NDIA Accountability Project

Reforms the disability community needs to the public guardianship and administration regime if it continues in Western Australia

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Reforms the disability community needs to the public guardianship and administration regime if it continues in Western Australia

A submission from People with Disabilities WA to the Community Development and Standing Committee

People with Disabilities WA

Belmont disability hub
213 Wright Street, Cloverdale, Western Australia
Email: systemic.advocacy@pwdwa.org
Voicemail: +61 8 6243 6948
Rural and regional voicemail: 1800 193 331
Website: www.pwdwa.org

Preface

The way Western Australia’s guardianship and administration scheme works and should (or should not) work is an is important topic that has been top-of-mind for people with disability affected by it in this state for decades.

Members of the disability community in WA were previously hopeful a supported decision-making commitment federally and in WA could transform people’s lives and eradicate substitute decision-making but that has not transpired to the extent people hoped for.

If public guardianship and administration continues in WA under the Public Trustee and the Office of the Public Advocate we want major reforms to the system so ongoing poor management practices that disadvantage people with disability and people under orders are replaced with supported decision-making practices and proper decisions that are truly in people’s best interest and result in the best outcomes for them.

This submission to the Inquiry into Guardianship and Administration in Western Australia is from People with Disabilities WA and is authored by PWdWA A/Senior Advocate Matthew Gee, Individual Advocate Michele Moynihan, Systemic Advocate Amanda Ellis, and myself – PWdWA CEO Kat Johns.

People with Disabilities WA is the peak disability advocacy organisation in Western Australia, representing the rights, interests, and voices of people with disability. PWdWA works hard to ensure that people with disability are included, respected, and empowered to participate fully in society, and is led by and for people with disability in WA.

In this submission to the Community Development and Standing Committee, PWdWA’s disability advocates have drawn on their professional and personal experience of guardianship and administration, their years of experience advocating for people with disability in Western Australia, New South

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Wales, Queensland, Victoria and the UK, and their lived experience as people with disability in Australia, the United Kingdom and abroad.

PWdWA is glad to have this opportunity to comment and share the commitment our board, staff and members have to supported decision making, addressing discrimination, supporting people with disability, and advocating for systemic change – including to the state’s public guardianship-and-administration regime which effectively acts as a substituted decision-maker for people.

PWdWA supports disability human rights and rights-focused solutions that involve and include people with disability and people under orders. We want to see rights-based solutions to any matters that relate to our disability community, and any laws and management of our affairs being co-designed with us for us.

As always, we firmly believe in nothing about us without us.

—Matt Gee, Michele Moynihan, Amanda Ellis and Kat Johns

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Acknowledgements

Acknowledgement of Country

We acknowledge Aboriginal and Torres Strait Islander peoples as the traditional custodians of Australia and acknowledge their continuing connection to land, sea and community. We acknowledge the traditional owners of the lands we live and work on, the Whadjuk and Noongar people, the Ngarluma, Yindjibarndi, Mardudhunera and Yaburara people, and the Wangkatha people, and pay our respects to elders past and present. Some of us come from afar, others from near and here, and acknowledge our deep gratitude at our shared access to these lands that were never ceded. Always was, always will be. We also pay our respects to all First Nations people reading this submission.

Acknowledgement of lived experience

We are a disabled people’s organisation of people with disabilities and we pay respect to all people with disability and all people with lived experience of disability reading this submission. We and acknowledge the awareness, sensitivity and deeply valuable lessons you have learned that you can share with the Australian community in your individual and group submissions to this community consultation and in co-designing Australian laws and policy to help our community leaders improve the lives of people with disability in our country.

Acknowledgement of opportunity

PWdWA thanks WA’s Community Development and Standing Committee for its invitation to provide our comments for the Inquiry into Guardianship and Administration in Western Australia and support its aims to “investigate how the Public Trustee and the Office of the Public Advocate deliver services to vulnerable people, including how they deliver services in collaboration with other relevant organisations in the health, disability and aged care sectors.”

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We encourage you as always to co-design all laws and management practices about us with us. Thank you.

Help and support

Before we start sharing our views, let’s begin with a content warning for the committee, our board, staff and members, and the wider disability community, and indeed anyone reading this submission.

People with disability who have experienced guardianship and administration, and challenges to, or curtailment of, their own decision-making by institutions and other people can find it distressing to remember and re-experience what they have gone through. People learning about other people’s experiences can react similarly.

With this in mind, we highlight that this submission may bring up deep emotions and reactions for you and other people and we encourage you to stay safe and seek support if you need it.

If you have immediate concerns for your safety, the safety of another person, or there is an emergency, dial triple zero in Australia or other similar numbers abroad, such as 911 in the US and 999 in the United Kingdom.

Non-urgent calls can also be made to police across Australia on 13 14 44.

The following Australian support services can also give you help and support across the country throughout the day and night:

  • Beyond Blue (1300 224 636) – A national chat line for people experiencing anxiety, depression or suicidal thoughts. You can call them, chat with or message a counsellor on webchat at www.beyondblue.org.au or visit their website for information resources.

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  • Blue Knot Foundation (1300 657 380) – A national helpline for adult survivors of childhood trauma. You can call them, visit their website at www.blueknot.org.au, or email helpline@blueknot.org.au.
  • Kids Helpline (1800 55 1800) – A national crisis support tailored for children and young people (aged 5 to 25), available 24 hours a day, 7 days a week.
  • Lifeline (13 11 14) – A national crisis support and suicide prevention service, available 24/7. You can call them, text 0477 131 114 or visit their website at www.lifeline.org.au.
  • National Disability Abuse and Neglect Hotline (1800 880 052) – A free independent, confidential service for reporting abuse and neglect of people with disability. You can call them between 9am and 7pm AEST/AEDT, Monday to Friday on non-public-holidays or find out more about making a complaint at www.jobaccess.gov.au/complaints-or-report-abuse/make-complaint-report-abuse.
  • National Relay Service TTY/Voice Calls (133 677) or Speak and Listen (1300 555 727) – A translation service people who are d/Deaf, hard of hearing, or have a speech impairment. You can call them or learn more at www.accesshub.gov.au.
  • Translating and Interpreting Service (131 450) – A translating and interpreting service for non-English language speakers. You can call them or visit their website at www.tisnational.gov.au.
  • 13YARN (13 92 76) – An Aboriginal and Torres Strait Islander crisis support line available 24/7. You can call them or find out more about how they can support you at www.13yarn.org.au.
  • 1800ELDERHelp (1800 353 374) – A national hotline to prevent the abuse and mistreatment of older people in Australia. You can call them or learn more at www.elderrights.org.au.

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  • 1800RESPECT (1800 737 732) – A confidential information, counselling and support service for people and families experiencing or have experienced sexual assault or domestic violence. You can give them a call or visit their website at www.1800RESPECT.org.au.

About us

Since 1981 People with Disabilities WA has been Western Australia’s peak disabled people’s community organisation representing the rights, needs and equity of all residents with physical, intellectual, neurological, psychosocial or sensory disability.

PWdWA is a member-based organisation that serves the disability community in WA with individual and systemic advocacy services. The organisation provides access to information, and independent individual and systemic advocacy support with a focus on the community’s most vulnerable people.

Providing support for people accessing national, state and local services, PWdWA is run by and for people with disabilities. The organisation has many lived experience advocates in staff and management and on its board. The team aims to amplify the voices of all people with disabilities in Western Australia and empower them to live their best lives in the community.

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Contents

  • Preface …………………………………………………………………………………………………………. i
  • Acknowledgements ………………………………………………………………………………………. iii
    • Acknowledgement of Country …………………………………………………………………………………………. iii
    • Acknowledgement of lived experience ……………………………………………………………………………… iii
    • Acknowledgement of opportunity ……………………………………………………………………………………. iii
    • Help and support …………………………………………………………………………………………………………… iv
  • About us ……………………………………………………………………………………………………… vi
  • Contents …………………………………………………………………………………………………….. vii
  • Introduction
  • Terms of reference

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Introduction

The way Western Australia’s guardianship and administration scheme works and should (or should not) work is an is important topic that has been top-of-mind for people with disability affected by it in this state for decades.

Members of the disability community in WA were previously hopeful a supported decision-making commitment federally and in WA could transform people’s lives and eradicate substitute decision-making but that has not transpired to the extent people hoped for.

If public guardianship and administration continues in WA under the Public Trustee and the Office of the Public Advocate we want major reforms to the system so ongoing poor management practices that disadvantage people with disability and people under orders are replaced with supported decision-making practices and proper decisions that are truly in people’s best interest and result in the best outcomes for them.

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Terms of reference

As we learned in a letter inviting PWdWA to make a submission, the Community Development and Justice Standing Committee will “inquire into and report on the guardianship and administration system in Western Australia.

The Committee will investigate how the Public Trustee and the Office of the Public Advocate deliver services to vulnerable people, including how they deliver services in collaboration with other relevant organisations in the health, disability and aged care sectors.”

The committee has the following terms of reference, to examine:

  1. The organisational capability of the Public Trustee’s office and the Office of the Public Advocate to represent and protect the human rights of vulnerable people.
  2. The organisational culture of the Public Trustee’s office and the Office of the Public Advocate and how this is impacting delivery of services to vulnerable people.
  3. The adequacy of mechanisms currently in place to resolve complaints, disputes and allegations.
  4. Accessibility of information, including whether the Public Trustee’s office and the Office of the Public Advocate provide information to relevant individuals and organisations in a timely, fair and transparent manner.
  5. Outcomes experienced by represented persons and their families because of decisions made by the Public Trustee and Public Advocate.
  6. Whether current oversight mechanisms are adequate to ensure guardians and administrators are held accountable for their decisions.
  7. The role and conduct of the State Administrative Tribunal as far as it relates to the above.

As result, we will structure our submission to follow the committee’s seven terms which follow below.

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1. The organisational capability of the Public Trustee’s office and the Office of the Public Advocate to represent and protect the human rights of vulnerable people

As a disability advocacy service supporting clients subject to Western Australian guardianship and administration orders, it is People with Disabilities WA’s view that the capacity of the office of the Public Trustee and the Office of the Public Advocate to effectively represent and protect the human rights of vulnerable people is limited.

PWdWA notes a key contributing factor to the limited effectiveness of the offices of the Public Trustee and Public Advocate is the high caseloads carried by public officers who are appointed guardians and trust managers in WA. The heavy caseload of public guardians and trust managers appears to significantly affect their ability to maintain consistent and meaningful communication with the individuals they represent. As a result, individuals under public guardianship and administration often experience reduced engagement, which can lead to diminished trust and confidence in the public system.

PWdWA believes public guardians’ and trust managers’ lack of communication and relationship-building can create barriers for the individuals to raise concerns or identify potential breaches of their human rights. Consequently, the overall effectiveness of the office of the Public Trustee and the Office of the Public Advocate in safeguarding and promoting human rights is reduced.

From PWdWA’s experience, the process of raising the concerns individuals have with both the Public Trustee and Public Advocate offices has highlighted ongoing systemic pressures with guardianship and administration in WA, particularly in relation to workload and resourcing, which continue to affect both offices’ service delivery.

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2. The organisational culture of the Public Trustee’s office and the Office of the Public Advocate and how this is impacting delivery of services to vulnerable people

People with Disabilities WA’s disability advocates are positioned on the outside looking in, where we see, learn and hear from our advocacy clients about their experience. PWdWA notes the organisational culture within the office of the Public Trustee the Office of the Public Advocate appears to be influenced by systemic pressure such as high caseloads, often resulting in a more process-driven approach to interactions with PWdWA clients rather than a person-centred approach. In PWdWA’s experience advocating for clients in WA who have orders in place, the non-customised process-driven approach of the offices of the Public Trustee and Public Advocate can result in people feeling unheard and excluded from decisions about their own lives, having a massively reduced trust in formal supports, and a further reluctance to raise concerns.

3. The adequacy of mechanisms currently in place to resolve complaints, disputes and allegations

People with Disabilities WA notes the limited adequacy of the mechanisms currently in place to resolve complaints, disputes, and allegations about the Public Trustee office and the Office of the Public Advocate. In PWdWA’s experience, complaints and dispute resolution, and response to allegations are not always accessible or regularly explained to clients of the Public Trustee and Public Advocate offices, who include many people with intellectual or cognitive disabilities. The lack of accessibility by Public Trustee and Public Advocate offices around complaints and dispute resolution creates an additional barrier to inclusion in systems that are already difficult to navigate, further reducing the ability of individuals to understand, engage with, or effectively use complaint and dispute resolution processes.

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4. Accessibility of information, including whether the Public Trustee’s office and the Office of the Public Advocate provide information to relevant individuals and organisations in a timely, fair and transparent manner

People with Disabilities WA believes the accessibility of information shared by the Public Trustee office and the Office of the Public Advocate should be improved to ensure it is readily available and easy to understand for clients. Greater transparency is needed so individuals under orders are clearly informed of their rights, processes, and key points of contact. Information produced by the Public Trustee and Public Advocate offices for individuals should also include clear guidance on the practical steps a client can take prior to the next review of their orders to improve their chances of those orders being varied or revoked. Importantly, this information should be consistently accessible to clients throughout the duration of their orders.

In PWdWA’s experience as an advocacy service, the information provided by both the Public Trustee and Public Advocate offices is generally fair and transparent once it is received. However, due to the high caseloads experienced by public guardian and trust managers and, at times, a lack of clarity around the role of an advocate, there can be delays in obtaining this information. The information needed by clients and the advocates who support them is often only provided after multiple follow-ups and repeated attempts to engage public guardians and trust managers.

5. Outcomes experienced by represented persons and their families because of decisions made by the Public Trustee and Public Advocate

People with Disabilities WA has seen many individuals under orders struggle with the decisions made by public guardians and trust managers from the Public Trustee office and the Office of the Public Advocate about them. Decisions

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labelled in people’s best interest, but that do not consider them as an individual – with their own wants and needs and preferences – is truly sad to see.

PWdWA notes the workloads faced by public guardians and trust managers is daunting and unacceptable and must be addressed to enable them to make better and more inclusive decisions about people under orders. The situation where people are being unnecessarily kept under extended orders must be reversed, and so should management of their finances that significantly erodes their financial position to the benefit of the state.

PWdWA believes people with disability should be backed up with supported decision-making wherever possible, and not be put under substituted decision-making that puts their needs and choice-and-control last, behind the state.

6. Whether current oversight mechanisms are adequate to ensure guardians and administrators are held accountable for their decisions

People with Disabilities WA notes the current oversight mechanisms at the Public Trustee office and the Office of the Public Advocate require improvement to ensure public guardians and administrators are appropriately held accountable for their decisions. The perspectives of individuals subject to orders must be taken seriously and their complaints about the Public Trustee and Public Advocate offices and their decision-making and behaviour must be thoroughly investigated.

PWdWA observes that while decisions made by public guardians or trust managers are often documented in writing as being in the individual’s best interests, the decisions may be made without meaningful engagement with the person or without a full understanding of an individual’s circumstances. As a

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result, decisions made with good intentions by public guardians or trust managers can still lead to detrimental outcomes for an individual.

PWdWA believes there must be stronger processes in place at the offices of the Public Trustee and Public Advocate to allow concerns raised by an individual or their advocate to be properly addressed and reviewed, and, where necessary, a process be followed to ensure decisions are amended to one in the true best interest and outcome for the person, while giving them dignity of risk. Public guardians and administrators should be held accountable not only for their decisions about a person under orders, but also for the direct and broader effects those decisions have on the individual’s life.

7. The role and conduct of the State Administrative Tribunal as far as it relates to the above

People with Disabilities WA believes the State Administrative Tribunal should continue to move towards a more person-centred and strengths-based approach in how it oversees and holds public guardians and administrators accountable. This includes SAT placing greater emphasis on the lived experience of the individual subject to orders, and ensuring the person’s voice is meaningfully considered at all times.

PWdWA strongly believes that SAT should prioritise approaches that support the individual’s autonomy and decision-making capacity, especially where there is sufficient information to confirm and ensure supported decision-making can be done safely.

PWdWA also believes SAT should adopt a more holistic view of the effect of decisions made by public guardians and administrators, recognising not only the intended outcomes of decisions but also the broader effects decision-making has on the individual’s wellbeing, autonomy and quality of life.

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PWdWA has seen SAT and its tribunal members make decisions that favour the evidence of the Office of the Public Advocate above all other evidence or information, and note this unfortunate practice risks entrenching WA state-based statutory authorities as the ultimate authority – the party possessing the greatest knowledge and understanding of a represented person or proposed represented person and what is important to them. PWdWA knows this not to be true. People under orders are still capable of making decisions related to them, and other sources of information relevant to decision-making exist outside of the Public Advocate office and should be given weight and merit. The information presented by our advocates has merit and authority and should not be automatically or consistently ‘trumped’ by OPA officers without merit as a matter of principle, on the say-so of tribunal members.

PWdWA acknowledges the mechanisms of both Public Advocate guardians and OPA investigators are and should be weighted differently. OPA guardians who are providing reports regarding represented parties for whom they are guardians should be required to submit these reports at least 10 days before the hearing. Often a person needs to view the documents presented with an advocate or another support person, and they need time to line up a time to access the records in person in company. If the OPA report is filed only days before the hearing, this is an unfair impediment to a person – particularly one with disability – having access to their information with adequate time to prepare, particularly if there is new information contained in the OPA report. A person coming before the tribunal needs time to understand and have their advocate explain, in a way they can understand, what the evidence means and how the information might affect the decisions made about them by the SAT member who will decide what happens to them.

PWdWA believes there must be further education and training for SAT members regarding the conflict of interest frequently referred to in decisions

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about people with National Disability Insurance Scheme plans and their family members applying for guardianship. PWdWA’s advocates have experienced blanket assertions made by SAT members that conflict of interests arise if the proposed family member has been receiving paid payments as a host family under Independent Living Options supports. The National Disability Insurance Scheme Act 2013 and its guidelines stipulate that family members and guardians can only apply to be paid for supports provided in exceptional circumstances. There is a risk that Western Australia’s SAT members are disregarding the existing provisions in the NDIS Act that act as safeguards against the highlighted potential conflict of interest. WA should mandate that SAT members should have robust evidence that the proposed family member is likely to commit fraud if they have decision-making authority over the NDIS services a protected person receives, if members cite a conflict of interest as the overarching concern they have had in reaching their decision. A simplistic presumption that a person’s family member will act inappropriately against the safeguards of the NDIS Act is legally unacceptable and inappropriate. SAT members being unnecessarily paranoid about unlikely conflicts of interests isolates people under orders from their strong support networks and the community that surrounds them.

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