NCAT News The Newsletter of the NSW Civil and Administrative Tribunal April 2013 Issue 3

Transcription

1 NCAT Project Update A Corporate Services Coordinating Committee has now been formed to examine options and decide how best to integrate and/or harmonise corporate service functions within the constituent tribunals and during NCAT s initial period of operation. The Coordinating Committee will be assisted by five Working Groups, each focused upon a specific corporate service stream, being: 1. Asset Management 2. Communications 3. Finance 4. Human Resources 5. Information Services. The Committee will analyse and report to the NCAT Steering Committee on corporate service provision and will oversee implementation of any changes necessary to ensure business as usual from 1 January Each of the five Working Groups is chaired by the relevant Director within the Department of Attorney General and Justice and includes appropriate subject matter experts from a variety of the constituent tribunals. The Committee and Working Groups will operate in accordance with a set of agreed principles, such as: The need to take into account differences between tribunals, yet encouraging a consistent approach wherever possible. Looking to improve levels of service, whilst not degrading current service during transition. Seeking to address current areas of poor service. Minutes of the Coordinating Committee and Working Groups will be made available on a new page of the NCAT website, Corporate Services. In this edition of NCAT News NCAT Project Update Page 1 Presentation to COAT Page 1 The NCAT Website Page 1 The NCAT Family: Guardianship Tribunal Page 2 The NCAT Reference Group Page 4 Framework for Tribunal Excellence Page 4 Presentation to COAT On 26 March 2013, the Council of Australasian Tribunals (COAT) held its Annual General Meeting. The Director General of the Department of Justice and Attorney General, Laurie Glanfield, was invited to attend the AGM as a guest speaker and to address the membership on the NCAT project. The NCAT Website The NCAT website now contains FAQ s received from constituent members and staff in addition to information on the Reference Group, Steering Committee, Project Team, Communications and Planning pages. The Reference Group page contains links to minutes of meetings and Discussion Papers. Visit NCAT News Page 1

2 The NCAT Family: Guardianship Tribunal What is The Guardianship Tribunal? The Guardianship Tribunal is a specialist disability tribunal. It exercises a protective jurisdiction concurrent with the Supreme Court and has been in operation since The Tribunal conducts hearings to determine applications about adults with a decision making disability who are incapable of making their own decisions and who may require a legally appointed substitute decision maker. Applications to the Tribunal have increased by approximately 24 per cent over the past five years. In 2011/12 the Tribunal received 7915 applications and finalised more than 10,000 matters including statutory end of term reviews. The Tribunal operates an after hours service to respond to urgent applications which need to be heard outside business hours. Tribunal Members The Tribunal has a full-time President and Deputy President and 90 part time members. There are three categories of members - legal, professional and community members. Tribunal members are appointed on the basis of their significant professional and personal experience with people who have disabilities or their legal skills and experience. The Tribunal relies on the specialist expertise of its members when listing matters including applications for the approval of clinical trials, applications involving restrictive practices, and special medical consent. Member expertise is relied upon in listing applications concerning the use of restrictive practices, the approval of clinical trials, The majority of hearings are conducted by 3 member panels, comprising one member from each category. Many end of term and requested reviews of Tribunal orders, procedural and interlocutory matters are heard by a single member. What does the Tribunal do? The Tribunal exercises jurisdiction under the Guardianship Act 1987 and the Powers of Attorney Act 2003 to: Appoint a guardian for a person to make personal decisions and medical and health care decisions on their behalf. The guardian can be a private person or the Public Guardian Appoint a financial manager to make decisions concerning a person s financial estate. The financial manager can be a private person or the NSW Trustee and Guardian. Review the guardianship and financial management orders it has made to decide whether they need to continue or be varied Review an enduring power of attorney Review an enduring guardianship appointment Provide consent to medical and dental treatment for adults who lack capacity including special medical treatments such as sterilisation Approve clinical trials which will include people with decision making disabilities. Who can make an application to the Tribunal? Any person with a genuine concern for the welfare of a person with a disability can make an application to the Tribunal. Approximately 50 per cent of applications are made by family members or friends of the person with the disability and 50 per cent NCAT News Page 2

3 by service providers such as health and disability professionals. Who are the applications about? Currently half of all applications are for people with dementia, 11 per cent of applications concern people with intellectual disability, and 9 per cent people with mental illness. The Tribunal also receives applications for people with brain injury, eating disorders, stroke and other disabilities which may affect a person s ability to make decisions. What happens after an application is received? Applications are assessed on receipt and assigned a triage category according to the risk posed to the person with a disability. This guides how applications are prioritised and listed for hearing. Tribunal officers prepare all applications for hearing by liaising with the applicants, parties and legal representatives to ensure that all relevant information is provided and all witnesses are organised for the hearing and that the parties understand the Tribunal s role and decision-making powers. They assist the parties to consider alternative means of resolving the issues raised in the application resulting in applications being finalised without proceeding to hearing. Tribunal officers also co-ordinate and make all necessary hearing arrangements. How does the Tribunal assist people with disabilities? The majority of people who are the subject of applications to the Tribunal do not have the cognitive capacity to fully understand and participate in the Tribunal s proceedings. The Tribunal actively supports the understanding and participation of a person with a cognitive disability in all stages of its processes in the following ways:- Before the hearing, Tribunal officers contact the person who is the subject of the application. They ask them their views about the application and explain what the Tribunal does. They encourage their attendance at the hearing and liaise with carers or service workers to ensure the person can be assisted to come to the hearing if this is needed. The Tribunal s staff have a broad range of qualifications and experience in areas such as health and disability and are skilled in communicating with people with disabilities. They are focussed on the maximum participation of the person in the proceedings. The Tribunal can appoint a separate representative for a person with a disability to represent their interests at the hearing. The Tribunal chooses hearing venues and locations to facilitate the participation of the person with a disability. The Tribunal sits in a range of venues including hospitals, nursing homes, and corrective facilities to ensure the appropriate participation of the person with the disability and to enable the person to communicate directly with the Tribunal. At the hearing, the Tribunal strives in all cases to focus on the person with a disability and to involve them in the hearing in as much as possible. NCAT News Page 3

4 Legal representation If a party wishes to have legal representation they require leave from the Tribunal. In 2010/11 legal representatives were only involved in approximately 2.5 per cent of matters finalised by the Tribunal. What happens at a hearing? The Tribunal holds hearings at its premises in Balmain as well as in 17 rural and regional locations and 4 outer metropolitan locations across NSW. The Tribunal also conducts hearings by telephone or videoconferencing if necessary. The Tribunal s hearings are conducted with as little formality and legal technicality as possible. The Tribunal attempts to conciliate the issues in each hearing and if this is not possible then it proceeds to deal with the application. Written reasons for decision The Tribunal provides written reasons for decision for all guardianship and financial management applications. Appeals Decisions of the Guardianship Tribunal may be appealed to either the Supreme Court or the Administrative Decisions Tribunal. The NCAT Reference Group Since the last newsletter the Reference Group has met on two further occasions and has reviewed the following discussion papers: Early resolution of disputes Constitution requirements Hearings Compliance and enforcement Minutes of the Reference Group s meetings and all discussion papers are published on the NCAT website at To facilitate broader stakeholder consultation on particular issues, reference sub-groups have been established by the Department of Fair Trading and NSW Health. These groups will feed information and advice in to the main Reference Group through their representatives. Framework for Tribunal Excellence In each of our newsletters we have committed to providing you with information about each of the 10 core values required of tribunals to enable them to deliver quality services. In our last newsletter we looked at equality before the law and the systems developed by tribunals to make them accessible to the people they serve. In this newsletter we examine the value Fairness. The provision of a fair hearing is at the very heart of a tribunal s obligation to the parties who appear before it. In particular members have a responsibility to assist selfrepresented parties (litigants in person) to the extent necessary to ensure a fair hearing. NCAT will promote fairness by ensuring members understand their duty to assist parties understand the proceedings and to participate in a fair hearing. The assistance provided by members may, depending on the circumstances, include: o Identifying issues central to the determination of the proceedings o Eliciting appropriate information from parties in relation to the central issues o Explaining relevant legislative provisions. NCAT News Page 4

5 In addition to the important role played by members, there will be a range of others services and practices adopted by NCAT to promote fairness, including: Free interpreter service or other assistance to help parties through the process Ensuring the cultural competency of members and staff through participation in cultural awareness and working with interpreters training Core Tribunal Values Equality before the law Fairness Impartiality Independence Respect for the law Accessibility Competence Integrity Accountability Efficiency Sound recording of hearings and access to the recordings at low cost Generally all proceedings at NCAT will be open to the public. However, NCAT will be able to order that a hearing be held in private if there is a good reason to do so. NCAT will also be able to order that information be kept confidential Establishing appropriate internal appeals mechanisms that offers parties a quick and cost effective way of determining appeals. Find out more about NCAT Visit the NCAT website at Contact the NCAT Project Team Phone: ncat@agd.nsw.gov.au You may submit thoughts and contributions on how NCAT can ensure it supports fairness to ncat@agd.nsw.gov.au. In our next issue we will look at Impartiality. NCAT News Page 5