Service dogs, assistance animals and companion animals on campus
Education and training providers receive regular requests to bring support animals on to campus. Some responses are straightforward – is it a trained and qualified guide dog for a student or staff member who is vision impaired or blind? Then the answer would be an automatic yes. Beyond that, many disability practitioners may find the issue difficult and confusing, with much practice inconsistency in the sector. But it needn't be – there is sufficient guidance in the law and established practice to frame your response to any request.
Australia has been conservative in the legal parameters around assistance animals, and doesn't legally recognise companion animals in any legal sense, though in some jurisdictions such as NSW, the terms assistance animal and companion animal are interchangeable. This conservative approach to assistance animals is of benefit to disability practitioners in the education setting, since extremely liberal definitions and practices in the United States of America led to students attending classes with a range of animals including miniature horses, rats, hamsters and cats, all being described as ‘therapy animals’ or ‘companion animals’ for people with various disabilities, but particularly psychiatric conditions. The Americans with Disabilities Act has had to be revised somewhat to restrict recognition for assistance animals to those who have undergone recognised training and which serve a purpose in a particular setting.
The legal definition of an assistance animal
Under Section 9(2) of the Disability Discrimination Act 1992, an assistance animal is a dog or other animal that is:
- accredited under a State or Territory law that provides for the accreditation of animals trained to assist a persons with a disability to alleviate the effect of the disability; or
- accredited by an animal training organisation prescribed by the regulations for the purposes of this paragraph; or
- trained to assist a person with a disability to alleviate the effect of the disability, and to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.
Further, treating a person with a disability less favourably because he or she is accompanied by a guide dog, hearing assistance dog or any other trained and accredited animal is unlawful. The Act recognises that people with a range of disabilities other than vision and hearing impairments derive valuable assistance from appropriately trained dogs.
Why have an assistance animal?
Over generations we have become used to people who are blind using guide dogs. In more recent times, the value of assistance animals to support and keep safe people with a range of disabilities has been recognised. In particular, some people with physical disabilities use dogs for assistance with mobility and with carrying or retrieving objects. Some people living with epilepsy use assistance dogs to alert them in advance of an episode so that they can situate themselves safely and to care for them during and after a seizure. The use of assistance animals for people who have Post Traumatic Stress Disorder and severe anxiety is also growing.
A growing number of young people with Autism are also now using assistance animals to help with social situations, though this has not flowed through to the higher education and training sector as yet, with some Autism practitioners believing that the people who are eligible for trained Autism Assistance Animals are unlikely to be seen on campus for the foreseeable future due to the need for students to be self-regulating in this setting.
Assistance Animals and Companion Animals – the same thing?
A simple answer to this question would be no – in most jurisdictions, but as with many clauses in the DDA, it is defined only by precedent case law.
A review of Section 9(2) of the DDA, conducted in 2003, concluded that there is a distinction between assistance animals and animals used for the provision of comfort and reassurance alone. Almost all submissions stated that this distinction should be maintained in the interests of public acceptance of assistance dogs. A dog which is trained to provide assistance to a person with a psychiatric disability in respect of the disability would be an assistance dog within the meaning of DDA section 9, and should be recognised as such so long as evidence can be provided that the dog in fact provides such assistance and has appropriate training and behaviour. This does not mean however that the comfort and reassurance provided by being accompanied by a dog can in itself be accepted as sufficient for a dog to be defined as an assistance animal under the DDA. As yet, the DDA has not been amended to an extent sufficient to define this issue clearly enough to prevent any legal challenges.
The DDA does also not specify the type of certification an assistance animal is required to have (as this precludes self-training), the number of hours of training an assistance animal is required to have, the qualifications of a trainer or regulatory bodies providing certification. The education and training provider needs to make individual judgements based on the evidence provided by each applicant.
Some practical applications for the Disability Practitioner
Many institutions have written policies, including Flinders University and Monash University, which make their position on assistance animals for students with disabilities clear.
The following points should be considered in developing an institutional response to requests for assistance animals.
The following list is a summary of policies and practices across higher education and training institutions in Australia and close examination of Section 9 of the DDA and the Disability Standards for Education.
- The legal precedent set by Sheehan v Tin Can Bay Country Club means that education and training providers cannot require that an assistance animal be physically restrained. If the student can demonstrate that the animal is sufficiently controlled by vocal command and is toilet trained, then a leash or harness should not be required (DDA Section 54(8).3). Evidence might include a practical demonstration in a simulated environment, a statutory declaration, provision of references and/or certificates of training. The requirement for obedience to vocal command would normally exclude cats.
- Any assistance animal brought onto campus can be required to wear some kind of identification that would mark it as a trained assistance animal.
- As with any reasonable adjustment, the institution’s disability service can require that the person with a disability provides evidence of their need for the assistance animal to attend campus with them.
- A certificate from a veterinarian identifying the animal's vaccinations and current health status should be provided.
- Assistance dogs should have local government registration to ensure that it is an approved breed and doesn’t have any history of aggressive behaviour towards people and other animals.
- Queensland Health has specified that no rats or birds be accepted as assistance animals outside the home due to the inability for the handler to control defecation or parasites carried by these animals; particularly at issue in food handling environments. It may be prudent to write the same restriction into the institution’s policies regarding assistance animals.
- Specific areas should be designated for toileting and relief of the assistance animal. These would include a space for toileting, water and waste disposal. On a large campus, a number of locations may need to be designated, with care to ensure that they are available close to where students and staff with assistance animals are located.
- Published policies should include contact persons for both students and staff. For example, Disability Officers for students and Personnel, Human Resources or Equal Opportunity representatives for staff.
- The same process would be followed as with any other Access Plan, with details of the assistance animal described as any other reasonable adjustment would. This is especially important in environments where mobility of staff and students or use of potentially dangerous substances may be an issue (eg: laboratories and art studios or where other animals might be housed).
- The provisions relating to assistance animals do not affect the liability of a person for damage to property caused by an assistance animal.
- Arrangements should be made for orientation to campus. In the case of most providers of assistance dogs for the blind, this can be provided by the organisation that provided the dog. In other cases, orientation may need to be provided by staff or trained and designated student volunteers.
It is not unlawful to discriminate against a person using an assistance animal if:
- the assistance animal is reasonably suspected of having an infectious disease;
- discrimination is necessary to protect public health or the health of other animals; or
- if the person with the assistance animal fails to produce evidence that the animal:
- is an assistance animal; or
- is trained to meet standards of hygiene and behaviour appropriate for an animal in a public place (s 54A(6)).
The impact on the health and wellbeing of staff and students may also need to be considered. For example, phobias and allergies may make the presence of an assistance animal a hazard under provisions of Work Health and Safety legislation. Health and safety hazards can override rights under the DDA and Disability Standards for Education.