Consent by Clients Policy

Purpose

• This Policy and its Procedure is developed to assist all service providers who are supporting or working with Tasmanians with disability, their families and carers to better understand the concept of consent and the range of options open to them in relation to assisted decision making.
• This policy provides the direction all service providers must take when considering medical procedures, the use of medication, making financial decisions, negotiating relationships or when designing and implementing individual programs.
• All services provided or funded, in whole or in part, by the Department are required to incorporate the meaning and intent of this policy into any existing policy and procedures relating to consent by clients or any policy and procedures that are developed in the future.

Mandatory Requirements

• This is a Department  wide policy and must not be re-interpreted so that subordinate policies exist.  Should discreet operational differences exist, these should be expressed in the form of an operating procedure or protocol.
• The Tasmanian Disability Services Act 2011 provides the legislative basis for the provision of specialist disability services.
• The Act defines disability as an impairment that:
  • is attributable to  a cognitive, intellectual, psychiatric, sensory or physical impairment, or a combination of these, and
  • is permanent or likely to be permanent, and
  • results in a substantial reduction in the capacity of the person to  participate in everyday life, and
  • requires continuous significant support services, and
  • may or may not be of a chronic episodic nature.

• To be eligible for specialist disability services in Tasmania, a person must:
  • have a disability as defined under the Act
  • live permanently in Tasmania
  • be an Australian citizen, or a permanent Australian resident, or a Temporary Protection Visa holder, or a member of a family on a work or study visa sponsored by the Australian Government
  • have a disability that manifests before the age of 65 years.
• The Tasmanian Disability Services Act 2011 (50 (1)) describes information sharing entities and names those entities that may share information.
  • information-sharing entity means –
  • (a) a prescribed person; or
  • - (b) a State Service officer or State Service employee employed in or for the purposes of the Department or another department, within the meaning of the Administrative Arrangements Act 1990; or
  • - (c) a manager of a private medical establishment, within the meaning of the Hospitals Act 1918 or of an establishment to which a licence under the Health Service Establishments Act 2006 relates; or
  • - (d) a controlling authority of an approved hospital, assessment centre, or secure mental health unit, each within the meaning of the Mental Health Act 1996; or
  • - (e) the person in charge of a funded disability services provider; or
  • - (f) the person in charge of an organisation that receives funding from the Secretary under a funding agreement to provide drug or alcohol treatment services; or
  • - (g) the person in charge of an organisation that receives a referral from the Secretary or a Community-Based Intake Service, within the meaning of the Children, Young Persons and Their Families Act 1997; or
  • - (h) the Chief Forensic Psychiatrist; or
  • - (i) any other person, or organisation, prescribed in the regulations;
• In line with the requirements of the Tasmanian Disability Services Act 2011 (section 50 (6) b) all information sharing entities must seek the consent of an individual in order to share information and can only share relevant information to enable assessment, determine the goods and services to be provided and/ or for the safety and wellbeing of a person.
• The Act requires an information sharing entity to gain consent of a person with disability but provides exception where sharing information is required for the safety of the person or others.
• Consent must be sought from a person with disability before service providers initiate or implement any planned activity relating to that person.
• If the person with disability lacks the capacity to give consent, service providers or organisations must proceed in accordance with the Guidelines relating to this policy.
• Clients who meet the eligibility requirements for the National Disability Insurance Scheme (NDIS) trial 2013 – 2016 will become the responsibility of the NDIS. Some policies, procedures and guidelines will remain relevant in delivering services to this cohort group.
• Failure to comply with this policy, without providing a good reason for doing so, may lead to disciplinary action.
• Disciplinary action in this context may be a Penalty under the Tasmanian Disability Services Act 2011 or constitute a breach of your Funding Agreement with the Department.

Roles and Responsibilities/Delegations

All Service Providers:

• Must comply with the intent of the Tasmanian Disability Services Act 2011 in relation to information sharing entities.
• Must seek consent from the person with disability before they commence or implement any planned activity relating to the person with disability.
• Are required to provide reasonable information to the person with disability, their family or and/or carer as not providing reasonable information may result in breach of duty of care.
• Must ensure that where a person with disability lacks capacity to provide consent, their ‘responsible person’ is informed of the proposed treatment and given an appropriate opportunity to provide informed consent or otherwise.
• Must ensure that the person who is giving consent must have the intellectual capacity and maturity to understand the situation that they are consenting to, the choices that are available and the actual or likely consequences of their decision. This applies to all people regardless of age and whether or not they have a disability.
• Are to note that in order for a person to provide informed consent, a person must be given sufficient information about the matter or procedure, and that information must be presented in such a way that a person can fully understand it. Any consent must be freely given and must not be obtained by force, threat, deception or undue influence.
• Ensure that all staff are informed that if they are unclear about the need to refer to a legally appointed guardian for a decision they should check the client’s file for details of the guardians function and contact the guardian to discuss.
• Must be aware that a client who lacks capacity to give or withhold consent (and does not have informal decision making support from a family member or other support person), may have frequently occurring and important decisions to make that require a legally appointed guardian with a specific decision making function.

Risk Implications

• Non- compliance with this policy will result in a breach under the Tasmanian Disability Services Act 2011.

Training

• Specialist disability service providers are to ensure that all staff, whether employees or volunteers are appropriately qualified and skilled and, where appropriate, credentialed and registered.
• All staff, whether employees or volunteers are to be provided with adequate support, training, debriefing and directions to enable them to effectively perform their duties.