Submission 62 — OPAN — Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability | External submission

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Level 6, 241 Commonwealth Street Surry Hills I NSW 2010 E: enquiries@opan.com.au 1800 700 600

ABN: 81 618 261 859

Submission to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability

About OPAN Formed in March 2017, the Older Persons Advocacy Network (OPAN) is a national network comprised of nine state and territory organisations that have been successfully delivering advocacy, information and education services to older people across Australia for over 30 years. Our members are also known as State Delivery Organisations (SDOs). The OPAN SDOs are:

ACT Disability, Aged and Carer Advocacy Services ACT SA Aged Rights Advocacy Service (ARAS) (ADACAS)

NSW Seniors Rights Service (SRS) TAS Advocacy Tasmania

NT Darwin Community Legal Service VIC Elder Rights Advocacy (ERA)

NT CatholicCareNT (Central Australia) WA Advocare

Aged and Disability Advocacy Australia

QLD (ADA Australia)

OPAN is funded by the Australian Government to deliver the National Aged Care Advocacy Program (NACAP). OPAN aims to provide a national voice for aged care advocacy and promote excellence and national consistency in the delivery of advocacy services under the NACAP.

OPAN’s free services support older people and their representatives to understand and address issues related to Commonwealth funded aged care services. We achieve this through the delivery of education, information and individual advocacy support. In 2021/22, OPAN delivered information and advocacy support to over 27,000 people across the nation.

OPAN is always on the side of the older person we are supporting. It is an independent body with no membership beyond the nine SDOs. This independence is a key strength both for individual advocacy and for our systemic advocacy.

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About OPAN’s Submission OPAN welcomes the opportunity to provide feedback into the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability.

OPAN’s submission addresses the topic of older people with disability, with a particular focus on people who acquire a disability after the age of 65 years. People who acquire a disability after the age of 65 do not have access to the same range of services and levels of support provided to younger people with disability via the National Disability Insurance Scheme and are often forced to move into residential aged care facilities because their needs cannot be appropriately met in the community.

OPAN considers the inequalities faced by older people with disability to be a human rights issue requiring immediate attention. We call on the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability to raise this as an issue that needs to be urgently addressed by the Australian Government.

The introduction of legislation supporting NDIS age limitations When the National Disability Insurance Scheme Bill 2012 was introduced to parliament, the Parliamentary Joint Committee on Human Rights (the Committee) examined the Bills compatibility with the seven-core international human rights treaties to which Australia is a party, including the UN Convention on the Rights of People with Disability (CRPD).

In the Bill’s compatibility statement, Po the following rationale for proposed

age restrictions

“Age requirements (section 22) — the intent is that NDIS applicants should be under the age of 65, on the basis that persons aged over 65 are eligible for long term assistance and support under the aged care system…

[OJnly those people aged under 65 can make an access request. This is because the NDIS is one part of a broader system of support in Australia. The intent is that people over the age of 65 should access the aged care system. Those people who are receiving support under the NDIS and turn 65 can choose either to remain in the NDIS or to move to the aged care System”.

The Committee questioned whether the aged care system was organised and operated in accordance

with the principles and obligations set out in the CRPD and the NDIS and whether it could deliver all the

forms of assistance and support required by older people with disability.’

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The «sponded by explaining that the aged care system provided several supports consistent with those that would be delivered through the NDIS. They also suggested that reforms to

the aged care system (introduced following the 2011 Productivity Commission Inquiry into the Care of Older Australians) would allow the system to

The committee had, therefore, understood that there would be some equivalence in the forms of assistance and support available between the NDIS and the aged care system, and was accordingly satisfied that the NDIS age restriction was unlikely to raise significant concerns with regard to the rights

to equality and non- discrimination. |

4. Inquiries highlighting disparities between the NDIS and aged care systems Since the introduction of the National Disability Insurance Act 2013, a number of inquiries have flagged concerns relating to the disparities between the NDIS and aged care systems.

The Productivity Commission Report on NDIS Costs noted there are differences in the objectives, financial contributions, and the level of supports provided under the two systems and put forward some of the policy options it considered to be worth exploring, including removing the NDIS entry cut-off age altogether and better aligning the aged care and NDIS systems.“

The Joint Standing Committee on the NDIS reported on transitional arrangements for the NDIS and noted the following

The Committee is concerned that people with disability over 65 years of age are not receiving adequate supports and are potentially disadvantaged compared to NDIS Participants. The committee believes that the Department of Health in collaboration with the Department of Social Services should undertake work to map the needs and gaps in funding and services for this cohort ineligible to NDIS services, with the view of developing a strategy to address current shortfalls in supports. ”

More recently, the final report from the Royal Commission into Aged Care Quality and Safety highlighted inconsistencies between the two systems and suggested that older people with disability should not have to accept something less than that which others in similar circumstances can access under the National Disability Insurance Scheme.

We have received evidence and information about inconsistencies between the supports and services available under the National Disability Insurance Scheme and those available in the aged care system, including greater access in the National Disability Insurance Scheme to specialised care, aids, equipment and therapy. The schedule of supports available to participants in the National Disability Insurance Scheme is more comprehensive than is presently available in aged care. The average amount of funding available for supports is often greater in the National Disability Insurance Scheme than in the current aged care system. As at October 2020, the highest level of government funding available to an aged care resident was $81,446.10 plus supplements each year (if classified as ‘High High High’ for the Aged Care Funding Instrument) but, on average, an individual plan for a National Disability Insurance Scheme participant receiving Supported Independent Living care supports was about $325,000 a year without any user contribution.”

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Findings from these inquiries are reflective of the inequalities and discrimination that OPAN has observed in providing aged care advocacy support to older people with disability. These findings suggest that commitments made in order to pass the NDIS legislation through the the Parliamentary Joint Committee on Human Rights were not actualised and require immediate attention.

Equality for people with disability receiving aged care Recommendations in the final report from the Royal Commission into Aged Care Quality and Safety called for equity for people with disability accessing aged care and transparency around the governments progress towards achieving this goal

Recommendation 72: Equity for people with disability receiving aged care

By 1 July 2024, every person receiving aged care who is living with disability, regardless of when acquired, should receive through the aged care program daily living supports and outcomes (including assistive technologies, aids and equipment) equivalent to those that would be available under the National Disability Insurance Scheme to a person under the age of 65 years with the same or substantially similar conditions.”

Recommendation 73: Annual reporting to Parliament by the Disability Discrimination

Commissioner and the Age Discrimination Commissioner

By 1 July 2024, the Disability Discrimination Commissioner and the Age Discrimination Commissioner should be required, as part of the new National Disability Strategy, to report annually to the Parliament on the number of people receiving aged care with disability who are aged 65 years or older and their ability to access daily living supports and outcomes (including assistive technologies, aids and equipment) equivalent to those available under the National

Disability Insurance Scheme. ‘

The Australian Government’s response to the final report from the Royal Commission into Aged Care Quality and Safety indicated that recommmendation 72 would be subject to further consideration with reference made to a new aged care Support at Home Program which would consider the level of support available to people in aged care, including for people aged over 65 who would otherwise be eligible for the National Disability Insurance Scheme (NDIS). “!

The introduction of a new Support at Home Program provides the ideal opportunity for the Australian Government to address the inequity and discrimination faced by older people acquiring a disability after the age of 65 years.

Consultations for a new Support at Home Program commenced late 2021 with plans in place to implement the new program by July 2023. Whilst the proposed Program design consulted on reflected many aspects of the NDIS, with funding based on the assessed need of individuals and a price schedule with unit costs for services capped, it remains unclear as to whether the new Program will provide older people with disability with the same range and levels of supports available to eligible NDIS recipients.

The new Government has recently realigned the timeframes for implementing a new Support at Home Program with the timeframes originally proposed by the Royal Commission into Aged Care Quality and Safety — implementation from July 2024. Minister for Aged Care, Anika Wells has indicated that the extended timeframes will allow for greater consideration of the Royal Commission recommendations

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and increased opportunities for stakeholder consultation. With the timeframes for Program consultation and implementation extended, OPAN will be advocating for the design and implementation of a Support at Home Program that delivers on the Aged Care Royal Commmission’s recommendation 72 — Equity for people with disability receiving aged care services.

We note the Australian Government has provided little to no indication that they will address the inequities and discriminaton faced by older people living with disability in residential aged care. Under current arrangements, older people with disability who can not have their needs appropriately met through a Home Care Package, are often forced into residential aged care.

In the residential care setting older people with disability often struggle to access the aids and equipment they need to maintain independence and quality of life and do not have access to the same level and range of supports offered to NDIS participants in the community or supported accommodation (ie allied health and support to remain active particpants in their community). Further to this, they frequently have their rights under the UN Convention on the Rights of Persons with Disabilities ignored. Violations of rights can be observed in practices that limit the dignity, privacy, choice and independence of individuals, through the use of restraint, their isolation from community and through insitutional segregation, as seen in facilities with locked dementia wards.

The United Nations Committee on the Rights of Persons with Disabilities has commented on the violation of rights associated with institutional segregation

‘the segregation of persons with disabilities in institutions continues to be a pervasive and insidious problem that violates a number of the rights guaranteed under the Convention’ (UN Committee on the Rights of Persons with Disabilities UN Disability Committee, para. 46).”“

The issue of segregation and confinement in Australian residential aged care has been raised in discussions relating to the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). The OPCAT aims to improve how people’s human rights are protected when they are detained/confined.”“ In 2017, the Australian Government ratified the OPCAT but failed to include residential aged care facilities as a ‘primary place of detention’.™ This decision occurred despite the Committee against Torture recommending ‘each State party should prohibit, prevent and redress torture and ill-treatment in all contexts of custody or control, for example, in prisons, [and] institutions that engage in the care of children, the aged, the mentally ill or disabled’. *

The Australia OPCAT Network maintain that the limited mobility and autonomy of many residents in residential aged care facilities combined with the high usage of locked dementia units and restrictive practices means that many residents are effectively detained (irrespective of whether they are in a locked unit) and are at high risk of torture or cruel, inhuman or degrading treatment. * The Royal Commission into Aged Care Quality and Safety confirmed these concerns, noting the abuse of older people in residential care was far from uncommon, with physical and sexual abuse occurring at the

hands of both staff members and fellow residents and through the inappropriate use of unsafe and inhumane restrictive practices aa

Over recent years, OPAN has welcomed efforts to move younger people people with disability out of residential aged care. This work has been a positive step in ensuring younger people with disability can exercise their rights under Article 19 of the of the UN Convention on the Rights of Persons with Disabilities. OPAN maintains that it is now time for older people with disability to be affored the same rights. This will require greater investment in an equitable and effective Support at Home Program, an inter-government commitment to increasing the supply of a diverse range of affordable and accessible

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housing options for older people with disability, and a transition away from the funding of large institutional design settings towards innovative housing models featuring lower-density congregate living arrangements.

Recommendations OPAN calls on the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability to reinforce to the Australian Government the importance of

e ensuring older people with disability receive from the aged care system daily living supports and outcomes (including assistive technologies, aids and equipment) equivalent to those that would be available under the National Disability Insurance Scheme to a person under the age of 65 years with the same or substantially similar conditions. This requirement must be applied to both residential aged care and the new Support at Home Program.

e = Implemtning a new human rights based Aged Care Act that promotes, protects and reinforces the rights of older people with disbility under UN Convention on the Rights of Persons with Disabilities.

e —_ Investing in services and infrastructure that will support older people with disability to exercise their rights under Article 19 of the of the UN Convention on the Rights of Persons with Disabilities into the future.

Contact OPAN Thank you for the opportunity to provide this brief submission addressing the inequity and discrimination faced by older people with disability. We would be happy to provide further information and case examples, should the Commissoners require more detail on specific points raised in this submission.

For more information please contact Craig Gear, CEO, craig.gear@opan.com.au or 0410 695 659.

‘Parliament of Australia (2013). National Disability Insurance Scheme Bill 2012. Retrieved from https://www.aph.gov.au/Parliamentary Business/Bills Legislation/bd/bd1213a/13bd072#:~:text=The%20pur pose%200f%20the%20National,fu \I%20across%20Australia%20from%202018.

Parliament of Australia (2013). National Disability Insurance Scheme Bill 2012. Retrieved from

https://www.aph.gov.au/Parliamentary Business/Committees/Joint/Human Rights/Scrutiny reports/2013/2013/12013/c08

“’ Productivity Commission (2017). National Disability Insurance Scheme (NDIS) Costs. Retrieved from

https://www.pc.gov.au/inquiries/completed/ndis-costs#report

“V parliament of Australia (2018). Transitional arrangements for the NDIS. Retrieved from https://www.aph.gov.au/Parliamentary Business/Committees/Joint/National Disability Insurance Scheme/Transition/Report/cO2 .

’ Royal Commission into Aged Care Quality and Safety (2021). Final Report: Care, Dignity and Respect. Retrieved from https://agedcare.royalcommission.gov.au/publications/final-report

V! Commonwealth of Australia (2021). Australian Government Response to the Final Report of the Royal Commission into Aged Care Quality and Safety (pp 47 -48). Retrieved from https://www.health.gov.au/sites/default/files/documents/2021/05/australian-government-response-to the-final-report-of_ the-royal-commission-into-aged-care-quality.and-safety.pdf .

V!“ UN Committee on the Rights of Persons with Disabilities (UN Disability Committee). 2014b. General Comment No. 1 (2014). Article 12: Equal Recognition before the Law. CRPD/C/GC/1. Available online: https: //tbinternet.ohchr.org/_layouts/1S/treatybodyexter nal/Download.aspx?symbolno=CRPD/C/GC/1

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x *

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Vl Australian Human Rights Commission. (2020). Implementing OPCAT in Australia. Retrieved from https://humanrights.gov.au/our work/rights-and-freedoms/publications/imp!ementing-opcat-australia-2020

’X The Australian OPCAT Network. (2020). Submission to The Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (SPT) and the United Nations Working Group on Arbitrary Detention (WGAD). Retrieved from https://www.kaldorcentre.unsw.edu.au/sites/kaldorcentre.unsw.edu.au/files/Implementation of OPCAT in Australia.pdf .

Committee against Torture. General Comment No. 2: Implementation of Article 2 by States Parties. (2008) CAT/C/GC/2 (24 January). Retrieved from https://www.refworld.org/docid/47ac78ce2.htm|