Public hearing 5: COVID-19, Sydney - Day 4

COMMISSIONER SACKVILLE: Good morning, everybody.  I commence by acknowledging the Gadigal people of the Eora Nation, the traditional custodians of this land and I pay my respects to the Elders past, present and emerging, as well as to all First Nations people who are viewing this public hearing.  Yes, Ms Eastman.

MS EASTMAN:  Good morning, Commissioners and good morning people following the proceedings of the Royal Commission for the final day.  The first witness is Mr Simon Cotterell.

COMMISSIONER SACKVILLE: Yes, thank you. If Mr Cotterell could be brought up on screen.  Yes, good morning Mr Cotterell, I shall ask my Associate to administer the oath or affirmation as the case may be.

SIMON COTTERELL, AFFIRMED

EXAMINATION BY MS EASTMAN SC

MS EASTMAN:  Good morning, Mr Cotterell, welcome back to the Royal Commission.

Chair, sorry to ask you, could I ask you just to check the microphone and the documents?

Mr Cotterell, welcome back to the Royal Commission.  I think we last saw you in February.

A.  Correct.

Q.  Can I just deal with some formalities?  You are Simon Cotterell?

A.  That's right.

Q.  And you're the First Assistant Secretary, Primary Care Division in the Department of Health?

A.  Correct.

Q.  And you've prepared a statement for this public hearing of the Royal Commission dated 7 August?

A.  Dated 10 August.

Q.  I have 7 August.
 

A.  I think a version was provided on 7 August and I wasn't available to physically sign it, I physically signed it on 10 August.

Q.  But the contents are the same as the document that has the date 7 August on it; is that right?

A.  There might be one or two sentences that have changed so I think it would be important to have the 10 August version.

Q.  Can you give me a moment just to check?  We'll work on your 10 August version.

A.  Thank you.

Q.  Thank you for that.  With respect to the 10 August version, are the contents of the statement true and correct?

A.  Yes.

Q.  Now, Commissioners, you'll find a copy of the statement at tender bundle part C behind tab 1 and also tab 2.  Now Commissioners, could you mark that statement exhibit 5.42 and 5.43.

EXHIBIT #5.42 AND 5.43, STATEMENT OF MR SIMON COTTERELL

MS EASTMAN:  Mr Cotterell, you should also have, as I understand it, a copy of a statement you provided to the Royal Commission for a hearing in February dated 5 February?

A.  Yes, 5 February.

Q.  In your statement of 10 August, you refer to the 5 February statement in paragraph 8.

A.  Correct.

Q.  To tell us about your relevant current role and professional background.  I just want to deal with that to start with.

A.  Okay.

Q.  You've said you're the First Assistant Secretary, Primary Care Division at the Department of Health and that's a role that you've held since June 2019?

 
A.  Correct.

Q.  And you are responsible for policy and programs relating, amongst other things, to primary health care and the Minister's primary health 10 Year Plan and the National Roadmap for Improving Health of Australians with Intellectual Disability; is that right?

A.  That's correct.  If I could     sorry, if I could add something that might be helpful to the understanding of the context?  During some of the periods that's discussed in my 10 August statement, I was taken offline from my day to day duties to focus on the Primary Care Response to the COVID 19 pandemic.  So there was a Primary Care Response Team established within the Department of Health and I led that full time, keeping responsibility for some of the disability issues as part of that role.  So I've now returned to my standard position.

Q.  You anticipated my question which was to ask you what additional responsibilities or roles were taken up since we last spoke to you in February?  So this was the work that you've done to go offline from your core duties to deal with some COVID 19 response issues; is that right?

A.  That's correct, that's correct.  That was for a period of about four months.  That was full time.

Q.  Are you the most senior officer of the Commonwealth Department of Health to assist the Royal Commission in relation to the impact of the COVID 19 pandemic on people with disability?

A.  I'm the most senior officer who has been directly involved in coordinating the response for people     the health response to assist people with disability.  I think the next witness, Dr Coatsworth, is equally senior in the hierarchy and his role is as an expert advisor in the emergency response line, so I hope that clarifies.

Q.  Mr Cotterell, how many people with disability have contracted COVID 19 since 22 January this year?

A.  So as other witnesses have said, we do not have perfect data on that issue.  There's quite a few issues associated with the data, because different disabilities     and there's a range of people with disabilities, all unique disabilities.  Different aspects of disability put people at higher risk of exposure to COVID 19 and/or higher risk of severe consequences to COVID 19    

Q.  Can you pause there?  Can I ask the question again: how many people with disability have contracted COVID 19 since 22 January?

A.  And the answer is that we don't know, but there is some data that the NDIS Commission collects from notifications from NDIS service providers, but we don't know, we don't have a full picture.
 

Q.  How many people with disability have died due to COVID 19 since 22 January this year?

A.  Again, we don't have a full picture.  The NDIS Commission has some data on deaths of NDIS participants.

Q.  Can you tell the Royal Commission what is the specific data that the Commonwealth Department of Health has collected in relation to the infection or mortality rates for people with disability?

A.  So the Commonwealth Department of Health runs a system called the National Notifiable Diseases Surveillance System, which is a collaborative system that's reliant on data provided by the States and Territories.  That system does not currently collect information that flags disability as an indicator.

Q.  Why not?

A.  The answer is I don't know.  This is a long running system that has been run by the Communicable Diseases Network of Australia which is a subcommittee of the Australian Health Protection Principal Committee.  In my work as Chair of the Advisory Committee on Disability for COVID 19, we have had discussions with the Communicable Diseases Network of Australia about introducing appropriate disability flags into that data set.  There have been a couple of discussions.  There has been a change with data on residential settings now being collected.  So if the person infected is in a residential care setting, that is now flagged in the data.  Some States are now collecting more detailed data and reporting that publicly, but nationally, there isn't a system for collecting that data.

Q.  What data, if any, does the Commonwealth Department of Health collect in relation to the infection or mortality rate of support workers for people with disabilities?

A.  The lead responsibility for disability support workers lies in the Department of Social Services' portfolio.  The NDIS Commission collects data from notifications of NDIS service providers about infection of care workers.

Q.  All right.  I need to take you back to picking up where we left off from the hearing in February, and in February we asked you whether there were any national health emergency response initiatives that specifically target people with cognitive disability implemented by the Primary Health Network.  You've got a copy of your statement from 5 February, so can I ask you to turn to page 7 of the statement?  You'll see there's a shaded box which says:

A concise description of any initiatives that have been implemented by Primary Health Networks aimed at improving the health care for people with cognitive disability and this should include ....
 

You'll see it starts with (a).  If you turn to the next page you'll see the letter (i) and it says:

Any emergency health response initiatives that specifically target people with cognitive disability.

Do you remember being asked that question?

A.  I remember the question, in general.  I think the answer is there were no such initiatives, so whether that's in my statement there, it's not mentioned specifically, I don't think.

Q.  I want you to have the opportunity, and I have assumed you've re read your 5 February statement, but if you haven't let me know and if you need a chance to look at the answers provided at paragraphs 29 through to 35, would it be fair to say that the question about national health emergency response initiatives is not a matter that you addressed in paragraphs 29 to 35?  Do you agree with that?

A.  That's right and the reason is that we are not aware of any initiatives with the Primary Health Networks that address that point, emergency health response initiatives that specifically target people with cognitive disability.  I would say that the role of Primary Health Networks in emergency response is an emerging role.  It has not been a clear role for Primary Health Networks in the five years of their operation.

Q.  All right.  So, as at 5 February, the answer is that there were no emergency response initiatives that specifically target people with cognitive disability in the Primary Health Networks?

A.  Correct.

Q.  So I can be sure of that?  And by 5 February it was the case, wasn't it, that the coronavirus yet to be, I think, formally named the COVID 19, was certainly on the Department of Health's agenda, was it not?

A.  Correct.

Q.  And by 18 February this year, the Commonwealth released the Australian Health Sector Emergency Response Plan; you're aware of that document?

A.  Yes, I am.

Q.  Did you have any role in relation to the drafting of that document, or any input into the content of that document?

A.  No.
 

Q.  Were you consulted in any way in relation to your areas of responsibility, Primary Health Networks, people with disability; were you consulted at all about those matters in the formulation of the Emergency Response Plan?

A.  No.

Q.  Would you agree with me, looking at the detail of that plan, there is no reference at all to people with disabilities in the plan?

A.  Yes, I would agree with that.  The word "disability" does not appear in the plan.

Q.  The word "vulnerable" appears in the plan, doesn't it?

A.  Yes, it does.

Q.  Now, to the extent     and I don’t know, if you would like the plan to come up on the screen or if you need a copy of the plan, let me know     but if I ask you a few questions about some aspects of the plan which I think deal with disability, but I'm not sure and this is the purpose of asking you, let me know if you need to have a look at the plan at all and we can bring it up on the screen for any relevant part.

A.  So I think if you ask the question, if you ask the question, I think I'll probably be okay, but please go ahead.

Q.  Let me know.  If you need to have a look at the document we can bring it up on the screen.  Just looking at the plan, the overview suggests that Australia is well prepared and has an excellent health system to deal with the virus and the opening page     this is page 1 says:

All areas of the health sector are well informed and actively engaged in the national response.

Now, you've just said that you weren't involved in the drafting of the plan.  If this is speaking to all areas of the health sector, including the health sector that concerns people with disability, to the extent that that sector was well prepared, what can you tell the Royal Commission about the preparedness of that aspect of the health sector as at 18 February?

A.  Okay.  So I'm a bit challenged by the way the question's constructed, so if you can be patient with my response.

Q.  Sure.

A.  So the first thing to say is that the nature of that initial plan was to communicate to the health sector, all sectors and the public, about the arrangements that the Government     and when I say "the Government" I mean the Commonwealth  
Government working with State and Territory Governments     had in place for responding to the arrival of this virus in Australia.  So that was its intention, as I understand it.  It was prepared very quickly and under great pressure, but by staff conscientiously doing their best.  I think it is an omission that "disability" is not mentioned, but as you point out, the word "vulnerable groups" is used, I think the intention of using that language in that context is vulnerability to the virus, whether it's exposure or severe impacts of the virus and via that mechanism, people with disability would be covered.  But I think it is an omission that they weren't specifically mentioned and in a number of places it would be useful for people with disability to have been mentioned.

Secondly, in relation to preparedness of the disability sector, that's a matter for the Social Services portfolio.  The role of the Department of Health is to provide health advice to all sectors about how to best manage the prevention and impact of this virus, but also to make sure that the health system is accessible and providing appropriate care for all Australians, including people with disability.  I hope that answers the question.

Q.  Can I just say this:  in asking you questions about any of these plans, I think you can take it as a given that the Royal Commission understands the speed at which things have been done and so our questions are not to seek criticism in terms of whether it took two days or three days.  It's to ask you about the extent to which people with disability have been included in the planning process and that's what I want to focus on.  So when we talk about the reference to vulnerability, on page 10 of the plan, it says this:

The vulnerability of our population will influence the spread and the clinical severity of the disease.  Vulnerability is unique and will make comparisons with the experience of the outbreak overseas indicative only.  As the outbreak is caused by a novel virus, the lack of immunity in the population will make it more vulnerable than would be the case with diseases such as seasonal influenza.

And I’ll just skip over there. This is the bit I want to draw your attention to:

Case information to date has indicated that people with underlying illness or immunocompromised conditions are likely to experience more severe outcomes.

Now, is that not an absolute clear indicator that people with disability are likely to be at the higher risk if people with disability have underlying illness and immunocompromised conditions?

A.  It absolutely is an indicator of that and if I could     could I point you to the Management and Operational Plan for People with Disability    

Q.  We're coming    
 

A.      which goes into that further.

Q.  We're coming to that.

A.  But I would say that point about underlying prior disease is picked up in the Management and Operational Plan.

Q.  Don't worry, we're coming to the plan.  I'm just dealing with the Stage 1.  That should have been a red flag, should it not, to the need to look at how we're going to manage populations in Australia with underlying illness or immunocompromised conditions?

If you look again at this page in terms of the application of outbreak impact and the levels of decision making, one of the factors to be taken into decision making was to reduce the risk to vulnerable people.  Now, if we assume "vulnerable people" is intended to include people with disability, is that right, we should make that assumption?

A.  I think you should make that assumption and I would say not all people with disability, but people with disability with underlying chronic conditions and the other things that might put them at risk.

Q.  Then there's some scenario planning in this Emergency Response Plan.  Are you familiar with that, the three scenarios that are worked through with    

A.  I'm not familiar in detail with that.

Q.  Can I just draw your attention     this is page 12     scenario one says this:

If clinical severity is low ....

So this seems to be least impact.  The scenario planning still says this:

The majority of cases are likely to experience mild to moderate clinical features.  People in at risk groups ....

And I want to ask you what "in at risk groups" means in a moment:

.... and people with comorbidities may experience more severe illness.  Strategies to support at risk groups once they are identified may be required, eg people with underlying illness, people with immunocompromised conditions, aged care, infants, Aboriginal and Torres Strait Islander people in remote communities.

This makes it clear, doesn't it, that the drafters of this plan clearly had in mind that there would be populations within Australia who were at risk groups? What's your  
understanding of the "at risk groups", as opposed to "vulnerable", people who have vulnerability in this document?

A.  So I can't speak authoritatively about the thinking behind the drafting of that document, but I would say that in that context that you just read to me, "at risk" means at risk of more severe disease and complications from the disease.  There's another really important risk which is about exposure to the disease, which is about the number of people you come into close contact with each day and that's another aspect that impacts people with disability.  So, if I could comment, in an ideal world, people with disability would have been included in that "eg" list.

Q.  The last thing I want to ask you about on this plan is with respect to the plan's approach to communication and so this is page 18, paragraph 4.1.6 of the document, and it says this:

The Australian Government is responsible for national communications to the public and the health care sector at a national level, with direct responsibility for communication with the primary care sector and at our international borders.  It is also responsible for reporting to and liaison with the World Health Organisation as required under ....

I'll skip over that relevant standard.  Then there's this passage:

The Australian Government will also disseminate relevant tailored information to aged care and other residential facilities through approved providers and regulatory processes and liaise with Australian Government education authorities concerning public health measures related to school.

There is a specific reference there to "other residential facilities"; do you know what was intended by the inclusion of "other residential facilities" in this plan?

A.  I think that is intended to cover disability residential facilities, but there are     whether it's     part of the issue about residential care facilities for any set of people is that it increases the risk of exposure to the virus if a worker in that facility or a visitor to that facility brings the virus in.  It's much harder to control an outbreak in those settings.  So there would have been thinking about residential settings across all sectors and concern about needing to protect those settings.

Q.  When did you first become concerned about the absence of a specific reference to, or inclusion of the interests of people with disability in this plan?

A.  So are you asking me personally    

Q.  Yes.

A.      or the Department?  Me, personally?  So, me personally, like many other people in the Department I was very busy getting on with the work of just trying to  
implement as many measures as possible that would protect all Australians, including people with disability.  Because of the work that I'd been doing in the area of intellectual disability, I had a strong consciousness that we would need to be addressing the need of people with disability.  So to give you an example    

COMMISSIONER SACKVILLE:  Mr Cotterell, if I can interrupt?  I wonder if you wouldn't mind paying attention to the question that Senior Counsel asked and answering that question?  I think the question was "When did you first become aware of the omission of people with disability from this plan?"

A.  So, it's a hard question for me to answer, because I can't recall when I read that plan.  I was getting on with action regardless of what was in that plan, I think is what I'm trying to say to you, so I can't recall when I read that plan.  I was concerned that we needed to be addressing the needs of people with disability.  I'm sorry, that's my best answer.

MS EASTMAN:  When you did become aware of the omission of people with disability in the plan, what did you do?

A.  So we were already     so I was very focused on the Primary Care Response and the Government's whole national health plan.  As I said, I'd been taken offline to help develop and coordinate that work.  One of the first things that happened in this response in early March     I think the date is in my statement, or in another statement here, 6 March     two sessions were held; one with the primary health sector, and one with the aged care sector, about the Government's response to the pandemic.  The NDIS Commission was invited to those sessions and participated.  The connection with the NDIS Commission came via me, if we're asking about my personal role.  So we were thinking about the needs of disability, of people with disability at that time.  We wanted to get on with some actions, and they're set out in my statement, but very importantly, on 11 March the Government announced its National Health Plan response, which included some measures which are very important to the needs of people with disability.  The MBS telehealth items that allow people to stay at home and either ring up or video conference with their GP; the electronic prescribing and home medicines measure, which again, allowed people to stay at home and not have to go out to get scripts filled; the infection prevention and control training, which I was directly responsible for, which within a week of 11 March we had up and running and which was specifically aimed at ensuring that care workers and carers could remain at work safely and have the confidence to remain at work safely in caring for people with disability and others.

Q.  Can I just interrupt you there?  I just wanted to know when you became aware of it, what did you do?

A.  So on 26 March I became aware on, 26 March     that's the answer to when     I became aware of the letter from the sector, I think the Royal Commission put a statement out at the same time and then went into action to set up the Advisory Committee in the plan.
 

Q.  Can I ask you to pause there?  Because I'm going to take you through the chronology, but I wanted to just check with you whether, in relation to the release of the Emergency Response Plan on 18 February, what you did in that time.  We'll come to the March dates in a moment.

COMMISSIONER SACKVILLE:  May I just ask a couple of questions about that emergency response? I see that it's headed Australian Government Department of Health.  I think by this stage     and Ms Eastman will correct me if I'm wrong     that the WHO had declared the outbreak of a public health emergency on 30 January, and on 11 February WHO had announced the advent of a novel coronavirus disease named COVID 19.  As I understand your evidence, prior to 18 February, you were the person within the Department of Health responsible for the health of people with intellectual disabilities; is that right?

A.  I was the     so, Commissioner, it's a bit more complex than that, I apologise, but I was the person responsible for implementing the programs, the National Roadmap, developing and implementing the National Roadmap for the Health of People with Intellectual Disability.  I gave evidence last time that that work was not complete and it wasn't    

COMMISSIONER SACKVILLE:  I'm not worried about whether it was completed, I'm just wanting to know responsibilities within the Health Department for people with disability.  Of people within the Health Department, I take it you were a senior person with responsibility for dealing with the health of people with intellectual disability; is that a fair statement?

A.  That's a fairer statement than your first statement.  I was the senior person in the Department of Health with responsibility for helping to address the health needs of people with intellectual disability.

COMMISSIONER SACKVILLE:  And who was responsible within the Health Department for addressing the needs of people with disability, but not necessarily intellectual disability?

A.  So, Commissioner, we     the Department gave evidence at the last hearing about    

COMMISSIONER SACKVILLE:  Don't worry, Mr Cotterell don't worry about what the evidence was, if you wouldn't mind just answering the question?  Who was responsible within the Department for the health of the people with disability other than intellectual disability?

A.  So there is no single area in the Department that has responsibility for the health of people with disability.  Each area of the Department, which is structured in a programatic way in some areas, has responsibilities for the health of people with disability.  We have responsibility for the health of all Australians and people with  
disability as a subset.

COMMISSIONER SACKVILLE:  Thank you.  Who was responsible for preparing the emergency response within the Health Department?

A.  So the Office of Health Protection and the National Incident Room have lead responsibility for the health emergency response.

COMMISSIONER SACKVILLE:  When did you learn     you personally     learn that the health emergency response was being prepared?

A.  So, it     well, the Department was kept informed by the Chief Medical Officer of the progress of the COVID 19 pandemic, and from January, we would have been aware that a response was being prepared.

COMMISSIONER SACKVILLE:  Why, then, was there nobody within the Health Department with some responsibility at least for addressing the health of people with disability?  Why was no such person invited, so far as you're aware, to join the group?  Why did no such person seek to be a member of the group?

A.  Commissioner, with respect, we were all very busy focusing on what we could do to respond to the pandemic.  The drafting of the plan is a particular task that a part of the Department has that we were all considering what we could do in response.  So, I don't know why, I don't know the thoughts of every individual in the Department.

COMMISSIONER SACKVILLE:  It was a rather important step, wasn't it?  That is, the preparation of an emergency plan immediately after or very shortly after the WHO had announced the arrival of this novel coronavirus with potentially very serious impact upon the population at large and upon people with disability in particular?

A.  That's right, it was very important and it was led by the area of the Department that's responsible for emergency response.

COMMISSIONER SACKVILLE:  Yes, thank you.  Ms Eastman?

MS EASTMAN:  Mr Cotterell, I took you to that part of the plan that made reference to residential care facilities as well as aged care facilities.  Are you aware that on 13 March, the Communicable Diseases Network of Australia issued the Coronavirus COVID 19 Guidelines for outbreaks in residential facilities?

A.  Yes.

Q.  Did you have any role in the preparation of that document, or providing any advice or input to CDNA in relation to that document?

A.  Not a personal role, but my     the team that I was building at the time to  
implement the Primary Care Response was staying in touch with the Communicable Diseases Network of Australia on the development of various sets of guidelines, including that set.

Q.  All right, and the document in its first version released on 13 March, you're aware, aren't you, that that makes no reference to people with disability?

A.  I wasn't aware.  I haven't read those guidelines personally.

Q.  Were you aware that there was no consultation with the NDIS Quality and Safeguards Commission in relation to the guidelines?

A.  I've become aware as I've prepared for these hearings, yes.

Q.  And you're aware, aren't you, that there have been some subsequent amendments to the guidelines dealing with outbreaks in residential care facilities up to about May, June, July this year; is that right?  In the last few months?

A.  Yes, there have been updates to the guidelines.

Q.  All right.  Have you had any role in examining or reviewing the guidelines for outbreaks in residential care facilities?

A.  So the medical advisors that were part of my team were working with the CDNA on the applicability of those guidelines to disability settings.

Q.  There have been some media reports over the past week that, in Victoria, there are something in the order of 81 active cases linked to more than 50 disability accommodation sites, if we assume that they're residential care facilities.  Are you aware of that?

A.  I'm not aware of that specific report, but I'm aware that in the Victorian Government daily reporting on the pandemic, they're now reporting cases in disability care residential settings separately from the other cases.

Q.  And given that it was the Australian Government's responsibility for national communications and the Australian Government's responsibility for the dissemination of relevant tailored information to aged care and other residential facilities to approved providers and regulator processes, can you tell the Royal Commission what steps the Australian Government took to notify residential facilities for people with disabilities in relation to the guidelines for outbreaks in residential care facilities after the first version was released in March?  Do you know that?

A.  I don't.  The Social Services portfolio has responsibility for communication with disability residential facilities and providers.

 
Q.  All right.  Were you aware that the Centre of Research Excellence issued a Statement of Concern on 16 March; were you aware of that?

A.  Yes, I was.

Q.  Did you see the Statement of Concern on or shortly after it was released, which we understand to be 16 March?

A.  I would have seen the statement, I think, on or shortly after 26 March when I received the     the 26th of March when I received the correspondence from the disability sector in relation to concern in this area.  So I didn't see it on 16 March.

Q.  So not     so it took 10 days, it may have taken around 10 days, before the Statement of Concern from Professor Kavanagh, Associate Professor Carey, Professor Dixon, Professor Llewellyn, Professor Bernardi and Professor Trollor came to your attention?

A.  Correct    

Q.  Sorry, I'll let you finish?

A.  My recollection is that Professor Trollor emailed me directly with that letter and Statement of Concern on 26 March.

Q.  I don't know whether, Commissioners, you'll recall this came up on the screen earlier in the week, but we might just bring the document up again.  If the operators need the document number it's EXP.0031.0001.0013 and if you go to the second page of the document at 0014?

The context raised by the leading health and disability researchers called for urgent action from State and Federal Governments to develop a targeted response to COVID 19 for people with disability, their families and the disability service sector, and the leading experts and researchers, as they describe themselves, say this, that the health sector is under prepared to meet the urgent health care needs of people with disability; you can see that if you look under the context in the first dot point.  We can go into that.

Would you agree with the leading health and disability researchers that the health sector's under prepared?

A.  I would agree in some aspects.  So part of the work that we've been doing with the disability sector is to try to make health services more appropriate for people with disability so that they can access health services and that those services are delivered in an appropriate way that respects their human rights.  I wouldn't agree that the health sector was under prepared to meet urgent health care needs.  The overarching aim of all of the Department’s and the Government's plan has been to keep health services available for urgent health care needs, and I think we have succeeded in that  
we haven't seen hospitals overwhelmed in Australia.

Q.  To be fair to you, I should say that     put that question to you in terms of being under prepared as at 16 March; does that assist you?  Not now, but at 16 March?

A.  Well, I think my answer would remain the same.  Australia's health system has good capacity to meet urgent care needs and our efforts since     the Department of Health efforts and working with State and Territory health departments, efforts have been very focused on urgent health care needs.  The 15 February plan's focus was very much in that area.

Q.  All right.  Looking at the recommendations that the authors of this statement identified, they said there was five areas that the Governments could take immediate steps; so can we just look at those dot points?  This is under the heading of "Rapidly scale up the health care sector's capacity to care for people with disabilities." Are you familiar with the five points? That's the first three on the first page and then the other two on the following page.

A.  I would have read it, them at some point, but it would be helpful to keep them on the screen if we can.

Q.  Have a look at them on the screen.  At this point I'm not going to take you through each and every one of them, but my question is that when this was brought to your attention, whether you carefully considered each of the five dot points and have the dot points contributed in any way to the Commonwealth's planning?

A.  So I would say the dot points have all contributed to the Commonwealth's planning.  Some of them have been acted on rapidly and immediately.  Others have been more difficult, but all of those dot points would be in the Management and Operational Plan in some form and all of those dot points would have been acted on in some form.

Q.  Now, you say in your statement on the same day, on 16 March, that an infection prevention and control training program was released for carers across all areas.  This is paragraph 9 and paragraph 14 of your statement.

A.  Yes.

Q.  What was the nature of the infection prevention and control training with respect to people with disability? And I just want to check this, because I understand your evidence that this was intended to be across all areas that may include aged care, all ranges of settings.  But what specifically in the training had a focus on people with disability?

A.  The training was intended for care workers and carers across all sectors and it was about how to protect yourself and the people you're caring for from infection.  So it was about preventing infection.  Those infection prevention control principles  
apply across all sectors and so in any setting, the frequent hand washing, the cleaning of surfaces, the physical distancing to the extent possible, the use of personal protective equipment where that's appropriate, all of those things apply across all settings.  The intention of the training was to try to give people confidence that if they were looking after someone, including a person with disability, that they wouldn't be infecting them and that if that person were infected, they'd know what to do.

Q.  Has there been any evaluation of the effectiveness of this online training program since it was released on 16 March?

A.  Not to date.

Q.  And do you have any statistics or any data that could indicate how many disability support workers have undertaken this training?

A.  Yes.  So we receive a daily update on the number of people who've completed the training.  I think we're over 83,000 as of today, people who identify as disability care workers have undertaken that training.  I should say that the biggest category is "other", because we've had more than 1.2 million people complete that training.  So really significant numbers of people are concerned about how to care for people and make sure that that care is safe.

Q.  So that the "others" might include people who are caring perhaps for a family member at home and outside a formal setting, either NDIS setting or other residential setting, be it aged care or specific disability residential setting; is that right?

A.  That's right.  So in the speed to get the program up, we only collected data on a working in a primary care setting, working in an aged setting, and working in disability care setting, and those numbers that we have, but the vast majority of people who've completed the training don't identify as working in those settings and we can only assume they're caring for family members.

Q.  We heard some evidence yesterday from Professor Anne Kavanagh and she has, with her colleagues at the University of Melbourne, published a report on the disability workforce data, 2 August; is that something that you're familiar with?

A.  I've had a brief look at it and I have been briefed on Professor Kavanagh's evidence.

Q.  She says in that report that the disability support workers     so there was a survey done, and I think she said it was focused on the period of May and June, and she said there needs to be some follow up.  With those qualifications, in terms of the evidence she said that the disability support workers were asked whether they had received any COVID 19 related training on how to protect themselves and their clients from COVID 19, and the results indicated this: that 23% of workers had not received any COVID 19 infection control training and 69% that did receive training  
wanted more training and of the 77% of workers who did receive training, 48% would like more training and most workers who'd received training online, that was 66%, and some had also accessed or received printed material, 22%.

If it's the case that almost a quarter of the workforce supporting people with disability haven't done any COVID 19 infection control training, what does that tell you in terms of whether the program released in March is having a sufficient reach into the sectors and areas where the training is needed?

A.  So it tells me that we need to do more work.  The training of disability support workers is led from the other portfolio, from the Social Services portfolio, but the issue of take up is they will have a clearer view than I do, but we stand ready to assist them to provide more training.  The issue of training in the use of masks has repeatedly been raised with us.  We've provided some online training and there's been a request for some face to face training.  We're considering how we can facilitate that, so it's a live issue right now.

Q.  When you say "it's a live issue right now", what are the impediments to taking steps to ensure that that training can be rolled out immediately?

A.  So we need to consider carefully the risks of bringing people together in an environment where there's community spread of the virus, so in Victoria it's particularly an issue.  We could do it elsewhere, but it's most urgently needed in Victoria as well, so it's a dilemma.

Q.  Okay.  Now, can I step back to the chronology?  By 18 March, there was a meeting of the COAG Disability Reform Council.  Were you aware of that?

A.  I wasn't aware at the time.  I've subsequently become aware.  I think someone from the emergency response area of the Department would have attended that meeting.

Q.  There's a publicly available communique of the 18 March meeting and that says the Council acknowledged that some people with disability are more likely to be vulnerable to the effects associated with COVID 19.  Then the note says this:

Ensuring appropriate planning and preparedness across the sector is a priority issue.

Could I say, reading through the material, this is the first time that I have seen a document which from Government identifies planning and preparedness across the sector being a priority issue.  Based on what you've told us, is it the case that it's really around this mid March period that the attention turned to doing something specific for people with disability?

A.  So the short answer is "yes".  The communique was from a meeting of disability Ministers and, you know, each section of our society needs to do planning and  
preparedness work.  It's not all just a Department of Health job and so I think that's an acknowledgement from that sector that they need to lead that work.

Q.  All right.  Are you aware, by 24 March, that the group calling themselves the "leading researchers" had issued a further Statement of Concern?  Did that come to your attention on or around 24 March?

A.  So if it came to my attention     and apologies, I don't have the document, but if it came    

Q.  We'll bring the document up.

A.      to my attention, it would have been on the 26th that all of that came to my attention, because the communications from Professor Trollor and others galvanised me to look at all of those documents.

Q.  I might bring the document up, so the number is 0044 at the end.  The full number is EXP.0031.0001.0044.  If we just go to the shaded box, which I think might be the easiest way to get into this document?  This was the recommendation.  So, Mr Cotterell, are you saying this may have come to your attention a couple of days later, on or around 26 March?

A.  That's right.

Q.  And if we again go down the page a little, there are three recommendations in relation to health care for people with disability.  So I'll just bring those up, and as with the earlier Statement of Concern can I ask you the same question:  whether you read and considered and the extent to which these recommendations form part of any further planning for the Commonwealth?

A.  I did, we did read and consider them and they were acted on, each of them acted on, although not precisely in the way that they're formulated there.

Q.  All right.  I'm sorry to interrupt.  Go ahead?

A.  So, for example, in relation to the new MBS item, the view would have been taken that the existing MBS item could be used for those health care plans.  There were changes very quickly made to the Medicare items for telehealth to broaden the definition of "vulnerable populations" and the Department of Health had established a National Coronavirus Health Information Hotline which was connected up to the Department of Social Services hotline specifically for people with disability.

Q.  Then the next document was some correspondence from Professor Trollor and was this the position statement on "Access to COVID 19 prevention screening and treatment of people with intellectual or developmental disability"?  Is that the document that you're referring to that led to the conversation with Professor Trollor?

 
A.  Yes, yes.

Q.  And his document was quite specific on people with intellectual or developmental disability, whereas you understood, didn't you, that the Statements of Concern from the     primarily from the Melbourne University, were looking at disability more generally.  You appreciated that distinction?

A.  Yes.

Q.  Now, I think you've mentioned that the Royal Commission Statement of Concern came to your attention, as well and was that on or about 26 March?

A.  That's right.

Q.  Then you say in your statement at paragraph 11, that on 27 March the Department held informal discussions with small groups of stakeholders and with the Department of Social Security, the Quality and Safeguards Commission and so the first meeting was 27 March; is that right?

A.  That's right.

Q.  All right.  Then another meeting on the 31st.  Can I ask you just to separate those out?  Were they two meetings with exactly the same group of stakeholders or were they two meetings where you had different stakeholders involved at different points in time?  Sorry, different stakeholders doing different things in the meetings?

A.  So they were the same group of stakeholders.  If it would assist, we were talking to Jim Simpson from the Council for Intellectual Disability, Professor Anne Kavanagh and Professor Julian Trollor and we were planning informally with them, how would we very quickly stand up an Advisory Committee and get work going on a plan?  That was the intention of those meetings and it helped inform decision making in government.

Q.  Can I just say, pausing at this point in time     so this takes us to the end of March     tell me whether you agree with this proposition.  It seemed but for the Statements of Concern from the leading researchers and academics in the field that it's difficult to see Government being proactive; that the action was taken in response to these Statements of Concern being drawn to the Department's attention; would you agree with that?

A.  No.  So, but I think the existence of the plan, I think without having a formal written plan that doesn't stop people from acting.  So what that intervention with the Department did was lead us to establish an Advisory Committee and a formal plan specifically for this sector.  It wouldn't have stopped a whole lot of actions which were already under way from happening to help protect the health of people with disability.

 
Q.  In terms of the actions that you're saying were underway, would it be fair to say that you didn't really tell anyone what was going on at the time?

A.  So the Government announced on 11 March its package, the National Health Plan, which included a lot of those things I've already mentioned, the MBS telehealth items, the e prescribing and home medicine support, the effective infection and prevention disease control training.  There were 11 measures.  Those things were announced nationally and talked about by the Chief Medical Officer and the Minister.  If I could interpret your question, we didn't communicate, the Department of Health didn't communicate them directly to disability stakeholders.  This is about institutional arrangements.  The Department of Social Services is in the habit of being the one that communicates with disability stakeholders.  So I think part of that, our issue here is, the Department of Health needs to be in more regular and routine communication with disability stakeholders.

Q.  Now, just following along our chronology, on 2 April, were you aware that about 71 disability advocacy organisations wrote an open letter to the National Cabinet calling for urgent action?

A.  Apologies, could you repeat the date?

Q.  2 April, and if it helps, I'll bring the document up on the screen.  It's quite lengthy, but I just want to draw your attention to the "Urgent actions" page which is FPD.999.001.006.  Mr Cotterell, thanks for bearing with me.  It is very difficult with this form of engagement that I can't give you the documents directly, so if you need time to read anything, just let me know.

So we heard some evidence earlier in the week from a number of the disability advocacy groups about their concern and their sense that nothing was happening, and we've heard the evidence from people feeling that they had been left behind.  So the evidence that we heard was that this then galvanised some action to write the open letter and the disability advocacy groups identified areas of urgent action.  So that's the document that I've got up on the screen there, which is the 10 particular areas.  My question is whether this came to your attention on or shortly after 2 April?

A.  So I can't be sure, but I     it would have and the measures     you know, it would have been one of the inputs into our thinking in the Management and Operational Plan, but just looking at that list, many of those matters are not Health portfolio lead matters.

Q.  You've said this a few times "not Health portfolio" and you've said a few times "They're Department of Social Services"; is that right?  To what extent was there communication between the relevant departments with responsibility either contributing to the work that the Department of Health was developing or vice versa?

A.  So there was frequent communication between departments and there was     there are institutional arrangements for the whole of government to talk about  
these emergency response matters.  The Department of Social Services would have had the lead for making sure that all of these urgent actions were addressed in the right place where there was a health responsibility.  So I'm just looking at item 4, "Take measures to remove the barriers to adequate health care for people with disability", that would have been communicated with us to act on.

Q.  One of the aspects of the evidence we've heard over the course of the week is that for people with disability their lives are not neatly divided between areas that the Department of Health has responsibility for and areas where the Department of Social Services has responsibility for.  I think Professor Kavanagh gave some evidence yesterday about the more urgent need for a closer cooperation, to take a person centred approach to the response in COVID 19 for people with disability.

Do you accept, looking at those urgent actions up there, that that makes it very plain about the need for all of these areas to work together?

A.  Absolutely, and we have a responsibility in government to join up government for people and I hope that we've been doing that across the Health and Social Services portfolio through the action that we've taken in the Advisory Committee and the Management and Operational Plan.  If I can comment, we are     as an Advisory Committee, the representatives of people with disability on that Committee and other stakeholders including Professor Kavanagh, when they raise issues that don't neatly fit into the responsibility of one of the agencies on that Committee, we find the right place for that issue to be dealt with.  Often, it's in the State and Territory Government area of responsibility and we've had really good attendance from State and Territory Government representatives at that Committee and commitment from them to take issues up with their colleagues.

If I could give a couple of quick examples?  In Education, each of the State and Territory representatives approached their Education Departments about some issues that were raised in the Advisory Committee on the issue of people with disability in the criminal justice system.  Each of the State and Territory representatives took up those issues with their Justice portfolio colleagues.

Q.  All right.  Now, 2 April is sort of quite a big day.  I know that's the day that the Advisory Committee was established, but just before I get to that, I want to ask you a question about paragraph 15 in your statement where you say, "the Department published the Corona (COVID 19) Guide for Home Care Providers."

And you've got a footnote there to footnote 4, and that takes you to a version of the document which seems to be a more recent version as up to date at July.  What I want to ask you is this:  in the version of the guide released on 2 April, it's the case, isn't it, that the guide was solely for aged care and no reference appears at all to disability services in the first version of the guide?  Would you accept that?

A.  I don't know.  I personally don't know.  It could well be the case.

 
Q.  If you want to have a look at the document, the document reference is DRC.2000.0002.1767.  That's the document.  It's quite lengthy and, Mr Cotterell, if you're not familiar with it and you want to have a chance to look at it during the course of the morning let me know.  But I can tell you this:  in the version that's presently on the website it does refer to disability services, but not in the first version.  So as at 2 April, this is the day the Advisory Committee is established.  This guide went out before that Committee started its work.  So my question is:  the document that you're referring to in paragraph 15 of your statement, would you accept that what you've got in mind is a later version of the guide that incorporates disability services, but the version sent out on 2 April did not make any reference to disability services?  Or you're just not in a position to answer that question?

A.  I'm not in a position to answer.  I'd need to look at the document.

Q.  Did you check the document that was released on 2 April when you prepared your statement and said what you have said in paragraph 15?

A.  And the answer to that is no.

Q.  Why not?

A.  Because I have faith in the people that assisted me in preparing some     the statement, that     yes.  That's the reason.

Q.  But you didn't check it for yourself?

A.  I checked the statement for myself, I didn't check this particular cross reference.

Q.  Are there any other documents referred to in this statement that you didn't check before signing your statement?

A.  I'd need to go back through and check.  If you'd like me to do that?

Q.  That's all right.  Let's get to the establishment of the Advisory Committee and if I can ask you to turn to appendix B of your statement and you set out the Terms of Reference of the Advisory Committee.  The version that's set out in appendix B, that has not been publicly available in this format, is that right?  So you've provided this as part of your evidence to the Royal Commission, but other than in the evidence to the Royal Commission, this is not a publicly available document; is that right?

A.  This is a document that was prepared for consideration by the Australian Health Protection Principal Committee.

Q.  And did you prepare this document?

A.  I worked with my team to prepare it, yes.

 
Q.  And so the purpose of the Committee was as set out in the second paragraph, and it might be helpful if we can bring this up onto the screen.  This is Mr Cotterell's statement appendix B.

Look at the second paragraph.  It says:

The Advisory Committee will oversee ....

We'll bring this up.  So this is the purpose of the Advisory Committee; is that right, to develop a plan?

A.  That's right.

Q.  Now, Ms Taylor has told the Royal Commission in some evidence that she'll give shortly, that she was aware that discussions had been underway for some time before 2 April in relation to the development of the plan and her evidence is that she was aware of this when speaking to Professor Trollor on 19 March.  So that would be right, wouldn't it, that consideration for the development of this plan starts around 19 March or even earlier; would that be right?  That's what Ms Taylor is going to tell us shortly.  Paragraph 217 of her statement.

A.  So I think there are things that happened in discussions in the Department of Social Services and potentially with other officers of the Department of Health that I'm not aware of, but I was aware that the other portfolio was thinking about what we needed to do here.  So my awareness, as I've said, started on 26 March.

Q.  In terms of the functions, the roles and responsibilities, if we just drop down under that next heading, that the "Committee members were to provide expert advice to inform the development of the plan on the health care needs of people with disability, their families, the disability service sector including access to COVID 19 screening prevention and health care." Can I say, just pausing there, that sounds like it resonates with the statement provided by Dr Trollor, where he's talking about screening and testing?

A.  Absolutely.

Q.  And also to "oversee the implementation of the plan".  I want to ask you some questions about the implementation, but not now.  Just give me a minute or two to get there.

Now, the Committee members are set out on the following page, and can I ask the operators just to turn to the next page and if we can expand the Committee members?  Mr Cotterell, you took the role of the Chair of the Committee.

A.  Correct.

Q.  Looking at this, you can see that the members comprise a range of     some of the  
key advocacy groups, people with lived experience, and some experts, but with respect to the Australian Government representation, there's the NDIA, the Quality and Safeguards Commission, the Commonwealth Disability Discrimination Commissioner and the Department of Social Services.  So did you have a role in deciding who would be the members of this Committee?

A.  Yes.  So, membership was discussed with the informal group of stakeholders that I     that met on the 27th and the 31st, and between the Department of Health, the Department of Social Services, the NDIS Commission and the NDIA, and it was then finally decided by the two relevant Ministers.

Q.  So once the Committee membership was confirmed, the Terms of Reference were confirmed, the first meeting of this Committee occurred the following day on 3 April; is that right?

A.  That's right.

Q.  I assume probably, like most meetings, it was either an online Zoom style meeting; is that right?

A.  I think we had that very first one by video conference, but we had a lot of technical difficulties.

Q.  And the meeting went for about two hours; is that right?

A.  From recollection, yes.

Q.  What occurred at that first meeting was the discussion about what the role of the Committee would be, but there was a very specific focus on immediately getting into the detail of preparing a plan; is that right?

A.  That's correct.

MS MORGAN:  Excuse me, Ms Morgan for the Commonwealth.  Could I just flag, Chair, that we have been trying to communicate this morning about the potential claim of Cabinet in Confidence of the internal discussion of this Committee which was a committee for the AHPPC, which advises Cabinet.  We have flagged this with the Commission, Counsel Assisting Commissioners, and we were just getting to that point where I think we may have exposed some of     the answer would expose material that would be covered by Cabinet in Confidence.

COMMISSIONER SACKVILLE:  The question is, "What occurred at that first meeting?  Was discussion about what the role of the Committee would be, but there was a very specific focus on immediately getting into the detail, is that correct", and the answer was "That's correct". How does that raise an issue of potential Cabinet in Confidence?

 
MS MORGAN:  Commissioners, Chair, the issue is that this Advisory Committee provided advice to the AHPPC, which provided advice to the National Cabinet and until the Management Operational Plan was recommended and adopted by the National Cabinet, the underlying advice and discussions in the Committees might be covered by Cabinet in Confidence.

COMMISSIONER SACKVILLE:  It does sound a bit like "I danced with the person who danced with the Prince of Wales."  This is a Committee that's been set up for a specific purpose.  What does the first meeting of that Committee have to do with anything that was done two weeks later when apparently the National Cabinet     is the National Cabinet, by the way, a body that is apt to claim privilege?

MS MORGAN:  Yes, Chair, that's correct and could I just explain    

COMMISSIONER SACKVILLE:  Sorry, why is that?

MS MORGAN:  My instructions are that it's been set up in that manner so that it would be     it would have the protection of that kind.  I can certainly get additional information about that issue, but even on the assumption     if you would assume that it is and it does protect material presented to Cabinet     the purpose of the Advisory Committee doesn't define whether it's protected material.  The issue is the use that that material is put in advising the National Cabinet and so because this information was provided ultimately to the AHPPC, which advises the National Cabinet, my instructions are that that material may be covered by a claim for Cabinet in Confidence.

COMMISSIONER SACKVILLE:  Which material are you talking about?

MS MORGAN:  The content of the discussions within the Advisory Committee leading up to the advice that went to AHPPC about the Management and Operational Plan and that that material then that went to National Cabinet.  It may be convenient, Chair, if we have an adjournment now that I can confer with Ms Eastman about these issues because there may be a way through that doesn't require my intervention.

COMMISSIONER SACKVILLE:  Well, so far you've said that there may be an issue.  At the moment, I must say, I have some difficulty understanding how reference to a discussion at the very first meeting of this Committee, which apparently ultimately did something that may have ultimately affected what was done at the National Cabinet, I'm finding it a bit difficult to understand how that might be covered by any claim of Cabinet privilege, but I'm reluctant to halt these proceedings for the purpose    

MS EASTMAN:  Can I raise this, and we can go back to the document under "Roles and responsibility" and under that heading it says:

Committee members may be expected to share information on the progress of the work being undertaken.  However, it will be clarified at the time whether  
information is confidential for the committee purposes only, or if the information is to be shared more broadly.

Commissioners, we sought to ask the Commonwealth to produce records of the meetings and some documents have been produced in relation to the outcome of meetings after 21 April, but none before that time and our question to the Commonwealth is, should we assume that the absence of any documents produced before that time means that there were no minutes taken?

So two points arise.  First of all, Mr Cotterell in paragraph 19 has specifically identified meetings on the 3rd, 6th and 14th of April in paragraph 19 of his statement.  Secondly, it's clear from the Terms of Reference which have been included in Mr Cotterell's statement over which no claim for confidentiality is made, is that it was clear to the Committee members that they may be expected to share information on the progress of the work of the Committee.  There's nothing in the documents provided or the evidence to indicate that there was a timeframe with respect to work undertaken or work that could be shared prior to 21 April or after 21 April and the Commonwealth has not provided us with any information with respect to identifying any material that's confidential.

My concern, Commissioner, is that the Commonwealth has prepared Mr Cotterell's statement.  The Commonwealth would have been very well aware of any documents to which Mr Cotterell may be taken.  The Commonwealth would have been aware from the notice that the Commission wanted documents in relation to the records of minutes on the 3rd, 6th and 14th of April.  Ms Morgan raised with me for the first time Cabinet in Confidence yesterday afternoon and as at 9.30 this morning had not received a list of any particular documents that were subject to an application, or any areas of concern.

So, Commissioners, I am a bit concerned that at such a late stage the Commonwealth raises these issues for the first time.

COMMISSIONER SACKVILLE:  The Terms of Reference that are annexed to Mr Cotterell's statement could only have been prepared after 16 April, couldn't they?

MS EASTMAN:  In terms of     the Committee started on 2 April.

COMMISSIONER SACKVILLE:  I understand that, but it refers to the Australian Health Sector Emergency Response Plan.  When it says "oversees the development", it's not clear to me whether that means, as from 2 April, the Committee was to be involved in formulating the Australian Health Sector Emergency Plan, something that was ultimately approved by the National Cabinet, or whether it's talking about doing something to an already existing plan.  But on the assumption that it's the former, that is, that part of the role of the Committee was to participate in the development of the Australian Health Sector Emergency Response Plan, it also had other responsibilities, as I understand it.  So what we don't know at the moment, Ms Morgan, is what was discussed at the 3rd, 6th, 14th of April, or indeed, in any of the ot 
her meetings of the Committee.  If you're going to make a claim for Cabinet in Confidence privilege we'll have to have some evidence, won't we, as to what happened at the relevant meetings and whether they had any connection with what was ultimately done by the National Cabinet?

MS MORGAN:  Chair, if that evidence is what is required, then the first step would be that that would need to be held in a closed session.  I would have to get instructions about the process that would be required to provide that to the Commission.  If I could just note for the record that there have been communications with Counsel Assisting that haven't been referred to, where documents were identified and issues were raised.  Documents have been sought and it was in the process of identifying those documents where this issue was identified, in relation to any missing communications out of the three dates that have been identified in Mr Cotterell's statement.

I'm in the Commission's hands.  The best step may be if I could ask for a short adjournment to confirm the instructions and the evidence that I would be able to put on for what the Commission requires.  But if that is to occur, that can't be held in public, because that would then defeat the purpose of any positive claim that is upheld.

MS EASTMAN:  Commissioner, could I perhaps clarify and alleviate Ms Morgan's concern.  My question was to ask whether, at the first meeting, that those attending the meeting were to work on a plan.  Then my second question will be, a plan was prepared and in accordance with the Terms of Reference, on 7 April there was a roundtable on the health of people with intellectual disability to which that plan was presented.  Then I want to ask what the next steps were in finalisation of the plan.  That is all I want to ask in relation to these meetings.  That's it.

MS MORGAN:  Thank you.  Could I say thank you to Ms Eastman and my instructions are that we have no concern with that line of questioning.  Thank you, and I apologise for the intervention.

MS EASTMAN:  I'll go back, Mr Cotterell, thank you for your patience.  Can you answer the question that I've asked you?

COMMISSIONER SACKVILLE:  First of all, thank you, Ms Morgan, for that indication.  Secondly, I'll ask Ms Eastman to repeat the question.  Thirdly, I'll ask Ms Eastman when we're going to have our morning break.

MS EASTMAN:  It was going to be at 11, but perhaps if we first deal with this.

COMMISSIONER SACKVILLE:  That's fine.  You go ahead and just repeat the question.

MS EASTMAN:  I don't have the transcript, but my recollection was my question was:  at that first meeting, the members of the Committee came together and the  
purpose of that first meeting was to start the work on the plan, is that right?

A.  Yes.

Q.  Then on 7 April there was a further meeting called a "Roundtable on the health of people with disability"; is that right?

A.  Yes.

Q.  Now, was that meeting the meeting that you told the Royal Commission back in February was planned as part of the National Roadmap process and the second meeting that was going to occur?

A.  No.

Q.  In annexure C, you have a list of the roundtable members     this is annexure C of your statement     and many of those participants appeared to be participants who were flagged to attend the roundtable meeting for the roadmap process that you gave evidence about in February.  Is that right?

A.  So the two roundtables aren't connected.

Q.  They're not?

A.  So the purpose of the roundtable on 7 April was to expand the inputs from the disability sector to the Management and Operational Plan.  So it was recognising that we     that the Advisory Committee was a small group and that we needed more input from more people with lived experience, more experts, more parts of the disability sector.

Q.  Then that larger roundtable had the opportunity to see a draft plan; is that right?

A.  That's correct.

Q.  Then there were some further amendments done by the smaller committee before it went to National Cabinet for approval; is that right?

A.  The process was further amendments cleared by the Committee out of session.  It first went to the Australian Health Protection Principal Committee before it went to the National Cabinet.

Q.  Then the plan was adopted on 16 or 17 April; is that right?

A.  It was adopted by the National Cabinet on 16 April and published on 17 April.

Q.  And you've got a copy of the plan in front of you and if we can come back to that plan after the morning tea adjournment.  Thank you.
 

A.  I have a copy of the updated version of the plan, so if you need the first version, I don't have that.

Q.  Mr Cotterell, I don't want to spend time going back and forth between the different versions of the plan.  I'm happy to work with the updated version if you've got that.  So rest assured    

A.  Lovely, thank you.

Q.      I won't look for the old one.

COMMISSIONER SACKVILLE:  We will now take a short adjournment and we will resume at 11.20.  Thank you.

ADJOURNED    [11.03 AM]

RESUMED    [11.21 AM]

COMMISSIONER SACKVILLE:  Yes, Ms Eastman.

MS EASTMAN:  Mr Cotterell, can we turn to the plan that that was initially agreed on, or became public on 17 April, and the version I'm looking at is a document which has a June 2020 version on the front cover; is that what you've got?

A.  Yes.

Q.  I want to make sure we're working on the same document here.  So the plan is the result of the work of the Ccommittee and some witnesses have told us over the course of the week that the plan was very hastily put together, and I don't think there'd be any disagreement.  It was very fast in turning the plan around in, about 10 days; is that right?

A.  It was very fast.  We did have some     quite a bit of input, some of the preliminary documents you've referred to were part of the input to the plan.  The Aboriginal and Torres Strait Islander Management and Operational Plan was a model that we were able to use to develop this one quickly, but we had input from many of the members, and incredibly thoughtful and constructive input.

Q.  All right.  Now, you may be relieved to know that I'm not going to take you through every page of the plan or the detail of it.  I want to focus on what the sort of key aspects of the plan involved and then I want to ask you some questions about the implementation of the plan.

 
So if we turn to page 6, part 1, the second paragraph indicates the plan is to be "A living document and will be reviewed periodically in line with Australian Health Sector Emergency Response Plan for coronavirus."  That's the much larger health plan that we started our conversation this morning; is that right?

A.  That's right.  But this is     sorry, the structure of the various plans, that's an umbrella document that covers the other plans.

Q.  Yes.  And so the focus of this plan is under the heading "Objectives" to do the following: "Focus on broad clinical public health and communication actions which will benefit all Australians including people with disability as well as targeted action specific to people with disability."

Just pausing there, are we right in understanding that at a public health level, there has to be a uniform set of rules, procedures and action across the whole of the community?  And then, for people with disability, to the extent that those uniform rules may have a different impact on them, that targeted action would then need to be considered and taken.  Is that the nature of the objective of this plan?

A.  That's broadly correct.  So there are general public health approaches and principles that need to apply across all sectors and this plan was to tailor those specific to the needs of people with disability.

Q.  Then on the next page on page 7 there's a reference to a range of principles that underpin the plan and the first one there under the heading "Equity" says:

The human rights of people with disability are upheld through an equitable, accessible and tailored health care response.

And the Commission has heard evidence over the course of the week about relevant human rights.  We've had evidence from the Special Rapporteur and from Rosemary Kayess explaining to us the nature of Article 11 on the Convention of the Rights of Persons with Disabilities.  When this plan refers to "human rights", does this contemplate incorporating any of the rights set out in the Convention on the Rights of Perons with Disabilities?

A.  I think that's a reasonable inference.  We didn't have a detailed discussion about that, but I think that's everyone's intention.

Q.  All right.  Now I want to jump to one aspect of the plan on page 13, which is the "Epidemiological assessment of COVID 19 specific to people with disability."  And the plan says:

The Australian Government Department of Health works with State and Territory Public Health Units and the Communicable Diseases Network of Australia to review data and evidence about the spread of COVID 19, especially and for the purposes of this plan.  The Department of Health will  
work with the Quality and Safeguards Commission, the Australian Institute of Health and Welfare and others to help develop the information available about COVID 19 outbreaks among people with disability in residential settings.

Then there's a reference to the State and Territory Governments in terms of collection and notification of data.  Looking at this plan and that first paragraph, it's the case, isn't it, that that has not been done yet?

A.  We have been working on it.  So from a starting position where there was no information about people with disability in the surveillance data collected by the Communicable Diseases Network of Australia, we've had two conversations with the CDNA about improving that situation.  We've had the NDIS and Quality and Safeguards Commission present its data to the Advisory Committee.  I can't remember when that started to happen.  But it was about the fourth or fifth meeting, to each meeting to the Advisory Committee and to the roundtable, and we've had a discussion between the Advisory Committee and the Australian Institute of Health and Welfare about how we can better develop this data going forward.  The others is a reference to the academic sector and their valuable contribution.  So we have started on that work, but it's by no means complete or satisfactory.

Q.  But would you agree that the availability of data, so having some sense of where there are     and I'll use what the media calls "the hotspots"     where the hot spots are for people with disabilities is absolutely critical, isn't it, to being able to make sure this plan is effective and it can be implemented effectively?  Why is there such a delay between 17 April, and we're now getting towards the end of August, that you say this is still a work in progress?  What's the impediment to doing what the plan identifies as being a key issue?

A.  So State and Territory Public Health Units lead the response to these outbreaks and they collect this data about individuals who've been infected with COVID 19.  So, at a whole of population level, all of that data is known.  There is attention given to every individual by Public Health Units who is diagnosed with COVID 19.  So at a general level we know where the geographic hot spots are.  At the level of the NDIS, we know where there have been outbreaks associated with NDIS delivered services, but we don't have a complete picture on the individuals who've been infected with COVID 19 and which of those are people with disability in all its variations.

COMMISSIONER SACKVILLE:  Mr Cotterell, if I may, I'm sorry to interrupt.  I understand that you, of course, are not responsible for the way in which governmental responsibilities are allocated, but can I ask you this: I take it you are familiar with the terms of the CRPD?

A.  Yes.

COMMISSIONER SACKVILLE:  And that you have been familiar with the terms of the CRPD since at least the beginning of 2020?  That is, before the onset of the pande 
mic.

A.  That's right.

COMMISSIONER SACKVILLE:  And you will be aware from the CRPD that there are obligations under international law imposed on the Commonwealth, not only in relation to emergencies, Article 11, but in relation to equality of access of health care, Article 25; you're aware of those?

A.  Yes.

COMMISSIONER SACKVILLE:  And you're aware of Article 31 under which State Parties undertake to collect appropriate information including statistical and research data to enable them to formulate and implement policies to give effect to the Convention?

A.  Yes.

COMMISSIONER SACKVILLE:  As I understand your evidence     and I follow that the Convention covers a great range of areas and it may not be possible to combine responsibility for those areas in one department     but if we look at Health, the inference I draw from your evidence is that there is a section within the Health Department that seems to be responsible for the development of policies concerning people with intellectual disabilities.  It's not clear to me yet as to whether there's anybody within the Health Department responsible for the development of policies relating to the health of people with disabilities generally.

My question is:  how can the Commonwealth give effect to its responsibilities under the Convention with respect to health, at least, unless there is some body or some section specifically responsible for taking the necessary steps, monitoring, collecting the data and so forth?  How can that be done?

A.  So, Commissioner, with respect, I don't know the answer to your question.  I think this is something the Department needs to consider if we're going to improve in this area.

COMMISSIONER SACKVILLE:  Thank you.

MS EASTMAN:  Mr Cotterell, I want to ask you about the implementation of the plan.  One of the responsibilities of the Advisory Committee has been to oversee the implementation of the plan and there have been, I think, a number of meetings of the Advisory Committee.  It seems, on the material, that they're occurring initially weekly, but then every second week.

A.  That's right.

Q.  So you've given some evidence about the number of meetings and the outcomes  
of these meetings have been published by way of a communique recording what was discussed at the meetings and then what the particular outcomes are and they're all published on the Department's website; is that right?

A.  That's right.  Could I explain about the three meetings?  So the object of the     no, okay.

Q.  Ms Morgan will jump in and say "You're not allowed to say anything about the first three meetings", so I'm not going to put you or her in a position of difficulty where you jump in and say something you're not supposed to say.

A.  Okay.

Q.  But I'm interested at this point on the implementation of the plan and you've set out in a lot of detail in your statement the steps taken in terms of the communication of the plan and I won't ask you any further questions about that very helpful in evidence.  But I want to bring you really up to the present point in time.

The most recent version of the plan is June this year and we've seen a fairly difficult time for Victorians since the end of June and throughout July and we've heard evidence over the course of this week from many Victorians about the impact of the Stage 4 lock downs.  Now, my question is:  what, if anything, has been done to review the plan in light of what is occurring in Victoria?  And I asked you earlier if you're aware of the media reports in relation to any outbreaks in facilities for people with disability.  So come back to my question which is:  what has happened in terms of any review of the plan taking into account the Victorian situation?

A.  Okay.  So this issue was raised at the Advisory Committee two meetings ago and we undertook to have a look at the plan to take account of the fact that Victoria was experiencing a particularly difficult situation, but that the pandemic would be at different stages in different jurisdictions.  So we're in the middle of trying to update the plan to reflect that.  One of the advantages of having all of the States and Territories at the table of the Advisory Committee is that those States and Territories that are more effective can take more of a lead in the discussion about what they're doing and how they're responding to those situations and Victoria has been exemplary in that.  They've given us a lot of information about what's happening and been really open to questions from the Committee.

Q.  All right.  Then what steps, if any, will be taken to evaluate the effectiveness of the plan?  Is that part of the work of this Advisory Committee, or would that be done by somebody else?

A.  So it's part of the work of this Advisory Committee.  We've made a commitment to come back to the Advisory Committee at a later date about evaluation, but part of the reason for the frequency of the meetings is so that the Advisory Committee can keep us honest about how it's working and draw our attention to any additional issues that we need to be addressing, or emerging issues of urgency.
 

Q.  My final question is this:  when you gave evidence at the Royal Commission's hearing in February, there were discussions about planning for the roadmap and a further roundtable was contemplated.  What's happened to the roadmap looking at the health care of people with intellectual disability and has that work continued, notwithstanding the COVID 19 demands on Government?

A.  So the work has continued.  So the measures that were agreed and announced by the Government are being implemented.  So, very importantly, the Primary Care Enhancement Program is being rolled out.  So we're entering into contracts with four PHNs to start implementing that program.  We're entering into a contract with the Council for Intellectual Disability to provide the national tools to support that program, so that's proceeding.  I don't know, there was some suggestion the Minister might announce that before this hearing, because I expected to be asked about it.  So but the four leading PHNs are Tasmania, Western Victoria, Central and Eastern Sydney and Central Coast, Wide Bay, Sunshine Coast, Central Queensland, Sunshine Coast.  I hope that helps and then in relation to the second meeting of the roundtable, I think which was originally planned for April, all stakeholders agree we couldn't proceed with that at that time because of the pandemic and we're in discussions with the Council for Intellectual Disability about how we facilitate a series of meetings, virtual meetings, over coming months to finalise that work, but we won't be able to do it all at one meeting just because of the nature of the virtual meetings.

Q.  Mr Cotterell, I know you've spent a lot of time in the virtual witness box this morning.  Those are the questions I have for you.  I'll ask the Commissioners if they have any questions.

QUESTIONS BY THE COMMISSION

COMMISSIONER BENNETT:  Mr Cotterell, could you briefly explain your relationship with the NDIA and the Quality Assurance Commission in your day job previously, when you were doing the plan and the roadmap, sorry?

A.  Okay.  So we have not involved those two agencies at the beginning of the work, but they had reached out to us to express their interest and we're planning to involve them in the second roundtable which will now be a series of roundtables, but it's a growing and close relationship and one of the upsides of the pandemic is that that has     this work in response to the pandemic has got us into routine consultation and collaboration.

COMMISSIONER BENNETT:  So your first thinking on the roadmap did not automatically include the NDIA and the Quality and Safeguards Commission?

A.  I'll have to     I'd have to go back and check.  I think we may have invited the NDIA to the first roundtable, but we didn't invite the Quality and Safeguards  
Commission and that was because of we didn't have an understanding of the infrastructure in disability.

COMMISSIONER BENNETT:  So didn't understand the infrastructure and the connection in government?  When were you taken offline to commence this work, the work that you did on the response to COVID?

A.  My recollection is either in late February or in early March.  I'd have to check the exact date.

COMMISSIONER BENNETT:  Now, early, on 17 February when the Health Sector Emergency Response Plan came out as Ms Eastman pointed out, that while disability wasn't mentioned, it talked about vulnerable members of our community and addressed the needs of special groups.  Were you already working, offline, working on COVID issues in the Department that stage?

A.  On the 17th of February, no.  But the whole Department was gearing up at that stage, so all of our thoughts were turning towards the response.

COMMISSIONER BENNETT:  Given what you've taken from the work that you've done on the roadmap, that you've started to form a relationship with the NDIA and the Quality and Safeguards Commission, and then in February you were taken, towards the end of February offline, to work on COVID, was not     did disability not be at the front of your mind given the work that you had just ceased doing to do something on COVID?

A.  It was strongly in my mind, but so was the whole Health Plan response package, but for example, as a demonstration of how it was on my mind, the NDIS Quality and Safeguards Commission came to our meetings in early March with the primary care sector and with the aged care sector.

COMMISSIONER BENNETT:  Ms Eastman cited some evidence that will be provided by Ms Samantha Taylor later today and there are several points in which she does actually say they were not consulted, they were not aware of and they were not informed of.  Does that raise questions of the governance and functional relationship between the Department of Health and a lead agency an understanding of the needs of people with disability and how services are delivered and the risk management of those services and the broader aspirations?  It's a big remit for the NDIS.  Would you say that it was a weakness in the Department of Health response that that relationship was not formed much earlier?

A.  I would say that the Department of Health response would have been improved if that relationship of regular and routine collaboration was formed much earlier, but all we can do is improve from now.

COMMISSIONER BENNETT:  In relation to data, there has been regular public reporting on the cases in aged care residential nursing homes, and deaths.  Where did  
that data come from to allow both State Ministers and the Health Minister and the Prime Minister and the Chief Medical Officer to be able to report those numbers, given your earlier statement is that the collection of this is done on a State level?

A.  That's right.  So, as I understand it, that's in the existing data collection mechanism via the Communicable Diseases Network of Australia.  There would also be data coming via the aged care system, but as I understand it, those figures come from CDNA.

COMMISSIONER BENNETT:  So the data collection has a flag that says "aged care facility"; is that right?

A.  As I understand it.  I'm not the expert, though.

COMMISSIONER BENNETT:  And there is no flag that says     well, actually, there's been data on the age of people, but there is no data that suggests that it could be a congregated living arrangement for people with disability?

A.  So following an intervention from the Advisory Committee to the CDNA, that data is now starting to be collected at national level.  Some States already collect and report that data, as being reported by the Victorian Government right now.

COMMISSIONER BENNETT:  But was it an intervention very early on because of the emerging cases overseas that it was collected specifically in the aged care sector?  Was that collection point a response to what was emerging overseas?  Or has it always been able to be collected?

A.  I don't know the answer.  I suspect it's always been collected, but we'll have to go away and come back to you.

COMMISSIONER BENNETT:  So the aged care sector which sits in the remit of the Commonwealth Government has collected that data for the aged care sector and disability for the last three or four years through the establishment in the NDIS, at least, those participants have also been a responsibility of the Commonwealth and yet no changes, you're saying, to date have been made to data collection?

A.  So on the first point the Public Health Units of each State and Territory collect that data and one of the data fields is, is it an aged care or residential facility and that may have gone back a long time and to the second point, there has been a change, that the CDNA agreed to include an "other residential care facility" category in the national data set, so the Public Health Units are now reporting to the Commonwealth on that.  But that didn't happen until after the intervention from the Advisory Committee.

COMMISSIONER BENNETT:  So, going forward, would you now see a priority in the way that you do your work in the public, in your day job, would you see it a priority to form a closer relationship with the NDIA and the Quality and Safeguards  
Commission?

A.  Absolutely, and I think the Advisory Committee has shown us that it would actually be useful for us to have a routine body of that kind to be hearing from people with lived experience, experts and relevant agencies and providers about the health needs of people with disability more generally.  So I would hope that the arrangements we put in place for responding to this pandemic continue into the future as an institutional arrangement for consultation and collaboration.

COMMISSIONER BENNETT:  Thank you.

COMMISSIONER SACKVILLE:  Commissioner Galbally?

COMMISSIONER GALBALLY:  I'd like to follow up on the question that Commissioner Sackville raised about health in relation to all groups who have disabilities, and just ask you whether     you know, it seems that one way to get the Department of Health's attention is to do really skilful and extremely intensive advocacy and that there ought to be a much more systematic way of making sure the health of all groups is addressed, and I just wondered what your intentions are about that going on from here?

A.  So, personally, I agree with the point that you have made and it's absolutely my intention to try to continue the arrangements of collaboration which have been put in place in relation to all areas of disability.  So our initial roadmap related to intellectual disability.  This work in response to COVID 19 is intended to cover all areas of disability and I think that's a really good starting point for us to try to improve across the board.

COMMISSIONER GALBALLY:  We heard earlier in the hearing from the UN Special Rapporteur about the importance, in fact, the requirement under Article 4 that DROs, Disability Representative Organisations, are included in these deliberations and that's because unlike people who are individuals on the group, they have a job which is to radiate all the findings and discussions and they have reach to their memberships.

We also have heard during the week about women and violence and thinking of Women with Disabilities Australia as a DRO, children and young people with disabilities and thinking about CYDA as a DRO,  Deaf and hard of hearing have particular issues and thinking of AFDO as a DRO, and just wondering what your intentions are to perhaps expand the membership of the advisory group and include more DROs which has come up during the week?

A.  Okay.  So we are open to having a look at the membership of the Advisory Committee.  I would say we've had these two mechanisms; we've had the Advisory Committee and the broader roundtable.  The Advisory Committee, the intention was to keep it relatively small so that we could be agile in responding to the pandemic.  The roundtable was to make sure that we got reach across the sector.  You've  
mentioned the Deaf community and we're very conscious that they have not been included in these consultations, so absolutely thinking about how we can do that and whether they might be invited to the roundtable.  We've got an issue with technology right now and we've only been able to have teleconferences for these roundtables because we can't get the video conferencing to work well enough and that is a challenge for engaging that group.  But, absolutely, have been following the evidence this week and looking at how we can improve this process and looking how we can institutionalise it going forward.

COMMISSIONER GALBALLY:  And how the strongest Advisory Committee might include three or four more DROs, maybe?

A.  We'll be talking to our colleagues in DSS, in the NDIA and the NDIS Commission about what an effective mix would be, but absolutely take your input.  Thank you.

COMMISSIONER SACKVILLE:  Thank you.  Mr Cotterell, does the Department of Health at the moment have any mechanism for monitoring on the compliance of the Commonwealth with the requirements of the CRPD in relation to Health?

A.  I don't know, so I'd have to come back to you on that.

COMMISSIONER SACKVILLE:  Do you think that might be a good idea?

A.  I do think it would be a good idea.

COMMISSIONER SACKVILLE:  Thank you.  Anything else, Ms Eastman?

MS EASTMAN:  No, thank you, Commissioners.

COMMISSIONER SACKVILLE:  Mr Cotterell, thank you.  I'm sure you have more pleasant duties to perform than appearing before Senate Committees and Royal Commissions, but thank you very much for giving us the benefit of your evidence.

A.  Thank you.

THE WITNESS WITHDREW

MS EASTMAN:  Commissioners, the next witness is Dr Nick Coatsworth.  I understand that Dr Coatsworth will be in the same room as Mr Cotterell and we'll give them a moment to change the chairs.

COMMISSIONER SACKVILLE:  Dr Coatsworth, thank you for coming to give your evidence.  I will ask my assistant to administer the oath or affirmation as the case may be.
 

DR NICK COATSWORTH, AFFIRMED

EXAMINATION BY MS EASTMAN SC

MS EASTMAN:  Good morning, Dr Coatsworth.

A.  Good morning.

Q.  My apologies for keeping you waiting, we're running behind time today.  Can I confirm you are Nick Coatsworth?

A.  I am.

Q.  And you are the Deputy Chief Medical Officer of the Commonwealth Department of Health?

A.  Yes, one of the Deputy Chief Medical Officers.

Q.  So there's two Deputy Chief’s, is that right, and one Acting Chief?

A.  There are three Deputy Chief Medical Officers, Professor Michael Kidd, Dr Ruth Vine and myself and an acting Chief Medical Officer, Professor Paul Kelly.

Q.  You've prepared a statement for the Royal Commission dated 7 August; have you got a copy with you?

A.  Yes, I do.

Q.  Are the contents of that statement true?

A.  Yes, they are.

MS EASTMAN:  Commissioners, a copy of the statement can be found in tender bundle part C behind tab 3, and if it could be marked exhibit 5.44.

EXHIBIT #5.44, COPY OF STATEMENT OF DR NICK COATSWORTH

COMMISSIONER SACKVILLE:  Yes.

MS EASTMAN:  When this Royal Commission commenced on Tuesday morning, in the opening address we referred to some statistics about the incidents of COVID 19  
in Australia with respect to both infections and mortalities, and the figures that were used in the opening address came from your press release on 17 August.

Now, I know a week is a fast time at the present speed of COVID 19, but do you recall your press conference on Monday morning?

A.  I recall giving the press conference, Counsel, I might need to be helped with the exact content of it.

Q.  All right.  So a copy of the transcript which is posted on the Department's website, if this can come up, it's DRC.9999.0018.001.

COMMISSIONER SACKVILLE:  Do we need to read that out again?

MS EASTMAN:  If we can just go down to the paragraph immediately after your name?  Those are the statistics that were quoted in the opening address.  Does that look familiar?

A.  Yes, Counsel, yes.  Absolutely.

Q.  Out of those statistics, do you know how many people with disability contracted COVID 19 since 22 January?

A.  I do not.

Q.  Do you know how many people with disability     and put for one moment having COVID 19 is a disability, but I'll come back to that in a minute     but how many people have died due to COVID 19 since 22 January?

A.  I do not.

Q.  Looking at these statistics, it's the case, isn't it, that information comes from the various States and Territories on a daily basis into the Department of Health for the purpose of having national statistics that are available on a day by day basis; is that right?

A.  That is the intention, yes, Counsel.

Q.  Right.  Do you know why there are no statistics available in relation to the impact on people with disability?

A.  Yes, Counsel, I do know the circumstances under which questions were raised about using disability as an identifier within the National Notifiable Diseases Surveillance System.

Q.  What's the problem with not including disabilities in that count?

 
A.  Well, there are a number of issues therein, Counsel, if I can go through them.  As the purpose of the NNDSS is to provide a real time actionable data for a community level control of a communicable disease, that is a whole of community control.  The nature of disability and people identifying with disability is such that that group was considered when it was put to the Communicable Diseases Network of Australia to be so heterogenous in terms of risk or vulnerability to COVID 19, that the inclusion of disability within the NNDSS itself would not have had a material impact on our ability to immediately control the pandemic within the early phases of the COVID 19 pandemic.  That is certainly not to say that it is not important to collect data on the effects of COVID 19 on people with disability.  It is simply to illustrate why it is not in the headline data obtained by the Commonwealth National Notifiable Diseases Surveillance System.

Q.  In the National Plan which was developed in mid February, the identification of people of particular age, so older people and what are described as "vulnerable people" were identified as people of particular risk and I want to ask you some questions about that.  But if you assume that people with disability are in that category of "vulnerable people" of risk to a greater impact of COVID 19, wouldn't it have been important to shape the Commonwealth's response by having data that reflected the impact on the most vulnerable groups, be it aged care or people with disability?

A.  Well, Counsel, I think in your question you asked me to accept that people with disability were a vulnerable group and if I could put my view therein, that people with many types of disability are vulnerable because of either the nature of that disability making them susceptible to severe infection, or the requirement of that disability to have frequent human contact during a pandemic.  But there is, equally, a group for whom disability in and of itself renders them with no more or less risk for COVID 19 than other members of the community and I think    

Q.  Who's that group?

A.  Well, Counsel, if I reflect on my own practice as an infectious disease and respiratory physician, I would look after people with disability on a weekly basis in my previous clinical practice.  There were certainly those who I would, on a vulnerability level, not classify as any more vulnerable than other patients that I looked after for COVID 19.

Q.  But what particular people with disability or disabilities are you referring to in that answer?

A.  Well, Counsel, as you well know there are 4.4 million people in Australia with disability and not all of them would be considered vulnerable to COVID 19.  For example, an individual who is working within any occupation, independently home living, with cerebral palsy and doesn't require any assistance may be at no risk, no further risk of COVID 19, and I would submit that there are other well known government organisations, including the Centre for Disease Control in the United  
States, that does not classify disability in and of itself as increased risk of acquisition of COVID 19.

Q.  Have you yourself sought to examine which people with disability might fall into a vulnerable class and which may not?

A.  Well, I would do that in my routine clinical practice, Counsel, and indeed, in the data collection form for individuals who have COVID 19, in every jurisdiction there are relevant risk factors that are considered to make someone more at risk of COVID 19.  Some of those are exhibited by people with disability and some of them aren't.

Q.  While we're on this, I think you were asked a question about this on Monday at the press conference and I might deal with this now, which will save us coming back to the issue.  If we turn to page 4 of the transcript of your press conference, you were asked this question:

There has been some concern about the spread in aged care facilities in Victoria, that this would spread into the disability sector and disability homes.  What is the government doing to prepare for that sector?  What are the similarities and differences between that sector and the aged care sector that possibly makes this response quite different?

So do you recall being asked that question?

A.  Yes, I do.

Q.  And in your answer which is immediately after you said:

Well, you think there's a variety of similarities and that's reflected in the CDNA's plan for residential care facilities.

That's a significant part of your statement for this Royal Commission and you say there that:

They apply to aged care as much as it applies to disability and supported accommodation.  That said, there are very specific needs for Australians with disabilities.  Keeping in mind that "disability" is not a catch all term for the many, many millions of Australians who live with disability, many Australians have different disabilities that render them     have different susceptibilities to COVID 19.  Not at all.  As I discussed with the Disability Discrimination Commissioner Ben Gauntlett some weeks ago, not all Australians with disability are more susceptible to infection with COVID 19.  And equally, some Australians with disability are very susceptible to infection with COVID 19.  So  there is a variety of tools or things that we have implemented in Government, including the Disability Advisory Committee, which is within the Department of Health, and the liaison that we've had with the NDIS     if I can  
use the short expression, but you've called it the National Disability Insurance Scheme, and then     the Insurance Association     and I want to ask you what that is     has been very productive to that end.

Your answer there seems to reflect the answer you've given this morning, that it's your understanding that people with disabilities are quite a wide and varied cohort and that not all people with disabilities are susceptible to COVID 19.  What medical literature or other research material is available to support what you said in the press conference?

A.  Well, this is an early pandemic, Counsel.  I'm not aware of the emerging literature with regard to COVID 19 and like many, like all of us in our decision making, relies heavily on our personal experience and understanding of what individual vulnerability and susceptibility to infection is.  But by contrast to disability as a whole, it was abundantly clear and has been that the virus disproportionately affects those who are older as a whole of community group.  But with regard to the literature on affecting people with disability, I'm not aware of that literature, if indeed it exists at the moment.

Q.  Are you aware of a number of statements of concern that have been issued by leading health and disability experts in the early part of the pandemic, from about mid March onwards?  Have they been brought to your attention?

A.  Yes, particularly in preparation for this hearing.

Q.  Well, put your preparation for this hearing to one side.  I'm happy to take you to each of them if you need to, but you've looked at the statements of concern that have come from particular experts on health and disability; is that right?

A.  Yes, I have.

Q.  But you've only look at them in the context of preparing for your evidence for this hearing?

A.  Well, Counsel, if I may, my commencement in the role was on 23 March.  My specific role as the Deputy Chief Medical Officer is in relation to hospitals and health service and particularly providing a front line clinician voice, so it is the case that I've only looked at them in the preparation for this hearing.

Q.  All right.  Have you personally had any consultation with your colleagues in the medical profession who do have particular expertise in relation to people with intellectual disability or disability generally?

A.  No.  My only conversation has been the one that I referenced with Dr Ben Gauntlett.

Q.  Now, tell me if I'm wrong on this.  We have done a review of all of your public statem 
ents in relation to the impact of COVID 19 and you'd appreciate, as you would probably know, you've done many, many public statements.  But it was only Monday that we have seen you speak about disability and the impact of COVID 19 on disability.  Are we right in understanding that this is the first time you've directed your attention to the issue of the impact of COVID 19 on people with disability?

A.  No, that's not correct, Counsel.  I do a live Facebook update which is widely viewed and although I would have to get back to you on the exact date, I interviewed Dr Ben Gauntlett about how Australians with disability were experiencing the COVID 19 pandemic.  It would have been, I imagine, in May.

Q.  All right, and was that in the press conference on Monday where you referred to having discussed with Mr Gauntlet some weeks ago this issue?  Is that a reference to the Facebook meeting?

A.  Dr Gauntlett and I, Counsel, go back a long way.  We were at university in Western Australia together and we had a lengthy discussion in preparation for this Facebook interview where those comments were made and exchanged between us.

Q.  All right.  We may need your assistance, and we can follow this up later, to look at the Facebook     get the Facebook reference.

A.  Of course.

Q.  I think I got caught up with the statistics.  Can I come back to your statement, if you've got a copy of that?  You set out in paragraph 8 of the statement the nature of your current role.  I want to understand specifically as a Deputy Chief Medical Officer at what part do you intervene in the policy development across the Department of Health?  You've said here in the statement that your contribution to the Department's response to COVID 19 has been to provide front line experience and the voice of clinicians at the highest level and this will help ensure that measures we are taking protect the Australian community focus on people's individual needs.

I want to understand that in terms of what you actually do.

A.  Yes, Counsel.  Essentially, the Deputy CMO and the CMO roles are the senior technical advisors to the Department, such that on matters requiring our particular technical expertise, we are approached by senior officials within the Department for advice to contribute to the policy on a technical level.  That said, as you have alluded to, there's been a significant communication and stakeholder engagement role during this pandemic and more importantly perhaps, the breadth of the response has necessitated at one time four deputy Chief Medical Officers, each of us took a different focus in our portfolio.  The point at which we would intervene, as I said, either with senior officials coming to us for technical advice, but we also sit on the Australian Health Protection Principal Committee and are party to those discussions.

Q.  So is it the case that you're there to provide the relevant clinical expertise and that  
officers within the Department of Health will seek out your particular advice on clinical issues?  Is that the main focus?

A.  That is substantively the traditional role of the CMO.  There have been, as I've discussed, some broader roles in the pandemic.

Q.  In the pandemic the broader role has sort of been pushed to the forefront in terms of the public communication side of it; is that right?

A.  That's certainly been one of the major ones, but equally, engagement with stakeholder groups has been a critically important role.

Q.  And have any of the engagements that you've had with stakeholder groups included groups who are representative of people with disabilities?

A.  Not personally, no.

Q.  Now, in the statement, you've responded to a number of questions that the Royal Commission has asked and the first question which appears on page 3 was to ask you, "Why were the needs of people with disability not specifically addressed in the Department's health emergency, pandemic and communicable diseases plans prior to COVID 19"?  Three particular plans were identified, the Emergency Response Plan for Communicable Disease Incidents of National Significance in September 2016; then the National Arrangements Plan in May 2018, and the Australian Health Management Plan for Pandemic Influenza in August last year.

I just need some assistance with your answer and you'll see that you've reverted back to paragraphs 1 and 2 at this part of your statement.  Do we take, reading the two paragraphs, is that there's an acceptance that people with disability were not specifically referred to in those plans?  And am I right in understanding that your answer is that people with disabilities are part of the whole of the Australian population?  So if we've covered the whole of the Australian population, it follows that we've covered people with disability?  I'm sorry it's a little wordy a question, but I want to understand what you're saying in those paragraphs?

A.  I understand the question, Counsel.  Yes, there is an acceptance that disability is not specifically mentioned.  Yes, there is an inference that these are whole of community plans to bring a pandemic, national communicable disease of significance, under control and ergo, people with disability are part of that community.  Both are accurate statements.

Q.  If you do not know the answers to the questions that I'm about to ask you, please let me know.  The Royal Commission has heard evidence over the course of this week about the obligations on Australia to meet the rights in the Convention on the Rights of People with Disabilities, and one of those rights includes a focus on emergency planning and we've heard evidence that Australia has been the subject of review by relevant UN Committee and the Committee has given advice to Australia  
on improving its emergency response for people with disability.  Australia's been a party to this Convention for many years and certainly well before September 2016.  Do you know why there was no specific consideration of the needs of people with disability in the planning back in 2016, 2018 and last year, in August?

A.  I don't know, Counsel.

Q.  Can I take you now to the second question we asked you at the bottom of page 3.  We asked you "Why were the needs of people with disability not specifically addressed in the Emergency Response Plan published on 18 February 2020?", and we've partly touched on that in the questions I've asked you a little earlier.  But you'll see that we've asked that question and then some follow up questions in relation to the development of the emergency plan.

Do we understand your answer in paragraph 3 under question 2 when you say:

From January 2020, the Australian Government activated a series of whole of community plans and strengthened existing mechanisms in response to the threat posed by COVID 19.  People with disability, as with all Australians, were covered by this action.

So does this mean again that if the plans covered the whole of the Australian community, then that was the coverage for people with disability; am I right in understanding that's what you mean in paragraph 3?

A.  Not entirely, Counsel, if I may elaborate?  Inasmuch as people with disability form part of the Australian community, that is correct, but     and so the intent of the plan is for immediate control of COVID 19, strengthening of the broader health sector for the whole of community, identification of how government architecture links together and the emphasis on the Department of Health, Commonwealth Department of Health, as the lead coordinating agency.  That's the purpose of that plan.

Q.  You've used the word "architecture" in your statement and you've just said that in your answer.  What do you mean by "architecture" in the context of the arrangements of the Commonwealth?

A.  Well, the way in which the Commonwealth Department      the Federal Department of Health links in with, for example, State Public Health Units.  That delineation of responsibility is critically important in a communicable disease outbreak given that the Constitution declares public health a matter for States and Territories, yet the Commonwealth can reasonably be expected to have a lead role in the national response.  That's but one example of what I mean by "architecture".

Q.  So architecture is not just between Commonwealth agencies and departments, but the relationship between the Commonwealth and the States and Territories; is that what you mean?
 

A.  That's an example of architecture and it's covered in that document.

Q.  All right.  Can I ask you to turn over to page 4 and we asked you in question 4, "Were the Residential Care Facilities Guidelines intended to apply to disability accommodation; and if so why?"  This is a matter on which, with these questions, you've addressed in some detail.  First of all, can I ask you in relation to the Coronavirus Disease 2019 Outbreaks in Residential Care Facilities Guidelines     I'm just reading paragraph 8     when you say they "were designed to assist public health authorities, residential care services, health care workers and carers by providing best practice information in preventing and the management of COVID 19 outbreaks", how were these guidelines intended to achieve that?

A.  Well, Counsel, these guidelines were intended as rapid technical advice based on the knowledge that residential care facilities were a particular risk for residents in the event of a community wide outbreak of COVID 19.  The way that the guidelines were able to achieve that was by going through a variety of detail, including infection prevention and control within a facility, what would happen if a resident became COVID positive?  What would happen if a staff member became COVID positive?  Issues to do with visiting people within facilities, to name a few.  It was intended that that document provide the technical guidance for those facilities to be able to start developing their own plans for COVID 19.

Q.  Do you know whether these guidelines have been provided to every operator of a residential care facility for people with disability?

A.  No, I don't know the answer to that I'm afraid, Counsel.

Q.  Who would know the answer to that?

A.  Well, if it was us that did it, we can certainly submit that to Counsel.  Obviously, they were provided on our website which was the primary mode of communication for all of our guidance and then whether those guidelines went out through the Department of Social Services is a possibility, but I can't speak to whether that occurred.

Q.  Do you know whether the NDIA or the NDIS Quality and Safeguards Commission were consulted in the preparation of these guidelines?

A.  My understanding is they were not consulted in the preparation of these guidelines.

Q.  Why not?

A.  Well, as I said, these were the rapid, rapid technical guidance for a particularly vulnerable population, the Communicable Disease Network of Australia needed to publish these rapidly, noting of course, that CDNA is composed of our leading  
communicable disease specialists around the country, all of whom have experience in planning for the disability and residential care facility sector.  I would cite the Chief Health Officer of the Northern Territory, I'm particularly familiar with, having worked there for four years, runs disability evacuation plans for highly at risk individuals during cyclone season.  So there are certainly people     whilst that consultation did not take place     there are certainly people on that committee who are highly experienced in these matters and able to provide rapid technical guidance.  If I may finally just to     we have spoken a lot in our statements about these being living documents and that they were updates subsequent to their release which is important in the pandemic.

Q.  In that respect, can I draw your attention to what you tell the Royal Commission in paragraph 12.  This is on page 5.  It's right, isn't it, that the CDNA determined who was consulted in the development of the guidelines?

A.  Yes, that is correct.

Q.  Notwithstanding you say that these guidelines were intended to apply to disability accommodation, it's the case, isn't it, as you say in paragraph 12, that the focus of consultation for the first version was the aged care sector and that was why the NDIS Quality and Safeguards Commission was not consulted; is that right?

A.  That is correct.

Q.  I'm just reading what you've got in paragraph 12.

A.  Yes, I am too, Counsel.  Well, the way it's written there with a comma, it seems that the reason for the consultation not occurring was because the focus was on the aged care sector.  I think it's simply to state that the NDIS Quality and Safeguards Commission was not consulted, but it would be reasonable to infer, I think, counsel, that it's because the document was indeed focused on the residential aged care sector, primarily because we already knew that age was a     "the" not "a", the most significant risk factor for COVID 19 mortality.

Q.  It was the case wasn't it     and you can have a look at what you say in paragraph 13     that the starting point was developing a response for the aged care sector and to the extent that you got aged care right, it followed then that that approach would be applicable to other settings.  For example, community based health facilities, as you say in your statement, detention and correctional facilities, military barracks and residential care facilities for people with disability; is that right?

A.  Yes, that's right and the reason for that is that the fundamental principles underlying risk for all of those facilities that you mentioned are essentially the same and therefore they can be used across facilities.

Q.  All right.  Now, I've just got to follow through on your statement and I take it, in looking at the question we asked at part 7 which is on page 6, that you are familiar  
with the Management and Operational Plan dated 17 April.  I think in the Department it's called "the MOP"; is that right?

A.  Yes, I am Counsel.  I don't have it in front of me at the moment, but I'm familiar with the document.

Q.  I'm not going to ask you any questions about the MOP other than to ask you this; you were not a member of the Advisory Committee and you haven't been a member of the Advisory Committee; is that right?

A.  No, I have not.

Q.  And did you have any personal hand in any drafting of the MOP?

A.  No, I did not.

Q.  The question that we asked you is that prior to the release of the MOP     so this is prior to 17 April     what arrangements were made to ensure PPE were available to     and you'll see we've set out a range of groups      people with disability who were NDIS participants; people with disability who are not NDIS participants; the disability workforce; disability accommodation; disability services other than disability accommodation.

Now, you have responded to that question in paragraphs 15 through to paragraph 20 and so this is just dealing with the pre 17 April.  It's the case, isn't it, that the then Chief Medical Officer, Professor Murphy, said in about mid March that there was a shortage of PPE and asked the general practitioners to limit who might have access to PPE at that time because of the shortage; is that right?

A.  Counsel, I would need to be directed to that exact statement, including where and when it was made.  I'm not confident with my memory.

Q.  All right.  In our chronology, we have 13 March that Dr Murphy asked GPs to strictly apply epidemiological and clinical criteria due to shortages of pathology kits, reagents, swabs and a backlog of testing.  Epidemiological criterion includes international travel in the 14 days before the onset, close or casual contact with a person 14 days before, and a clinical criteria included fever, acute respiratory infection, and in the course of that communication with the GPs, noted that there was a shortage of PPE as at 13 March.

I haven't got the document and I can make the document available to you if you need, but does that jog your memory about what the issues were by 13 March?

A.  Yes, it does indeed Counsel.  I can speak to that.

Q.  Okay.  I'm coming back to your answers to what was done prior to 17 April and looking at your answers at paragraph 15 through to 20.  Is it the case that, prior to 17  
April, unless there was a health clinical need, then there wasn't going to be a broader distribution of PPE outside a sort of health setting?  Am I right in understanding that's the effect of what you're saying in these paragraphs?

A.  At a macrolevel, yes, that's the case.  However, there were a number of measures instituted to ensure that disability providers and self managed participants of the NDIS were able to access the stockpile.  Like anyone     sorry, not "anyone" because only individuals with disability, they're the only individuals that have ever been allowed access to the National Medical Stockpile.  However, like other providers, health services, it needed to be as a last resort.  On, I think it was 31 March, a dedicated email address was made available, was notified through the NDIS to providers and participants and even prior to that, although I'm not sure whether it happened, but it would have been possible to get through to the National Medical Stockpile through the standard stockpile ops email address.  Those were the measures that were taken to ensure that there was access.

Q.  Prior to 17 April, we've heard evidence in the Royal Commission over the past few days, of people with disability and their families recognising the risks of the pandemic to people with disability, particularly those with underlying health conditions, doing their best to try to get access to masks and other PPE, because of the very close personal contact that the person with disability may need with their support worker and the difficulty of finding out information about where to go and what to do.  Do you accept that for that aspect of our community that there was very little information about what to do prior to 17 April?

A.  I certainly accept that there was a very high degree of concern amongst all members of the community and that this particular part of our community had a very legitimate reason to have greater concern about that level of risk.  The challenge with PPE, and it speaks to exactly what Professor Murphy was referring to in his communique, was not specifically that there was ever a critical shortage in Australia.  There was not a critical shortage of PPE in Australia.  But there was a worldwide shortage and that was a time when supply lines were particularly stretched and that Professor Murphy in his communication with GPs was highlighting the need only to use personal protective equipment when someone actually was presenting with a respiratory tract infection with risk factors.  In that time it was overseas travel.  And similarly, that was the message that we had sent out to disability providers through our online training, that really, it was only when the person receiving care had a respiratory tract infection that personal protective equipment was required.

Q.  Now then we've asked you at question 8, what happened after 17 April?  So the MOP comes into operation.  It highlights a range of operational steps and objectives, and you've said in paragraph 21 of your statement that as at 17 July     so that's a number of months, isn't it, after the 17 April MOP coming in     that there's been a range of measures implemented.  I won't take you through each of paragraph 21(a) through to (e), but I want to ask you about paragraph 22.  You say here:

The Department has recognised the increased vulnerabilities of people with  
disability to COVID 19.  In response, the NMS is working with the NDIS Commission and the Department of Social Services to ensure that disability care providers have access to PPE, initially through their usual means and through the NMS where usual supplies are no longer possible as outlined above.

I want to ask you, what do you actually mean by that? Secondly, if the Department has recognised the increased vulnerabilities of people with disability to COVID 19, what about the 90% of people with disabilities who are not NDIS participants?

A.  Thank you, Counsel.  The specific paragraph, paragraph 22, so this means that the National Medical Stockpile     and, forgive me, I struggle a little bit with the dates, but there was an allocation of surgical masks to the NDIS, of approximately 1.5 million, and that to a quite recent date, I think 10 August perhaps, about 250,000 went to the NDIS, of which we understand 150,000 were distributed.

So I think the way to interpret that paragraph, indeed, it was prior to the MOP that the National Medical Stockpile had provided last resort access to NDIS participants and providers, to the medical stockpile.  On the issue of the 90% of people with disability who are not NDIS participants, as members of our community, Counsel, the most relevant     in my view, the most relevant policy change there has been the mandatory mask wearing in Victoria and the suggestion that masks should be used in hot spots in NSW.  When those policies were introduced, so this was subsequent to the first wave, the supply of those particular items, masks, was freely available through commercial outlets and so there has been an increase in PPE distribution through the stockpile to Victoria and a notable increase to Allied Health, general practice and most recently in the past two weeks, to disability support workers.  And that was in direct response to a policy change by the Victorian Government requiring disability support workers to wear face shields and masks.  Face shields, by contrast to masks, are hard to get and so the National Medical Stockpile has responded by distributing several hundred thousand of those to Victoria.

Q.  All right.  The next question I want to ask you is about testing and if you turn to page 8 of your statement, we asked you some questions about testing both prior to the MOP and after the MOP.  And just look at your answers in paragraph 25 and 26 and could I first of all just ask you, is the reference in paragraph 26 to what is outlined in paragraph "23" intended to be in fact "25"?

A.  Yes, it is Counsel.  My apologies.

Q.  Now, in terms of the testing arrangements for people with disability, you say they're consistent with that of the general population and you say anyone with COVID 19     symptoms of COVID 19 should get tested and all general practitioner respiratory clinics established by the Commonwealth under the COVID 19 Primary Care Response are required under contract to comply with relevant laws on wheelchair accessibility and other disability access requirements.

A.  Y 
es, Counsel.

Q.  You'd accept, wouldn't you, that making testing available to people with disability requires more than just simply wheelchair access to a particular premise?

A.  Entirely, Counsel.  Yes.

Q.  But that is all you have identified in your response to the question; would you agree?

A.  That is, Counsel, and I'm very happy to elaborate on the other ways in which the community and people with disability can access COVID 19 testing.

Q.  Well, we asked you this quite specific question when you prepared your statement.  No doubt you turned your mind very carefully to what the testing arrangements would be and the only thing you mention there is wheelchair accessibility; you agree with that?

A.  That would be the only thing that I mentioned that was different for people with disability, but the point I think, Counsel, is that the wide range of testing arrangements that are available to the general population also improve access.  In fact, guarantee, in fact, help ensure access for people with disability.  Clearly, it's not simply wheelchair access, but there are a variety of places you can get tested; GP respiratory clinics, general practices, State and Territory testing clinics, drive through clinics, home visit services, and the final way to get tested, of course, is if someone with disability who is not able to leave their home, but is unwell and requires a test, is to, of course, go to an emergency department.

So there are a whole variety of ways that people with disability are able to access tests, if they have symptoms.

Q.  When did home visits and home visit testing come into operation?

A.  Well, that is only available, to my knowledge, for some pathology providers, Counsel.  I'm not aware that it is actually a whole of country policy.

Q.  So we had some evidence from Ricky Buchanan.  She's a woman with a range of disabilities who's bed ridden and has been so for many years.  It is impossible for her to go to a general practitioner, respiratory clinic or anywhere else.  What arrangements are presently in place for people like Ricky Buchanan if she needs to be tested?  Her life is one of reliance on support workers coming in and out of her home and having to be very close in contact with her.  So how does she get tested?

A.  Counsel, there are only two ways for someone in Ricky's situation to be tested, to my knowledge, as a universal across Australia thing, which would be that Ricky's primary care provider, a general practitioner, would need to attend and administer the test, or it would have to be done in the context of a hospital emergency department,  
or hospital based clinic that could be accessed and a person with disability in that situation would need transport to the hospital.

Q.  Do you accept that simply saying the testing arrangements for people with disabilities that are consistent with the general population really overlooks in a most significant way that people with disability, be they people such as Ricky Buchanan, but people with autism, people with significant mental health issues, that the testing arrangements for the general population are just not accessible to such cohorts?  Would you accept that?

A.  I'd certainly accept that not all of the testing facilities or arrangements that we have are accessible to those     to some people with disability.  The reality is, though, there are means to access testing through primary care.  We have always taken the position that if there are any challenges with the way that the health sector response has or has not been able to provide for an individual, that the first port of call is through a primary health provider, either through telehealth in Ricky's case, through telehealth to arrange a test.

Q.  Again, if you don't know please let me know, but there are media reports of active cases linked to more than 50 disability accommodation sites in Victoria.  Do you presently know how many active cases of COVID 19 are linked to any disability accommodation sites in Victoria?

A.  I'm only aware of the total number of cases in the NDIS framework for clients within Victoria.  I am aware that the Victorians are diligently collecting the data for their own jurisdiction on that very issue.

Q.  But that's not something that's come to the attention of the Commonwealth, is that right, as far as you're aware?  The Commonwealth Department of Health, I'll talk separately to NDIS Quality and Safeguards Commission later today, but to the work that you do    

A.  It's absolutely come to the attention of the Commonwealth, yes.

Q.  Now, I think over the last week or so     and this was a question that you were asked in the context of the press conference that you gave on Monday about what the Commonwealth is doing to prepare for the disability sector and what similarities and differences between that sector and the aged care sector would mean in terms of a response.  One of the issues that's arisen is whether or not there is a need for the Commonwealth to have a response of a similar nature to the Victorian Aged Care Response Centre which was announced, I think, on 25 July to bring together Commonwealth and State Government agencies at the State Control Centre in Melbourne in a coordinated effort to manage the impact of the pandemic across facilities.  This was announced as a joint response.  Are we right in understanding that there have been enquiries from Victoria as to whether or not there should be a similar joint response in relation to the disability sector, and in particular, residential facilities?  And that this is a matter that the Commonwealth is presently considering?
 

A.  Counsel, I am only peripherally aware of that.  I understand there have been discussions, not with me.  Those discussions are likely to happen with the Acting Chief Medical Officer, Professor Kelly, noting that the scale of the situation in Victorian aged care did demand the scale of response of the Victorian Aged Care Response Centre.  That's about as much information I can give on the specific request from Victoria.

Q.  Because on Monday, you said in relation to the Victorian Age Care Response Centre, you said it was framed under the national plans that have been in existence for many, many years.  The Commonwealth Disaster Plan, which allows for cross jurisdictional assistance, as well as the COVID 19 plan, pertaining to residential care facilities.

I can bring the press statement up again    

A.  No.

Q.  But you've referred specifically there to "residential care facilities" in your response to questions about the Victorian Age Care Response Centre.

A.  Yes, I did.

Q.  You would have had in mind, would you not, when you referred to "residential care facilities" on Monday, the residential care facilities including facilities for people with disabilities and we've talked about that earlier, have we not, in relation to the guidelines?

A.  Yes, yes, we have, Counsel.  I think the question also asked me about the similarities and differences between residential aged care and disability care facilities.  From    

Q.  Sorry to interrupt.  That was the earlier question.  So this is the question that you were asked where you dealt with this.  This is the final question in the press statement.  The question was:

Dr Coatsworth, given how rapidly the Commonwealth was able to establish Victorian Aged Care Response Centre, how soon will each individual State Response Coordination Centre be able to be established once they are agreed?  I know it is something National Cabinet is reviewing at the moment.  It is something that you could think be rolled out quite quickly, or will it take longer?

So that was the question you were asked in response to you then commenting on the Victorian aged care centre, in which you made very specific reference to "residential care facilities".  So you had facilities other than aged care facilities in mind when you answered that question on Monday, did you not?
 

A.  Yes, that's correct.

Q.  Thank you.

Those are my questions, Commissioners.  I will hand to the Commissioners if they have any questions.

QUESTIONS BY THE COMMISSION

COMMISSIONER SACKVILLE:  Thank you.  Commissioner Bennett?

COMMISSIONER BENNETT:  When the World Health Organization releases advice or information or statements, does the Department of Health and particularly the Chief Medical Officers     how do you take that into account?

A.  Thank you, Commissioner.  All of us would from time to time review those statements, but it would primarily be the responsibility of the committees to which the statements pertain, such as the aged PPC or the CDNA, and indeed, jurisdictional health authorities to take those into account.  Often times the statements need to be translated into a local context and it is not always the case that our statements concord with the World Health Organization.  I can't give a specific example, but simply to say that the majority would be concurrent, but some may not be.

COMMISSIONER BENNETT:  Are they viewed as important pieces of information, given they've got a global view and there was different advancements of the COVID 19?

A.  Yes, that would be accurate, Commissioner.  Yes.

COMMISSIONER BENNETT:  On 26 March, the World Health Organization released a statement on disability considerations during the COVID 19 outbreak which was also provided to us via the UN Special Rapporteur.  In the section under "Actions for Government", it lists prioritising disability caregiver agencies for access to no cost personal protective equipment including masks, aprons, gloves and the hand sanitisers, and ensure that caregivers of people with disability have access to COVID 19 testing along with other priority groups.

Was that taken into consideration?  How quickly was that taken     this is 26 March     I noticed from your statement in which Ms Eastman went extensively that it would still look as if there was a great delay before people who might be working or caregivers of people with disability were viewed as a priority for testing.  Could you talk about why there was a delay between that advice from the WHO on 26 March and that being translated into practice?

 
A.  Well, on the first matter, Commissioner, which is personal protective equipment, it was around that time, and I'm afraid having just started on the 23rd I'm not sure whether it was that document from the WHO that provoked this response, but certainly the access to the national stockpile for providers of disability care and people with disability, went live on or around 31 March, and as noted, there are no other individuals in the country who can go to that reserve stockpile apart from people with disability, self managed NDIS participants.

On the issue of testing, the prioritisation of testing was really anyone who had symptoms required a test.  So there wasn't a specific distinction made.  We wanted everybody who had symptoms, whether with disability or no, to be tested and to have that testing as available as we could in as quick as possible a time.

COMMISSIONER BENNETT:  Can I suggest, on paragraph 19 of your statement on page 6, in early April, it says that if providers were experiencing shortages and unable to obtain masks from other sources, the NMS may be able to provide.  That's quite different from the advice is access     it's pretty firm, "access at no cost of these equipment’s" and, in fact, then you go on in 20 to say through a dedicated email address and distribution being supported.  It certainly doesn't match up that there was advice that this should be a priority group and immediately given at no cost.

A.  Well, the "no cost" is implicit, Commissioner, because there are only a few limited circumstances where we sought cost recovery and it's certainly not been in the disability sector and the Australian Government has invested $3 billion in PPE and we have really     cost recovery was never part of our policy.  It was intended to be used at the cost of the Australian Government.  I spoke the language, "the NMS may be able to provide supply" simply reflects there is a need, there was a need to go through criteria to access supply.  Those criteria were that commercial options had been exhausted     were not available or for whatever reason and that there was an immediate priority either in the form of a positive COVID 19 case, or a suspected COVID 19 case for PPE to be made urgently available.

COMMISSIONER BENNETT:  One last question.  In testing, aged care workers, if I understand this, were able to get a test even without symptoms, they were able to if they'd been in contact or were concerned they might have had a contact, they were able to get a test for COVID 19 early on?

A.  Commissioner, I am not aware of that being a national policy.  Our policy on asymptomatic testing has always been consistent, that we don't advise anybody to get an asymptomatic test unless they're directed to by a public health authority.  I can't recollect that being any different.  Whether there has been specific instructions from States and Territories to that end is possible, but it would not be consistent with the national position.  So there was no position where we were denying asymptomatic testing to disability support workers in favour of residential aged care workers that was a national policy, as far as I'm aware.

COMMISSIONER BENNETT:  Thank you.
 

COMMISSIONER SACKVILLE:  Commissioner Galbally, do you have any questions?

COMMISSIONER GALBALLY:  I do.

COMMISSIONER SACKVILLE:  I think we need to make them as brief as we can.

COMMISSIONER GALBALLY:  I'll make it very brief.  Dr Coatsworth, I'm struck by your view that people with disabilities aren't a priority group in health because you're taking     you're sort of analysing it in terms of specific vulnerability.  Were you aware of the hearing of the Royal Commission in February into health care for people with cognitive disabilities?

A.  I'm aware that it occurred, Commissioner, yes.

COMMISSIONER GALBALLY:  And it drew attention to really major issues of discrimination, of systematic discrimination, lack of access, diagnostic over shadowing, you know, very major issues that would impact    

COMMISSIONER SACKVILLE:  I'm not sure, Commissioner Galbally, that Dr Coatsworth can answer the question based on    

COMMISSIONER GALBALLY:  No, no, I'm raising the question of why people with disabilities wouldn't be seen as relevant as a high priority group in this issue, that's all.  That's what I'm trying to come to.

A.  Commissioner, I completely agree that people with disability in a COVID 19 pandemic are a high priority group.  My earlier statements were a reflection on individual clinical risk for acquisition and severe disease which is not consistent across the whole range of people with disability.  But your comments on systemic issues, discrimination, neglect within the health care system for people with disability as a whole are the case and the substance of this Commission, of course.

COMMISSIONER GALBALLY:  Thank you.

COMMISSIONER SACKVILLE:  Ms Eastman?

MS EASTMAN:  I've got one matter.  I apologise that I overlooked, so can I deal with this briefly?

COMMISSIONER SACKVILLE:  Yes.

MS EASTMAN:  We have heard a lot of evidence during the course of this week about the fear of health rationing and decisions being made as to who will have access to intensive care beds, for example, if the pandemic becomes particularly acute.  I wanted to ask you about whether you're aware of the guidelines for complex  
decision making during the pandemic developed by the Australia and New Zealand Intensive Care Society?

A.  I'm certainly aware that those guidelines exist, yes.

Q.  And those guidelines provide a framework to support intensive care specialists who are required to make decisions about ethical allocation of critical care resources when demands exceed capacity during a global pandemic, and the guidelines identify that disability is an irrelevant and discriminatory consideration, so that patients shouldn't be ranked in terms of clinical priority for a range of characteristics, be it sexual orientation, religion, social status, et cetera, but also including disability.

Do the guidelines published by the intensivists, is that collective of the Australian Government's policy in terms of allocation of a critical care where the demand exceeds capacity?

A.  Counsel, there are no national endorsed guidelines to that end.  The position of the Government was always two fold.  Firstly, to aggressively suppress the virus such that we wouldn't get to that point and if we did, as modelling showed us we might in the first wave, to markedly expand our intensive care unit capacity.  To the extent that would we concur with ANZICS' view that disability is absolutely irrelevant to the decision making on someone getting on a ventilator or not?  Yes, we would concur with that view, yes.

Q.  I just want to put this proposition to you and please tell me whether you agree or depart from this in any way.  When a hospital or its senior intensive care specialists prioritise the provision of limited life saving resources like ventilators, would you agree the following steps should be taken to assist in ensuring the rights of people with disability are protected? First, clearly articulating within any relevant policy including the one derived from ANZICS' general principles that all decisions must, first, be clinically based; second, include a medical assessment of the individual patient; thirdly, not be based on assumptions about the quality of a person's life after treatment because of their disability.  Then, providing for an independent review of any decision not to allocate life saving resources to a person with disability or otherwise.  And finally, providing patients with access to an independent health advocate.

Would you agree with that approach?

A.  In broad terms, yes, I would, Counsel.

MS EASTMAN:  Thank you, and I apologise that I overlooked that issue.

COMMISSIONER SACKVILLE:  Thank you.  Dr Coatsworth, thank you very much for giving evidence today.  We appreciate your assistance.  Thank you.

A.  Thank you, Commissioners.
 

THE WITNESS WITHDREW

COMMISSIONER SACKVILLE:  Thank you.  We shall now adjourn until 2.05pm.

ADJOURNED    [1.04 PM]

RESUMED    [2.06 PM]

COMMISSIONER SACKVILLE:  Yes, I think, Ms Eastman, Dr Mellifont is    

MS EASTMAN:  Yes, can I just advise the Commissioners and those following the broadcast what's going to happen for the remainder of the afternoon?

COMMISSIONER SACKVILLE:  Please do.

MS EASTMAN:  The next witness will be Natalie Wade and Dr Mellifont will take Natalie Wade's evidence.  Then we will return to the Commonwealth witnesses.  We will not hear from Mr Martin Hoffman today, and there'll be a panel of Mr Graeme Head and Ms Samantha Taylor from the NDIS Quality and Safeguards Commission.  Ms Taylor has provided a very extensive statement and so the issues that we'll need to deal with her this afternoon can be narrowed in terms of scope.

After that, the Commissioners may feel that you need a very short break and we'll return to our final witness or witnesses in relation to the pre recorded evidence.  So that's the plan for the rest of the afternoon.  All being well, we should make it to about 4.00 or 4.15.

COMMISSIONER SACKVILLE:  I think there'll be built into that a short closing statement.

MS EASTMAN:  Thank you.

COMMISSIONER SACKVILLE:  Thank you.  Dr Mellifont?

DR MELLIFONT:  Thank you.  Good afternoon.  The next witness is Natalie Wade.  Before she is called, can I indicate that part of her evidence concerned clients of hers who are subject to a pseudonym order made on 14 August and a non publication order made on 19 August and the relevant pseudonyms are ABE and ABD.  Can I also please indicate on the public record that the Commonwealth will be provided with the opportunity to make a written response to the evidence of Ms Wade insofar as it relates to ABE and ABD next week.
 

Ms Wade's statement is at tender bundle A, tab 11 and I ask it be marked exhibit 5.5.  The associated documents are at tender bundle part A, tabs 12 through 19.  I ask that they be marked as exhibits 5.5.1 to 5.5.8.

EXHIBIT #5.5, STATEMENT OF MS NATALIE ANNE WADE DATED 10 AUGUST 2020

EXHIBIT #5.5.1 THROUGH TO 5.5.8, ASSOCIATED DOCUMENTS TO STATEMENT OF MS NATALIE ANNE WADE

DR MELLIFONT:  We're now ready for the evidence of Ms Wade.

COMMISSIONER SACKVILLE:  Thank you.  Ms Wade, if you'd be good enough to take the oath or affirmation, which my associate will administer.  Thank you.

NATALIE ANNE WADE, AFFIRMED

EXAMINATION BY DR MELLIFONT QC

DR MELLIFONT:  Good afternoon, Ms Wade.  Can you state your full name, please?

A.  Natalie Anne Wade.

Q.  Have you provided a statement to this Commission dated 10 August 2020, which is nine pages?

A.  Yes, I have.

Q.  Is that statement true and correct?

A.  Yes, it is.

Q.  Are you the Founder and Principal Lawyer of Equality Lawyers, a law firm in Adelaide which provides access to justice for people with disability?

A.  Yes, I am.

Q.  Do you provide legal advice, advocate for, and represent people with disability; is that correct?
 

A.  As within my role as Principal Lawyer, yes.

Q.  Okay.  Entirely separate from your firm, you're an expert advisor on disabilities for AFDO, is that correct?

A.  That is correct.

Q.  What does AFDO stand for?

A.  The Australian Federation of Disability Organisations.

Q.  Now, your statement and also attachments thereto set out some concerns you have as to whether the needs of your client, ABD, a 23 year old man who has a number of disabilities, were appropriately met in the course of the COVID pandemic by his service provider and the Commonwealth, is that correct?

A.  It's prudent for me to clarify, Counsel, that I am instructed by his mother, though I act in their best interests.

Q.  Thank you, yes.  So his mother is ABE under the pseudonym and she has been formally appointed as ABD's guardian?

A.  That is correct.

Q.  And what are ABD's disabilities?

A.  He lives with a number of disabilities including autism spectrum disorder, intellectual disability and complex post traumatic stress disorder.

Q.  Can you please take us through the circumstances relating to his accommodation in this COVID pandemic which has caused you concern?

A.  At the time of the COVID pandemic in Australia, late March 2020, he was living in a flexible respite accommodation where he had been stuck for the previous five years prior to the pandemic.

Q.  And what happened in the course of the pandemic which caused you particular concern in respect of where he would be living?

A.  The service provider responsible for the flexible respite was informed to have him (audio distorted) removed - - for five years and moved into a group home where he did not know anyone and (audio distorted)    

DR MELLIFONT:  Sydney, we're having difficulty hearing Ms Wade, is the same problem occurring in Sydney?

 
COMMISSIONER SACKVILLE:  Yes, it is.  Is there somebody perhaps who should be on mute, who's not on mute?  I'm told, Ms Wade, that the problem is at your end and for reasons I do not understand, but I'm sure are sound.  I'm told that you need to either speak more loudly, or to use earphones.

A.  Shall I speak more loudly, Commissioner, would that help?

COMMISSIONER SACKVILLE:  I believe it will help, but I am merely a mouthpiece and I hope the advice I've got is correct.  So please do speak more loudly and then hopefully the problem will go away.

A.  Okay, thank you.  Sorry.

DR MELLIFONT:  Thanks, Ms Wade.  We might get you to repeat the last answer.  You were explaining that he had been in respite accommodation and things were going to change?

A.  Yes.  So when the COVID pandemic was announced in late March 2020, the service provider responsible for that flexible respite accommodation sought to move him from that accommodation, where he had been for five years, to a group home with people that he had never met, in a location that he had never been.

Q.  What were the particular issues which you faced in trying to help him with this problem?

A.  So, if he had of lived in a private tenancy arrangement, then I could have brought legal action to seek a decision of what is, for all intents and purposes, a landlord to stop that decision from happening.  But because he lived in an archaic version of Disability Services accommodation, it extinguished all of his tenancy rights and I had no legal recourse to be able to stop the service provider forcibly removing him.

Q.  And so what happened in the end?

A.  His mother     my client     found a private rental accommodation that she put in her name and paid rent in advance for six months to rehouse him so that he would not have to live with people that he did not know and would be frightened of.

Q.  Now, Ms Wade, in your statement at paragraph 15, you say, "It has been shocking that, as a lawyer in 2020", you were unable to do anything to uphold ABD's human rights.  Can you expand on that please?

A.  I suspect that most people would anticipate     most people in the general public that is, would anticipate that people with disabilities in 2020 would have their basic human rights in tenancy and housing and, in fact, this exposed that that was not the case, that they do not have tenancy rights when living in disability accommodation that was formed before the NDIS.

 
Q.  And you described how you felt about this as a lawyer of some considerable experience, that COVID 19 had seen the most dramatic nationwide shutdown, in about mid April 2020, you felt like the disability rights movement had snapped back at least 15 years.  What do you mean by that?

A.  I have been significantly involved in the disability rights movement in Australia for more than 10 years and we have slowly seen a progression of the recognition and promotion of human rights and people with disabilities through their education, employment, independent living and wellbeing in this country.  However, when COVID hit and in the course of my acting for this family, I saw that his human rights were immediately disintegrated where he couldn't choose where he lived.  He couldn't access his own family, he couldn't exercise, he was not allowed out of the home and there was nothing that I as a lawyer or a senior advocate or his very dedicated mother could do to help him.

Q.  And does it encapsulate your opinion or one of your opinions that the situations of the pandemic have exacerbated pre existing inequities for people with disability?

A.  Most definitely, Counsel.  So, before COVID, we already knew that people with disabilities were not given a fair go.  We knew that we were denied access to employment, to education, to housing, to health care and we were disproportionately exposed to abuse, violence and neglect in the community, and during COVID 19, those failings of our community, of our government and of our history were amplified considerably, where people with disabilities were locked in their homes, where they were shut out of their workplaces and they were denied basic safeguarding measures for access to their families and advocates during the pandemic lockdown.

Q.  Now, in your statement you commend the government for issuing the Management and Operational Plan for People with Disability and also for establishing the Advisory Committee on Health Emergency Response to COVID 19 for People with Disability, and you believe that, for example, the Plan can give some essential visibility to the impact of COVID 19 on people with disabilities, but you would like to see the role of the Advisory Committee to be the subject of better communication so its role is better understood in the broader community.  Why is that?

A.  I was concerned that the role of the Committee was not well understood by the disability community and many of their frustrations and anxieties could have been allayed by having a more distinct and clear pathway to the work of the Committee, and I would like to see that going forward.

A.  I was concerned that the role of the committee was not well understood by the disability community and many of their frustrations and anxieties could have been allayed by having a more distinct and clear pathway to the work of the committee and I would like to see that going forward.

 
Q.  Sorry, you would like to see that going forward, is that what you just said?

A.  Yes, Counsel.

Q.  Okay.  Now, this question is perhaps related to the last.  At paragraph 23.4 you say that you believe there is a gap between what is happening in policy and what is experienced in the community and that gap has created a lot of anxiety and confusion for the disability community.  What do you mean by that?

A.  I am concerned that we have created public policy that endeavours to capture people with disabilities during the pandemic, and a lot of that was done later in the piece.  It was not done initially and it has not properly caught the issues that have been faced by the disability community and now in my view, is at risk of being tokenistic or out of reach of people who need to actually inform what bodies like the Management Plan and Advisory Committee are doing.  I think that gap creates a significant issue in ensuring that people with disabilities and their families are safe during national emergencies like the pandemic.

Q.  Your statement also commends the NDIA in recognising that participants could use some of their funding to purchase PPE, but you are concerned about the consistency and the quality of information being provided in that respect; what are your concerns in that respect?

A.  I'm concerned that the NDIA have adopted an overly prescriptive approach to allowing participants to use their funding that is made available to purchase personal protective equipment or PPE, and that at the moment, they     the NDIA     put restrictions on what participants can buy PPE and when they can do it.  So, for example, at the time that I was writing my statement, the NDIA had publicly advised that PPE can only be purchased for those living in Victoria or NSW and those receiving more than one hour of face to face daily living support.  But in my view, that is unlikely to capture those participants who would be absolutely essential in requiring access to PPE to ensure their safety in their homes and in their lives during the pandemic, and they may not live in New South Wales or Victoria, and they may not have one hour of daily living supports.

Q.  Now, in paragraph 24.2 of your statement you say that, in your opinion the NDIS practice standards did not anticipate many of the circumstances that arose from the pandemic, and your experience through your work in the advocacy space includes receiving anecdotal information that some providers of closed settings sought to move clients from one service to another to make houses available for use if there was a COVID 19 break out or to avoid an outbreak from occurring, and you state:

Without the NDIS Practice Standards applying properly, this created a gap.

What do you mean by this?

A.  So the NDIS Practice Standards are an important part of the legislative  
framework of the National Disability Insurance Scheme and they are a core part of the NDIS Quality and Safeguards Commission's ability to establish jurisdiction to anticipate or respond to a matter.  And so where the NDIS Practice Standards do not anticipate a national emergency like a global health pandemic, then they very quickly run out of legal ability to intervene in matters like those you described, Counsel.

Q.  This is my last question before I hand back to the Commissioners.  If you were able to make a specific recommendation going forward which you believe would make a real difference to the life of people with disability throughout this pandemic and which would be capable of implementation by the Commonwealth Government or the NDIA, or the Commission, what would that be?

A.  Could I enjoy two, making them very brief?

COMMISSIONER SACKVILLE:  Yes, you may have two.

A.  Thank you, Commissioner.  My first recommendation would be for funding in NDIS plans to be available to be used to purchase PPE by any participant as they see fit during the times of global pandemic in Australia.  My second recommendation would be for there to be a specific practice standard or an NDIS Practice Standard that is enlivened when a national emergency is declared and that those practice standards are particularly mindful of the lack of tenancy rights, social and economic participation rights, currently afforded to all Australians in communities.  That would ensure that the NDIS Quality and Safeguards Commission could properly investigate and respond to providers who fail to keep people with disabilities safe and privy to the quality of life expected of all Australians at the time of a national emergency.

DR MELLIFONT:  Thank you, Ms Wade.  Commissioners.

COMMISSIONER SACKVILLE:  Yes.  Commissioner Bennett?

COMMISSIONER BENNETT:  Thank you, Ms Wade.  You gave us one example of treatment of a person with a disability in their group home.  How widespread do you think this is?  Because we've sort of heard, yes, it happens, people are sort of locked up or denied those other activities that we as citizens, in social distancing     you know, being able to exercise, maybe go to the shops at certain times; we've heard some say that there was no change, but we've heard and received submissions that it was quite significant for people in group homes.  Do you have other stories?  Have you heard similar stories to the one that you've presented today?

A.  I have heard that the experience of people with disabilities in closed settings, so group homes, in residential care, hospitals and nursing homes, has been similar to that which I presented.

COMMISSIONER BENNETT:  Do you think that there should have been much clearer, separate guidelines that made a distinction between, let's say, nursing homes and disability home arrangements where this is much more someone's house?  It's  
still institutional, but the constraints that were put on them?

A.  Yes, I do.

COMMISSIONER BENNETT:  Thank you.

COMMISSIONER SACKVILLE:  Commissioner Galbally?

COMMISSIONER GALBALLY:  No questions, thanks.

COMMISSIONER SACKVILLE:  Ms Wade, thank you very much for coming and giving evidence today and for your statement.  We appreciate your contribution to the Royal Commission and the assistance you have provided.  Thank you.

A.  Thank you, Commissioner.

THE WITNESS WITHDREW

COMMISSIONER SACKVILLE:  Ms Eastman?

MS EASTMAN:  The next witnesses are giving evidence together, Mr Graeme Head and Ms Samantha Taylor.

COMMISSIONER SACKVILLE:  Mr Head and Ms Taylor, thank you very much for coming today to give evidence.  I will ask my associate to administer the oath or affirmation as the case may be.  Thank you.

GRAEME HEAD, AFFIRMED

SAMANTHA TAYLOR, AFFIRMED

EXAMINATION BY MS EASTMAN SC

MS EASTMAN:  May I start by confirming you are Graeme Head?

MR HEAD:  Yes.

MS EASTMAN:  I think your volume needs to come on a little bit more.

MR HEAD:  It's on full at the moment.

 
MS EASTMAN:  We know who you are, you are the Commissioner of the National Disability Insurance Scheme Quality and Safeguards Commission?

MR HEAD: Yes.

MS EASTMAN:  You've prepared a statement dated 13 August?

MR HEAD:  That's correct.

MS EASTMAN:  Are there changes to the statement?

MR HEAD:  No.

MS EASTMAN:  Are its contents true?

MR HEAD:  Yes.

MS EASTMAN:  Commissioners, you'll find a copy of Mr Head's statements at tender bundle part C, behind tab 5 and tab 6.  If those documents could be marked exhibits 5.46 and 5.47.

EXHIBIT #5.46, STATEMENT OF MR GRAEME HEAD DATED 13 AUGUST 2020

EXHIBIT #5.47, STATEMENT OF MR GRAEME HEAD DATED 11 FEBRUARY 2020

MS EASTMAN:  Thank you, Mr Head.

You are Samantha Taylor and you are the Registrar of the National Disability Insurance Scheme, Quality and Safeguards Commission?

MS TAYLOR:  That's correct.

MS EASTMAN:  And you've prepared a statement dated 13 August?

MS TAYLOR:  Yes.

MS EASTMAN:  And you wanted to clarify some documents that are identified as exhibits in your statement? This is page 9, part of paragraph 37?

MS TAYLOR:  Yes, that's correct.  So, 37(i)    

MS EASTMAN:  The document that you identified as the exhibit was not the version  
of the document being the fact sheet as at 31 March.  A later version of the document was included in the annexures; is that right?

MS TAYLOR:  That's right.

MS EASTMAN:  And you wanted to make sure that a copy of the version of the document as at 31 March was substituted for that exhibit number; is that right?

MS TAYLOR:  That's right.

MS EASTMAN:  And I understand that's been attended to during the course of the morning, and then there's a second document that you wanted to make sure was the relevant document and that's on the following page at paragraph 37(aa)?

MS TAYLOR:  Yes.

MS EASTMAN:  And you wanted to indicate that the fact sheet was referring to 13 May, but the 7 August version was in the tender bundle and the 13 May version should have been included as well; is that right?

MS TAYLOR:  Yes, that's right.

MS EASTMAN:  And other than those clarifications to the documents and the exhibits, are the contents of your statement true?

MS TAYLOR:  I have two further changes to the statement.

MS EASTMAN:  All right, can you tell me what they are?

MS TAYLOR:  Paragraph 36, where I've said, for example, the three fact sheets for participants were reviewed by the Disability Advocacy Network of Australia.  In fact, the Disability Advocacy Network of Australia reviewed two of the three fact sheets and the participant    the information pack for participants.

MS EASTMAN:  So what change would you like?  How should that paragraph now read?

MS TAYLOR:  So the paragraph should read:

For example, two fact sheets for participants and the information pack for participants were reviewed by the Disability Advocacy Network of Australia.

MS EASTMAN:  All right, so that's the clarification to paragraph 36, and what's the other one?

MS TAYLOR:  That's correct.  Paragraph 141.  At the end of that paragraph    

 
MS EASTMAN:  Wait, wait.  Just let me catch up with you.

MS TAYLOR:  Certainly.

MS EASTMAN:  So, one for one, that's page 33?

MS TAYLOR:  That's correct, yes.

MS EASTMAN:  What is the amendment that you'd like to make to this paragraph?

MS TAYLOR:  At the end of that paragraph there's a statement that says:

This statement followed his statement about the AHPPC advice about disability support workers.

When I was reviewing my statement to finalise it, I did not pick up that that was a redundant sentence and should be removed from the statement.

MS EASTMAN:  When you say that, do you mean that that sentence was not part of the Deputy Chief Medical Officer, Professor Michael Kidd's statement at a media conference?

MS TAYLOR:  That's correct.

MS EASTMAN:  So that sentence that you want to remove with some commentary on it, but it should come out, is that right?

MS TAYLOR:  Yes.

MS EASTMAN:  So we delete that sentence.  Do you keep the footnote reference in?

MS TAYLOR:  Yes, please.

COMMISSIONER SACKVILLE:  We are possibly descending to minutiae here.

MS EASTMAN:  With those amendments, are the contents of the statement true?

MS TAYLOR:  Yes.

MS EASTMAN:  Now, I'm mindful of the time and we're grateful, Ms Taylor, to you in particular, for a very detailed and comprehensive statement.  I don't propose to take you through the detail of your statement, but you may both be assured that the Royal Commission has read and carefully considered and will continue to consider the contents of the statement.  I want to focus on particular issues which I understand your Counsel would like to be addressed in relation to some issues that arose in the evidence yesterday.

 
I was not present when the evidence was given by the two service providers, so I cannot and I will not ask you any questions about the particular service providers, but I would like to ask you some questions of a general nature touching on those issues.  But, first, I wanted to ask you this:  Ms Taylor, you've said in your statement at paragraph 173 that as at 13 August, there are 76 NDIS participants who have contracted COVID 19 and there are 124 disability support workers of NDIS participants who have contracted COVID 19.  So that's correct?

MS TAYLOR:  That's correct, that was correct on that date.

MS EASTMAN:  Do you have any data as to whether there's been any deaths of NDIS participants who have contracted COVID 19?

MS TAYLOR:  Yes.  The Commission has had eight deaths reported to us of participants passing away from COVID 19      well, whilst positive with COVID 19 and one worker, although the worker who was reported to the Commission as having died was, in fact, out of jurisdiction for the Commission being an employee in a service which was not covered by the Commission's jurisdiction.

MS EASTMAN:  Now, how is it that you have this information?  Where does this data come from?

MS TAYLOR:  Providers are required under section 13A of the NDIS Provider Practice Standard Rules to notify the Commission of certain events that affect their ability to meet their conditions of     well, practice standards and other matters and also adversely affect their operation to     in anticipation of the need for us to be able to support participants and also providers in the event of infections arising in the course of delivering supports to NDIS participants.  We put in place a specific mechanism to enable providers to let us know about the infections suspected and confirmed of either NDIS participants, or workers engaged in supporting NDIS participants and that includes providers have advised us of course     and I will describe the process for follow up once we're aware of a suspected and confirmed infection if you want me to    

MS EASTMAN:  I do want to come to that, but I just want at this stage to clarify the source of the data that you have.  So it comes from the service providers?

MS TAYLOR:  It comes from the service providers that have been supporting the individuals who have been infected with COVID.

MS EASTMAN:  And do you, as a matter of practice, provide this information to the Commonwealth Department of Health?

MS TAYLOR:  No, we don't.  We provide that information to the National Disability Insurance Agency and share information with     in the case of the majority of the deaths     the Department of Health and Human Services in Victoria.

 
MS EASTMAN:  And in terms of looking at the numbers for NDIS participants, so you've said 76 participants up to 13 August; does your data collection allow you to identify within that number the location of people who've contracted COVID 19 and/or the particular type of service?

MS TAYLOR:  We ask providers as part of that notice process to give us an understanding of the general location of the service that's being provided, yes, and also the nature of the support.  Sometimes we need to clarify that with providers.  So our team does make contact back with them to confirm the nature of the setting that the infection may have occurred in and also to be a little more specific, if we need to be, about the location.

MS EASTMAN:  So of the 76, are you able to tell the Royal Commission today the distribution across Australia?

MS TAYLOR:  The majority of those infections have been reported to us from Victoria and so I'm happy to provide the Royal Commission with an understanding of the distribution of those across jurisdictions from the period that we began collecting this information in March to today.

MS EASTMAN:  And if you've been collecting this information since March, looking at the total number of 76, have the majority of cases confirmed with NDIS participants contracting COVID 19 occurred in more recent times, or has it been evenly distributed since March?

MS TAYLOR:  Oh, no, it's been markedly increased in recent times, since July, and the issues experienced in Victoria.  It's been quite significant, that increase.

MS EASTMAN:  There are reports     and either of you answer these questions     to suggest that there may be 81 active cases linked to more than 50 disability accommodation sites, the majority of which are regulated by Federal authorities in Victoria.  Do you know whether that is an accurate account of current active cases and also the number of sites?

MS TAYLOR:  I couldn't verify that, no.  The Victorian Government does still have oversight of a significant proportion of disability accommodation settings in that State, around 45%.  We're in the process of working with the Department there to connect our data sets so that we've got a good understanding about the whole of the system and the whole of experience of people with disability who are in residential settings, and as well as sharing that information and joining it up with information from the NDIA.

MS EASTMAN:  Right.  I'm going to ask you in a moment about the process of service providers responding to symptoms and outbreaks, but where there is an outbreak in a setting, who has the primary responsibility for the NDIS participants in the event of an outbreak?  Who is in charge?

 
MS TAYLOR:  The service providers supporting the participants.

MS EASTMAN:  They're in charge?

MS TAYLOR:  Yes.

MS EASTMAN:  So, if there's an outbreak, there's no notification either to your Commission or to any other authority where another authority may come in and take over?  It's up to the service providers, is that right?

MS TAYLOR:  No, I'm referring to the fact that the provider continues to have oversight and responsibility around the provision of disability supports to participants.  There are strong connections that happen in     well, in Victoria, if you'll allow me to speak to that as an example, where there are specific outbreak     outreach to support providers in dealing with the  immediate issues around the health care needs of participants and if it's an infected worker, to determine whether or not there's the correct environment to make sure that the health risks to others and the health needs of the individuals who are infected are being met.

So there is a very strong local connection with local health authorities to support those providers.  So the principal issue is that     this is when people are infected, it is not necessarily a disability support response that's required, it's of course principally a health care response which is required.  However, alongside that, maintenance of supports, continuity of supports for participants is a fundamental obligation and need for people with disability during that kind of very traumatic experience and anxious period.

MS EASTMAN:  So that places a very significant onus and responsibility on the service providers at the frontline; is that right?

MS TAYLOR:  It does, yes.  Yes, it does and I guess what we've been doing to support providers is to, very early on, anticipate that pressure that would be on them to be ready and prepared and to give them guidance about what good practice would look like in considering the things that they needed to, primarily around understanding the needs of the people with disability that they're supporting and to be able to have good plans in place around a variety of matters, such as how they connect up with local health authorities and being clear with their staff about how that would occur.  Being clear about the health care needs of    

MS EASTMAN:  Sorry to interrupt.  I want to come back and look at the specifics of it, but I'm just asking you, the onus is really on the service provider.  So if there's an outbreak the person in charge is the service provider, is that right?  No one else comes in and takes over?

MS TAYLOR:  To maintain the provision of disability supports, there may never need to be, if there are infections of participants in a residential setting, for example, the need for anyone to intervene, because the situation, depending on the effect of the  
infection, may mean that people are able to live quite comfortably and continue on receiving supports with the appropriate protections available for workers and other people who might be either entering that premises or living there also.  So the responsibility of the provider is on the disability support arrangements and the continuation of those where they're required by the person with disability.

MS EASTMAN:  So who takes over the health supports?  Who's in charge of the health of an NDIS participant under the care of a particular service provider?

MS TAYLOR:  Where the participant requires health care support, that's a matter for the health system and the need for the provider to work together, if the person with disability is able to remain in their own home, even in the community or in group living, to get the appropriate supports as any of us would expect to access.

MS EASTMAN:  All right.  Now, you've just said a little earlier that part of the role of the Commission is to provide guidance.  Does the Commission do more than provide guidance?  Shouldn't the Commission be issuing directives to the service providers as to what to do in the event of a suspected outbreak and then in the event of an outbreak?

MS TAYLOR:  So the Commission's role is to oversight the way in which NDIS supports and services are provided to people participating in the scheme.  The obligations on providers are around continuity, as I've described, but also making sure that there's a safe environment for people.  So the first principle is avoidance of infection and making sure that the preconditions are there to make sure that people are protected as much as possible.  But the primary directive comes from the health care advice on which we rely to then provide guidance to providers.

So the principal directive about what should or shouldn't be done in an outbreak is a matter for the health system and as is the case, if I can use an example again of Victoria, very strong guidance to providers and     about what they should or should not do in the context of the situation in Victoria with high levels of community transmission, for example.

COMMISSIONER SACKVILLE:  Ms Taylor, this is an unprecedented health crisis, at least unprecedented since 1919.  It's also, therefore, an unprecedented situation for service providers with the best will in the world.  How are the service providers meant to deal with this unprecedented situation without more direction, assistance and so forth than simply providing guidance?

MS TAYLOR:  Well, the guidance is pretty strong, if I can     and the guidance that we provide reflects the obligations that already exist and are quite directive for providers about adherence to particular standards and to codes.  We do rely very, very strongly on good guidance coming out of the health system to enable providers to interpret and be guided, directed about how to adjust certain aspects of their supports so that in the event of an outbreak matters, they're able to clearly manage.  Now, those things generally in the experience that we've had in the last few months  
have come from very strong local and direct engagement by health care authorities to support providers in dealing with the very specific issues of outbreaks and infections within the community and in residential settings.

COMMISSIONER SACKVILLE:  So, essentially, the health side of things is not something that you're concerned with; that's something that you rely upon health authorities and the directions or guidance they give to service providers?

MS TAYLOR:  Yes.  It's really been a critical issue for us to rely on the guidance and instruction that comes from the authorities in the health system, because as you say    

COMMISSIONER SACKVILLE:  Who do the service providers owe their obligations to, to which you are referring?

MS TAYLOR:  So they owe their obligations in two ways.  One to the NDIS Quality and Safeguards Commission around meeting their obligations to support NDIS participants through the provision of the disability supports that they require and desire, and they have an obligation under Public Health orders to meet their obligations more generally to citizens around making sure that they adhere to those particular directives.

COMMISSIONER SACKVILLE:  So they owe, the service providers, owe an obligation to the Commission to perform their obligations, including health obligations?

MS TAYLOR:  So we require that    

COMMISSIONER SACKVILLE:  Please, is the answer to my question "yes"?

MS TAYLOR:  To the extent that those public health directions are laws in the State or Territory they're operating in, yes, they're obliged to meet those responsibilities.

COMMISSIONER SACKVILLE:  What do you do to make sure they're complying with those responsibilities that they owe to you?

MS TAYLOR:  Nothing has changed in the course of the pandemic in terms of how provider obligations must be met under the NDIS code.

COMMISSIONER SACKVILLE:  No, no, no.  I asked you, what do you do to ensure compliance with the obligations that are owed to you, at the Commission?

MS TAYLOR:  I think I'll need to emphasise that the obligations that are required of providers to us have continued with a greater emphasis around the matters that relate to the particular circumstance of COVID.  So we have put in place a number of mechanisms to be able to monitor that.  We have a complaints function which enables us to respond directly to issues that are raised about providers' adherence to  
their obligations, and have pursued those matters as we would generally, related to COVID or otherwise, to make sure that providers are meeting their obligations.  We continue to require them to report certain incidents to the Commission and satisfy us that they are managing those incidents in accordance with their obligations and we monitor those things very closely and we also utilise     we've been incredibly well supported through intelligence that has come to us which has enabled us to take a variety of actions around suboptimal practice through the intelligence that's come to us through advocates and other people in the community to enable us to work with providers where it's come to our attention that they are not meeting their obligations to adjust.

COMMISSIONER SACKVILLE:  On the basis of that answer, would I be correct in concluding that the Commission relies upon (a) complaints, (b) advocates who may complain or bring matters to your attention, or self reporting?  Are they the mechanisms by which breaches by service providers come to your attention?

MS TAYLOR:  They are some of the ways, yes.  We also get information through, for example, in the context of the pandemic, through public health authorities who may raise with us issues about providers' readiness to respond, if they have contact with a provider around the manner in which they're meeting their obligations around things like infection control.  So there are a number of sources for us, yes.  We also satisfy ourselves through other means such as processes around the registration of providers about their readiness under the practice standards and to be prepared for some of the basic things, which serve     clearly have served many providers well around how they assess risk, how they make sure that the response     the rights and their responsibilities for participants are being met and how they manage and govern their organisations and their staff to deliver services in an appropriate way, so that none of those mechanisms that are part of the framework and the powers under the NDIS Act have altered through this period.

COMMISSIONER SACKVILLE:  Would I be right in inferring from your evidence that, essentially, your procedures and practices during the time of the coronavirus pandemic have not materially changed since pre coronavirus?

MS TAYLOR:  That is correct.

COMMISSIONER SACKVILLE:  Aren't we living in a world that is fundamentally different, March to August 2020, than pre March 2020 as far as people with disability living in supported accommodation is concerned?

MS TAYLOR:  We are all living in a very different world, that is true.  I might just reflect, if you wouldn't mind    

COMMISSIONER SACKVILLE:  You go ahead.

MS TAYLOR:  Thank you.

 
COMMISSIONER BENNETT:  Just to add to that, I'm just a bit confused in answering the Chair's questions.  In your submission on page 14, you talk about changes that you've made to the organisation in paragraph 54, of teams that you've set up, how you've given effect to 13 and 13(a).  It does sound like you've made changes rather than it just being business as usual?

MS TAYLOR:  Yes, that's certainly the case.  We have put in place a number of things to allow us to focus within the context of the Commission's powers a response that is relevant to the circumstance of COVID 19 and so I'll take complaints as an example, where we recognised at the very start of this that there were going to be issues that would face people with disability which would be     which would have a significant layer of added complexity in the context of pandemic over and above     over and above what might ordinarily be an issue.  And so we established, or I established, an expert team of our most experienced complaints officers to deal with those matters so that we had a consistent approach to those and grew our understanding about what people were experiencing so we could respond accordingly, either with guidance or with compliance responses.

So, that is correct, we did put in place a number of things and I've referred to the additional notice provisions that we put in place also so that we would understand what was happening in the market and if I can make reference to the previous questions that reflected on our reliance on self reporting, I think I can say with some confidence that providers are often not hesitant to tell the regulator about adverse effects and issues that are affecting their ability to do things.

They're often very willing to do so and I think that they have done that throughout this period and that's been     enabled us to really understand what's happening in the NDIS market as a whole and to respond with increasing clarity over what was a very unclear period about what we thought providers should or shouldn't do.  For example, we put out some guidance about what we had done in response to a couple of compliance events to tell providers what we considered to be optimal and suboptimal practice and what alternative approaches would be taken.

MR HEAD:  May I make a very short contribution?

COMMISSIONER SACKVILLE:  Yes, you can.  Just let me ask one other question.  You said “often” in the course of that answer, it has not been universally true, has it, that service providers have acted in accordance with their responsibilities to notify of adverse events?

MS TAYLOR:  No.  We've certainly had a significant rate of reporting on those adverse events.  I think I would reflect, as I have done in my statement, that when we're talking about the NDIS marketplace we are talking about a very diverse range of providers that go from supports that relate to accommodation supports and very complex and intimate interactions with people with disability, all the way through to the provision of very basic product.

 
Now, it is not the case that either across the nation or across the spectrum of services that there has been a universal need for change in the NDIS as a result of COVID.  Some services and supports have been able to be continued without alteration and, indeed, as we've seen various COVID experiences across the country, some services have been able to resume or continue to operate as they would normally.

So there has been a great deal of variation over the course of these last few months and so I think we have a very representative view of what's taken, what's been going on across the NDIS through those notice provisions.

COMMISSIONER SACKVILLE:  Thank you, Ms Taylor, for that.  I think, Mr Head, I cut you off twice.  So third time lucky, please do say what you wanted to say.

MR HEAD:  Thank you, Commissioner.  Just briefly, when you ask about whether or not things had changed, what I understood Ms Taylor to be referring to is that the features of our regulatory toolkit, if you like, are the same as what they were pre pandemic.  We have utilised those in ways that have responded to the very significant changes that the pandemic has created for all of us.  So, for instance, the way we've used the ability under the rules to have providers notify us of certain events that are specific to the pandemic.  I think it is worth pointing out that for many providers, the form of the Commission's regulation is new to them.  So while South Australia and New South Wales had been regulated by us for about 19 months when the pandemic emerged, the other five jurisdictions that are under our jurisdiction now had been regulated by us for only about seven months, are still in the transition process.  So we were very concerned in looking at what we did to respond to the unique features of the pandemic to avoid adding extra complexity and confusion for people, providers, who in many cases were not only dealing with a new regulator, but dealing with, I guess, a breadth of what is regulated that is quite different.  And for some jurisdictions, quality and safeguarding regulation had primarily been done through the features of funding agreements in old bloc funded arrangements.

So there is already a lot that providers are dealing with that is very new and certainly, we felt that by taking specific actions with the available new tools we would be able to focus properly on the COVID response without adding ad hoc new and novel approaches to what was already a complex process for providers.

COMMISSIONER SACKVILLE:  Thank you for that.  Ms Eastman?

MS EASTMAN:  Mr Head and Ms Taylor, there have been 76 deaths.  Let's presume if there'd been procedures in place, these may have been preventable deaths.  Does the fact that there are 76 deaths not cause you to reflect that perhaps the processes that have been put in place have been inadequate?

MS TAYLOR:  There have not been 76 deaths, there have been eight    

MS EASTMAN:  My apologies eight deaths and 76 infections, my apologies.  That itself tells you something is not working, does it not?
 

MS TAYLOR:  Can I clarify?  These infections are from participants who reside in a range of settings, including their own homes, living independently in the community.  And in Victoria, as we know, we have a community transmission crisis, so it's     I would say it does not follow that every one of those infections is the result of a failure on a provider or a failing of the system.  These are, you know, people are living in the community and they have exposure.  Certainly we're interested and work very closely with providers where there are infections that relate to settings that they have responsibility over and we follow up with them on a very regular basis to understand what it is that they're doing, make sure the connection is there with local health authorities and understand what they're doing to manage, avoid and put in place all the necessary steps to avoid any future     or further transmission, rather.

MS EASTMAN:  For each of the 76 infections and for each of the 124 infected support workers, has the Quality and Safeguards Commission undertaken a specific review of each and every case?

MS TAYLOR:  For each and every case, that's infection reported to us, we are in every second day contact with the providers that have reported those infections to us to confirm what it is that they are doing to make sure continuity of support is in place for participants, to understand what they are doing, to make sure that workers are not continuing to work, or whatever other actions are required.  So our team will work with those providers, work with local health authorities and the NDIA also with important outreach to participants to make sure they have the right level of support available to them to monitor those situations.

MS EASTMAN:  What I asked you is whether the Commission has done a review, not what supports, but have you reviewed?  Have you reviewed why did the infections occur?  Have you reviewed whether there was a particular breach in the infection control plans within the service provider?  Have you reviewed the effectiveness of the PPE?  Have you reviewed the extent to which support workers have been trained?  Have you reviewed all aspects of the service?  That's what I'm asking you.

MS TAYLOR:  Well, not for all of them no, because we've still got an active crisis in hand, but where we have got     where it is safe for our investigators to be going in and where it is appropriate for us to commence actions, we do have compliance activities underway to understand exactly those things that you just described in a number of     for a number of providers in Victoria.

MS EASTMAN:  How many investigations have been conducted in relation to the 76 participants, or the 124 support workers?  How many investigations have been commenced?

MS TAYLOR:  I understand we have     we've got a number of compliance activities that don't relate to infections which occurred in other jurisdictions around non compliance or overreach in terms of public health orders in relation to the very  
new infections that have arisen in Victoria where we have concerns about providers meeting and, you know, undertaking the correct procedures.  I understand we have currently three matters on hand where we have concerns.

MS EASTMAN:  Three?

MS TAYLOR:  Three.

MS EASTMAN:  So with respect to the 76 infected participants and the 124 support workers, there are three investigations?

MS TAYLOR:  That relate to multiple individuals within those numbers.  I can't tell you off the top of my head what number of infections of either workers or participants relate to those particular clusters, but it would not be realistic or in fact     well, can I say "reasonable" for us to investigate, for example, a private person living in their own home who has been infected with COVID 19 and is     has been reported to us by a provider as having had that infection in order for us and the NDIA to make sure that person has appropriate supports, for the regulator to ask how they acquired that illness if there's no, no recourse in terms of the provider actions on those matters.

So, for example, if a provider     a provider might report to us that a person that they are supporting in an in home setting has advised them that they wish to cancel services because they are in home isolation having been infected, it would not be appropriate or reasonable for us to investigate such a matter.  But it certainly is where we have concerns about where a provider may not have had in place the appropriate infection controls or appropriate engagement and response with the local health authorities to meet their obligations to us and principally to participants that they're supporting.

COMMISSIONER SACKVILLE:  How would you know whether the service provider had appropriate infection controls in place unless you investigated?

MS TAYLOR:  Well, we would if we had concerns and we would have concerns based on a couple of things. One, because we could see that there was    

COMMISSIONER SACKVILLE:  How about the infection of the resident?  That's a pretty good indication, isn't it?

MS TAYLOR:  Well, it is, depending on where the participant may have acquired the infection and that may have nothing to do with the provider whatsoever.  So our concern is principally where it is clear that there is some failing that has occurred that could be attributed to the actions of a provider that has caused a person to be exposed to COVID 19 and where they have not then subsequently taken the appropriate action to ensure that transmission did not occur subsequent to that to anyone else for whom    

 
COMMISSIONER SACKVILLE:  I must say, I'm still a little puzzled as to how you can ascertain that it had nothing to do with the service provider until you did an investigation as to how the infection was contracted?

MS TAYLOR:  Well, because we work closely     and if I give the example again of Victoria, because that's where the majority of infections have occurred, that of course there is contract tracing that happens after testing.  There are very intricate case management arrangements around concern locations in Victoria where we work very closely with the Department of Health and Human Services to ascertain whether or not there are issues that warrant consideration under the Commission's jurisdiction.  They are active and immediate responses where those concerns are raised.  So we don't rely on our own     of course, we have a sense of whether we think there are issues because of people telling us that there are multiple infections, for example, but we do work hand in glove with DHHS to understand the actual situation from people who are expert in infection control to tell us whether or not what they have observed in going into a particular location is suboptimal and warrants our particular consideration in terms of the providers' obligations.

COMMISSIONER SACKVILLE:  Yes, thank you.

MS EASTMAN:  Have any of the three investigations involved investigations of group homes?

MS TAYLOR:  They are residential setting compliance activities.

MS EASTMAN:  Are they all in Victoria?

MS TAYLOR:  Yes.

MS EASTMAN:  All right.  I'm just conscious of the time and so I just want to ask you a few short questions.

First of all, 7 February, the Commission issued a provider alert notifying service providers of the outbreak of a novel coronavirus; that's right, isn't it?

MS TAYLOR:  Yes.

MS EASTMAN:  And can we take it that by 7 February, that from the Commission, the Commission had a concern about what the implications might be of this novel virus for NDIS participants?

MS TAYLOR:  Yes.

MS EASTMAN:  And as at 7 February, the Commission appreciated that the issues with a virus of this kind would require a public health response?

MR HEAD:  Yes.
 

MS TAYLOR:  Yes.

MS EASTMAN:  To what extent did the Commission at that time, this is on or around 7 February, reach out to, or engage any public health specialists?

MR HEAD:  So the Commission didn't engage public health specialists in respect of this matter.  We were never, in the early days of assessing how we would manage this, intending to set up a separate internal line of public health advice.  While I'm not a public health expert, I     as my previous witness statement spelled out     was both a nurse working with immunocompromised people in a former career and worked extensively in health promotion on a major pandemic, the HIV pandemic in the 80s, so there is expertise within the organisation, general expertise about how public health responses typically operate and our early approach     and this has been our approach all the way through     was to ensure that we interacted with Commonwealth Health in respect of those things that we needed to incorporate in our guidance to providers that relate to health issues and importantly     and this goes to underscore a point Ms Taylor made in response to the Chair's question     we have always been completely consistent with providers about the need for them to comply with public health directions issued by the Chief Health Officer or equivalent in their States or Territories, so we are not the authors of public health advice, but we incorporate that advice into the work that we perform.

MS EASTMAN:  So the provider alert on 7 February gave links to the Australian Government's Department of Health with respect to any information, and I assume that was a reference to the service providers to look up for themselves what the health information might be; is that right?

MR HEAD:  So, yes, and that approach has been a fairly typical approach where we're pointing people to health advice.  My decision on 7 February, again, remembering that many of these providers were relatively new in our jurisdiction was to say early on, "We are aware of this, you will be receiving information from us, this is the early, I guess, indication of what we know" and we pointed people, I think in that first alert, to Health's website.

MS EASTMAN:  And was that because at that point in time, the Commission thought it didn't need to do anything, it was sufficient to rely on the Department of Health to deal with the public health response; is that right?

MR HEAD:  Well, my view at the time was that Health would be leading the Health response and that I should be clear with providers that they would be hearing from us and that we would reflect the public health advice to the extent appropriate or necessary in the material that we've released and we've released regularly short, sharp, fairly simple alerts for providers, all of which, when it needs to comment on public health issues, provides links to relevant information that's produced either by Commonwealth Health or sometimes refers to specific things that are in place in States and Territories.
 

MS EASTMAN:  You've heard the evidence this morning that the initial emergency plan, the health plan, didn't include people with disabilities.  You've heard that evidence this morning?

MR HEAD:  Yes.

MS EASTMAN:  And we've heard evidence that the Commission was not consulted on such matters as the guidelines for residential facilities?

MS TAYLOR:  Yes.

MS EASTMAN:  I think, Ms Taylor, you've said that.  And after the 7 February provider alert, you did not issue another alert until 9 March; that's correct, isn't it?

MR HEAD:  That's correct.

MS EASTMAN:  And by 9 March you would have been aware of the issuing of the health plan and also that you didn't know at that stage that the guidelines were about to come out for residential facilities; is that right?

MS TAYLOR:  No, we weren't aware.

MR HEAD:  That's right.

MS EASTMAN:  Well, given that you were putting a lot of faith in the Department of Health to provide the health response, there didn't seem to be much communication between the Commission and the Department of Health at this critical period of time from February through to mid March; would you agree with that?

MS TAYLOR:  Not with us directly, no, but with Department of State, Department of State within the Social Services portfolio there were interactions that I'm broadly aware of that were happening between the Department of Social Services and the Department of Health.

MS EASTMAN:  Ms Taylor, you say in your statement that you had a conversation with Professor Trollor on or around 19 March, is that right?

MS TAYLOR:  Yes.  Yes.

MS EASTMAN:  Was that for the purpose of obtaining health advice?

MS TAYLOR:  That was for the purpose of     well, Professor Trollor had done a very powerful piece of work for the Commission quite recently in terms of the scoping review around avoidable deaths so we knew that, apart from his broader reputation around these matters, that if we wanted to draw attention to the issues that  
might face people with disability in their interaction with the health system during the pandemic that he would be well placed, together with his network, to assist us in promoting the issues through to the Department of Health.  So, yes, I had a conversation.

MS EASTMAN:  Was it through him that you became aware that there may be plans to develop a disability specific health response?

MS TAYLOR:  No, no.  There were conversations going on through the period of March where we were concerned that people with disability and disability issues generally were not at the fore in planning around response for COVID 19, so I was aware of a number of conversations and there were several discussions between officials about the need to elevate that so that matters such as available, good resources for the sector to understand the interaction between disability support and health care would be available, so that communication for people with disability was targeted to meet their communication needs and to give them the very particular messages around keeping safe in COVID that we were hearing that they would need.

MS EASTMAN:  Mr Cotterell said this morning that these matters really didn't come to his attention until 26 March and then there were two meetings on 27 and 30 March, which appear to be where there may have been some involvement with your Commission; do you agree with that account?

MS TAYLOR:  Well, I did make     and I've included in my statement, that I did make reference at the very beginning of March in two forums that were held on a day convened by the Chief Medical Officer about the need, both in a primary health forum and in an aged care forum, that I was invited to on behalf of representing the Commissioner, presumably to evaluate the issues or to give some credence to the fact that there was a need to pay attention to the issues for people with disability; that that was an important thing to take account of in the preliminary planning around the response to the pandemic.  So I think those issues were surfaced and generally acknowledged in those rooms and we continued    

MS EASTMAN:  But not surfaced until 27 March?

MS TAYLOR:  We continued to raise those issues through our networks within the Department of Social Services    

MS EASTMAN:  Sorry, Ms Taylor, I'm just asking, do you agree with me, not raised until 27 March?

MS MORGAN:  Can I interrupt and object to that question, Commissioner?

COMMISSIONER SACKVILLE:  What is the objection?

MS MORGAN:  Ms Eastman is asking Ms Taylor about Mr Cotterell's evidence and what Mr Cotterell's evidence represents.  I'm not sure that's a question Ms Taylor can  
answer.  She can give evidence of her own recollections and her own involvement, but not whether or not Mr Cotterell's evidence represents    

MS EASTMAN:  All right.  I'm happy to do it the long way, I was trying to do it quickly.  Mr Cotterell says these issues didn't come to his attention until 26 March.  You do not know whether that's correct, do you?

MS TAYLOR:  No, I     no, I don't know.  I don't know Mr Cotterell very well at all.

MS EASTMAN:  All right.  Then he says that there were stakeholder meetings on 27 and 31 March and he says that included your Commission; do you agree with that?

MS TAYLOR:  Yes.

MS EASTMAN:  So you participated in stakeholder meetings on 27 and on 31 March, is that right?

MS TAYLOR:  I recall participating in some early planning conversations with external stakeholders around that time.

MS EASTMAN:  And 27 March was the first time in which you've been involved in a stakeholder meeting that had a specific focus on the health response for people with disability; is that right?

MS TAYLOR:  Yes, I would say so, with that specific focus.

MS EASTMAN:  Thank you.  Now can I ask you, with respect to the two documents which you've addressed in your evidence and wanted to fix the exhibits, one was the "Coronavirus COVID 19 information for providers on the use of personal protective equipment" and that was originally issued in March and then updated in July.  When this was issued in March, was this issued before you had the first stakeholder meeting on 27 March?

MS TAYLOR:  You don't mind if I just check the dates?

MS EASTMAN:  Of course.

MS TAYLOR:  We've issued quite a lot of material and I can't recall precisely which dates those things were issued on.

MS EASTMAN:  I'll pull it up.  It's tender bundle C, tab 128 and it's CTD    

MS TAYLOR:  Yes, 24 March.

MS EASTMAN:  So this was issued before any direct consultation with the Department of Health about people with disability in particular, is that right?

 
MS TAYLOR:  So this fact sheet was worked through between ourselves, the Department of Social Services, who negotiated with the Department of Health to give us information so that we could issue a directive that was reflective of what was in the general community around access to PPE.

MS EASTMAN:  All right, and then this document's been updated as at July and is this the current advice to service providers on the use of PPE?  Is that right?

MS TAYLOR:  Yes, the July version is the current advice.

MS EASTMAN:  All right.  The other document is the "Coronavirus outbreak preparedness, prevention and management" document.  Do you know the date when this was first issued?

MS TAYLOR:  The outbreak material was issued in May initially.

MS EASTMAN:  We dealt with this a little earlier in paragraph 37 of your statement and it says an updated version published on 13 May.  So this is what I wanted to check with you.  Is that about right?

MS TAYLOR:  Yes, that's about right.  Yes, that would be correct.

MS EASTMAN:  With respect to this document which is behind tab 157 and tender bundle C, this document came about after your involvement on the Advisory Committee, is that right?

MS TAYLOR:  Well, yes, but I have to say, I just want to clarify, separate to my participation on that committee.  So whilst I was participating at the same time, this was a separate matter.

MS EASTMAN:  Well, that's my question.  Is the genesis of this document, "Outbreak preparedness, prevention management", is this a direct result of your involvement on the Advisory Committee and the development of the MOP?

MS TAYLOR:  Not only, no.  There were the CDNA guidelines and I think as I've said in my statement, whilst they did indicate that they were relevant     well, that they were intended for application in residential facilities that included disability facilities, we sought agreement to some amendments to those guidelines, because they did not reflect the very particular nature of disability accommodation and the smaller scale and configuration of the types of accommodation services that have traditionally been in place in disability, and so    

MS EASTMAN:  Is this why you say that you encourage providers to review those guidelines rather than require providers to adopt the guidelines?

MS TAYLOR:  Yes, that's right, because there were elements of     I think there are elements of those guidelines that were applicable.  There were certainly areas of  
those guidelines that could be quite successfully modified.  In fact, I am aware of some providers who did, of course, use, refer and use those guidelines to form their own plans.  But we were very conscious of the need to have some guidance which was very specific to disability settings.  You mentioned earlier in the day, I think, that whether or not things like people having their own bathrooms, et cetera, was possible and it's not in most disability settings.  So we were really conscious of the need to have some kind of modification.

The Management and Operational Plan contemplates the need for adjustment to existing guidelines to be more applicable in disability settings, including specifically the CDNA guidelines.  So the Commission worked     I did provide a view     in fact, I personally provided advice about what modifications should be contemplated to make those guidelines more applicable.  As I've said in my statement, the advice informally was that the CDNA did not think that that was necessary and so we worked to develop our own guidance, which we then validated with the Department to make sure that it was in line with the guidance more generally from the Chief Medical Officer and I've been more recently approached to finalise  a     contribute to the finalisation of a set of guidelines that will be applicable.

MS EASTMAN:  All right.  But, Ms Taylor, this is sounding like you now having to pick up health issues in how the providers interpret some of the health guidelines; do you accept that?

MS TAYLOR:  No, because I think the focus of our outbreak guidelines was very much about how you'd modify the way in which you provided disability supports in that context including making sure that there were things such as I described before, about making contact and being aware about how to engage with local health authorities.  So it was really focusing from the perspective of what a disability provider would need to know and where there was clinical guidance included in that, replicating what was already available from the Department of Health.

MS EASTMAN:  Don't both the NDIS participants and the NDIS service providers need to know relevant information in one place, not having to dart between guidelines you release and then dart to whatever the latest State and Territory or Commonwealth Health advice is, and while they're dealing with a pandemic, having to work out from all of these multiple sources, what do they do.  Can I put to you that is    

MS TAYLOR:  I agree.

COMMISSIONER SACKVILLE:  Please, let Ms Eastman finish the question and then you may respond.

MS EASTMAN:  I want to put to you that that is an unreasonable burden on both participants and service providers and it highlights a significant breakdown in the functioning of the Commonwealth Government in providing in one place clear, concise, accurate and reliable information to the sector; would you agree with that?
 

MS TAYLOR:  No, I wouldn't agree with that.  We issued these guidelines and a range of other material, because the people that we were engaging with, both from representative bodies of participants and providers, were looking to us to consolidate information for them in a way that would be easily and simply accessible, which is what the approach we have taken since the beginning and if that involves in some situations pointing to Health where it's most appropriate, because we are     it would be inappropriate for the Commission to give health advice then that's what we've done, and where we've needed to give them the advice to interpret some of those aspects and apply them in the context of their obligations that is what we've done, and those outbreak guidelines were designed to do that and can I say, were very well received by the people in the sector, providers who are registered by us who rely on information principally coming from the Commission.

MS EASTMAN:  So your view is that the document, now the August version of it, is a document that is comprehensive, reliable, accurate and can be a one stop shop for both providers and participants; is that right?

MS MORGAN:  Commissioner, I object to that question, that was not what the witness said.

COMMISSIONER SACKVILLE:  That's all right.  The witness can respond.  Please put the question again.

MS TAYLOR:  I'm happy to respond.  What we did do was incorporate that.  We did recognise the fact that there was a multitude of information that we were pushing out and that we needed to consolidate that, both for providers and for participants so that there was one place where they got the information that was relevant to them from us and they were pointed to relevant locations within the Department of Health for health information and that's why we prepared the provider and participant packs which consolidates into one place in a form that's readily accessible all the information that it was the responsibility of the Commission to issue to providers that we register and, indeed, to give to participants and again, as I said earlier in my correction, one of the things we did was make sure that particularly the participant information was fit for purpose by consulting on it before we released it and getting advice about what would resonate and be of most use to participants.

MS EASTMAN:  Thank you, Commissioner, I have no further questions.  Can I ask you to     and I apologise, I omitted to do this     mark Ms Taylor's statement 5.48?

COMMISSIONER SACKVILLE:  Yes.

EXHIBIT #5.48, STATEMENT OF MS TAYLOR

MS EASTMAN:  Unless the Commissioners have any further questions.
 

QUESTIONS BY THE COMMISSION

COMMISSIONER SACKVILLE:  Commissioner Bennett?

COMMISSIONER BENNETT:  Just very quickly, I just wanted to confirm, Mr Head, you attended meetings on 6 March led by the Chief Medical Officer and you raised the issues of people with disability both in residential and at home settings, and yet    

MR HEAD:  No, Ms Taylor attended on my behalf those meetings and she spoke to those meetings earlier on in her evidence.

COMMISSIONER BENNETT:  Right, okay.  Thank you.  Ms Taylor, then, when you talked about the changes that you've made and how you stood up a COVID response, were there additional resources to the Commission to be able to respond to the pandemic?  Did you put on extra staff, or bring in expertise?

MR HEAD:  So I'm happy to respond to that, if that would assist.  So we have received budget enhancement to assist with COVID.  Ms Taylor can talk about the way she's configured staffing resources, but we're continuing to bring on additional resources at present, including but not limited to, responding to COVID 19.

MS TAYLOR:  And if I can add    

COMMISSIONER BENNETT:  And those budget enhancements came from, I assume, the Commonwealth Government in its package, so Department of Health might have got something as well in what was a whole-of-government approach?

MR HEAD:  I can't comment on other departments, but the Commission has received a specific COVID 19 enhancement that was included in announcements several weeks ago and that is to assist us specifically in the response to the pandemic.

COMMISSIONER BENNETT:  And is that amount publicly available yet?

MR HEAD:  I believe so, but I might check, if that's okay.

COMMISSIONER BENNETT:  And could you provide how much extra you received from the government to your organisation to manage this?

MR HEAD:  Our response over two financial years announced recently is $6.2 million.

COMMISSIONER BENNETT:  6.2 million to carry you till until June 30, 2021?

 
MR HEAD:  That's until June next year and it's roughly 6.2 million, I can't give you the exact figure off the top of my head, but that's for the period till June 30, 2021 and is specific to COVID 19.

COMMISSIONER SACKVILLE:  Thank you very much.  Commissioner Galbally, do you have any questions?

COMMISSIONER GALBALLY:  No questions, thanks.

COMMISSIONER SACKVILLE:  Thank you.

Just one more question.  Do you have any information available that would enable you to make a judgment as to whether any of the eight deaths were avoidable had proper precautions been taken?

MS TAYLOR:  We have no concerns apart from the fact that people have died, of course.  Deep concerns about that, but no concerns in relation to the provider activity around those particular    

COMMISSIONER SACKVILLE:  No, I asked whether you had any information that would enable you to make a judgment about whether any of the deaths were avoidable?

MR HEAD:  Chair, if I might come in there, you might     well, I wouldn't expect anyone to recall this specifically, but when I gave evidence in the Health hearings in February, I talked about adjustments that we were making in respect of data that we would collect on deaths notified to the Commission to allow me to review deaths that are notified to us periodically.  Those new arrangements in terms of what we capture commenced on 1 July, so deaths reported to us from 1 July now capture extra information which would allow us to review things down the track and that will also apply to Western Australia when they transition into the scheme from 1 December this year.  So as yet it's not national, but it will be later this year.

COMMISSIONER SACKVILLE:  Yes, thank you very much.  Ms Eastman?

MS EASTMAN:  No, that concludes the evidence, Commissioner.

COMMISSIONER SACKVILLE:  Mr Head and Ms Taylor, thank you very much for giving your evidence today and for your detailed statements.  Thank you for your assistance to the Royal Commission.

THE WITNESSES WITHDREW

MS EASTMAN:  Commissioner, can I tender a witness statement of Martin Hoffman, the Chief Executive Officer of the National Disability Insurance Agency?
 

COMMISSIONER SACKVILLE:  Yes.

MS EASTMAN:  You'll find a copy behind tender bundle part C, tab 4.  If you could mark that statement as exhibit 5.45?

COMMISSIONER SACKVILLE:  Yes.

EXHIBIT #5.45, STATEMENT OF MR MARTIN HOFFMAN

MS EASTMAN:  Commissioners, can I suggest a short adjournment, say of five minutes?  Our final witness is a pre recorded evidence, where the witness will read her own statement.  But I've got another statement that I need to tender, where we will not have time this afternoon, unfortunately, to show that witness's pre recorded evidence either, but I'll give a description of that evidence.

COMMISSIONER SACKVILLE:  And how long will the pre recording take?

MS EASTMAN:  21 minutes.

COMMISSIONER SACKVILLE:  Thank you, and then there'll be brief closing remarks from Dr Mellifont and from myself, as well.

MS EASTMAN:  I understand Dr Mellifont's closing remarks is to deal with administrative matters only, not dealing with any issues of substance.  I had asked Dr Mellifont to attend to any residual tenders, but perhaps we can deal with that in Chambers.

COMMISSIONER SACKVILLE:  Yes.  All right.  Well, we'll resume, let's us say, in another six minutes.

MS EASTMAN:  Thank you.

ADJOURNED    [3.45 PM]

RESUMED    [3.51 PM]

COMMISSIONER SACKVILLE: Yes, Ms Eastman.

MS EASTMAN:  Commissioners, there's two final witnesses.  The first is Kalena Bos from Tasmania, who has provided the Royal Commission with a statement which you'll find behind tab 41 in volume A and I ask you to mark that as exhibit  
5.16.

EXHIBIT #5.16, STATEMENT OF KALENA BOS

MS EASTMAN:  Now, Ms Bos very kindly gave the Commission time to pre record part of her evidence, which I regret we have run out of time to do.  But I certainly would encourage anyone following these proceedings, when the exhibits are available on the website, to see Ms Bos's evidence.  She speaks of     she's a person with intellectual disability and she speaks in her evidence about the difficulty of getting clear information about the rules, particularly during the harder lockdown in Burnie in mid April and that involved some interaction with the Tasmanian Police, which caused her a great deal of distress and anxiety.

So I thank Ms Bos for giving us the time and I regret we can't play the pre record, but it should be marked as part of the exhibits as 5.16.1 to 5.16.3.

EXHIBIT #5.16.1 THROUGH TO 5.16.3, EXHIBITS TO MS BOS'S PRE RECORDED EVIDENCE

COMMISSIONER SACKVILLE:  Just to be clear, that will be going up as part of the record of the Royal Commission's proceedings on the website?

MS EASTMAN:  It certainly will.  The final witness is Dr Kirsten Harley and Dr Harley has provided a statement to the Royal Commission dated 30 July.  You'll find a copy of the statement in tender bundle part A, at tab 35 and I ask you, Commissioners, to receive into evidence her statement and mark it exhibit 5.14.

EXHIBIT #5.14, STATEMENT OF KIRSTEN HARLEY

MS EASTMAN:  And Dr Harley has pre recorded her evidence, but she will read her statement for the Royal Commission and the pre record should also be included as part of the exhibits to her statement if they could be marked 5.14.1 to 5.14.4.

EXHIBIT #5.14.1 THROUGH TO 5.14.4, EXHIBITS TO STATEMENT OF DR KIRSTEN HARLEY

MS EASTMAN:  They are included in tabs 36 to 39 of tender bundle A.  So I just ask Dr Harley's pre recorded evidence to be played.

 
COMMISSIONER SACKVILLE:  Yes, thank you.

VIDEO OF DR KIRSTEN HARLEY BEGINS

DR KIRSTEN HARLEY:  I am currently an honorary lecturer in the Faculty of Medicine and Health at the University of Sydney. I have been in this role since 2014.  I have been a board member of MND New South Wales since 2013.  I hold a PhD in Sociology and a Bachelor of Science from the University of Sydney and a Bachelor of Arts with Honours from the University of New England.  I worked as a lecturer in the Faculty of Health Sciences at the University of Sydney before my medical retirement in 2014.

Briefly, my background.  I am a 51 year old woman who was diagnosed with Motor Neuron Disease, or MND, also called Amyotrophic Lateral Sclerosis or ALS, in 2013.  I am now unable to move or speak and have been on a ventilator since I had a tracheotomy and laryngectomy in 2018.  I live with my husband, Densil, and our 14 year old daughter Kimi and have a team of support workers providing round the clock care.

My experience during the COVID 19 pandemic.  While the pandemic has been difficult for everyone and especially people with disabilities, some aspects of my personal situation have ameliorated its impact.  One, my husband and daughter are both loving, supportive, competent and resilient.  We live in a family owned house.  Two, my husband has been able to work from home as an academic and I receive a Total and Permanent Disability pension, so the pandemic hasn't had a major financial impact.  Three, we have had time to adjust to my MND and to my tracheostomy, or "trachie".  I consider the daunting situation for those newly diagnosed in my ABC article.  Four, I have reasonable broadband and appropriate communications technology, which is crucial for those with MND or other disabilities affecting their capacity to speak or write.  Five, to date, I have not needed emergency hospitalisation this year, and my carers and family have not knowingly come into contact with the virus.  Six, living with MND and my extended stay in ICU after life saving surgery have given me perspective that equip us for lockdown.  I wrote about the experience of MND and what led to my hospitalisation in my blog post titled, "On deciding to keep living with MND: A triptych" dated 2 December 2018.  I discuss what I learned from my hospital stay in my article titled "Coronavirus lockdown helps keep space in ICU for chronically ill people like me", which was published on ABC News on 17 May 2020.

My formal support.  I have a team of 10 support workers who are specifically trained in my care and supervised by a community nurse.  They're rostered on four shifts per day which overlaps morning and evening for transfers and personal care.  If a carer can't work their regular shift, others in the team are expected to step in, sometimes working double shifts.  They are employed as casuals and most have other clients or jobs, plus in some cases, additional study or family caring responsibilities.  The carer  
agency has sent several generic emails about COVID 19.  They repeated a link to useful government information and stressed: a primary concern for the safety of clients and staff, that the format of service provision may need to change at the instigation of the client or agency and, that clients must contact the agency immediately and seek medical advice if unwell.  There has been no formal change to my service, except that my GP instituted mask wearing.

Changes to the lives of my carers, including risk of exposure and personal challenges, has varied.  For example, one had been planning to travel overseas for a family wedding, but it was postponed.  Another's spouse remains overseas.  Some continued working with their other clients, but some lost their other work.  One who was initially catching public transport to classes transitioned to study from home, and one has continued their long bus and train commute to work.  In effect, our household contains 13 people, 10 of whom spent time in at least one other household and some travel to other workplaces and interact with other families and carers.  This continued even when social distancing restrictions were at their strictest.

If any of these people were infected, there is a higher risk of it spreading to others, including me.  Three of my carers have taken unpaid time off and been tested at the first sign of mild symptoms.  Some others have assured me that their sniffs and throat clearing are a result of hay fever or sinus issues.  I have to hope they are right.  The old mentality of soldiering on and not letting colleagues or clients down is structurally supported by both the limited supply of carers and their casual work conditions without paid sick leave     see my ABC article.

It is easy to envisage a carer altruistically ignoring a sniffle and attending work so their co workers won't have to cover for them, and regardless of casual loading, the prospect of going without regular income is a significant and dangerous barrier to casual carers being tested or self isolating.

Now I describe our informal supports.  Before the COVID 19 pandemic, a small crew of close friends regularly visited, bringing news of their worlds, a chance to discuss current affairs and a chance of social connection.  An old university friend would draw me, a former colleague brought meals.  I'd do cryptic crosswords with my sister and sister in law and discuss parenting teens with a mother’s group friend.  My other sister in law would chat, and attract her father for mutually therapeutic socialising, while other friends came on weekends and thus also supported Densil.  We also had several extended family gatherings, visits by my mum and sister from Victoria and perhaps another 30 friends had dropped in at least once in the six months since I'd come home out of hospital.

Supplementing this face to face contact is an extensive online support and friendship group on Facebook, via text messages, email and Twitter.  This includes longstanding friends, as well as people in the MND/ALS/disability community, many of whom I have only known online, but have real friendships with.  My sister in Melbourne had a baby in December and has been sharing videos with the family and FaceTiming.
 

In the weeks before formal COVID 19 restrictions were put in place my regular visitors either suggested that, or asked whether, they should stop visiting.  Several had particular reasons for caution.  My sister in law was working as a doctor in a respiratory clinic, while others had a long train commute and health vulnerabilities.  We ended up stopping non essential visitors before lockdown commenced.  This was difficult, but eased by online support and the uplifting presence of Densil and Kimi at home.  My mum, sisters and I started a weekly FaceTime session so they could chat and I could listen as we all watched my growing niece.  This has been a really lovely way of connecting with family, which we are likely to continue when and if life returns to normal.

In early June, my sister started planning a family trip to Sydney intending to adopt safeguards such as precautionary testing.  I was very excited about seeing them and really looking forward to meeting my niece.  Sadly, resumption of community spread in Melbourne and early discouraging messages from the New South Wales Premier meant she had to postpone the trip.

For health care, I am fortunate that my wonderful GP and neurologist have been managing my care via a combination of emails and home visits.  During the pandemic, my GP stopped her regular visits, but offered to come if I needed to be seen.  My main concern is what would happen if I needed treatment and hospital resources were stretched.  Or, as occurred early on, reserved for the expected onslaught of COVID 19 patients.  What would have happened if my November 2018 episode of pneumonia and carbon dioxide narcosis happened to me or someone else with MND in the midst of the pandemic?  Could our lives have been saved?  If I was diagnosed with COVID 19, would I have the care needed to deal with my disability on top of treatment for the virus?

Now I turn to my fortunate experience of school and parenting.  I am super proud of Kimi's approach to this year, the infamous Year 9.  After spending much of Year 8 with her mum in hospital, then having her quiet family home invaded by carers, she decided to take on a busy, fun extracurricular schedule; school debating, international band tour, Gang Show, leading a Guide patrol and ScoutHike, entering the Easter Show art competition, plus three school bands, saxophone lessons, school sport and weekly Guides.

Now I turn to my fortunate experience of school and parenting.  I am super proud of Kimi's approach to this year, the infamous Year 9.  After spending much of Year 8 with her mum in hospital, then having her quiet family home invaded by carers, she decided to take on a busy, fun, extracurricular schedule, school debating, international band tour, Gang Show, leading a Guide patrol and Scout hike, entering the Easter Show art competition, plus three school bands, saxophone lessons, school sport and weekly Guides.

As the pandemic started becoming a thing, she was dreadfully disappointed as one by one these activities were cancelled.  I wished I could hug her.  Guides instituted  
Zoom meetings, which became an important opportunity for peer support.  She made parenting a high school kid through home schooling easy and her school, Turramurra High, was fantastic.  The school provided regular messages to families, promptly conveyed Department of Education guidance, plus careful, reassuring information about the work they were doing, the specifics of implementation and additional resources available.  Kimi's teachers worked hard to transition through several teaching formats and technologies and makes classes as engaging as possible.

The State Government transition back to face to face classes seemed sensible until suddenly there was only a few days' notice between attending one day per week and full time.  I presume this was intended to help the economy ‘snap back’, but it felt rushed and risky.  Several COVID 19 cases in schools in the following weeks didn't help allay this impression.

Next, my emotional and social wellbeing.  Even though my MND diagnosis means I have had to come to terms with the prospect of dying, I have, like most people, found the pandemic frightening.  My main fears have concerned the possibility of a loved one becoming seriously ill; the threat to health care and other essential workers and systems; the plight of university colleagues; what would happen if a carer, Densil, Kimi or I became sick and what would happen if I had to compete for ICU care?  My main coping strategies have included appreciating being at home with my beautiful family, balancing quality COVID 19 related media with entertainment, participating in an MND fundraiser, which involved Dancing with My Face, connecting with family and friends online, and writing.

For example, I co authored an article titled "Living with Motor Neurone Disease: An Insider's Sociological Perspective" with my former colleague Karen Willis, which was published in Health Sociology Review on 9 July 2020.  The article refers to how sociology has helped me through the process of having MND.  It doesn't focus on COVID 19 in particular, except for the conclusion, but there are parallels such as the relevance of the new normal and issues of structural inequality.

In showing how sociology has helped me, it might also be evidence in an argument for the benefits of supporting education opportunities for people with disabilities.

Now, my experience with PPE and other supplies.  My carer agency provides personal protective equipment, or PPE, including gloves, aprons, shoe covers, plus hand wash and delightful single ply toilet paper supply for carers.  Our pre COVID 19 stockpile meant we were well prepared for #toiletpapergate.

Early in the pandemic, the agency advised that they did not supply masks and reiterated the government advice.  When my GP said carers and anyone else with me should wear a mask, I asked my community nurse and she said she would source some, but without success.

The sites I had bought consumables from had none.  I posted on Facebook and some local friends made and dropped around cloth masks, while others suggested websites  
which had some for sale.  I bought the cheapest of these which were $150 for 50 from a pharmacy site, while Densil bought some from Chinese eBay sites for half the price.  I recently had to restock and found $50 boxes on the AMA store, the Paraquad/BrightSky site, which many people with disabilities rely upon for consumables, advertised masks for between $280 and $325 per box.

There have been disruptions, delays and shortages to some items we normally use, including other PPE, disinfectant, hand sanitiser and paper towels, as well as some less obviously related to COVID 19, such as Sorbolene moisturiser for skin care and Gaviscon to protect my oesophagus.  We weren't eligible for the supermarket time slot reserved for the elderly and disabled as I don't receive a Commonwealth pension.  In any case, it would not have been possible, practical, helpful or safe to have me in the aisles with crowds of early morning shoppers.  I did gratefully make use of the priority home delivery service using a code provided by the National Disability Insurance Agency.

My final theme is information and messaging.  I have received most of my information about the pandemic and its handling via the ABC, including the excellent Coronacast Podcast, the Health Report, radio, TV and online news, The Drum, 7.30, Q&A, Four Corners, Insiders, etcetera, and by following news alerts on my phone, the Conversation, articles and podcasts recommended by health friends and government and health websites.

I don't envy the difficult job of those making the decisions and communicating with the public and appreciate the hard work and cooperation involved.  While there have been some serious errors in implementation and messaging, overall I have been impressed with Australia's handling of this emergency.

I have a couple of observations from the perspective of someone with disabilities.  Firstly, I was surprised to discover a couple of months ago that the message about hand washing taking 20 seconds hadn't got through to a former experienced carer.  This makes me wonder if the "wash your hands" and "wear a mask" messages still need to be supplemented with clear and engaging directions.

My other observation concerns the way in which messaging is implicitly addressed to the able bodied.  For instance, what are we to make of the message to keep physical distance when this is impossible, and while I appreciate the importance of imploring healthy young people to follow rules to protect elderly and unhealthy loved ones, this can feel marginalising, strongly compounded by some of the early statements internationally that those at risk were going to die anyway.

Again, thank you very much for listening.  I really appreciate the efforts of everyone who is enduring lockdown and who is working to improve the lives of people with disabilities during and beyond this pandemic.

VIDEO OF DR KIRSTEN HARLEY CONCLUDES
 

COMMISSIONER SACKVILLE:  Yes, thank you, Ms Eastman.

MS EASTMAN:  We thank Dr Harley for taking the time to pre record her evidence and that concludes the evidence for this public hearing.

COMMISSIONER SACKVILLE:  Thank you very much.  Dr Mellifont, do you have some closing remarks to make?

CLOSING SUBMISSIONS BY DR MELLIFONT QC

DR MELLIFONT:  Yes, a short supplementary tender and a short closing remark.  The balance of the tenders to be dealt with administratively.  I tender bundle F, tabs 1 through to 163 to be marked as 5.72 to 5.237.

EXHIBIT #5.72 THROUGH TO 5.237, BUNDLE F, TABS 1 THROUGH 163

DR MELLIFONT:  I tender the chronology prepared by the DRC as tender bundle F, tab 81 to be 5.237.

EXHIBIT #5.237, CHRONOLOGY PREPARED BY DRC, TENDER BUNDLE F, TAB 81

DR MELLIFONT:  I tender the group submission by 33 disability service providers to be exhibit 5.269, contained at tender bundle G, tab 85, together with annexures.

EXHIBIT #5.269, GROUP SUBMISSION BY 33 DISABILITY SERVICE PROVIDERS

DR MELLIFONT:  Tender bundle G, tabs 86 to 96, to be marked exhibits 5.269.1 to 5.269.11.

EXHIBIT #5.269.1 THROUGH TO 5.269.11, TENDER BUNDLE G, TABS 86 TO 96

DR MELLIFONT:  I turn now to some very brief closing comments.
 

As the Commission has set out in its Second Progress Report which is on our website, subject to any significant changes in circumstances, the Royal Commission will hold several hearings before the end of the year.  The next public hearing will focus on the use of psychotropic medication and commence on 21 September in Sydney.  We will then continue our inquiry into education, starting in the week of 12 October.  In the week of 16 November, we will have a hearing related to the criminal justice system.  The following week we will hold a hearing into the experiences of First Nations people with disability and their families in contact with child protection systems.

In December, we hope to hold two further hearings.  One on economic participation and the second on the training of health professionals.

As the Chair said when announcing this hearing at the beginning of this week, all hearings planned for the rest of the year will be conducted in a COVID safe way.  This means that the upcoming hearings will mostly be conducted virtually based out of hearing rooms in Sydney or Brisbane.  The future public hearings will continue to be made available by webstream and the Commission encourages those watching to be mindful that topics might be upsetting and we encourage those who wish to seek support in that respect.

May I repeat my observations made at the beginning of this hearing, that the Royal Commission provides support by way of counsellors and support services team.  There is assistance through the Blue Knot Foundation.  There's also assistance for matters related to legal financial assistance and for information about all of these services, links can be found on the Commission website, or by contacting our information line, which is 1800 517 199.

We again thank everybody who has thus far shared their experiences with us, and we continue to encourage people to communicate with the Commission and note that people can provide information in a number of ways, including by making a submission or applying for a private session.  Again, there is information on our website, or can be obtained by contacting our information line.

Finally, Ms Eastman and I wish to express our gratitude to each of the witnesses that have given evidence in this hearing, and to all those persons who have assisted and supported them.  We wish also to thank the staff of the DRC who have worked extremely hard to deliver this hearing.  We are very grateful to their efforts.  Without in any way diminishing the enormous and essential contribution of the staff across all branches of the Commission to this hearing, may we particularly acknowledge the Office of Solicitor Assisting Team Leader, Ms Dobbie, and Special Advisor, Ms Beattie, and all those within OSA who have worked tirelessly on this hearing and who have exhibited considerable patience and dedication in the face of sometimes quite challenging requests from their Counsel Assisting.  Thank you.

COMMISSIONER SACKVILLE:  Thank you, Dr Mellifont.
 

I will make some brief     at least I hope tolerably brief     closing remarks, but with a view to making directions for the filing of submissions and in the course of that, identifying issues upon which the Commission will concentrate for the purposes of preparing a report arising out of this hearing.

This hearing during the week has explored in considerable depth the experiences of people with disability during a health crisis that is unprecedented in Australia since the months immediately following World War I a century ago.  We have heard during the week from a wide variety of people with disability about their experiences during the COVID 19 pandemic.  The witnesses who have shared their experiences with us include people with physical or intellectual disabilities, people with disability from different parts of Australia, First Nations people with disability and culturally and linguistically diverse people with disability.

The Commissioners wish to express our appreciation to all the witnesses with disability who have been prepared to give evidence at this public hearing.  It is not an easy thing to do, even with the support the Royal Commission provides, both before and after the evidence is taken.  The Royal Commission simply cannot do its work unless people with disability are prepared to recount their experiences and to give evidence.  Like Senior Counsel, we are extremely grateful to each and every one of the witnesses who has given evidence for doing so.

We've also heard from advocates, many of whom, of course, are themselves people with disability or family or carers of people with disability.  We've heard from advocacy organisations, eminent experts and academics such as Ms Kayess, Professor Kavanagh, and Professor Villeneuve; the UN Special Rapporteur and representatives of the Commonwealth Government and its agencies from whom we heard today.  This is quite a lot of witnesses to fit into four days, but it has been done.

The 4 day hearing has been extremely demanding on everybody involved, including witnesses and sometimes the evidence has been distressing.  But because people have been prepared to come forward and share their stories, the evidence has shed a piercing light on the impact of COVID 19 and of the associated stringent measures to contain it on people with disability in this country.

The most obvious consequences of the pandemic in Australia are seen in the awful death toll reported in recent times on a daily basis, and that has affected, mostly but not exclusively, people in aged care homes and we've also been alerted to the severe illnesses that are contracted by many people who contract COVID 19 themselves.

But the pandemic, as we've heard, has exacted another terrible toll that has largely been hidden from the general Australian community, and that toll is no less real.  We have heard people with disability experiencing the sudden loss of essential support services, an absence of clear and consistent information in accessible form essential to their health and wellbeing; an inability to access health care, personal protective  
equipment and even the basic necessities of life such as food and medication; we've heard of isolation from the community, from friends and family and from social networks; exposure to a heightened risk of domestic violence; stress and anxiety associated with exposure to the virus; inadequate measures for the protection of people with disability, and uncertainty about how to survive in the face of disruptions to care and essential services, sometimes leading to worsening mental health.

We've also heard evidence, as we did today, about the responses of the Commonwealth and its agencies to the pandemic.  There has been no shortage of criticism of the Commonwealth's responses in certain respects, but also recognition of some good work that has been done, even if sometimes that may have been a little belated.  The Commonwealth's witnesses have explained and defended the measures that have been taken to protect people with disability during the pandemic.

The evidence in the course of the hearing has been extensive and I do not want to go into detail about it and I'm sure nobody else wants me to either, but I do want to make one point and then to identify topics upon which the Commissioners will invite Senior Counsel to make submissions.

A number of witnesses raised concerns about what Professor Kavanagh described as a possible de prioritisation of people with disability for life saving health care.  This is really one aspect of a more general issue.  A number of witnesses referred to people with disability being devalued, simply because of their disability.  Ms Lee, for example, explained how the use of language can give rise to the erroneous perception that people with disability are a burden on the community.  Sarah Yahya referred to the dispiriting effect of social media commentary asserting that COVID 19 is about "survival of the fittest".  She said that people with disability are automatically expected to take a back seat during an emergency.

Fiona Downing thought that people with disability have felt forgotten during the pandemic and we just heard from Dr Harley about her perceptions of the way people with disability are thought of.

If there is one thing clear from the evidence at this hearing, it is that the lives of people with disability regardless of the nature of their disability are of equal value to the lives of every other Australian.  Their health, safety and wellbeing are of equal value to the health, safety and wellbeing of every other Australian.  People with disability are not a burden on society.  These propositions must be at the forefront of any policy response to emergencies.  That is the practical meaning and significance of the principles stated in Article 3 of the UN Convention of the Rights of Persons with Disabilities.

These principles include:  Respect for the inherent dignity and individual autonomy of all people; the right of all people to full and effective participation and inclusion in society and the right to be free from discrimination.

The evidence over the week reveals a number of areas in which improvements might  
well be made that are relevant to our Terms of Reference.  Some of the witnesses have made specific recommendations, suggestions for change have been made that are worthy of serious consideration.  What the Commissioners wish to do is this:  to make directions that invite Senior Counsel to make submissions on particular issues that I will outline.  There are quite a number of them, but they arise from the evidence that has been given during the week.

There will then, of course, be an opportunity for any of the parties given leave to appear to respond to any submissions made by Senior Counsel.

Therefore, I propose to make the following directions.  The first direction is as follows:  Counsel Assisting prepare a submission by 4 September 2020, which focuses on particular areas of interest or significance arising out of the evidence heard by the Royal Commission during the hearing this week on the impact of COVID 19 on people with disabilities.  The areas of interest or significance include, but need not be limited to the following:

1.  The systematic collection and reporting of data on the impact of COVID 19 on all people with disability and on disability support workers.

2.  Whether the response of the Commonwealth Government to the circumstances presented by the pandemic has appropriately addressed and currently appropriately addresses the needs of people with disability, including the needs of First Nations people with disability and people with disability from Culturally and Linguistically Diverse backgrounds.

3.  The extent to which the Commonwealth should involve and consult with people with disability and their representative organisations.

4.  The role and responsibilities of the Commonwealth in an emergency such as the pandemic, including preparations for emergencies having regard to the responsibilities of the Commonwealth under the Convention on the Rights of Persons with Disabilities.

5.  Whether the responses of the NDIA and the NDIS Quality and Safeguards Commission to the circumstances presented by the pandemic appropriately address the needs of participants in the NDIS, including whether family members should be eligible to be paid as support persons for people with disability during the pandemic and the circumstances in which NDIS participants should be able to change their plans.

6.  Whether there needs to be greater outreach and auditing of disability services to ensure that they are operating safely in the time of the pandemic.

7.  Whether systemic changes are needed in the approach taken to suspected COVID 19 or positive COVID 19 tests among residents in supported residential accommodation settings.
 

8.  Measures needed to address the increased isolation experienced by people with disability in closed residential settings during the pandemic.

9.  Whether specific consideration needs to be given to ensuring the continued access of official community visitors, or advocates to people with disability and supported residential care during the pandemic.

10.  Whether the disability support workforce should be recognised as an essential workforce and whether disability support workers should be entitled to pandemic leave, paid pandemic leave, during the current emergency.

11.  The need for emergency funding for women with disability experiencing domestic or family violence during COVID 19, with particular reference to enabling access to support.

12.  Emergency advocacy funding during the COVID 19 pandemic, including provision of Commonwealth funding for a dedicated 1800 hotline, an SMS service for First Nations people with disability, providing information relevant to the pandemic.

13.  Additional measures, if any necessary, to implement a human rights based approach to the pandemic and during the period of recovery from the pandemic.

14.  The need to include people with disability and their representative organisations at every level of planning and response to the pandemic and other public health emergencies.

15.  Whether the Disability Support Pension should be increased commensurately with increases made to other Social Security recipients.

16.  Whether changes should be made to Medicare benefit schedule to allow for patient end support using telehealth services during the pandemic.

17.  Whether the Commonwealth should take action to guard against health rationing decision making, which discriminates against people on the basis of disability, whether through express policies or systemic or unconscious bias.

18.  Whether the Commonwealth should take responsibility for creating and coordinating a single source of accessible pandemic information for people with disability.

I appreciate that this is a formidable list.  It is so formidable that Senior Counsel Assisting has asked for 14 days in which to prepare their submissions, which is an astonishingly long period of time, but that will be granted to enable all these issues and any other issues to be addressed.

 
Therefore, the second direction is that the     I've already said, I think, that the response of Senior Counsel should be by 4 September 2020.  It is then necessary to make a direction as to the time within which the Commonwealth and any other party given leave to appear is to make its submission.

Dr Mellifont, has there been an agreement with the Commonwealth as to the time that should be provided?

DR MELLIFONT:  There has been, yes.  The 16th of September for the Commonwealth.

COMMISSIONER SACKVILLE:  Yes.

DR MELLIFONT:  And 11 September for all other parties with leave to appear.

COMMISSIONER SACKVILLE:  Very well.

Direction 2 will then be as follows:

(a)  the Commonwealth provides its submission in response to Senior Counsel's submissions by 6pm on 16 September 2020.

(b)  any other party with leave to appear that wishes to provide a submission in response to Senior Counsel Assisting's submissions do so by 4pm on 11 September 2020.

It remains only for me to express the very deep appreciation of the Commissioners to all those within the Commission who have prepared this hearing.  It has been an enormous amount of work.  It has been done with very great skill and dedication and I wish also to express our very deep appreciation to the Office of Solicitor Assisting in particular, and to Senior Counsel and to Ms Beattie for the extraordinary assistance that they have provided in the course of these four days.

Thank you all very much.  The Commission will now adjourn.

THE HEARING CONCLUDED AT 4.34 PM