Introduction and key legislation
The role of the Public Advocate was established under the Guardianship and Administration A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. 1986 (Vic). On 1 March 2020, that Act was replaced by the Guardianship and Administration Act 2019 (Vic) (‘GA Act’).
The GA Act places the promotion of human rights and the dignity of people with disability at its centre (s 7). This is a change from the 1986 Act, which fostered the autonomy of people with disability, but subject to actions and decisions being in their best interests.
The Public Advocate’s functions on behalf of people with disability include:
- promoting the human rights of people with disability and developing their ability to act independently;
- protecting people with disability against abuse, neglect, and exploitation;
- advocating on a systematic or individual level;
- coordinating programs that achieve these goals;
- informing the public about the laws affecting people with disability.
A ‘disability’ is defined in the GA Act to mean a neurological impairment, intellectual impairment, mental disorder, brain injury, physical disability, or dementia.
The Public Advocate’s office is known as the Office of the Public Advocate (OPA)(see ‘Contacts’ at the end of this chapter).
Complaints and advocacy
The OPA provides advice in relation to complaints about services, treatment or attitudes of government departments and other agencies.
Complaints can be made to the Victorian A public official appointed to investigate citizens’ complaints against government departments and statutory authorities. A specialised ombudsman resolves consumer complaints in a particular industry, for example the banking ombudsman for the banking industry. See also statutory authority., the Victorian Equal Opportunity and Human Rights Commission, Victorian Health Complaints Commissioner, the Victorian Disability Services Commissioner, the National Disability Insurance Scheme (NDIS) Quality and Safeguards Commission and the Victorian Mental Health Complaints Commissioner.
If these avenues are inappropriate, the OPA may investigate the complaint if it involves abuse or exploitation or the need for guardianship.
The OPA can refer matters to the Community Visitors Program (see ‘Community Visitors Program’, below) and can seek government assistance on behalf of people with a disability.
The OPA takes up issues of a systemic nature, investigating and researching matters that develop out of individual complaints. These activities may lead to law reform, the preparation of submissions to government, or the publication of reports. Handbooks have also been produced by OPA, including Take Control: A Guide to Powers of Attorney and Guardianship (April 2020). These and other publications can be downloaded from the OPA’s website at www.publicadvocate.vic.gov.au.
Protection from abuse
Generally, where there is an allegation of abuse, maltreatment or exploitation of someone with a disability, the OPA has the power to intervene if the person needs guardianship (s 16(1)(g) GA Act).
If the investigation is blocked by the person or agency involved in the Claimed but not proved. For example, the police can allege in court that a car was stolen, but they then have to prove it with evidence. If you say a person did something illegal you are making an allegation. Unless you can back it up, you will not be able to win a court case about it. abuse – and there is Material presented to a court to prove or disprove a fact. It can include what witnesses say as well as documents and other objects. that the person is being illegally detained or is likely to suffer serious harm – an order can be sought from the Victorian Civil and Administrative A body set up to hear and decide disputes, usually with less formality and less strict rules of evidence than in a court proceeding. (VCAT) (the Guardianship List). VCAT can authorise active intervention with police assistance (s 43).
VCAT may appoint a Someone who is legally responsible for taking care of another person or their property. for an adult with disability to make decisions about personal matters. Any appointment VCAT makes must set safeguards and appropriate limitations on the guardian’s powers. VCAT may appoint the Public Advocate as guardian when there is no other person who fulfils the requirements for the appointment (s 33 GA Act).
For more information about guardianship, see Chapter 8.6: Guardianship and medical treatment.
VCAT may appoint a guardian if it is satisfied that the person proposed for guardianship does not have decision-making The ability to understand and be held responsible by the law for your actions. It also refers to a person’s ability to understand and agree to something, such as to undergo medical treatment. Full legal capacity is reached at 18 years of age, when a child becomes an adult. in relation to a personal matter, there is need for the appointment, and the appointment A document that sets out what a person wants to happen to their money and other property after they die. promote the person’s personal and social wellbeing.
Programs run by the Public Advocate
Community Visitors Program
The Community Visitors Program was established by the Mental Health Act 2014 (Vic), the Disability Act 2006 (Vic) (‘Disability Act’) and the Supported Residential Services (Private Proprietors) Act 2010 (Vic). The program is administered and coordinated by the OPA.
Community Visitors are community representatives who regularly visit services and institutions for people with psychosocial or intellectual disabilities, and supported residential services registered with the DHHS, or those in the non-government sector.
Community Visitors have the power to make inspections, access reports and documentation, and consult with anyone involved in the provision of services or the administration of a facility.
They visit on a regular basis to talk to residents/clients on issues such as:
- adequacy of services;
- standards within the facility; and
- care and treatment being received.
They respond to queries and inquire into complaints. If the issues are unable to be resolved at a local level, they can be raised with the OPA and ultimately with the government minister responsible. NDIS matters can be escalated to the NDIS Quality and Safeguards Commission.
Section 18A of the GA Act gives the Public Advocate similar powers as Community Visitors to visit, inspect and inquire.
A person, other than a friend or family member, who provides support to a person with an intellectual disability, brain injury or mental illness when they are being questioned by the police. Program
The Independent Third Person (ITP) Program is coordinated by the OPA.
Police Operating Procedure 22.214.171.124 requires that an ITP be present when police officers are interviewing a victim, suspect or A person who can provide direct information based on their own knowledge about a relevant fact, and appears in court to give evidence about it. In some cases a witness may provide an affidavit or deposition setting out their evidence if they are not able to attend court. who has an intellectual disability, a mental illness, acquired brain injury or dementia.
The OPA runs information and training sessions for people wishing to volunteer as ITPs. ITPs are not advocates for people but are there to facilitate communication, help the person know their rights and support the person through the process.
The Victorian Government (not OPA) is piloting an ‘Intermediaries Program’ to assist children and people with disabilities who are victims or witnesses of certain crimes (mainly sexual offences). An intermediary assists the child or person with disability in their communication with police officers and court staff.
The pilot involves nine police stations (Bayside, Bendigo, Box Hill, Fawkner, Frankston, Geelong, Knox, Melbourne and Warrnambool) and the Magistrates’ Courts in Melbourne, Bendigo, Geelong and Warrnambool.
Where an intermediary is not available, an ITP should be engaged.
Corrections Independent Support Officer Program
Corrections Independent Support Officers (CISOs) are volunteers and OPA staff who assist and support prisoners with an intellectual disability in all Victorian prisons during internal prison disciplinary hearings. These hearings occur when prisoners are charged with a breach of the internal prison management Laws made by a body other than parliament but under its authority. These are made by the Governor of Victoria on the advice of the Victorian government, known as the Governor in Council. The rules are prepared and administered by government departments and statutory bodies under authority granted by a relevant Act of parliament. See also delegated legislation; local laws.. The role of a CISO is to:
- provide information to the prisoner about the disciplinary The time and place at which a court or tribunal hears the parties argue their case and makes a decision. procedures;
- provide information to the prisoner about their rights during the process;
- assist with communication; and
- support the prisoner during the hearing.
The CISO provides this support to ensure the prisoner is provided with the best opportunity to understand and effectively participate in the hearing.
Advice and information
The OPA also offers advice and information on guardianship and administration, supportive guardianship, A person appointed to support someone in making and giving effect to their decisions by accessing their personal information and communicating on their behalf, for example in discussions with medical services. See also enduring power; power of attorney., applications to VCAT, enduring powers of attorney and supportive attorneys, supported decision-making, the rights of people with disabilities, medical treatment decision-making, advance care directives, and advocacy. The OPA’s Community Education Program provides written materials and speakers.