In an upcoming blog post, the DANA policy team will analyse the recommendations in Volume 10, Disability services concerning safeguarding functions in relation to the NDIS service settings. We will particularly look at what the Disability Royal Commission (DRC) has recommended as priorities for improving the NDIS Quality and Safeguards Commission’s effectiveness in responding to and preventing violence, abuse, neglect and exploitation. This is an area in which advocates possess detailed insights and have provided extensive feedback, (see Advocates on Quality and Safeguarding, April 2021, Rights, Safety, Quality, December 2022).
However, as we’ve often heard from advocates around the country and as many advocacy organisations submitted to the DRC, not all harm occurs in “service settings” like group homes or other settings controlled by service providers (within the ambit of the NDIS Commission), but also in private homes and public spaces.
Today we’re looking more closely at Chapter 1 of Volume 11, Independent oversight and complaint mechanisms, which looks at adult safeguarding functions, including:
- the current complex landscape of relevant safeguarding responses ranging through hotlines/helplines, public guardians, public advocates and trustees, and complaint commissions that have differing functions and powers to respond to this type of violence, abuse, neglect or exploitation;
- the adult safeguarding bodies already legislated and functioning in two jurisdictions, (as the Australian Law Reform Commission recommended in 2017); and
- the need for these functions to be established or improved in each jurisdiction to complement envisaged reforms to the NDIS safeguarding measures at the Federal level.
In NSW, the Ageing and Disability Commissioner has powers to refer (including to police or the Director of Public Prosecutions), investigate and take actions in response to reports “about an adult with disability or older adult if they have reasonable grounds to believe the adult is subject to, or at risk of, abuse, neglect or exploitation”. Last year an independent review of the Ageing and Disability Commissioner Act was undertaken that several NSW member organisations contributed to, with submissions from PWDA, CID and PDCN and Family Advocacy. Many within and outside NSW have endorsed the strong investigative powers of the NSW Ageing and Disability Commission, and their practice for keeping the will and preference of the person with disability at the centre of their work (in contrast with public guardians).
In South Australia, the Adult Safeguarding Unit is located in the Office for Ageing Well in the Department for Health and Wellbeing. When it was established in 2019 it had an initial focus on the abuse of older adults, but the Unit’s scope has since been expanded to adults with disability and all adults who may be “vulnerable and experiencing abuse or mistreatment”. The Unit’s functions include receiving, assessing and investigating reports relating to the suspected abuse of adults who are “vulnerable” and referring to appropriate bodies and persons, guided by a Code of Practice and the South Australian Charter of the Rights and Freedoms of Vulnerable Adults. Although the legislation does permit the Unit to receive reports of violence and abuse in public places, this capacity in not currently promoted and limited due to its focus on taking action in cases of ongoing risk of abuse.
Despite the Queensland Public Guardian having a legislated power in Australia to investigate allegations of neglect, exploitation abuse and inadequate or inappropriate decision-making arrangements for adults with “impaired capacity”, advocates have often referred to frustrating experiences with this body. In past DANA engagements, input from advocates has suggested a lack of willingness and/or resourcing to undertake this safeguarding work, or to cooperate with advocacy organisations attempting to defend the safety and rights of people with disability. (See comments about the OPG in Rights, Safety, Quality, December 2022).
Evidence before the DRC confirmed the need for ‘alternative reporting pathways’, given the significant reluctance and mistrust in reporting directly to police (explored in research reports on police responses and complaint mechanisms and in Volume 8, Criminal justice and people with disability). Counsel Assisting submitted that the National Disability Abuse and Neglect Hotline (for which increased funding was announced in this year’s Federal Budget) does not meet this need.
On this evidence, the DRC has recommended that nationally consistent adult safeguarding functions should be established, with legislation in each jurisdiction tasking an appropriate independent body to receive, assess and investigate allegations of violence against, or abuse, neglect or exploitation of people with disability. This would be in addition to other existing mechanisms and would not prevent the use of the police and criminal justice system, but rather support referrals to other relevant mechanisms or options. (Hopefully, other reforms flowing from Volume 8 recommendations will also make these reporting options increasingly safe, accessible and responsive to the needs of people with disability.)
The DRC outlines their envisaged minimum requirements for the principles, functions and powers of these bodies.
- Principles include recognition of decision making abilities and the need for supports, and requiring “safeguarding decisions and actions to be the least interventionist and lead intrusive to safeguard the adult with disability”.
- Functions include taking direct safeguarding action where necessary and a range of systemic, information sharing and coordinating functions, and to provide advice and assistance “including referrals to independent advocacy and legal services, police or other regulatory or appropriate bodies.”
- Powers include to investigate; compel people to attend a meeting or produce a document; conduct public inquiries where in the public interest, considering the will, preference and privacy of the affected person with disability; apply for and execute an authorised search warrant; apply for a court order if necessary to safeguard an individual.
The DRC also concludes that the design of these functions needs to be co-designed with people with disability to ensure they are fit for purpose, and in relation to violence and abuse in public places these bodies need to be empowered to and also adequately resourced to receive and respond to these reports. They also propose that the role of adult safeguarding functions should be articulated in a national ‘adult safeguarding framework’, providing common definitions and a mandate for each body to collect, analyse and publicly report data, with this Framework to be led by the adult safeguarding bodies. To ensure this works in integrated way with existing structures the DRC asserts in Recommendation 11.2 that this framework should also be incorporated in the Safety Targeted Action Plan within Australia’s Disability Strategy or another suitable document.
DANA hopes that these recommendations will be accepted by all jurisdictions and coordinated work will commence across all states and territories to establish (or improve) such adult safeguarding functions, in close cooperation with people with disability and their representative organisations and advocates.
There will be complex tensions to explore and navigate when developing the design and operation of these safeguarding functions that acknowledge and reflect:
- the rights of people with disability to not be treated as a “special” or “vulnerable” population and retain the rights and expectations to privacy generally enjoyed by citizens;
- the duties on governments to ensure people with disability can be assured freedom from violence, abuse, neglect and exploitation – and where interventions can be justified by elevated levels of risk;
- the role of family, friends and other natural supports as often the most valuable supporters and fiercest advocates for the inclusion, human rights, wellbeing and safety of people with disability in the community; and
- the potential for some family members, intimate partners and other members of the public interacting with people with disability to themselves be perpetrators of violence, abuse, neglect and/or exploitation.
Relevant to this topic are the recommendations DANA made in our Submission on Independent Disability Advocacy to ensure access to independent advocacy as part of the effective safeguarding of people who are at particular risk of violence, abuse, neglect and exploitation (See detailed recommendations table on pages 55-59 including increasing government and community awareness, addressing gatekeeping barriers and developing mechanisms to connect people with disability experiencing high levels of risk to advocacy organisations). In the past, we’ve heard from many frustrated and disappointed disability advocates that various government and statutory bodies with roles in safeguarding have:
- not taken their reports, concerns or insights seriously;
- not been adequately resourced;
- been resistant to the involvement of advocates or unwilling to work in a collaborative or constructive manner with advocacy organisations; or
- had conflicts of interest in the various functions with which they have been tasked.
We hope that Recommendations 11.1 and 11.2 are the basis for major improvements to safeguard the rights of people with disability to exist at home or in public places, enjoying freedom from the victimisation that has often continued unchecked by the existing patchwork of safeguarding mechanisms.