Safeguarding Task Force – Report - July 2020

©) Government of

=< South Australia

Safeguarding Task Force

Report

31 July 2020

Kelly Vincent David Caudrey

Disability Rights Advocate Disability Advocate

Office of the Public Advocate

Safeguarding Task Force – Report - July 2020 S afeguarding

DavidDisability

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Safeguarding Task Force – Report - July 2020

Contents

1 Background ………………………………………………………………………………………. 3

2 Methodology ……………………………………………………………………………………… 6

3 The National Disability Insurance Agency (NDIA) ………………………………… 7

4 NDIS Quality and Safeguards Commission ……………………………………….. 12

5 State Government…………………………………………………………………………….. 13 5.1 Health Checks …………………………………………………………………………. 14 5.2 Adult Safeguarding …………………………………………………………………… 15 5.3 Screening ………………………………………………………………………………… 16 5.4 Community Visitor Scheme ………………………………………………………… 17 5.5 Capacity Development and Advocacy …………………………………………. 20

6 Conclusion ………………………………………………………………………………………. 21

7 Safeguarding Gaps…………………………………………………………………………… 23 7.1 Safeguarding Gap 1 ………………………………………………………………….. 23 7.2 Safeguarding Gap 2 ………………………………………………………………….. 23 7.3 Safeguarding Gap 3 ………………………………………………………………….. 23 7.4 Safeguarding Gap 4 ………………………………………………………………….. 23 7.5 Safeguarding Gap 5 ………………………………………………………………….. 23 7.6 Safeguarding Gap 6 ………………………………………………………………….. 23 7.7 Safeguarding Gap 7 ………………………………………………………………….. 23 7.8 Safeguarding Gap 8 ………………………………………………………………….. 23 7.9 Safeguarding Gap 9 ………………………………………………………………….. 24 7.10 Safeguarding Gap 10 ………………………………………………………………… 24 7.11 Safeguarding Gap 11 ………………………………………………………………… 24 7.12 Safeguarding Gap 12 ………………………………………………………………… 24 7.13 Safeguarding Gap 13 ………………………………………………………………… 24 7.14 Safeguarding Gap 14 ………………………………………………………………… 24

8 Recommendations …………………………………………………………………………… 25 8.1 Recommendation 1 …………………………………………………………………… 25 8.2 Recommendation 2 …………………………………………………………………… 25 8.3 Recommendation 3 …………………………………………………………………… 25 8.4 Recommendation 4 …………………………………………………………………… 25 8.5 Recommendation 5 …………………………………………………………………… 25

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Safeguarding Task Force – Report - July 2020

8.6 Recommendation 6 …………………………………………………………………… 25 8.7 Recommendation 7 …………………………………………………………………… 25

9 Attachments …………………………………………………………………………………….. 27 9.1 Glossary ………………………………………………………………………………….. 27 9.2 Safeguarding Task Force Members …………………………………………….. 30 9.3 Terms of Reference ………………………………………………………………….. 31 9.4 Written submissions from Task Force Members ……………………………. 33 9.5 Meetings with key people …………………………………………………………… 34 9.6 List of submissions……………………………………………………………………. 36 9.7 Other documents ……………………………………………………………………… 38 9.8 Bibliography …………………………………………………………………………….. 39 9.9 Legislative Comparisons across jurisdictions for CVS ……………………. 42

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1 Background The Minister for Human Services established the Safeguarding Task Force on 21 May 2020 with responsibility to examine and report quickly on gaps and areas that need strengthening in safeguarding arrangements for people with disabilities living in the State.

It is clear we have some gaps in our system for our most vulnerable people with disabilities. The case of Ann Marie Smith has just shocked everyone. There have been many failings and we want to correct them.

Minister Michelle Lensink 2020

The suffering and death of Ann Marie Smith has galvanised the community. The sheer horror of what is alleged to have occurred in the last 12 months of her life and the manner of her death is what nightmares are made of. For people with disabilities, particularly those who are more vulnerable because of physical limitations or communication difficulties, and because of social factors such as isolation from friends, family, and community, there is an overwhelming fear that what happened to Ann Marie could happen to them. For parents of children with disabilities, it sets fire to a pervading anxiety about “will my beloved son or daughter be looked after properly when I am gone or can’t care for them anymore?” For service providers, there is sharply heightened awareness that their policies, procedures and training of staff might be inadequate in upholding their clients’ rights – for a fate like Ann Marie’s to occur for any person with a disability supported by their organisation would be catastrophic. For Government agencies, consideration must be given to what policy settings and systemic failures allowed Ann Marie Smith to suffer the fate she did. This report uses the terminology people with disabilities to refer to the disability community. We acknowledge and respect that there is a range of views about language and celebrate the right of all people to identify as they see fit. Presently in South Australia, disability rights are theoretically protected by the Disability Inclusion Act 2018, the Equal Opportunity Act 1984 and, at the Commonwealth level, the Disability Discrimination Act 1992 and the Australian Human Rights Commission Act 1986. Internationally, disability rights are laid out in the United Nations Convention on the Rights of People with Disabilities (UNCRPD). Despite the existence of these mechanisms to spell out the rights of people with disabilities, the lived experience of many is something entirely different. While this Task Force did not investigate the specific circumstances surrounding Ann Marie Smith’s treatment and death, it is important to acknowledge them as an example of the terrible consequences of failing to truly enact the rights of people with disabilities on both the individual and societal level. We are most concerned about contraventions of the UNCRPD that occur in the following areas:

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Article 10 – Right to life Article 19 – Living independently and being included in the community Article 20 – Personal mobility Article 22 – Respect for privacy Article 25 – Health Many contraventions of the UNCRPD and other policies can exist in the life of a single person. Many of the abovementioned legislative protections for people with disabilities include exemptions for governments and other bodies and are based on individuals bringing action against an offending party rather than being proactive. People with disabilities remain undereducated about, and unsupported to pursue, their rights. The lack of state funding of disability advocacy bodies is part of this problem. So, too, is the inaccessibility of society in general. The access and inclusion barriers that exist in systems, including transport, health and education, can inhibit people with disabilities from speaking up and escaping abuse. The views of support workers and disability service providers are often seen as more important or credible than those of people with disabilities. A pervasive view about people with disabilities sees them as passive recipients of support services for which they should be grateful. People can be labelled as troublemakers if they make complaints about the services they receive. The nature of disability support work sometimes elicits feelings of pity and reverence from the general population, and can be seen as excusing the abuse that sometimes occurs. It is not enough for service providers to have a “zero tolerance” philosophy on abuse. They must also refer matters of abuse to the police for criminal action. Additionally, they must honestly acknowledge and address their own failings as a service provider.

Rather than asking why people do not speak out, we must identify and destroy the barriers that stop them from doing so, and identify, punish, and remove as applicable those who perpetrate abuse or otherwise present a risk to the happiness, safety, dignity, autonomy and ultimately the lives of people with disabilities.

Kelly Vincent

This report  is not an exercise in apportioning blame – other investigations  will

uncover what specifically happened to Ann Marie Smith. There is a South Australian Police (SAPOL) investigation, Coroner’s examination, an independent inquiry by Hon. Alan Robertson (a former Federal Court judge) on behalf of the NDIS Quality and Safeguards Commission and a SafeWork SA investigation. The purpose of this Task Force is to quickly identify gaps in services and systemic failures that let this tragic event occur. If those gaps and failures are not rectified, similar tragedies could occur again. Members of the Task Force want to emphasise that the ways in which a person with a disability connects to others and is able to direct and control what happens in their own life will help to proactively avoid abuse and neglect.

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By creating a good life you are preventing abuse.

Prof Sally Robinson

The Interim Report concentrated on:  preventative measures, whereby government agencies and service providers have policies, staff training and safeguards in place to minimise the risk of abuse or neglect while, at the same time, not derogating from the freedom and agency of the participant, and  corrective measures – how the system responds when things go wrong. How

are  policies, procedures and  training  modified  to  mitigate  the  risk  of

reoccurrence of adverse events?

This updated report has more to say on all these matters, as the Task Force considered evidence and options and listened to the views expressed by many individuals and groups who wished to have input.

This Report  of  the Safeguarding Task Force  also  deals  with  developmental

measures – how people  with  disabilities  are empowered  through  education,

experience and opportunity so that they can have a life of their own choosing, a life they control, a life of which they are the author – and how government policy can foster that development.

Is it possible to design a framework whose primary aim is to promote people’s wellbeing and safety and maximise their opportunity to have a good life? Is it possible to capture the learning to date from people, families and workers and give some indication of what helps to keep all citizens safe, including a

mixture  of  local  informal  supports such as  family,  friends,  neighbours,

community connections and formal statutory supports such as regulation, police checks and registers? What other processes are in place in today’s society that promote wellbeing, balancing informal and formal supports? Is it

possible to develop a framework that benefits  all citizens not  just those

identified as vulnerable?  What should be the potential national  role of

mechanisms that exist in some jurisdictions but not others e.g. care concerns units and community visitor programs under an NDIS?

Walker, Fulton and Bonyhady 2013

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2 Methodology

The membership of the Safeguarding Task Force  is listed in Section 9.2  The

membership comprised people with a lived experience of disability, family members, service providers and State Government officials. This allowed multiple perspectives to be tapped. The Terms of Reference for the Task Force are given in Section 9.3 The Task Force met formally on three occasions (27 May, 10 June and 15 July

2020. prior to submitting this Report on 31 July 2020. In addition, a 4-hour think-tank was held, involving the co-chairs and the members of the Task Force with a lived experience of disability. Some Task Force members have made written submissions which are available via the link in Section 9.4. Importantly, the co-chairs met with a wide variety of people who wanted to talk to them about safeguarding issues. Meeting notes were taken for each meeting, the notes were checked with the person (or persons) interviewed and permission obtained to include them in the attachments to this Report. That way the Report is a repository of material that can be accessed for future policy development. The Interim Report was delivered to the Minister on 15 June and was publicly released by her on 16 June. The Interim Report was widely circulated and an Easy Read version was created and disseminated on 10 July 2020. It was made clear that feedback would be welcome and approximately 70 contributions were made in writing and the co-chairs met with 85 people (see list in Section 9.5). This Report identifies 14 gaps in safeguarding (12 of which were identified at least in preliminary form in the Interim Report) and makes 7 recommendations to address those gaps. We have taken into account what people have told us through written

submission and  interview.  We did not have  public hearings  or seek formal

submissions – that is a task left to others, especially the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (the Disability Royal Commission) which has signaled its intent to take up this matter at a later time. A version of this Report will also be prepared in Easy English. This Report looks at systemic issues that create gaps in safeguarding arising from the operation of the National Disability Insurance Agency (NDIA), the NDIS Quality and Safeguards Commission (the Commission) and State Government agencies. We decided that this Report would subsume the Interim Report, i.e. it can be read on its own and the material in the Interim Report is all included in this Report, but adjusted according to feedback received.

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3 The National Disability Insurance Agency (NDIA)

While there have been many issues identified in the performance of the NDIA, ranging from timeliness and responsiveness of the agency through to their way of

doing  business,  this  report  concentrates  on  matters  that  bear  directly  on

safeguarding. It is clear that the NDIS is a most welcome innovation in Australia – a universal, national, insurance-based view of disability that enshrines respect for the individual participant and their ability to exercise choice over such matters as “who provides services” and to exercise control over precisely how those services are delivered. These are intrinsic rights founded on the United Nations Convention on the Rights of Persons with Disability (2006), of which Australia is a signatory, and people with disabilities rightly demand that they are not lost. A drive to “safeguarding at all costs” could lead to loss of autonomy, denial of the ordinary risk-taking that all citizens enjoy and even a return to institutionalisation (even if that is virtual through such things as electronic monitoring).

We need to be careful that people don’t lose trust in the NDIS and the good things that it has done and also that we don’t portray every person with a disability as needy and vulnerable.

Jacky Chant

For the majority of NDIS participants the current model of service delivery works well, at least it will work well when all the administrative and organisational problems of the NDIA are worked out. For a smaller group of participants the NDIA approach is inherently risky because a lack of support around their learning, physical, and communication needs can make them more vulnerable to neglect and abuse, including coercion.

The prevention of abuse, neglect and exploitation starts with the NDIS Plan

Anne Gale, Public Advocate

The NDIA has not had a clear, transparent concept of “vulnerability”. However, during the COVID 19 pandemic the NDIA identified over 5,000 NDIS participants, in SA who are “vulnerable” and these people have had welfare checks conducted by the NDIA. The cohort for the COVID 19 vulnerability strategy included participants:  receiving certain levels of core daily activities supports;  already in the NDIA’s Complex Support Needs Pathway;

  receiving  disability related health supports,  including community nursing,

assistive technology for personal care/safety, diet management;  receiving behavioural supports;

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 aged over 55 years and with aged carers;  in indigenous communities; and

   living   in  Supported  Independent   Living   (SIL),   Specialist   Disability

Accommodation (SDA), Younger People in Residential Aged Care (YPIRAC)

or specific housing segments such as boarding houses or hostels. This welfare checking initiative conducted under COVID 19 needs to be built on when considering criteria of “vulnerability” and measures to address the associated risks. It is salutary to note that Ann Marie met none of these criteria for vulnerability so would not have had a welfare check. “Living alone” is a criterion that needs to be added. The NDIA has avoided the concept of “case management”, due to concerns that it

leads to disempowerment and condescension.  Instead,  it has created numerous

players with different roles that make perfect sense to the framers in the NDIA but make precious little sense to many participants or their families. So, the NDIA has the following cast of players:  The Local Area Coordinator (who works with the participant to get their plan together and assists in navigating access to the wider community) - the role of supporting people to access the wider community and mainstream services has been impacted by the rate of the roll out of the NDIS, placing a focus on getting people on to the scheme rather than connecting them with their community,  The NDIA Planner who signs off on the participant’s plan and may not have sufficient information about the participant to make an assessment of risks and vulnerabilities – for participants in the Complex Support Needs Pathway the NDIA Planner is the closest role to that of the traditional case manager,

  The Plan Manager who pays the participant’s bills from service providers,  if

the participant so-chooses who may not have met the participant or be involved in aspects of their life, and  The Support Coordinator who will only be included in the plan if the participant meets strict complexity guidelines and is usually only funded temporarily while the participant needs help to engage service providers. There is frequently no opportunity for a long-term relationship to develop a rapport, as funding may not continue year to year. Support is time-limited and considered capacity building and inappropriate for ongoing lifelong support. Less than 40% of NDIS plans include funding for support coordination and this is flagged by the NDIS as expecting to drop as time goes on.

As well as this cast of players there is an array of functions they perform - from local

area  coordination, support connection, support  coordination,  specialist support

coordination, plan management and  planning.     If  that sounds confusing and

unnecessarily complex  it is because  it  is.  Many a participant or their nominee

(usually a family member) is totally overwhelmed by this abundance of players and

functions and they end up doing  all the advocacy,  lobbying, chasing-up and

coordination themselves (i.e. case management hasn’t been done away with – it has lobbed back with the participant and/or their families, to their detriment). Potentially vulnerable individuals are those with complex support needs (including communication difficulties), cognitive challenges, poverty, domestic violence or lack

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of connection to family/friends/services. For individuals with any number of these vulnerabilities, putting together their services can be overwhelming and they may not know who to go to for help. Task Force members were at pains to emphasise that just because you have a disability that does not mean that you are therefore vulnerable. Some people may be vulnerable due to not being aware of what they need and what support is available to them. Having a process to identify potentially vulnerable participants is key and having a single locus of responsibility vis-a-vis the participant is essential for good practice. The concept of vulnerability needs to be assessed on a case-by-case basis and is not static. That is to say a person may be independent and or well connected for the majority of their life, but if these circumstances change, they may find themselves

more vulnerable.  Conversely, people can become less vulnerable over time.  This

assessment must occur in person so that nuances can be identified. It is critical that the participants or their families know where to go to for help, with a single point of

contact who  is responsible  for looking out  for the vulnerable participants and

ensuring their needed supports. The best entity in the NDIS system to perform such functions is probably “support coordination”, but it needs to be ongoing and it needs to be timely and responsive to need.

There are people who require case management FULL STOP! and there is no place for that in the scheme as it stands today

Sam Paior

Support Coordination also needs to be automatically inserted into the plan of any potentially vulnerable participant. The participant must be supported by the Local Area Coordinator (LAC) or NDIA to find and engage that service as a starting point.

In  addition, the support  coordinator needs  to ensure  that  all aspects  of  the

participant’s plan that are listed are implemented. The support coordinator provides an essential second pair of eyes to ensure good things are, and bad things are not happening in a participant’s life.

Case Management is so missing and most of those people are not aware that they can get support coordination in their package.

Karen Rogers

Any support coordinator that is employed by an agency that also provides other services for that participant is not an independent pair of eyes. Therefore there is conflict of interest. This was identified in the 2019 review of the National Disability

Insurance Scheme Act 2013 – Removing Red Tape and Implementing the NDIS

Participant Service Guarantee, David Tune OA PSM.

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“The NDIS Rules are amended to:

a) set out the factors the NDIA will consider in funding support coordination in an NDIS participant’s plan

b) outline circumstances in which it is not appropriate for the provider of support coordination to be the provider of any other funded supports in a participant’s plan, to protect providers from a conflict of interest.”

Tune Recommendation 16

Support Coordination and Core Supports must be separated, they must almost never be provided by the same provider. I am not saying that they should not do support coordination but they should not do it for the same client with few exceptions.

Sam Paior

This issue of the separation of the role of support coordination from other service provision is a fraught one and we have been challenged on this matter. There is no point casting the role of honest broker on to the support coordinator if they do not know the participant well, if they see their role as mechanistically providing service provider options, or if they have little knowledge of disability matters as they affect the lives of a potentially vulnerable participant.

Often the best support coordinators come from the service provider agency because they understand the disability and they know the participant.

Peter Hoppo, NDS

To not separate the roles invites conflicts of interest and in the wrong hands participant capture. To separate the roles, requires that support coordinators can perform some, at least, of the functions of a quality case manager and that they know the participant well. Looking at the NDIS from the perspective of the participant, they not only look for administrative efficiency (i.e. returned phone calls, answered emails) but also who to go to for help. There is too much navigation through a complex web expected of the individual participant. To get this right is not disempowering the participant – quite the reverse – it gives them the information and contact to exercise choice and control and take possession of their own lives. The NDIA is the agency with oversight of funding and system design. It is the agency that partners with LAC, which helps participants to better connect with their community. The NDIA has redirected LAC to expedite the transition of people into

the Scheme  to meet  their key performance  indicators.     It also funds support

coordination which connects an individual to the services they need. The NDIA needs to define the alerts for when a vulnerable participant is in difficulty. Comments have been made about the perceived lack of understanding of disability within LAC

and further  disability awareness training delivered by people with  disabilities  is

required.

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The NDIS, built on choice and control and insurance principles, has not seen itself as the case manager ultimately responsible for safeguarding vulnerable participants. This has to change and COVID 19 has started this process.

Safeguarding Gap 1

Potentially vulnerable participants are not routinely identified and assigned ongoing support coordination in their NDIS plan.

Safeguarding Gap 2

The support coordinator can be from the same agency that provides other core services for the individual, creating a conflict of interest.

Support coordinators need good familiarity with participants, their wishes and their

disabilities and they need to be available when the participant  is in  strife.    If,

pragmatically, the best support coordination is available from the service provider

agency  then, as  the Tune Review recommends,  there needs  to be  explicit

mechanisms to handle the conflict of interest.

Safeguarding Gap 3

Participants are not routinely linked to community activities so they are often isolated.

Assisting with access to the community has been the designated role of Local Area Coordination, but it has taken a lower priority than plan development during transition from state schemes to the NDIS.

Safeguarding Gap 4

Participants are not identified as potentially vulnerable by the NDIA and prioritised by LAC when carrying out the community connection role.

Safeguarding Gap 5

NDIS plans do not routinely include strategies to minimise participant risk e.g. coordination of health care (including dental, sexual and mental health), technology to aid independence and safety, capacity building for asserting rights, and recognition of cultural matters.

Plans need to be developed with participants being involved (with support if needed)

and plans need to be  fully implemented and the funding  fully expended.  The

utilisation of plans need to be monitored closely by the NDIA.

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4 NDIS Quality and Safeguards Commission

The  Commission   is  responsible  for  registering  service  providers,  handling

complaints,  recording adverse  incidents and  monitoring  the use  of  restrictive

practices. For a provider to be registered with the NDIA they have to go through a lengthy and somewhat costly process. This may not be viable for some smaller businesses or sole operators. It does not mean however that these unregistered providers do not have all the necessary skills to provide a quality service.

Unregistered  providers do not have  to adhere  to the  quality and safeguards

requirements of the Commission, including worker screening and audits, although they are expected to adhere to the code of conduct. It is up to the participant to determine whether an unregistered provider offers a safe and quality service. Only self-managed and plan-managed participants are able to use unregistered providers. Participants who are Agency managed can only utilise registered providers. The Commission needs to be a responsive and welcoming place for anyone to go to if they have concerns about the circumstances of an NDIS participant. Just as a participant, their nominee or their guardian needs a clear place to go to, so too do members of the public, relatives or any interested person. The Commission needs to have a mechanism to welcome and respond to notifications of adverse events that affect the welfare of participants.

The Commission only want to hear about providers not family members.

Sam Paior

What does get reported to the NDIS Commission is outrageous instances of neglect and abuse, what does not get reported is people sitting around all day in day options with nothing to do.

Richard Bruggemann

We don’t want to throw choice and control and dignity out in the name of safeguarding.

Sam Paior

Participants can self-manage (i.e. take the funding in their NDIS plan and organise

their services themselves  or through a nominee) or plan-manage  (i.e. use a

registered Plan Management agency to pay bills etc.). Then the risk when adverse events occur is treated as residing with the participant. Participants need to be aware of this risk. Reports of matters of concern by members of the general public are treated as complaints and the Commission looks to the participant or their nominee to make the complaint. If the participant is a vulnerable person then they are not likely to formalise a complaint and therefore the matter goes unreported. When a neighbour or family member is concerned about the welfare of a person with a disability they need to know where that can be reported without having to immerse

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themselves in bureaucracy. There also needs to be a clear process around what actions will be taken once a complaint is lodged, and how people can follow up their complaint. Additionally, the Commission does not routinely share information with the NDIA when participants may be at risk because a service provider is under

investigation.   This would  allow  the NDIA  to  contact and  support  affected

participants. The Commission does not deal with matters raised by individuals, except insofar as they reflect on the performance of a service provider. The Commission needs a clear, accessible process for anyone to register a matter of concern. The general public would look to a Commonwealth agency called “Quality and Safeguards Commission” as the natural place to approach with a concern about the health or welfare of a participant in the Scheme. However, the general population is unlikely to know of the existence of the Commission or how to approach it. The title “Quality and Safeguards Commission” may not be easily associated with where the general population would report abuse or neglect. For people with a cognitive impairment, understanding who and where to report matters is problematic. The Commission needs to reach out to these potentially vulnerable participants and not assume that the participant will know how to find the Commission when needed.

Safeguarding Gap 6

Participants and their families are unclear about how to raise matters of

concern  with  the Commission and  the Commission does not  routinely

undertake proactive inspections to vet the performance of service providers.

Safeguarding Gap 7

The NDIS Quality and Safeguards Commission does not adequately consider the risk factors associated with the use of unregistered providers of personal support, particularly for potentially vulnerable participants.

Safeguarding Gap 8

The Commission does not  explicitly require of  all providers of personal

support that there be at least two support workers for that individual (not necessarily at the same time) and that workers in participants’ homes have regular supervision.

5 State Government

The State Government has transferred responsibility for the funding and regulation of disability services to the Commonwealth and the NDIS. It is, however, responsible

for those  specific tasks  left  to   it under the  Bilateral Agreement between the

Commonwealth and South Australia 2018 such as the screening of workers, the

authorisation  of  restrictive  practices  and  Community  Visitor Scheme  (CVS)

arrangements. Full transition has now occurred, although the State is still a limited service provider under the NDIS, especially in group home accommodation and there are many people with psychosocial disability yet to enter the NDIS in SA. A

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number of NDIS participants have expressed to us the view that they have been abandoned by the State government in the transfer to the NDIS. NDIS participants in SA are still residents and citizens and can reasonably expect support from mainstream agencies. The Disability Inclusion Act 2018 addressed this issue. Since 1 July 2018 quality and safeguarding has been the responsibility of the

Commission with the exception  of the Department  of Human Services (DHS)

accommodation services which are in-kind and are not covered by the Commission. However, DHS accommodation services have a number of state-based safeguarding mechanisms including the DHS Incident Management Unit, the DHS Integrated Incident Management reporting system and DHS Internal Audit.

5.1 Health Checks

Having timely access to health care is crucial to preventing, treating and managing health conditions. There is much evidence that people with disabilities do not get a good deal from the health system, notwithstanding some excellent initiatives like the Centre for Disability Health. There is also considerable evidence that people with disabilities have a reduced life expectancy due to poor health monitoring and screening. Vulnerable individuals need to have regular health review. Currently all

people who have an  intellectual  disability are  eligible  for a prolonged health

assessment under the Commonwealth Department of Health, Medicare Benefits Schedule (MBS)-Item 707. Undertaking an annual health review with a general practitioner who is trusted and known to the person will lead to the best possible outcomes. Using the MBS prolonged health assessment will provide sufficient time (60 minutes) to collect a comprehensive patient history and undertake a thorough examination of the person’s medical condition and physical, psychological and social

function.   Providing a comprehensive health care management plan  including

necessary interventions and referrals (e.g. visiting nursing services) will lead to positive outcomes. The annual health check will also include regular checks for people depending on their vulnerability and health needs.

The MedsCheck  service  involves the  provision  of an in-pharmacy one-to-one

discussion between a pharmacist and a patient to improve the quality use of medicines. This service is funded via the Community Pharmacy Agreement and does not require a doctor’s referral. The Homes Medication Review is intended to maximise an individual patient’s benefit from their medication regime, and prevent medication related problems through a team approach, involving a referral from the person’s General Practitioner to an accredited pharmacist. The Home Medication Review is supported through the Medicare Benefits Schedule item 900. Accessing health care is the responsibility of the individual with support as required but where a vulnerable person does not wish to take up the offer of a check that should be a further alert to vulnerability and followed up with the individual by the support coordinator. Many people with a disability do not get supported to go to medical appointments in the first place, and, if they do, they are treated for their behaviour, not the underlying cause. Where a person is vulnerable because of health issues, their NDIS plan should include coordination (not provision) of their health care. There is a need for our

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health system, both medical services, funded by the Commonwealth and hospital services, provided by the state government, to improve their access for people with disabilities. This has recently been the focus of work undertaken by the Department of Health and Wellbeing and the Health Performance Council.

At  present, the  lack  of coordinated health supports means  that some health

interventions for people with disabilities occur as crises undertaken by the South Australian Ambulance Service. Its CEO, David Place, is reported to have said (Advertiser 3rd June 2020) that “one-third of calls involved chronic complex cases responsible for two-thirds of ramping time.” This is not only a highly inefficient way to provide health care; it is demeaning and life-threatening for the individual. A highly qualified retired health professional reports that, in the absence of coordinated health care, her niece has to regularly attend hospital by ambulance to receive even basic health services.

Safeguarding Gap 9

Regular health checks are not routinely made available to all vulnerable NDIS participants and their NDIS plan does not routinely include coordination of their health care.

5.2 Adult Safeguarding

The Adult Safeguarding Unit (ASU), located in the Office for Ageing Well (OFAW), has a strong focus on safeguarding the rights of adults at risk of abuse. This is established under the Ageing and Adult Safeguarding Act 1995 and, for the first three years of operation, has a remit of adults aged 65 years and over, and 50 years and over for Aboriginal and Torres Strait Islander people. The key functions include:  responding to reports of suspected or actual abuse of adults who may be vulnerable

  providing support  to safeguard the  rights  of  adults experiencing abuse,

tailored to their needs, wishes and circumstances  raising community awareness of strategies to safeguard the rights of adults who may be at risk of abuse. Whilst reporting to the ASU is voluntary, once a report of actual or suspected abuse is received, the ASU has a statutory responsibility to respond. The ASU has a range of information gathering powers to enable them to investigate reports of serious abuse effectively. However, in most cases the consent of the adult at risk is sought before any safeguarding action is taken. The role of the ASU is not as a regulatory agency nor to punish perpetrators, but to work positively with and for the adult at risk of abuse to facilitate safeguarding support, whilst preserving the relationships that are important to them. The remit of the ASU is slated to extend to all vulnerable adults in 2022. However, in view of current concerns about the potential vulnerability of many younger adults, particularly those with disabilities, consideration needs to be given to how this can be brought forward to ensure that those who are at risk of abuse can access appropriate safeguarding support.

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The National Disability Abuse and Neglect Hotline already exists but is not well known. This is a service that will take a report of abuse or neglect and triage to the relevant Commonwealth or State agencies for investigation and follow-up. In expanding the remit of the ASU to include younger adults at risk of abuse, appropriate relationships must be established with relevant other agencies, including the National Disability Abuse and Neglect Hotline and the Commission. This will ensure that appropriate information sharing and multi-agency collaboration can occur to enable effective response pathways and safeguarding support to be put in place, in line with the person’s wishes and circumstances.

Safeguarding Gap 10

There is currently no State agency to report abuse and neglect of vulnerable adults under 65 years of age. For its first three years of operation, the Adult Safeguarding Unit only has the legal remit to respond to reports of abuse and neglect of vulnerable adults aged over 65. Extending the reporting of abuse and neglect to vulnerable adults under 65 will require an extensive promotional campaign including the elements of prevention e.g. ‘it’s alright to knock and ask if I am ok”.

5.3 Screening All registered providers of disability services under the NDIS are required to ensure all staff working with people with disabilities are appropriately screened. Failure to abide by this renders a service provider in breach of their registration requirements. However, where a participant chooses to self-manage or plan-manage, they can use non-registered providers and there is no obligation for these providers to have screening checks on their workers. This is clearly a situation where the NDIS considers the individual is making their choices and taking personal responsibility if things go wrong. Under the Bilateral Agreement between the Commonwealth and South Australia 2018, the State is responsible for screening of people working with vulnerable people – the screening uses information available from police records, court appearances and personnel records of agencies, but so long as a person can pass these requirement they are cleared to work in the industry, but that does not guarantee that they are safe to be allowed to work with vulnerable people. It merely screens out people whose track record makes them un-safe for working with vulnerable people.

The Department  of  Child  Protection uses enhanced screening  of workers  in

residential care, involving psychological testing.  This  is a matter that warrants

further consideration, but enhanced screening is one mechanism among a number e.g. rigour in staff selection, training and supervision. The screening system is only as good as the information supplied and acted on. There is a particular problem when it comes to Commonwealth agencies e.g. the Commission, sharing information with the State so that the screening unit can be appraised of all relevant information when making a screening determination. It also appears, in a number of instances, that the Commission has not readily shared critical information with the NDIA.

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The availability of critical information from State authorities e.g. SAPOL also requires review. Clearly, when SAPOL is investigating a criminal matter, and before charges are laid, it may not be in a position to divulge that information to others e.g. the DHS Screening Unit. Clearly a service provider or care worker who is under investigation by SAPOL may pose a risk to NDIS participants but that risk is not known to the Screening Unit.

Safeguarding Gap 11

The DHS Screening Unit  is not quickly and  fully provided with relevant

information by  the  Commission,  the NDIA and some  State  agencies,

compromising the availability of information on an individual worker that might affect their suitability to work with people with disabilities.

5.4 Community Visitor Scheme

The  National  Disability  Insurance Scheme  Act 2013  gives  compliance and

enforcement powers  for  disability services to the Commission, including strong

monitoring and investigative functions. The Commission can, and does, when alerted through a relevant notification, make unannounced and short-notice visits to disability services to inspect and assess quality and safety issues and respond to complaints or information of concern. In addition, NDIS providers may contract an independent auditor (registered with the Commission for that purpose) to conduct an independent visit and audit of their premises. Also, initiatives like Quality Checkers provide a system of internal audit of services at the request of service providers. The State no longer has a funding relationship with non-government agencies and the State needs to work within its responsibilities rather than venture into the domain of the Commonwealth. The future role of the CVS has to accommodate the roles and functions of the NDIA and of the Commission under the Commonwealth’s NDIS Act 2013. Under current arrangements, the South Australian CVS has the power to visit DHS run accommodation services. It also has the ability to visit people who are NDIS participants and under the guardianship of the Public Advocate. As constructed under Regulations under the Disability Services Act 1993, the disability CVS did not have statutory power to enter the private home of a person with a disability. Coercive powers to enter private homes is also a significant human rights issue. If such powers for a visitation scheme was to be seriously considered, people with disabilities should be first consulted.

Once you have the power to go into people’s homes you don’t know where that could go

Trevor Harrison

The State and territory framework of CVS should be retained as a contributory function to the NDIS Framework. They should play an independent role whilst

contributing  to the  intelligence  available  to the NDIS Commission.  It  is

important the CVS is formally recognised within the NDIS Framework so that the safety net for vulnerable people is not lost (especially in the context of the risks of transition in the next two to five years.) This interface could be

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effected through structured communications to and from, agreed reports that can be consolidated nationally, consistent definitions, possibly opportunities for the NDIS Commission to request CVS look at an issue of concern. The risks of this approach rather than a national scheme are that there could be

variable commitment and  inconsistencies which  could  impact on NDIS

participants and providers. The recommendations that CVS collaborate to achieve greater consistency and alignment of approaches address this risk in part.

West Wood Spice 2018

There is general acceptance that the CVS has great merit in that it provides more eyes to observe what is happening in a potentially vulnerable person’s life. The disability CVS has been in existence since 2013 and uses screened and trained volunteers to undertake the visits. The State Opposition’s bill for the CVS has been referred to the Task Force for consideration. A revised scheme needs to consider legal responsibilities between the State and Commonwealth as well as the scope and capacity of the scheme. The South Australian Government has received advice from the Crown Solicitor on this issue. Having considered this advice, the state’s view is that the NDIS Act has “covered the field” in the area of quality and safeguards and that constitutional issues would arise if the state were to legislate to provide those powers to a CVS in relation to NDIS funded services. The view is further held that coercive powers to compel the production of information, or require corrective measures by a service provider, could ultimately become invalid. The Task Force has undertaken an analysis of CVS (or related) arrangements in each of the 6 jurisdictions that operate a CVS (see Section 9.9. The common view of people consulted is that the CVS is a valuable part of the safeguarding environment. There is merit in having a community visitor scheme that empowers visitors to visit potentially vulnerable people in all group homes, all supported residential facilities and all day options programs, whether state-run or NGO-run. There is also value in a visitor going into a person’s own home by invitation. The cleanest and best way to achieve this would be for the Commission to add a national CVS to its suite of functions. The Commission should be making many more unannounced visits to service sites and needs to improve their responsiveness to notifications of adverse events or participants at risk. The CVS as part of the Commission’s range of functions would be a vehicle to achieve these tasks and it is hoped that this will soon be recognised at a national level through reviews currently underway. However, in view of the current expressed intention of the Commonwealth not to fund a national CVS, but to accommodate State/Territory CVS programs, any conflict between State and Commonwealth legislation on this issue needs to be addressed. A formal agreement between the Commonwealth and/or the NDIS Commission and the State about the operation of the State CVS within the NDIS context could be developed if there is commitment by both parties. This could include an amendment

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to Commonwealth law; a delegation from the Commission; a rule made by the Commission for state-run CV Schemes; or a national CVS under the Commission. Expert legal advice should be sought on how to resolve the legal conflict and then South Australia should work with the Commonwealth to create a scheme that is compatible with state and federal laws and able to provide well-being checks on potentially vulnerable people and provide intelligence to the Commission for the purpose of its monitoring and investigation functions. Any agreement needs to cover the powers of the CVS, the definition of visitable sites and the nature of the visits, the reporting of matters of concern to the Commission

(rather than  the  State  Minister) and  the  sharing  of  information  held by  the

Commission on visitable sites. Also, a scheme could be established that provides social connection visits to NDIS participants. If an agreement between the State and the Commonwealth is feasible adequate resources and capacity will be needed to deliver any agreed arrangements. In the interim, the South Australian Government should affirm its commitment to CVS visiting services for which it has responsibility:

 Mental Health Treatment Centres and Authorised Community Mental Health

Facilities under the Mental Health Act 2009

 State Government DHS Disability Accommodation Services

 Public Advocate clients who are participants of the NDIS. In this context the South Australian Government could also consider CVS visits

Supported  Residential  Facilities  covered  by  the  South  Australian  Supported

Residential Facilities Act, 1993.

Safeguarding Gap 12

The commencement of the NDIS Quality and Safeguards Commissions on 1 July 2018 in South Australia has created issues with the scope of the Community Visitor Scheme.

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5.5 Capacity Development and Advocacy

Addressing the ways that the NDIA and the Commission operate only deals with matters that are under their immediate control. Both are bureaucratic behemoths, ill suited to managing individual idiosyncratic concerns. The citizen feels very small when dealing with these large agencies no matter how hard they try to be user friendly. The participant or their family needs a “go-to” person in the system. We have identified, in the absence of a case manager or social worker, that the support coordinator is the closest thing to exercising this role. When it comes to individual capacity building, the NDIS has not made best use of Local Area Coordination and the Information, Linkage and Capacity Building (ILC) grants program. LAC has been side-tracked into plan development, a role they weren’t designed for and this has resulted in less community access information for people with disabilities. The ILC program administers grants that are designed to build the capacity of both individuals

and communities  but  the  only mechanism  is  time-limited  grants  to  applicant

agencies. The logic is to support projects that try new ideas and develop new approaches which are expected to be self-sustaining. There is no recognition that capacity building of individuals is an ongoing task – there are always new individuals needing this support. The ILC grants are meant to target the building of the capacity of society to include people with disabilities and also the capacity of individuals to engage with society and exercise their choices in life and to take control.

At  the  state  level,  the  Disability  Inclusion Act 2018  requires  all government

departments, instrumentalities, and local councils to have Disability Access and

Inclusion Plans (DAIPs). The government  is  currently consulting on the  state

disability inclusion plan which provides guidance to departments around creating their own DAIP. The plan is a mechanism to build the capacity of society to be more accessible and inclusive of people with disabilities but there is also a need to increase the capacity of the individual to develop confidence and knowledge of their rights. Many people we have spoken to have said that they have tried to make use of advocacy agencies, but they are fully booked and usually cannot help or can only help on a superficial basis. It may well be asked why advocacy is necessary when the NDIS and the Commission offer an array of personnel all tasked with assisting the individual to get what they need from the NDIS. In practice, the participant often feels confused and disempowered before this system and needs “a friend who is on their side”.

Safeguarding Gap 13

State and local government agencies have not yet invested sufficiently in achieving the goals of the Disability Inclusion Act 2018.

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Access and inclusion mean that the person with a disability better connects to others and is likely much less at risk of abuse or neglect. The Disability Inclusion Act is the State’s way of furthering the National Disability Strategy.

Safeguarding Gap 14

The State has not invested in individual advocacy to assist people with disabilities to navigate the service system and the community.

6 Conclusion In producing this Report, the co-chairs have met with a large number of people to explore a range of important issues for example developmental safeguards, the unique needs and experience of Aboriginal people with disabilities, children and young people, and people from culturally and linguistically diverse groups. For all safeguarding measures there is no silver bullet – no single measure that will completely solve the problem. There needs to be multiple approaches to ensure all matters are covered. Vulnerability is increased by: (a) social isolation from family, friends and neighbours, (b) lack of proper care from a service provider, (c) the NDIA not having external systems of checks through support coordination or local area coordination, (d) the Commission not having an adequate system in place to vet the quality of the services and to respond to concerns about individuals, and (e) the State government not having adequate mechanisms for people to access regular health checks, the ASU or community visitors and advocacy.

We need  to look  for  triggers. We have a person with severe physical

disabilities, why were there not more questions asked about them? Where were they, what are they doing and why did they never get in a taxi?

Trevor Harrison

There are significant flaws in the current system of safeguarding and the following fixes: First, The NDIA needs to ensure that that they are aware of participants who are vulnerable and that, for them, there is ongoing independent support coordination in

their plans and  that plans cover  health and equipment needs and are  fully

implemented. The NDIA must develop a methodology to assess the potential vulnerability of participants as part of the planning process, and put supports in place according to the participant’s level of vulnerability. Plans also need to reflect the cultural needs of participants as well as their physical and social needs.

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Second, the Commission needs to accept complaints/concerns/warnings from the general public or other agencies in whatever form they come as alerts requiring investigation and must require regular supervision of in-home workers by service providers as a condition of registration. The person with disability may prefer to rely on some electronic forms of monitoring rather than other people coming into the home regularly. Third, the State needs to ensure that regular medical checks are available for vulnerable people, that the ASU is available for all vulnerable adults and that a community visitor scheme is in place to be additional eyes and ears to safeguard participants. The State has transferred responsibility for the funding and regulation of disability services to the Commonwealth and the NDIS. It is, however, responsible for those specific tasks that are left to it under the NDIS agreement viz. screening of workers, the authorisation of restrictive practices and community visitor arrangements. The NDIS has an admirable philosophy that the individual with a disability is to be empowered with: (a) choice of lifestyle and service providers, and (b) control over the way that funding in their plan is used. In a nutshell, the NDIS is an insurance-based arrangement whereby the NDIS is

responsible  for  funding  and  broad  system  parameters  but  does  not  take

responsibility when things go wrong for the individual. The risk and the responsibility is deemed to lie with the individual participant. The best safeguard for any potentially vulnerable individual is to have a number of people in their lives, who make sure the person is not left to their own devices when things go wrong. At least one of the extra pair of eyes seeing what is going on should come from proper supervision of support workers by the service provider agency, and ensuring that more than one support worker is involved, even if the participant only wants a single person whom they trust and respect. We need to increase the capacity of people with disability to be more independent, make good choices and connect better with the community. Capacity building, linked closely to ‘a good life’, is seen by experts to be the key to avoiding abuse and neglect.

The South Australian Minister’s Disability Advisory Council 2011 -

Inclusion&protection report.

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7 Safeguarding Gaps

7.1 Safeguarding Gap 1

Potentially vulnerable participants are not routinely identified and assigned ongoing support coordination in their NDIS Plan.

7.2 Safeguarding Gap 2

The support coordinator can be from the same agency that provides other core services for the individual, creating a conflict of interest.

7.3 Safeguarding Gap 3

Participants are not routinely linked to community activities so they are often isolated.

7.4 Safeguarding Gap 4

Participants are not identified as potentially vulnerable by the NDIA and prioritised by LAC when carrying out the community connection role.

7.5 Safeguarding Gap 5 NDIS plans do not routinely include strategies to minimise participant risk e.g. coordination of health care (including dental, sexual and mental health), technology to aid independence and safety, capacity building for asserting rights, and recognition of cultural matters.

7.6 Safeguarding Gap 6

Participants and their families are unclear about how to raise matters of

concern  with  the Commission and  the Commission does not  routinely

undertake proactive inspections to vet the performance of service providers.

7.7 Safeguarding Gap 7

The NDIS Quality and Safeguards Commission does not adequately consider the risk factors associated with the use of unregistered providers of personal support, particularly for potentially vulnerable participants.

7.8 Safeguarding Gap 8

The Commission does not  explicitly require of  all providers of personal

support that there be at least two support workers for that individual (not necessarily at the same time) and that workers in participants’ homes have regular supervision.

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7.9 Safeguarding Gap 9

Regular health checks are not routinely made available to all vulnerable NDIS participants and their NDIS plan does not routinely include coordination of their health care.

7.10 Safeguarding Gap 10 There is currently no State agency to report abuse and neglect of vulnerable adults under 65 years of age.

7.11 Safeguarding Gap 11

The DHS Screening Unit  is not quickly and  fully provided with relevant

information by  the  Commission,  the NDIA and some  State  agencies,

compromising the availability of information on an individual worker that might affect their suitability to work with people with disabilities.

7.12 Safeguarding Gap 12

The commencement of the NDIS Quality and Safeguards Commissions on 1 July 2018 in South Australia has created issues with the scope of the Community Visitor Scheme.

7.13 Safeguarding Gap 13 State and local government agencies have not yet invested sufficiently in achieving the goals of the Disability Inclusion Act 2018.

7.14 Safeguarding Gap 14

The State has not invested in individual advocacy to assist people with disabilities to navigate the service system and the community.

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8 Recommendations

8.1 Recommendation 1

That the State Government communicate the matters raised in this report to the Commonwealth Government with special reference to Safeguarding Gaps 1 to 9, seeking a response on how these gaps must be addressed as soon as possible.

8.2 Recommendation 2

That the State Government address the need for vulnerable NDIS participants to have regular health checks including communicating to the Commonwealth Department of Health. (Safeguarding Gap 9).

8.3 Recommendation 3

That the State Government extend the scope of the Adult Safeguarding Unit to include younger adults at risk of abuse prior to 2022, commencing with people with disabilities. (Safeguarding Gap 10).

8.4 Recommendation 4

That DHS revisit the information sharing guidelines as they impact on screening of workers and, in particular, the availability of relevant information from the Commonwealth (Safeguarding Gap 11).

8.5 Recommendation 5

That the State Government reaffirm the value of a community visitor scheme as an additional safeguard for potentially vulnerable participants and work with the Commonwealth to establish a complementary scheme. (Safeguarding Gap 12).

8.6 Recommendation 6

That State and Local Government agencies provide for better access and inclusion so that people with disabilities can fully participate in society. (Safeguarding Gap 13).

8.7 Recommendation 7

That the State government invest in individual advocacy to assist individuals with accessing what they need from the NDIS and from the community. (Safeguarding Gap 14).

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Acknowledgement: The Co-chairs wish to thank the members of the Safeguarding Task Force for their hard work in reviewing and assisting with the creation of the text. The Task Force has been ably assisted by the executive staff comprising of Sandra Wallis, Diane Holty and Oliver Hales.

Kelly Vincent David Caudrey

Disability Rights Advocate Disability Advocate

Co-chairs of the Safeguarding Task Force

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9 Attachments

9.1 Glossary

This glossary is a list of commonly used acronyms or terms throughout the report.

ACRONYM FULL TITLE

ASU Adult Safeguarding Unit

CVS Community Visitor Scheme

DHS Department of Human Services

ILC Information Linkages and Capacity Building Grants

LAC Local Area Coordinator

NDIA National Disability Insurance Agency

NDIS National Disability Insurance Scheme

OFAW Office for Ageing Well

SAPOL South Australian Police

SDA Specialist Disability Accommodation

SIL Supported Independent Living

UNCRPWD United Nations Convention on the Rights of Persons with

Disabilities

YPIRAC Younger People in Residential Aged Care

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FULL TITLE DESCRIPTION

Bilateral Signed agreements between the Commonwealth and the State (Intergovernmental) detailing the operational and funding arrangements for the NDIS.

Agreement

COVID-19 A respiratory illness caused by a new virus. The virus is transmitted from person to person and there is no current treatment or cure.

Complex Support Specialised support for participants who have other challenges Needs Pathway impacting their lives such as mental health issues, incarceration or homelessness and need a higher level of specialised support in their plan.

Dept.- Health and Responsible for setting the strategic direction for the delivery of Wellbeing (DH&W) health services in South Australia.

Health Performance Statutory Ministerial advisory body to provide advice to Minister Council SA for DH&W on the performance of the State’s health systems.

Medicare Benefits A listing of the Medicare services that are subsidised by the Scheme Australian government managed by the Department of Health.

National Disability A nationally accessible service designed to aid the reporting of Abuse and Neglect abuse and neglect of people with disability in Commonwealth, Hotline State or Territory funded disability services.

NDIS Code of Promotes safe and ethical service delivery by setting out Conduct (NDIS expectations for the conduct of both NDIS providers and Providers) workers.

NDIS Rules Legislative instruments made under the NDIS Act that set out in detail the operation of the NDIS.

NDIS Participant To be a participant of the NDIS you must meet the following access criteria:  Are aged under 65 when the access request is made  Are an Australian citizen, permanent resident or special category visa holder  Satisfy either permanent or significant disability or early intervention requirements  Need support from a person or equipment to do everyday activities.

NDIS Funding There are three options to manage your NDIS Funding: Self-Management: When you manage your funding Plan Managed: A plan manager is funded through your plan and pays your provider NDIA (Agency) Managed: NDIA pays providers on your behalf.

NDIS Unregistered Not all providers need to register with the NDIS Commission.

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provider obligations Only self or plan managed participants can engage an unregistered provider and:  Can individually decide if they want workers of unregistered providers to have a NDIS Worker Screening

Check

 Will be able to make unregistered providers and their workers aware of their obligations under the NDIS Code of Conduct. The NDIS Commission can support people to make a complaint against an unregistered provider.

NDIS Q&S An independent agency established to improve the quality and Commission safety of NDIS supports and services.

Office of the Public Independent statutory office of the South Australian Government Advocate SA that exists to promote the rights and independence of people who may need assistance with decision making.

Psychosocial A psychosocial disability is when mental illness becomes Disability pervasive and interferes with a person’s functioning.

Royal Commission Established in April 2019 in response to community concern and into Violence, gathers information through research, public hearings, Abuse, Neglect and submissions and other forums. Final report to be delivered on 29 Exploitation of April 2022. people with

Disability

Support Support Connection: To build your ability to connect with Coordination informal community and funded supports enabling you to achieve your goals Support Coordination: Assist you to build the skills you need to understand, implement and use your plan Specialist Support Coordination: For people whose situations are more complex, to assist you to manage challenges in your support environment and ensuring consistent delivery of services.

Visitable sites As defined in each jurisdictions Community Visitors Scheme Legislation.

NDIS Worker NDIS Registered Providers must ensure that particular workers Screening have an appropriate check as a mandatory requirement of registration. Risk assessed roles are:  Key personnel roles  Work in the delivery of specified supports or specified services (NDIS Practice Standard –Worker Screening) Rules 2018  Roles that require physical, face to face contact and oral, written and electronic communication.

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9.2 Safeguarding Task Force Members

NAME POSITION/TITLE

David Caudrey Disability Advocate

Co-chair

Kelly Vincent Disability Rights Advocate

Co-chair

Trevor Harrison Disability Advocate

Jacky Chant Disability Advocate

Sam Paior Founder and Director

The Growing Space

Karen Rogers Project Lead

Our Voice

Marj Ellis Chief Executive Officer Lighthouse Disability

Richard Bruggemann Authorising Officer

Attorney General’s Department

Anne Gale Public Advocate

Office of the Public Advocate

Adam Kilvert Executive Director Attorney General’s Department

Cassie Mason Director, Office for Ageing Well, SA Health

Lois Boswell Act/ Chief Executive Department of Human Services

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9.3 Terms of Reference

Safeguarding Task Force Terms of Reference

Purpose

The Safeguarding Task Force is a Task Force to examine the current gaps in oversight and safeguarding for people living with disability in South Australia.

The Task Force is co-chaired by Disability Advocate Dr David Caudrey and Disability

Rights Advocate Kelly Vincent. Membership will include people with lived experience of disability, family members, a service provider as well as relevant government agencies, including the acting Principal Community Visitor Anne Gale. The Task Force will consider gaps in safeguarding arrangement for people with disabilities in South Australia arising from the policies and practices of:

 the National Disability Insurance Agency

 the NDIS Quality and Safeguards Commission  State Government instrumentalities.

The Task Force seeks to consider the gaps from a developmental, preventative and corrective perspective. The Task Force will provide written reports including recommendations to the State Government regarding areas that need to be addressed urgently in order to safeguard South Australian citizens with disability.

Methodology

 Brief Task Force members prior to the first scheduled meeting.  Seek information and advice from Task Force members, their networks and from other people who contribute to the Task Force deliberations  Collate all information received and identify themes for rectifying policy and procedures for safeguarding  Prepare and submit an interim report with urgent recommendations by 15 June 2020  Prepare and submit a final report with full recommendations by 31 July 2020.

Membership

The Safeguarding Task Force is comprised of:

 David Caudrey, Disability Advocate (Co-chair)

 Kelly Vincent, Disability Rights Advocate (Co-chair)

 Sam Paior, Founder and Director, The Growing Space

 Trevor Harrison, Disability Advocate

 Jacky Chant, Disability Advocate

 Karen Rogers, Project Lead, Our Voice

 Marj Ellis, Chief Executive Officer, Lighthouse Disability

 Richard Bruggemann, Authorising Officer, Attorney-General’s Department

 Anne Gale, Public Advocate and Acting Principal Community Visitor

 Adam Kilvert, Executive Director, Attorney-General’s Department

 Cassie Mason, Director, Office for Ageing Well, SA Health

 Lois Boswell, Acting Chief Executive Department of Human Services.

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Meeting Frequency

The meetings will be held via Microsoft Teams on:  Wednesday 27 May 2020 at 4:30 pm  Wednesday 10 June 2020 at 4:30pm  Wednesday 15 July 2020 at 4:30pm.

Agenda and Papers

The Safeguarding Task Force agenda, with attached meeting papers, will be distributed at least 5 days prior to each scheduled meeting.

Minutes and Actions

The minutes of each Safeguarding Task Force meeting will be prepared by the Secretariat which will comprise Diane Holty and Sandra Wallis from the Office of the Public Advocate. Minutes will be circulated in draft to each member of the Task Force prior to the next meeting and approved at that meeting subject to any modifications deemed necessary.

Reporting

The Co-chairs are required to provide a preliminary report to Cabinet by 15 June 2020 and a final report to Cabinet by 31 July 2020. A draft of the preliminary report will be prepared for the Task Force meeting on 10 June 2020 and a draft of the final report on 15 July 2020.

Approval

David Caudrey Kelly Vincent

Disability Advocate Disability Rights Advocate

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9.4 Written submissions from Task Force Members Below is a list of submissions from the Safeguarding Task Force members These submissions can be accessed on the Department of Human Services internet page regarding the Safeguarding Task Force. on the following link https://dhs.sa.gov.au/latest-news/safeguarding-taskforce. If you would like to request a hard copy of any of these documents please email disability.advocate@sa.gov.au

9.4.1 Submissions from Trevor Harrison 9.4.2 Submissions from Richard Bruggemann 9.4.3 Submissions from Sam Paior 9.4.4 Submissions from Marj Ellis and Richard Bruggemann 9.4.5 Submission from Lois Boswell

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9.5 Meetings with key people Below is a list of people who Kelly Vincent and David Caudrey met with to inform the safeguarding reports. The meeting notes from these meetings can be accessed on the Department of Human Services internet page regarding the Safeguarding Task Force on the following link https://dhs.sa.gov.au/latest-news/safeguarding-taskforce. Please note that the meeting notes have only been published where the meeting attendees have given their permission. Those with an asterix next to the name are people we have met with but do not have approval to publish the meeting notes. If you would like to request a hard copy of any of these documents please email disability.advocate@sa.gov.au .

Meetings held with:

9.5.1 Dr. Betty-Jean Price - Disability Advocate

9.5.2 Emma Hinchey - Founder CEO & Advisor

9.5.3 My Plan Manager -Paul Jarvis and Claire Wittwer-Smith

9.5.4 Jayne Lehmann - Ed Health * 9.5.5 Robbi Williams - Purple Orange * 9.5.6 Prof Sally Robinson - Flinders University * 9.5.7 Maurice Corcoran and Lorna Hallahan * 9.5.8 Kendall Fields and Maggie Rutjens - DACSSA 9.5.9 The voice of Aboriginal People - Tanya McGregor (SA Health),

Tina Quitadamo (Nunga Mi:Minar Incorporated), Steven Newchurch

and Darrien Bromley (Incompro ), Anna Schkabaryn (Kera Yerlo)

9.5.10 JFA Purple Orange Design Council - Jackie Hayes, Tammy McGowan,

Mike Taggart, Jala Burton, Rachele Tullio, Katerina Michael, Andrew

Gibson

9.5.11 Purple Orange Disability Elders of All Ages - Kathryn Mills,

Debra Carlyton, Jane Gersch, Maria Catanzariti, Jane Quirk.

9.5.12 Jeremy Moore and Michael Sachsse - Community Guardian

9.5.13 Nicky Dimitropolous

9.5.14 Leanne Longfellow

9.5.15 Karen Grob

9.5.16 ACT Government - Sally Gibson, Mandy Donley, Gabrielle McKinnon,

Debora Mesman, Amanda Charles and Wendy Kipling *

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9.5.17 Del Stagg and Felicity Crowther - SACID

9.5.18 JFA Purple Orange Our Voice South Australia - Ian Cummins,

Tiffany Littler, Gavin Burner, John Bradley, John Inglis, Elizabeth

Crawford, Karen Rogers, Alison Vivian, Jackie Hayes. *

9.5.19 Luke Broomhall - Psychcheck 9.5.20 Beverly Emerson *

9.5.21 Heather Buck and Rosey Olbrycht - Citizen Advocacy South Australia

9.5.22 ActivOT -Vani Zeitouneh and Helen Whait 9.5.23 Phil and Heather Martin

9.5.24 The Law Society of South Australia -Tim White, Natalie Wade and

Dr Anna Finizio

9.5.25 SA NDIS Psychosocial Disability Transition Taskforce Subgroup-

John Brayley, Shandy Arlidge, Geoff Harris and Liz Prowse

9.5.26 Hon Alan Robertson *

9.5.27 Kelly Treloar and June Riemer- First Peoples Disability Network

9.5.28 Children and Young People with Disability Australia - Mary Sayers and

Maeve Kennedy

9.5.29 Pru Gorman and Jayne Barrett - Community Living Project

9.5.30 Stewart Pope and Andrea Sherratt - McArthur 9.5.31 Jarrard O’Brien - Commission on Excellence and Innovation

9.5.32 Arnold Stroobach - Buurtzorg Australia

9.5.33 Jonathan Lardner - Access2Place

9.5.34 Andrew and Pat Coidan My Support Connection

9.5.35 Pop Up Health Care - Lara Farrington and Jane Pappin

9.5.36 Health Performance Council - Steve Tully, Ellen Fraser-Barbour and

Andrew Wineberg *

9.5.37 Glenda Noble - OT Innovate *.

Page 35 of 55

9.6 List of submissions Submissions to the Safeguarding Task Force were received via the Disability Advocate in box, the Minister for Human Services Office and the Premier’s Office. Permission to publish these submissions has been provided by the authors. The submissions can be found on the Department for Human Services internet page regarding the Task Force or by clicking on the following link https://dhs.sa.gov.au/latest-news/safeguarding-taskforce. If you would like to request a hard copy of any of these documents please email disability.advocate@sa.gov.au The following is a list of submissions. 9.6.1 - 19/5/2020 - Submission - Prue Gorman 9.6.2 - 20/5/2020 - Submission - Judy Barton 9.6.3 - 26/5/2020 - Submission - Karen Grob 9.6.4 - 25/5/2020 - Submission - Helen Whait 9.6.5 - 31/5/2020 - Submission - Peter Wilson 9.6.6 - 1/6/2020 - Submission - Samantha Connor 9.6.7 - 2/6/2020 - Submission - Athena Karabetsos 9.6.8 - 3/6/2020 - Submission - Nat Cook

9.6.8.1 - Community Visitor Bill - Disability Task Force

9.6.8.2 - Disability Inclusion (CVS) Ammendment Bill 2020 – Explanation of clauses 9.6.8.3 - NDIS Commissioner Letter

9.6.8.4 - Community Visitor Scheme Review Report

9.6.9 - 4/6/2020 - Submission - Dawn Brookes 9.6.10 - 9/6/2020 - Submission - SACID 9.6.11 - 11/6/2020 - Submission - Anon 9.6.12 - 11/6/2020 - Submission - Del Wine 9.6.13 - 12/6/2020 - Submission - Sue Versteeg 9.6.14 - 12/6/2020 - Submission - Anon 9.6.15 - 12/6/2020 - Submission - Phil and Heather Martin 9.6.16 - 12/6/2020 - Submission - Law Society of SA 9.6.16.1 - Letter 9.6.16.2 - Law Society of SA Analysis of Disability Inclusion

Amendment Bill 2020

9.6.17 - 16/6/2020 - Submission - Katherine Annear

Page 36 of 55

9.6.18 - 16/6/2020 - Submission - Anon 9.6.19 - 17/6/2020 - Submission - Angela Littleford 9.6.20 - 17/6/2020 - Submission - Keith Banfield 9.6.21 - 21/6/2020 - Submission - Anon 9.6.22 - 26/6/2020 - Submission -Tony Renshaw 9.6.23 - 29/6/2020 - Submission - Annette Herbert 9.6.24 - 1/7/2020 - Submission - Jeremy Moore - Community Guardians 9.6.25 - 1/7/2020 - Submission - Anon 9.6.26 - 2/7/2020 - Submission - SA NDIS Psychosocial Disability

Transition Taskforce Subgroup

9.6.26.1 - Presentation to the SA Safeguarding Task Force 9.6.26.2 - Supporting information for presentation

9.6.26.3 - NDIS Transition Pilot Project Final Report

9.6.26.4 - Report - Review of the Community Visitor Scheme J

Gardner Mar 2019

9.6.26.5 - National Standards for Mental Health Services 9.6.26.6 - Psychosocial recovery coach support item 9.6.26.7 - SA Health risk matrix 9.6.27 - 10/7/2020 - Submission - Anon 9.6.28 - 13/7/2020 - Submission - Leanne Longfellow 9.6.29 - 15/7/2020 - Submission - Arnold Stroobach - Buurtzorg presentation 9.6.30 - 24/7/2020 - Submission - Liz Forsyth - Brain Injury SA 9.6.31 - 24/7/2020 - Submission - Pru Gorman - Community Living Project 9.6.32 - 27/7/2020 - Submission - DACSSA - Report - Interface of Systems with Disability in SA 9.6.33 - 27/7/2020 - Submission - Louise McDonald. 9.6.34 - 27/7/2020 - Submission - Heather Buck and Rosie Olbrycht –

Citizens Advocacy South Australia

9.6.34.1 – Press Release 9.6.34.2 – Email Heather Buck to Task Force 9.6.34.3 – Task Force Response on behalf of Citizens Advocacy SA

Board Members

9.6.34.4 – Not everything that counts can be counted – Making a case for the cost effectiveness of Citizens Advocacy 9.6.34.5 – Email RE State Government Task Force.

Page 37 of 55

9.7 Other documents The following documents can be found on the Department for Human Services internet page regarding the Task Force or by clicking on the following link https://dhs.sa.gov.au/latest-news/safeguarding-taskforce. If you would like to request a hard copy of any of these documents please email disability.advocate@sa.gov.au

9.7.1 Inclusion&protection: A dynamic safeguarding schema for South Australians with disability who are also vulnerable to neglect and

abuse South Australian Minister’s Disability Advisory Council

9.7.2 Media release Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability 20 May 2020 – Statement regarding the death of Ann Marie Smith

9.7.3. Media Release NDIS Quality and Safeguards Commission 22 May

2020 NDIS Commission takes action against NDIS care provider of Ann-Marie Smith.

Page 38 of 55

9.8 Bibliography

Australian Human Rights Commission (2018). A Future Without Violence: Quality,

safeguarding and oversight to prevent and address violence against people with disability in institutional settings.

The Australian Government (2018). National Disability Insurance Scheme (Practice

Standards—Worker Screening Rules) 2018. National Disability Insurance Scheme Act 2013. https://www.legislation.gov.au/Details/F2019C00574.

The Australian Government (2016). National Disability Insurance Scheme: Quality and

Safeguarding Framework. https://www.dss.gov.au/sites/default/files/documents/042017/ndisqualityandsafeguardingframeworkfinal.pdf.

Avery, S. (2018). Culture is inclusion: Community-control the way forward for Aboriginal disability research. Report. First Peoples Disability Network.

Brayley, J., Prowse, J., Harris, G., and Arlidge S. (2020). SA NDIS Psychosocial Disability Transition Taskforce. Government of South Australia.

The Commonwealth of Australia (2010). National Standards for Mental Health Services.

The Commonwealth of Australia (2018). Bilateral Agreement between the Commonwealth of Australia and the State of South Australia on the National Disability Insurance Scheme.

The Commonwealth of Australia (2019). Joint Standing Committee on the National Disability

Insurance Scheme: NDIS Planning Interim Report, December 2019.

The Commonwealth of Australia (2019). Provider Registration Guide to Suitability for Western Australia V 1.11. November 2019.

The Commonwealth of Australia (2019). Statement of Sally Robinson, Royal Commission

into Violence, Abuse, Neglect and Exploitation of People with Disability, November 2019.

The Commonwealth of Australia (2020). Disability and Oral Health Collaboration, Your

Dental Health, Australasian Academy of Paediatric Dentistry, Submission on Oral Health and

Disability, February, 2020.

The Commonwealth of Australia (2020). Joint Standing Committee on the National Disability

Insurance Scheme: Report into Supported Independent Living, May 2020.

Community Resource Unit (2015). Proposed National Disability Insurance Scheme Quality

and Safeguarding Framework. https://cru.org.au/wp-content/uploads/2014/04/CRU-Submission.Proposed-NDIS-QS-Framework.April-2015-2.pdf.

Cook, N. (2020) Letter Re: Disability Inclusion (Community Visitor Scheme) Amendment Bill

2020. June 2020. Cortis, N., and van Toorn, G. (2020). Working in new disability markets: A survey of Australia’s disability workforce Sydney: Social Policy Research Centre, UNSW Sydney. https://apo.org.au/sites/default/files/resource-files/2020-05/apo-nid305121.pdf.

Dee-Price, B-J. (2020). SA woman dies from long term abuse and neglect: A Disability Community Response. Independent Disability Research & Education. May 2020.

The Government of South Australia, Health Performance Council (2020). Health outcomes

and experiences for South Australians with disability – what we heard.

Page 39 of 55

Gardner, J. (2019). Review of the community visitors scheme in South Australia, 8 March 2019.

Jay, L. (2019). Why we need to use the F-word. Disability Services Consulting. Viewed 12 June 2020. https://teamdsc.com.au/resources/we-need-use-the-f-word.

Law Society of South Australia (2020). Gaps in safeguarding arrangements for people with disabilities in South Australia, Ref: 801322. 12 June 2020.

The Mental Health Coalition of South Australia (2020). National Disability Insurance Scheme

(NDIS) Transition Pilot Project. A lived experience lens on service continuity for people transitioning from State psychosocial programs to the NDIS. Final Report.

Michael, L. (2020). Stronger protections for Victorian people with disability. PRObono Australia. Viewed 23 June 2020. https://probonoaustralia.com.au/news/2020/06/stronger-protections-for-victorian-people-with-disability.

NDIS Quality & Safeguards Commission (2020), NDIS Practice Standards. Viewed 24 June

2020, https://www.ndiscommission.gov.au/providers/ndis-practice-standards.

NDIS Quality & Safeguards Commission (2020). Quality, Safety and You. Viewed 2 July

2020. https://www.ndiscommission.gov.au/workers/training-course.

NDIS Workforce Ready Consortia: Cootharinga North Queensland Inc., AVANA Australasian

Disability Professionals, and Deakin University (2013). NDIS Work Force Ready: A research

report commissioned by the Australian Government Department of Families, Housing, Community Services and Indigenous Affairs. June 2013.

National Disability Services (2020). NDS Zero Tolerance. Viewed 31 June 2020. https://www.nds.org.au/resources/zero-tolerance.

Nevile, A., Malbon, E., Kay, A., and Carey, G. (2019). The implementation of complex social policy: Institutional layering and unintended consequences in the national disability insurance scheme. Australian Journal of Public Administration. 78(4). pp. 562–576. https://doi.org/10.1111/1467-8500.12380.

Quilty, J. (2020). Failing through the gaps. Disability Services Consulting. Viewed 12 July

2020. https://teamdsc.com.au/resources/failing-through-gaps. Robert, S. (2020). Announcement regarding banning powers. 8 June 2020. https://www.ndis.gov.au/news/4841-new-banning-powers-strengthen-protections-ndis-participants.

Robinson, S. (2019). Statement of Sally Antoinette Robinson. Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. 29 November 2019.

Robinson, S. and Graham, A. (2020). Feeling safe, avoiding harm: Safety priorities of children and young people with disability and high support needs. Journal of Intellectual Disabilities, pp. 1-20. https://journals.sagepub.com/doi/10.1177/1744629520917496.

Robinson, S. and Graham, A. (2019). Promoting the safety of children and young people with intellectual disability: Perspectives and actions of families and professionals. Children and Youth Services Review 104(2019)104404. https://www.sciencedirect.com/science/article/pii/S0190740919301719.

Robinson, S. and Chenoweth, L. (2011). Preventing abuse in accommodation services: From procedural response to protective culture. Journal of Intellectual Disabilities, 15(1) pp. 63-74. https://journals.sagepub.com/doi/abs/10.1177/1744629511403649.

Robinson, S., Oakes, P., Murphy, M., Ferguson, P., Lee, F., Ward-Boas, W., Codognotto, M., Nicks, J., and Theodoropoulos, D. (2019). Building safe and respectful cultures in disability services for people with disability. Report. The State of Victoria, Disability Services

Page 40 of 55

Commissioner. June 2019. https://www.odsc.vic.gov.au/abuse-prevention/building-safe-and-respectful-cultures/.

Salomon, C and Trollor, J. (2020). A scoping review of causes and contributors to deaths of people with disability in Australia. Faculty of Medicine, the Department of Developmental Disability Neuropsychiatry. February 2020. https://www.ndiscommission.gov.au/sites/default/files/documents/2020-02/summary-findings-24.pdf.

St Clair, R. (2020). Visibility and inclusion an essential safeguard for people with disability. Disability Support Guide.https://www.disabilitysupportguide.com.au/talking-disability/visibility-and-inclusion-an-essential-safeguard-for-people-with-disability.

The South Australian Ministers Disability Advisory Council (2011). Inclusion & protection: A

dynamic safeguarding schema for South Australians with disability who are also vulnerable to neglect and abuse.

Tune, D. (2019). Review of the National Disability Insurance Scheme Act 2013: Removing Red Tape and Implementing the NDIS Service Guarantee. December 2019. https://www.dss.gov.au/sites/default/files/documents/012020/ndis-act-review-final-accessibility-and-prepared-publishing1.pdf.

The Victorian Council of Social Service (2017). A high quality disability workforce VCOSS submission to registration and accreditation consultation paper. October 2017. https://vcoss.org.au/wp-content/uploads/2018/02/SUB171027Registration-and-Accreditation-SchemeFinal.pdf.

Victorian Department of Health and Human Services (2020). National Consultations

Executive Summary: Investigation of the Impact of NDIS Market Settings on Participants

with a Psychosocial Disability. March 2020.

Walker M., Fulton, K. and Bonyhady, B. (2013). A personalised approach to safeguards in the NDIS. Safeguards and Quality Assurance Expert Group. March 2013. https://centreforwelfarereform.org/library/a-personalised-approach-to-safeguards.html.

Westwood Spice on behalf of the Department of Social Services for the Disability Reform Council, Council of Australian Governments (2018). Community Visitor Schemes Review. https://www.dss.gov.au/sites/default/files/documents/022020/pdf-version-community-visitors-review0.pdf.

.

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Safeguarding Task Force - Report - July 2020

99                Lea1s·1ra 1ve C ompansons across iurisdictions for CVS                    .

Authorization       Department       Requesting visitation           What they can visit                       Relevant Powers

SA   SA has a disabilit~   DHS                s 5(1): request to see a    No legislative power to enter private   Powers contained within s 4 of the OS {CVS}

CVS                               community visitor may be  homes.                                Regulations 2013.

made by any of t he Relevant following people: legislation: - (a) resident

Community visitors have right to visit   For disability accommodation premises,        Disability Services                                       - (b) person attending a

{Community Visitor                        day options program      disability accommodation premises    includes right to inquire into:

Scheme)                                                     - (c) a guardian, medical   and day options program premises           - The appropriateness and standard of the

agent, relative, carer or   "any reasonable time": 3 OS (CVS)           premises for the accommodation of      Regulations 2013

friend of a person        Regulations 2013.                              residents: s 4(1)(a)(i) OS (CVS) Regulations.       (SA) ('05 {CVS}

- (d) any other person                                                                       - Whether residents are provided with       Regulations') under

who is providing                                                  adequate information to enable them to            t he Disability                                                     support to a person                                          make informed decisions about their

Services Act 1993.                                                                           Importantly, the Disability Services         accommodation, care and activities: s

4(1)(a)(iv) OS (CVS) Regulations. Act 1993 relates to services funded by

• Any case of abuse or neglect, or suspected the State Government, meaning as of s 5(2): request can be abuse or neglect, of a resident: s 4(1)(a)(v) May 2019 t he disability CVS no longer

  made to a manager or OS (CVS) Regulations. visit non-government disability - The use of restrictive interventions and person of authority at the services (as t here is no funding compulsory treatment: s 4(1)(a)(vi) OS accommodation premises, relationship). {CVS) Regulations. and they must notify a

• Any complaint made to a community visitor community visitor of the by a resident, guardian, medical agent, request within 3 days relative, carer or friend of a resident, or after receipt. any other person providing support to a resident: s 4(1)(a)(viii) OS {CVS)

Page 42 of 55

Safeguarding Task Force - Report - July 2020

Authorization       Department       Requesting visitation          What they can visit                       Relevant Powers

Regulations.

For visitation of day options program premises, the rights are effectively the same as above but contained in their own subsection: s 4(1)(ab).

Additionally, for both disability accommodation premises and day options program premises, ability t o:

• Meet with a resident: s 4(2)(a) OS (CVS} Regulations.

• Inspect the premises with permission of the manager: s 4(2)(b) OS (CVS) Regulations.

• Request production of any documents or records and make copies of them: ss 4(2)(c) and (d) of the OS {CVS) Regulations.

  NSW NSW has a The Ageing and No information about No legislative power to enter private Broad powers of Official Community Visitor

  disabilit~ CVS Disability how to complain/request homes. set out under s 22 of the Act, includes

  Commission has visitation from a powers t o:

  Relevant Act : general oversight community visitor in - Enter and inspect a ‘visitable service’ at any

  Ageing and and coordination Ageing and Disabilit y reasonable time without providing notice:

OCV’s can enter and inspect any

Page 43 of 55

Safeguarding Task Force - Report - July 2020

Authorization       Department       Requesting visitation           What they can visit                       Relevant Powers

Disability            of Official         Commissioner Act 2019      'visitable service', which under s 20         s 22(1)(a).

Commissioner Act   Community        (NSW).                       includes:                                                 - Talk alone with anyone (resident or

2019 (NSW)            Visitors: s 23(1).                                                   - Accommodation services where an        employee) at the premises: s 22(1)(b).

adult is in the full-time care of a - Inspect any document held at the premises service provider that relates to the operation of a visitable

• Assisted boarding houses service: s 22{1)(c). However, advice - Any other service prescribed by the - Provide the Minister and the Commissioner

  and matters can regulations as a visitable service with advice or information relating to the

  also be directed (currently none). conduct of the premises, as well as matters

  affecting the welfare, interests and to the Minister conditions of persons using visitable

for Families, services: ss 22(1)(d) and (e). Communities and

Disability Services

or the NSW Ombudsman.

VIC    Victoria has a       Community      No information about     No legislative power to enter private   Powers differ slightly depending on the

disability              Visitors are      how to directly           homes.                             stream (disability services, mental health,

Community Visitor   overseen by the    complain/request                                                 or SRS).

Scheme              Victorian Office of  visitation from a

the Public community visitor in

Victoria has three    Advocate.           Disability Act 2006 (VIC).    For Disability Services Community

steams of                                                               Visitors under the Disability Act 2006   For Disability Services Community Visitors

community                                                                    (VIC), can visit "any premises where a   under the Disability Act 2006 (Vic), power

visitation:                                                                     disability service provider is providing   to inquire into:

- Disability                     How ever, anyone can       residential services": s 30.                         - The standard of the premises: s 30(a).

Services                            complain to the Disability                                                                  - Whether treatment of a resident meets a

standard of decency based on the         Community                           Services Commissioner

Visitors under                         regarding a service                                                              principles in section 5: s 30(c).

For Supported Residential Services - Any case of suspected abuse or neglect: s

Page 44 of 55

Safeguarding Task Force - Report - July 2020

Authorization       Department       Requesting visitation          What they can visit                       Relevant Powers

the Disability Act                       provider: ss 109, 110        (SRS) Community Visitors under the         30(e).

2006 (VIC).                               Disability Act 2006 (VIC).    Supported Residential Services                  - The use of restricted practises or

- Mental Health                                                         (Private Proprietors) Act 2010 (Vic),         compulsory treatment: s 30(f).

Community can visit “supported residential

Visitors under                                                                            The above powers are also the same for                                                                                  services" , which under s 5 means:

the Mental                                                                                                         Specialist Disabilit y Accommodation (SDA)                                                                                                                   - Premises where accommodation and

Health Act 2014                                                                                              dwellings: s 30A.                                                                                   personal support are privately

(VIC). provided or offered to residents for a

• Supported fee or reward.

Residential

Services (SRS) But does not include aged care Community facilities, retirement villages, or

Visitors under                                                                                             For Supported Residential Services (SRS)                                                               accommodation and personal support           the Supported                                                                        Community Visitors under the Supported                                                                          or nursing care services that are            Residential                                                                                                  Residential Services (Private Proprietors) Act

provided to a person in respect of            Services (Private                                                                                                2010 (Vic), powers include:

Proprietors) Act                                  whom a residential care subsidy is                                                                                                                                                                             - Right to enter and look at any part of the

2010 (VIC).                                                    payable under Commonwealth                                                                                                                       premises of a supported residential service:

legislation: s 5. s 187(1)(a).

• Speak with any resident or employee: s 187(1)(b) and (c).

  QLD Queensland has a Overseen by the A child under care at a Two separat e streams of visitation for Different powers depending on whether a

  disabilit)!’. CVS Queensland visitable home or site can children and adults. child or adult is being visited.

Office of the request visitation from a

Main Act: Public      Public Guardian.   community visitor: ss 59,

Guardian Act 2014 60 Public Guardian Act

(QLD) (this is the    More than 140    2014 (QLD).                 Children:                              Children:

act being          CV's working            - Can make the request                                                                    - Broad powers to do 'all things necessary or

referenced in this    across 13             through t he public        Right to visit 'visitable sites', which          convenient' in order to assess the

adequacy and appropriateness of a place.

Page 45 of 55

Safeguarding Task Force - Report - July 2020

Authorization       Department       Requesting visitation           What they can visit                       Relevant Powers

row)               zones, w ith             guardian, an authorised   under s 51 means:                                     - For visitable sites, power to:

each zone               officer or a carer.                 - A residential facility where the child                0  Enter during normal hours without

having its ow n                                                 is staying                                            notice: s 67(1)(a).

Regional                                                               - A detention centre where the child is               0  Enter outside normal hours

Also: Public        V isiting                                                 staying                                              (requires authorisation from Public

Guardian          Manager.        An adult under care at a          - A corrective services facility where                 Guardian): s 67(1)(b).

Regulations 2014                           visitable site can request        the child is staying                                     0  Inspect the site: s 67(1)(c).

(QLD)                                         visitation from a                      - An authorised mental health service                0  Talk in private to the child staying

community visitor: s 43(1)      where the child is staying                          there: s 67(1)(d).

0  Require staff members to produce                                           Public Guardian Act 2014

Also, the right to visit 'visitable                    documents: s 67(1)(f).                                          (QLD).

homes', where the child is in the                - For visitable homes, must receive access                                                                   - Can make the request

through either consent of the carer there                                             through the public       custody or guardianship of someone

or an authorised warrant: s 61.                                               guardian or by asking a   other than their parent (t hrough the

0  However once inside have power                                                        staff member at the     Queensland Child Protection Act

to look around and assess its                                                               site: s 43.             1999) (i.e. foster homes).                                                                                                                            appropriateness for

accommodation, talk with the child privately, and talk with the carer: s

66.                                      Note: the legislation does   Adults:

not say whether interested parties can Right to visit ‘visitable sites’, w hich

request visitation on       under s 39 means:                                                                                                          Adults:

behalf of a child or adult         - An authorised mental health service         - Broad power to do 'all things necessary or

provider that provides inpatient                                                                - just says the resident                                                    convenient' in order to assess the

services                                    can do it themselves.                                               adequacy and appropriateness of a site: ss

• Forensic disability services 44, 41.
• A place, other than a private - Includes ability to: dwelling, in which an adult lives and 0 Enter the site during normal hours

receives NDIS services: Schedule 1 without notice: s 44(1)(a).

Page 46 of 55

Safeguarding Task Force - Report - July 2020

Authorization       Department       Requesting visitation           What they can visit                       Relevant Powers

Public Guardian Regulations 2014                   0  Enter the site outside normal hours

(Qld). (requires authorisation from the Public Guardian): s 44(1)(b). 0 Require staff members to answer questions and produce documents: s 44(1)(c).

WA  WA does not have    Healt h and       N/A                    The Health and Disability Services      The Health and Disability Services

an official disabilit)!'.   Disability Services                            Complaints Office can only visit        Complaints Office receives complaints that:

CVS                Complaints Office                            premises through a warrant: s 63                - A health service has been unreasonably

(HaDSCO) -                                   Health and Disability Services                denied.

The closest it has     independent                                   {Complaints) Act 1995 (WA). No                - Health service has been provided in an

are two separate     statutory                                   automatic right of visitation due t o         unreasonable manner.

complaints                                                                                                                                                        - Unreasonable denial of access to records or                             authority                               no official community visitor scheme.

breach of privacy. schemes under the

• Not investigating or improperly Disability Services investigating complaints.

  Act 1993 (WA) and - Overcharging. Also note: from t he Health and

December 2020

Disability Services                              the NDIS Quality and                                                         Once a complaint has been made, t he

{Complaints) Act                                Safeguards                                                                                  Healt h and Disability Services Complaints

1995 (WA).           Commission will be                                                                           Office has limited investigation powers,

- The important      responsible for                                                                                                            namely, to request information and t he

distinction here     receiving complaints                                                                                                              production of documents: s 41 Disability                is that there is no  about disability

service providers                                                                           Services Act 1993 (WA).           automatic right

under the NDIS in           of access to a                         WA. However until              site -such a                               then the Health and

power only                                       Disability Services                                                                   During investigation of a complaint the

Page 47 of 55

Safeguarding Task Force - Report - July 2020

Authorization       Department       Requesting visitation           What they can visit                       Relevant Pow ers

arises once a       Complaints Office                                                                     Health and Disability Services can only visit

complaint has        will be responsible                                                                 premises through a w arrant - no

for this (including            actually been                                                                                   automatic right of access: s 63 Health and                                        disability services          made.                                provided to                                                                                    Disability Services (Complaints) Act 1995

individuals who (WA). have NDIS plans through the NDIA, for individuals who have transferred from WANDIS to the NDIS, and for individuals who continue to receive services through the

State Government or

its contracted service providers).

TAS   Tasmania does not  No CVS, but       N/A                  No automatic right of visitation due   S 28 of Disability Services Act 2011 Tas)

have an official      Department of                                 to no official disability Community     outlines the rights of autho rised officers

disabilitl£ CVS         Healt h                                            Visitor Scheme.                        entering premises, includes ability to:

respo nsible for - Inspect the premises (including right to Disability Services open any containers or cabinets) Act 2011 (Tas): s - Request a person on site to provide

Department of Health employees or         information or documents                         54 of the act.

officers can be authorised to enter a - Complaints or funded provider’s premises or private allegations of

Page 48 of 55

Safeguarding Task Force - Report - July 2020

Authorization       Department       Requesting visitation           What they can visit                       Relevant Powers

abuse can also funded premises: s 25 Disability be reported to Services Act 2011 (Tas). Tasmanian - Done for the purposes of ensuring Disability and that a person residing there is Community receiving the care and support Services. necessary for their health and wellbeing: s 26(2) Disability Services Act 2011 (Tas).

Additionally, the

Tasmanian Health

Complaints Additionally, the Tasmanian Health

Commissioner and Complaints Commissioner can can receive and investigate complaints but can only investigate inspect a site with a warrant: s 47 complaints under Health Complaints Act 1995 (Tas). the Health

Complaints Act

1995 (Tas).

ACT  ACT has a disabilit~  The ACT Public    An entitled person at a    No legislative power to enter private    Official visitors have ability to enter a

Official Visitors      Trustee and         visitable place, or anyone   homes.                                    "visitable place" at any reasonable time,

Scheme             Guardian (ACT)      else, can request                                                    either following an official complaint or on

visitation from an official their own initiative: s 15(1) Official Visitor

Relevant Act: The                                                          visitor: s 21(1) Official                                        Act 2012 (ACT).

Page 49 of 55

Safeguarding Task Force - Report - July 2020

Authorization       Department       Requesting visitation           What they can visit                       Relevant Powers

Official Visitor Act Visit Act 2012 (ACT).

2012 (ACT)                                                - The operating entity       Official visitors have ability to visit a

establishes t he                            must notify an official     "visitable place", meaning

ACT's Official Visitor                                visitor within 24 hours    "accommodation provided to an        Broad powers, including ability to:

of a request: s 21(2).      entitled person for respite or long-             - Inspect any health record or other recordScheme, with each

0  Requires either the resident'sscheme having its                                               term residential purposes" : s 8B(l)(a)                                                                                                                               consent, reasonable belief fromown separate                                                                Disability Services Act 1991 (ACT).                                                                                                                            the visitor that the resident has the

legislation. inability to consent, or a belief that

• The disability it’s necessary to carry out their Community investigation regardless: s 15(2) This includes (per s 8B(l )(b)): Visitor Scheme Official Visitor Act 2012. - (i) Accommodation that is owned, overseen by the - Monitor the conditions, services and rented or operated by a specialist Disability practises in place: s 14(1)(b) Official Visitor disability service provider Services Act Act 2012. - (ii) Accommodation at which a 1991 (ACT). - Investigate and seek to resolve complaints: specialist disability service provider

s 14(1)(d) Official Visitor Act 2012. provide a specia list disability service

- Identify and report on systemic issues                                                                                                         -  (iii) A residential aged care faci lity

adversely affecting entitled people at the t hat accommodates the entitled place: Official Visitor Act 2012. person

But does not include (per s 8B(2)):

• (a) A private home if t he person receives a specialist disability service from someone who isn’t a disability service provider

• (b) A private home if t he person lives in the home with at least 1 adult family member who does not receive a specialist disability service from a

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Safeguarding Task Force - Report - July 2020

Authorization       Department       Requesting visitation           What they can visit                       Relevant Powers

specialist disability service provider at the home

• (c) Accommodation if the only specialist disability service the person receives at the accommodation is a type of service declared by the Minister not to require visitation

• (d) A residential aged care facility if the person is 65 years old or older when they first receive a specialist disability service (whether at the facility or elsewhere)

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Safeguarding Task Force - Report - July 2020

Authorization       Department       Requesting visitation           What they can visit                       Relevant Powers

NT   NT has a disabilit)!'.     Is an independent  Complaints can be made   No legislative power to enter private   Powers (per s 57(2)):

CVS                   service under t he   to the manager of t he      homes.                                                     - Speak with residents of a residential facility

Anti-                residential facility by any                                                                     - Inspect a residential facility and any

Relevant Act:         Discrimination      interested party: s 46.                                             documents relating to residents of the

Disability Services   Commission (NT)        - Manager has                                                                            facility made or kept for the Act.

Act 1993 (NT)                                      responsibility of       A community visitor may visit

investigating complaints (without notice) a residential facility and keeping records of at “any reasonable time”: s 57(2)

Additionally, under s 55(1) Disability                                                 them.                     Disability Services Act 1993 (NT).

Services Act 1993 (NT), community visitors can inquire and make recommendations relating to:

Managers must also        Per section 2, "residential facility"             - (a) The adequacy of information relating to

ensure residents or          includes:                                    the rights of residents receiving treatment

interested parties are              - A secure care facility                    and care at resident ial facilities:

given information about          - An appropriate place other t han a           - (b) The accessibility and effectiveness of

community visitors and          secure care facility                        the complaint procedures in place:

- Other premises operated by the              - (c) The failure of persons employed in                                                     their right to request one.

Agency to provide services for the           residential facilities to comply with the Act.                                                Accordingly, a resident or

t reatment and care of people with a        - (d) The use of restrictive interventions:                                                interested person can                                                                                                      disability                                             - (e) Any matter the community visitor

request visitation from a considers appropriate having regard to the community visitor: s 58. treatment and care principles

- "Interested person"                                                                          -  (f) any matter as directed to the principal

means a guardian, community visitor by t he Minister decision maker, primary carer, or another person interested in the resident’s right : s 58(2).

• Manager must ensure such a request is sent to a community visitor

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