Department of Human Services

9.9 Legislative Comparisons across jurisdictions for CVS

State

Authorisation

Department

Requesting visitation

What they can visit

Relevant Powers

SA

SA has a disability CVS

Relevant legislation:  Disability Services (Community Visitor Scheme) Regulations 2013 (SA) (‘DS (CVS) Regulations’) under the Disability Services Act 1993.

DHS

s 5(1): request to see a community visitor may be made by any of the following people:

- (a) resident

- (b) person attending a day options program

- (c) a guardian, medical agent, relative, carer or friend of a person

- (d) any other person who is providing support to a person

s 5(2): request can be made to a manager or person of authority at the accommodation premises, and they must notify a community visitor of the request within 3 days after receipt.

No legislative power to enter private homes.

Community visitors have right to visit disability accommodation premises and day options program premises “any reasonable time”: 3 DS (CVS) Regulations 2013.

Importantly, the Disability Services Act 1993 relates to services funded by the State Government, meaning as of May 2019 the disability CVS no longer visit non-government disability services (as there is no funding relationship).

Powers contained within s 4 ofthe DS (CVS) Regulations 2013.

For disability accommodation premises,includes right to inquire into:

-    The appropriateness and standard of the premises for the accommodation of residents: s 4(1)(a)(i) DS (CVS) Regulations.

-    Whether residents are provided with adequate information to enable them to make informed decisions about their accommodation, care and activities: s 4(1)(a)(iv) DS (CVS) Regulations.

-    Any case of abuse or neglect, or suspected abuse or neglect, of a resident: s 4(1)(a)(v) DS (CVS) Regulations.

-    The use of restrictive interventions and compulsory treatment: s 4(1)(a)(vi) DS (CVS) Regulations.

-    Any complaint made to a community visitor by a resident, guardian, medical agent, relative, carer or friend of a resident, or any other person providing support to a resident: s 4(1)(a)(viii) DS (CVS) Regulations.

For visitation of day options program premises, the rights are effectively the same as above but contained in their own subsection: s 4(1)(ab).

Additionally, for both disability accommodation premises and day options program premises, ability to:

-    Meet with a resident: s 4(2)(a) DS (CVS) Regulations.

-    Inspect the premises with permission of the manager: s 4(2)(b) DS (CVS) Regulations.

-    Request production of any documents or records and make copies of them: ss 4(2)(c) and (d) of the DS (CVS) Regulations.

NSW

NSW has a disability CVS

Relevant Act: Ageing and Disability Commissioner Act 2019 (NSW)

The Ageing and Disability Commission has general oversight and coordination of Official Community Visitors: s 23(1).

However, advice and matters can also be directed to the Minister for Families, Communities and Disability Services or the NSW Ombudsman.

No information about how to complain/request visitation from a community visitor in Ageing and Disability Commissioner Act 2019 (NSW).

No legislative power to enter private homes.

OCV’s can enter and inspect any ‘visitable service’, which under s 20 includes:

-    Accommodation services where an adult is in the full-time care of a service provider

-    Assisted boarding houses

-    Any other service prescribed by the regulations as a visitable service (currently none).

Broad powers of Official Community Visitor set out under s 22 of the Act, includes powers to:

-    Enter and inspect a ‘visitable service’ at any reasonable time without providing notice: s 22(1)(a).

-    Talk alone with anyone (resident or employee) at the premises: s 22(1)(b).

-    Inspect any document held at the premises that relates to the operation of a visitable service: s 22(1)(c).

- Provide the Minister and the Commissioner with advice or information relating to the conduct of the premises, as well as matters affecting the welfare, interests and conditions of persons using visitable services: ss 22(1)(d) and (e).

VIC

Victoria has a disability Community Visitor Scheme

Victoria has three steams of community visitation:

-    Disability Services Community Visitors under the Disability Act 2006 (VIC).

-    Mental Health Community Visitors under the Mental Health Act 2014 (VIC).

-    Supported Residential Services (SRS) Community Visitors under the Supported Residential Services (Private Proprietors) Act 2010 (VIC).

Community Visitors are overseen by the Victorian Office of the Public Advocate.

No information about how to directly complain/request visitation from a community visitor in Disability Act 2006 (VIC).

However, anyone can complain to the Disability Services Commissioner regarding a service provider: ss 109, 110 Disability Act 2006 (VIC).

No legislative power to enter private homes.

For Disability Services Community Visitors under the Disability Act 2006 (VIC),can visit “any premises where a disability service provider is providing residential services”: s 30.

For Supported Residential Services (SRS) Community Visitors under the Supported Residential Services (Private Proprietors) Act 2010 (Vic), can visit “supported residential services”, which under s 5 means:

-    Premises where accommodation and personal support are privately provided or offered to residents for a fee or reward.

But does not include aged care facilities, retirement villages, or accommodation and personal support or nursing care services that are provided to a person in respect of whom a residential care subsidy is payable under Commonwealth legislation: s 5.

Powers differ slightly depending on the stream (disability services, mental health, or SRS).

For Disability Services Community Visitors under the Disability Act 2006 (Vic),power to inquire into:

-    The standard of the premises: s 30(a).

-    Whether treatment of a resident meets a standard of decency based on the principles in section 5: s 30(c).

-    Any case of suspected abuse or neglect: s 30(e).

-    The use of restricted practises or compulsory treatment: s 30(f).

The above powers are also the same for Specialist Disability Accommodation (SDA) dwellings: s 30A.

For Supported Residential Services (SRS) Community Visitors under the Supported Residential Services (Private Proprietors) Act 2010 (Vic), powers include:

-    Right to enter and look at any part of the premises of a supported residential service: s 187(1)(a).

-    Speak with any resident or employee: s 187(1)(b) and (c).

QLD

Queensland has a disability CVS

Main Act: Public Guardian Act 2014 (QLD) (this is the act being referenced in this row)

Also: Public Guardian Regulations 2014 (QLD)

Overseen by the Queensland Office of the Public Guardian.

More than 140 CV’s working across 13 zones, with each zone having its own Regional Visiting Manager.

A child under care at a visitable home or site can request visitation from a community visitor: ss 59, 60 Public Guardian Act 2014 (QLD).

-    Can make the request through the public guardian, an authorised officer or a carer.

An adult under care at a visitable site can request visitation from a community visitor: s 43(1) Public Guardian Act 2014 (QLD).

-    Can make the request through the public guardian or by asking a staff member at the site: s 43.

Note: the legislation does not say whether interested parties can request visitation on behalf of a child or adult – just says the resident can do it themselves.

Two separate streams of visitation for children and adults.

Children:

Right to visit ‘visitable sites’, which under s 51 means:

-    A residential facility where the child is staying

-    A detention centre where the child is staying

-    A corrective services facility where the child is staying

-    An authorised mental health service where the child is staying

Also,the right to visit‘visitable homes’, where the child is in the custody or guardianship of someone other than their parent (through the Queensland Child Protection Act 1999)(i.e. foster homes).

Adults:

Right to visit ‘visitable sites’, which under s 39 means:

-    An authorised mental health service provider that provides inpatient services

-    Forensic disability services

-    A place, other than a private dwelling, in which an adult lives and receives NDIS services: Schedule 1 Public Guardian Regulations 2014 (Qld).

Different powers depending on whether a child or adult is being visited.

Children:

-    Broad powers to do ‘all things necessary or convenient’ in order to assess the adequacy and appropriateness of a place.

-    For visitable sites, power to:

  • Enter during normal hours without   notice: s 67(1)(a).
  • Enter outside normal hours (requires   authorisation from Public Guardian): s 67(1)(b).
  • Inspect the site: s 67(1)(c).
  • Talk in private to the child staying   there: s 67(1)(d).
  • Require staff members to produce   documents: s 67(1)(f).

-    For visitable homes, must receive access through either consent of the carer there or an authorised warrant: s 61.

  • However once inside have power to look   around and assess its appropriateness for accommodation, talk with the child   privately, and talk with the carer: s 66.

Adults:

- Broad power to do ‘all things necessary or convenient’ in order to assess the adequacy and appropriateness of a site: ss 44, 41.

- Includes ability to:

  • Enter the site during normal hours   without notice: s 44(1)(a).
  • Enter the site outside normal hours   (requires authorisation from the Public Guardian): s 44(1)(b).
  • Require staff members to answer   questions and produce documents: s 44(1)(c).

WA

WA does not have an official disability CVS

The closest it has are two separate complaints schemes under the Disability Services Act 1993 (WA)andthe Health and Disability Services (Complaints) Act 1995 (WA).

- The important distinction here is that there is no automatic right of access to a site – such a power only arises once a complaint has actually been made.  

Health and Disability Services Complaints Office (HaDSCO) – independent statutory authority

Also note: from December 2020 the NDIS Quality and Safeguards Commission will be responsible for receiving complaints about disability service providers under the NDIS in WA. However until then the Health and Disability Services Complaints Office will be responsible for this (including disability services provided to individuals who have NDIS plans through the NDIA, for individuals who have transferred from WA NDIS to the NDIS, and for individuals who continue to receive services through the State Government or its contracted service providers).

N/A

The Health and Disability Services Complaints Office can only visit premises through a warrant: s 63 Health and Disability Services (Complaints) Act 1995 (WA). No automatic right of visitation due to no official community visitor scheme.

The Health and Disability Services Complaints Office receives complaints that:

-    A health service has been unreasonably denied.

-    Health service has been provided in an unreasonable manner.

-    Unreasonable denial of access to records or breach of privacy.

-    Not investigating or improperly investigating complaints.

-    Overcharging.

Once a complaint has been made, the Health and Disability Services Complaints Office has limited investigation powers, namely, to request information and the production of documents: s 41 Disability Services Act 1993 (WA).

During investigation of a complaint the Health and Disability Services can only visit premises through a warrant – no automatic right of access: s 63 Health and Disability Services (Complaints) Act 1995 (WA).

TAS

Tasmania does not have an official disability CVS

No CVS, but Department of Health responsible for Disability Services Act 2011 (Tas): s 54 of the act.

-    Complaints or allegations of abuse can also be reported to Tasmanian Disability and Community Services.

Additionally, the Tasmanian Health Complaints Commissioner can receive and investigate complaints under the Health Complaints Act 1995 (Tas).

N/A

No automatic right of visitation due to no official disability Community Visitor Scheme.

Department of Health employees or officers can be authorised to enter a funded provider’s premises or private funded premises: s 25 Disability Services Act 2011 (Tas).

-    Done for the purposes of ensuring that a person residing there is receiving the care and support necessary for their health and wellbeing: s 26(2) Disability Services Act 2011 (Tas).

Additionally, the Tasmanian Health and Complaints Commissioner can investigate complaints but can only inspect a site with a warrant: s 47 Health Complaints Act 1995 (Tas).

S 28 of Disability Services Act 2011 Tas) outlines the rights of authorised officers entering premises, includes ability to:

-    Inspect the premises (including right to open any containers or cabinets)

-    Request a person on site to provide information or documents

ACT

ACT has a disability Official Visitors Scheme

Relevant Act: The Official Visitor Act 2012 (ACT) establishes the ACT’s Official Visitor Scheme, with each scheme having its own separate legislation.

- The disability Community Visitor Scheme overseen by the Disability Services Act 1991 (ACT).

The ACT Public Trustee and Guardian (ACT)

An entitled person at a visitable place, or anyone else, can request visitation from an official visitor: s 21(1) Official Visit Act 2012 (ACT).

- The operating entity must notify an official visitor within 24 hours of a request: s 21(2).

No legislative power to enter private homes.

Official visitors have ability to visit a “visitable place”, meaning “accommodation provided to an entitled person for respite or long-term residential purposes”: s 8B(1)(a) Disability Services Act 1991 (ACT).

This includes (per s 8B(1)(b)):

- (i) Accommodation that is owned, rented or operated by a specialist disability service provider

- (ii) Accommodation at which a specialist disability service provider provide a specialist disability service

- (iii) A residential aged care facility that accommodates the entitled person

But does not include (per s 8B(2)):

- (a) A private home if the person receives a specialist disability service from someone who isn’t a disability service provider

- (b) A private home if the person lives in the home with at least 1 adult family member who does not receive a specialist disability service from a specialist disability service provider at the home

- (c) Accommodation if the only specialist disability service the person receives at the accommodation is a type of service declared by the Minister not to require visitation

- (d) A residential aged care facility if the person is 65 years old or older when they first receive a specialist disability service (whether at the facility or elsewhere)

Official visitors have ability to enter a “visitable place” at any reasonable time, either following an official complaint or on their own initiative: s 15(1) Official Visitor Act 2012 (ACT).

Broad powers, including ability to:

-    Inspect any health record or other record

  • Requires either the resident’s consent,   reasonable belief from the visitor that the resident has the inability to   consent, or a belief that it’s necessary to carry out their investigation   regardless: s 15(2) Official Visitor Act 2012.

-    Monitor the conditions, services and practises in place: s 14(1)(b) Official Visitor Act 2012.

-    Investigate and seek to resolve complaints: s 14(1)(d) Official Visitor Act 2012.

- Identify and report on systemic issues adversely affecting entitled people at the place: Official Visitor Act 2012.

NT

NT has a disability CVS

Relevant Act: Disability Services Act 1993 (NT)

Is an independent service under the Anti-Discrimination Commission (NT)

Complaints can be made to the manager of the residential facility by any interested party: s 46.

-    Manager has responsibility of investigating complaints and keeping records of them.

Managers must also ensure residents or interested parties are given information about community visitors and their right to request one. Accordingly, a resident or interested person can request visitation from a community visitor: s 58.

-    “Interested person” means a guardian, decision maker, primary carer, or another person interested in the resident’s right: s 58(2).

-    Manager must ensure such a request is sent to a community visitor within 24 hours: s 58(4).

No legislative power to enter private homes.

A community visitor may visit (without notice) a residential facility at “any reasonable time”: s 57(2) Disability Services Act 1993 (NT).

Per section 2, “residential facility” includes:

-    A secure care facility

-    An appropriate place other than a secure care facility

-    Other premises operated by the Agency to provide services for the treatment and care of people with a disability

Powers (per s 57(2)):

-    Speak with residents of a residential facility

-    Inspect a residential facility and any documents relating to residents of the facility made or kept for the Act.

Additionally, under s55(1) Disability Services Act 1993 (NT), community visitors can inquire and make recommendations relating to:

-    (a) The adequacy of information relating to the rights of residents receiving treatment and care at residential facilities:

-    (b) The accessibility and effectiveness of the complaint procedures in place:

-    (c) The failure of persons employed in residential facilities to comply with the Act.

-    (d) The use of restrictive interventions:

-    (e) Any matter the community visitor considers appropriate having regard to the treatment and care principles

-    (f) any matter as directed to the principal community visitor by the Minister

Page last updated : 03 Aug 2020

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