Submission
No 149
INQUIRY INTO SERVICES FOR PEOPLE WITH AUTISM SPECTRUM
DISORDER
Organisation: Office of the Public Advocate
Date Received: 7 October 2016
Submission S149 Received 12/10/2016 Family and Community Development Committee
and circumstances; and that there is a need for guardianship. The need for guardianship would not be established because the person has passionate and energetic advocacy. It will be established where the person is perceived as being at significant risk of harm. If VCAT considers this is established, that there is no less restrictive way of ameliorating that risk than by appointing a guardian, and it is in the person’s best interests to do so, then it so appoints.
- The Public Advocate is not eligible to be guardian unless VCAT is satisfied that there is no other person who
a. will act in the best interests of the proposed represented person; and b. is not in a position where the person’s interests conflict or may conflict with the interests of the proposed represented person; and
c. is a suitable person to act as the guardian of the proposed represented person.
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If I have been appointed guardian by VCAT I believe it would only be on the basis that VCAT has explored other options and for valid legal reasons based on the facts it has determined that it was necessary for it to appoint me guardian.
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If persons disagree with the decision ofVCAT to appoint me guardian, they have 28 days to apply to VCAT for a rehearing. There are no fees to pay to make this application. They can also apply for a reassessment of the guardianship order at any other time, though they may need to establish a proper basis for the holding of the reassessment.
Paragraph 3. 7
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My officers are required to act in the represented person’s best interests. The Guardianship and Administration Act 1986 provides guidance in section 28 to establish what is in a person’s best interests. The Charter of Human Rights and Responsibilities Act 2006 requires that my staff consider the person’s rights as there set out.
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There is no modus operandi for my staff to dismiss the views of parents and ·advocates who advocate vigorously or require that they collaborate with DHHS. My staff are required to advocate for what they consider to be in the best interests of the represented person: It is important that they establish what is in a person’s best interests having regard to the legislative criteria. They will take into account the views of those involved, be that the represented person, parents, advocates, service providers, or DHHS. It is unlikely any one party will have a monopoly on what is the right thing to do. Circumstances can change or new information provided and so it is necessary to be open to these things and adjust one’s approach.
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- OPA does not countenance abuse of people with disabilities. It would be unusual for VCAT to appoint me guardian for a person if the evidence before VCAT were that the parents and their advocates were fighting abuses and human rights violations.
Paragraph 3.8 and Case Study 10
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OPA guardians do advocate for what they determine to be in the best interests of the represented person. It may be that the guardian did not concur with the parent’s or the advocate’s view as to what is in the person’s best interests.
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The case study is a partisan representation of a matter in which OPA and the author of the submission were involved. The study fails to note that a course of action was embarked upon for the assessment of the represented person. The advocate sought a new course of action, the guardian sought justification for the change prior to countenancing it.
Submission to the Senate Inquiry - paragraphs 268 to 274 Paragraph 268 — The effectiveness of OPA
- Ms Phillips is concerned that abuse continues to occur despite the existence of OPA and the work that OPA does. From this she concludes that OPA is ineffectual. I do not agree with Ms Phillips’ conclusion as it ignores the exposure and amelioration of abuse, neglect, exploitation and poor practice made by my office and the work of over 900 volunteers.
2, Community Volunteers visit facilities where people with disabilities live or receive services under three different Acts of the Victorian Parliament. In 2013-14 they made 5079 visits. They make a report after each visit that they leave with the service. In that same year they raised 4,861 issues. Their visits and reports change services and impact on lives. Serious matters are escalated to the Department of Health and Human Services for its intervention.
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Independent Third Persons are volunteers who attend police stations to assist people with disabilities participate in interviews. They are also there to ensure people with disabilities are treated properly.
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I have an advice service that received 13,795 calls in 2013-34, 4% (about 550) of which related to persons safety or being at risk.
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OPA was guardian to over 1,500 people with disabilities in 2013-14. As guardian I am charged by law to protect people from abuse and my staff work incredibly hard to ensure this.
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In recent years I have focused attention of my policy and research unit on abuse issues as I was challenged that I lacked data to support my contention that abuse was serious and significant.
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In response to learning that many disability services did not know how to respond to abuse that occurred in their facilities I worked with them to develop a guideline for addressing violence, abuse and neglect when these occur. The guideline is known by its acronym- IGUANA- and 27 organisations signed up to use it. It can be downloaded from the OPA website at http://www.publicadvocate.vic.gov.au/index.php/our-services/publications forms/research-reports/abuse-neglect-and-exploitation/5-interagency-guideline for-addressing-violence-neglect-and-abuse-iguana
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That the work ofOPA has not been enough to stop abuse is frustrating, but it does not mean its efforts have not protected thousands of Victorians with disabilities each year.
Paragraph 269- OPA’s relationship with the Department of Health and Human
Services
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OPA’s guardianship program has no special relationship with DHHS.
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I note that Ms Phillip’s perspective of OPA’s guardianship program is drawn from her limited experience of the that program and her perspective, or that of family members for whom she has advocated, as to what is in the person’s best interests. Ms Phillips cites two matters, but OPA was involved in over 1500 guardianship matters in 2014-15 year alone.
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OPA is only guardian as a last resort, often where there is no consensus as to what is in the person’s best interests or, if there is consensus, there is dispute about how those best interests are to be achieved. OPA listens to the views of family members and their advocates, of service providers and experts when making decisions. If family members and the advocates had an obvious solution capable of implementation, OPA would not have been appointed in the first place.
Paragraph 270 - Use of discrimination law as leverage for better services
- OPA is subject to the laws relating to civil litigation and acts in accordance with model litigant guidelines.
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- OPA entered into a confidential settlement on one occasion; this should not lead to any conclusion as to the merits of the claim in question.
Paragraph 271 -The appointment of OPA as guardian makes OPA complicit with
DHHS
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Ms Phillips represents that OPA provides guardians for people with disabilities. The Victorian Civil and Administrative Tribunal (VCAT) appoints the Public Advocate guardian for a person only as a last resort. If DHHS were the applicant for a guardianship order and that order was made by VCAT, VCAT could only make that order if it found, amongst other things, that there was a need for guardianship and there was no other person suitable to be appointed guardian.
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The case study provided by Ms Phillips makes it plain that it is VCAT that appoints the Public Advocate the guardian, yet it is written as though this is the fault of OPA and somehow an impermissible outcome of a legal process at VCAT. In Ms Phillips’ case study, if Mrs Smith considered the VCAT decision appointing the Public Advocate her daughter’s guardian wrong it was open for her to seek a rehearing of the matter. There is no cost associated with an application to have the matter reheard. In this case example, Ms Phillips represents the case as though it is a simple one, but it is not.
Paragraph 272- Manipulation of families by DHHS
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DHHS may seek guardianship for a person with a disability in its care where it is at loggerheads with the person’s family. VCAT must appoint a family member the person’s guardian if that person is a suitable person. Where VCAT does not do so, and instead appoints OPA as guardian, it has determined that the family member is not suitable. Often the OPA appointment is necessary to open channels of communication and end the deadlock between DHHS and the family.
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Family members and their advocates may be disappointed at not being given guardianship authority, but if there were a solution available through their efforts, OPA would not have been appointed and charged with forging a resolution.
Paragraph 27 4 - Ms Phillips conclusion
- Ms Phillips’ has provided no evidence that OPA has had little effect on violence, abuse and neglect. OPA puts forward its record as set out in its annual reports and those of the Community Visitors as evidence that it is effective. But that there is more abuse is very troubling and OPA is keen to expose that and have it addressed.
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Conclusion
| trust my response shows that these are complicated matters where people of
good will do try to find solutions to difficult circumstances.
| thank you for the opportunity to place my views on the record regarding the
matters raised by Ms Phillips.