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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Disability Services (Miscellaneous) Amendment
Bill 2012
A BILL FOR
An Act to amend the Disability
Services Act 1993.
Contents
Part 1—Preliminary
1Short title
2Commencement
3Amendment
provisions
Part 2—Amendment of Disability
Services Act 1993
4Insertion of heading to Part
1
Part 1—Preliminary
5Amendment of section
3—Interpretation
6Insertion of heading to Part 2
Part 2—Funding
7Insertion of Part 3
Part 3—Disability Services
Commissioner
Division 1—Appointment and
conditions of office
8Appointment
9Term of office and conditions of
appointment
10Remuneration
11Temporary appointments
Division 2—Functions and
powers
12Functions
13Powers
14Independence
Division 3—Other
matters
15Staff
16Annual report
17Other reports
18Delegations
Part 4—Senior
Practitioner
19Appointment
20Term of office and conditions of
appointment
21Remuneration
22Temporary
appointments
23Functions
24Powers
25Powers in relation to restrictive
practices
26Delegations
27Staff
28Annual report
29Other reports
Part 5—Community
Visitors
30Preliminary
31Community Visitors
32General provisions as to community
visitors
33Functions of community
visitors
34Visits to
premises
35Requests
to see community visitors
36Reports by community
visitors
37Community
Visitor Board
38Referral by Community Visitors
Board
39Annual
report
Division 1—Making a
complaint
40Who may
complain
41Grounds on which a complaint
may be made
42Form of
complaint
43Time
within which a complaint may be made
44Further information may be
required
Division 2—Assessment
45Assessment
46Preliminary
inquiries
47Provision
of documents etc on referral of complaint
48Splitting or joining of
complaints
Division 3—No
further action on complaint
49No further action on complaint
Division 4—Miscellaneous
50Withdrawal of complaint
Division 5—Conciliation
of complaints
51Function of
conciliator
52Public
interest
53Assistance
at conciliation
54Reports from
conciliator
55Conciliation may be brought to an
end
56Privilege and
confidentiality
57Professional mentor
58Enforceable agreements
Division 1—Application of
Part
59Matters that may be
investigated
60Limitation of powers
Division 2—Conduct
of investigations
61Conduct
of investigation
62Representation
63Use and obtaining of
information
64Power
to examine witnesses etc
65Search powers and
warrants
66Reimbursement of
expenses
67Reference
to another authority for investigation
68Possession of document or other seized
item
Division 3—Privilege
69Privilege
Division 4—Action on
investigation
70Reports
71Notice of action to
providers
72Right of
appeal
Part 8—Restrictive
interventions
73Purpose of
Part
74Use of
restrictive interventions
75Approval to use restrictive
interventions
76Revocation of
approval
77Notice of
refusal or revocation
78Application for
review
79Authorised
program officers
80Use of restraint, seclusion and
segregation
81Use of restraint and seclusion
must be included in behaviour support plan
82Review of behaviour support plan
by disability service provider
83Independent
person
84Powers of
Public Advocate
85Requirements for the use of restraint and
seclusion
86Use of restraint, seclusion or
segregation in an emergency
87Reports
88Offence
89Use of other restrictive
interventions
Part 9—Miscellaneous
8Redesignation of section 8
9Redesignation of section 9
10Redesignation of section 10
11Deletion of section 11
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Disability Services (Miscellaneous)
Amendment Act 2012.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Disability Services
Act 1993
4—Insertion
of heading to Part 1
Before section 1 insert:
Part 1—Preliminary
5—Amendment
of section 3—Interpretation
(1) Section 3—before the definition of disability
insert:
behaviour support plan means a behaviour support plan under
section 81;
Commissioner means the person appointed, or from time to time
acting, as the Commissioner under Part 3;
chemical restraint means the administration of a chemical
substance to a person for the primary purpose of subduing or controlling the
behaviour of that person;
Department means the administrative unit that is, under the
Minister, responsible for the administration of this Act;
(2) Section 3—after the definition of disability
services insert:
disability service provider means a person that provides
disability services;
mechanical restraint means the use of an object or device for
the primary purpose of restricting the free movement of a person but does not
include the use of objects or devices for therapeutic purposes or to enable the
safe transportation of that person;
Public Advocate means the person holding or acting in the
office of Public Advocate under the
Guardianship
and Administration Act 1993, and includes any person acting on
behalf of the Public Advocate in accordance with that Act;
physical restraint means the use of any part of another
person’s body to restrict the free movement of a person with the aim of
controlling that person’s behaviour;
register means register, license, approve, admit, certify
(including by way of practising certificate) or authorise in any other manner
pursuant to an Act (including pursuant to the Health Practitioner Regulation
National Law (South Australia)) a person to provide a health or community
service or to practise as a health or community service provider;
registered service provider means a disability service
provider registered by a registration authority;
registration authority means—
(a) the body with the function, under a registration law, of determining
an application for registration under that law and includes a body vested with
disciplinary powers under a registration law; or
(b) any other body brought within the ambit of this definition by the
regulations;
registration law means—
(a) the Health Practitioner Regulation National Law; or
(b) the Health
Practitioner Regulation National Law (South Australia) Act 2010;
or
(c) the Occupational
Therapy Practice Act 2005; or
(d) an Act brought within the ambit of this definition by the
regulations;
(3) Section 3—after the definition of researcher
insert:
residential services means accommodation and other types of
support (including assistance with day-to-day living, intensive forms of care,
and assistance towards independent living) when provided to residents with a
disability at a special purpose facility;
restraint means chemical, physical or mechanical
restraint;
restrictive intervention means any intervention that is used
to restrict the rights or freedom of movement of a person with a disability
including—
(a) restraint;
(b) seclusion;
(c) segregation;
State Ombudsman means the person holding or acting in the
office of Ombudsman under the
Ombudsman
Act 1972, and includes any person acting on behalf of the Ombudsman
in accordance with that Act.
6—Insertion
of heading to Part 2
After section 3 insert:
Part 2—Funding
After section 7 insert:
Part 3—Disability Services
Commissioner
Division 1—Appointment and conditions of
office
8—Appointment
(1) There is to be a Disability Services Commissioner (the
Commissioner).
(2) The Commissioner is appointed by the Governor.
9—Term of office and conditions of
appointment
(1) The Commissioner is appointed on conditions determined by the Governor
and for a term, not exceeding 7 years, specified in the instrument of
appointment.
(2) An appointment may be renewed but a person must not hold office as
Commissioner for more than 2 consecutive terms.
(3) The Governor
may remove the Commissioner from office on the presentation of an address to the
Governor from both Houses of Parliament seeking the Commissioner's
removal.
(4) The Governor may suspend the Commissioner from office on the ground of
incompetence or misbehaviour and, in that event—
(a) a full statement of the reason for the suspension must be laid before
both Houses of Parliament within 3 sitting days of the suspension;
and
(b) if, at the expiration of 1 month from the date on which the
statement was laid before Parliament, an address from both Houses of Parliament
seeking the Commissioner's removal has not been presented to the Governor, the
Commissioner must be restored to office.
(5) The office of Commissioner becomes vacant if the
Commissioner—
(a) dies; or
(b) resigns by written notice given to the Minister; or
(c) completes a term of office and is not reappointed; or
(d) is removed from office by the Governor under
subsection (3);
or
(e) becomes bankrupt or applies as a debtor to take the benefit of the
laws relating to bankruptcy; or
(f) is convicted of an indictable offence or sentenced to imprisonment for
an offence; or
(g) becomes a member of the Parliament of this State or any other State of
the Commonwealth or of the Commonwealth or becomes a member of a Legislative
Assembly of a Territory of the Commonwealth; or
(h) becomes, in the opinion of the Governor, mentally or physically
incapable of carrying out satisfactorily the duties of office.
(6) Except as is provided by this section, the Commissioner may not be
removed or suspended from office, nor will the office of the Commissioner become
vacant.
10—Remuneration
The Commissioner is entitled to remuneration, allowances and expenses
determined by the Governor.
11—Temporary appointments
The Minister may appoint a person (who may but need not be an employee in
the Public Service) to act as the Commissioner—
(a) during a vacancy in the office of Commissioner; or
(b) when the Commissioner is absent from, or unable to discharge, official
duties; or
(c) if the Commissioner is suspended from office under this Act.
Division 2—Functions and
powers
12—Functions
(1) The Commissioner has the following functions:
(a) to receive, assess, investigate and resolve complaints relating to
disability services;
(b) if appropriate—to conciliate where a complaint has been made in
relation to a disability service provider;
(c) to make recommendations for improving disability services and
preserving and increasing the rights of people who use those services;
(d) to review and identify the causes of complaints and to recommend ways
to remove, resolve or minimise those causes;
(e) to provide information, education and advice in relation
to—
(i) disability service rights and responsibilities; and
(ii) procedures for resolving complaints; and
(iii) other matters (if any) determined to be appropriate by the
Commissioner;
(f) to encourage and assist disability service users to resolve complaints
directly with disability service providers;
(g) to assist disability service providers to develop or improve training
and procedures to deal with and resolve complaints;
(h) maintain a record of all complaints received by the
Commissioner;
(i) to inquire into and report on any matter relating to disability
services on the Commissioner's own motion or at the request of the
Minister;
(j) to advise, and report to, the Minister on any matter relating to
disability services or the administration or operation of this Act;
(k) to provide information, advice and reports to registration authorities
and to work with registration authorities to develop or improve procedures
relating to the assessment and investigation of complaints and
grievances;
(l) to maintain links with—
(i) disability service providers; and
(ii) organisations that have an interest in the provision of disability
services; and
(iii) organisations that represent the interests of the users of
disability services;
(m) to consult and cooperate with other agencies and authorities that are
involved in protecting the interests and rights of members of the community in
the area of the provision of disability services, including—
(i) the Public Advocate; and
(ii) the State Ombudsman; and
(iii) the Australian Human Rights Commission; and
(n) to perform other functions conferred on the Commissioner by or under
this or any other Act.
(2) The
Commissioner must, in providing information and advice, and in the assessment
and consideration of any complaint, take into account, to such extent as may be
appropriate, the position of persons within special needs groups.
(3) For the purposes of
subsection (2),
special needs groups are particular classes of persons who,
because of the nature of the classes to which they belong, may suffer
disadvantage in the provision of services unless their needs are
recognised.
(4) The Commissioner must, in acting under this Act, give particular
attention to the position of volunteers and to their value in providing
disability services within the community and should not unnecessarily involve
them in any proceedings under this Act.
13—Powers
The Commissioner has the powers necessary or expedient for, or incidental
to, the performance of the Commissioner's functions.
14—Independence
(1) In performing and exercising his or her functions and powers under
this Act, the Commissioner must act independently, impartially and in the public
interest.
(2) Subject to this Act, the Minister cannot control how the Commissioner
is to exercise the Commissioner's statutory functions and
powers1.
Note—
1 This
provision does not derogate from any express power of the Minister under this
Act.
Division 3—Other matters
15—Staff
(1) The Commissioner's staff consists of—
(a) Public Service employees assigned to work in the office of the
Commissioner under this Act; and
(b) any person appointed under
subsection (3).
(2) The Minister may, by notice in the Gazette—
(a) exclude Public
Service employees who are members of the Commissioner's staff from specified
provisions of the Public
Sector Act 2009; and
(b) if the Minister thinks that certain provisions should apply to such
employees instead of those excluded under
paragraph (a)—determine
that those provisions will apply,
and such a notice will have effect according to its terms.
(3) The
Commissioner may, with the consent of the Minister, appoint staff for the
purposes of this Act.
(4) The terms and conditions of employment of a person appointed under
subsection (3)
will be determined by the Governor and such a person will not be a Public
Service employee.
(5) The Commissioner may, by agreement with the Minister responsible for
an administrative unit of the Public Service, make use of the services of the
staff, equipment or facilities of that administrative unit.
16—Annual report
(1) The Commissioner must, on or before 30 September in every year,
forward a report to the Minister on the work of the Commissioner under this Act
during the financial year ending on the preceding 30 June.
(2) The Minister must, within 6 sitting days after receiving a report
under this section, have copies of the report laid before both Houses of
Parliament.
17—Other reports
(1) The Commissioner may, at any time, prepare a report to the Minister on
any matter arising out of the exercise of the Commissioner's functions under
this Act.
(2) Subject to
subsection (3),
the Minister must, within 2 weeks after receiving a report under this
section, have copies of the report laid before both Houses of
Parliament.
(3) If the Minister
cannot comply with
subsection (2)
because Parliament is not sitting, the Minister must deliver copies of the
report to the President and the Speaker and the President and the Speaker must
then—
(a) immediately
cause the report to be published; and
(b) lay the report before their respective Houses at the earliest
opportunity.
(4) A report will, when published under
subsection (3)(a),
be taken for the purposes of any other Act or law to be a report of the
Parliament published under the authority of the Legislative Council and the
House of Assembly.
18—Delegations
(1) The Commissioner may delegate a power or function vested in or
conferred on the Commissioner (as the case may be) under this
Act—
(a) to a particular person or body; or
(b) to the person for the time being occupying a particular office or
position.
(2) A power or function delegated under this section may, if the
instrument of delegation so provides, be further delegated.
(3) A delegation—
(a) may be absolute or conditional; and
(b) does not derogate from the power of the delegator to act in a matter;
and
(c) is revocable at will by the delegator.
(4) In any legal proceedings an apparently genuine certificate,
purportedly signed by the Commissioner, containing particulars of a delegation
under this section, will, in the absence of proof to the contrary, be accepted
as proof that the delegation was made in accordance with the
particulars.
Part 4—Senior Practitioner
19—Appointment
(1) There is to be a Senior Practitioner.
(2) The Senior Practitioner is appointed by the Governor (being satisfied
that the person appointed has the appropriate clinical qualifications and
experience to perform the functions and exercise the powers conferred on the
Senior Practitioner under this Act).
20—Term of office and conditions of
appointment
(1) The Senior Practitioner is appointed on conditions determined by the
Governor and for a term, not exceeding 3 years, specified in the instrument
of appointment.
(2) An appointment may be renewed but a person must not hold office as
Senior Practitioner for more than 2 consecutive terms.
(3) The Governor may suspend the Senior Practitioner from office on the
ground of incompetence or misbehaviour.
(4) The Governor
may remove the Senior Practitioner from office on the ground of—
(a) mental or physical incapacity to carry out official duties
satisfactorily; or
(b) neglect of duty; or
(c) dishonourable conduct; or
(d) any other ground that the Executive Council considers
sufficient.
(5) The office of Senior Practitioner becomes vacant if the Senior
Practitioner—
(a) dies; or
(b) resigns by written notice given to the Minister; or
(c) completes a term of office and is not reappointed; or
(d) is removed from office by the Governor under
subsection (4);
or
(e) becomes bankrupt or applies as a debtor to take the benefit of the
laws relating to bankruptcy; or
(f) is convicted of an indictable offence or sentenced to imprisonment for
an offence; or
(g) becomes a member of the Parliament of this State or any other State of
the Commonwealth or of the Commonwealth or becomes a member of a Legislative
Assembly of a Territory of the Commonwealth; or
(h) becomes, in the opinion of the Governor, mentally or physically
incapable of carrying out satisfactorily the duties of office.
(6) Except as is provided by this section, the Senior Practitioner may not
be removed or suspended from office, nor will the office of the Senior
Practitioner become vacant.
21—Remuneration
The Senior Practitioner is entitled to remuneration, allowances and
expenses determined by the Governor.
22—Temporary appointments
The Minister may appoint a person (who may but need not be an employee in
the Public Service) to act as the Senior Practitioner—
(a) during a vacancy in the office of Senior Practitioner; or
(b) when the Senior Practitioner is absent from, or unable to discharge,
official duties; or
(c) if the Senior Practitioner is suspended from office under this
Act.
23—Functions
The Senior Practitioner has the following functions:
(a) to develop guidelines and standards with respect to restrictive
interventions and compulsory treatment;
Note—
The guidelines and standards may include clinical matters.
(b) to provide education and information to disability service providers
with respect to restrictive interventions and compulsory treatment;
(c) to provide information with respect to the rights of persons with a
disability who may be subject to the use of restrictive interventions and
compulsory treatment;
(d) to provide advice to disability service providers to improve practice
in relation to restrictive interventions and compulsory treatment;
(e) to give directions to disability service providers in relation to
restrictive interventions and compulsory treatment and behaviour support plans
and treatment plans;
(f) to develop links and access to professional bodies and academic
institutions for the purpose of facilitating knowledge and training in clinical
practice for persons working with persons with a disability;
(g) to undertake research into restrictive interventions and compulsory
treatment and provide information on practice options to disability service
providers;
(h) to evaluate and monitor the use of restrictive interventions across
disability services and to recommend improvements in practice to the
Minister;
(i) to undertake any function relating to persons with a disability as may
be directed in writing by the Minister;
(j) to perform other functions conferred on the Senior Practitioner by or
under this or any other Act.
24—Powers
The Senior Practitioner has the powers necessary or expedient for, or
incidental to, the performance of the Senior Practitioner's functions.
25—Powers in relation to restrictive
practices
(1) Without limiting
any other power of the Senior Practitioner, the Senior Practitioner has the
following additional powers in relation to restrictive interventions or
compulsory treatments:
(a) to visit and inspect any part of premises where disability services
are being provided (provided that premises, or a part of premises, used as a
private residence that is not a residential service may only be visited and
inspected if there are, in the opinion of the Senior Practitioner, reasonable
grounds to do so);
(b) to meet with any person who is subject to any restrictive intervention
or compulsory treatment;
(c) to investigate, audit and monitor the use of restrictive interventions
and compulsory treatment;
(d) to inspect and make copies of, or take extracts from, any document
relating to any person who is subject to any restrictive intervention or
compulsory treatment;
(e) to meet with any person involved in the development, implementation or
authorisation of any restrictive intervention or compulsory treatment upon
request;
(f) to request information from a disability service provider relating to
any restrictive intervention or compulsory treatment;
(g) to authorise by
written order given to the disability service provider the use of a restrictive
intervention.
(2) The Senior
Practitioner may, by written order, direct a disability service
provider—
(a) to discontinue or
alter as specified in the order, a practice, procedure or treatment observed or
carried out by the disability service provider;
(b) to observe or carry out a practice, procedure or treatment specified
in the order;
(c) to provide a practice, procedure or treatment, or a particular
practice, procedure or treatment specified in the order, to a person with a
disability who is specified in the order.
(3) If the Senior Practitioner gives a direction under
subsection (2)(a) to
discontinue a practice, procedure or treatment, the Senior Practitioner must
provide assistance in developing alternative strategies for the management of
the behaviour of the person affected.
(4) The Senior Practitioner must as soon as practicable advise in writing
a person with a disability of—
(a) any authorisation given in relation to that person under
subsection (1)(g);
or
(b) any direction given in relation to that person under
subsection (2).
(5) If the Senior
Practitioner wishes to perform or exercise, or is performing or exercising, any
power, duty or function under this Act, the disability service provider and
every member of the staff or management of the disability service provider must
provide the Senior Practitioner with any reasonable assistance that the Senior
Practitioner requires to perform or exercise that power, duty or function
effectively.
(6) A disability service provider or member of the staff or management of
a disability service provider must—
(a) reasonably render assistance when required to do so under
subsection (5);
and
(b) give full and true answers to the best of that person's knowledge to
any questions asked by the Senior Practitioner in the performance or exercise of
any power, duty or function under this Act.
Maximum penalty: $5 000.
26—Delegations
(1) The Senior Practitioner may delegate any of his or her functions or
powers under this Act other than this power of delegation.
(2) A delegation —
(a) may be made to a person who, in the opinion of the Senior
Practitioner—
(i) has sufficient knowledge and expertise in respect of persons with a
disability; and
(ii) has appropriate skills and qualifications in respect of the power,
duty or function being delegated; and
(b) may be made subject to conditions and limitations specified in the
instrument of delegation; and
(c) is revocable at will and does not derogate from the power of the
Senior Practitioner to act in a matter.
(3) A power or function delegated under this section may, if the
instrument of delegation so provides, be further delegated.
(4) In any legal proceedings an apparently genuine certificate,
purportedly signed by the Senior Practitioner, containing particulars of a
delegation under this section, will, in the absence of proof to the contrary, be
accepted as proof that the delegation was made in accordance with the
particulars.
27—Staff
(1) The Senior Practitioner's staff consists of—
(a) Public Service employees assigned to work in the office of the Senior
Practitioner under this Act; and
(b) any person appointed under
subsection (3).
(2) The Minister may, by notice in the Gazette—
(a) exclude Public
Service employees who are members of the Senior Practitioner's staff from
specified provisions of the Public
Sector Act 2009; and
(b) if the Minister thinks that certain provisions should apply to such
employees instead of those excluded under
paragraph (a)—determine
that those provisions will apply,
and such a notice will have effect according to its terms.
(3) The Senior
Practitioner may, with the consent of the Minister, appoint staff for the
purposes of this Act.
(4) The terms and conditions of employment of a person appointed under
subsection (3)
will be determined by the Governor and such a person will not be a Public
Service employee.
(5) The Senior Practitioner may, by agreement with the Minister
responsible for an administrative unit of the Public Service, make use of the
services of the staff, equipment or facilities of that administrative
unit.
28—Annual report
(1) The Senior Practitioner must, on or before 30 September in every
year, forward a report to the Minister on the work of the Senior Practitioner
under this Act during the financial year ending on the preceding
30 June.
(2) The Minister must, within 6 sitting days after receiving a report
under this section, have copies of the report laid before both Houses of
Parliament.
29—Other reports
(1) The Senior Practitioner may, at any time, prepare a report to the
Minister on any matter arising out of the exercise of the Senior Practitioner's
functions under this Act.
(2) Subject to
subsection (3),
the Minister must, within 2 weeks after receiving a report under this
section, have copies of the report laid before both Houses of
Parliament.
(3) If the Minister
cannot comply with
subsection (2)
because Parliament is not sitting, the Minister must deliver copies of the
report to the President and the Speaker and the President and the Speaker must
then—
(a) immediately
cause the report to be published; and
(b) lay the report before their respective Houses at the earliest
opportunity.
(4) A report will, when published under
subsection (3)(a),
be taken for the purposes of any other Act or law to be a report of the
Parliament published under the authority of the Legislative Council and the
House of Assembly.
Part 5—Community Visitors
30—Preliminary
(1) This Part applies to premises at which a disability service provider
is providing residential services.
(2) In this Part—
resident means a person with a disability who resides at
premises to which this Part applies.
31—Community Visitors
(1) The Governor may, on the recommendation of the Public Advocate,
appoint community visitors for the purposes of this Part.
(2) Each Community Visitor—
(a) holds office for a period of 3 years; and
(b) is eligible for re-appointment at the end of the term of office;
and
(c) is entitled to be paid any fees and travelling and other allowances
fixed by the Governor; and
(d) is excluded from the Public Service.
(3) A person may not be appointed as a community visitor if that
person—
(a) holds any appointment or employment with the Department; or
(b) has any pecuniary interest in relation to any contract to which the
Department is a party.
(4) In nominating persons for appointment as community visitors the Public
Advocate must, as reasonably practicable as possible, nominate an equal number
of males and females.
32—General provisions as to community
visitors
(1) The Governor may specify terms and conditions of appointment in the
instrument of appointment of a person as a community visitor.
(2) The Governor may on
the recommendation of the Public Advocate remove a community visitor from
office.
(3) A person may resign from the office of community visitor by notice in
writing given to the Governor.
(4) A position of Community Visitor, becomes vacant if the person
appointed to the position—
(a) dies; or
(b) resigns by written notice given to the Governor; or
(c) completes a term of appointment and is not reappointed; or
(d) is removed from the position by the Governor under
subsection (2);
or
(e) becomes bankrupt or applies as a debtor to take the benefit of the
laws relating to bankruptcy; or
(f) is convicted of an indictable offence or sentenced to imprisonment for
an offence; or
(g) becomes a member of the Parliament of this State or any other State of
the Commonwealth or of the Commonwealth or becomes a member of a Legislative
Assembly of a Territory of the Commonwealth; or
(h) becomes, in the opinion of the Governor, mentally or physically
incapable of performing satisfactorily the functions of the position.
33—Functions of community
visitors
(1) Community visitors
have the following functions:
(a) to visit premises to which this Part applies and to inquire into the
following matters:
(i) the appropriateness and standard of the premises for the accommodation
of residents;
(ii) the adequacy of opportunities for inclusion and participation by
residents in the community;
(iii) whether the residential services are being provided in accordance
with the principles and objectives specified in Schedules 1
and 2;
(iv) whether residents are provided with adequate information to enable
them to make informed decisions about their accommodation, care and
activities;
(v) any case of abuse or neglect, or suspected abuse or neglect, of a
resident;
(vi) the use of restrictive interventions and compulsory
treatment;
(vii) any failure to comply with the provisions of this Act;
(viii) any complaint made to a community visitor by a resident, a
guardian, medical agent, relative, carer or friend of a resident, or any other
person providing support to a resident;
(ix) any other matter prescribed by or under this Act or any other
Act;
(b) to refer matters of
concern relating to the organisation or delivery of disability services in South
Australia to the Public Advocate, the Senior Practitioner, the Commissioner or
any other appropriate person or body;
(c) to act as advocates for residents to promote the proper resolution of
issues relating to the care, treatment or control of residents, including issues
raised by a guardian, medical agent, relative, carer or friend of a resident or
any person who is providing support to a resident;
(d) any other functions assigned to community visitors by or under this
Act or any other Act.
(2) A community visitor will, for the purposes of carrying out the
functions of a community visitor, have the authority to enter premises to which
this Part applies at anytime and, while on the premises, to—
(a) meet with a resident; and
(b) inspect the premises or any equipment or other thing on the premises;
and
(c) require any person to produce any documents or records; and
(d) examine any documents or records and take extracts from, or make
copies of, any of them.
34—Visits to premises
(1) A community visitor may visit any premises to which this Part applies
with or without any previous notice at the times and periods that the community
visitor thinks fit.
(2) The Minister may direct a community visitor to visit premises to which
this Part applies at the times that the Minister directs.
(3) If a community
visitor wishes to perform or exercise, or is performing or exercising, any
power, duty or function under this Act, the disability service provider and any
member of the staff or management of the residential service must provide the
community visitor with such reasonable assistance as the community visitor
requires to perform or exercise that power, duty or function
effectively.
(4) A disability service provider or member of the staff or management of
a residential service must—
(a) reasonably render assistance when required to do so under
subsection (3);
and
(b) give full and true answers to the best of that person's knowledge to
any questions asked by a community visitor in the performance or exercise of any
power, duty or function under this Act.
Maximum penalty: $5 000.
35—Requests to see community
visitors
(1) A resident or a
guardian, medical agent, relative, carer or friend of a resident or any person
who is providing support to a resident may make a request to see a community
visitor.
(2) If a request is made under
subsection (1)
to a manager of, or a person in a position of authority at, premises to which
this Part applies that person must advise a community visitor of the request
within 2 days after receipt of the request.
36—Reports by community
visitors
(1) A community visitor must, at least twice a year, submit a report to
the Community Visitors Board on all visits made since the last report.
(2) A community visitor must, at least once a year, submit a report to the
Community Visitors Board containing recommendations that the community visitor
considers should be considered by the Community Visitors Board.
37—Community Visitor Board
(1) The Community Visitors Board is established.
(2) The Community Visitors Board consists of—
(a) the Public Advocate; and
(b) 2 community visitors elected by community visitors in accordance
with the regulations.
(3) The Community Visitors Board has the following functions:
(a) to represent community visitors;
(b) to prepare and distribute information explaining the role of community
visitors;
(c) to develop training programs for community visitors;
(d) to supervise the training of community visitors;
(e) to report a matter to the Public Advocate or the Minister;
(f) to refer a matter under
section 38;
(g) any other function assigned to the Community Visitors Board by or
under this Act or any other Act.
38—Referral by Community Visitors
Board
Without limiting the ability of the Community Visitors Board to refer a
matter to any other person, the Community Visitors Board may refer a matter
reported by a community visitor to whichever of the following the Community
Visitors Board considers is the appropriate person to deal with that
matter—
(a) the Minister;
(b) the Commissioner;
(c) the Senior Practitioner;
(d) the Ombudsman.
39—Annual report
(1) The Public
Advocate must, on or before 30 September in every year, forward a report to
the Minister on the work of the community visitors during the financial year
ending on the preceding 30 June.
(2) The Minister must, within 6 sitting days after receiving a report
under
subsection (1),
have copies of the report laid before both Houses of Parliament.
(3) The Public Advocate may, at any time, prepare a special report to the
Minister on any matter arising out of the performance of the community visitors'
functions.
(4) Subject to
subsection (5),
the Minister must, within 2 weeks after receiving a special report, have
copies of the report laid before both Houses of Parliament.
(5) If the Minister
cannot comply with
subsection (4)
because Parliament is not sitting, the Minister must deliver copies of the
report to the President and the Speaker and the President and the Speaker must
then—
(a) immediately
cause the report to be published; and
(b) lay the report before their respective Houses at the earliest
opportunity.
(6) A report will, when published under
subsection (5)(a),
be taken for the purposes of any other Act or law to be a report of the
Parliament published under the authority of the Legislative Council and the
House of Assembly.
Part 6—Complaints
Division 1—Making a
complaint
40—Who may complain
A complaint about a disability service used, received by or sought by a
person (a disability service user) may be made to the Commissioner
by—
(a) the disability service user; or
(b) if the disability service user is a child—
(i) the child; or
(ii) if the child has attained the age of 16 years—a person
appointed by the child to make the complaint on the child's behalf; or
(iii) if the child has not attained the age of 16 years—a
parent or guardian of the child; or
(c) the donee of a power of attorney from the disability service user or
an enduring guardian of the disability service user; or
(d) a person who is acting on behalf of the disability service user under
another law or an order of a court; or
(e) a Member of Parliament; or
(f) if the Commissioner is satisfied that it is unreasonable to expect the
disability service user to make a complaint personally—a person approved
by the Commissioner to act on behalf of the user; or
(g) a disability service provider if the complaint is made on the ground
that the service is or has been provided or is or was necessary because of the
actions of another disability service provider; or
(h) if the disability service user has died—a person who can
demonstrate to the Commissioner that he or she had an enduring relationship with
the deceased person, or a personal representative of the deceased person;
or
(i) the Minister; or
(j) the Chief Executive of the Department; or
(k) any other person, or any body, that, in the opinion of the
Commissioner, should be able to make a particular complaint in the public
interest.
41—Grounds on which a complaint may be
made
(1) A complaint may
be made (and may only be made under this Act) on one or more of the following
grounds:
(a) that a disability service provider has acted unreasonably by not
providing a disability service, or by discontinuing (or proposing to
discontinue) a disability service provided to a particular person;
(b) that the provision of a disability service or of part of a disability
service was not necessary or was inappropriate;
(c) that a disability service provider has acted unreasonably in the
manner of providing a disability service;
(d) that a disability service provider has failed to exercise due
skill;
(e) that a disability service provider has failed to treat a disability
service user in an appropriate professional manner;
(f) that a disability service provider has failed to respect a disability
service user's privacy or dignity;
(g) that a disability service provider has acted unreasonably by failing
to provide a disability service user—
(i) with sufficient information, in language and terms understandable to
the user, on the service in order to enable the user to make an informed
decision; or
(ii) with a reasonable opportunity to make an informed choice of the
services available; or
(iii) with adequate information on the availability of relevant education
programs (if any); or
(iv) with adequate information on the services received;
(h) that a disability service provider has acted unreasonably by denying a
disability service user access to, or restricting the user's reasonable access
to, records relating to the user that were in the provider's
possession;
(i) that a
disability service provider has acted unreasonably in disclosing information in
relation to a disability service user to a third person;
(j) that a disability service provider has acted unreasonably by not
taking proper action in relation to a complaint made to him or her by the user
about a provider's action of a kind referred to in this section;
(k) that a disability service provider has acted in any other manner that
is inconsistent with the principles and objectives in Schedules 1
and 2;
(l) that a disability service provider has acted in any other manner that
did not conform with the generally accepted standard of service delivery
expected of a provider of the kind of service to which the complaint
relates.
(2) Nothing in
subsection (1)
requires a disability service provider to act, or to provide advice or
information with respect to a matter, outside the field of expertise associated
with the provider's profession or occupational group.
(3) For the purposes of
subsection (1),
information appropriately provided to a person lawfully acting on behalf of a
disability service user at the time the information is provided will be taken to
have been appropriately provided to the disability service user.
(4)
Subsection (1)(i)
does not apply in relation to the disclosure of information to—
(a) a legal practitioner in connection with a related legal matter;
or
(b) an insurer who has an appropriate interest in the information;
or
(c) any other person of a prescribed class.
(5) If a complaint relates to an act or omission of a volunteer while
working for another person or body, the complaint will be taken to be a
complaint against the other person or body (as the case may be) and the
volunteer cannot be required to participate in any proceedings under this Act
and in particular cannot be the subject of the exercise of any power under
section 33(1)(b).
42—Form of complaint
(1) A complaint is to be made in a manner approved or determined by the
Commissioner.
(2) A person must,
in making a complaint, disclose to the Commissioner, to the best of the person's
abilities, all grounds of complaint on which he or she intends to
rely.
43—Time within which a complaint may be
made
(1) Subject to
subsection (2),
a complaint must be made within 6 months from the day on which the
complainant first had notice of the circumstances giving rise to the
complaint.
(2) The
Commissioner may extend the period under
subsection (1)
in a particular case if satisfied that it is appropriate to do so after taking
into account any of the following matters:
(a) whether a proper investigation of the complaint should still be
possible;
(b) whether the complaint should still be amenable to resolution under the
provisions of this Act;
(c) whether it would be in the public interest to entertain the
complaint;
(d) any other matter considered relevant by the Commissioner.
(3) For the purposes of
subsection (1),
a complainant will be presumed to have notice of the circumstances giving rise
to the complaint at the time he or she might reasonably be expected to have had
such notice.
44—Further information may be
required
(1) The
Commissioner may, at any time, require a complainant—
(a) to provide further information or documents;
(b) to verify all or any part of the complaint by statutory
declaration.
(2) When making a
requirement under
subsection (1),
the Commissioner must specify a reasonable period within which the requirement
is to be satisfied.
(3) The Commissioner may extend the period specified under
subsection (2)
(whether before or after its expiry).
Division 2—Assessment
45—Assessment
(1) The
Commissioner must assess a complaint and make a determination in accordance with
this section within 45 days after receiving it (or within such longer
period as may be necessary in view of any delays that have occurred while the
Commissioner or another person takes steps required by or under this Act, or
while the Commissioner is undertaking a preliminary inquiry under
section 46).
(2) Subject to this
Act, the Commissioner may—
(a) refer the complaint to a conciliator under
Division 5; or
(b) investigate the complaint under
Part 7; or
(c) if of the opinion that the complaint relates to a matter that falls
within the functions conferred on another person or body and that it is
appropriate in the circumstances to make a referral under this provision, refer
the complaint to the other person or body; or
(d) determine to take no further action on the complaint.
(3) If a complaint is against or directly involves an approved provider
under the Aged Care Act 1997 of the Commonwealth—
(a) the Commissioner must consult with the relevant complaints resolution
bodies under that Act about the management of the complaint; and
(b) the Commissioner may refer the complaint to another authority for
investigation or resolution under that Act; and
(c) the Commissioner may provide information and assistance to another
authority concerned with the investigation or resolution of the complaint under
that Act.
(4) The Commissioner must not refer a complaint to a conciliator if the
complaint appears to the Commissioner to indicate—
(a) the existence of a significant issue of public safety, interest or
importance; or
(b) a significant question as to the practice of a disability service
provider.
(5) A complaint should not proceed under this Act if it appears to the
Commissioner that the complainant has failed, without good reason, to take
reasonable steps to resolve the matter with the relevant disability service
provider before making the complaint.
(6) Within 14 days after making a determination under
subsection (1),
the Commissioner must provide written notice of the
determination—
(a) to the complainant; and
(b) except where the Commissioner has determined to dismiss the complaint,
to the disability service provider.
(7) In
subsection (1),
complaint includes a complaint that has been referred, or referred
back to the Commissioner, by the State Ombudsman or other person or body
referred to in
subsection (2).
46—Preliminary inquiries
(1) The Commissioner may, in such manner as the Commissioner thinks fit,
undertake a preliminary inquiry in connection with making a determination under
section 45.
(2) For the
purposes of an inquiry, the Commissioner may require a disability service
provider to provide information, or any response or explanation, about any
matter relevant to the inquiry.
(3) The
Commissioner must specify a reasonable period within which a health and
community service provider is to comply with a requirement under
subsection (2).
(4) The Commissioner may extend the period specified under
subsection (3)
(whether before or after its expiry).
(5) A disability service provider must comply with a requirement under
subsection (2).
Maximum penalty: $10 000.
(6) However, a person is not obliged to comply with a requirement under
subsection (2)
if to do so might tend to incriminate the person or make the person liable to a
criminal penalty.
(7) During the conduct of a preliminary inquiry, the Commissioner may
assist the parties towards resolution of the complaint through informal
mediation.
(8) Informal mediation should not occur if the complaint appears to the
Commissioner to indicate—
(a) the existence of a significant issue of public safety, interest or
importance; or
(b) a significant question as to the practice of a disability service
provider.
(9) Informal mediation will occur in such manner, and subject to such
conditions, as the Commissioner thinks fit.
(10) Anything said or done during an informal mediation, other than
something that reveals a significant issue of public safety, interest or
importance, is not to be disclosed in any other proceedings (whether under this
or any other Act or law) except by consent of the parties.
(11) An informal mediation must be brought to an end—
(a) if the informal mediation reveals, in the opinion of the
Commissioner—
(i) a significant issue of public safety, interest or importance;
or
(ii) a significant question as to the practice of a disability service
provider; or
(b) at the request of a party to the informal mediation.
(12) The Commissioner may bring an informal mediation to an end at any
time.
(13) For the purposes of conducting any inquiry or informal mediation
under this section, the Commissioner may obtain the assistance of a professional
mentor.
(14) The Commissioner may discuss any matter relevant to making a
determination under
section 45 or with
respect to the operation of this section with a professional mentor.
47—Provision of documents etc on referral of
complaint
(1) If the
Commissioner has referred a complaint to another person or body under this Part,
the Commissioner may give to the other person or body all documents and
information in the possession of the Commissioner that relate to the
complaint.
(2) The Commissioner may—
(a) make and retain a record of information referred to in
subsection (1);
and
(b) make copies of, or take extracts from, a document referred to in
subsection (1)
and retain those copies or extracts.
48—Splitting or joining of
complaints
(1) If it is
administratively or otherwise appropriate to do so, the Commissioner may
determine that a complaint that—
(a) deals with more than one subject matter; or
(b) deals with more than one set of circumstances; or
(c) makes allegations against more than one disability service provider;
or
(d) makes more than one allegation against a disability service provider;
or
(e) for any other reason is susceptible to being dealt with in separate
parts,
be treated as 2 or more complaints for the purposes of this
Act.
(2) If it is
administratively or otherwise appropriate to do so, the Commissioner may
determine that 2 or more complaints that—
(a) deal with the same subject matter; or
(b) deal with the same set of circumstances; or
(c) make allegations against the same disability service provider;
or
(d) for any other reasons are susceptible to amalgamation,
be treated as 1 complaint for the purposes of this Act.
(3) The Commissioner may give such directions or make such incidental
determinations as the Commissioner thinks necessary or convenient in view of a
determination under
subsection (1)
or
(2).
(4) A determination or direction of the Commissioner will have effect
according to its terms.
(5) The Commissioner must not make a determination under
subsection (1)
or
(2) if it appears to
the Commissioner that any attempt at resolution or conciliation is likely to be
prejudiced by the making of the determination.
Division 3—No further action on
complaint
49—No further action on
complaint
(1) The
Commissioner may at any stage of proceedings under this Act determine to take no
further action on a complaint, or to suspend action on a complaint, if the
Commissioner considers or is satisfied that—
(a) the complainant is not entitled to make the complaint under this Act;
or
(b) the complaint does not disclose a ground of complaint under this Act;
or
(c) the matter should be determined by way of legal proceedings;
or
(d) proceedings that relate to the subject matter of the complaint have
been commenced before a tribunal, authority or other person or body;
or
(e) the complainant has been given reasonable explanations or information
and there would be no benefit in further entertaining the complaint;
or
(f) the complainant is seeking to act on a ground that should have been
disclosed by the complainant at an earlier time in accordance with the
requirements of
section 42(2);
or
(g) the complaint lacks substance, is unnecessary or unjustifiable, or is
frivolous, vexatious or not made in good faith; or
(h) the complainant has failed, without good reason, to comply with a
requirement under this Act within a reasonable time, or to take a reasonable
step in connection with making the complaint or proceeding with the complaint
under this Act; or
(i) the commencement or continuance of proceedings on the complaint would
otherwise be an abuse of the processes under this Act; or
(j) the complaint has been resolved or abandoned; or
(k) there is some other reasonable cause that justifies the discontinuance
or suspension of proceedings under this Act,
(and such a determination will have effect according to its
terms).
(2) The
Commissioner must take no further action on a complaint if the Commissioner is
satisfied that all issues arising out of the subject matter of the complaint
have been adjudicated by a court, tribunal, authority or other person or body
acting under a law of the State, another State, a Territory or the
Commonwealth.
(3) The
Commissioner must suspend action on a complaint if the Commissioner is
satisfied—
(a) that proceedings that relate to the subject matter of the complaint
have been commenced before the court; or
(b) that an inquest that relates to the subject matter of the complaint
has been commenced by a coroner.
(4) The Commissioner must, in a case where
subsection (1),
(2) or
(3) applies, give
written notice relating to the matter—
(a) to the complainant; and
(b) except where notice of the complaint has not been given to the
disability service provider, to the disability service provider.
(5) The Commissioner may recommence action on a suspended complaint for
any reasonable cause by giving written notice—
(a) to the complainant; and
(b) to the disability service provider.
Division 4—Miscellaneous
50—Withdrawal of complaint
(1) A complainant
may withdraw a complaint at any time by written notice to the
Commissioner.
(2) If a complaint is withdrawn—
(a) any investigation under this Act in relation to the matter will cease
unless the Commissioner has determined to conduct or continue an investigation
under
section 59(1)(c);
and
(b) the Commissioner must—
(i) if the disability service provider has been notified of the receipt of
the complaint—notify that provider of the withdrawal within 14 days;
and
(ii) if the Commissioner has determined to conduct or continue an
investigation under
section 59(1)(c)—advise
the disability service provider about the effect of the determination despite
the withdrawal of the complaint.
(3) If the Commissioner has referred a complaint to another person or body
under this Act, the withdrawal of that complaint under
subsection (1)
does not affect the performance and exercise by the person or body of his, her
or its functions and powers in respect of the matters raised by or in the
complaint.
Division 5—Conciliation of
complaints
51—Function of conciliator
(1) The function of a conciliator is to encourage the settlement of a
complaint by—
(a) arranging discussions or negotiations between the complainant and the
disability service provider;
(b) assisting in the conduct of those discussions or
negotiations;
(c) assisting the complainant and the disability service provider to reach
agreement;
(d) assisting in the resolution of the complaint in any other
way.
(2) A conciliator may, if the conciliator thinks it appropriate to do so,
undertake a conciliation without bringing the parties together.
52—Public interest
(1) Before the
conciliation of a complaint begins, the Commissioner must identify and inform
the conciliator about any issue raised by the complaint that the Commissioner
considers involves the public interest.
(2) At the start of the conciliation, the conciliator must draw any issues
involving the public interest of which he or she has been informed under
subsection (1)
to the attention of the complainant and the disability service
provider.
(3) In the course of the conciliation, the conciliator must (at an
appropriate time) draw to the attention of the parties any issues involving the
public interest that the conciliator considers are raised by the
complaint.
(4) The conciliator must report to the Commissioner any issue involving
the public interest that the conciliator considers is raised by the complaint
(other than an issue identified under
subsection (1)).
(5) The Commissioner may, with respect to any issue that the Commissioner
considers involves the public interest, consult with any other person or body
despite the fact that a conciliation may be proceeding.
53—Assistance at conciliation
(1) A party to a conciliation may be assisted by another person.
(2) However, a party cannot be assisted by a particular person if the
conciliator has directed that that person not be allowed to act in the
particular matter.
(3) A party in a conciliation process may not be represented by another
person except where the Commissioner is satisfied that such representation is
likely to assist substantially in resolving the complaint.
54—Reports from conciliator
(1) Without limiting
subsection (2),
a conciliator must provide to the Commissioner a written report of the progress
of a conciliation when requested to do so by the Commissioner.
(2) A conciliator
must provide to the Commissioner a written report of the results of a
conciliation when the conciliator is satisfied—
(a) that the complainant and the disability service provider have reached
agreement on all issues raised by a complaint on which the conciliator considers
agreement to be possible; or
(b) that an agreement between the complainant and disability service
provider is not possible, or is not possible to reach within a reasonable period
of time.
55—Conciliation may be brought to an
end
(1) A conciliator may end a conciliation for any reasonable cause at any
reasonable time.
(2) A conciliation must be brought to an end at the direction of the
Commissioner.
(3) A conciliation must be brought to an end if the conciliation reveals,
in the opinion of the conciliator or the Commissioner—
(a) the existence of a significant issue of public safety, interest or
importance; or
(b) a significant question as to the practice of a disability service
provider.
(4) A conciliation must be brought to an end at the request of a party to
the conciliation.
(5) If a conciliation is brought to an end without resolution of all
relevant matters, the Commissioner may—
(a) refer the complaint to another conciliator; or
(b) investigate the complaint under Part 6; or
(c) deal with the complaint under Part 7; or
(d) refer the complaint to another person or body; or
(e) decide to take no further action on the complaint.
56—Privilege and
confidentiality
(1) Anything said or done during conciliation under this Part, other than
something that reveals a significant issue of public safety, interest or
importance, is not to be disclosed in any other proceedings (whether under this
or any other Act or law) except by consent of all parties to the
conciliation.
(2) Except where a disclosure is authorised under this Part, a conciliator
must not disclose information gained during conciliation—
(a) in any further conciliation; or
(b) to any person appointed, employed or engaged for the purposes of this
Act.
Maximum penalty: $5 000.
57—Professional mentor
(1) The Commissioner may appoint a professional mentor to be available to
advise a conciliator in the performance of his or her functions.
(2) A conciliator may discuss any matter arising in relation to the
performance of his or her functions with a professional mentor.
(3) A professional mentor must not disclose to a third person (other than
the Commissioner) information that was gained by a conciliator during
conciliation and communicated by the conciliator to the professional
mentor.
Maximum penalty: $5 000.
58—Enforceable agreements
(1) Any agreement
reached between a complainant and a disability service provider in the course of
the conciliation process may be made in a binding form.
(2) However, an agreement is not binding unless it is—
(a) in writing; and
(b) entered into within 14 days after the verbal agreement is reached
in the course of the conciliation.
(3)
Subsection (1)
does not affect the effectiveness of any agreement reached outside the
conciliation process.
(4) A conciliator must not be a party to any agreement between a
complainant and a disability service provider relating to a matter that has been
dealt with in a process of conciliation.
Part 7—Investigations
Division 1—Application of
Part
59—Matters that may be
investigated
(1) The
Commissioner may investigate—
(a) any matter specified in a written direction given by the Minister;
and
(b) a complaint
that the Commissioner has determined to investigate under this Act;
and
(c) an issue or
question arising from a complaint if it appears to the
Commissioner—
(i) to be a significant issue of public safety, interest or importance;
or
(ii) to be a significant question as to the practice of a disability
service provider; and
(d) on his or her own motion, any other matter relating to the provision
of disability services in South Australia.
(2) An
investigation under
subsection (1)(c)
may be carried out whether or not—
(a) the process of assessment of the relevant complaint has been
completed; or
(b) any process of conciliation of the relevant complaint has been
completed; or
(c) the relevant complaint has been withdrawn; or
(d) the Commissioner has decided not to take action (or further action) on
the relevant complaint.
(3) Despite
subsection (2),
an investigation referred to in
subsection (1)(c)
should not be carried out to the extent that it interferes with a process of
conciliation.
(4) The Commissioner is not required to cease an investigation referred to
in
subsection (1)(b)
or
(c) only because the
relevant complaint has been resolved.
(5) Without limiting the operation of a preceding subsection, an
investigation under
subsection (1)(c)
may be carried out on the basis of fresh evidence that comes to the attention of
the Commissioner following the completion of a particular
investigation.
60—Limitation of powers
The powers conferred by this Part may be exercised only for purposes of an
investigation.
Division 2—Conduct of
investigations
61—Conduct of investigation
(1) An investigation is to be conducted in such manner as the Commissioner
considers appropriate.
(2) The Commissioner may, in conducting an investigation under this Part,
obtain expert advice, or any other advice or support, in order to assist the
Commissioner in the investigation.
(3) The
Commissioner may, at any time, decide to attempt to deal with a complaint by
conciliation.
(4) The Commissioner may, in attempting conciliation under
subsection (3),
act personally or through a member of his or her staff.
(5) The Commissioner may, if satisfied that the subject of a complaint has
been properly resolved by conciliation under
subsection (3),
determine that the complaint should not be further investigated under this
Part.
(6) Anything said or done during conciliation under
subsection (3),
other than something that reveals a significant issue of public safety, interest
or importance, is not to be disclosed in any other proceedings (whether under
this or any other Act or law) except by consent of all parties to the
conciliation.
62—Representation
(1) Subject to
subsection (2),
a person required to appear or to produce documents under this Part may be
assisted or represented by another person.
(2) The
Commissioner may determine whether any person involved in proceedings under this
Part may have legal or other representation during the conduct of an
investigation or proceedings relating to an investigation.
(3) The Commissioner must, in making any determination under
subsection (2),
to such extent as is reasonably practicable, have regard to the need to ensure
that representation is balanced between the parties and that any determination
is fair to all persons who are involved in proceedings under this
Part.
63—Use and obtaining of
information
(1) If the Commissioner has obtained a document or information under or in
connection with the operation of this Act, the Commissioner may use that
document or information for the purposes of this Part.
(2) If the
Commissioner has reason to believe that a person is capable of providing
information or producing a document relevant to an investigation, the
Commissioner may, by notice in writing provided to the person, require the
person to do one or more of the following:
(a) to provide that information to the Commissioner in writing signed by
that person or, in the case of a body corporate, by an officer of the body
corporate;
(b) to produce that document to the Commissioner;
(c) to attend before a person specified in the notice and answer questions
or produce documents relevant to the investigation.
(3) A notice under
subsection (2)
is to specify the period within which, or the time, day and place at which, the
person is required to provide the information or document, or to
attend.
(4) A notice under
subsection (2)
must provide a period of time for compliance with a requirement under that
subsection that has been determined by the Commissioner to be reasonable in the
circumstances.
(5) A person must comply with a requirement under
subsection (2).
Maximum penalty: $5 000.
(6) If a document is produced in accordance with a requirement under this
section, the Commissioner or other appropriate person may take possession of,
make copies of, or take extracts from, the document.
64—Power to examine witnesses
etc
(1) The Commissioner, or a person who is to receive information under
section 63(2),
may administer an oath or affirmation to a person required to attend before him
or her under this Part and may examine the person on oath or
affirmation.
(2) The
Commissioner may require a person to verify by statutory
declaration—
(a) any information or document produced under this Part; or
(b) a statement that the person has no relevant information or documents
or no further relevant information or documents.
(3) A person must comply with a requirement under
subsection (2).
Maximum penalty: $5 000.
65—Search powers and warrants
(1) On the application of the Commissioner, a magistrate may issue a
warrant if the magistrate is satisfied that there are reasonable
grounds—
(a) for believing that entry and inspection of premises are necessary to
enable the Commissioner to carry out an investigation under this Part;
or
(b) for suspecting that there may be on premises a document or other thing
relevant to a matter the Commissioner is investigating under this
Part.
(2) A warrant authorises a person named in the warrant, and any person
assisting that person, with such force as is necessary—
(a) to enter and remain in the premises specified in the warrant;
and
(b) to search those premises and any person or thing in those premises;
and
(c) to break open and search anything in those premises in which any
document or other thing relevant to the investigation may be contained;
and
(d) to take photographs; and
(e) to seize and remove anything in those premises which that person has
reasonable grounds for believing is relevant to the investigation; and
(f) to examine, seize and remove, make copies of, or take extracts from,
any document in those premises which that person has reasonable grounds for
believing is relevant to the investigation; and
(g) to require a disability service provider or any other person employed
in those premises to provide information by answering questions which that
person considers relevant to the investigation.
(3) A warrant must—
(a) be in a prescribed form; and
(b) specify the premises in respect of which it is made.
(4) A warrant has effect for a period of 30 days after the day on
which it is issued.
66—Reimbursement of expenses
A person required to attend before the Commissioner or another person under
this Part is entitled to be paid the expenses and allowances that the
Commissioner may allow.
67—Reference to another authority for
investigation
(1) If the
Commissioner considers that a matter raised by, or during the course of, an
investigation should be investigated by the State Ombudsman, a registration
authority or another person or body that has functions under any law of South
Australia, another State, a Territory or the Commonwealth, the Commissioner may
refer the matter to the State Ombudsman, registration authority or other person
or body (as the case requires) for investigation.
(2) The Commissioner must not refer a matter to a registration authority
without first consulting that authority.
(3) The Commissioner's powers to investigate a matter are not affected by
the matter having been referred for investigation under
subsection (1).
68—Possession of document or other seized
item
(1) If the Commissioner or another person has taken possession of or
seized a document or other thing under this Part, the Commissioner may retain
possession of the document or other thing for such period as may be necessary
for the purposes of an investigation.
(2) If the Commissioner or another person has taken possession of a
document, the Commissioner must—
(a) provide the person from whom it was taken with a copy of the document
as soon as practicable after it was taken; and
(b) allow a person who would be entitled to inspect the document if it
were not in the possession of the Commissioner to inspect, make a copy of, or
take an extract from, it at any reasonable time.
Division 3—Privilege
69—Privilege
(1) A person is not obliged to answer a question or to provide or produce,
or provide a copy of, any information or document under this Part if to do so
might tend to incriminate the person or make the person liable to a criminal
penalty.
(2) A person is not obliged to provide information that is privileged on
the ground of legal professional privilege.
Division 4—Action on
investigation
70—Reports
(1) The Commissioner—
(a) may prepare a report of his or her findings and conclusions at any
time during an investigation; and
(b) must prepare such a report at the conclusion of an
investigation.
(2) The Commissioner may provide copies of a report to such persons as the
Commissioner thinks fit.
(3) A report may contain information, comments, opinions and
recommendations for action.
(4) No action lies against the Commissioner in respect of the contents of
a report under this section.
(5) The
Commissioner may require a State Government agency to, in connection with any
recommendations contained in a report under this section, outline to the
Commissioner what action (if any) the agency has taken, or intends to take, in
response to the recommendations made in the report.
71—Notice of action to
providers
(1) If, after
investigating a complaint, the Commissioner decides that the complaint is
justified but appears to be incapable of being resolved, the Commissioner
may—
(a) provide to the disability service provider a notice of recommended
action; and
(b) advise the complainant of the provision of the notice.
(2) A notice must set out—
(a) the particulars of the complaint; and
(b) the reasons for making the decision referred to in
subsection (1);
and
(c) any action that the Commissioner considers the disability service
provider should take in order to remedy each unresolved grievance disclosed by
the complaint.
(3) If the service provider is a registered service provider, the
Commissioner must provide a copy of the notice to the relevant registration
authority.
(4) The
Commissioner may require the service provider to, in connection with the
provision of a notice under
subsection (1),
outline to the Commissioner what action (if any) the service provider has taken,
or intends to take, in response to the matters raised in the notice.
(5) The Commissioner
must allow the service provider and, if relevant, a registration authority, at
least 28 days to make representations in relation to the matter and, in the
case of the service provider, to comply with a requirement under
subsection (4).
(6) After receipt
of representations under
subsection (4),
or after the expiration of the period allowed under
subsection (5), the
Commissioner may publish a report or reports in relation to the matter in such
manner as the Commissioner thinks fit.
(7) The Commissioner must, before publishing a report under
subsection (6),
provide a copy of the report to the relevant disability service provider and
then allow the service provider at least 14 days to make representations in
relation to the content of the report.
(8) A report under this section may include such material, comments,
commentary, opinions or recommendations as the Commissioner considers
appropriate.
(9) The Commissioner may provide copies of a report to such persons as the
Commissioner thinks fit.
(10) The Commissioner must provide a copy of a report to any complainant
and service provider that has been a party to the relevant
proceedings.
(11) No action lies against the Commissioner in respect of the contents of
any document published by the Commissioner under this section.
72—Right of appeal
(1) A disability service provider who is named in a report published by
the Commissioner under this Division may appeal to the Administrative and
Disciplinary Division of the District Court (the Court) against
any aspect of the procedures of the Commissioner relating to the preparation of
that report that is not procedurally fair.
(2) An appeal must be made within 14 days after the service provider
receives a copy of the relevant report from the Commissioner.
(3) The Court may, on an appeal—
(a) determine that the report should stand; or
(b) remit the matter to the Commissioner for further consideration in
accordance with any directions of the Court; or
(c) direct the Commissioner to take steps specified by the Court (which
may include the publication of a new or revised report or other statements or
materials).
Part 8—Restrictive
interventions
73—Purpose of Part
The purpose of this Part is to protect the rights of persons with a
disability who are subject to restrictive interventions by ensuring that
restrictive interventions are only used if the requirements imposed by this Part
are complied with.
74—Use of restrictive
interventions
A disability service provider must not use a restrictive intervention
unless there is an approval in force under
section 75.
Maximum penalty: $10 000.
75—Approval to use restrictive
interventions
(1) A disability service provider who proposes to use restrictive
interventions in the provision of a disability service must apply to the
Minister for approval.
(2) An application for approval must include—
(a) the prescribed details; and
(b) a request for approval of the title and rank of any position and the
name of the holder of the position to be appointed as an Authorised Program
Officer for the disability service provider.
(3) The Minister may grant an application for approval subject to any
conditions that the Minister considers appropriate.
(4) In the case of a disability service in respect of which the disability
service provider is the Minister, the Minister—
(a) is to be taken to be approved to use restrictive interventions;
and
(b) must ensure that an Authorised Program Officer is appointed for the
disability service; and
(c) must approve the title and rank of any position and the name of the
holder of the position to be appointed as the Authorised Program
Officer.
76—Revocation of approval
(1) The Minister may
revoke the approval of a disability service provider to use restrictive
interventions if the Minister considers it appropriate to do so.
(2) For the purposes of
subsection (1), the
Minister may have regard to the following:
(a) that the registration of the disability service provider has been
revoked;
(b) that the disability service provider has failed to comply with
requirements under this Act;
(c) any other circumstances that the Minister considers
relevant.
77—Notice of refusal or
revocation
(1) The Minister must
not refuse an application under
section 75 or revoke the
approval of a disability service provider to use restrictive interventions under
section 76(1) unless
the Minister has given a notice in writing to the disability service provider in
accordance with
subsection (2) and
has considered any submission made by the disability service provider.
(2) A notice under
subsection (1) must
specify—
(a) the proposed decision and the reasons for the proposed decision;
and
(b) that the disability service provider may make a written submission in
response to the notice within 14 days of the notice being given.
78—Application for review
(1) A disability service provider may apply to the Administrative and
Disciplinary Division of the District Court for a review of a decision by the
Minister—
(a) to refuse an application under
section 75; or
(b) to revoke the approval of a disability service provider to use
restrictive interventions under
section 76(1).
(2) An application for review must be made within 28 days after the
day on which the decision is made.
79—Authorised program officers
(1) An Authorised Program Officer must ensure that any restrictive
intervention used in the provision of a disability service for which the
Authorised Program Officer is responsible is administered in accordance with
this Part.
(2) A disability service provider must advise the 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.
Maximum penalty: $5 000.
(3) The Senior Practitioner must keep a register of the name and
qualifications of each Authorised Program Officer.
80—Use of restraint, seclusion and
segregation
Unless
section 86
applies, restraint, seclusion or segregation can only be used—
(a) if the use of
restraint or seclusion is necessary—
(i) to prevent the person from causing 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 to themselves or any other person; and
(b) if the use and form
of restraint, seclusion or segregation is the option which is the least
restrictive of the person as is possible in the circumstances; and
(c) if the use and form of restraint, seclusion or
segregation—
(i) is included in the person's behaviour support plan; and
(ii) is in accordance with the person's behaviour support plan;
and
(iii) is only applied for the period of time that has been authorised by
the Authorised Program Officer; and
(d) if seclusion is to be used—
(i) the person is supplied with bedding and clothing which is appropriate
in the circumstances; and
(ii) the person has access to adequate heating or cooling as is
appropriate in the circumstances; and
(iii) the person is provided with food and drink at the appropriate times;
and
(iv) the person is provided with adequate toilet arrangements;
and
(e) if any other requirements imposed by the Senior Practitioner are
complied with.
81—Use of restraint and seclusion must be included
in behaviour support plan
(1) This section applies if a disability service provider providing a
disability service to a person with a disability—
(a) is satisfied that the criteria specified in
sections 80(a) and
80(b) apply;
and
(b) proposes to use restraint, seclusion or segregation on the person with
a disability.
(2) The disability service provider must develop a behaviour support plan
for the person with a disability that includes provisions which—
(a) state the circumstances in which the proposed form of restraint,
seclusion or segregation is to be used for behaviour management;
(b) explain how the use of restraint, seclusion or segregation will be of
benefit to the person;
(c) demonstrate that the use of restraint, seclusion or segregation is the
option which is the least restrictive of the person as is possible in the
circumstances.
(3) In preparing the behaviour support plan, the disability service
provider must consult with—
(a) the person with a disability to whom the plan relates; and
(b) if the person with a disability has a guardian—the guardian;
and
(c) if other disability service providers provide disability services to
the person with a disability—a representative of each disability service
provider; and
(d) any other person that the disability service provider considers
integral to the development of the behaviour support plan.
82—Review of behaviour support plan by disability
service provider
(1) A behaviour support plan prepared under
section 81 must be
reviewed by the disability service provider at intervals of not more
than—
(a) 12 months; or
(b) if the Authorised Program Officer or the Senior Practitioner specify a
shorter period—that shorter period.
(2) A person with a disability may at any time request the disability
service provider to review the behaviour support plan prepared under
section 81.
(3) In reviewing the behaviour support plan, the disability service
provider must consult with—
(a) the person with a disability to whom the plan relates; and
(b) if the person with a disability has a guardian—the guardian;
and
(c) if other disability service providers provide disability services to
the person with a disability—a representative of each disability service
provider; and
(d) any other person that the disability service provider considers
integral to the development of the behaviour support plan.
83—Independent person
(1) An Authorised Program Officer must ensure that an independent person
is available to explain to a person with a disability—
(a) the inclusion of the proposed use of restraint, seclusion or
segregation in the person's proposed behaviour support plan; and
(b) that the person with a disability can seek a review of the decision to
include the proposed use of restraint, seclusion or segregation in the person's
proposed behaviour support plan if the person wants to do so; and
(c) if the person is currently subject to a behaviour support
plan—how the proposed behaviour support plan is different to the current
plan; and
(d) in the case of a review of the behaviour support plan by the
disability service provider—any matter related to the inclusion of
restraint, seclusion or segregation in the behaviour support plan.
(2) If the independent
person considers that—
(a) a person with a disability is not able to understand the inclusion of
the use of restraint, seclusion or segregation in the person's behaviour support
plan; and
(b) the requirements of this Part are not being complied with;
the independent person may report the matter to the Public
Advocate.
(3) An independent person assisting a person with a disability must
not—
(a) be a disability service provider or a representative of a disability
service provider; or
(b) have any interest (whether direct or indirect) in a disability service
provider which is providing, or has provided, disability services to the person
with a disability.
(4) If a person with a disability advises the disability service provider
or the Authorised Program Officer that he or she does not consider that the
person assisting him or her is an independent person, the Authorised Program
Officer must arrange for an independent person to assist the person with a
disability.
84—Powers of Public Advocate
After considering a report received under
section 83(2), the
Public Advocate may refer the matter to the Senior Practitioner or the
Commissioner.
85—Requirements for the use of restraint and
seclusion
(1) Before any
restraint, seclusion or segregation can be used on a person with a disability,
the inclusion of the use of restraint, seclusion or segregation in the behaviour
support plan prepared under
section 81 or reviewed
under
section 82 must
be approved by the Authorised Program Officer.
(2) The Authorised Program Officer must not approve the inclusion of the
proposed use of restraint, seclusion or segregation in the behaviour support
plan unless the Authorised Program Officer is satisfied that the behaviour
support plan has been prepared or reviewed in accordance with this
Act.
(3) If the Authorised Program Officer has approved the inclusion of the
proposed use of restraint, seclusion or segregation in the behaviour support
plan under
subsection (1), the
disability service provider must at least 2 days before the proposed use of
restraint, seclusion or segregation notify in writing the person with a
disability—
(a) that the Authorised Program Officer has approved the inclusion of the
proposed use of restraint, seclusion or segregation in the person's behaviour
support plan; and
(b) that the person with a disability has a right to apply to the Senior
Practitioner for a review of the decision to include the use of restraint,
seclusion or segregation in the person's behaviour support plan.
(4) The Authorised Program Officer must within 2 working days of
approving the inclusion of restraint, seclusion or segregation in the behaviour
support plan under
subsection (1)
provide to the Senior Practitioner—
(a) a copy of the behaviour support plan; and
(b) the name and details of the independent person who assisted the person
with a disability.
86—Use of restraint, seclusion or segregation in an
emergency
(1) This section applies if—
(a) a person with a disability does not have a behaviour support plan
approved by an Authorised Program Officer which provides for the use of
restraint, seclusion or segregation; and
(b) an approved disability service provider is of the opinion that there
is an emergency because—
(i) there is an imminent risk of a person with a disability causing
serious physical harm to themselves or any other person; and
(ii) it is necessary to use restraint, seclusion or segregation to prevent
that risk.
(2) If this section applies, the approved disability service provider may
use restraint, seclusion or segregation on the person with a disability
if—
(a) the use and form of restraint, seclusion or segregation is the option
which is the least restrictive of the person as is possible in the
circumstances; and
(b) the use of restraint, seclusion or segregation is authorised by the
person in charge of the disability service; and
(c) the Authorised Program Officer is notified immediately of the use of
restraint, seclusion or segregation.
(3) The Authorised
Program Officer must within 7 days after the end of each month prepare and
send to the Senior Practitioner a report in respect of the use of restraint,
seclusion or segregation in an emergency to which this section applies in
accordance with
subsection (4).
(4) A report under
subsection (3) must
specify the following in relation to each month—
(a) the form of restraint used or the period of time during which
seclusion was used;
(b) the reasons why restraint, seclusion or segregation was
used;
(c) the effect that the use of the restraint, seclusion or segregation had
on the person's behaviour;
(d) the name of the person who approved the use of restraint, seclusion or
segregation;
(e) the name of the person who applied the restraint or kept the person in
seclusion.
87—Reports
(1) The Senior
Practitioner must—
(a) monitor whether the use of the restraint, seclusion or segregation is
in accordance with this Part; and
(b) subject to any guidelines issued under
subsection (3),
advise the Authorised Program Officer authorising the restraint, seclusion or
segregation as to the intervals, not exceeding 12 months, within which the
Authorised Program Officer is to provide a report on the implementation of a
person's behaviour support plan in accordance with
subsection (2) to
the Senior Practitioner.
(2) A report required
under
subsection (1)
must—
(a) be provided within 7 days after the end of the interval advised
under
subsection (1);
and
(b) contain the
information required in a report under section 147; and
(c) include a record of all instances in which restraint, seclusion or
segregation has been applied during the period for which the report is prepared;
and
(d) specify any details required by the Senior Practitioner in respect of
each instance included under
paragraph (b);
and
(e) have attached a copy of the person's current behaviour support plan if
the use of restraint, seclusion or segregation is being continued.
(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 Program Officer where more than one approved disability
service providers are providing disability services to a person with a
disability involving the use of restraint, seclusion or segregation.
88—Offence
A disability service provider who, except as provided in
section 80 or
86, applies restraint,
seclusion or segregation to a person with a disability is guilty of an offence
against this Act.
Maximum penalty: $35 000.
89—Use of other restrictive
interventions
(1) In this section, other restrictive interventions means
restrictive interventions other than restraint, seclusion or
segregation.
(2) The Senior Practitioner may in respect of other restrictive
interventions used by disability service providers—
(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 service provider; and
(b) require a disability service provider to develop a behaviour support
plan for a person with a disability in respect of whom the disability service
provider is using other restrictive interventions; and
(c) develop guidelines and standards in relation to the use of other
restrictive interventions; and
Note—
The guidelines and standards may include clinical guidelines and
standards.
(d) audit and evaluate the use of other restrictive interventions;
and
(e) give written directions to disability service
providers—
(i) prohibiting the use of a specified other restrictive intervention;
or
(ii) regulating the use of a specified other restrictive intervention;
and
(f) undertake research and provide advice to disability service providers
in relation to the use of other restrictive interventions.
Part 9—Miscellaneous
Section 8—redesignate the section as section 90
Section 9—redesignate the section as section 91
10—Redesignation
of section 10
Section 10—redesignate the section as section 92
Section 11—delete the section