Action for More Independence & Dignity in Accommodation

1st Floor, Ross House, 247 Flinders Lane, Melbourne Vic 3000 Phone: 9650 2722 Fax: 9654 8575 Email: amida@amida.org.au Website: www.amida.org.au Inc No: A001608SV ABN: 32 993 870 380

Advocacy, Self Advocacy, Rights, Accessibility, & Community Living for People with a Disability

Inquiry into the National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017 AMIDA’s submission

AMIDA (Action for More Independence & Dignity in Accommodation) is an independent advocacy organisation which advocates for good housing for people with disability. We provide advocacy to individuals, with priority given to people with an intellectual disability, and advocate for change in systems which prevent people from achieving good housing.

AMIDA acknowledges that people with disability have a right to a choice of with whom they live and where they live. Further, people with disability have a right to good quality housing which is accessible, affordable and non-institutional. People with disability have a right to live in the community with access to support to participate and have a good quality of life.

AMIDA strongly supports the United Nations Convention on the Rights of Persons with a Disability and works to assert these rights and community inclusion for people with a disability and supports people with disability as valued members of our community. AMIDA recognises that people with disability contribute to and develop our community.

In this submission we have addressed several areas we believe will improve the Quality and Safeguards Bill with a view to providing a strong framework. The Act this Bill leads to should be seen however as a work in progress, with regular review of the legislation timetabled into it. This review must be public to allow people with a disability and their supporters and advocates the opportunity to make suggestions that will improve the Quality and Safegards Framework.

Independent Advocacy must be enshrined as a Key component within the Framework Bill.

AMIDA is part of the Australian Government’s National Disability Advocacy Program that funds agencies across Australia to provide people with disability access to effective, quality, experienced, independent disability advocacy that promotes, protects and ensures their full and equal enjoyment of all human rights enabling full community participation.

This program and its funding allows people of all ages with disability to receive advocacy support from one of these agencies free of charge to support them to have their voice heard, their rights upheld and the power to make their own choices and decisions over matters that affect their lives, including the support services they receive via the NDIS.

While many people can successfully advocate for themselves, some find it hard or are unable to speak up and require advocacy support to do so. An advocate is someone who speaks, writes or acts on behalf of another person or group of people with no conflict of interest and in the best interests of their client, to promote, protect and defend their welfare, interests and rights.

AMIDA considers that the NDIS Quality and Safeguarding framework cannot effectively achieve its aims without the support of independent advocates, self advocates or self advocacy groups to support people with disabilities. While the Bill does not specifically address the provision of independent advocacy, the framework the Bill establishes relies on the provision of independent advocacy, yet its continuance is by no means guaranteed.

In fact the Quality and Safeguards Framework document released in February 2017 refers to the National Disability Advocacy Framework as a key component. As a key component we believe Independent Advocacy provision must be maintained, protected and ensured as a key component of this Quality and Safegards Framework. We believe there should be reference to the necessary provision of independent advocacy within the Quality and Safeguards Bill, particularly as provided via the Disability Services Act 1986 and the National Disability Advocacy Framework.

Independence and powers of the Commission

In Victoria the Office of the Public Advocate reports to Parliament annually. This is recommended for the Commission established under the Bill as it ensures Parliament is informed and able to act if the Quality and Safeguards Framework is not effective in its goal. This line of reporting also provides the Commission with independence.

The Quality and Safeguards Framework document outlined the investigative powers of the Commission including the power to initiate own motion inquiries. This power is unclear in the Bill and appears to be restricted to being based on actual complaints received. Serious incident reporting in state jurisdictions and the recent inquiries into

Abuse and Neglect

abuse and neglect have revealed that complaints are often not made; despite the reality of serious incidents, abuse and neglect occurring. The Bill needs to be clear that the Commission can initiate inquiries into areas it believes warrant investigation, rather than relying on complaints before the investigation can be initiated.

Evidence for the need for these provisions is contained in the Victorian Ombudsman Investigation into Disability Abuse Reporting, 2015. The Phase 1 report looked at the effectiveness of the Disability Support Commissioner and noted,

“10. The DSC is also reliant on receiving a complaint about abuse allegations before being able to utilise legislative powers. The DSC does not have jurisdiction to conduct own motion investigations without a specific complaint, although as described in this report, it is loath to use the investigation powers it does have.”

In Victoria the Disability Act 2006 has now been amended to grant the DSC increased powers including to initiate own motion investigations. The Commission established under this Bill must have these powers also.

Senior Practitioner

The role of Senior Practitioner seems to limited in the Bill and reliant on the existence of state bodies to authorise restrictive practices. There is not clarity about the role, particularly where state bodies differ from each other in role and function. Is it the role of the federal Senior Practitioner to ensure there is a consistent approach to approval of restrictive practices across all of Australia? With different jurisdictions there is huge potential for the Quality and Safeguards Framework to be ineffective in this important area of rights protection.

The Senior Practitioner role also needs to be strengthened and given more connection to the quality assurance area as it has a developmental role in relation to profession practice based on evidence. Non-compliant service providers could for example be obliged to engage with the Senior Practitioner to improve performance.

Worker screening

Managers and finance workers of services must also be subject to screening. Financial abuse for example, will possibly occur under the NDIS as many people receiving services will be unable to ensure invoices for service match supports actually delivered.

Workers should be subject to international police check if they have worked overseas for 6 months or more, which is a recent new requirement in Victorian worker screening.

Compliance and Enforcement

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There is a need for a strong regulatory framework to be developed quickly to underpin these provisions in the Bill and an audit of the use of these regulations by the Commission and the Registrar. The prompt development of regulations must be built into the Bill as must an audit of effective use of compliance and enforcement mechanisms. This audit could perhaps by conducted by either the Commonwealth Ombudsman, or Commonwealth Attorney general. Evidence for the need for these provisions to be promptly developed and audited is contained in the Victorian Ombudsman Investigation into Disability Abuse Reporting, 2015. The Phase 1 report looked at the effectiveness of statutory oversight, compliance and enforcement and found that while legislation allowed for these mechanisms, their establishment in regulation was significantly delayed and rarely were these mechanisms used. The following excerpts from the report details these findings in relation to Supported Residential Services (SRS’s).

    1.  232. My officers reviewed the department’s records for inspections, complaints,
         notifications and actions for four SRS classified as high risk and noted the
        following issues:

• • an SRS in the Gippsland region underwent 21 inspections in a 28 month period. Seventeen of these inspections found the proprietor non-compliant with many of the accommodation and support standards, including those relating to medication, staffing, care plans, and incident reporting. In spite of the high level of non-compliance by the SRS, no enforcement action was taken by the department against the SRS proprietor
• • in the Eastern Metropolitan region, an SRS was subject to 11 inspections in an eight month period. The SRS was non-compliant in eight of the inspections. Areas of non-compliance included medication, quality of food, staffing and emergency management. No compliance actions were taken by the department in relation to this SRS
• • forty-five inspections were carried out in a 30 month period for an SRS in the Western Metropolitan Region. Fifteen inspections found the proprietor to be non-compliant. Two inspections found that serious incidents had occurred but no incident reports were found to support the events. Other non-compliance identified during the inspections related to the actions of the manager and other staff, a hazardous environment, medication errors, staffing requirements, and incident reporting. No enforcement actions were taken by the department in relation to this SRS
• • in the Northern Metropolitan Region, 24 inspections were carried out in an SRS over a 25 month period. The SRS was identified as non-compliant in 14 of these inspections. An inspection in February 2014 identified numerous areas of non-compliance including issues with the management and administration of medication. The inspection record notes that a compliance instruction was issued at this time and six follow-up inspections were carried out to monitor the proprietor’s response to the instruction. On the sixth inspection the proprietor was found to be compliant. Just over a month later, another inspection was conducted and the proprietor was again non- compliant with medication requirements, staff rostering and environmental

conditions. Another compliance instruction was issued by the department to which the proprietor of the SRS failed to respond.

• 240. In my April 2015 report, Investigation into Department of Health oversight of Mentone Gardens, a Supported Residential Service108, I identified concerns about the department’s delay in implementing processes to enable them to issue infringement notices. I commented on the department’s failure to issue infringement notices to the SRS proprietor for repeated non-compliance and its lack of enforcement capability:

  … nearly three years since the commencement of the SRS Act, and over 24 years since the commencement of the Health Services Act, the department has never issued an infringement notice to an SRS proprietor, despite having the legal power to do so.

• 241. When asked at interview what enforcement action the department had taken since the implementation of the SRS Act, a manager in the SRS program said:

  Since the new legislation … we have used compliance instructions … there’s been one suspension of [SRS] admissions ...
  

  ... the process for infringement notices hasn’t been approved yet, so we haven't been able to do that [issue infringements], we’ve had no prosecutions in [the region], we've had no undertakings or compliance notices provided in [the region].
    
     The compliance notice and undertakings, although the documentation hasn’t been decided … or the processes … I feel confident that if we had one we’d probably be able to do that and similarly with prosecutions we'd be able to do it.
  

• 242. The Manager was asked why the department was using compliance instructions109 when there were statutory enforcement options available under the SRS Act. He said:

  The compliance notice … requires that there have been steps put in place to draw this to your attention. That you’ve done something about it. … I mean to have a notice put up in your SRS for all and asunder [sic] to see that you’re not complying, is some way down the track of saying that you’ve been a been a naughty person, so there has to be some sort of information to say what the problem has been beforehand.

• 243. The Manager also said that if infringement notices were in place he would use them and that they would be very effective. He likened the effectiveness of an infringement notice to that of a speeding fine:

       If you’re ten kilometres over the speed limit, and the police have to prosecute you every time you do that, it’s incredibly onerous on everybody involved and incredibly expensive but if they give you a speeding fine … if you get enough speeding fines you’ll stop doing it – same thing with an infringement notice …

• 244. With the exception of one SRS where admissions were suspended, the department has not used any of the statutory enforcement powers available to it under the Act to enforce compliance by SRS. The only other enforcement action taken by Authorised Officers has been the issuing of compliance instructions.

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The Victorian Ombudsman also made the point in her conclusions to the investigation that

e. 552. A key to achieving improvement from a complaints handling system lies in having a systematic approach to recording complaints and outcomes. Information on complaint trends, aggregated complaints data and individual and systemic issues should be publicly reported at least annually.

e. 553. The oversight body should be transparent in relation to the work it performs and its decision-making. There should be appropriate reporting on the operation of the complaints process against set performance standards.

Assuming this recommendation is accepted and the enforcement and compliance provisions of the Bill are quickly regulated for and utilised, including banning providers, there need to be provisions within this area to ensure such banned providers do not simply rebrand and reform their service in order to avoid de- d registration and banning.

For example, information about penalised, deregistered or banned providers including the names of individual company directors must be made public. Quality Auditing and certification

Most services should be subject to the highest level of compliance which is certification, including gardening, domestic cleaning and other support services provided in a domestic setting. These services have access to people in their homes with no observers and there is a risk of abuse. The purpose of this Quality and Safeguards Bill is to protect people with disability against risk. We do not believe it is appropriate to downplay this risk on the basis of the higher workload that will result if all or most services are subject to proper quality auditing and certification.

That is the job. It must be done because without it we know people have been abused and will be abused.

The lighter verification process must be reserved for services delivered in a setting where the risk is extremely low, such as in very public settings. Certification must be required of all services that are provided in a domestic setting.

This was also recommended in the Victorian Ombudsman’s, Reporting and investigation of allegations of abuse in the disability sector: Phase 1 – the effectiveness of statutory oversight 2015.

e. 555. The NDIS promotes a risk-based framework for provider registration, signifying ‘that providers of support types where there is potentially a greater risk to participants will have to comply with a stronger regulatory framework than providers in low-risk areas like home handyman services220’. Focusing on the provider alone will not determine the risk a service may pose to a user.

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service user at home may be equally at risk of abuse and exploitation as one living in a supported accommodation environment.

2. 556. A system focused on individual needs should recognise that some users are more vulnerable than others, regardless of how or where they purchase their supports. It is important that the NDIS safeguarding system includes mandatory reporting, and a greater role for assessment of capacity and need for advocacy.

Finally, proper Quality Auditing for certification cannot simply be of policies and procedures. Actual independent interviews with service users must occur within the first 6 months of service provision of a new service provider and then annually. Some jurisdictions, such as NSW, have watered this down and are allowing policy and procedure audits only for the first three years. Unfortunately we know from recent Inquiries into abuse that what is said on paper and in policy can be very, very different to the actual experience and treatment of people with disability. It is for this very reason the Quality and Safeguards Bill has been drafted and it needs to establish that quality audits including the views of people using services will be mandatory within the first 6 months of any new service and annually thereafter.

Sincerely,

Pauline Williams

Housing Rights Co-ordinator

Action for More Independence and Dignity in Accommodation (AMIDA) 3rd August 2017.