Public hearing 20 - Preventing and responding to violence, abuse, neglect and exploitation in disability services (2 case studies), Virtual - Day 5

CHAIR:   Good morning to everyone.  This is the fifth day of Public Hearing 20 dealing with the prevention and responses to violence, abuse, neglect and exploitation and disability services through two case studies involving Life Without Barriers.  We begin today's hearing with the acknowledgement of country.  We acknowledge the Gadigal people of the Eora Nation, the traditional custodians of the land upon which Commissioner McEwin and I are participating in the hearing.  We also acknowledge the Wurundjeri people of the Kulin Nation, upon whose lands Commissioner Galbally is participating in the hearing.  We pay our respects to their Elders past, present and emerging.  We also pay our respects to all First Nations people attending the hearing and those who may be following the hearing on the live screen.

Yes, Ms Baker.

MS BAKER:   Your Honour, Chair, the first witness today is Mr Stephen Doley.

CHAIR:   Yes.  Mr Doley, thank you for coming to the Royal Commission to give evidence.  You may already realise, but I will point out that Commissioner Galbally is joining the hearing from Melbourne and she appears on the screen.  Commissioner McEwin is in the same room, the Sydney hearing room, as I am and you can see Commissioner McEwin here.  Ms Baker, of course, is also in the Sydney hearing room and shortly I will ask Ms Baker to ask you some questions.  In the meantime, if you would follow the instructions of my associate.  He will administer the oath to you.

STEPHEN DOLEY, SWORN

CHAIR:   Thank you very much, Mr Doley.  Ms Baker will now ask you some questions.

EXAMINATION IN CHIEF BY MS BAKER

MS BAKER:  Could you please state your full name?

MR DOLEY:  Stephen Doley.

MS BAKER:  Mr Doley, you've provided two statements to the Royal Commission?

MR DOLEY:  Yes.

MS BAKER:  The first statement is one dated 17 November 2021?

MR DOLEY:  Yes.
 

MS BAKER:  And that is found, for the benefit of the parties, at hearing bundle C, tab 1.  There is also a supplementary statement dated 8 December 2021.

MR DOLEY:  Yes.

MS BAKER:  And that supplementary statement is found at bundle C, tab 1A.  The supplementary statement contains a number of corrections to the original statement; is that right?

MR DOLEY:  Yes, that's correct.

MS BAKER:  And taking into account the corrections made in the second statement, is the first statement true and correct?

MR DOLEY:  Yes, it is.

MS BAKER:  I'd like to begin by asking you some questions about your current position.  You tell us in your statement at paragraph 1 that you're the director of policy, reform and business development for Life Without Barriers.  So that's nationwide?

MR DOLEY:  Yes.

MS BAKER:  And you say that you've held that position since October of this year?

MR DOLEY:  That's correct.

MS BAKER:  What does that role involve?

MR DOLEY:  So it's a newly formed role within the organisation that looks after the     what we would classify our disability, mental health and aged care policy.  It looks after programs in terms of changes to programs, set out by such as the NDIS, and then looking at clients, in terms of coming into the organisation and, you know, in terms of business development work.

MS BAKER:  Prior to holding that position, you tell us that you were the director of disability and aged care New South Wales and ACT of Life Without Barriers?

MR DOLEY:  Yes, that's correct.

MS BAKER:  So the position that you hold now, that's a national position?

MR DOLEY:  Yes.

MS BAKER:  Whereas the position that you previously held was state based, New South Wales and ACT?
 

MR DOLEY:  New South Wales and ACT, yes.

MS BAKER:  What dates did you hold that position from until?

MR DOLEY:  From February 2019 until I took on my new role in October.

MS BAKER:  In October.  Just to be clear, in paragraph 4 of your statement where you say that you've held the role of state director since December of 2018, that's not correct?

MR DOLEY:  Sorry, paragraph where?

MS BAKER:  Paragraph 4 of your statement.

MR DOLEY:  My statement might be different.

CHAIR:   Paragraph 1 says February 2019; paragraph 4 says December 2018.  That's what Ms Baker is asking you.

MR DOLEY:  Okay, yes, then, yes; sorry.

MS BAKER:  And that position of state director for New South Wales and the ACT, what did that position involve?

MR DOLEY:  So I was responsible for disability, aged care mental health services across New South Wales and ACT and ran     and held a leadership team that ran the services for those services across that region.

MS BAKER:  So each one of those areas, not just disability, but also the other areas that you've mentioned?

MR DOLEY:  Yes, within that     sorry, within that jurisdiction.

MS BAKER:  Within that jurisdiction.

MR DOLEY:  Yes.

MS BAKER:  Namely, New South Wales and ACT?

MR DOLEY:  That's right.

MS BAKER:  And before February of 2019, you didn't work for Life Without Barriers in any capacity?

MR DOLEY:  No.

 
MS BAKER:  Your statement addresses the events that occurred in the Lismore houses.

MR DOLEY:  That's correct.

MS BAKER:  Do you understand that many of those events occurred before February 2019?

MR DOLEY:  Yes, that's correct.

MS BAKER:  That was, you've said, before you commenced employment with Life Without Barriers.

MR DOLEY:  Yes.

MS BAKER:  You understand that if you are unable to answer a question, you understand that     because it relates to a period of time before you came on board, you understand that the question will then be asked of senior counsel of Ms Robbs tomorrow?

MR DOLEY:  Yes.

MS BAKER:  Other issues that you give evidence about today may also be followed up with Ms Robbs tomorrow?

MR DOLEY:  Yes.

MS BAKER:  In any event, you've read the documents and read the statements that have been produced to this Royal Commission?

MR DOLEY:  Yes.

MS BAKER:  You've read those carefully?

MR DOLEY:  Yes.

MS BAKER:  Have you also heard the evidence that's been adduced in this Commission?

MR DOLEY:  Yes, I have.

MS BAKER:  All of it?

MR DOLEY:  Yes.

MS BAKER:  After reading those statements and the documents and hearing the evidence, have you assessed the adequacy of the support and care that was provided  
by Life Without Barriers to the residents of the Lismore houses, in particular Sophie and Natalie?

MR DOLEY:  Yes, I have made some assumptions, yes.

MS BAKER:  And have you identified any shortcomings or deficiencies in the care and support that was provided to Sophie, Natalie and the other residents?

MR DOLEY:  Yes, I have.

MS BAKER:  Could you tell us what those are?

MR DOLEY:  All     all of them?

MS BAKER:  Yes.

MR DOLEY:  So starting with Sophie, there are a number of things within     from my review of the information there is a number of things within that particular case that I think needed to be done better.  One is the kind of compatibility which is set out I think in a few cases, in terms of the make up of the home.  There was the investigation that took place prior to an incident which resulted in a non substantiation of allegation that Sophie was pushed and I believe that is incorrect.  There's certainly some complexities that played out in the case, in terms of Sophie being exploring her sexuality, intimacy and relationships, and I can see, through my review, staff taking that seriously, trying to ensure that they provide adequate support and education.  However, there are some areas in that, such as Sophie allowing to have a boyfriend over at the house, which I think is something that needs to have certainly been addressed and allowed.

In terms of Natalie, there's certainly some information between 2012 and 2014 that was disclosed to staff in which they should have acted on immediately and then once some more information in 2015 was disclosed, in terms of some allegations, I can see a process followed through which resulted in court proceedings and sexual misconduct.  So it's my view that certainly in the 2014/2015     sorry, 2012 2014 period that those allegations that were made to those staff should have and absolutely should have been acted on immediately.

There's some information there around Natalie's finances and some receipts, and some communication with the family regarding that.  So it would be my expectation that those receipts were provided and reassurance made to the family within that matter.

There's certainly some information regarding the use of bowel management charts not being followed up, nor being provided to the family on request.  It would be my expectation, through the review of the information, that those would certainly be kept up to date, accurate, provided, monitored and again reassurance with the family.

 
A couple of other things, if I may, is I can see attempts within the case to look at the service provisions provided within the home in terms of adequacy of staff and resources, and it's my view that there are some issues that are lacking in terms of funding support within the group home, in which I can see through some of my review that between LWB and the day program provider and the family certainly having conversations regarding Sophie and the adequacy of support within there, potentially particularly resulting in adequate funding.  So I think that is a particular    

CHAIR:  What period are you talking about, as far as adequacy of funding is concerned?

MR DOLEY:  I think it plays out post the NDIS particularly, the implementation, and I think from memory     sorry, Commissioner, that's from 2018 onwards.  Particularly where you review some of the funding nature that was provided in terms of dollars, which equate to hours of support, I think from 2018 to 2021 doubled, as well, so I think there's something there that certainly plays out as an issue.

MS BAKER:  In relation to that issue, is that a deficiency or shortcoming that you identify that Life Without Barriers takes responsibility for, or just an issue in the case study as a whole?

MR DOLEY:  No, in the case study as a whole.

MS BAKER:  Okay.  Up until this point, the deficiencies and shortcomings that you've spoken about, are they deficiencies and shortcomings of Life Without Barriers?

MR DOLEY:  Yes, yes.

MS BAKER:  Okay.  Sorry, please continue.

MR DOLEY:  I think in terms of communication with families that     from my review of the material, I can certainly see large amounts of attempts to communicate with family.  Listening to the statements, or reading the statements and listening to the evidence presented here, the family's expectation was clearly that communication should have been better and if that's the case, then certainly my expectation is that we should have done better in communicating with families, particularly around things that were happening for their loved ones in the home in general, but also particularly around critical incidents that took place within the home as well.  In that, particularly with families, we should have been able to communicate much better, much more reasonably and much more concise and timely, yes.

Sorry, I'm trying to remember.  I think it comes through the material in some of the statements from family and particularly some recommendations that are at the end of some of their statements regarding training.  I can certainly see, within the documentation, a significant amount of training being provided to staff and  
particularly in the provisions of behaviour support planning and management.  However, again, from reading the material and hearing from the family, there is certainly some work there in LWB's ongoing nature to do.

The other one I will say I think may be the last one, sorry, is in terms of incident management records.  There are a couple of occasions where particular incidents weren't logged into an incident management system, which then flagged     which then, therefore, didn't flag, in terms of its criticality, to certain parts of the organisation.

MS BAKER:  Thank you, Mr Doley.  The deficiencies and shortcomings that you've told us about now, is there any reason why you didn't identify those in your statement to the Commission?

MR DOLEY:  Sorry?

MS BAKER:  Is there any reason why you didn't identify those deficiencies and shortcomings in your statement to the Commission?

MR DOLEY:  I think in some elements in my statement I certainly have, towards some of that.  I think probably more appropriate, that following reviewing of the information, and particularly hearing the statements and the verbal statements of family and other members over the past week, I have been able to make some assumptions and classifications of areas where we needed to improve better, yes.

MS BAKER:  In relation to those areas of improvement, have you performed any assessment as to the reasons for these shortcomings and deficiencies, whether there were failures of policy, failures of training, other kinds of failures of support that could have been averted?

MR DOLEY:  Yes, certainly.  Within the context of listening to evidence and reviewing information, we certainly have looked at some of those things and made some assumptions, yes.

MS BAKER:  Are you able to tell us about any of those changes that you have identified need to be made?

MR DOLEY:  I think one particular one for me that has certainly played out through listening to statements and listening to family, and particularly Sophie herself, and I thought was quite powerful, was the need for, within the group home model, to cater for allowing people to explore their intimacy relationships and sexuality.  I think from particularly listening to Sophie's father in terms of kind of the complexities around dignity of risk and informed choices and ensuring that people are safe, but allowing them to explore, so it's very much my view that we need to be listening to people with a disability and led by people with a disability in how that should play out for them, and how we should provide adequate support and service in a model context of a group home to allow them to explore their sexuality and relationships.
 

You know, certainly within that case, I know that there is some work under way already in forming almost a governance group led by people with disability for people with disability to explore the complexities around that and then how we provide the service provision for them within the context of exploring their sexuality and intimacy and relationships.

MS BAKER:  How long has that work been under way for?

MR DOLEY:  That's something we have only just started.

MS BAKER:  As a result of the Commission's hearing?

MR DOLEY:  From a review of some of the information, yes.

MS BAKER:  So after you prepared your statement?

MR DOLEY:  Yes.

MS BAKER:  Thank you for that.  I would like to just ask you some questions generally about policies, first, at a high level before moving on to some exploration of the particular issues that you've discussed and which are in your statement.  Firstly, in relation to Life Without Barriers' policies, in your statement you outline a number of policies, both current and historical, and at paragraph 10 of your statement, you tell us that the identification of policies has been made more difficult because various of the Life Without Barriers policies don't contain a date on the face of the document such that it's not possible to reliably identify the time period during which those policies were operational.  The first question is when there are shortcomings and deficiencies like the ones that you've indicated to us now, do you agree that it is essential that one can clearly identify which policy was in operation at the time so that we can tell whether the deficiency was one of policy training, or just a rogue employee or an unavoidable accident?  Do you agree with that proposition?

MR DOLEY:  Sorry, that policy should have    

MS BAKER:  That policy should be dated.

MR DOLEY:  Oh, yes.

CHAIR:   By which you mean each successive version of a policy?

MR DOLEY:  Yes, sorry, every time a policy is amended or updated, it should have a date stamp.

MS BAKER:  And that's something that hasn't been happening to date, as far as you can tell, or not regularly happening, as far as you could tell?

 
MR DOLEY:  I'm not sure in terms of how policy implementation was done back when I was reviewing previous information so I'm not up to date on that.

MS BAKER:  In terms of amendments and changes to policy, from this point in time onwards can you assure the Commission that from this point in time onwards, all changes to the policies, all version changes, will be dated?

MR DOLEY:  Yes, it's my expectation that that's the case, yes.

MS BAKER:  In particular in relation to the policies which you've identified as being NDIS policies, those are more recent policies that have been created to comply with the NDIS standards; is that right?

MR DOLEY:  Yes, particularly when the NDIS rolls out per jurisdiction, so there would be State based legislation that some of those policies would be adhering to and as the rollout occurred across the country, it would be my understanding that the policy implementation of that subsequently changed over that period of time.

MS BAKER:  Okay.  So where in your statement you say words to the effect of "Following the introduction of the NDIS, the following policy applied", can we take it that that policy applied as and from 1 July 2018 in New South Wales, or is that a fuzzy date as well?

MR DOLEY:  No, I don't think it's a fuzzy date.  I think there is a transitional period in which that occurred.  So, from my understanding, yes, those policies applied post the 2018 period that I refer to in my statement for New South Wales.

MS BAKER:  We can be confident that as of 1 July in New South Wales, any policy that's titled "NDIS LWB policy on X", that that policy was operational at least from 1 July 2018?

MR DOLEY:  Yes, I would assume so, yes.  Sorry, in order that I can comment on the fact that I wasn't in the organisation at that point in time.

MS BAKER:  But to the best of your understanding, that's how it was operational?

MR DOLEY:  Yes.

MS BAKER:  Finally, in terms of access to policies, you speak about that at paragraph 391 of your statement.  In particular you tell us that from May 2011, Life Without Barriers centralised all policy documents on a share point library known as the Policy Centre and that staff could search for policies and supporting documentation relevant to a number of services on that common share point library; is that right?

MR DOLEY:  Yes.

 
MS BAKER:  You then tell us in paragraph 392 that that has now been moved on to Office 365 so that staff and managers can access the policy centre from mobile devices.

MR DOLEY:  Yes.

MS BAKER:  Phones, iPads    

MR DOLEY:  Electronic devices.

MS BAKER:  Is it currently just Life Without Barriers staff that have access to that policy centre?  What about agency staff, do they have access to it?

MR DOLEY:  I don't believe so.

MS BAKER:  Do you agree that agency staff should have access to it?

MR DOLEY:  Yes.  Sorry, I'm not sure in terms of whether the access of agency staff to the policy centre but, yes, in terms of the operational policies within the home they would be working for, yes.

MS BAKER:  They should have access to the policies but you're not able to tell us, sitting here today, whether they do have access to the policies?

MR DOLEY:  No, I can't comment on that.

MS BAKER:  Is that something that in your capacity as the policy director, you undertake to look into and make sure that agency staff do have access to those policies in the future?

MR DOLEY:  Well, yes, yes.

CHAIR:   If you don't know, who would know?

MR DOLEY:  Given my role as the director of policy is quite new and a lot of that time has been in preparation for the Royal Commission, in terms of within the organisation there would be a number of people, such as the executive director, quality and safeguarding would certainly have that knowledge.  There would be a number of people within that stream of the organisation who, particularly like our disability staff consultancy team, that develops policy, they would have would have the answers to that.  So I can certainly find that out.

MS BAKER:  Perhaps Ms Robbs could give evidence about that tomorrow.

MR DOLEY:  Possibly, yes.

CHAIR:   Was the position you now occupy created for a particular reason?
 

MR DOLEY:  It's a new position.

CHAIR:   I understand that, that's why I asked.

MR DOLEY:  Yes.  I think it's a position to create     you see, the policy programs kind of portfolio, bringing that together, given that as changes happen within the NDIS, they often result in program changes, particularly at an operational level, so bringing that kind of key wok together so that we could pull that together in terms of policy change, what that actually means for our program in terms of regulatory behaviour and then implementing that out into the business.  So, yes, I think there was an intention for that.

MS BAKER:  Mr Doley, do you know whether families or residents have access to the policy centre?

MR DOLEY:  I don't believe so.

MS BAKER:  Would you agree that in order to effectively advocate for residents, both advocate for themselves and family members, and other advocates to advocate effectively on behalf of them, they need to have an understanding of what the policies are?

MR DOLEY:  Yes, I was certainly aware that there are occasions, you know, and requests can be made to access policy, I'm certainly aware that has been the case.  But to your point, yes, they can have access to them.

MS BAKER:  Do you agree that they should have access to all of the policies without needing to ask for a specific policy, because they might not be aware of whether a policy exists or not?

MR DOLEY:  Yes.

MS BAKER:  Is that    

COMMISSIONER McEWIN:   Mr Doley, could I just ask you a question.  Could you help me understand your role a bit more.  You don't have direct knowledge of what happens day to day in a group home, so related to what happened when a staff member arrived and the access they had to policy, whether they are agency staff or not, you don't have direct knowledge of what happens day to day in your current role?

MR DOLEY:  No, no, I don't perform those duties or have oversight over     no, not in my current role, no.

MS BAKER:  How about in your previous role as State director, in your previous role did you ever go and visit particular homes?
 

MR DOLEY:  I started my career as a disability support worker, so, yes.

MS BAKER:  But not within Life Without Barriers?

MR DOLEY:  No, not within Life Without Barriers, no.

MS BAKER:  So as an employee of Life Without Barriers, have you physically gone into the group homes?

MR DOLEY:  Yes.

MS BAKER:  Was that mainly when you were the State director?

MR DOLEY:  Yes, that's the only other job I have had in Life Without Barriers.

MS BAKER:  So it's not something that you do as director of policy?

MR DOLEY:  The director of policy, as I said, is a very new role within the organisation and in terms of the time that I've spent in that role, it's been quite limited, given the requirements around, you know, documentation, preparing statements.  So, yes, it would absolutely be a role in which I would be going into, particularly from a policy perspective, how does policy translate to implementation.  Yes, that would be something that I would be doing and a team of people that sit under me would be doing.

CHAIR:   Why were you given responsibility apparently for providing a detailed statement to the Royal Commission?

MR DOLEY:  I believe because of my role as the New South Wales/ACT director and my understanding of a group home and how it operates I believe is why I was given that responsibility.  I also don't believe that there is somebody or anybody within the business that can speak for that entire relevant period of time at this stage.

CHAIR:   Do you mean from 2011 to 2021?

MR DOLEY:  Yes.

CHAIR:   Is there anybody who would have detailed knowledge of group homes in New South Wales from a date earlier than 2018?

MR DOLEY:  Possibly, yes.

CHAIR:   That's when a lot of these events occurred.

MR DOLEY:  Yes.

 
MS BAKER:  Just to be clear, in relation to access of residents and their families to the policies, either via the policy centre or via some other means, to your knowledge at present they don't have that access, but you agree that they should have that access?

MR DOLEY:  Yes, to my knowledge I don't think they do.  And I agree that, yes, they do, and I can check if that's required.

MS BAKER:  Is that something you will also be looking at following up after this Commission?

MR DOLEY:  Yes.

MS BAKER:  I would like to now turn to some specific questions beginning with the Goonellabah house.  You say at paragraph 13 of your statement that Life Without Barriers managed the Goonellabah house from October of 2011.

MR DOLEY:  Yes.

MS BAKER:  And the department was     that was the Department of Human Services, Ageing, Disability and Home Care     was the owner of the property at that time?

MR DOLEY:  Yes.

MS BAKER:  You tell us that as it was originally established, it was Emergency Response Transition Unit accommodation, or ERTU, is that right?

MR DOLEY:  I believe so.

MS BAKER:  Is that a department classification or a Life Without Barriers classification?

MR DOLEY:  I believe it's a department classification.

MS BAKER:  Is it the case that that was designed to be a rapid response, intense assessment and a review, with then a transition to a long term accommodation?

MR DOLEY:  Yes.

MS BAKER:  To your knowledge did any of the residents in the Goonellabah house ever transition to a long term alternative accommodation?

MR DOLEY:  To my review of the information, I can see that there were a number of attempts in terms of transitions.  However, for various reasons those transitions didn't eventuate, so, no, but to the point that, yes, there were     and a case particularly that I can think of where the transition arrangement was under way,  
it just didn't work.

MS BAKER:  So attempts were made but it never happened?

MR DOLEY:  From my review of the information, yes.

MS BAKER:  At some stage, it appears that the Goonellabah house ceased being emergency accommodation and became disability supported accommodation.  Do you know when Goonellabah ceased being emergency accommodation?

MR DOLEY:  No, I do not.

MS BAKER:  Do you have any knowledge around the funding of emergency accommodation as compared to disability supported accommodation?  Is it the case that disability supported accommodation received significantly less funds from the department than emergency accommodation?

MR DOLEY:  It's my understanding that Ageing, Disability and Home Care established the requirements around the funding for an individual, so I can see within the information that     particularly when Sophie transitioned in, there was an assessment component done and relevant attached funding to that based on the assessment done by the New South Wales State Government Ageing, Disability and Home Care.  So it's my assumption that a very similar process takes place when     or if that changes to a different classification, and that is funded through the State Government at this time, yes.

MS BAKER:  When you say this is an assumption, you don't have any knowledge about whether or not the funding for Goonellabah was reduced as a result of the change in classification?

MR DOLEY:  No, not at all.

MS BAKER:  Perhaps that's something we can also ask of Ms Robbs tomorrow.

Is it the case that Goonellabah was the first disability group home that Life Without Barriers had managed in the far north coast subregion?  Do you have any knowledge about that?

MR DOLEY:  I believe it was.

MS BAKER:  The regional operations manager of the far north coast at that point in time, is it the case that he had no experience in managing group homes?  Do you have any knowledge about that?

MR DOLEY:  I can't comment on his relevant experience, sorry.

MS BAKER:  Again, we might take that up with Ms Robbs tomorrow.
 

CHAIR:   Have you visited that home?

MR DOLEY:  No, I have not.

CHAIR:   Never?

MR DOLEY:  No.

MS BAKER:  The Goonellabah house would have been before your time, Mr Doley?

MR DOLEY:  Yes, that's right.

MS BAKER:  How about the Lismore house?

MR DOLEY:  No, I have not visited the Lismore house.

MS BAKER:  When you were State director of the group homes, I think you say there were 138 under your supervision?

MR DOLEY:  Yes.

MS BAKER:  How many of them did you physically visit?

MR DOLEY:  I tried to visit regularly on a monthly basis.  I never visited the Lismore house, as I have said, and for a period of about two years of that, it was obviously hampered by COVID in terms of the ability for me to go into homes.  So, you know, regularly up until that point, but, no, I did not    

CHAIR:  I think the question was how many?

MR DOLEY:  To the point of the number, I'm not sure I could give you a number.

CHAIR:   When you say you visited monthly, do you mean you attempted to visit one home per month?

MR DOLEY:  Yes, yes.

CHAIR:   So since there are 24 months and you couldn't go for some months, presumably it is, what, less than 10?

MR DOLEY:  10 to 15, yes.

MS BAKER:   During the COVID period, did you attempt to link in with any of the houses virtually?

MR DOLEY:  Yes.
 

MS BAKER:  About how many houses?

MR DOLEY:  Less than a handful.

MS BAKER:  Less than a handful.  I'd now like to turn to some questions specifically about Sophie and Natalie.  Firstly, some questions that are common to both before I move to some questions specific to Sophie.  The first topic that I'd like to ask you about is the support provided and the communication about the support provided.  I think you've already acknowledged that there were some shortcomings and deficiencies in that respect; is that right?

MR DOLEY:  Yes.

MS BAKER:  If we could just    

COMMISSIONER McEWIN:   Ms Baker, sorry, before you get into the detail     Mr Doley, one more question.  I'm trying to understand you and your colleague at senior management, I understand you were called a senior manager, you are part of the senior management of Life Without Barriers?

MR DOLEY:  I'm not the executive group, no.

COMMISSIONER McEWIN:   Maybe at your senior level, could you just describe what understanding do you have about the day to day life that goes on in group homes collectively?  Can you help me to understand how would you describe that collective understanding?

MR DOLEY:  As in, sorry, my collective understanding of    

COMMISSIONER McEWIN:   You and your colleagues at your level and senior management.

MR DOLEY:  So I think there's     there's the staff, there's the clients, there's the model of home that it is, and then there's the operational aspect of that, how that happens, in terms of the support being required.  Every home is obviously very, very different, given the support needs of each individual client, and based on the support needs of those clients and based on the relevant funding that they receive, the support is then     is rolled out within that group home, yes.

COMMISSIONER McEWIN:   What I'm really getting at, from a day to day basis, you and your senior colleagues, how detailed information would you have about what's going on?

MR DOLEY:  So, yes, we would receive, or I would particularly, and my staff that were underneath me, in terms of I have some regional directors, operations managers, program coordinators and team leaders, team leaders were the ones that  
were responsible for running the day to day operations and the routine of the home and they were specifically allocated towards one or two homes, and it was their job to communicate with families, look at access routine, support requirements, staffing, health requirements, and as a State director I received regular information in terms of incident reports, complaints, routines; good news stories, you know, was also a very key point of that.  I would receive information from people with a disability through our disability services advisory council, which is made up of people with a disability who talk about their experience in service provision and how that operates at a day to day aspect for them.  So we would get     or I would, I would get lots of relevant information in terms of the day to day operation of a group home, yes.

MS BAKER:  Mr Doley, you said that you never visited the Lismore house when you were State director.  Was your attention drawn to any of the issues surrounding the Lismore house that you've considered in your statement?

MR DOLEY:  My knowledge of the Lismore house, as the State director, particularly around the LWB Worker 1 and 2, is probably where my knowledge in terms of     again, you know, if you're talking about an issue that came out of the Lismore house, yes.

MS BAKER:  When you were State director, had anybody ever told you about the sexual assault of Sophie which occurred just before?

MR DOLEY:  No, I had no    

MS BAKER:  So your first awareness of that was in preparation for the Commission?

MR DOLEY:  That's correct, yes.

MS BAKER:  The incident on 26 March involving the two support workers with Sophie, were you aware of that at the time or again first time you were aware of it, preparing for the Royal Commission?

MR DOLEY:  No, I was aware of that at the time.

MS BAKER:  Okay.

MR DOLEY:  I think that was March 26, which is when I was the State director, yes.

MS BAKER:  I might ask you some more questions about that when we come to that issue.  What about the complaints made on behalf of Natalie by Jennifer, were you aware of any of those at the time you were State director?

MR DOLEY:  No, I was not.

MS BAKER:  Okay.  Do you think that you should have been made aware of those  
complaints?

MR DOLEY:  Yes, I do.  Yes, I do.

MS BAKER:  Again, I might ask you some more questions in connection with those events when we come to them.  Just returning to the overall issue of support and communication, which you've indicated there were some shortcomings, I would just like to take you to the particulars of some of those shortcomings.  Now, firstly, when Sophie moved in, she and her parents were provided with an Emergency Transition Unit Residential Statement.  A copy of that     the folder in front of you, the bigger folder, it's at tab 3 of the bigger folder.  For the benefit of the parties, that is bundle C, tab 238, the Life Without Barriers residential statement.  This is the form of information that was given at the time, that was pre NDIS, which tells a client what services and support Life Without Barriers is going to provide; is that right?

MR DOLEY:  Yes.

MS BAKER:  When we turn to page     firstly, it's     on the first page, it's issued on 20 December and it's covering the period from 6 December 2011.

MR DOLEY:  Yes.

MS BAKER:  So this is the first residential statement for Sophie?

MR DOLEY:  Agreement?

MS BAKER:  Yes.  The first agreement.

MR DOLEY:  Yes.

MS BAKER:  So, in essence, it's an agreement between Life Without Barriers and Sophie where Life Without Barriers tells Sophie what kinds of support and services they'll be providing her.  If you turn to page 3 of that statement, it tells Sophie what the rent component, the board component is going to be of the cost, and then under the heading "Support Details", it tells Sophie and her parents what level of support will be offered.  It says:

Overnight support type:  Sleepover.  Hours of direct support/care services are provided .....

Monday to Friday is ticked and weekends and holidays are ticked.

MR DOLEY:  Yes.

MS BAKER:  So    

CHAIR:  Sorry, did you say    
 

MS BAKER:  Or crossed.

CHAIR:   I'm looking at where it says "Support Details", hours of direct    

MS BAKER:  Yes:

Hours of direct support/care services are provided/available .....

CHAIR:   It is crossed on Monday to Friday and weekends, but no hours.

MS BAKER:  No hours.  So are we to understand from that, that this was indicating to Sophie and her parents that she would have 24/7 care?

MR DOLEY:  24/7 care?

MS BAKER:  Seven days a week, every day is ticked, Monday to Friday, weekends and holidays are all crossed, and there is no indication in this document that there will be any hours during the day where she won't receive direct support.

MR DOLEY:  By the ticking of the Monday to Friday, yes.

MS BAKER:  Yes.  We'll come back to that shortly.  You'd also agree that the document doesn't tell Sophie or her parents about what support will be provided, for example, will her meals be cooked or will she be taught how to cook; will she be given assistance with financial budgeting; will she    

MR DOLEY:  No, that's in a document, her IP plan.

MS BAKER:  So this document doesn't provide any of that information?

MR DOLEY:  Not that I can see, no.

MS BAKER:  The hours of support that we have spoken about, you have agreed that that suggests that she's getting support each day of the week for all hours of the day, but you've heard evidence     and you've heard evidence from Sophie's parents, Greg and Michelle, that it was their understanding that a worker would always be in the house if Sophie was at home.  Would you agree that their understanding is consistent with what they were told in this residential statement?

MR DOLEY:  At the point in time that the residential statement     and, again, from my review, it appears that at the point in time that the residential statement was developed, there certainly appears to be some changes in the routine of Sophie over time, particularly during days, I understand that she went to her day program provider and employment as well.  That certainly would have changed from the initial     from what I understand, from the initial time, yes.

 
MS BAKER:  Have you looked at the residential statements that follow this one?

MR DOLEY:  In terms of this detail, no.

MS BAKER:  In terms of these details?

MR DOLEY:  No, not in terms of these details.

MS BAKER:  Can you take it from me that     you don't need to take it from me.  If you turn to tab 8 of that folder, document LWB.1018.0003.0001, this is a statement that's covering the period from 2014 to 2015, and at page 3 of that statement, we still have hours of direct support care provided, the whole of Monday to Friday and the whole of weekends and holidays.

MR DOLEY:  Yes.

MS BAKER:  So over this period, no written indication that there is to be a variation of these residential statements such that she won't be receiving direct care if she's at home, that she will be left at home on some occasions; we don't see that in either of those documents, do we?

MR DOLEY:  No.

CHAIR:   By "this period", do you mean 2011 through to November 2015?

MS BAKER:  Yes.

After these residential statements were     these residential statements were superseded, I think, when the NDIS came into effect; is that right?  So this was the form right up until the NDIS.  Do you know whether in the current forms, there is any further information about hours of care or the like?  Perhaps to assist you in that respect, if I could ask you to go to tab 28 of that folder.  The reference is LWB.1010.0002.0309.  Is this the document that was used in place of the residential statement once the residential statement was superseded by the NDIS?

MR DOLEY:  Yes.

MS BAKER:  And in this document, is there any information about the hours of care that will be provided?

MR DOLEY:  It's my understanding     sorry, that the support provided to an individual in this agreement refers to the approved NDIS plan in which a client has through their NDIA meetings and a subsequent plan is approved, and in the provision of support in a group home, a quote was provided for the level of support and this agreement refers to, as per quote.

MS BAKER:  As per quote, okay.  So to take a step back, you've heard evidence  
from Greg and Michelle that it was their understanding that a worker would always be in the house if Sophie was at home?  I think you've already agreed with that.

MR DOLEY:  I have heard that, yes.

MS BAKER:  And you have also heard evidence both from Sophie and her parents that, in fact, Sophie was left at home alone on many occasions, but particularly after her suspension from employment and her suspension from REDinc.  For a client in Sophie's position now, how would the client and/or their family know the hours that they will be left alone at home without support?  Do they have to go back to their NDIS plan, look at the quote, add up the hours and work out what hours of the day they are going to be left alone?

MR DOLEY:  No.  So the way the plan works is there is an allocation of funding for a specific area of care in which they receive, and that is then broken up into, kind of, subsections of a plan.  So Sophie and her family would have had access to the plan available, in terms of her accommodation setting, the plan and hours in terms of her day program, the plan and hours in terms of her behaviour support and therefore also support coordination.  There are elements of responsibilities across those in which the funding then needs to be allocated to.  So when one of those aspects, such as funding for day program support     so the agency will not fund an individual to have support at a home if they are at a day program.  They will not fund the two at the same time.  So if you're funded to go to a day program between, let's say, 9 to 5, that's where your funding is allocated and that sits within an agreement within that provider.  If you are, in this case, suspended from your day program, then there is no other funding available to provide the support that is required if you cannot access that funding at the day program provider.  In answer, I guess, to your question, the funding is broken up into segments and that's where the support was required to be at that stage.

MS BAKER:  Okay.  So just to back this up a little, pre NDIS, the information you get about support is what's contained in those residential statements and those residential statements suggest that you are getting care 7 days a week, 24 hours a day, but you might not be if there isn't staff available?

MR DOLEY:  And probably just to add in there, again the same happened pre NDIS, in that you would have support for your accommodation and then you would have support from your day program provider.  So I take the point that you're making, in that the agreement says 24/7, but also to the point that Sophie, from what I can see through the relevant information, had funding for support from her day program provider.

MS BAKER:  Okay.  So perhaps to cut to the chase, pre-NDIS, you'd agree with me that the communication from Life Without Barriers was deficient because it suggested to Sophie and her parents that she was receiving support and care 24 hours a day, 7 days a week, when in fact for those hours when she was supposed to be at a day program, if for any reason she couldn't access the day program, she wouldn't be  
receiving the support and care from Life Without Barriers?

MR DOLEY:  I can see that the agreement, you know, certainly indicates 24/7 care.  What I can say is that I'm aware that there were a few meetings that occurred between the family, Life Without Barriers and the day program, particularly around suspensions, and we are talking quite lengthy suspensions, too, not one or two days, where up to a month to three or six months, in which there were discussions there that took place to say at these periods of time, yes, Sophie may not be at the group home with the relevant support and safety plans put around that that indicated that they had conversations with Sophie, that they discussed with her what would appropriate support look like if she needed it, what time they would be away for, when she could call them, who should she call then should she have a phone on her and letting her family know, yes.

MS BAKER:  Just to take a step back, that first written document is never amended and the parents and Sophie are never given any information that what is set out in that document is not, in fact, the case?

MR DOLEY:  As far as I can see, that there were meetings that took place    

MS BAKER:  No, I'm saying in terms of what they were provided in writing, they have a document which tells them she's getting 24 hour care, 7 days a week, and in writing that's never amended?

MR DOLEY:  In writing as per the document?

MS BAKER:  As per the document.

MR DOLEY:  There is certainly information that is in writing to the family to say that these are the support hours in which Sophie would not    

MS BAKER:  Okay, but focusing on writing as per the agreement .

MR DOLEY:  The email trail would also be as per writing    

MS BAKER:  An email trail is something that can be lost over time; an agreement is something that is provided to the parents, and, correct me if I am wrong, I thought that you had agreed that there were deficiencies in the communication.  Is this not one of the deficiencies that you accept?

MR DOLEY:  No, no, no, I have certainly said that there were deficiencies in the communication.  What I'm saying is that there were certainly meetings that took place and written correspondence that discusses the changes post a suspension of day program.

CHAIR:   Are they referred to in your statement?

 
MR DOLEY:  I believe they are.

CHAIR:  If there is a break, or when there is a break, you might, subject to Ms Baker suggesting a different course, point us to where these email trails are referred to.  I would like to understand your evidence:  do you suggest that the email trails constituted an amendment to the contractual relationship that was entered into in 2011?

MR DOLEY:  No, I do not.

CHAIR:  It follows, does it not, that Life Without Barriers at all material times was subject to the contractual obligations it undertook in 2011?

MR DOLEY:  As per the document, yes.

CHAIR:   As per the contract?

MR DOLEY:  My evidence would be that, yes, the documents, and, yes, there was follow up correspondence that indicated differences in service provision timings, but the document that you are referring to was not amended, yes.

CHAIR:   Yes.  If that document constituted a contract, it was never amended, on your evidence?

MR DOLEY:  To my knowledge of     it constitutes a document, I guess.

CHAIR:   You're not sure whether the document constituted a contract, is that the point?

MR DOLEY:  The document constituted a contract; it's as to whether the subsequent correspondence constitutes an altering to that.

CHAIR:   All right.  That may be something that will depend upon the contents of the emails that you will point us to in due course.

MR DOLEY:  Yes.

CHAIR:   But you appreciate, do you, that if the document of 2011 constituted a contract and if, pursuant to that contract, Life Without Barriers was required to provide 24/7 care, then whatever arrangements might have been entered into between Sophie and the NDIS through the NDIA, would not necessarily alter the contractual obligations of Life Without Barriers?

MR DOLEY:  It would in as much as the contract that was provided under the NDIS, in terms of the service agreement dated 2017/2018, is a new agreement which discusses services provided as per quote, which is directly correlated to the NDIA plan that is approved for Sophie for group home service provision.
 

CHAIR:   Where is the reference to "as per quote"?  I didn't pick that up.

MR DOLEY:  Sorry, page 2.

CHAIR:   Page 2?

MS BAKER:  That's the bold with the underline about three quarters of the way down the page on page 2.

CHAIR:   Yes, it might be an interesting point as to whether that actually alters the contractual obligations, assuming they were contractual obligations, entered into in 2011.  I won't press that further.  It may involve some legal issues     at the moment.

MS BAKER:  Mr Doley     I see the time and it might be appropriate to take a morning tea adjournment shortly, Chair, but before I do, if I can just be clear about this, you've heard evidence from Sophie's parents that they were confused about the hours of support that Sophie was being provided, basically from the period of time from Goonellabah all the way through until the date that Sophie left the Lismore house.  You've heard that evidence?

MR DOLEY:  Yes, I have.

MS BAKER:  Is it your evidence that in respect of the period pre NDIS, if Sophie or her parents wanted to work out whether or not she had direct support on any particular day at any particular time from Life Without Barriers, they had to firstly look at the residential statement but then go through all of their emails to see how that had been amended over time; is that your evidence?

MR DOLEY:  My evidence is     yes, as I said at the beginning, the communication with families was something that I've certainly acknowledged, based on what I've heard, you know, did not meet the expectations of the family, so we needed to do better in ensuring communication with families had taken place in a much more proactive response to the information.

What I'm suggesting is that that information was provided, but we certainly should have communicated much better to the family in making them understand     or helping them understand the requirements of service provision and hours of support, yes.

MS BAKER:  What I'm trying to explore with you is whether this is an issue, and whether this is a concession that you make only in respect of Sophie and her family, or whether you accept that, more generally, Life Without Barriers' procedures at the time, which was a residential statement which tells you that you're getting 24 hour care, 7 days a week, which is then amended on a piecemeal basis by emails in verbal communications is not a satisfactory way of communicating things as important as whether or not a person is receiving support and care during all hours of the day.  Do  
you accept that Life Without Barriers' systems of communication at that point in time were inadequate?

MR DOLEY:  I can certainly see evidence of where communication had taken place, and very specific communication around, particularly in Sophie's     in this instance, I can certainly see that staff had taken measures to communicate appropriately.  However, what I do say is if that didn't meet the family's expectations, which I've heard, then we needed to do better there.  There were certainly elements of Life Without Barriers' staff engaging in communication with the family around this specific incident that we're talking about in regards to hours of support.

MS BAKER:  With respect, that's not my question.  My question is about the systems that were in place and, in particular, whether you accept that a system, which has an agreement, whether a contract or not, in writing, making a promise which is then amended by emails and verbal communication is an adequate system for conveying something as serious as hours of supported care.  Just a yes or no, do you accept that it was sufficient or no?

MR DOLEY:  In this instance?  No, I accept that there should have been better communication in this instance, yes.

MS BAKER:  Chair, it might be appropriate to take the morning tea break.  After the morning tea break, Mr Doley, I will be asking you about those communications that you've spoken about and, in particular, it might be helpful if you can indicate to the Commission when the first communications were had with Sophie and her parents post her suspension from REDinc.

CHAIR:   All right.  We will take a break of 15 minutes and resume just after 20 past 11.

ADJOURNED    [11.06AM]

RESUMED    [11.22AM]

CHAIR:   Yes, Ms Baker.

MS BAKER:   Mr Doley, I think you indicated that over the break you were going to take a look at your statement to see whether or not you can give us any assistance about when those first communications happened with the parents indicating that there were going to be blocks of time where Sophie was going to be potentially left alone in the house.  Is it the case you need a bit more time?

MR DOLEY:  Yes, I am, certainly.  Given the vast array of volumes of documents, I'm going to need some more time.
 

MS BAKER:  We might come back to that after the lunch break.  Before I do, I would just like to ask you about two things     three things that are contained in your statement and ask you about these matters.  If you need to take that on notice and come back to it after lunch as well, just let me know.  The first thing is at paragraph 208(c) of your statement.  Have you got that?

MR DOLEY:  Yes.

MS BAKER:  In that paragraph you make reference to an individual service plan meeting being held?

MR DOLEY:  Yes.

MS BAKER:  Are they the individual service plans that you spoke about earlier in your evidence?

MR DOLEY:  I believe so.

MS BAKER:  You said that in that meeting, it appears that a home alone assessment was to be completed in order to support Sophie in her goal of developing independent living skills.  Do you see that?

CHAIR:   Have you got the right paragraph?

MR DOLEY:  Yes.

MS BAKER:  Are you able to tell us what a home alone assessment is?  Are you familiar with Life Without Barriers' home alone assessments?  Are they a particular form or a document that gets filled in?

MR DOLEY:  It's either a home alone assessment conducted by Life Without Barriers or, in this case, I see a reference there to service needs assessment profile, which is a SNAP profile, which is prepared by Ageing, Disability and Home Care case worker.  It is my understanding that I believe actually the home alone assessment is something that is prepared by the Ageing, Disability and Home Care case worker.

MS BAKER:  Are you able to say from your review of the documents whether that ever occurred?

MR DOLEY:  No, I cannot.

MS BAKER:  Certainly you don't make any reference in your statement to that having occurred?

MR DOLEY:  No, that's right.
 

MS BAKER:  But that's potentially something that either you or Ms Robbs can get back to us, either later today or tomorrow?

MR DOLEY:  Yes.

MS BAKER:  Secondly, and relatedly, you heard evidence from Sophie about an occasion in 2017 when she was left at home alone whilst the staff took residents out to karaoke?

MR DOLEY:  Yes.

MS BAKER:  Do you speak about that incident in paragraph 81 of your statement?  Is that right?

MR DOLEY:  Yes.

MS BAKER:  You indicate that as a result of that incident, Life Without Barriers said that it would review risk management systems in relation to leaving residents unattended and would review staff training in relation to seizures.  My first question is would you agree that it doesn't appear that staff training in relation to seizures ever occurred post this incident?

MR DOLEY:  Post the incident?

MS BAKER:  Yes, post the incident.

MR DOLEY:  Sorry, I can't comment.  I certainly know that staff training had occurred.  Whether it was pre or post, I'm not sure.

MS BAKER:  Post the incident.  Certainly in your statement you don't make any reference to it happening post the incident.

MR DOLEY:  Certainly I know from the review of some of the documentation, particularly in team meeting minutes, I can see that there are certainly references made to care being provided on a number of fronts and seizures are referenced in there.  To my knowledge, whether training was pre or post provided, I'm not sure.

MS BAKER:  Perhaps if I take you to the document that you refer to at that point, so in your folder there it's at tab 30, bundle C, tab 89.  The final page of that document, we have a review of risk management systems, signed off, with a date completed.

Review of staff seizure training, not signed off, not completed.

MR DOLEY:  On page 6?

MS BAKER:  This is an incident record form.  On page 6 of 7, "Details of follow up  
taken".  We have a date and then there is "Review of risk management systems", "Leaving customers unattended", and there are dates completed next to those lines and then 27/9/17:

Review of staff seizure training.

No date completed?

MR DOLEY:  I take that document as review of risk management systems leaving customers unattended, person responsible, name, date completed October 6, 2016.  Given that that two lines is a one recommendation and then underneath that, review of staff seizure training, you could assume that that was also completed, given that there are two dates and signatures there.

MS BAKER:  When you say we can assume that, you've also given us staff training records and there's no staff training that relates to epilepsy being completed on October 6, 2017.  Are you able to comment as to whether or not there was a review of staff seizure training in light of that?

MR DOLEY:  Well, as far as that person responsible in this document has completed that, then that would be my evidence, yes.

CHAIR:   Is that person still with Life Without Barriers?

MR DOLEY:  I don't believe so.

MS BAKER:  If I could show you another document also dated about the same time, so this is tab 29 of the folder in front of you, and that is bundle C, tab 150.  This is an email.  The chain of the email is from 21 September 2017 and if you proceed three pages into the chain of emails, you can see at the bottom of the page an email sent on 20 September 2017 at 6.12pm.

MR DOLEY:  Yes.

MS BAKER:  Then there are a number of what appears in blue to be questions with answers given.  I think this is between the     potentially the Team Leader and the Program Operations Manager.  Over the page, the Disability Program Coordinator tells the Team Leader:

It is very important that you have a conversation meeting with Sophie and her parents to put together a stay alone at home plan.

It then says:

This does not need to be a large extensive document, more like a list of things for Sophie and staff to do in order to reduce risk and be safe.

 
Then it sets out that there needs to be a hard copy agreed signed plan and there must be a risk sheet and so on.  Would you agree that this document suggests that as at 21 September 2017, there was not stay home alone program that had been prepared?

MR DOLEY:  Potentially, in that it could have been an iteration of such plan.  However, I can't comment on whether it    

MS BAKER:  It doesn't say that it's an iteration:

It is very important that you have a conversation with her and her parents to put together a stay alone at home plan.

You would accept that?

MR DOLEY:  Yes, it is    

MS BAKER:  In your review of the documents, have you seen a stay alone at home plan that was created before 21 September 2017?

MR DOLEY:  No, I haven't.

MS BAKER:  So before 21 September 2017, although Sophie had been at home alone on many occasions, that was done without this written document that should have been created?

MR DOLEY:  Yes.

MS BAKER:  I think you also mentioned in your evidence earlier, and this is the issue you are going to follow up for us at lunch, that there were discussions about Sophie being left alone after she was suspended from REDinc.  She was suspended from REDinc on 1 August 2017.  We can see from this document that as at 21 September 2017, there hadn't been any assessment of her capacity to stay alone at home.  Do you agree with that?  I think you already have agreed with that.

MR DOLEY:  Yes, to my knowledge of     and I have been able to review the material, yes.

MS BAKER:  Based on what we can see from the material, and bearing in mind we don't have a witness who is able to tell us what happened on the ground at the time, would you agree that this indicates that Life Without Barriers had not proactively worked out what should happen with Sophie when she was at home alone during those hours that she should have been at REDinc?

MR DOLEY:  To the degree that I can see relevant information where staff     from my recollection of the information is that staff have provided what they would call a risk assessment process every time that Sophie was left at home, so that there certainly was work being conducted around the provision of Sophie being unattended  
at home as per, you know, becoming independent.

MS BAKER:  You are telling us your understanding is that that risk assessment, those communications, were occurring before 21 September?

MR DOLEY:  Before 21 September?

MS BAKER:  Before 21 September.

MR DOLEY:  I can't comment.

MS BAKER:  You can't comment on that.  Do you agree that the moment Sophie was suspended from REDinc, it was essential at that point in time that Life Without Barriers begin to proactively consider what should happen with Sophie during those hours that she was now going to be at home alone?

MR DOLEY:  Yes.

MS BAKER:  During that period of time     this is pre NDIS     as far as her parents are concerned, she has an agreement that says 24 hour care?

MR DOLEY:  Yes.

MS BAKER:  So you agree that this was an area where Life Without Barriers' communication was clearly deficient?

MR DOLEY:  Yes, yes.

MS BAKER:  And an area where Life Without Barriers could, and should, have done more to proactively assist Sophie through that time?

MR DOLEY:  Yes.

MS BAKER:  In paragraph 184 of your statement, you make reference to an informal investigation regarding complaints by Sophie's mother, Michelle.

MR DOLEY:  Yes.

MS BAKER:  One of the topics of complaint is that Sophie was frequently left alone at the Lismore residence.

MR DOLEY:  Yes.

MS BAKER:  Do you agree that being frequently left alone could at least be capable of constituting neglect in relation to a person with disabilities such as Sophie?

CHAIR:   You mean such a person prone to seizures?
 

MS BAKER:  Prone to seizures, with left side hemiplegia, cerebral palsy     I'm not saying that it is neglect, but it is at least capable of constituting neglect, as stated in the information that you've set out in your statement?

MR DOLEY:  Probably two parts to the answer to that:  one is Sophie's ISP goals and SNAP assessments that were done in 2011 2015 refer to the fact that her independent skills were being worked on and actually had developed significantly in which the SNAP assessment in 2015 shows a downgrading of supervision required.  Her ISP goals talk about independence, managing her own life in term of independent skills, travel, training and the like, and in terms of a process in which an assessment such as the one you're talking about is taken, that would then be referred to the Quality and Safeguarding Commission to determine whether that met the threshold or not.

MS BAKER:  What I'm asking, though, is could it be capable of being neglect in the sense that this is a complaint that requires serious consideration and potentially, after investigation, reporting to the NDIS QSC?

MR DOLEY:  Well, the process, as I said, is that     it's not for me to make a determination on whether it constitutes or not    

MS BAKER:  It's not for you; that's why I asked whether it was capable of, not whether it was neglect.  The question I'm asking is should there have been further investigation of that allegation to determine whether or not it should have been sent to the NDIS QSC?

MR DOLEY:  Yes.  We certainly should have looked into that much further, yes.

MS BAKER:  You say that it wasn't uplined to the ICU?  That's at paragraph 185.

MR DOLEY:  Yes, that's correct.

MS BAKER:  You'd agree that it should have been uplined to the ICU?

MR DOLEY:  Yes.

MS BAKER:  I think you say at paragraph 187 that it's not apparent from Life Without Barriers' records how the investigation was closed out at all?

MR DOLEY:  That's correct.

CHAIR:   Ms Baker, are you coming back to the document at tab 30, namely, the incident record form, that is, the incident relating to the seizure while Sophie was left alone as residents were taken to karaoke?

MS BAKER:  Subject to anything that the witness wanted to elaborate over the lunch  
break, I didn't propose to ask more questions about that, if you have a question, Chair.

CHAIR:   I just wanted to ask a couple of things.  If you go to that tab 30, that's the incident record form relating to the events that occurred on 15 September when Sophie had to be taken to hospital by ambulance at 7.45/8 o'clock in the evening.  When you look at that document, you see that Sophie apparently had a seizure lasting for 10 minutes during the afternoon when she was alone.  Do you see that on page 2 of 7, in the middle of the page?

MR DOLEY:  Sorry, whereabouts?

CHAIR:   Page 2 of 7, tab 30.  Do you see a heading "Details of incident".  Do you see that?

MR DOLEY:  Yes.

CHAIR:   The fourth bullet point:

Seizure early in the afternoon when the staff were out picking up other residents.  Sophie said that it lasted for around 10 minutes.

Then she has the second seizure when staff are out at karaoke that evening.

MR DOLEY:  Yes.

CHAIR:   Do you consider that Life Without Barriers should have taken steps, bearing in mind that Sophie had had a seizure in the afternoon, to ensure she wasn't left alone in the evening on that day?

MR DOLEY:  Yes, I do.  I will also qualify that with in that document I see staff inquired of Sophie as to whether she felt that she would be okay and comfortable staying home, as she usually does.

CHAIR:   I see that.  How would Sophie know whether a second seizure was imminent?  Whether or not someone has a disability, if they have epilepsy, a seizure can occur very rapidly, can't it?

MR DOLEY:  Yes.

CHAIR:   A seizure, tell me if your understanding is different, it is not uncommon for seizures to come in batches, is it?

MR DOLEY:  Well, not to my knowledge, it's    

CHAIR:   Not to your knowledge.

 
MR DOLEY:  No, I'm not    

CHAIR:  We'll find out whether that's correct or not.  Thank you.

MS BAKER:  Mr Doley, you've agreed that that incident     sorry, the complaint by Sophie's mother Michelle, should have been uplined to ICU.

MR DOLEY:  Sorry, are we talking about the seizure or the    

MS BAKER:  Sorry, paragraph 184, the complaint about Sophie frequently being left alone at the Lismore residence.  That was a complaint that should have been uplined to ICU.

MR DOLEY:  Yes.

MS BAKER:  What about the incident involving the epilepsy, which ultimately results in Sophie being taken to hospital by ambulance, is that something that also should have been uplined to ICU?

MR DOLEY:  Sorry, I'm just trying to recollect the dates of ICU reception.

CHAIR:  It was 15 September.  You'll find that on page 1 of 7.

MR DOLEY:  Of the seizure, sorry, in terms of the ICU, yes.

MS BAKER:  That should have been uplined to ICU as well.  To your knowledge, was it uplined to ICU?

MR DOLEY:  No, not that I'm aware of.

MS BAKER:  We have a couple of incidents now, and I think over the course of examination we'll have more, where you've identified incidents that should have come to the attention of ICU that haven't.  How can you assure the Commission that future incidents of this nature will be uplined to ICU?

MR DOLEY:  Well, I think in my evidence, you can see that the organisation's taken significant steps in terms of establishing a national safeguarding unit, that  requirement of that national safeguarding unit is reviewing all incidents that take place.

Secondly to that, there is a significant amount of incident management training that occurs within the organisation, both a learning management system but also at a team meeting minutes system, that is training that is cascaded through all the way up the management line, so it is trained and recognised that incident management, such as these, should be logged into the system and then that system will capture the criticality of that and the subsequent actions taken place.

 
MS BAKER:  So in relation to the epilepsy incident, are you telling us that an incident record form like what we see at tab 30 will now be necessarily reviewed by that body that you've spoken about, regardless of whether it's identified as a reportable incident or not?

MR DOLEY:  Yes, that's correct.

MS BAKER:  You've said that there is further training.  Is that training mandatory?

MR DOLEY:  I believe it's part of our core pathway, so, yes.

MS BAKER:  Do you have records ensuring that all staff have completed that training?

MR DOLEY:  Either completed or engaged to complete, yes.

MS BAKER:  Does the training have assessment as part of it?

MR DOLEY:  Most of our LMS training has a competency based assessment to it, yes.

MS BAKER:  Are you confident that with the additional systems and training that you have in place, that incidents like this epilepsy incident will be captured by the systems and training that you have?

MR DOLEY:  Through the system and the training and the expectation.

MS BAKER:  Okay.  But at the time, I take it, your explanation as to why these shortcomings occurred was that the training was deficient, in that it was not as extensive as it is now and the systems were not as extensive as they are now?

MR DOLEY:  Well, I'm not     as I said, I was not in the organisation at that time.

MS BAKER:  I appreciate that, but you are the witness who is giving evidence about events at that time.

MR DOLEY:  Yes, in terms of my knowledge of the systems, as at the current date, as I have explained, that's how the process should work.

MS BAKER:  I will move on to another topic, resident consultation and compatibility.  I think that that is another topic that you've indicated you have identified as being the subject of some shortcomings and deficiencies.

MR DOLEY:  Yes.

MS BAKER:  I'd just like you to explore the extent of those and the particulars of those.  Firstly, the question of consultation, you've heard evidence from Michelle,  
Greg and Sophie that there was no consultation or, indeed, any notice that the resident Tyler was going to be moving in.

MR DOLEY:  Yes, I have heard that.

MS BAKER:  Do you accept that there was no notice given to any of them?

MR DOLEY:  From my review, yes.

MS BAKER:  In terms of the policies at the time, in the question     immediately above paragraph 37 of your statement, you were asked the question:

Were existing residents and/or their families required to be consulted before a prospective resident was offered a place?

You have only answered that question by reference to policies that post date the NDIS.

MR DOLEY:  Paragraph 36?

MS BAKER:  In paragraph 37.  The question is question (d):

Were the existing residents and/or their families required to be consulted before a prospective resident was offered a place?

Then at paragraph 37, you answer that question:

Following the introduction of the NDIS .....

Do I take it that prior to the introduction of the NDIS, there was no policy that provided that there should or should not be consultation before a prospective resident was offered a place?

MR DOLEY:  No, there certainly is a policy.

MS BAKER:  Okay.  Which policy pre NDIS     firstly, what did the policy provide?

MR DOLEY:  In terms of?

MS BAKER:  Consultation.

MR DOLEY:  Consultation?  That consultation should have occurred with the family, yes.

MS BAKER:  Which policy said that consultation should occur prior to the NDIS?

MR DOLEY:  I believe it's an intake policy that I have certainly reviewed.  I  
obviously don't have it on me at the moment.

MS BAKER:  Perhaps you can come back to that after lunch as well.  Certainly your understanding was that even at the time, consultation was required?

MR DOLEY:  Oh, absolutely, yes.

MS BAKER:  Okay.  Was consultation required even in relation to emergency accommodation such as the Goonellabah house, or were the policies different for emergency accommodation?

MR DOLEY:  No, the policy applies in that residents should be consulted in how staff     sorry, clients come into a property.  There are circumstances in which, due to emergency accommodation requirements for a particular participant, where that may happen faster than an original transitional day may occur, so I'm concerned, aware of examples over my time where, particularly in this relevant period, the New South Wales State Government would call and say we needed an emergency requirement for accommodation, and that could have been at 12 o'clock at night.

MS BAKER:  But there was no suggestion that Tyler was that kind of emergency accommodation?

MR DOLEY:  No, no.

MS BAKER:  So your understanding of the policies at the time was that Natalie     Sophie and also Natalie who was there at the time should have been consulted about Tyler coming into the home?

MR DOLEY:  Yes.

MS BAKER:  Okay.  So is your evidence that the failure to consult constituted a contravention of the policies at the time?

MR DOLEY:  Yes.

MS BAKER:  It's the case that when Tyler moved in, Naomi, Natalie and Sophie were already in the house?

MR DOLEY:  I believe so.

MS BAKER:  If I can just get you to turn back to that residential statement that we looked at earlier at tab 3, which is bundle C, tab 238.  Turning to page 4, it says     this is the residential statement, date issued 20/12/2011.  On page 4 we have the heading "Transport" and then a heading "Who else lives here?"  Can you see that?

MR DOLEY:  Yes.
 

MS BAKER:  Under that it says:

The house caters for up to three residents including you.

So I think you've already accepted that Tyler was the fourth resident in this house.

MR DOLEY:  Yes, that's obviously changed.  Yes.

MS BAKER:  Is there any documentation, any Life Without Barriers documentation, that you've seen that records why and how the decision was made that the house could now have four residents and whether that was a decision of the department or Life Without Barriers?

MR DOLEY:  No, no, nothing.

MS BAKER:  No.  In your review of the documents, have you seen any document that indicates that Sophie and her parents were even notified that the house was now going to be catering for up to four residents rather than up to three?

MR DOLEY:  No.

MS BAKER:  And would you agree that, particularly in circumstances where they have been told that it's up to three residents, it was particularly important that they be notified of that significant change?

MR DOLEY:  Yes.

MS BAKER:  Now, you've also heard evidence that Sophie and her parents said that they felt that support workers had less time for Sophie after Tyler moved in.  Can you tell us were any additional support workers employed when Tyler came into the home?

MR DOLEY:  I couldn't answer that, I guess that's     yes.

MS BAKER:  Perhaps we'll take that up with Ms Robbs tomorrow.  Then also there's another resident that comes into the home, a resident, Lucy, in 2017.  By 2017, it's certainly not emergency accommodation at that stage?

MR DOLEY:  Sorry, what document are you referring to?

MS BAKER:  Firstly, before I take you to the document, 2017, we are not talking about emergency accommodation.  Whenever that date of change is, it's definitely changed by 2017.

MR DOLEY:  Yes.

 
MS BAKER:  As far as you are aware, the policies in 2017 also required consultation.

MR DOLEY:  Yes.

MS BAKER:  If you turn to tab 25, that's an email from the team leader to the programs operations manager     Disability Program Coordinator.  I'm reminded by my instructing solicitor that I need to give a bundle for the assistance of the parties online and it is bundle G, tab 191.  Would you agree that that email indicates that when Lucy was introduced into the house, there was also no notice and no consultation about that?  In fact, it seems that the team leader wasn't even    

MR DOLEY:  Yes     sorry, who?

MS BAKER:  Lucy, that there was no consultation with the existing residents, or their families, when Lucy came in as well?

MR DOLEY:  Yes.

MS BAKER:  You would accept, I take it, that that also constituted a contravention of the relevant policies at that time?

MR DOLEY:  Yes.  Like I have said, we should have consulted on every occasion, yes.

MS BAKER:  Firstly, before I turn to the current policies, are you able to give any explanation as to why in relation to both of these residents there was no consultation in contravention to the policy that you recall?

MR DOLEY:  No, I can't.

MS BAKER:  Okay.

CHAIR:   Did you become aware of these failures and, in particular, the second one, in March 2017, when you took up your position in 2018?

MR DOLEY:  No, I did not.

CHAIR:   What steps did you take when you took up your position, if any, to ensure that staff and residents     that the families and the residents were, in fact, consulted?

MR DOLEY:  Specifically to the case?

CHAIR:   No, generally.

MR DOLEY:  In general, when I took up my role, I did a relevant handover with the previous director and within that conversation, had a conversation around relevant  
key areas which needed attention, but, no, this was not one that came up through this discussion.

CHAIR:  May I take it from that answer that there was nothing that alerted you to the possibility that there may be a problem, as far as Life Without Barriers was concerned, in consulting with existing residents and families when a new person was coming into a group home?

MR DOLEY:  To the point that very early on in my start, I was aware     very well aware of the policy requirements and the practice in which that takes, through visibly seeing it in practice where a panel and consultation has taken place and an appropriate resident is offered a spot in a group home.  So I have certainly seen it in a very positive light where the consultation had taken place and subsequent steps had been made.  So from my understanding when I started, that was the practice in place.

CHAIR:  When was the panel established?

MR DOLEY:  Well, the policy requirement has always been that information gathered     that gathering of information through consultation takes place where a number of people congregate and provide recommendations up to the relevant regional manager, who then makes a decision on whether the compatibility is     based on all the information, compatible or not.  So I have certainly seen that from my start.

CHAIR:   My question was when was the panel created?

MR DOLEY:  I think the panel has always been in the policy.

CHAIR:  Yet, despite the panel having always been in the policy, your predecessor in the office apparently either was unaware or did nothing about the failure to consult that occurred in March 2017 at this facility.

MR DOLEY:  In terms of what the predecessor did, I can't comment.

CHAIR:   I know, but what steps did you independently take to ensure that the policy was actually implemented?

MR DOLEY:  Well, I refer to my previous answer where I have said that I had sat in on and watched practice occur which showed a panel constituted through the consultation of family and residents, a new resident entering a facility.  So I have certainly seen that and then certainly managed that ongoingly in my previous role.

MS BAKER:  Turning to the policies now, which you are more familiar with than the policies at the time, the policy that applies now, according to your statement at paragraph 37, is the NDIS LWB 311 vacancy management procedure, is that right?

MR DOLEY:  Yes.
 

MS BAKER:  You helpfully summarise that for us and tell us that it requires local operations staff, including team leaders, to consult with existing clients, either individually or at household meetings, during the course of identifying a preferred prospective applicant.  You then tell us that the purpose of the consultation is twofold     to maximise existing clients' choice, decision making and control regarding who they live with and to seek input into what would maximise household harmony when identifying the suitable applicant.  So that's your understanding of the current policy?

MR DOLEY:  Yes.

MS BAKER:  In front of you is a policy folder     it's the other folder.  If you turn to tab 87, but if your numbers are like mine, then it should be 17.  The Life Without Barriers number is LWB.1019.0002.004.  I think it's    

CHAIR:  I think it's 0044.

MS BAKER:  Thank you, Chair.  I think it's bundle CC, tab 3.

MR DOLEY:  Sorry, you said tab 87?

MS BAKER:  Yes, tab 87 of your folder.  If you turn to page 6 of that policy, stage 3, identifying a preferred applicant     do you see that?

MR DOLEY:  Yes.

MS BAKER:  Then the last sentence of that passage before the table starts:

Local operations should consult with existing residents.

Pretty much in the same terms that you have extracted in your statement.

MR DOLEY:  Yes.

MS BAKER:  My first question is we have in this policy very clearly defined and numbered steps.  They are steps 1 through to 29.  At the end of the policy there is a really helpful flow chart which numbers all of those steps.

MR DOLEY:  Sorry, yes, yes.

MS BAKER:  This requirement to consult occurs in between steps 16 and 17.

MR DOLEY:  Yes.

MS BAKER:  So it doesn't appear in the really helpful flow chart?

 
MR DOLEY:  No, it doesn't.

MS BAKER:  No.  Do you agree that to ensure that consultation isn't overlooked again in the future, it might be helpful to put a step requiring consultation into that flow chart?

MR DOLEY:  Yes.  I mean, I agree that the flow chart is obviously a surmising of the 29 steps, but, yes.

MS BAKER:  It is?

MR DOLEY:  Yes.

MS BAKER:  But consultation is a critical component; you would agree with that?

MR DOLEY:  Yes.

MS BAKER:  It's not something that should be overlooked?

MR DOLEY:  No, it shouldn't be.

MS BAKER:  To ensure that it is not overlooked, it would be appropriate for it to be in the flow chart?

MR DOLEY:  Yes.

MS BAKER:  What we do have in the flow chart and in the steps is step 17, which is minimum of two staff complete the vacancy management client matching form.  If you could just turn to the next tab, so that's tab 88, LWB.1019.0002.0106, bundle CC, tab 5.  Can you see that form?

MR DOLEY:  Yes.

MS BAKER:  Now, if I could just ask you to     this is where the form begins, on page 2.  We have details of the meeting in which the applications for residency will be considered.  That's the client matching committee meeting; is that right?

MR DOLEY:  Sorry, I'm not sure I understand.

MS BAKER:  Page 2.  We have this form     perhaps if I ask it this way:  who is filling in this form?

MR DOLEY:  This is a form in which     it could be the relevant team leader and/or one of those    

MS BAKER:  The other person that needs to fill in the form?

 
MR DOLEY:  Yes.  Determines a     matching an appropriate applicant compared to the compatibility of others, yes.

MS BAKER:  So the team leader with the other person making the decision with them will include details of the date of the discussion, how many applications are received and then, over the page, they are required to fill in details of the name, age, gender, cultural background, disability and impairments, health needs, sensory needs, support requirements, behaviours of concern, nighttime supports, risk assessment, day activities, mobility, communication skills, strengths, interests and preferences, funding plan status and other information.

MR DOLEY:  Yes.

MS BAKER:  Then over the page, we have more details about the house, the description of the rooms, current roster, dynamics and other specific issues.

MR DOLEY:  Yes.

MS BAKER:  Do you agree that nowhere in that form does it prompt the decision makers to indicate that there has been consultation or what the result of the consultation is?

MR DOLEY:  Yes.

MS BAKER:  Do you agree that that is also something that could be fixed in the future to ensure that consultation isn't overlooked?

MR DOLEY:  Yes, absolutely.

MS BAKER:  Then just returning to your statement at paragraph 37, you note that in the procedure it provides for consultation with the clients, but makes no specific provision for consultation with families.  I think you say, in relation to family, routine practice is that the team leader or program manager will consult.

MR DOLEY:  Yes.

MS BAKER:  Firstly, you've said in your evidence that you oversee about     when you were State director, you oversaw about 135 houses and you weren't involved in the day to day management of those houses.

MR DOLEY:  That's correct.

MS BAKER:  How are you able to tell us what routine practice is at that point?  Is that just from the consultations that you observed?

MR DOLEY:  As in routine practice?

 
MS BAKER:  Yes, when you say it's routine practice, how do you know?

MR DOLEY:  Routine in that, one, I either observed it personally take place, and on some occasions where there is no family and/or guardian, then it is specifically the client that is involved in that.  So    

MS BAKER:  Obviously, if there is no family or guardian, we are not talking about anything other than client consultation, which is provided for by the policy.

MR DOLEY:  Yes.

MS BAKER:  What I'm interested in is the policy doesn't say that there should be any consultation with families, but you tell us that it's routine practice for families and authorised decision makers to be consulted, and I'm just wondering how you are able to tell us that it's routine practice?

MR DOLEY:  Well, from the experience that I've seen it.

MS BAKER:  Okay, and how many consultations have you seen?

MR DOLEY:  Well, over my time as a    

MS BAKER:  Over your time in Life Without Barriers.

CHAIR:   You mean consultation with parents or guardians of residents?

MS BAKER:  Yes, thank you.

MR DOLEY:  Yes.  Yes, I've certainly seen it on a number of occasions, particularly where    

MS BAKER:  Are we talking more than 10, more than 50?

MR DOLEY:  More than 10, yes.  More than 20, I would say, in my time.

CHAIR:   What form have they taken?

MR DOLEY:  Generally in conversation.

CHAIR:   In person, over the phone?

MR DOLEY:  Both.  On many occasions where families are     and/or guardians are involved in it, that can go from a meeting to a phone call, in whatever preferences, I guess, in terms of that particular family or guardian wants to receive that information.

CHAIR:   Who is responsible for undertaking the consultation in accordance with the  
practice you have identified?

MR DOLEY:  It would be the team leader and/or the coordinator.

CHAIR:   Why were you involved in 10 or more of these?

MR DOLEY:  One, to review the practice myself, and I have received     you know, over my time, it is helpful to go in and have a look to observe practice, to make sure that it's adequate, and also part of the process in terms of review that I may have undertaken over my period of time would be to look at relevant areas being implemented within the business.

COMMISSIONER GALBALLY:   Before you go on and leave this topic, and just to follow up on the Chair's questions, I'd like to ask you more about consultation and choice and whether the residents are assisted with supported decision making, to actually choose potential residents to come in.  Consultation can be tick a box, too, so I'd be interested in how many times residents have said "No" to somebody, where they then haven't gone into the house, but I'm interested in both residents and parents and families, but also guardians and whether they have really involved themselves in this fully.  Just a little more information, thanks.

MR DOLEY:  Thanks, Commissioner.  Certainly, to I think your second question there around guardians, I could probably say from my relevant experience, where a guardian is appointed, there are degrees in which some guardians engage in the process, as opposed to others, and I have certainly seen some very, kind of, positive proactive engagement from guardians on the wishes of client compatibility, particularly in terms of need and support.

To your first question, I think, Commissioner, I have certainly seen, and know of, cases where consultation has occurred and, based on relevant information or feedback within that consultation with families or clients, that they have not proceeded with a particular individual moving into that home.  So I've certainly seen practice of that occurring where choice and control is certainly administered and clients' families and guardians have exercised that right and a subsequent decision following through panel to regional manager has resulted in not proceeding with the relevant individual.

CHAIR:   To follow up on Commissioner Galbally's question, are there records that demonstrate how often this occurs?

MR DOLEY:  There would be, yes.

CHAIR:   No doubt, you or Ms Robbs could locate them for us?

MR DOLEY:  We could, yes, go back through our records.

MS BAKER:  Just to follow up on two aspects of that, firstly, in relation to the  
routine practice of consulting with family members or authorised decision makers, if it is routine practice, and it should happen, is there any reason why it's not in the policy?

MR DOLEY:  No, there's no reason why it should not.

MS BAKER:  Do you agree that it would be helpful for the policy to be amended to expressly provide that there should be consultation with family members and/or guardians or other authorised decision makers?

MR DOLEY:  I would say yes.

MS BAKER:  The other question is I think you've told us that you have seen occasions where, as a result of that consultation, Life Without Barriers has decided not to go ahead with a particular resident and maybe to go ahead with a different client instead.  Was that the effect of what you were telling us?

MR DOLEY:  Or not to go ahead with    

MS BAKER:  Or not to go ahead with at all?

MR DOLEY:      at all, yes.

MS BAKER:  I assume, though, that residents and families don't have a right of veto, that even if they say they don't want a particular resident to come into the house, Life Without Barriers reserves the right to say, "Notwithstanding your views, we think that it is appropriate"?

MR DOLEY:  Within the process, yes, there is a decision that is made, yes.

MS BAKER:  Firstly, the procedure at the moment doesn't contain any guidance around what should occur if a decision is made that is contrary to the views expressed by a client and/or their family.  Do you agree with that?

MR DOLEY:  A relevant complaint could be made, yes.

MS BAKER:  Do you agree that it might be helpful for the procedure to provide some guidance around that consultation, in terms of in what circumstances a decision could be made to accept or reject a resident that's contrary to a client's views and to ensure that there is proper communication with the client or clients if a decision is made which is contrary to the views expressed in that consultation?

MR DOLEY:  Yes.

MS BAKER:  Is that also things that you agree that the policy could be improved by including?

 
MR DOLEY:  Certainly.

MS BAKER:  I now wish to move to a topic of resident compatibility, which is related to the topic we've been speaking about.  Goonellabah, as we have discussed, was emergency accommodation when it was first established.  When it was that form of emergency accommodation, was there any resident compatibility assessments that were made at that point?

MR DOLEY:  I can see, certainly from reviewing information, where a conversation had taken place in terms of compatibility, but in terms of actual documentation of what we have gone through here, no.

MS BAKER:  When you say you've seen documents of conversations around that    

MR DOLEY:  Or emails, sorry.

MS BAKER:  Or emails around that, who do they relate to?  Which residents?

MR DOLEY:  They specifically relate to     from memory, Sophie     I believe Sophie and another resident had known each other for quite a significant period of time.  Sorry, I'm not sure    

MS BAKER:  I think it was Sophie and Naomi.

MR DOLEY:  Naomi, yes.

MS BAKER:  Is that the extent of the resident compatibility discussions that you can recall seeing in the papers?

MR DOLEY:  Yes.

MS BAKER:  Certainly you would accept, based on the document I showed you earlier about the resident Lucy, that there was no assessment of resident compatibility in relation to Lucy?

MR DOLEY:  Yes.

MS BAKER:  In fact, the day provider indicated that there were going to be some problems with Lucy moving in.

MR DOLEY:  Yes.

MS BAKER:  In terms of the policies for resident compatibility at the time, looking particularly at the time that Tyler came in to the house, was it a requirement that there be assessment of resident compatibility in the Goonellabah home?

MR DOLEY:  Yes, I believe so.
 

MS BAKER:  And on your review of the documents, did that assessment occur?

MR DOLEY:  No.

MS BAKER:  So you would agree that that is a contravention of that policy?

MR DOLEY:  Yes, as I said, yes, they should have     there should be consultation.

MS BAKER:  That consultation, I think you say, should have been with the existing clients and also with Sophie's parents, Natalie's parents     Natalie's mother and the like?

MR DOLEY:  And the potential incoming.

MS BAKER:  And the potential incoming and potentially other sources of information, such as day service providers, who might be able to add in some additional information to assist in that decision?

MR DOLEY:  Well, yes, anybody who, I guess, would have relevant knowledge to add could be involved in that process.

MS BAKER:  The process of client matching under the current policies is, I think we have seen, much more involved and much more documented than it was at that point in time?

MR DOLEY:  Yes.

MS BAKER:  Do you explain at 31 of your statement     we have covered this in part by looking at the relevant policy in the relevant matching form     that relevant considerations include matters such as age, gender, cultural background, support needs, communication skills and behaviours of concern.  You've heard evidence of Sophie and her parents that they don't think that she was well matched in the house, in particular once Tyler arrived.

MR DOLEY:  Yes, I heard that.

MS BAKER:  In particular, that Sophie's communication skills were very different to the communication skills of the other residents in the house, and that her physical needs were very different to the other residents in the house.

MR DOLEY:  Yes.

MS BAKER:  Would you accept that that's a particular risk for Sophie, firstly, in that the immediate needs of more higher needs residents such as Tyler may well end up taking precedence on a day to day basis compared to her more long term needs of advancing her independence and making relationships?
 

MR DOLEY:  Potentially, yes.

MS BAKER:  In terms of her communication skills, Sophie's communication skills were such that she was going to find it difficult to form relationships with the other residents, in particular with Natalie and Tyler.

MR DOLEY:  Yes.

MS BAKER:  So applying today's current policies and these more involved assessments, if one had a home with Natalie, Tyler and Naomi in it today, what would your expectation be as to whether Sophie would be considered compatible with that house or not?

MR DOLEY:  Applying current day thinking?

MS BAKER:  Yes, current day.

MR DOLEY:  With current day supply, which I think is important, we are comparing a 2011 scenario with the current day thinking in that we are talking about     and I think everybody within Sophie's structure of support, being family, day program, had made acknowledgement over the very relevant period of time that the client compatibility and placement was not one that was, one, meant to be long term and there were subsequent transitions that, unfortunately, didn't happen, but in the Lismore area at that time    

MS BAKER:  Sorry, if I can just stop you, the question is just about today.  I will ask you a second question, which is explaining what happened with Sophie.  My question at the moment is just a client who is relevantly in the same position as Sophie, has the same disabilities, the same communication, would she be placed with a house like this today?

MR DOLEY:  I don't believe she would.

MS BAKER:  Okay.  And now I think you are into answering the other question that you jumped ahead to, which is an explanation as to why Sophie was in this house at this time and, as I understand it, your answer is, firstly, that there were differences in supply     there simply weren't as many houses available; is that right?

MR DOLEY:  Certainly, from my understanding, yes.

MS BAKER:  And, secondly, because Sophie came in under an arrangement that was supposed to be transitional, there wasn't the same kind of resident compatibility decisions as you would have nowadays if Sophie was coming in to an existing home.

MR DOLEY:  It was certainly     yes.  From my reading, it was certainly an emergency transition due to some things that were happening at home and also some  
relevant health needs as well.  So, yes, it was an emergency situation.

MS BAKER:  Then you say for various reasons, it wasn't possible for her to transition out.

MR DOLEY:  No, so what I'm saying is that there were attempts made for her to transition out.  A transition plan in one particular instance, where she'd spent a night in what was to be an appropriate accommodation setting for her, but, however, circumstances led up to that experience, Sophie did not want to leave.  There were regular meetings with families, day provider and LWB and clinicians that recognised that Sophie's environment and compatibility in the household was not okay and she would be more compatible in other residence.  However, all those searches over that relevant period of time amounted to, you know, not being able     possible for her to move.

MS BAKER:  In those circumstances where it was clear that she did not have     her compatibility with the other residents was not as it should have been, in those circumstances, supporting Sophie in that house required very careful management of Sophie and careful attention to the supports that she required.

MR DOLEY:  Yes.

MS BAKER:  In the Life Without Barriers records, there's some documents of community visitors.  Bundle G, 306, I think I have it in     I'm looking at my policy folder.  I think it's tab 38.

MR DOLEY:  Which one, sorry?

MS BAKER:  Tab 38, not of the policy folder, the other folder.  Tab 38 has a particular question after indicating some concerns about Sophie and indicating that, at the bottom of the page:

She is very conversational, relies on conversations to make connection.  None of the other residents in the house have the ability to be able to clearly communicate and engage in conversation with Sophie.

Then it ends:

I believe Sophie to be lonely and seeking companionship with someone of equal intellect and similar interests and capacity for conversation.

The community visitor then asks:

What efforts have been made to address Sophie's issues of loneliness and need for companionship?

In your review of the documentation, does that report ever appear to be answered by  
Life Without Barriers?

MR DOLEY:  This is the first time I've seen the report, so in terms of the answer, no.

MS BAKER:  If I could just ask you to turn over to the very next page, tab 39, bundle G, tab 330, there's another community visitor's report, which, I assume, you also haven't seen.

CHAIR:   Are these documents, Ms Baker, that go to Life Without Barriers?  Are we clear about that?

MS BAKER:  It is a document that we have received from Life Without Barriers, as indicated by the "LWB" tag at the top of the document.

CHAIR:   Thank you.

MS BAKER:  The second page of that document:

Follow up on previous issues .....

Again, the issues raised are concerns about Sophie's limited planned activities, leaving her a lot of time where she has no clear purpose.  At page 2:

Follow up on previous issues.  I did not receive a response from Life Without Barriers to my last report.  I would appreciate a response in order to be better informed on what's planned for residents.

Based on that, it appears that Life Without Barriers hasn't answered the community visitor's concerns.

MR DOLEY:  Yes, I believe so.

MS BAKER:  Do you accept, based on those documents which you have just seen, but also the evidence that you've read and heard, that Life Without Barriers should have done more to support Sophie during her time at the Lismore houses?

MR DOLEY:  I think you can see, through the relevant material, and which I have acknowledged as well already, that more to be done with Sophie in a number of matters.  I acknowledge that and absolutely agree that that is the case.

What I will also acknowledge within that and, particularly in this relevant period, too, is that there     and subsequent to the relevant period that we are talking about here, there were a number of applications that submitted to the agency a request for funding to increase services to be able to provide to Sophie, for particular things that are noted in     again, sorry, it's the first time I've reviewed these, but particular areas that are certainly noted in these community visitor reports, yes.

 
MS BAKER:  When you say "applications to the agency", do you mean to the NDIA?

MR DOLEY:  Yes, sorry, yes.

MS BAKER:  Do I take it from that answer that you considered those matters to be largely the NDIA's responsibility rather than Life Without Barriers' responsibility?

MR DOLEY:  No, no, I do not.

MS BAKER:  Do you accept that, particularly in circumstances where there were these concerns about resident compatibility, if the NDIA wasn't providing the support, it was necessary for Life Without Barriers to step up and provide it?

MR DOLEY:  No.  To answer that question, the NDIA provides the support through the funding which is directly attributable to the amount of hours in which a person receives.  Now, the hours that they receive can be attributable to the significant work that goes on with those individuals and so there is an absolute correlation there that if     in which we said, and everybody within Sophie's social structure said that she was inadequately funded, directly links with the fact that there were not enough hours of support to go to all the things that are in Sophie's life, which I absolutely agree, needed to be accounted for and developed and worked on.

MS BAKER:  If I can just make sure I understand the answer to the question before last, I asked whether or not you considered that it was, effectively, the NDIA's responsibility and I thought you answered, no, it was also Life Without Barriers' responsibility in circumstances where the funding was falling short.  In what respect do you say Life Without Barriers should take responsibility for the lack of support provided to Sophie throughout this time?

MR DOLEY:  Well, to try to clarify my point, I think what I'm saying is that where funding is received for an individual, it determines the amount of hours in which that individual receives support.  What we were saying is that those hours and that funding needed to be more support to go to the relevant needs of Sophie, and there are a number of applications that you can see over the period of time where that support was knocked back, in terms of additional funding for Sophie.  Then when she subsequently leaves, and I think as you would have seen with the NDIS individual that was on, the funding almost doubles in some cases.  So, again, it says that Sophie's requirements, in terms of hours support that she needed, was much more than what she was actually getting funded for within LWB.

MS BAKER:  Okay.  Just to return to my question, which is to what extent does Life Without Barriers take responsibility for this, because to my mind what you're saying is this is the fault of the NDIA who hasn't adequately funded her.  So are you saying that responsibility is on the NDIA or only on the NDIA, or do you also say that Life Without Barriers shares responsibility and, if so, how?

 
MR DOLEY:  Yes, no, I'm saying that     and as I have acknowledged throughout the day, there are fundamental parts here, in terms of Sophie's life, that LWB should have and needed to do better in the care provided.  I'm also saying that some of that is directly attributable to the funding that she received.

MS BAKER:  Okay.  We understand what you say about the inadequacy of funding, but in relation to this issue of support and, in particular, what the community visitors are saying about the fact that Sophie is being left in an environment where she doesn't have anyone to communicate with, she's left alone for too long at her own devices, she's becoming lonely, I can understand what you say about how the NDIA has responsibility for any deficiencies in funding which have led to that situation, but in concrete terms what is Life Without Barriers' responsibility for that situation?

MR DOLEY:  In terms of her funding or    

MS BAKER:  I thought that you had    

CHAIR:  No, no, in terms of fixing the problem.  The problem is identified in the community visitor's report.  I think what Ms Baker is asking you is what is precisely the responsibility of Life Without Barriers in that situation, recognising that applications to the NDIA either haven't been resolved or haven't been successful?

MR DOLEY:  So in terms of the application to the NDIA and our responsibility in that, it's actually the responsibility of the support coordinators.

CHAIR:   We are not asking about that.  We are asking you about what's the responsibility, if any, of Life Without Barriers to address the situation that Sophie found herself in, given that there were not additional supports for the moment at least coming from the NDIA?

MR DOLEY:  I think within the supports that were available to her within the required funding, it was our obligations and responsibility, sorry, to ensure that the appropriate care took place within that relevant time of support.  So in answering the question, particularly regarding Sophie, there is an absolute fact that potentially or particularly around some of the time that she was spending on her own, a more structured environment around some of those activities could, and should, have occurred.

Then working with the relevant key people in Sophie's life to structure more appropriate engagement in things such as, you know, relationships and friendships and, also, you know, the working of     helping her with her independence and that, so, yes, I absolutely think it was our responsibility within that sphere of those hours to make sure that that was occurring.

Chair:  Can I take it from your answer that Life Without Barriers takes the view that if there is no funding through the NDIA for anything outside the specified hours, Life Without Barriers would never contemplate using its own resources to deal with the  
situation such as Sophie found herself in, pending a favourable outcome from the NDIA?

MR DOLEY:  To answer that question, no, I've certainly seen where Life Without Barriers has used its own financials to a point where we weren't satisfied with the level of funding and engaged with the NDIA around that relevant funding.  Where the NDIA still disagrees with us    

CHAIR:  When you say engaged, you mean you asked the NDIA for more money?

MR DOLEY:  Within that process, yes.

CHAIR:   I understand that Life Without Barriers would ask the NDIA for more money, that would ultimately flow to Life Without Barriers.  What I'm asking is whether Life Without Barriers, even without the expectation of the NDIA providing money would, in some circumstances, in order to alleviate, for example, distress or extreme loneliness, use its own resources independently of what the NDIA was doing?

MR DOLEY:  Well, I'd probably answer that, sorry, Chair, that the NDIS was set up to ensure that    

CHAIR:  Could you answer my question, please.  I don't need an historical analysis.

MR DOLEY:  I don't think it's the responsibility of the service providers    

CHAIR:  If the answer is you don't do it, could you answer the next question, what are the accumulated funds of Life Without Barriers as at 30 June 2021?

MR DOLEY:  I'm not sure.

CHAIR:   If you look at the annual report, I think you'll see $49 million to $50 million.

Shall we take a break now?

MS BAKER:   If it's convenient.

CHAIR:   How long do you want the break to be?

MS BAKER:  Is this the lunch break?  Yes, sorry, I've lost track.

CHAIR:   It's 12.40, so I assume we are around about lunchtime.

MS BAKER:  I'm entirely in your Honour's hands.

CHAIR:   If we take an hour, will there be enough time for you to complete your  
examination of Mr Doley?

MS BAKER:  An hour will be enough time, yes.

CHAIR:   Then we will take one hour.  We will adjourn.

ADJOURNED     [12.40PM].

RESUMED    [1.41PM]

CHAIR:   Yes, Ms Baker.

MS BAKER:  Mr Doley, I would like to move now to a topic, again involving Sophie, a question of intimacy and facilitating relationships.  Now, you've heard Sophie's evidence that she wasn't permitted to have her fiance stay over.  She thought that the reason for that was because he would be a hindrance.  Did you hear that evidence?

MR DOLEY:  Yes, I did.

MS BAKER:  In your review of the documents, did they indicate, would you agree with me, that the concern of staff members was expressed as safety concerns in various of the meeting minutes?  Have you seen those documents?

MR DOLEY:  Yes.

MS BAKER:  And would you agree that over a nine month period, those safety concerns are repeatedly raised in the meeting minutes?

MR DOLEY:  Yes.

MS BAKER:  Over that nine month period, the safety concerns are never identified?

MR DOLEY:  By "identified"?

MS BAKER:  Nobody ever says in the meeting minutes what the safety concerns were.

MR DOLEY:  To the detail, sorry, no.

MS BAKER:  Certainly the safety concerns were never resolved; there's no indication in the documentation that Sophie was ever allowed to have her fiance come and stay over.

 
MR DOLEY:  No.

MS BAKER:  I'd like to ask you some questions about the policies that were in existence at the time.  I'll cut to the chase.  Your understanding of the policies that were then in existence, should Sophie have been allowed to have her fiance stay over?

MR DOLEY:  Sorry, were there    

MS BAKER:   You've set out in your statement at paragraph 212, in particular paragraph (a), various policies that relate to the facilitation and restriction of intimate relationships over the period from December 2011 to May 2019.

MR DOLEY:  The policies that relate to that, yes.

MS BAKER:  The question I'm asking you is your reading of the policies that were in place at the time that Sophie was seeing her fiance, that's from 2013 through to 2015, should she have been permitted to have her fiance stay over the night?

MR DOLEY:  Sorry, yes, absolutely, I absolutely agree that in that case Sophie should have been able to have, and we certainly should have facilitated, Sophie to have her partner over, yes.

MS BAKER:  And that's primarily the disability service principles that you make reference to in your statement, which acknowledge that people with disabilities have the same needs for intimate relationships that all people have and a right to receive support that facilitates those needs?

MR DOLEY:  Yes, I absolutely agree with that.

MS BAKER:  It is also consistent, or the evidence that you give now is consistent, with again that residential statement that we looked at at the beginning, which describes the house as "being your home" and says if you want to have friends/family stay over, it is to be negotiated with staff, it doesn't in any way discourage intimate relationships?

MR DOLEY:  No, nor should it.

MS BAKER:  In those circumstances where you've given evidence that she definitely should have been allowed to have her fiance stay over, and you've identified that that evidence is in accordance with the policies at the time, are you able to give any insight into why you think that decision was not made by this team leader, this program operations manager at that particular time?  Was it a defect in training, a defect in understanding, or something else?

MR DOLEY:  No, I think     my statements are quite strong in that, I am of the view that people with disability should be able to have people come to their house and stay  
over, and whether that be friendships or relationships, that is something that should be, first and foremost, an absolute access to having.  What I can see through the relevant material is there is obviously a grappling with some complexity around that, in that over the period of time, in terms of people accessing the house, there are other clients in the house and, you know, staff.  So I think staff have probably tried to grapple with the complexity that might be that, but I stand firm on my statement in that we should grapple with that, ultimately ending in a response that somebody can have their loved ones or friends or partners or explore their relationships within their home, certainly.

MS BAKER:  You've spoken in your evidence about the difficulty that staff had in grappling with those issues.  Perhaps if I jump forward to the present time, the current policies are set out in your statement at 212?

MR DOLEY:  Yes.

MS BAKER:  And those current policies are more detailed?

MR DOLEY:  Yes.

MS BAKER:  There's an even greater recognition of the right to intimacy and the right to support to engage in intimate relationships.

MR DOLEY:  Yes, within those policies there are some very clear statements on rights and responsibilities, dignity of risk, informed choice and that people with a disability have the utmost right to explore their sexuality, intimacy in relationship, yes.

MS BAKER:  So applying those policies, I think it follows from your earlier answer, today, if somebody in Sophie's position wanted to have a long standing boyfriend, fiance, stay over the night, she should absolutely be permitted to have that occur?

MR DOLEY:  Yes, yes.

MS BAKER:  What training is available to staff today to ensure that that understanding is not just your understanding as a policy manager, but that it filters down so that people like support workers and team members, team leaders, are aware of those rights and are in a position to ensure that they can be acted on?

MR DOLEY:  From some specific     there is training for staff around rights and responsibilities and that.  I think I will refer to some of my previous statements in this, where I have said the policy here clearly articulates the ability for people, and so it should, in their expression of facilitating such relationships.  What I think I have agreed to already in that is that the organisation clearly needs to do much more in listening to people with disability in the design of not just an overarching policy statement around exploring relationships, intimacy and particularly sexual relationships, but that needs to be led by and designed by people with a disability in  
terms of how that happens.  It's our job to facilitate that in that way, so I would absolutely say that we have got a lot more work to do in this case.

MS BAKER:  In relation to ensuring that those kind of overarching statements of principle, making it practical practice, would you also agree it that might be helpful in particular for the procedures to contain some more concrete advice, reiterating the evidence that you've given us today that a long standing relationship should be permitted to     a person with a disability should be permitted to have their loved ones stay over the night?

MR DOLEY:  Again, I would agree.  I think at a policy level, you know, that's nice to have that statement, but we're talking about individuals in terms of how they want to explore it.  So my view is that it's not just a large policy statement and some general practice; it's actually a very specific tailored area in terms of how that person living in that home wants to explore those matters.

MS BAKER:  Would you consider implementing some nation wide training, exploring in particular Sophie's case as a case study, in ensuring that support workers and team leaders and operations managers fully understand the force with which Life Without Barriers expresses and holds that right?

MR DOLEY:  Yes, and I'd probably go a step further with that and say not only do I see it as, you know, those policy statements and possibly some generalist training across     we heard from the experts who talked about maybe re imagining the Certificate IV of disability services to have some, so I think they are all good recommendations and suggestions.  I would take it down to a much more granular level, in that every individual's way of wanting to express themselves in this area is not a generic thing and so we should be facilitating things at an individual nature and, therefore, training at an individual level of those support workers or those people in that support structure looking after, or supporting that individual and supporting them to their specific plan, not a very generalised thing but a specific one.

MS BAKER:  How does Life Without Barriers propose to go about engaging that kind of training to ensure that at that individual level, rights are able to be realised?

MR DOLEY:  Yes.  I think, like I said at the beginning of me today is that we are certainly undertaking a piece of work at the moment which will be from a research perspective, but also fundamentally led by/guided by people with a disability in how to explore this.  Naturally, out of that comes a number of recommendations in terms of implementation, training, knowledge, you know, culture, all those kinds of things would be developed out of such a framework like that.

MS BAKER:  We have spoken about staying overnight.  I assume that it also follows from the evidence that you've been giving that you acknowledge, or Life Without Barriers acknowledges, that it could have done more to support Sophie generally in the relationship with her fiance?

 
MR DOLEY:  Yes.

MS BAKER:  Perhaps if I ask it this way:  at Tab 6 of the documents in front of you, the bundle of documents, Tab 6, Bundle G, Tab 30, is a written complaint from Sophie     she spoke about it in her evidence     where she says that her complaint is "not enough staff for training me as a client for what I need", especially for visiting her fiance.  She says she's spoken to the team leader, she's spoken to the manager, she's spoken to people at REDinc, she's spoken to staff at the house and has not been able to get any assistance.

The next page, which is "Management of complaint", is entirely empty.  Firstly, do you agree that after Sophie had gone to the trouble in putting in a written complaint, it should have been responded to in writing?

MR DOLEY:  Absolutely.

MS BAKER:  Secondly, do you agree that this is evidence that apart from the issue of staying overnight, there were other ways in which Life Without Barriers could, and should, have further supported Sophie in relation to that relationship in particular, before moving into other relationships?

MR DOLEY:  Yes.  I note that this is talking about     no, yes, yes.

MS BAKER:  You've also heard evidence that Sophie broke up with her fiance, and I think that happened in around about May of 2015, and at some stage after she broke up with her fiance she began internet dating, and you'd agree that Life Without Barriers staff were aware that she was active on dating apps and that, from the beginning, the staff were concerned about the risks?

MR DOLEY:  I would agree that there was conversations with Sophie's support structure, not just her staff, but in the main everybody, her day program provider and her family, that were concerned about the potential risk of the vulnerability of     potentially through cyber exploitation, yes.

MS BAKER:  If I could ask you to turn to tab 10.  This is bundle G, tab 120, a risk management plan.

MR DOLEY:  Yes.

MS BAKER:  You understand that this, according to the last page, seems to be     or the second half last page, page 5 of 6, the last entry seems to be 3 February 2016, but I understand the metadata indicates that it may have been uploaded to Life Without Barriers' system some time later than that, maybe as late as 2018.  The question I wanted to ask you relates to page 2 of 6.  This is a risk management plan that's filled in by Life Without Barriers staff?

MR DOLEY:  Yes.
 

MS BAKER:  And it indicates under the heading "Relationships and Sexuality", "At risk of exploitation, unsafe sex, behaviours of concern".

MR DOLEY:  Yes.

MS BAKER:  Do you have any idea what her behaviours of concern are that are mentioned there?

MR DOLEY:  Possibly that     you know, I'm aware of some cases where, through discussions with people online, on occasion a couple of individuals may have turned up to the house late at night, male, turned up late at night, unannounced.  That may be    

MS BAKER:   But we don't know?

MR DOLEY:  Yes.

MS BAKER:  Do you agree it should have been more detailed?

MR DOLEY:  Yes.

MS BAKER:  So that we are not speculating about what it meant?

MR DOLEY:  Of course.

MS BAKER:  When we look at the conditions, they include     these are the conditions where the risk is indicated, "Increased use on internet dating sites":

When Sophie begins discussing dating, boyfriends, getting married and having children, discussing her intentions of meeting up with a male friend.

Then under the heading "Means of Prevention" we have:

Encourage participation in activities of interest.  Limiting access to online & extended periods of time alone at home with parental assistance.  Continued sex education community health.  Continued discussions around health & infectious disease.

What I wanted to ask is would you agree that the conditions and the means of prevention are entirely focused on risk and contain no acknowledgement that there should be any factoring in of right to intimacy in that respect?

MR DOLEY:  In the degree that     when we reviewed the plan in context with the actions of staff and the clinician that was a mainstay clinician for Sophie over a very long period of time, there is a significant amount of information that refers to very proactive measures in sexual education, sexual health, family planning clinic, sex ed,  
cyber safety and the like, so I would say in the context of the safety plan, there certainly is a number of areas in which staff and her support network took to, kind of, communicate and explore and educate on all of those matters, yes.

MS BAKER:  So you say the balancing is to be found in the safety plan?

MR DOLEY:  No, sorry, I'm referring to other documents that I have reviewed, yes.

MS BAKER:  Any other documents.  To answer my question, this risk management plan doesn't have any balancing, any recognition of rights in it, but you say you get that balancing and the recognition of rights from other things that were happening at the time?

MR DOLEY:  Yes, in the view that I don't think the safety plan here     sorry, the risk mitigation plan here is to reduce the rights of the individual, being Sophie.  When read in context with the proactive work that is certainly done, I think that strikes a balance.

MS BAKER:  Let's turn to that proactive work, shall we?  Sophie told us about a time when she met a man at a motel and she said that it was a positive experience for her.  After that, the Disability Coordinator sent an email, which is extracted in your statement at 219.  This is an email that says:

The important thing to remember in this and any situation is that Sophie is an adult who is capable of making her own decisions and is entitled to make these decisions, and that staff's role was to support Sophie, provide educational opportunities for Sophie and ensure that Sophie understands the risks associated with the decisions she's making.

Is that the kind of proactive response that you're speaking about in your evidence?

MR DOLEY:  Well, it's part of.

MS BAKER:  It's part of.  I take it that you extracting that email is an indication that you agree that that was an appropriate response to recognise her right to choose and her right to enjoy intimacy?

MR DOLEY:  If I recall this email particularly, there is much more in that email, if it's the one that I'm thinking of, that goes on to say regardless of our own views, we should acknowledge the rights and responsibilities and choice of Sophie and it's our job to ensure that we support her through that, if that's the email that you are referring to.

MS BAKER:  Okay.  She certainly indicated on a number of occasions that she was very interested in looking for a relationship, and if you turn to Tab 17     sorry, Tab 17 is the letter.  Is that the email that you were referring to earlier?

 
MR DOLEY:  Yes.

MS BAKER:  Then if you turn over to Tab 18, which is Bundle C, Tab 266, this is a person centred plan    

MR DOLEY:  Yes.

MS BAKER:  And page 12, goal 5    

MR DOLEY:  Sorry, which page?

MS BAKER:  Page 12.

CHAIR:   Do these have numbers?

MS BAKER:  At the very bottom of the page.  Goal 5:

Socialise, find a boyfriend and maybe marry one day.  The measurable objective is contact friends and organise social outings with prompts and information sharing from staff and others.

If one then goes over the page, "Work toward this goal", "What progress has been made" is not filled in.  As far as you were aware, was this document ever reviewed to examine whether or not Life Without Barriers was taking action to help support Sophie in realising that goal?

MR DOLEY:  The way this document works is, if you look at the front page, PCP meeting date and then it has a number of reviews, so to my knowledge, in terms of whether the review had taken place, I'm not sure, but I'm assuming that this is the first document within that which    

MS BAKER:   Okay, and you are not able to tell us whether you've seen any further ones that indicate whether this goal was followed up or not?

MR DOLEY:  Not from a chronological review that I've done, no.

MS BAKER:  Have you seen any documents from Life Without Barriers that indicated that they were assisting Sophie to contact friends and organise social outings, or in any way helping her to find an appropriate person to have a relationship with?

MR DOLEY:  Not that I can recall, no.

MS BAKER:  Do you agree that Life Without Barriers could have done more to support Sophie in that respect?

MR DOLEY:  In finding?
 

MS BAKER:  Yes, in helping her to access parts of the community where she would find a suitable person to engage in an intimate relationship with?

MR DOLEY:  Yes, we certainly could have done more there, yes.

MS BAKER:  I'd like to now ask you some questions about the relationship rules.  They are at tab 21, hearing bundle C, tab 366.  This is the interim rules and they are amendmded subsequently to add an extra rule.

You've become familiar with these rules in preparation for this hearing?

MR DOLEY:  Yes, I have read the safety plan, yes.

MS BAKER:  I'm calling it "the relationship rules", rather than "the safety plan", because, as you are probably aware, Sophie's positive behaviour support plans are also called "safety plans", so in order to distinguish the two, that's why I'm referring to this as "the relationship rules".

MR DOLEY:  Okay, yes.

MS BAKER:  In relation to these relationships rules, I think you already mentioned that you heard the evidence of the experts, Jodi Rogers and Liz Dore    

MR DOLEY:  Yes, I did.

MS BAKER:      and they criticised a number of aspects of these rules.

MR DOLEY:  Yes.

MS BAKER:  I just want to take you to some specific criticisms and ask you whether or not you accept those aspects of the criticisms.

MR DOLEY:  Okay.

MS BAKER:  Firstly, the topic of privacy.  Jodi Rodgers gave evidence that there are definitely parts of this plan that go against somebody's basic right to privacy in their own home.  I note in that respect again the residential statement in tab 3 that says:

Your bedroom is your own personal private area.

Do you accept Ms Rodgers' criticism of the rules as interfering with Sophie's basic rights of privacy?

MR DOLEY:  Yes.

MS BAKER:  Secondly, in relation to the notion of home, Liz Dore gave evidence:
 

I'm really concerned that someone can't bring a person home, because that's what home means, that you can have family over or friends over or someone over for the night.

I think you may have already answered this, but I take it you also accept that criticism of these rules?

MR DOLEY:  Yes.

MS BAKER:  Compatibility, Jodi Rodgers gave evidence:

It's actually used Tyler's name saying that it can't interfere with Tyler's care.  That means Sophie's decisions and choices about who can come into that home or who can't come into that home is really now based on risk management of other clients.

Do you agree with that criticism?

MR DOLEY:  I think that is starting to bring out some of the complexity in this, yes.

MS BAKER:  Do you agree with the criticism or not?

MR DOLEY:  No, I do, yes, in terms of other clients within the household and how people coming and going interfere potentially, yes.

MS BAKER:  Secondly, or fourthly, the definition of intimate action, or lack thereof, Sophie gave evidence that she thought it included kissing and cuddling.   There is certainly nothing on the face of the document that indicates what intimate action is planned is supposed to refer to.  Jodi Rogers gave evidence:

I'd want to make sure anyone I was working with had a full comprehensive understanding of what any intimate action actually means because that can be interpreted in a number of different ways.

Do you accept that criticism of these rules?

MR DOLEY:  As far as a person that did review this plan was Sophie's clinician, who I know had engaged in some regular sex ed and conversations and a program around that, so if Sophie was, and as her evidence, unaware of what that meant, then, yes, inappropriate, but the people who developed the plan were the ones that were working closely with Sophie.  So in the context of Sophie not understanding     you know, making statements to say that, then, yes, that would be appropriate.

MS BAKER:  Even if Sophie did understand what was meant by it, there are staff members who are coming in and out of this home who are required to enforce this plan, so uncertainties in the plan are deficient in that respect, too, would you agree?
 

MR DOLEY:  Potentially, but what I would also say again is that we are talking about individuals that were longstanding individuals working with Sophie who knew Sophie and had engaged in those conversations with her quite regularly.  So I can't speculate if the term "intimate action" was something that someone knew or not.  I'm just making the reference that the people developed this are making an assumption that everyone knew what that meant, yes.

MS BAKER:  But the other criticisms we have gone through, you accept each of those?

MR DOLEY:  Yes.

MS BAKER:  Then in relation to choice, the evidence was when young people are living together, they have a choice of who they are going to live with, they choose to live with people who have common interests to them, they are similar, those choices are not made for them.

You heard Sophie give evidence that she agreed to follow the rules, not that she agreed with the rules, in the sense that she fundamentally objected to the failure to recognise her maturity and, in fact, they are inconsistent with the preamble which says this is her home and she would like to meet people on her own turf.  Given that, do you also accept the criticism of the experts that these decisions should not have been made unilaterally over Sophie's choice?

MR DOLEY:  I accept that     two things here:  one is my understanding of the way that these were developed was in consultation with Sophie's support structure and people and also family, and that had been reviewed there, and then meeting with Sophie.  My view on that is that Sophie should have been the first person that a conversation such as     if this was appropriate, to engage with, not the last, and by virtue of that, by LWB developing these, meeting with the family and then with Sophie, I think that process is wrong and it certainly doesn't cater for the voice of Sophie at the very forefront of any development of any plan.

So it's my fundamental belief that she should have been consulted first on development of this, not last, and then determine whether it's appropriate or not.

MS BAKER:  If, in fact, she didn't agree with them, in view of the criticisms that you've already accepted, these rules would not have been appropriate?

MR DOLEY:  Yes if     yes, absolutely.

MS BAKER:  Then, penultimately, in relation to the notion of risk, Jodi Rodgers gave evidence:

But the other thing is that when we ask somebody to take this offsite, we are actually forcing them into something that may be more unsafe.
 

Do you accept that criticism?

MR DOLEY:  Yes, I accept that we certainly should have done more in the provisions of that engagement externally, yes.

MS BAKER:  Perhaps if I unpack that a little bit more.  As I understand your evidence, you have accepted that a person in Sophie's position should be able to engage in sexual intercourse within their own home, even when it's a group home.

MR DOLEY:  Yes.

MS BAKER:  So by directing Sophie that if intimate action is planned, it must be off the premises, then that rule has effectively forced Sophie into something that may be, in Jodi Rogers' words, more unsafe.

MR DOLEY:  Yes.

MS BAKER:  Do you agree that that aspect of the rules effectively outsourced the risk to Sophie?

CHAIR:   I'm not sure what it means.

MS BAKER:   I withdraw the question, Chair.

CHAIR:   Mr Doley, do you know whether any similar safety plans were enforced at any time prior to your arrival in your position in 2018 at LWB?

MR DOLEY:  No, I do not.  I don't believe there were.

CHAIR:   You don't believe there were?

MR DOLEY:  Yes, and, to my knowledge, no.

MS BAKER:  This is entirely unique to Sophie.

MR DOLEY:  Potentially, I'm not sure.

CHAIR:   Is your answer based on inquiries or just you haven't heard of any such plans?

MR DOLEY:  I haven't heard of any such, no.  I have not inquired (inaudible).

CHAIR:   Can I ask you, please, a question about the document which appears at tab 85.  That's the NDIS LWB independence and informed choice procedure.  I think Ms Baker asked you about this.  It bears the date of the last review, on the first page, of 18 January 2018, which is some months before your arrival.  Do you know what  
caused this document to be prepared?  Tab 85 in, at least in mine, volume 2.

MS BAKER:  Can I indicate for the record that that is LWB.0007.0001.6112, which is found in bundle C, tab 316.

CHAIR:   I assume Mr Doley has the same    

MS BAKER:  He has the same.

CHAIR:   Have you found that at tab 85?

MR DOLEY:  Yes.

MS BAKER:  I'm asking what, in effect, was the provenance of this document?  How come LWB decided to produce this document?

MR DOLEY:  Well, looking at the date, and given how close that is to the transitional role out of the NDIS, it would be my view that a document such as this, given the language of independence, informed choice, is probably coinciding with the rollout of the NDIS.

CHAIR:   I'm sure it did, but if you don't know, you don't know, that's fine, but I'm wondering whether, for example, does this document reflect guidance given by the NDIS, or was it a document produced as the result of an initiative within LWB?  If you don't know, you don't know.

MR DOLEY:  No, sorry, I don't know.

CHAIR:   Ms Robbs may be able to help us with that.  Thank you.

MS BAKER:  In relation to those policies which you've spoken about and which are in the statement which is contained in tab 85 and following, is it the case that those policies also indicate     perhaps if I take you to the policy, so tab 85, page 7, the final dot point on the page, one of the things that LWB is undertaking to assist clients is:

Supporting staff regarding issues of consent, including educating clients, carers, to understand once a person turns 16 plus years.  In most cases, their parents or guardians only have a limited say in who the person chooses to have a relationship with.

Can you see that?

MR DOLEY:  Yes.

MS BAKER:  That's a theme which is found both in the policy and also in the procedure, this concern about a potential conflict of interest, by going to family  
members, particularly parents, in seeking guidance about what to do in facilitating sexual relationships.

MR DOLEY:  Sorry, I'm not sure I understand the question.

MS BAKER:  Perhaps if I ask it a different way, Sophie's father was involved both in the making of the plan and also features in the plan, particularly in terms of the making of the plan.  Do you accept that there are some difficulties there in approaching a client's father about how their rights to engage in sexual activities should be realised?

MR DOLEY:  In this specific case that we are talking about, Sophie's family was extremely engaged in not just the direction of her life, but subsets of that, so also noting that within some of the documentation, Sophie refers to wanting her parents to know certain elements.  So I would think that there are elements of this where, given the involvement of the family, and consent from Sophie, it may be appropriate to have open discussions with family about such things, or may not, if the individual does not give consent.

MS BAKER:  Certainly even when consent is given, it needs to be done very sensitively, accepting, as Sophie's father gave evidence, that it's a very difficult thing for a father to have to make decisions about when and how his daughter is to exercise the right to engage in sexual relationships.

MR DOLEY:  I think, you know, therein lies a large amount of the complexity you saw was very raw from Sophie's father in testimony that he gave.  I thought it was very powerful.  The difficulty there in freedom of expression and choice and independence, as well as trying to ensure that their loved one is safe, I thought it was an extremely powerful sentiment in terms of the complexity that we are dealing with here, yes.

MS BAKER:  That's why Life Without Barriers has to be particularly careful in this kind of area, that even when parents and guardians are consulted, it needs to be borne in mind that these are very difficult and complex questions for them to be able to provide support, in contrast to some of the other aspects of Sophie's life, which are not quite so complex and don't involve those difficult issues.

MR DOLEY:  Certainly.  Certainly, yes.

MS BAKER:  You've accepted a number of the criticisms about this interim plan.  You understand that there is also a final plan which extended those rules and added another rule that Sophie couldn't see any visitors after 6pm?

MR DOLEY:  Yes.

MS BAKER:  I assume you accept the criticisms of that rule as well?

 
MR DOLEY:  Yes.

MS BAKER:  Prior to this Royal Commission, has Life Without Barriers conducted any review, any consideration of the appropriateness of these relationship rules?

MR DOLEY:  I don't believe so, no.

MS BAKER:  Can I take you to tab 32 of your mini bundle, which is hearing bundle G, tab 266.  If I could take you to page 3 of that document, this is an email dated 3 November 2017 from the then regional manager to the disability support coordinator.  In that email, the regional manager asks a number of questions about these relationship rules. Have you seen this email before?

MR DOLEY:  Yes, I have.

MS BAKER:  You have?

MR DOLEY:  Yes.

MS BAKER:  Did you annex it to your statement?

MR DOLEY:  I have seen this following my submission statement.

MS BAKER:  Following your statement?

MR DOLEY:  Yes.

MS BAKER:  Are you aware of whether this email was ever answered by anyone?

MR DOLEY:  No, I'm not.

MS BAKER:  It wasn't answered?

MR DOLEY:  No, I'm not aware if it was.

MS BAKER:  Have you looked to see whether or not it was answered?

MR DOLEY:  No, I have not.

MS BAKER:  We might take that up with Ms Robbs tomorrow.  The regional manager raises a number of concerns.  What I'd like to ask you about just now, she says at points 7 and 8 of the plan     if you need to refer to the final plan, it's at tab 27, but, basically, rules 7 and 8 are the rule about intimate meetings being planned must be off premises and if at any point the staff feel she's at risk, they are to call management and Sophie's mum or dad.  This regional managers asks     points 7 and 8 appear to be more about staff safety than Sophie's and could also be seen as restrictive practices.
 

Have you given any consideration as to whether those rules could constitute a restrictive practice, either at that time or now?

MR DOLEY:  In points 7 and 8 of the plan?

MS BAKER:  Yes.  The regional manager is raising the question these points seem to be more about staff safety and they could be seen as a restrictive practice.  Have you given any consideration as to whether those rules were a restrictive practice?

MR DOLEY:  No, I have not.

MS BAKER:  Do you accept that they could potentially be a restrictive practice?

MR DOLEY:  I think point 8 refers to if they feel Sophie is unsafe, to contact on call, and mum and dad as well.  So I don't think that one    

MS BAKER:   Maybe not that one.  What about point 7?

MR DOLEY:  I think point 7    

CHAIR:  Sorry, are you asking Mr Doley whether he has given consideration to whether this could be a restrictive practice, or are you asking his opinion as to whether it was a restrictive practice?

MS BAKER:  I began by asking him if he'd ever given consideration to it.

CHAIR:   That's what I thought.

MS BAKER:  I understood the answer to be that he hadn't given consideration to it.

CHAIR:   Right.

MS BAKER:  I'm now asking him whether, sitting here today, he thinks that it could be a restrictive practice.

CHAIR:   How will that help?

MS BAKER:  If that doesn't assist, I'm happy to move along.

CHAIR:  I'm not sure it does.

MS BAKER:  My final question on the relationship rules, Mr Doley, the regional manager asks whether the safety plan was incorporated into the Positive Behaviour Support Plan     that's the final point     and do you agree that it was not incorporated into her Positive Behaviour Support Plan?

 
MR DOLEY:  No, and I'm     as you put the question to me, I'm wondering whether it should or shouldn't be incorporated into the Positive Behaviour Support Plan.  That's something I'd have to think     I'd have to think about that, yes.

MS BAKER:  To your knowledge, it wasn't included and your uncertainty is whether or not it should have been?

MR DOLEY:  Yes, certainly I don't think it has and whether it's appropriate to be in behaviour support plan or not.

MS BAKER:  That's all I wish to ask you about the relationship rules.  The next topic I wish to ask you about is sex education.  You heard Sophie give evidence that she would like to receive more sex education?

MR DOLEY:  Yes.

MS BAKER:  In your statement, you speak about the sex education that Sophie did, in fact, receive.

MR DOLEY:  Yes.

MS BAKER:  In particular at paragraph 223 of your statement, you make reference in the third line to an email where the team leader noted that Life Without Barriers had previously conducted several months of sex education.

MR DOLEY:  Yes.

MS BAKER:  Firstly, in your review of the documents, have you come across any documents that indicate when that sex education was conducted, who it was conducted by and what it covered?

MR DOLEY:  Yes, I have.

MS BAKER:  Where do we find that in your statement?

MR DOLEY:  It may not be in my statement, but it's certainly in the bundle of information that is to review.

MS BAKER:  We might come back to either you or to Ms Robbs on where we find the particulars of that.  You also at paragraph 222 reference an email which indicates that sex education was conducted by REDinc.  Have you come across any documentation that indicates whether Life Without Barriers sought any information from REDinc as to what was covered in that training?

MR DOLEY:  There are some substantial meetings between Life Without Barriers and REDinc and her family in regards to Sophie and the work being done with Sophie    
 

MS BAKER:   That's not my question.  My question is, is there any indication in the material provided, the documentation of Life Without Barriers, as to what was covered in that sex education?

MR DOLEY:  Other than that it was done    

MS BAKER:   Other than that it was done, no?

MR DOLEY:  No, I can't see any form of documentation that outlines the program that they went through, no.

MS BAKER:  As far as you can tell, did Life Without Barriers ever send those relationship rules to REDinc?

MR DOLEY:  Not that I'm aware of, no.

MS BAKER:  Do you agree that Life Without Barriers could, and should, have worked more closely with REDinc in relation to sex education, both in terms of sending them important documents like the relationship rules, to let them know what Life Without Barriers was doing on your side, but also inquired more of REDinc to ensure that the sex education that they were providing was on topic and that it could be reinforced in the home?

MR DOLEY:  No, I think the relationship, as I have said, between Life Without Barriers and the day program was very open, it was very honest and there was a lot of information sharing that related to Sophie and what was taking place in her life, or things that we were working on.  So, as far as the actual documentation of a program, I can't see if that has occurred in terms of it, but I can see that at almost every meeting with family and at every meeting that was an IP or talking about Sophie, the day program was there, so, yes, there was a lot of sharing of information, yes.

MS BAKER:  Sharing of information, but in terms of understanding what they were covering in the sex ed, there is no documentation that indicate that is Life Without Barriers had any idea about the extent of the sex education that was being covered?

MR DOLEY:  Well, again, I think I refer to my previous answer.  As far as     there is obviously meeting minutes that say that REDinc is providing sex education for Sophie.  That's documented in there, that that's actually been provided so    

MS BAKER:  But in terms of the quality of that sex ed, you have heard Sophie's evidence that it was largely cyber education     don't put your phone number on a social media device     and very little, if any, about how to have a safe, respectful relationship.

MR DOLEY:  Well, I think the material that I have read would show a different sexual education that's been provided, not just in a general nature but also very  
specific in terms of some of the appointments with the sexual health clinic and the family planning clinic that Sophie attended to, in terms of practising safe sex, making sure that she was safe.  There's references there to adequately putting on condoms and, you know, it's very detailed in terms of some of the work that was    

CHAIR:  No doubt you'll be able to provide the documentation that demonstrates that.  It's very difficult for us, I think, to deal with your recollection of what may be in documents.  The best thing to do is produce them and we'll see what they contain.  That might be arranged through the office of the solicitor assisting.

MR DOLEY:  Yes, we can provide those.

MS BAKER:  Thank you, Chair.

You also set out in your statement training that workers had in the Lismore houses during the relevant period which would enable them to properly support Sophie    

MR DOLEY:  Sorry, what page?

MS BAKER:  This is paragraph 230.  If I can just go through each one, right now you are addressing the training that Life Without Barriers provided, in particular to workers, to assist in their support of Sophie during this period of time.

MR DOLEY:  Yes.

MS BAKER:  You identify four subparagraphs.  The first is dated 25 February 2016 and it's, of course, responding to sexual assault training.  You tell us that the staff at the Goonellabah house were encouraged to attend.  Do we take it that that wasn't mandatory?

MR DOLEY:  No, I don't believe it was mandatory.

MS BAKER:  You can't tell us who attended that?

MR DOLEY:  No.

MS BAKER:  Based on the title, "Responding to sexual assault training", it wouldn't appear to be about facilitating safe relationships.

MR DOLEY:  No, it's very specific training, yes.

MS BAKER:  Then we have an email sent by the Program Coordinator     that's the email that we have spoken about earlier     and it says that more detailed conversations should be referred to a sexual health clinic, or other sex education contacts provided to their team leader.  Then there are two other documents.  One, November 2016, email guidance was provided to the regional operations manager by the practice leader in relation to problem sexualised behaviours.  You've helpfully  
given us references to that email, which I think you can see at tab 19.  Would you agree that what we are dealing with     actually, I will move on to the next one.

You've said that relevant resources were distributed and that document can be found at tab 12.  Tab 12 is actually, I think, the document I was looking for earlier.

CHAIR:   Ms Baker, is the point that none of these documents provide instruction in communicating about intimate sexual relationships?  Is that the point?

MS BAKER:  That is the point, Chair.

CHAIR:   I'm sure that Mr Doley will agree that none of these documents address those issues.  Do you agree?

MR DOLEY:  These specific documents you are referring to?  The policy guidelines, no.

CHAIR:  Then we can move on to the next document, I think.

MS BAKER:  Thank you, Chair.  The next question I wish to ask you about, just to continue dealing with Sophie, relates to the period of time after her sexual assault.

MR DOLEY:  Yes.

MS BAKER:  Whether those relationship rules were justified or not, regardless of the criticisms that are made about them, it's the case that Sophie was sexually assaulted after she left the house in accordance with those rules; do you agree?

MR DOLEY:  Sophie was sexually assaulted, yes, outside of the home.

MS BAKER:  Yes, and after having left, because she was told that nobody could come in.

MR DOLEY:  Sophie     yes, Sophie did leave the house, yes.

MS BAKER:  She left the house after being reminded that it was 9pm and the rules did not permit her to have people in her home after 6pm.

MR DOLEY:  My understanding is that Sophie had discussed with her staff that she wanted     was going to meet an individual, who was going to pick her up from the house.  Staff went through the appropriate process with her, in terms of being safe, contacted family, and it was everyone's indication that that was to go and have a meal, yes.

MS BAKER:  She was sexually assaulted after she left the house, in the context where rules did not permit her to have male friends, or any friends, into the home after 6pm.  In those circumstances, do you agree that there should have been an  
internal review which considered the appropriateness of those rules at that time?

MR DOLEY:  Yes, yes.

CHAIR:   Did you want to add something?

MR DOLEY:  I was going to add that when you refer to a review, I think what I can see is subsequent, after the sexual assault, there was an immediate meeting that took place with Sophie's family and her day programming and Life Without Barriers to review a number of things.

MS BAKER:  Should upper levels of management have been informed both of the rules and of the sexual assault?

MR DOLEY:  Yes.

MS BAKER:  And I think you say that when you came into the position, you had no knowledge of this sexual assault, when you came into the position as state director?

MR DOLEY:  No.  I mean, I came in at, yes, a much more later period, so, no, I did not have knowledge of this.

MS BAKER:  To your knowledge, based on your review of the documents, did your predecessor have any knowledge of this event?

MR DOLEY:  Possibly.  I can't    

MS BAKER:   Based on your review of the documents.

MR DOLEY:  No, I can't     sorry.  I'm not sure, sorry.

MS BAKER:  Okay.  You tell us at paragraph 238 that Life Without Barriers has not located any reference to the sexual assault on Sophie in any board or executive committee papers and minutes.  You say that it's not possible to confirm if any verbal reports were made.  Would you accept that this is a matter that should have been brought to the attention of the board?

MR DOLEY:  As far as, you know, to comment on the Life Without Barriers board and relationship in terms of board and CEO, I'm not a part of the executive team, so I    

CHAIR:  I think that's fair enough.

MR DOLEY:      I can't comment on that.

CHAIR:   I don't see how Mr Doley can tell us what should have been communicated to the board.  Ms Robbs may well be able to tell us about that, but we have to bear in  
mind that Mr Doley only comes into this in late 2018.  Many of the documents will speak for themselves, so I'm not sure that it takes us very much further to get Mr Doley's opinion on     certainly what he can say what  should have happened in accordance with his understanding of proper procedures, but as to dealings with the board and so forth, that is something that does not necessarily seem to come within his provenance.

MS BAKER:  Finally in relation to the response to the sexual assault, you've heard evidence from Sophie and her parents that the staff were very cold and provided very little support.  In fact, they were blamed for the additional costs of security cameras.  Do you agree that more should have been done to support Sophie and her parents in the aftermath of the sexual assault?

MR DOLEY:  Yes.  Look, I certainly heard I think it was Sophie's mother's account of the meeting subsequent that took place, and if that meeting took place the way it did, that is entirely an inappropriate response, nor should we be communicating any issues such as financials around cameras being installed, particularly given such a critical event.  So my view on that is if that took place, that's not appropriate.

In terms of support given, yes, I think we should have done better in terms of the family.  I think you can see through the documentation Sophie engaging in a significant amount of counselling with a provider over a relevant period of time until Sophie actually decided after a number of sessions that she didn't want that to continue.

MS BAKER:  When you say "a provider", a provider arranged by Life Without Barriers?

MR DOLEY:  Indigo House, I believe, is the    

MS BAKER:  Was that arranged by Life Without Barriers or by the DPP?

MR DOLEY:  I believe it was by Life Without Barriers.

MS BAKER:  We might double check that.  In terms of general support, would it also have been of assistance to bring in a counsellor to give further advice to the staff to assist them in assisting Sophie?

MR DOLEY:  Yes.

MS BAKER:  In particular, you heard Sophie say that the staff didn't tell her who she was allowed to speak to about the sexual assault    

MR DOLEY:  Yes, I heard that.

MS BAKER:      and that communication was definitely lacking.

 
MR DOLEY:  We should have been able to communicate with Sophie around who and in what cases, if any, staff could not engage in conversation around that due to some legal proceedings, yes.

MS BAKER:  So more involvement of upper level management in helping to guide the staff members who were themselves stressed at the time would have been of assistance then.

MR DOLEY:  Yes, look, I think immediately after the response from that incident, you can see management bringing those staff cohort together in a kind of debrief conversation and also looking at appropriate actions moving forward.  So there is certainly some proactive strategy there  and you can see things implemented around.  So they are concerns that they had and, subsequently, you can see the cameras being put in and duress alarms and the like, and also looking at the On Call response and making sure that was more appropriate and people could be there when they needed them for it.  In terms of, kind of, ongoing possibly EAP or counselling or guidance, yes, we    

MS BAKER:   In particular, guidance about how to support Sophie because, as you have accepted, one of the things which nobody thought of was who is somebody that Sophie can go to when she's feeling stressed and confused about what has just happened to her, and there was clear communication deficit in that respect.

MR DOLEY:  Yes.  I agree that no one specifically that I can see sat down.  Sophie had a key worker who, on a number of her occasions that went through     and she made reference to her first sexual encounter and the positive experience of that, you can see staff within that experience and/or this one engaging with Sophie on such a very empathetic and kind of educative response, which then results in some subsequent action from those events.  So there were certainly longstanding staff there that had provided some very proactive response, but I will take to the point that Sophie made the comment, you know, she wasn't sure who to go to, so we should have communicated that.

MS BAKER:  That was a clear deficit in that respect?

MR DOLEY:  We should have communicated, yes.

CHAIR:   Ms Baker, I see we are now at 2.50.  Are you planning to pursue the issue associated with Natalie?

MS BAKER:  Yes, they will be considerably shorter.

CHAIR:   The timetable provided for us to take a break in the afternoon.  Are you still planning on doing that?

MS BAKER:  I don't need a break, unless the Commission wants a break.

 
CHAIR:  Do you need a break?

MR DOLEY:  No.

CHAIR:   In that case, let us continue, unless one of the Commissioners calls out and demands a break for a few minutes, in which case we will.

MS BAKER:  I can very briefly finish    

CHAIR:   In the absence of such a call, we shall continue.

MS BAKER:  I can very briefly finish    

MS MITCHELMORE:   I'm sorry to interrupt.  I just wonder whether Mr Doley might be able to get some more water.  He appears to be out of water.

CHAIR:  There is actually a very large container of water which he is now putting into his glass.

MS MITCHELMORE:   I'm grateful, thank you, Chair.

CHAIR:   We don't want anybody to dehydrate.  I have had enough experience myself from that.

MS BAKER:  Okay.  Mr Doley, the last thing I want to ask you about in relation to Sophie is the March 29 incident.  That's the incident on 23 March involving Sophie and two support workers.  After Sophie's return from court, a support worker ignores Sophie, a verbal argument with the support worker ensues, the support worker then pushes Sophie and Sophie is then shut in the laundry.  There is an investigation which leads to an investigation report dated July 2019.  That investigation report finds none of the allegations made against the support workers to be substantiated.

You heard the cross examination, or the examination of Samantha Taylor from the NDIS    

MR DOLEY:  Yes.

MS BAKER:      on Wednesday of last week and the criticisms that were made of that investigation, which Ms Taylor accepted.  Do you agree with those criticisms?

MR DOLEY:  Yes.

MS BAKER:  Can you just tell us what aspects of that report you feel were inadequate?

MR DOLEY:  Well, for starters, I think the allegation that Sophie was pushed by a worker.  In reading some of the transcripts of that investigation report, not only was  
that referenced by Sophie herself in an interview, it appears that the worker had also admitted to that taking place, so by virtue of that, I think the allegation of did that occur should have been substantiated, yes.

MS BAKER:  You are also aware     if I could get you to turn to tab 42, which is bundle G, tab 4, this is a separate document to the investigations report.  It's entitled "and Systemic Issues Identified During the Investigation".  Can you tell me why this forms a separate document to the final investigation document?

MR DOLEY:  I believe a document such as this is conducted and goes to     with the investigation report, it goes to what they call an outcomes meeting and provides further understanding of the investigation or incident.

MS BAKER:  In that operational and systemic issues document, a number of criticisms are made, in particular on page 1, we have criticisms about reporting to police, transition to an alternative accommodation plan; then on page 2, criticisms about the worker responding in an inappropriate manner that was not consistent with Sophie's Positive Behaviour Support Plan; also a lack of training, LWB Worker 2 not having any training since becoming an employee; and then, finally, rostering issues at the bottom of that page.  Do you agree with each of those criticisms?

MR DOLEY:  I have got no reason not to, yes.

MS BAKER:  Have you    

CHAIR:  Does it really matter?  I mean, the document tells us what Life Without Barriers internally thinks.

MS BAKER:  It was just foundation for the next question, which is have you considered     have you taken any review to determine whether each of those deficiencies has been addressed?  For example, has anybody spoken to the worker who did not comply with Sophie's positive behaviour support plan to identify why she didn't comply with that plan and to provide her with further training on that issue?

MR DOLEY:  I believe that from review of the material over this time, and reviewing of that investigation report and particularly some of the recommendations and substantiation or unsubstantiation of that, there is a view that     and conversations have and will happen post this hearing in terms of further training and counselling and conversations with those particular staff, yes.

MS BAKER:  All that's going to happen after the Commission.  To your knowledge, to take, for example, the issue of the worker not complying with the Positive Behaviour Support Plan prior to this Commission starting, there had been no action taken to ensure that she understands and is able to comply with Positive Behaviour Support Plans in the future?

 
MR DOLEY:  So, two things:  one, I'm not sure it's appropriate to engage in relevant conversations with a staff member of the nature we are talking about now until post, and that's some advice that we've received, and, yes, that will take place.

The other one I will say is that with the particular staff member that we are talking about has a very longstanding history of working positively with Sophie in terms of her behaviour support plan.  I guess one thing I will say is that a behaviour support plan is something    

CHAIR:  Sorry, let's confine ourselves I think to answering questions Ms Baker is asking.  If she wants to ask you about that, fine.

MS BAKER:  All I wish to inquire is has anybody spoken to her and, as I understand it, your answer is to date, no, but after the Commission    

MR DOLEY:  To date, there has been some brief conversations, but, yes.

MS BAKER:  Commissioner, those are all the questions I wish to ask about Sophie's case.

CHAIR:   I will ask Commissioner Galbally first whether you have any questions you wish to put arising out of the evidence concerning Sophie's case.

QUESTIONS BY THE COMMISSION

COMMISSIONER GALBALLY:   Perhaps the only question would be I noticed that you said that you thought Sophie should have been consulted first about the interim safety plan and, indeed, the final safety plan.  My question was if she had disagreed, which she said she did, would that have changed it, should it have changed it?  She should be asked first, but would it have made any difference and should it have made any difference?

MR DOLEY:  Thank you, Commissioner.  It's my view that consulted first and, if there was not an agreement with that, that that plan would not have been in place the way it was, yes.  It should have ultimately changed the way that that safety plan was developed and/or elements of that safety plan, yes.

COMMISSIONER GALBALLY:   Thank you.

CHAIR:   Commissioner McEwin?

COMMISSIONER McEWIN:   Yes, one question from me, Mr Doley.  Can I take you to tab 13 of that first volume, Sophie's personal IP plan, and can I take you to page 10.  Are you almost there?  Page 10 of that document.  At the top, she expressed an interest or an objective of looking for a book club to join.  Page 10, Tab 18.  Sorry  
if I wasn't clear.  Tab 18, page 10 of that document.

MS BAKER:  Can I just indicate, sorry, for the purposes of the transcript, that's Bundle C, tab 266.

COMMISSIONER McEWIN:   My apologies, I will pause.  Page 10.  She expressed an interest in drama, dance, theatre and reading and her objective is to look for a book club to join.  That's the first part.

The second part is at Tab 39, and I will ask counsel if they can be specific about where is Tab 39, the official community visitor report.

MS BAKER:  That is Bundle G, Tab 330.

COMMISSIONER McEWIN:   Mr Doley, in that report under "Issue Details", Sophie mentioned she would be interested in writing classes or classes where she can develop writing skills.  My question is do you know if that was ever followed up?  Was she ever supported to join a book club, do writing classes?  We heard last week that she had a great interest in reading and writing.  Do you know if that was ever followed up?

MR DOLEY:  I certainly know, Commissioner, that there was     Sophie was engaged in a number of groups and activities.  In terms of a specific reference here and reference into the IP plan, I'm not sure if it relates specific to that, but, in general, I can see that Sophie was engaged in a number of extra curricular activities to help her explore.

COMMISSIONER McEWIN:   But you don't know that specifically.  Perhaps take that on notice.

MR DOLEY:  Yes.

COMMISSIONER McEWIN:  However, hypothetically, you have said constantly that you should have done better, you should have done better in many things.  Do you agree that she should have been supported to pursue this actively?

MR DOLEY:  Oh, yes, yes.

COMMISSIONER McEWIN:   Thank you.  Thank you, Chair.

CHAIR:   Thank you very much.  Mr Doley, since you started late 2018, I think, until now, what is the turnover of residents in accommodation provided by Life Without Barriers in New South Wales?  I think you told us that there are 138 group homes run by Life Without Barriers.  I assume you mean now, as of today?

MR DOLEY:  Yes.

 
CHAIR:   But over the last three years, I imagine that the numbers might have fluctuated.  What sort of turnover was there in residents?

MR DOLEY:  Residents or staff?

CHAIR:   Residents.  If you don't know    

MR DOLEY:  I would say very little.

CHAIR:   Are there records that show how many residents would have left group homes and others came in?

MR DOLEY:  Yes.  Yes, there certainly would be, yes.

CHAIR:   That goes to the question of how often you need to put into practice a procedure or policy to consult with the existing residents when someone comes in that is new.

MR DOLEY:  Yes.

CHAIR:   All right.  We might get that by way of some further information.  Can you tell us, please     you've explained some of the deficiencies in the provision of education in intimate personal relationships, as far as Sophie was concerned.  What happens now, as far as Life Without Barriers is concerned, if there were to be a resident similar to Sophie?  Obviously, everybody is different and there won't be anybody in an identical position, but somebody perhaps in a similar position to Sophie, what does LWB do?

MR DOLEY:  I think, to my point, there is a fair bit of work to be done in this space, and to the question, Chair, I think training in terms of rights and responsibilities, IP plans, and further exploring what that looks like for an individual at an individual level would be something that we would do.  In terms of further measures, you know, like I said, we've got some work to do on this, Chair.

CHAIR:   Do I take it, from that answer, that not a lot has changed but you hope it will change?

MR DOLEY:  Yes.

CHAIR:   All right.  Thank you.  Paragraph 292 in your statement refers to a notification to the insurer.  Have you seen a document that explains why the insurer was notified about the event?

MS BAKER:  That's involving Natalie.

CHAIR:   That's Natalie.  Okay, I will postpone that.  I will postpone that until Ms Baker deals with Natalie.  My final question, the document that I have referred to  
previously at Tab 85 and its successor at Tab 86, in each case there is a heading "Who should read this document?" It says, the first page of the first document:

This procedure applies to all Life Without Barriers employees, contractors, volunteers and carers.

Who actually gets to see this document?

MR DOLEY:  This document would sit     sorry, Tab 85?

CHAIR:   Yes.

MR DOLEY:  This document would sit on our policy centre and everybody in Life Without Barriers would have access to that policy centre.

CHAIR:   Does anybody outside Life Without Barriers see this?

MR DOLEY:  To the point of contractors, yes, I believe they would.

CHAIR:   Who is a contractor for this purpose?

MR DOLEY:  Contracted staff, so agency staff.  I'm assuming this refers to agency staff.

CHAIR:   But a parent or guardian of a resident would not necessarily see this document?

MR DOLEY:  No, possibly not, no.

CHAIR:   And nobody who was wanting to look at how Life Without Barriers operates or what its values are, I understand there will be other material, but they wouldn't be able to see the contents of this document so as to inform themselves as to how Life Without Barriers goes about dealing with such issues?

MR DOLEY:  Yes.

CHAIR:   All right, thank you.

MS BAKER:   Ms Doley, I'm now going to turn to some questions about Natalie.  Before I do so, I should just signal for the benefit of the audience who may be watching online, a matter that I should have earlier.  As with Sophie, this does concern sexual and indecent sexual assault allegations, so for that reason, a content warning slide might be appropriate.

Mr Doley, you speak about the conduct of worker 3 toward Natalie in your statement at paragraphs 284 and following.  At paragraph 285, you set out the various reviews, referrals, that were made following the report on 6 February 2015.
 

MR DOLEY:  Yes.

MS BAKER:  Just at the outset, I take it it is common ground that there is no question that Worker 3's actions towards Natalie were completely unacceptable?

MR DOLEY:  Absolutely.

MS BAKER:  And Life Without Barriers found that the supervisors' failures to respond and report appropriately those matters at an earlier stage constituted a contravention of relevant Life Without Barriers policies and procedures at the time.

MR DOLEY:  Yes, which I think referred to in a previous investigation, supervisor neglect.

MS BAKER:  I would just like now to ask you now about an internal review that you speak about at point (f).  This is your statement, 285(f), you refer to an internal review being conducted on 19 August 2015.

MR DOLEY:  Yes.

MS BAKER:  That was in view of issues raised by New South Wales police in an email that was dated 5 August 2015.

MR DOLEY:  Yes.

MS BAKER:  The purpose of that internal review was to determine whether anything could have been done to prevent Worker 3's conduct and also to see if any further action needed to be taken in relation to any employees.

MR DOLEY:  Yes.

MS BAKER:  Do you say in 285(f) that the internal review report made the following preliminary recommendations, firstly, referral of preliminary findings to the state human resource manager for investigation of local management conduct and decision making.  That, in effect, led to the investigation reports in relation to the supervisor and the program manager    

MR DOLEY:  Yes.

MS BAKER:      about their failure to respond or report at an earlier point in time.

MR DOLEY:  Yes.

MS BAKER:  Then the other thing that was identified by the internal review report was professional development.

 
MR DOLEY:  Yes.

MS BAKER:  In particular, training for staff and management in relation to professional boundaries, abuse and neglect, documentation and anything else arising?

MR DOLEY:  Yes.

MS BAKER:  Then at paragraph 285(h) of your statement, you indicate the training that was provided following that recommendation.

MR DOLEY:  Yes.

MS BAKER:  And the training that was provided at (i), we have the incident report training?

MR DOLEY:  Yes.

MS BAKER:  And (ii), we have external training about responding to sexual assault?

MR DOLEY:  Yes.

MS BAKER:  (iii), we have vicarious trauma training.

MR DOLEY:  Yes.

MS BAKER:  That takes us up to 2018?

MR DOLEY:  Yes.

MS BAKER:  Is it the case that up until 2020, no staff member in the Lismore house, whether at an operations level or at the house level, had done any additional training on professional boundaries or preventing abuse and neglect?

MR DOLEY:  Yes.

MS BAKER:  Do you agree that a lack of understanding about professional boundaries was a critical component of what happened on this occasion     there was a lack of understanding not just by Worker 3, but also by other staff members who seemed unclear about what to do and by management who did not recognise it as a contravention of professional boundaries and raising risk of issues of abuse?

MR DOLEY:  I'm not prepared to state that the actions of LWB Worker 3 were in regards to not understanding professional boundaries, no.

MS BAKER:  Okay, but the other aspects of that situation, certainly the response of other staff members, the response of the team leader, the response of the operations manager, each of their responses indicated a lack of understanding about professional  
boundaries and understanding risk of abuse.

MR DOLEY:  No, and again my reason for this is LWB     sorry, the manager    

CHAIR:  Let's call it the Operations Manager and the Program Coordinator; they are the phrases used.

MR DOLEY:  Yes, from my understanding, have been in the sector for quite some period of time and had knowledge around professional boundaries and so I'm not prepared to concede that they did not know.

MS BAKER:  I'll put it a different way.  The internal review report considered that it was necessary for staff and management to be trained in respect of professional boundaries, abuse and neglect.

MR DOLEY:  Yes.

MS BAKER:  That was in 2015.

MR DOLEY:  Yes.

MS BAKER:  And as of the beginning of 2020, nobody had received that training.

MR DOLEY:  Yes.

MS BAKER:  Do you agree that    

CHAIR:  Ms Baker, sorry to interrupt, but in that paragraph (g), there's a cross reference in the third line, "as described in certain paragraphs".  What's that a reference to?  Paragraphs A.9154 and A.9164 above.  I remember an earlier reference in this statement to the findings against the operations manager and the program coordinator.  I presume that's intended to be a cross reference, but it does not appear to be correct.

MS BAKER:  Perhaps Mr Doley can confirm that that should be a cross reference.

CHAIR:  Perhaps the Office of SolicitorAassisting will be able to do that more readily.

MR DOLEY:  Yes.  Sorry.

MS BAKER:  Perhaps we can make inquiries of Mr Doley's    

CHAIR:   You don't have to make inquiries; just someone tell us what the paragraph is.

MS BAKER:  We can, thank you, Chair.
 

Do you agree that they should have received that training well before 2020?

MR DOLEY:  Yes, yes.

MS BAKER:  If we look at the 2020 training, you say that from March 2020, staff working at the Lismore houses had access to understanding abuse zero tolerance NDIS training module.  Does "had access to" mean that we should assume that that was not mandatory training?

MR DOLEY:  Sorry, which training are you referring to?

MS BAKER:  In your statement, (h)(iv), you speak about staff working at the Lismore houses having access to training.

MR DOLEY:  Yes, they did have access.

MS BAKER:  Does that mean that it was mandatory or does that mean it was up to them to look at it if and when they saw fit?

MR DOLEY:  No, I believe that that one's mandatory.

MS BAKER:  Can you make some inquiries about whether that is mandatory    

MR DOLEY:  Yes.

MS BAKER:      and, if so, what dates the staff working in the Lismore house completed that training?

MR DOLEY:  Yes.

CHAIR:   Just so I can answer my own question, the issues are dealt with at paragraphs 154 of the statement through to 164 on pages 48 to 49.  Those pages tell us what the allegations were against the two people who are referred to at that subparagraph (g).

MS BAKER:  Chair, I was going to ask Mr Doley at this point about the knowledge of upper management, in particular, relevant committees and boards of these events, but it might be more appropriate for those questions to be addressed to Ms Robbs.

CHAIR:   I think that's correct.

COMMISSIONER McEWIN:   Presumably, you are going to another topic?  I have one question about training.  Mr Doley, how do you measure outcome of the training that you deliver or you expect the staff to do     how do you know that they have learnt from the training and that they have actively practised what they are supposed to have learnt in that training?  How do you measure that?
 

MR DOLEY:  Yes, thanks, Commissioner.  The training itself, once delivered and competency based assessment is on that, we can then see a kind of an uplift in     I will use a specific example, sorry, something like incident management training.  Once that training is     tends delivered at a specific area, we will see an uplift in performance in terms of incidents logged on to a system and quality of the incidents being logged on that system.  That is how we would then measure whether that training is doing what it's meant to be doing.

COMMISSIONER McEWIN:   Thank you.

MS BAKER:  Mr Doley, I'd like to now turn to the issue of personal care policies in relation to Natalie.  The incidents involving worker 3 each occurred in the context of worker 3 administering forms of personal care to Natalie.  You've heard Jennifer's evidence     or read her statement     she that requested personal care only be performed by females on a number of occasions dating back to when Natalie first came into the house.  Self evidently, that didn't occur.  What I'd like it first ask you about is the policies at the relevant times about personal care.  Those policies are set out in your statement and you've divided it into policies before the introduction of the NDIS, at paragraph 295, and following the introduction of the NDIS, at paragraph 296.

Firstly, the policies before the introduction of the NDIS, what is your understanding of Life Without Barriers' policies concerning personal care of female clients at that time if a client and/or their guardian asks that personal care of a female only be conducted by a female, what should have been done?

MR DOLEY:  The policy stipulates that clearly a conversation around     and the documentation of personal care in terms of how an individual wants their personal care to be undertaken, and those wishes then need to be followed.

MS BAKER:  Need to be followed?

MR DOLEY:  Absolutely must be followed.

MS BAKER:  What if a staff member of the preferred gender is not available?  What do the policies tell the staff member to do in that situation?

MR DOLEY:  So, in regards to my understanding, with Natalie it was preferred that female staff carried out personal care, where     and that required two people and where two people were unable     two female staff.  The female staff led personal care whilst the male staff held, in terms of stopping her from falling over and the like.  In the case that there was two male staff rostered on, then I can see through the documentation that at the house level, a phone call was needed to be made immediately to On Call and an additional staff member    

MS BAKER:   We are going to come to the particulars of this scenario in a moment.   
At the moment, I'm just looking at the level of policy.  As far as you are concerned, as a matter of policy, if a female client asks to only have personal care by a female staff member, it should only be conducted by a female staff member.

MR DOLEY:  Yes.

MS BAKER:  Rostering decisions, are rostering decisions to ensure that that preference can be accommodated?

MR DOLEY:  Yes.

MS BAKER:  So if a female client has asked that their personal care only be provided by a female, then that means that, for example, females can only be rostered on the night shift?

MR DOLEY:  If personal care is required.

MS BAKER:  Is required on the night shift?

MR DOLEY:  Yes.

MS BAKER:  Okay.  I take it that you would agree that     I take it that you agree from your evidence that personal care preferences should     must be taken into account in rostering decisions and that where personal care preferences can't be accommodated, there should be an open and informed discussion about the client's preferred course of action if the gender preference can't be accommodated?

MR DOLEY:  Yes.

MS BAKER:  For example, if in a last minute event, a male staff member has to come along for emergency care overnight?

MR DOLEY:  Yes.

MS BAKER:  And you would also agree that where a client has been the subject of sexual misconduct, there is a heightened need to ensure that those gender preferences can be accommodated?

MR DOLEY:  Yes.

MS BAKER:  And do you accept that     firstly, you've already accepted that personal care was, in fact, performed by males, contrary to policy, in the period leading up to Worker 3's suspension?

MR DOLEY:  Yes.

MS BAKER:  And in the period of time following Worker 3's suspension, you would  
also accept that male staff members did perform personal care of Natalie?

MR DOLEY:  To the degree I'm not sure, but, yes, it appears that that is the case.

MS BAKER:  I'd like to put a series of propositions to you.  You can take it from me that there are documents to support each event.  If you want to be taken to the document, let me know, but in order to save time, I will just indicate what the documents record.  First, Life Without Barriers' management was first informed about worker 3 in February 2015.  Secondly, Natalie's mother was informed about the indecent and sexual assault in August 2015.

CHAIR:   Sorry, are you asking Mr Doley to agree, or are you just telling him?

MS BAKER:  I'm putting a series of propositions and then I'm going to ask him a question about it.

CHAIR:   All right.

MS BAKER:  From 5 August 2015 through to October 2015     this is after the charges were laid     repeated promises were made that only a female staff member would engage in personal care.  Do you accept that?

MR DOLEY:  Yes.

MS BAKER:  Then on 8 December 2015, an interstaff email indicates that females won't always be rostered on overnight shifts because no personal care was required on overnight shifts.  Are you familiar with that email?

MR DOLEY:  Yes, I am familiar with the email.

MS BAKER:  In relation to Natalie, who was a woman who suffered from incontinence, do you agree that it could not be said that personal care would not be required on an overnight shift?

MR DOLEY:  In relying on the documents, it describes that personal care was not required overnight.  To the specifics of the individual requirements, I don't know those details.  I'm not able to    

MS BAKER:   You're not able to assist us with that?

MR DOLEY:  No.

MS BAKER:  On 9 December 2015, Jennifer reiterated that she did not want males working without a female present and said that she would take Natalie home any night that a female was not available.  Are you familiar with that evidence?

MR DOLEY:  Yes, I am familiar with that evidence.
 

MS BAKER:  On 10 December 2015, the Disability Program Coordinator wrote to the Lismore staff assuring them that recent changes to the roster are only a temporary solution to facilitate Natalie's return to the group home.  Are you familiar with that email?

MR DOLEY:  Yes.

MS BAKER:  Then on 16 December, an email between LWB staff indicates that a male will be rostered on night duty and the email states:

Confirming that the status quo remains that we employ both male and female staff and work with both male and female residents and, as such, we roster males on night shifts.  There is no indication that Natalie or any other female requires any personal care at night.

The response says:

We will not be giving Jennifer much notice, unfortunately, but that can't be helped.

Do you agree     are you familiar with that email?

MR DOLEY:  I am, yes.

MS BAKER:  Do you agree that in circumstances where Jennifer has been promised that there will be no males working without a female present and that she will take Natalie home any night that a female was not available, that to then tell the staff that recent rostering changes are only a temporary solution was inappropriate?

MR DOLEY:  Sorry, was    

MS BAKER:   Was inappropriate.

MR DOLEY:  To tell staff?

MS BAKER:  To tell staff that the rostering changes following the promise, the promise that there would be no male staff rostered even at night, was inappropriate?

MR DOLEY:  No.  It was my understanding that     from my reading of the documentation is that that was something that     from that request, that management had implemented for a short period of time whilst they could review the request and, naturally, within those changes, that would have resulted in staff asking questions in terms of the roster, so from what I can see, that's the local management reassuring staff that we are reviewing this process.

MS BAKER:  Are you aware of any document that indicates to Jennifer that,  
contrary to the promises that were made to her, in fact, male staff would be rostered on overnight?

MR DOLEY:  There is a point in which that conversation does take place, yes.

MS BAKER:  We might get you to identify that document at a later point.  Then in June of 2018, an email indicates that males were being put on night shift.  There were concerns about discriminating against male staff and that with staff shortages, there could be no guarantee that there would be female staff.  Again, are you aware of any documents at that time which indicate that Jennifer was told that male staff would be rostered overnight?

MR DOLEY:  I'd have to go through     sorry.

MS BAKER:  I will leave at this:  in August of 2019, Jennifer makes a complaint that Natalie is incontinent and was not being changed overnight.  Are you aware of that email?

MR DOLEY:  Yes.

MS BAKER:  In view of that email, do you now accept that it was not appropriate to previously indicate that no personal care was required overnight?

MR DOLEY:  That no personal care was required overnight?

MS BAKER:  Yes.

MR DOLEY:  I don't think there is any evidence that I have seen that shows personal care being required overnight, no.

MS BAKER:  For a woman who is    

CHAIR:  What does "overnight" mean?  What's the shift?

MR DOLEY:  In this case, I think it's somewhere between 12 and 6     12 at night, 6 in the morning.

CHAIR:   12 at night and 6 in the morning, six hours?

MR DOLEY:  6am, sorry.

MS BAKER:  Perhaps if I just indicate one other email, which is an action plan of September 2019, which indicates that female staff must be on the night shift and Natalie shall be checked at 0230 hours.

MR DOLEY:  In 2019?

 
MS BAKER:  Yes.

MR DOLEY:  Yes.

MS BAKER:  Are you aware of that?

MR DOLEY:  If you could take me to the document.

MS BAKER:  Okay, I can take you to the document.  It's Tab 62.  For the benefit of the transcript, Hearing bundle A, Tab 54.

CHAIR:   Eight bullet points from the bottom, Tab 62     actually, it's the sixth bullet point.

MR DOLEY:  Yes, I can see.

MS BAKER:  You can see that.  Then you are aware that as of May 2020, Jennifer was writing to Life Without Barriers indicating that that plan as approved was no longer working and in July of 2020, a complaint is made by Jennifer to the NDIS about Life Without Barriers having male carers on at night.

MR DOLEY:  Yes.

MS BAKER:  You are aware of both of those matters?

MR DOLEY:  Yes.

MS BAKER:  So would you agree that this undertaking that's made in September of 2019 was not followed?

MR DOLEY:  No, I can't agree to that, that it wasn't followed.  In order for me to be able to make that assessment, you would have to do almost a forensic review of the roster in terms of who was rostered on over that period of time.  In the 2019 document that we are talking about here, it stipulates female staff to do that awake overnight, so    

MS BAKER:   So if there were occasions where male staff were the only staff members rostered on overnight, that would constitute a breach of that undertaking but you're not in a position to tell us whether you accept Jennifer's complaint that that was happening?

MR DOLEY:  No, it's not that I don't accept Jennifer's complaint, it's that in order for me to confirm if that took place, I'd have to review that information about    

MS BAKER:  So you're not in a position    

MR DOLEY:      a granular roster, no.
 

CHAIR:   But, on the other hand, if we accept the evidence given by Jennifer, that might be a pretty good starting point, mightn't it?

MR DOLEY:  Yes.

MS BAKER:  You've heard that Natalie's mother was only informed of the indecent and sexual assault in August 2015?

MR DOLEY:  Yes, yes.

MS BAKER:  Do you accept that there was no reason why she could have been told about that earlier?

MR DOLEY:  Absolutely, and in my opening accounts I should have referenced that one    

MS BAKER:  She should have been told earlier?

MR DOLEY:  She should have been told earlier.

MS BAKER:  And staff members should also have been told earlier?

MR DOLEY:  Sorry, staff members?

MS BAKER:  Yes, other members of staff that weren't involved.

MR DOLEY:  Told about?

MS BAKER:  Told that a prosecution had been brought against Worker 3.

MR DOLEY:  Once a charge is laid, yes.

MS BAKER:  And that an internal investigation was occurring?

MR DOLEY:  Whether the staff at the house should have been informed about an internal investigation?  Possibly, possibly not, where appropriate, yes.

CHAIR:   Sorry, the document you were taken to at Tab 62, the action plan in September 2019 coincides, of course, with the time that you held the position of director disability and aged care in New South Wales and ACT.

MR DOLEY:  Yes.

MS BAKER:  What was the practice generally, not just in relation to Natalie, but generally, in the group homes operated by Life Without Barriers as far as care for female residents overnight where those residents might have required personal care  
overnight?

MR DOLEY:  In general, if, as you said, Chair, personal care overnight, and that individual had requested that their personal care be done by female staff, that should take place, yes, that is the general practice.

CHAIR:  But did it, and do you know, more accurately, perhaps more precisely, do you know whether that practice was, in fact, followed?

MR DOLEY:  Well, to the point that I can say in some of the developments of our system, particularly around our rostering system, we'll now be able to determine the need of client individual and/or requests, and that will then match     so in this case, if it was personal care delivered by a awake overnight and that particular client's request that it be female, then that can be in our system in terms of when that staff is rostered, if that's a male staff, that we'll flag as an issue.

CHAIR:  I think you had the word "now" in there at one point.  Do you mean that is the position in December 2021 under your new system?

MR DOLEY:  Yes.

CHAIR:  But what was the position in 2019, let us say in September?

MR DOLEY:  Rostering, Chair, was done locally.

CHAIR:   Locally?

MR DOLEY:  Yes.

CHAIR:  You wouldn't know whether, in fact, the practice was followed locally?

MR DOLEY:  No, I would not.

MS BAKER:  Just before I move off this issue, can I ask you to turn to Tab 60, in Bundle C, Tab 101.  This is an email from the lifestyle supports coordinator.  It is the email that I referred to as being sent on 25 June 2018, and the first     it concerns concerns about rostering.  It follows an email chain where    

CHAIR:  Sorry, where do we find this in our documents?

MS BAKER:  Tab 60.

CHAIR:  The one that starts "I was off most of last week sick"?

MS BAKER:  Yes.  This is in the context of an email exchange expressing concerns about rostering.  The first dot point in this is:

 
We cannot discriminate against our male staff.

This is in the context of concerns being expressed about female staff being the only staff members who will get the overnight shift.  Do you have any comments about discrimination of male staff in the context of rostering decisions about accommodating gender preference?

MR DOLEY:  No, not at all.

MS BAKER:  You don't have any comments or that's entirely inappropriate?

MR DOLEY:  Sorry, what's inappropriate?

MS BAKER:  What appears to be said here is that they can't accommodate having females rostered on the night shift only because they cannot discriminate against the male staff.  So the male staff have to have equal opportunity to have the night shift as the female staff get.

MR DOLEY:  I mean, in terms of the word discriminate of male staff, I'm not sure I can comment on whether it amounts to discrimination or not.  That's not    

MS BAKER:  Do you agree that if a female client has asked for female care, then they should get a female carer, regardless of whether or not a male carer would rather have that shift?

MR DOLEY:  Yes, I think I've said that, yes.

MS BAKER:  Do you agree that while the policies tell us that conversations have to happen about the personal care of female clients, those policies don't expressly say that the preferred view has to be acted on and has to be taken into account in rostering decisions?

MR DOLEY:  No, it's my view that the policy says that through that consultation of how personal care is to be provided for either female clients or male clients, then based on that, the following had occurred in terms of the wishes in which they wanted their personal care to be taken care of, yes, so    

MS BAKER:  Yes, but do you agree that none of the policies expressly states that actioning those preferences will require consideration of rostering?

MR DOLEY:  It's my view that the policy says, as I've said before, that the stipulation of how you want your personal care to be delivered, agree that should then be delivered that way.

MS BAKER:  Okay.

MR DOLEY:  Sorry, I don't think it's an interpretation.  Yes.
 

MS BAKER:  Okay.  I will turn now to the issue of bowel care and the response to bowel care.  You've heard in Jennifer's evidence that Natalie was hospitalised with a bowel obstruction on 9 March 2020?

MR DOLEY:  Yes.

MS BAKER:  That incident was not treated as a reportable incident.

MR DOLEY:  By LWB?

MS BAKER:  By LWB.

MR DOLEY:  No.

MS BAKER:  To your knowledge, was any internal review or investigation conducted to determine whether or not Life Without Barriers could have taken action to prevent that obstruction?

MR DOLEY:  No internal review, no.

CHAIR:   Did that incident ever come to your attention while you held the position prior to the one you now hold?

MR DOLEY:  No, it did not.

CHAIR:  It never came to you?

MR DOLEY:  No.

CHAIR:  Should it have?

MR DOLEY:  Yes.

CHAIR:   Why didn't it?

MR DOLEY:  It's     the incident itself, in terms of hospitalisation, there was, from what I can glean, no record of an incident report put into the system of that taking place and, therefore, had that have been put into the system as per our policy, that would have flagged to me immediately.

CHAIR:   When did you find out about this incident?

MR DOLEY:  Through a review of this material.

CHAIR:   This is the first you have heard about it in preparation for this hearing?

 
MR DOLEY:  Yes.

CHAIR:   Have you done anything about what happened or what didn't happen?

MR DOLEY:  I've reviewed the relevant material.  I can see that there is missing documentation in terms of bowel management charts, and I can certainly see in the organisation work under way to working with and streamlining that process to ensure that took place, yes, Chair.

MS BAKER:  I did wish to ask Mr Doley about what that work was, but I'm told that the stenographer needs a very short break.  I only have about 10 minutes left to go, so we can probably have the short break and finish by 4, or    

CHAIR:  A 10 minute break will take us to 5 to 4.

MS BAKER:  Or a five minute break will take us to 10 to 4.

CHAIR:   Let us make it a seven minute break till 10 to 4.

ADJOURNED     [3.43PM]

RESUMED     [3.49PM]

MS BAKER:  Mr Doley, just before the break, you were telling us that your review of the issue of bowel care was that you've identified that there were a number of missing documents?

MR DOLEY:  Yes.

MS BAKER:  A number of missing bowel charts.  In fact, the only bowel chart that was recorded was for, I think, nine days prior to hospitalisation?

MR DOLEY:  Sorry, date of hospitalisation was?

MS BAKER:  9 March.  The bowel charts go from 1 March to 9 March.

MR DOLEY:  And I have seen bowel charts in April.

MS BAKER:  Following the incident?

MR DOLEY:  Yes.

MS BAKER:  But from December until 1 March, no bowel charts at all?

 
MR DOLEY:  Not from what I could see.

MS BAKER:  During that period, no fluid charts after 31 January.

MR DOLEY:  I don't believe so.

MS BAKER:  You would agree that that is a clear deficiency, given Natalie's health needs?

MR DOLEY:  Bowel charts absolutely should be filled out for anybody that requires that, yes.

MS BAKER:  Because they can be quite critical to ensuring their health.

MR DOLEY:  They just need to be     yes, they need to be done.

MS BAKER:  You said that there was some work under way in ensuring that there would be compliance with bowel charts and fluid charts, and the like, in the future.  Can you tell us what that is?

MR DOLEY:  So one of the difficulties we find often is that with the documentation, in the busyness of what is a group home, particularly when you have four or five individuals and there are a number of staff, things like bowel charts, as in this case, are one of those things that tend to     could be missed.  So there is significant work in the organisation around digitising that process to streamline it so that no longer is that documentation no longer paper based, it is more efficient for staff to be able to log that and, secondly, gives much more oversight, in terms of governance arrangements, for management staff to view and review the adherence to bowel management, as such, without having to go through individual documentation paper based at a house level, yes.

MS BAKER:  In relation to Natalie's visit to the GP on 5 March 2020, are you able to say whether it was an LWB staff member who took her to the GP or whether it was a support worker from another agency?

MR DOLEY:  I believe it was an LWB staff member.

MS BAKER:  Okay.  Have you seen any records of that GP visit in the LWB documentation?

MR DOLEY:  There's certainly a record that references an increase in Movicol from the GP appointment, yes.

MS BAKER:  In the GP documents or in the LWB documents?

MR DOLEY:  I couldn't determine whether    

 
MS BAKER:   We might ask you to follow that up as well.  Just to be clear, I think you were asked some questions by the Chair about your lack of awareness of this hospitalisation in March of 2020.  Is this something that should have had an internal review or an investigation conducted after a hospitalisation to determine whether there was anything that could have been done by Life Without Barriers to prevent the situation that unfolded?

MR DOLEY:  Yes, had this been flagged in the incident report system, as we talked about, that would flag to our national safeguarding unit, who reviews that, and then based on relevant information, you know, and possibly subsequent information being presented to the NDIS Commission, there could be subsequent reviews of that, yes.

MS BAKER:  So at the time, it should have been flagged as something that required consideration at high levels?

MR DOLEY:  Yes, yes.

MS BAKER:  Certainly by the time that Jennifer made a complaint on 21 May 2020, there should definitely have been consideration given to whether this was a reportable incident at that time?

MR DOLEY:  Yes, but I also believed that complaint was reviewed by the Commission themselves, yes.

MS BAKER:  I guess the point is it shouldn't have been necessary for Jennifer to make the complaint at that point.  There should have been a review before that?

MR DOLEY:  No, no, it should have been reviewed, but it was subsequently reviewed, yes.

MS BAKER:  Then just finally in relation to financial management and communication, at the outset of your evidence, you gave some evidence about Natalie and the question of finance and communication.  Can you just, with specificity, indicate the shortcomings and deficiencies that you have identified in that respect?

MR DOLEY:  In that there appears to be information where Natalie's mother wanted some information around the spending and that was in regards, from what I understand, to be some receipts being provided for some of Natalie's discretionary funds that was allocated by her mum to her.

From my review, I can see a significant amount of receipts provided in that process, and then there was a small occasion over the kind of relevant period of 10 years where Natalie's mother had to ask for receipts and, subsequently, I believe they were provided.  My thing is that we     she shouldn't have to ask for them.

MS BAKER:  In terms of budgeting, you are aware that in October 2015, Natalie  
asked for assistance re budget planning?

MR DOLEY:  Yes.

MS BAKER:  The Life Without Barriers documents     we have only been able to find two budgets, one from 2017 and one from 2020.  Are you aware of any budgets prepared by Life Without Barriers other than those two?

MR DOLEY:  No, and the reason for that is that for a large period of time in the early instance, the New South Wales Trustee managed Natalie's financials and it's the person who has the responsibility of managing the financials that prepares the budget.  So, in that case, the Trustee is the one that prepares the budget and allocation of that and then the facilitation of that.

MS BAKER:  I should be more precise.  In the period of time while the Trustee and Guardian had responsibility for management of the estate, Natalie had discretionary spending of a $200 allowance.  Are you aware of that?

MR DOLEY:  Yes.

MS BAKER:  I that was per month     per fortnight.  In terms of the budget, the Trustee and Guardian had budgeted this much for rent, this much for board, this much for activities, $200 per fortnight as an allowance.  During that time, Life Without Barriers effectively managed Natalie's discretionary budget spending and that $200 was sent to Life Without Barriers to assist Natalie.

MR DOLEY:  No, we did not manage the discretionary budget of Natalie.

MS BAKER:  Do you agree that in circumstances when in October 2015 Natalie had asked for assistance with budget planning, that it would have been appropriate for Life Without Barriers to assist Natalie in preparing a budget for the spending of that $200 allowance?

MR DOLEY:  Potentially, but given that, I think it was still at that case, the Trustee managed the financials and the discretionary spending, it would have been set out in that light.

MS BAKER:  Is your evidence that it was up to the Trustee to make decisions about Natalie's going to spent this amount of money on saving up for Christmas presents, this amount of money on a treat down the local shops that day?  Is your evidence that the Trustee and Guardian over that period was responsible for making those decisions?

MR DOLEY:  Not making those decisions    

MS BAKER:  Assisting Natalie to make those decisions.

 
MR DOLEY:  Assisting Natalie in terms of the discretionary funds, yes.  They are certainly     but I will also say that there was a role or could have been a role for staff in Life Without Barriers to make sure that to the budget, that may have been adhered to, yes.

MS BAKER:  Are you aware of any document that suggests that the Trustee and Guardian did undertake that form of budget planning of the discretionary spend during that period?

MR DOLEY:  No, I'm not aware.

CHAIR:   Mr Doley wouldn't know that.

MS BAKER:  No.  From 2017, or in 2017, Life Without Barriers does prepare a budget with Jennifer and Natalie?

MR DOLEY:  Yes.

MS BAKER:  Do you agree that it would have been preferable to review that budget before 2020?

MR DOLEY:  Sorry, again, I think here it's that we don't manage the funds again at that stage, that's Natalie's mother.

MS BAKER:  So your evidence is Life Without Barriers has nothing to do with supporting Jennifer in making decisions about how to spend her discretionary funds?

MR DOLEY:  No, that's not what I'm saying.  The question was put to me as are we responsible for preparing and managing those funds.

MS BAKER:  Okay.  Well, instead of responsible, is that something that Life Without Barriers could and should have facilitated Jennifer and Natalie making a budget to assist Natalie in making decisions about her discretionary spending?

MR DOLEY:  Yes, we could have, yes.

MS BAKER:  And should have?

MR DOLEY:  We could have.

MS BAKER:  Commissioners, unless     I'm sure you will have some questions.

QUESTIONS BY THE COMMISSION

CHAIR:   Thank you.  I will ask Commissioner Galbally whether you have any  
questions to put to Mr Doley?

COMMISSIONER GALBALLY:   No questions, thank you.

CHAIR:   Thank you.  Commissioner McEwin?

COMMISSIONER McEWIN:   I'm the same, no, thank you.

CHAIR:   No questions.

You will remember I raised an issue concerning the notification to insurers that is referred to at paragraph 292 of your statement.  When I go to paragraphs 154 to 164, I can see the allegations made against the two staff members that were upheld.  The inference I would draw would be     and I'm not going to ask you to comment, Ms Robbs may wish to say something about this     the notification to an insurer was because of possible liability incurred by Life Without Barriers because of the failures of those two staff members, those failures being established in the inquiry that took place.

My question to you is do you know whether any apology has ever been given to Natalie about the events that occurred, or any compensation offered to Natalie by Life Without Barriers?

MR DOLEY:  Thank you, Chair.  I know that    

CHAIR:  Not what might happen, I'm asking you what has happened.

MR DOLEY:  Yes.  An apology has not been offered up until this stage, and I know that an apology will be offered.

CHAIR:   I didn't ask you that.  We'll find out what will happen a little later.  My question was has an apology been offered to Natalie.  The answer up to date is no?

MR DOLEY:  It is no.

CHAIR:   And has compensation ever been offered to Natalie?

MR DOLEY:  No.

CHAIR:   Thank you.  Ms Mitchelmore, do you wish to ask Mr Doley any questions?

MS MITCHELMORE:   No, I don't, thank you, Chair.

CHAIR:   Thank you.  I will assume that no other legal representative wishes to ask Mr Doley any questions, unless somebody says something within the next couple of seconds.  In the absence of something being said, that concludes Mr Doley's evidence.
 

Thank you, Mr Doley, for coming to the Commission to give evidence and for the statement that you have provided.

We will resume, I take it, tomorrow at 10am, and tomorrow we'll will hear from, as I understand it, Ms Robbs.

Thank you very much, we will now adjourn until 10am.

THE WITNESS WITHDREW

ADJOURNED AT 4.03PM UNTIL TUESDAY, 14 DECEMBER 2021 AT 10AM