 167(2)(b) of the Principal Act, after "Senior Practitioner" insert "for his or her 10 approval". (4) After section 167(2) of the Principal Act insert-- "(2A) On receiving a treatment plan under subsection (2)(b), the Senior Practitioner-- (a) must consider the acceptability of the 15 treatment plan, having regard to-- (i) the provisions required to be included in a treatment plan by subsection (1A); and (ii) any law, policy or practice that the 20 Senior Practitioner considers is relevant; and (b) may-- (i) if he or she is satisfied that the treatment plan is acceptable, 25 approve the treatment plan; or (ii) direct the Authorised Program Officer to change the treatment plan; or (iii) apply to VCAT for a review of the 30 plan under section 169.". 73 Annual review of security order and treatment plan In section 168(2)(a) of the Principal Act, for "section 153(2)" substitute "section 167(1A)". 571119B.I-28/2/2012 35 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 74 74 Application for review of treatment plan (1) In section 169(1) of the Principal Act, for "Officer" substitute "Officer, the Senior Practitioner". 5 (2) In section 169(2) of the Principal Act, for "section 153(2)" substitute "section 167(1A)". 75 Transfer of persons detained in prison under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 10 At the foot of section 180(6) of the Principal Act insert the following note-- "Note Division 6 of this Part contains provisions in relation to the use of restrictive interventions in accordance with, and the 15 inclusion of restrictive interventions in, a treatment plan.". 76 Section 184 repealed Section 184 of the Principal Act is repealed. 77 Approval to use supervised treatment (1) In section 186(2)(b) of the Principal Act omit 20 "and rank". (2) After section 186(2) of the Principal Act insert-- "(2A) An application for approval may request the approval of more than one person to be appointed as an Authorised Program Officer 25 for the disability service provider.". (3) For section 186(4)(c) of the Principal Act substitute-- "(c) must approve the title of any position and the name of the holder of the position to be 30 appointed as an Authorised Program Officer.". 571119B.I-28/2/2012 36 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 78 (4) After section 186(4) of the Principal Act insert-- "(5) The Secretary may approve more than one person to be appointed as an Authorised Program Officer for the disability service 5 provider.". 78 Application for a supervised treatment order (1) For section 191(4) of the Principal Act substitute-- "(4) An Authorised Program Officer must notify 10 the following persons of any application that he or she makes under subsection (1)-- (a) the Public Advocate; (b) the person with a disability in respect of whom the supervised treatment order is 15 applied for.". (2) At the foot of section 191(7)(c) of the Principal Act insert the following note-- "Note Division 6 of this Part contains provisions in relation to the 20 use of restrictive interventions in accordance with, and the inclusion of restrictive interventions in, a treatment plan.". 79 New section 196A inserted After section 196 of the Principal Act insert-- "196A Application for determination regarding 25 expiry of supervised treatment order (1) If a person is subject to a supervised treatment order, the Authorised Program Officer must apply to VCAT for a determination regarding the expiry of the 30 supervised treatment order as soon as practicable within 60 days of the day on which the supervised treatment order will expire. 571119B.I-28/2/2012 37 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 79 (2) The Authorised Program Officer must notify the following persons of any application that he or she makes under subsection (1)-- (a) the Public Advocate; 5 (b) the person with a disability who is subject to the supervised treatment order; (c) the Senior Practitioner. (3) On an application under subsection (1), 10 VCAT may-- (a) if VCAT is satisfied that the matters specified in section 191(1) currently apply and will continue to apply after the day on which the supervised 15 treatment order will expire, order the Authorised Program Officer to apply under section 191 for a new supervised treatment order to take effect on the day that the current supervised treatment 20 order will expire; or (b) if VCAT is satisfied that the matters specified in section 191(1) currently apply but will not apply after the day on which the supervised treatment order 25 will expire, dismiss the application and allow the supervised treatment order to expire on that day; or (c) if VCAT is not satisfied that the matters specified in section 191(1) currently 30 apply, revoke the supervised treatment order.". 571119B.I-28/2/2012 38 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 80 80 Senior Practitioner may make assessment order After section 199(4) of the Principal Act insert-- "(4A) The Senior Practitioner must within 72 hours of making an assessment order-- 5 (a) give the person in respect of whom the order is made a written statement explaining why the Senior Practitioner is satisfied that the criteria in subsection (2) apply; and 10 (b) notify the person in respect of whom the order is made that the person may apply to VCAT for a review of the decision to make the order; and (c) notify the Public Advocate that the 15 assessment order has been made.". 81 New section 199A inserted After section 199 of the Principal Act insert-- "199A Application for review of assessment order 20 (1) A person in respect of whom an assessment order has been made may apply to VCAT for a review of the decision by the Senior Practitioner to make the assessment order. (2) On an application under subsection (1), 25 VCAT may-- (a) confirm the decision to make the assessment order and dismiss the application; or (b) vary the conditions or period of the 30 assessment order; or (c) revoke the assessment order.". 571119B.I-28/2/2012 39 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 82 82 New Division 6 of Part 8 inserted After Division 5 of Part 8 of the Principal Act insert-- "Division 6--Restrictive interventions under 5 treatment plans 201A Purpose and application of Division (1) This Division applies to persons with a disability for whom a treatment plan is in force or is required to be prepared under this 10 Part. (2) The purpose of this Division is to protect the rights of persons to whom this Division applies by ensuring that restrictive interventions are-- 15 (a) included in treatment plans for those persons only in accordance with this Division; and (b) used on those persons only if the requirements imposed by this Division 20 are complied with. Note Part 7 contains corresponding protective provisions in relation to other persons with a disability. 201B Use of restrictive interventions 25 A disability service provider must not use a restrictive intervention on a person to whom this Division applies unless-- (a) there is a treatment plan in force for that person; and 30 (b) the treatment plan includes the restrictive intervention. 571119B.I-28/2/2012 40 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 82 201C Authorised Program Officers (1) An Authorised Program Officer must ensure that any restrictive intervention used on a person to whom this Division applies in the 5 provision of a disability service for which the Authorised Program Officer is responsible is administered in accordance with this Division. (2) A disability service provider must advise the 10 Senior Practitioner of the name and qualifications of any person appointed as an Authorised Program Officer in the manner and within the period determined by the Senior Practitioner. 15 Penalty: 10 penalty units. (3) The Senior Practitioner must keep a register of the name and qualifications of each Authorised Program Officer. 201D Use of restraint and seclusion 20 Restraint or seclusion can only be used on a person to whom this Division applies-- (a) if the use of restraint or seclusion is necessary-- (i) to prevent the person from causing 25 physical harm to themselves or any other person; or (ii) to prevent the person from destroying property where to do so could involve the risk of harm 30 to themselves or any other person; and (b) if the use and form of restraint or seclusion is the option which is the least restrictive of the person as is 35 possible in the circumstances; and 571119B.I-28/2/2012 41 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 82 (c) if the use and form of restraint or seclusion-- (i) is included in the person's treatment plan; and 5 (ii) is in accordance with the person's treatment plan; and (iii) is not applied for longer than the shorter of the following periods-- (A) the period of time that has 10 been authorised by the Authorised Program Officer; or (B) the period of time during which the use of the 15 seclusion or restraint is necessary under paragraph (a); and (d) if seclusion is to be used-- (i) the person is supplied with 20 bedding and clothing which is appropriate in the circumstances; and (ii) the person has access to adequate heating or cooling as is 25 appropriate in the circumstances; and (iii) the person is provided with food and drink at the appropriate times; and 30 (iv) the person is provided with adequate toilet arrangements; and 571119B.I-28/2/2012 42 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 82 (e) if any other requirements imposed by the Senior Practitioner are complied with. Note 5 Section 140 is a corresponding provision in relation to other persons with a disability. 201E Use of restraint and seclusion must be included in treatment plan (1) This section applies if a person who is 10 preparing a treatment plan under this Part for a person to whom this Division applies-- (a) is satisfied that the criteria specified in section 201D(a) and (b) apply; and (b) proposes to use restraint or seclusion on 15 the person. (2) The person who is preparing the treatment plan must include provisions in the treatment plan which-- (a) state the circumstances in which the 20 proposed form of restraint or seclusion is to be used for treatment; (b) explain how the use of restraint or seclusion will be of benefit to the person; 25 (c) demonstrate that the use of restraint or seclusion is the option which is the least restrictive of the person as is possible in the circumstances. (3) The person who is preparing the treatment 30 plan must, in preparing the plan, consult with-- (a) the person for whom the treatment plan is prepared; 571119B.I-28/2/2012 43 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 82 (b) if the person for whom the treatment plan is prepared has a guardian, the guardian; (c) if other disability service providers 5 provide disability services to the person for whom the treatment plan is prepared, a representative of each disability service provider; (d) any other person that the person who is 10 preparing the plan considers integral to the development of the treatment plan. 201F Reports (1) The Senior Practitioner must-- (a) monitor whether the use of the restraint 15 or seclusion is in accordance with this Part; and (b) subject to any guidelines issued under subsection (3), advise the Authorised Program Officer as to the intervals, not 20 exceeding 12 months, within which the Authorised Program Officer is to provide a report on the use of restraint and seclusion in accordance with subsection (2) to the Senior 25 Practitioner. (2) A report required under subsection (1) must-- (a) be provided within 7 days after the end of the interval advised under 30 subsection (1); (b) include a record of all instances in which restraint or seclusion has been applied during the period for which the report is prepared; 571119B.I-28/2/2012 44 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 82 (c) specify any details required by the Senior Practitioner in respect of each use of restraint or seclusion during the interval for which the report is 5 prepared; (d) have attached a copy of the person's current treatment plan if the use of restraint or seclusion is being continued. 10 (3) For the purposes of this section, the Senior Practitioner may make and issue guidelines relating to the preparation of reports including enabling the preparation of a consolidated report by an Authorised 15 Program Officer where more than one disability service provider is providing services to a person to whom this Division applies involving the use of restraint or seclusion. 20 201G Offence A person who, except as provided in section 201D, applies restraint or seclusion to a person to whom this Division applies is guilty of an offence against this Act. 25 Penalty: 240 penalty units. Note Section 149 provides a corresponding offence in relation to other persons with a disability. 201H Use of other restrictive interventions 30 (1) In this section, other restrictive interventions means restrictive interventions other than restraint or seclusion. 571119B.I-28/2/2012 45 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 82 (2) The Senior Practitioner may, in respect of other restrictive interventions used by disability service providers on persons to whom this Division applies-- 5 (a) require a disability service provider to provide a report to the Senior Practitioner on the use of other restrictive interventions in disability services provided by the disability 10 service provider; (b) develop guidelines and standards in relation to the use of other restrictive interventions; Note 15 The guidelines and standards may include clinical guidelines and standards. (c) audit and evaluate the use of other restrictive interventions; (d) give written directions to disability 20 service providers-- (i) prohibiting the use of a specified other restrictive intervention; (ii) regulating the use of a specified other restrictive intervention; 25 (e) undertake research and provide advice to disability service providers in relation to the use of other restrictive interventions. Note 30 Section 150 is a corresponding provision in relation to other persons with a disability.". 571119B.I-28/2/2012 46 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 83 83 New sections 226 to 231 inserted After section 225E of the Principal Act insert-- "226 Community visitors A person who, before the day on which the 5 Disability Amendment Act 2012 comes into operation, was appointed as a community visitor for a particular region is, on and from that day, taken to be appointed as a community visitor generally. 10 227 Behaviour support plans (1) On and after the day on which the Disability Amendment Act 2012 comes into operation, a behaviour management plan (within the meaning of this Act as in force immediately 15 before that day) is taken to be a behaviour support plan. (2) On and after the day on which the Disability Amendment Act 2012 comes into operation, any reference to a behaviour management 20 plan in any Act, regulation or other document must be, unless the context otherwise requires, construed as a reference to a behaviour support plan. (3) Despite the amendments made to section 133 25 by section 54 of the Disability Amendment Act 2012, Part 7 applies to a person who is subject to both-- (a) a behaviour management plan prepared before the day on which the Disability 30 Amendment Act 2012 comes into operation; and 571119B.I-28/2/2012 47 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 83 (b) a treatment plan that-- (i) was prepared before that day; and (ii) has not been reviewed or varied since that day on an application 5 under section 154(1), 155(1), 196(1)(a) or (b). 228 Possession orders (1) A possession order made in accordance with this Act as in force immediately before the 10 day on which the Disability Amendment Act 2012 comes into operation continues to have effect despite the amendments made to this Act by sections 30, 31 and 32 of that Act. 15 (2) An application for a possession order that has not been determined before the day on which the Disability Amendment Act 2012 comes into operation is to be determined in accordance with this Act as in force on or 20 after that day. 229 Warrants of possession A warrant of possession issued under section 85 in accordance with this Act as in force immediately before the day on which 25 the Disability Amendment Act 2012 comes into operation continues to have effect despite the amendments made to this Act by sections 33 and 34 of that Act. 230 Group homes 30 (1) On and after the day on which the Disability Amendment Act 2012 comes into operation, a community residential unit (within the meaning of this Act as in force immediately before that day) is taken to be a group home. 571119B.I-28/2/2012 48 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 2--Amendment of Disability Act 2006 s. 83 (2) On and after the day on which the Disability Amendment Act 2012 comes into operation, any reference to a community residential unit in any Act, regulation or other document 5 must be, unless the context otherwise requires, construed as a reference to a group home. 231 Treatment plans (1) Subject to subsection (2), Division 6 of 10 Part 8, as inserted by section 82 of the Disability Amendment Act 2012, does not apply to a treatment plan prepared before the day on which that Act comes into operation. (2) If, on or after the day on which the 15 Disability Amendment Act 2012 comes into operation, an application is made under section 154(1), 155(1), 196(1)(a) or (b) to review or vary a treatment plan prepared before that day, Division 6 of Part 8 applies 20 to the treatment plan for the purposes of that application.". __________________ 571119B.I-28/2/2012 49 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 3--Amendment of Other Acts s. 84 PART 3--AMENDMENT OF OTHER ACTS 84 Accident Compensation Act 1985--Definitions In section 99AAA(1) of the Accident Compensation Act 1985, in the definition of 5 supported accommodation, in paragraph (c), for "community residential unit" substitute "group home". 85 Human Services (Complex Needs) Act 2009-- Definitions 10 In section 3 of the Human Services (Complex Needs) Act 2009, in the definition of Department, for "Health" substitute "Human Services". 86 Transport Accident Act 1986--Definitions In section 3(1) of the Transport Accident Act 15 1986, in the definition of supported accommodation, in paragraph (c), for "community residential unit" substitute "group home". 87 Victorian Civil and Administrative Tribunal Act 20 1998--Schedule 1 (1) After clause 11AA(2) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 insert-- "(3) Clause 11AIA applies in relation to any 25 proceeding on an application under section 199A of the Disability Act 2006.". (2) For clause 11AE of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, substitute-- 30 "11AE Commencement The Tribunal must commence the hearing of a proceeding on an application under the Disability Act 2006 within-- 571119B.I-28/2/2012 50 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 3--Amendment of Other Acts s. 88 (a) in the case of an application under section 199A of that Act, 5 business days of the application being lodged with the Tribunal; or 5 (b) in any other case, 30 days of the application being lodged with the Tribunal.". (3) After clause 11AI of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 10 insert-- "11AIA Application for review of assessment order (1) Section 49(2) does not apply to an application under section 199A of the 15 Disability Act 2006. (2) If an application is made under section 199A of the Disability Act 2006, the copies required to be lodged under section 49(1) must be lodged within one business day after 20 the Senior Practitioner receives notice of the application.". 88 Victorian Civil and Administrative Tribunal Act 1998--Schedule 2 At the end of Schedule 2 to the Victorian Civil 25 and Administrative Tribunal Act 1998 insert-- "Form and content of a warrant of possession under section 85B of the Disability Act 2006.". __________________ 571119B.I-28/2/2012 51 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Part 4--Repeal of Amending Act s. 89 PART 4--REPEAL OF AMENDING ACT 89 Repeal of amending Act This Act is repealed on 1 July 2013. Note 5 The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). 571119B.I-28/2/2012 52 BILL LA INTRODUCTION 28/2/2012

 


 

Disability Amendment Bill 2012 Endnotes ENDNOTES By Authority. Government Printer for the State of Victoria. 571119B.I-28/2/2012 53 BILL LA INTRODUCTION 28/2/2012

 


 

 


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