SUB.001.03108_01_0001
Submission to Disability Royal Commission | nte! ife
Final DRC Submission — 19/12/2022 Fig tienen
Submission title:
Response to Issues Paper - Violence and abuse of PWD at home
Intro:
Intelife welcomes the work of the Disability Royal Commission into violence, abuse, neglect and exploitation of people with disability.
Within the context of NDIS service provision, the NDIS Quality & Safeguard Commission is relatively clear on the use of restrictive and prohibited practices for NDIS service providers.
There is, however, a need for more information and guidance where it is the case either NDIS providers and/or unregistered workers become aware a person with disability is or maybe subject to harm and human rights breaches by families and other unpaid people in their support network.
In a 2020 document titled ‘Unauthorised use of restrictive practices, Questions and answers’, the NDIS Commission attempted to consolidate and provide answers to questions being asked by providers around these issues. For example (p8 & 9);
Q-A family we support is very opposed to us reporting an unauthorised restrictive practice they use for their child. They believe we’re judging them and disrespecting their trust. How should we manage this? They are also asking for copies of any reports made (by us about them), under the Freedom of Information Act 1982 (FOI Act).
A - Registered NDIS providers using a regulated restrictive practice when providing supports or services to a person with disability, must comply with the relevant reporting requirements under the Incident Management and Reportable Incident Rules.
However, if the family of the NDIS participant use the restrictive practice (not in connection with the NDIS funded supports or services), this falls outside the jurisdiction of the NDIS Commission and does not need to be reported.
Any information received is protected NDIS Commission information and is subject to the privacy requirements of the NDIS Act. A participant, parent or guardian can make a Freedom of Information (FOI) request, details are on the NDIS Commission’s website.
Q - If a family applies restraint while support workers are present, what are our obligations, particularly if it is apparent the participant is not happy with the restraint?
A - lf a family applies a restraint that could be seen as being used in the course of a support worker delivering NDIS supports or services, it constitutes a restrictive practice. In this case, the support worker could suggest the family obtain funding for a behaviour support practitioner.
If the support worker holds concerns about the participant’s welfare, then they can discuss the situation with their employer and seek further advice on how to manage the situation.
These types of questions are still being asked in 2022 during disability sector webinars and through WA government Behaviour Support channels - so maybe things are not so clear.
Page 1 of 7
SUB.001.03108_01_0002
Case study example - ‘please don’t take me home’: Currently under the NDIS there is no easy path for providers to take when an adult person with disability tells their support worker, they don’t want to be taken home. There may of course, be any number of reasons why a person may say this, but when it is subsequent to other information indicating some form of abuse, neglect, violence or exploitation maybe taking place in the family home, providers are in a difficult position. Recently lntelife (a registered NDIS provider) had this situation occur and reported it through the NDIS Quality & Safeguard Commission’s reportable incident system. The report stated the person with disability may have been subject to sexual misconduct and/or unlawful sexual contact by a member of their extended family and that lntelife had reported the matter to the WA Police. As a result of reporting the matter to the WA Police, lntelife was obliged to not take any further actions that would interfere with their investigations. As such, services to the NDIS participant continued for approximately 2 months where upon, the family notified lntelife that they were cancelling services and going to another provider. The family cancelled services with no period of notice being given.
The outcome of making a report to the NDIS Quality & Safeguards Commission resulted in an email response to lntelife within 2 days from the date the report was submitted and the item’s status within the online system, being recorded as ‘Out of jurisdiction’. The follow up email from the NDIS Quality & Safeguard Commission read as follows: “Dear [name -Provider’s delegated person],
Reportable Incident X-XXXXXXX
Based on the information provided, the incident does not appear to have occurred in connection with NDIS supports and services. Therefore this incident is not a reportable incident: for more information, see page 4 of Reportable Incidents Detailed Guidance for Registered ND/5 Providers (June 2019) which is available via the link below
-
https://www.ndiscommission.gov.au/document/596 If you have information to suggest the above assessment is incorrect, please advise by responding to this email. In this instance, your obligations to the participant relate to the NDIS Code of Conduct (the Code). Please see the relevant guidance document about what the Code means in practice via the link below
-
https://www.ndiscommission.gov.au/document/566 In situations where you or your workers are aware of risks to a participant’s safety or wellbeing, some of the responses that you could consider include:
Page 2 of 7
SUB.001.03108_01_0003
-
Reporting to the NDIA, where changes to funding or access to additional services are relevant, via
-
Phone 1800 800 110 or
-
Email enquiries@ndis.gov.au or
-
see the website here https://www.ndis.gov.au/
-
Contacting the NDIA Planner and making them aware of the risk
-
Collaborating with the participant’s support coordinator and other providers to respond to the risk
-
Contacting the National Disability Advocacy Program (DSS) who can provide assistance in addressing the legal aspects of abuse and negligence and protect rights of the person with a disability
-
Support the person to connect with an advocate. For further information on disability advocacy and finding a disability advocate, see: the Disability Advocacy Finder here https://askizzy.org.au/disability-advocacy-finder
-
Where there is a grievance against a registered NDIS provider, supporting the participant to make a complaint to the provider via their Complaints Management System. For information on the complaints management requirements for registered provider, see this webpage: Managing complaints I NDIS Quality and
Safeguards Commission (ndiscommission.gov.au)
-
Where there is a grievance against an unregistered NDIS provider, or where a complaint with a registered provider has not been resolved, supporting the participant to make a complaint to the NDIS Quality and Safeguards Commission, see here for guidance https://www.ndiscommission.gov.au/about/complaints
-
Contacting the Mental Health Emergency Response Line (MHERL), a 24-hour telephone service for people in the Perth metropolitan area experiencing a mental health crisis, see website and contact numbers here https://www.mhc.wa.gov.au/getting-help/helplines/mental-health-response-line/
-
Contacting the WA Police or supporting the participant and/or their representative to do so especially in relation to domestic violence as WA Police have the ability to link people to other services
-
Contacting the WA Police and asking that they conduct a welfare check
-
Contacting the Department of Communities for referrals to Family and Domestic Violence Help for adults
-
Contacting Child Protection and Family Support for issues relating to or impacting younger people with a disability
-
Seeking advice from the Office of Public Advocate (WA) via their telephone advisory service: 1300 858 455.“ This one case example illustrates how complex and difficult it can be for NDIS providers to actually address suspected sexual abuse and misconduct when this occurs in a person with disability’s private home.
Page 3 of 7
SUB.001.03108_01_0004
In this case, it would have been valuable if, a mandatory reporting system existed for reporting suspected sexual abuse of vulnerable adults and/or people with disability within Western Australia (or nationally). Restrictive practices - Issues paper & overview of responses The call to Australia by the United Nations Committee on the Rights of Persons with Disabilities (CRPD Committee) to establish a national consistent legal framework for the elimination of restrictive practices, in all settings including the home is commendable As we have seen thus far, the NDIS Quality and Safeguards Commission has not yet extended its reach into the private homes of people with disability. Currently matters of this nature (harm, neglect and exploitation) are not considered by them to be reportable incidents and are thus ‘out of their jurisdiction’. This situation needs to change. So too, there needs to be an avenue to address all coercive and non-consensual measures including deprivation of liberty which does occur within private homes and other provider/service settings The entanglement of states and territories, national agreements and various government departments (police, health and education) prevents any real universal address to breaches of human rights for people with disability. The recent research report, Complaint mechanisms: reporting pathways for violence, abuse, neglect and exploitation published by the Disability Royal Commission in Nov 2022 found major limitations in existing approaches to complaints of violence, abuse, neglect and exploitation. While the report focussed on complaint mechanisms (within organisations and agencies), it did suggest an obligatory reporting system is a potentially worthy of careful investigation – This could liken to that for children, where a ‘person is required by either state or territory legislation to report known and suspected cases of child abuse and neglect to a nominated government agency’. In Western Australia it is a legal requirement for doctors, nurses, midwife, teachers, police officers, boarding supervisors and ministers of religion to report child sexual abuse. New reporting groups are now being introduced in stages from Nov 2022 as a result of the Royal Commission into Institutional Responses to Child Sexual Abuse to include early childhood workers, out of-home care workers, registered psychologists, school councillors and youth justice workers lntelife agrees that an obligatory (mandatory) reporting system related to people with disability is worthy of careful investigation and if instigated, could indeed make a positive impact to the level of violence, abuse, neglect and exploitation suffered by people with disability within both service provision and their private homes. In terms of restrictive practices as currently defined by the NDIS, the extent of their use in private family homes is unknown, however, based on lntelife’s anecdotal evidence it is quite prevalent. The reason for this may be related to the fact, that nearly all of lntelife’s customer cohort has an intellectual/developmental disability. Parents and families generally have little knowledge nor understanding of the rights of people with disability (their family member) and the need to reduce and eliminate the use of restrictive practices.
Page 4 of 7
SUB.001.03108_01_0005
One of the proposals for change suggested in the overview responses to the Restrictive Practices Issues paper, was for ‘educating the community about the rights of people with disability and the need to reduce and eliminate the use of restrictive practices’. lntelife agrees with this proposal. It is not an easy conversation for a support worker to have with a parent when suggesting some alternative or adjustment to their parenting approaches might be useful; particularly when their ‘adult child’ has an intellectual or developmental disability. Some sort of community education and awareness programme could go a long way in addressing attitudes and values in order to prevent and minimise the use of restrictive and prohibited practices. This action could also be considered a safeguarding ‘action designed to protect the rights of people to be safe from the risk of harm, abuse and neglect, while maximising the choice and control they have over their lives’ (p102 NDIS Q&S Framework]. Safeguards and quality - Issues paper & overview of responses lntelife commends the Disability Royal Commission for publishing the research report about complaint mechanisms as previously described. lntelife agrees that complaint mechanisms are an important formal safeguard for people with disability. So too are advocacy services for people with disability particularly for those who have an intellectual or developmental disability and unmet needs (behaviours of concern). This cohort group need a lot of assistance to access and liaise with advocacy services in the first place. Recently in response to questions asked by attendees of the DSC National Quality and
Safeguarding Conference (held 18/10/2022) a representation was Department■■■■■■■
asked, ’what does- intend to do in future to improve choice and control, quality and safeguarding for participants living in ‘closed-settings’, their response was ‘This will be an important matter for consideration under the NDIS Review’. It is disappointing that current disability advocacy services funded by the Department of Social Services (DSS) are reported to have long wait lists due to increased demand as a result of an increase in the past 12 months of applications to the Administrative Appeals Tribunal (AAT) on National Disability Insurance Agency (NDIA) decisions. To address the rising number of appeals and ease the demand on advocacy services, lntelife understands that the Government has allocated one-off funding of $12.4 million in 2022-23 to support an Independent Expert Review (IER) program in addition to the $21.2 million over the next 3 years to 2023-2025 to supplement ongoing funding for the NDIS Appeals Program. The pilot phase of the IER commenced in October 2022. The IER program will operate as a form of independent dispute resolution for matters where proceedings have been put forward to the AAT for review. The $12.4 million one-off funding allocation includes $6.6 million administered through the NDIS Appeals program for advocacy and legal supports for people participating in the IER process. lntelife also understands that in relation to individual advocacy there is work being undertaken, to revise the National Disability Advocacy Framework. The revised framework is intended to reflect the Australian Government, and state and territory governments’ shared commitment to improve access to high quality disability advocacy. The Department of Social Services is apparently also progressing on the development of a Disability Advocacy Support Helpline (Helpline); which was an initiative under Australia’s Disability Strategy 2021-2031. The aim of the helpline will be to provide support over the phone and referral
Page 5 of 7
SUB.001.03108_01_0006
to National Disability Advocacy Program providers and other community and government agencies if required. A Disability Advocacy Support Helpline will be a welcomed initiative, so too that of the IER program. These will assist in improving sufficient advocacy services for people with disability. Launched in Nov 2022, the National Disability Services annual market survey, titled ‘State of the Disability Sector Report 2022’ identified a perception that there is not sufficient advocacy for people with disability (73% of respondents), - This report also found, ‘overall, only 39 per cent of providers were confident that the ND/5 Quality and Safeguarding Framework supported the quality of services and outcomes (significantly lower than the 45 per cent of respondents who agreed in 2021)’, •. The Royal Commission’s Issue Paper on safeguards defined safeguards as ‘actions designed to protect the rights of people to be safe from the risk of harm, abuse and neglect while maximising the choice and control they have over their lives.’ Given informal safeguards such as trusted relationships and self-advocacy can often be woefully insufficient for people with intellectual/developmental disability, there needs to be some sort of additional formal safeguarding actions to address this. Clearly the current reporting mechanism of the NDIS Quality & Safeguards Commission does not adequately address situations where suspected or actual harm, abuse and neglect occurs outside of provider service provision. lntelife agrees that identifying at-risk individuals and situations during the NDIS planning phase could be useful and if someone is considered at risk, support coordination should automatically be included in their plan until their risk status changes. This of course would require a risk assessment criteria and for NDIS Planners to have the requisite knowledge and cultural awareness to work effectively with NDIS participants, such as First Nations people. Supported decision making should also be a feature of the NDIS Planning phase. In lntelife’s anecdotal experience there is an over reliance on substitute decision makers when it comes to participant goals and an inattention to the need for specific capacity building funding in relation to increasing decision making skills supporting them to make decisions about their lives according to their own will and preferences. This could be a fundamental feature of the NDIS Planning process for vulnerable individuals, individuals who are at risk and for those who live in the family home. Also too, could be the automatic inclusion of funding for support coordination in the plans of these individuals as previously stated.
Further proposal lntelife suggests a proposal for the creation of a national body with state and territory representation that solely deals with reports of suspected harm or neglect of people with disability. State and territory representatives could potentially be from service providers and funded by the Australian Government. Within each state and territory there could be a team with the necessary skillset. This would include investigation skills, expertise in communication with people with
Page 6 of 7
SUB.001.03108_01_0007
disability, cultural awareness, support coordination and linkage to the police and NDIS Commission. Linkage to the police would facilitate capacity to build a case that allowed police to then act. A key current failing is that the police do not have the necessary experience or skillset to conduct investigations involving people with disability particularly where communication is difficult or cognitive ability is unknown. Each state and territory team could have call centre staff and would act as a centre point for all harm and neglect notifications, regardless of context (NDIS funded services or otherwise). This could be likened to the Crime Stopper model but tasked to specifically deal with suspected violence, abuse, neglect and exploitation of people with disability.
References
Unauthorised use of restrictive practices Questions & Answers, NDIS Quality & Safeguarding Commission website, 23/11/2022 [https://www.ndiscommission.gov.au/sites/default/files/2022 02/unautho rised-use-restrictive-practices-q uestions-a nd-a nswers.pdf ] State of the Disability Sector Report 2022, National Disability Services website 05/11/2022 [https://www.nds.org.au/about/state-of-the-disability-sector-report ] Research Report - Complaint mechanisms Reporting pathways for violence, abuse, neglect and exploitation, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, website 06/12/2022 [https://disability.roya Icommission.gov.au/publications/complaint mecha nisms-reporting-pathways-violence-a buse-neglect-and-exploitation]
The End
Page 7 of 7