Public hearing 30 - Guardianship, substituted and supported decision-making - Day 4

CHAIR: Good morning, everyone. Welcome to those who are in the hearing room in Homebush and also to those who are following the proceedings of this, the thirtieth Public hearing of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. We commence with the Acknowledgment of Country. We acknowledge the traditional custodians of the land upon which the hearing at Homebush is taking place, the Wangal people, and we pay our respects to their elders past, present and emerging. I'm joining the hearing from the lands of the Gadigal people of the Eora Nation. We also pay our respects to their elders past, present and emerging. We acknowledge all First Nations people who have given evidence or will give evidence at this hearing, as well as First Nations people who are following the hearing, either in the hearing room or via the webcast. Yes, Ms Eastman. 

MS EASTMAN: Good morning, Commissioners, and good morning to everybody in the room and people following the proceedings today. We finished rather abruptly yesterday due to some technical difficulties, so we apologise to anybody following the hearing for the rather abrupt end, and we hope that all of the technical issues have been resolved. It has meant for Dr Colleen Pearce another night in Sydney and, Commissioners, we are very grateful that Dr Pearce has been able to stay and to join us, and she will be the first witness this morning. 

CHAIR: Yes, may I add our thanks to you, Dr Pearce, for being prepared to stay overnight and our apologies for the disruption to you that would have been caused by the abrupt termination of the hearing yesterday. So, thank you very much for your willingness to come back to the Royal Commission. 

MS EASTMAN: When Dr Pearce's evidence has concluded, we will turn our attention to New South Wales, and you will hear from Austyn, who will tell you about her experience and her brother Howie's experience in relation to the New South Wales guardianship systems. 

Then after Austyn's evidence, we warmly welcome Justine O'Neill, the CEO of the Council for Intellectual Disability back to the Royal Commission, and she will be joined by Ricky Kremer and Alexander Elliott. And they will share with you their thoughts and views about reform to the guardianship system, but, most importantly, they are going to talk to you, Commissioners, about some very practical aspects of supported decision making, what works in practice and how all people can improve their skills on supported decision making. 

Then after lunch, we will have the opportunity to hear from the New South Wales Public Trustee and the New South Wales Public Guardian and, all being well, technical and otherwise, we should be able to complete our work by 4 pm today. 

<COLLEEN PEARCE, ON FORMER AFFIRMATION

<EXAMINATION BY MS EASTMAN SC

MS EASTMAN: So, Chair, if I can now turn back to Dr Pearce, and, as I said, thank you for staying with us. I have checked the transcript, and I think at that point where it says audio dropped out, we were up to the point in talking about some initiatives that you and your office have taken in relation to people who identify as Aboriginal and Torres Strait Islander. Before I commence asking you some questions we were   or I was in a little bit of a rush yesterday to make sure we could conclude your evidence, so I'm sorry that I omitted to give Ms Fritze the opportunity to announce her appearance. So, if I can do that Chair on her behalf. 

CHAIR: Thank you. 

MS EASTMAN: Ms Fritze may be on the line. 

CHAIR: Yes, I can see you on the screen. Yes. 

MS FRIZTE: Thank you. May it please the Commission, my name is Eleanore Fritze, and I appear on behalf of the Victorian Public Advocate. 

CHAIR: Thank you very much. 

MS EASTMAN: So, Dr Pearce, just before we start, was there anything arising from yesterday that, as we were very quickly going through some of the statistics, if I omitted anything? I think where we had reached was to talk about the number of people for whom you act as Public Guardians, and the number of represented persons. We had talked about the cohort of people, including people with intellectual disability. Did you want to say something more about that broad descriptor of intellectual disability for the third of people who you describe in your data collection as people with intellectual disability? 

DR PEARCE: Yes, just to quickly clarify that that's how it is reported in the data system, but underneath that, there sits a range of disability types and so not all of them will be intellectual disability. 

MS EASTMAN: Right. And then I think we were up to the point of talking about the overrepresentation of First Nations people, and we had started our discussion about the action plan. So, I think we were at that point of saying that you've got a Koori Inclusion and Action Plan and I had asked you the question what was the nature of the action plan and what do you hope to achieve by implementing the action plan. I think you were mid sentence in the task taking a three year period. Can we just complete that topic, and I will come back to some of the other data and statistical material that we need to cover. 

DR PEARCE: So the Koori Inclusion and Action Plan, or KIAP has, four key components to it. Systemic Koori inclusion, data and service improvement, Koori employment, and economic participation, and community engagement and partnerships. And just a snapshot of some of the things that we have done in relation to those plans that have been in existence since 2015. 

So, this year   next year we will be developing our fourth plan. So, we have a range of relationships with Aboriginal controlled organisations. We have done a partnership with the Victorian Aboriginal Legal Service around Your Life, Your Choice, where we developed a range of material around guardianship and administration, and we delivered that education program in various regional areas throughout Victoria. That information is still available. 

We developed MOUs with the ACES, the Aboriginal Community controlled Elder Service in Melbourne, and that provides an agreed framework for us working with older Aboriginal people. We have developed the Walk with Me, Talk with Me, a practice guide for OPA staff, and consistent with the family that gave evidence from Torres Strait Island, the   Thursday Island, the most important element in that is families first and recognising the importance that decisions may be made very differently in Aboriginal communities and Aboriginal families to other places. 

MS EASTMAN: Just on that topic, I think you saw that evidence from the Namok family earlier this week, and one of the suggestions that the Namok family raised was having an Aboriginal liaison person to assist them in the process, and you've heard me ask the question of the other state agencies. Are we right in understanding that your office doesn't have an Aboriginal Liaison Officer? 

DR PEARCE: We don't, and it's not for want of trying. Our positions are advertised in the Koori Mail, but for a variety of reasons we haven't been successful. We do have two Aboriginal people, including one of whom is myself, employed in the office, and we have now moved to a much more formal process of dedicated positions rather than trying to encourage Aboriginal people to apply in the mainstream. I should point out that VCAT does have three Koori Liaison Officers as part of their Engagement Team. 

MS EASTMAN: We are going to ask you some questions shortly after we do the statistical material about the particular provisions in the Victorian law around will and preference. But just while we are on the First Nations issue, does the approach to determining somebody's will and preferences, is that   how does that take into account cultural considerations for First Nations people? Is there a different approach that you use in the office or how do you bring all of these policies and initiatives into that work? 

DR PEARCE: Look, the practice tips that are set out in Walk with Me, Talk with Me put family at the centre, and I think you have to start with the family, and that's certainly the practice when we work with families   Aboriginal families. So, you start with the family and the family is at the centre. And the next point is working with Aboriginal community controlled organisations and elders. So, there would be, depending on the circumstances of the individual, families first, Aboriginal community controlled organisations and elders second, where relevant. 

MS EASTMAN: I also want to ask you about the extent to which your office collects data to be able to identify people who are represented who come from cultural and linguistically diverse backgrounds. Are we right in understanding that your office does not systemically collect that data? 

DR PEARCE: That's correct. 

MS EASTMAN: Why is that? 

DR PEARCE: I think it has been part of our Cultural Action Plan for some time and we haven't been able to reach agreement about what's the best way to do that. It remains on   one of the tasks to do that, but I think it's around capturing country of birth, language spoken at home and understanding what's the best way to capture that. 

MS EASTMAN: Is there any working definition of CaLD, so culturally and linguistically diverse, that your office uses? 

DR PEARCE: Other than, as I said, language spoken at home, and country of origin are the two key factors, but we don't systemically collect that data. 

MS EASTMAN: As you may be aware, and I mentioned this yesterday in asking Ms Brown some questions, that the Royal Commission recently conducted a hearing in Melbourne with a particular focus on people from CaLD backgrounds. And we heard some evidence from the Commissioner for Victoria   from the Victorian Multicultural Commission, Vivienne Nguyen, about the way in which CaLD people should be represented in the agencies in Victoria. Has your office had any work to do with the Multicultural Commission? 

DR PEARCE: I meet with a range of Commissioners in Victoria at a general meeting, but not specifically with that Commission. Our Community Education program has had dealings with the Multicultural Commission, and we have had had a large focus on education programs CaLD communities. So, we worked with them to that extent. 

MS EASTMAN: And you heard me ask Ms Brown yesterday about people whose first language is Auslan and identifying as part of the CaLD community. What's your office's approach to how you count people who use Auslan as their first language? Are they counted as members of the CaLD community? 

DR PEARCE: No, and that's partly because, as I said, we are not systemically collecting that data. 

MS EASTMAN: I want to ask you now about the NDIS participants who are also represented persons, and are we right in understanding   this is paragraph 48   that 50 per cent of represented persons are NDIS participants? 

DR PEARCE: That's correct. 

MS EASTMAN: And looking at your Annual Report for 2021 on page 6, that you have identified the NDIS as creating a considerable administrative burden for guardians and for the OPA's legal team, as many NDIS providers require a signed service deed. And I wanted to ask you about what has been the impact of the NDIS in relation to the work of your office. It seems to be fairly clear that it has created an increase on the demands of your office. Have you also seen an increase in the number of applications and appointments of the Public Advocate as guardian for people who are NDIS participants for the purpose of participating in the NDIS? 

DR PEARCE: We have certainly had a significant impact on the office as a consequence of the NDIS. And I will just think of a few examples. For example, guardianship orders should be the least restrictive and for the shortest amount of time possible. So, we have seen increase in the length of time of orders, and in part that's because, when we are appointed for a person who has an NDIS plan, the delay in the planning processes mean that we are often unable to conclude the processes within the given amount of time. So, you are seeing an extension on the length of time that people are under guardianship. 

We are seeing the number of decisions that people need to make as a consequence of NDIS increasing, and I think in the annual reports you will see that we identify increased complexity as a result of the NDIS. We are seeing   and although the NDIS may say that you don't need a guardian to have service agreements signed, it's not required, but in a market based system where those providers have some choice, they are looking for a signed agreement, and if it - you are unwilling to sign an agreement, then sometimes they won't, in fact, provide that service to you. 

So, there's a whole range of ways in which the NDIS has, in fact, impacted. And I think evidence from all guardianship jurisdictions has talked about the significant increase in the workload as a consequence of the NDIS. But it isn't just as a consequence   for instrumental reasons in getting applications signed. It's also because there's been a significant change in the service system, and guardianship is meant to be last resort, but, increasingly, we are seeing it used because there's no other alternative because there's gaps in the system. 

So, where once there was ‘least restrictive’ options because there might have been funded agencies and case management systems in place, that's no longer there. So, the significant change in the service system, as I said, means that we are appointed because there's no other alternative, not that it's last resort. 

MS EASTMAN: Do you have a concern that what appears to be the administrative use of guardianship to support people entering into contracts and entering into legal arrangements is an issue? Is it consistent with a last resort model or the least restrictive way? 

DR PEARCE: As I said, I think it in part, if the NDIS is saying it's not required, then it is   then it falls back to a market driven system where service providers have a requirement for a signed agreement because it is a contract. So, there is a gap there, and I believe the NDIS needs to do more work in educating service providers if, in fact, NDIS is saying it's not required. 

MS EASTMAN: Well, is the root of the problem the need for a formal legal contract? Would there be alternatives available that might avoid the need for a guardian to be appointed? 

DR PEARCE: Well, I think that requires a really big rethinking of the whole NDIS system itself, and it is based, as I keep saying, on a market system that is contract driven. And many of those contracts are very complex for people to understand, and sometimes we see in those contracts clauses that, in my view, are unreasonable, particularly for a person with a disability. 

MS EASTMAN: So we create a scheme that becomes more complex and adds an extra layer of complexity for people with disability and families, and the answer to it is to then appoint guardians to navigate this complex system. That doesn't sound right, does it? 

DR PEARCE: Absolutely not. And, you know, what we are seeing here is a scheme that was predicated on choice and control, and yet we see this enormously complex system involving complex contractual arrangements, and each guardianship jurisdiction would attest to increased complexity in the level of decisions that are required, and that is in part contributing to a significant increase in guardianship at a time when we want to move away from guardianship models altogether. 

MS EASTMAN: Does it also mean that it requires additional funding and also additional skills in the personnel who serve as guardians to have a very detailed working knowledge of how the NDIS operates and the way in which service providers deliver services, how services are priced, etcetera, etcetera? 

DR PEARCE: Well, it does, but I have to say, it doesn't have to be that way and, you know, if we had a service system that was better funded, if we had funding for decision making supports, if we had supported decision making, if we had alternatives, if we had greater levels of funding for independent advocacy, then we wouldn't be turning to guardianship not as a last resort but to fill the gaps because there's no other alternative. 

MS EASTMAN: Alright. So, I think you have just mentioned a little earlier about the duration of guardianship orders. For a represented person, are we right in understanding that when you look at the average duration, it's 18 months? Is that right? 

DR PEARCE: Yes. 

MS EASTMAN: That seems to be quite a lower period over which a represented person would have a guardian compared to some of the other jurisdictions. Is there any particular reason why that's the case?

MS EASTMAN: Look, I think it comes from the model in Victoria that pre dates the new legislation and, you know, really guardianship orders need to be for the shortest amount of time possible. So, we would try to be very clear about our role as decision maker and to get in and make a decision and then try and get an order revoked or not have an order continued. But we   as I said earlier, we are seeing the length of time under guardianship increase and in part, in a large part, that is due to the difficulty in resolving NDIS questions within the period of the guardianship order. 

MS EASTMAN: Do you think that the fact that, when orders are made, that there seems to be in Victoria a system of periodic review   we heard some evidence in relation to the financial administration orders that there's a review after three years. Does the review process contribute to the length of orders and the continuation of orders? 

DR PEARCE: Look, I think there's a number of   there's a number of factors. A small number of orders are what we call self revoking orders, and they finish at a particular point in time. We would certainly like to see more of those orders. We do take matters back for early revocation where possible. So, we are very conscious of these issues of being   guardianship orders being for the shortest amount of time possible. 

MS EASTMAN: When you say you take orders back for revocation, is that a process where your office initiates a return to the Tribunal? 

DR PEARCE: Yes. 

MS EASTMAN: To seek orders to have the guardianship revoked? 

DR PEARCE: Yes. 

MS EASTMAN: On what basis would you make applications of that kind? 

DR PEARCE: If the decision that we were   I mean, for example, if it was an older person and it was an accommodation decision and the decision was made and that there was a period of time after which we determined that the person was settled in that accommodation and there were no further decisions for us to make, then, on that basis, we may go back. Going back to get orders revoked does take additional time and resources, and if the review period is for a short amount of time, then it may be that we don't take it back because we know there is a reassessment in, for example, 12 months’ time. 

MS EASTMAN: I think you say in your statement   it's paragraph 49   that in the 2021 2022 financial year, 408 guardianships came to an end either by revocation of the orders or the expiry of fixed term without renewal. 

DR PEARCE: Yes. 

MS EASTMAN: We also asked you about the drivers of   sorry, about the barriers to revocation. So, what are the reasons why the orders might continue, and in your statement you have identified a number of factors. And can I just walk through a few of them. 

DR PEARCE: Could you just tell me what number you're at?

MS EASTMAN: So, this is   the four factors are NDIS, lack of appropriate accommodation, indefinite orders and burdens on proving capacity and VCAT listing. So, these paragraphs, if we will just do NDIS first. It's paragraph 187 to 199. And I think we might have touched on the issues raised on the NDIS being a barrier to the revocation of orders in the conversation we've just had a few moments ago. Is that right? So, I can ask you about the second issue which is a barrier to orders being revoked, which is the lack of appropriate accommodation. This is paragraph 200 and 201. 

DR PEARCE: Mmm.

MS EASTMAN: Are these some of the issues that we discussed with you a few weeks ago at Public hearing 26 in relation to people who struggle to find accommodation or are at risk of homelessness, or struggle with the pathways out of homelessness? And that might arise because of having to leave hospital following an illness or an injury, or just the lack of accommodation? Are those the – barriers? 

DR PEARCE: Yes, that's correct. 

MS EASTMAN: Then in terms of the next area, which is indefinite orders and the burden on persons proving capacity, that's matters that you have set out at paragraph 202 to 209. Does this arise because of that cohort who are still subject to orders under the 1986 Act? Or is it something different? 

DR PEARCE: It is both. Sorry, I'm just going to have a quick look at what I   

MS EASTMAN: Yes. 202 to 209. 

DR PEARCE: Yes, I'm just having a quick look at that. So, it's not just under the old Guardianship Act. It's   it covers the new Act as well. And, you know, we do at point 205 talk about the issue of medical evidence, and VCAT does rely heavily on medical evidence for disability, and there are barriers to getting new medical evidence. That may be the cost or   and in the absence of any other evidence, we may rely on   it may be relied on old medical evidence which may be some years old. 

MS EASTMAN: If this is a system that starts from the presumption of capacity   and you heard me ask some of these questions, I think, over the last few days   is what happens in that system, where the burden suddenly shifts in a very significant way to the person to then have to prove that they have regained capacity or developed capacity? Is there something not working with the system around the presumption   if the presumption is discharged, then a very heavy onus on the person to have to prove again that they have capacity? 

DR PEARCE: Well, there is this inherent tension in the system because by the time a person   I'm appointed as person's guardian, there is a presumption of decision making incapacity. But I have to start with the presumption of capacity. So, how does   how do you reconcile that? And that can be very challenging and that's part of one of the struggles of the new Act and why we have gone to the notion of supported decision making. 

But there is that inherent tension in there. And in any proceeding, be that at a Tribunal or in a court hearing, a person with a disability is always at a disadvantage because there is an inherent power imbalance and there is inadequate supports for a person in a Tribunal. So, we don't see regular legal representation, we don't see independent advocacy, and we don't see decision making supports. And perhaps a reliance on medical evidence.

So, it is a significant barrier, and it can be very intimidating under those circumstances. Particularly when they are in the hearing itself, there may be an array of professionals who are there, and in the case First Nations people who have a significant distrust, particularly, of courts and of government bodies, a reluctance to speak out in the face of authority because of the significant consequences. 

MS EASTMAN: Does this   

CHAIR: Dr Pearce, can I ask this: Is there some virtue in considering whether the Public Advocate, being appointed as a guardian, having the capacity, ability, power, to terminate the order themselves without having to go to the Tribunal? I appreciate that would not be a complete answer to all the issues that you've raised, but it's not obvious to me why the revocation of an order should invariably require going off to the Tribunal, having evidence and having a formal determination made. 

DR PEARCE: That's something I would like to take under consideration and happy to provide you with some information at a later date. But certainly the self revoking orders are extremely helpful, and if we had more of those, whether or not my office had the power to revoke the orders   we certainly have   because   and no criticism intended or implied, but there are significant delays at VCAT. So, we do have a number of orders that are before VCAT waiting for them to consider particularly where we are looking at revocation. So   and that is a resourcing matter for the Tribunal. 

CHAIR: Yes, I wasn't   I wasn't intending to make any criticism of the Tribunal but inevitably if you have a formal procedure requiring an application, requiring a hearing, requiring evidence, it will take time and it will take resources that otherwise might be minimised if there was a much more informal process. Anyway, it's just an off of the top of the head suggestion. 

DR PEARCE: Thank you, and it's certainly worthy of us thinking through and it's not something we had considered. 

MS EASTMAN: I think the final barrier was then   you may have just touched on this   the VCAT listing practices. That's paragraph 210 to 211. So, is this just the delay in getting matters on and heard? 

DR PEARCE: Yes. 

MS EASTMAN: In VCAT. Can I ask you now about the staffing of your office. You've told us in paragraph 51 there are 104 full time equivalent staff. 

DR PEARCE: Yes. 

MS EASTMAN: And do you have officers located throughout Victoria? 

DR PEARCE: No, only located in Carlton. 

MS EASTMAN: Does that mean, then, that the people in your office who have the responsibility to act as guardian have to travel around the state? 

DR PEARCE: That's correct. 

MS EASTMAN: And does this have a bearing on the frequency of direct contact in terms of meeting a represented person? 

DR PEARCE: It does have a bearing, but we do try   so, for example, an area where we have a number of clients would be Mildura, and so when a guardian goes to Mildura, typically they will ask who else needs to be visited. So, we will make sure that we are visiting a large number of people when we go to other rural locations. 

MS EASTMAN: So the standard practice in the office is that the guardians are expected to visit the represented person within two weeks of being allocated. Is that right? But COVID caused some disruptions to meeting that target. 

DR PEARCE: Well, it wasn't possible, and I think this has had a significant impact on the Act. People will be aware of the large amount of time that Melbourne was in lockdown. You weren't allowed to go, you know, more than 5 kilometres from your own house. Requirements from working from home. Very strict restrictions on visiting people in hospitals, aged care facilities, disability homes, mental health services. So, we weren't able to visit for a very long time. It was really quite protracted, and we had to find other ways of meeting with people, trying to determine will and preference, but it was absolutely no substitute to face to face. 

MS EASTMAN: And is it the case that it the aim is for the guardians to meet with the represented person at least twice per year? 

DR PEARCE: That is the aim, but, in practice, we would meet with them more frequently than that, particularly depending on the nature of the decision that's required. So, I gave you the example of a person who we need an accommodation decision, that accommodation decision is made. We would   if the person appears settled and we would check after three months, we may not need any more than two visits. Other people would require far more frequent visits. So, that's the aim and that's the minimum. 

MS EASTMAN: Can I ask you about the number of people with disability who are employed within your office, and, in particular, whether there are people who identify with disability who act as guardians. 

DR PEARCE: Yes. We are administratively part of the Department of Justice. It doesn't routinely collect that information. But we do our own internal surveys, and our last survey, 23 per cent of people identified as having a disability, and a small percentage identified as not wanting to identify. So, left the question open. So, 23 per cent. I think 75 per cent of all staff completed that survey. 

MS EASTMAN: We asked you about staff training, and that's set out in some detail in the statement from paragraph 68 to 104. But what I wanted to ask you about is that practical way of implementing a human rights approach for the staff at OPA, and not just what training courses are done, but how it's actually done in terms of building a culture and a mindset of staff and how it's built into the organisational structure, process, decisions and actions. Because that's your objective, isn't it, is to look at the way the whole of the office operates and to see how a human rights approach is relevant to the service that you deliver. How do you do that in practice? 

DR PEARCE: Well, I might give you a practical example and talk about a project I feel very proud of. It's our Healthy Discussions project. That is a project led and co designed by people with a disability who are employees of my office. They have developed an orientation module that all staff go through when they first start in the office. We have shown it at our all-staff meetings and there has been considerable recognition for the work that they do. And while that's not a broader human rights approach, it's indicative of the approach that we would take in the office. And so it starts with the culture, not just the training. 

And there are a range of other training. So, we currently have our advocate guardians undertaking training, set out by the Victorian Equal Opportunity and Human Rights Commission on rights, and that does include the CRPD. We not only have the   an Act now which requires us to be consistent with the CRPD, but we also have a Human Rights Charter in Victoria, so in setting out our reasons for decisions we are required to set out our reasons consistent with both the Charter requirements and the guardianship and administration requirements. 

So we have   we have a legislative framework, we have a culture   and I've just given you one example of how we try and walk the talk in the work that we do. We have just been granted funding under the National Disability Strategy, the Safety Targeted Action Plan, where we have another project that will be led by people with disability. And that's around diverting people from guardianship by looking at the   whether or not there's questions about service provision that can be sorted through advocacy rather than through guardianship. 

So, it's in the project, it's in the way we approach our work, it's embedded into the culture, but it's making sure our decision making models are consistent with both the Charter and the guardianship and administration legislation. 

MS EASTMAN: Well, I think you say this at paragraph 215 of your statement, that you are in a fairly unusual position of being committed to the CRPD and being the substitute decision maker of last resort under the Victorian legislation. And there is a tension, isn't there, between what the CRPD says in relation to supported decision making and the statutory responsibility that you have to discharge as substitute decision maker. How do you approach resolving this tension? 

DR PEARCE: Through our Systemic Advocacy Unit, and our advocacy is informed often by the stories of people with lived experience of disability, and you will see through almost all of our submissions and certainly our reports that we try and tell the stories of people with a lived experience. We try to find what are the systemic themes that we find from our work, and so we are advocating for change for better systems while we are also required to make decisions that do limit a person's human rights. 

MS EASTMAN: So the Victorian Act, the 2019 Act, came into force in March 2020. Is that right? And there has been a review of the Act. Has that been done internally by your office? 

DR PEARCE: It's not a review. It's really   we do call it a review in our submission but it's actually more our reflections on the Act. What have we learnt so far, what does the data tell us, bearing in mind that we had a very long period in lockdown and so there are some things that we think we are starting anew, but there are already some things that I think we have learnt from the Act. 

MS EASTMAN: So you have said at paragraph 212 to 216 of your statements that there is the review of the reforms in progress and a report will be delivered in mid to late November. I don't think you have shared with us a report or a draft report, but could you give us any sense as to when those reflections might be published? 

DR PEARCE: Probably now not until the new year. But once that's available, I'm happy to share that with you. 

MS EASTMAN: Can I ask you, then, this way, and this might be my cheeky way of trying to find out what's in your reflections, is in terms of the Act two years into operation and mindful that a significant period has been a period of lockdowns and disruptions for COVID, what has changed in Victoria in the new model which has a heavy emphasis on will and preferences and away from best interests? Are you able to share any reflections on what that has meant at a practical level? 

DR PEARCE: Yes. But given, as I said   I just want to put the caveat there about the lockdown period and the difficulty in face to face determining will and preference, but leaving that aside, we   in looking at our data   and I should say, this is really very preliminary   when we are talking about serious personal decisions   so, I'm not talking about, you know, administrative decisions that guardians make. So, those serious personal decisions, our data indicates that 10 per cent of decisions have been made by the person themselves. 

MS EASTMAN: 10 per cent. 

DR PEARCE: 10 per cent. Of that sort of subset of decisions that are made. 

MS EASTMAN: Can I just understand that. So, the guardian has got the obligation to substitute for decision making. 

DR PEARCE: Yes.

MS EASTMAN: Is it the case that, in discharging that obligation, the guardian will seek as far as possible or in all cases to ascertain the will and preferences of the person with respect to serious decisions? 

DR PEARCE: Yes, in all cases we have to   we are obliged to understand the person's will and preference and to give effect to will and preference as   really as a first principle. 

MS EASTMAN: So, will and preference   so sits still in the model of substitute decision making. But it has got some elements of what we might say as key aspects of supported decision making. Is that right? 

DR PEARCE: Indeed. 

MS EASTMAN: Is it the case that, notwithstanding your function is substitute decision making, that the way in which you were approach that is to, as far as possible, use a supported decision making model? This is the tension you talked about earlier. 

DR PEARCE: It is a tension, and I will just give you an example why that's very difficult. Our colleagues at the Queensland Advocacy Service talked about the length of time it takes for supported decision making, to get to know the person, and the Queensland Public Trustee talked about getting to know the person being at the heart of supported decision making. And yet the tension is that we have   we want the limitation on a person's human rights to be for the shortest amount of time possible. 

So, how well can you get to know a person when you want to actually get a person off an order? So to say that it was true supported decision making in that sense of knowing the person well, walking with them, and particularly given the high caseloads, that's not possible. 

MS EASTMAN: So particularly if it's two visits a year. That's   

DR PEARCE: Yes, but in most cases, in fairness, it is more but, yes, that's right. That's right. So, that's not possible. So, if you are looking at it in terms of what is the decision that needs to be made under the guardianship order, can we understand the person's will and preference in relation to that decision or that cluster of decisions? What is the person's will and preference in relation to those particular matters? And then can we give effect to those decisions? 

MS EASTMAN: So, what's materially different from the best interest approach, then? 

DR PEARCE: I think it's understanding what the person's will and preference is and giving effect to that, and then we are obliged to give effect to that will and preference unless there is serious harm. 

MS EASTMAN: So, does will and preference have work to do around concepts of serious harm, but also how we define or identify what dignity of risk might mean in a given circumstance? 

DR PEARCE: Yes. 

MS EASTMAN: How does that work in practice? 

DR PEARCE: Well, if I talk about   so, as far as possible, people make   we support people or help them to make their decisions, but our data tells us in the two year period, the last two years, between seven and eight per cent of will and preferences have been overturned. 

MS EASTMAN: Sorry, forgive me for interrupting but why would that be the case? What would be the circumstances? 

DR PEARCE: Where we   

MS EASTMAN: Will and preference will be overturned? 

DR PEARCE: Okay. So, that's where we've determined that there are serious harm, and perhaps if I could give you examples. So, an accommodation, a person who's homeless, sleeping rough, Melbourne gets very cold, inadequate clothing. Concerns about the person's wellbeing and safety. A decision might be made for them to go to a shelter, and they don't want to do that. And in the particular case I'm thinking about, the person did not want to go to the shelter. We   or the accommodation, designated accommodation. They went there. They actually settled there. And later on we were able to assist them to get better accommodation at a later date. 

Another example will be around   again around safety, but this is really about violence and abuse, where a person may be in a family violence situation where they wish to remain in that situation but there are serious risks to their health and wellbeing and where we might agree with the police that an intervention order is necessary, and they may not wish that because they wish to remain in a relationship where there's significant abuse. 

MS EASTMAN: Does that require the judgment of the guardian as to the degree of risk and the management of risk? 

DR PEARCE: It does. But the overturning of will and preference needs to be done in consultation with a manager. So, a guardian may come to that position, but they are required under our internal processes to, in fact, talk that through with their immediate supervisor. So, there is a check and balance in that. 

MS EASTMAN: In that process, a role of the guardian is to make the decision. Does this process of will and preference and addressing risk, discussing risk start to push the guardian into a more case manager role? 

DR PEARCE: I think the whole   with the advent of NDIS guardians have been pushed into a case management role. It's not just around will and preference and risk, but I think that's probably another conversation. So, that's part of it. 

MS EASTMAN: Is your office funded to take on the workload associated with exercising and practising will and preference for all of the represented people? 

DR PEARCE: There was no funding given to my office or Victoria or state trustees to implement the new Act. 

MS EASTMAN: Does that create an impediment in being able to achieve the objects of the new Act? 

DR PEARCE: Well, supported decision making, when you make a substitute decision, you may be able to you know meet the person, weigh it up on paper and, you know, make the distinctiondecision. But if you are talking about a model   a limited model of supported decision making, it requires more time, more resources to be able to make those decisions. It requires more consultation with people under guardianship, particularly at the beginning. So, there's more resources, more time, more decisions to be made, and it is a limitation on the ability for everyone to be able to implement the new Act when there were limited resources, or no resources given to the implementation of the Act. 

MS EASTMAN: I want to ask you about a matter that Mr Cartwright raised yesterday, and you might remember towards the end of his evidence he said that he has now a supportive guardianship arrangement in place. And in terms of what a supportive guardianship is, is that something that is available under the Victorian Act? And I think you have addressed this, just in terms of your paragraph numbers, 28 and 31. And then in paragraph 220, I think, you tell us that there's only been three supported orders made following an investigation by your office. It might assist the Commissioners to understand what this notion of supportive guardianship, how those provisions operate in the Victorian Act. 

DR PEARCE: Look, this is a really important change in the move from substitute decision making to have a supportive guardian so that a person can get the supports that they need. As I say in my response to you, that despite us looking for people who can be supportive guardians, we haven't been able to do that successfully, and we say that our investigations have only   only three times made recommendations for supportive guardians. 

And perhaps I will also just mention a recent matter where a person was under guardianship. We were able to identify a person who could be a supported guardian. We took that to VCAT, but the person didn't themselves   didn't come to the hearing, which was very unfortunate because they need to consent to that. And their attendance at the hearing wasn't implying that they didn't consent; they just weren't there. So, the guardianship order continued. And that speaks to how do you get people to guardianship hearings. 

So, there's a number of impediments. But I think, fundamentally, for many people where they have a good relationship with the person, there's no need for a supportive guardian because it's already working informally. Where people would like that formal support, it's often because they don't have another person who's available to be the supportive guardian. So, VCAT is often unable to appoint a supportive guardian because there's no one available to take up that role. And so you put this into an Act but then you don't create a system where you can identify supportive guardians. 

MS EASTMAN: I think we have got some information from VCAT, and, Chair, you might remember you accepted it a tender of some responses from VCAT. So, in terms of supportive guardianship orders, VCAT in the year 2020 to 2021 made 68 orders and for supportive administration orders, 62 orders. So, they would be people who are prepared to take on that role. 

DR PEARCE: Yes. 

MS EASTMAN: Sorry, I just do not want to get these numbers in the charts wrong again. Okay. Sorry. Alright, so 68 applications and 62 applications. And 18 appointed   18 supportive guardians appointed and 30 supportive administration. Okay. 

DR PEARCE: And I'm not privy to the reasons why they are unable to appoint supportive guardians despite the application, but I can say there is often an inability to identify a supportive guardian, and that limits the ability to appoint the person. There's no model. 

MS EASTMAN: So is there work to be done for this aspect of the Victorian legislation to start to work effectively? 

DR PEARCE: Yes. 

MS EASTMAN: Alright. I'm just mindful of the time and I know the Commissioners will have some questions. You have heard the two witnesses yesterday tell the Royal Commission about how important it was for them to be able to speak out about their situation and circumstances. And clause 37 of schedule 1 of the Victorian Civil and Administrative Tribunals Act currently prevents anyone publishing or broadcasting information that could identify parties involved in guardianship and administration proceedings without VCAT's permission. 

And there is a view among some people that this is a form of censorship, it kills their freedom of expression, it denies their human rights, and that they would like to be able to speak out about their experiences. And others say this is a protective jurisdiction and we are protecting people's privacy. So, do you have a view on whether there is a balance to be struck between non publication and the strict prohibition on broadcasting information and an individual's right to freedom of expression? 

DR PEARCE: I do. And I support individual's right to freedom of expression, and I think the prohibition comes from a protectionist model. But we have moved on. So, while I support a person's right to tell their story and be supported to tell their story, it is a matter that I have raised both with the Department of Justice and with the Attorney General, and I do understand, subject to an election this weekend, there is a willingness to consider this issue. 

But I have advised the Attorney of my view that there needs to be careful consultation with people with a disability and their families around this issue and not about   not so much about a person being able to tell their stories and be supported to tell it, but who has the right to tell that story. And I am aware from discussions from discussions with people with disability and disability organisations that there are different views about who can tell the story. 

Should it only be the person who has been subject to the order? Or can anyone tell anyone's story? Who owns that story and what version should they tell? So, that's the area. But I don't have a view on, and I think it needs to be discussed very broadly as part of a consultative process around the change, and that's been my advice to the Attorney General. 

MS EASTMAN: Dr Pearce, thank you very much for your evidence. The Commissioners have got a very detailed statement and some accompanying material, but they may have some questions for you. 

CHAIR: Thank you, Dr Pearce. If it's alright with you, I will ask my colleagues if they have any questions. Commencing with Commissioner McEwin. 

COMMISSIONER McEWIN: Thank you, Chair. Thank you, Dr Pearce, for your evidence. I would have two things I would like to ask you. The first one relates to paragraph 208 of your statement. 

DR PEARCE: Yes. 

COMMISSIONER McEWIN: Where you describe that OPA have experienced family members advocating for guardianship orders to continue despite OPA's staff having different views. What needs to change there to try and get that human rights approach that you talk about for the person? 

DR PEARCE: Look, I think it's not sufficient just to reform guardianship laws. We are talking about a much broader change that's required in society as a whole, and I think there is a lack of understanding quite broadly around the importance of supported decision making, on the rights of people with a disability and attitudinal barriers, and ableism. And I think those are the things and we need to see reforms in those areas. 

And, in my view, too much emphasis is placed on just the simple reform of guardianship laws when, in fact, there is a much broader issue here. And it also needs to be seen in the context of reform of other decision making laws such as mental health laws. And in Victoria, we have a Medical Treatment Planning and Decision Act. So, we need to see a range of acts change, and sitting alongside of that we need reforms in the service system, so supported decision making models, and we need to see much broader inclusion and definitely changes in the ableism attitudes. 

COMMISSIONER McEWIN: Thank you. My second question relates to paragraph 271 of your statement. Where you say that there are a wide range   well, the divergence of views about what the supportive decision making model should look like. And you say it is impossible to establish a safeguarding framework that ensures appropriate oversight of decision making support without an agreed model. What are the barriers, in your view? 

DR PEARCE: Look, I think supported decision making is new to Australia. Models of it are new. And I've been to so many meetings around supported decision making where there may be arguments around the edges about what a supported decision making model might look like. They are all relatively similar, but we need to have an agreed model so funders can say, "This is the model, and this is how we are going to fund to it." So, it's absolutely fundamental that as a first step we get an agreed national model, and we fund to that model. But without that, we are still spending our time arguing around what it might look like. Let's establish the model and say what do we need to fund supported decision making in Australia. 

COMMISSIONER McEWIN: So, you mean, for example, to incorporate, say, the principles of the CRPD into that model as a starting point? 

DR PEARCE: Yes, as a starting point, yes, indeed. But also to be able to fund both supported decision making but decision making supports. And if you have an agreed model, I think that is the starting point for that. 

COMMISSIONER McEWIN: Thank you. 

CHAIR: Commissioner McEwin? I'm sorry. Commissioner Ryan. 

COMMISSIONER RYAN: Thank you, Mr Chair. The   I just wanted to check a detail first before I asked a question. Is it true that you have 1,400   was it 1,046 people under guardianship in Victoria that   

DR PEARCE: Yes. 

COMMISSIONER RYAN: In the ordinary understanding of it. The reason I'm checking that is we have looked at four systems over the last number of days, Western Australia, Victoria, New South Wales and Queensland. The other states have between three and four times the number of people under guardianship that you do. Is that a   that obviously   they all have roughly the same number of staff plus or minus a few around the hundred, but it seems to enable to you give a much more intense level of service to a lesser number of people. Notwithstanding what you have said about resources. But that   has that number been recently declined or has that always been the case that Victoria has had less   

DR PEARCE: Generally, it has always been the case that we have had less people under guardianship   more applications. If you look, again, at the AGAP data, you will see there are a large number of applications, but less people appointed. But it's also we turn the orders over as quickly as possible. So, for some of those orders, you will see that our figures show that people are under guardianship for shorter amounts of time. So, that's in part. And I think different systems and different tribunals will make decisions about whether or not an order needs to continue for a length of time. 

COMMISSIONER RYAN: So, given that this seems to be a habit of Victoria right throughout, and you have only recently changed your laws   and that's been disrupted by COVID and so on   is it law or culture that's making the difference? I mean, my observation is your office seems to have a slightly different culture towards more supporting   supportive decision making than others and keeping everything short. Is that a cultural thing or is that a legal thing? 

DR PEARCE: It is both, but my office has been very engaged in changing guardianship laws, and it comes from this systemic advocacy approach of trying to understand what are the issues that arise as a consequence of our work. We also have a broader remit with our community visitors’ functions, our independent third person. So, we see the lives of people with disabilities. We are able to take their stories. And so there is a very strong advocacy approach to the work that we do, and that informs us. 

There's a very strong culture of human rights embedded in the office and in the work that we do. And then it is supported by law and both the underpinnings of the Charter, the changes to the Guardianship and Administration Act, but I do have to point out too the Medical Treatment Planning and Decisions Act of 2016 reduced the number of people coming to VCAT for guardianship as a consequence of decisions being able to be made in a less restrictive way. So, that's why I said you can't just focus on guardianship laws. It's the range of laws. It's the culture. And it's really   it's the funding systems, I do just want to say, for supported decision making and independent advocacy and decision making support are absolutely crucial if you are going to reduce guardianship. 

COMMISSIONER RYAN: Thank you, Mr Chair. Thank you Dr Pearce. 

CHAIR: Dr Pearce, there's just one minor point I wanted to understand. Would you mind going to paragraph 161, subparagraph (b) of your statement. It was referred to, I think, in a question from Ms Eastman. You there say there's been an increase in the number of guardianship orders that included a power to make decisions in relation to services required for people under 65 from 66 to 70 per cent up to 80 to 90 per cent. I didn't quite understand these percentages. What do they relate to?

DR PEARCE: I believe they relate to the number of orders where   that include decisions related to service provision. 

CHAIR: And examples of decisions that relate to service provision would include, what, the NDIS? 

DR PEARCE: Yes. Yes. More broadly, generally, it's the NDIS, but it's not entirely. It might be a person who lives at home, an older person who is refusing services. So, it might be   we might be given the powers to make decisions where a person is   it may be considered they are in need of services, yet are refusing access to services. So, they are the kinds of things we might get, but NDIS has certainly contributed to the number of orders where we get access to services. 

CHAIR: Yes. Thank you. That explains it. Thank you. Would you be good enough to go to paragraph 221. 

DR PEARCE: Sorry, what number? 

CHAIR: 221. 221. You say there the two key reasons why a supportive order may not be appropriate or possible are, and then: 

"(a) the proposed represented person would not have decision making capacity even with the assistance of a supportive guardian or administrator.” 

Can you give examples of what those circumstances might be? 

DR PEARCE: It may be where   I just said that most medical treatment decisions are made through the Medical Treatment Planning and Decisions Act, but some guardianship orders still do have medical treatment decisions attached to them. It might be that it could be a medical treatment decision, or it could be a person with a mental illness, and it might be episodic. So, it may not be   unable to make the decision forever, but it might be an episodic issue, or it might be a medical condition for a particular point in time. Period of time. 

CHAIR: I was really interested in the   why the person might be deemed not to have decision making capacity rather than the nature of the orders being made. 

DR PEARCE: And as I said, that would be potentially, as I said, because it might be a mental illness, episodic in nature. So, it doesn't mean they didn't have decision making capacity permanently. It might be at a point in time. 

CHAIR: What about somebody with Alzheimers at an advanced stage? 

DR PEARCE: Yes, that would be another example. 

CHAIR: Yes. Alright. Thank you very much. Thank you very much for your detailed statement, your evidence, again, which on each occasion, if may say so, has been extremely helpful to the Royal Commission. We do appreciate your assistance and thank you again for being prepared to stay over in a hardship post in Sydney for an extra night. So, thank you very much for that. 

DR PEARCE: Thank you. 

COMMISSIONER RYAN: Hear, hear. 

CHAIR: Ms Eastman 

MS EASTMAN: Thank you, Dr Pearce. Can I just ask you, Chair, to receive into evidence Dr Pearce's statement and the accompanying material. 

CHAIR: Yes.

MS EASTMAN: If you could mark that material as starting as Exhibit 30.099 through to 30.112. 

CHAIR: Yes. Yes. Thank you. Dr Pearce's statement, plus the supporting documents will be admitted into evidence with the markings that Ms Eastman has indicated. 

<EXHIBITS 30.099 TO 30.112 STATEMENT OF DR COLLEEN PEARCE AND SUPPORTING DOCUMENTS

<THE WITNESS WITHDREW

CHAIR: What should we do now, Ms Eastman? 

MS EASTMAN: I'm doing a quick double check of what   so I don't give you the wrong information. I think we're going to adjourn for morning tea now. So, if we could resume at 11.30. 

CHAIR: It's just after 11.10 Sydney time. We will resume, then, at 11.30. 

<ADJOURNED 11:12 AM 

<RESUMED 11:36 AM

CHAIR: Yes, Ms Eastman. 

MS EASTMAN: Commissioners, our next witness is Austyn. That's a pseudonym. Austyn is in the hearing room. So, warm welcome Austyn. I think you will take an affirmation. 

AUSTYN: Mmm. 

CHAIR: Austyn, thank you very much for coming to the Royal Commission at Homebush today. We appreciate your assistance to the Royal Commission. We do have your statement in writing, for which we thank you, and we have read that. If you would be good enough to follow the instructions of the associate who is to your right, she will administer the affirmation to you. 

ASSOCIATE: I will read you the affirmation. At the end please, say yes or I do. Do you solemnly and sincerely declare and affirm that the evidence you shall give will be the truth, the whole truth and nothing but the truth? 

AUSTYN: I do. 

<AUSTYN, AFFIRMED

CHAIR: Thank you very much, Austyn. Just to be clear where everybody is   you probably know, but in the same room as you is Commissioner McEwin, Commissioner Ryan, and I am participating in the hearing from our Sydney hearing room so I will be on the screen. I will now ask Ms Eastman to ask you some questions. 

<EXAMINATION BY MS EASTMAN SC

MS EASTMAN: We will start with a deep breath. So, you are Austyn. 

AUSTYN: Yes.

MS EASTMAN: You have provided a statement to the Royal Commission which is dated 8 November 2022. 

AUSTYN: Yes. 

MS EASTMAN: You have got a copy with you? 

AUSTYN: Yes. 

MS EASTMAN: And what's in that statement is true to the best that you can remember things. 

AUSTYN: Yes. 

MS EASTMAN: Is that right? Can I ask you some questions about some of the matters in your statement? 

AUSTYN: Yes.

MS EASTMAN: You are a First Nations woman, and you live in New South Wales. And you have two siblings: A brother and a sister. Your brother, who we will refer to as Howie, is a man who was born with disability, and I might need you to say yes. 

AUSTYN: Yes. Sorry. 

MS EASTMAN: And that has had a significant impact on his life. 

AUSTYN: Yes. 

MS EASTMAN: Would you like to tell us about Howie and what he's like as a person so that when we talk about him today, we feel that we know him and we are not really talking about him, but we can feel that he's sort of part of this discussion as well. 

AUSTYN: Okay. Okay. So, Howie was born disabled, severely disabled. He couldn't walk when he was born. He had limited verbal capabilities. He has obvious physical disabilities. Yeah, and we all just lived at home. Mum looked after him. We all just   yeah, he was   

MS EASTMAN: He was just part of the family. 

AUSTYN: Just part of the family, normal everyday part of the family. 

MS EASTMAN: And when you were younger, your dad did a lot of travelling for work? 

AUSTYN: Yes, that's correct. 

MS EASTMAN: So your mum looked after the kids? 

AUSTYN: Yes, all of us together under a certain age. And it was quite difficult for her. 

MS EASTMAN: Was it a bit of a struggle for mum at times? 

AUSTYN: Yes, definitely. 

MS EASTMAN: And when Howie became a little bit older, she decided that she needed to put him into care. Is that right? 

AUSTYN: Yes. He had daycare, like a day respite care but as he grew bigger, he grew a lot stronger and could be   I would   like, dangerous sort of thing to himself and to others because he was so strong. 

MS EASTMAN: So, when he was living in care, did you have any contact with him, for example on the weekends or on holidays? 

AUSTYN: Yes, we went to the care home every weekend. That was where we spent our weekends. At least one day of the weekend. 

MS EASTMAN: Did Howie go to school at all? 

AUSTYN: Yes. 

MS EASTMAN: And do you remember where he went to school? 

AUSTYN: Not really. It was a disability care provider school. 

MS EASTMAN: So, I think you have said in the statement that there's been some troubles in the family, and you haven't always been close to your family. And there was a big period of time where you were away from your family; is that right? 

AUSTYN: That is correct, yes. 

MS EASTMAN: And you moved interstate. 

AUSTYN: No. I - 

MS EASTMAN: Your mum moved interstate. That's right. So, your mum moved interstate and so the family not so much broke down, but you lost contact with each other; is that right? 

AUSTYN: Yes, yes.

MS EASTMAN: And in 2015, you found out that your mum had been diagnosed with some life ending illnesses. 

AUSTYN: Yes.

MS EASTMAN: And you decided that you wanted to reach out to her and the family again. Is that right? 

AUSTYN: Yes.

MS EASTMAN: So, when you made contact with the family again, you also discovered that your mum and your sister hadn't kept in contact with Howie. 

AUSTYN: That's correct. 

MS EASTMAN: And so you had to take some steps in reconnecting with your family to also then find out where Howie was. 

AUSTYN: Yes. 

MS EASTMAN: How did you go about finding out where Howie was and where he was living? 

AUSTYN: Well, I asked them, mum and my sister, and they weren't sure. The last time they had seen him was in the late 90s. So, I started making phone calls to various care providers. I called   at the time it was called the Department of Community Services. I called lots and lots and lots of people and I accidentally found him. 

MS EASTMAN: Okay. So, it was a long and frustrating process to find him. 

AUSTYN: Yes. 

MS EASTMAN: And when you say you accidentally found him, how did you   how did you find him? 

AUSTYN: As I was hanging up on a phone call with someone from a care provider, he said to me, "You might want to try this place.” 

MS EASTMAN: So somebody had given you, in a sense, a tip off to say this is where he is. 

AUSTYN: And that's exactly where he was. 

MS EASTMAN: So, you located the care provider, but it wasn't a simple matter of ringing the care provider or knocking on the door and saying, "I'm Howie's sister. I would like to connect with him." 

AUSTYN: No. 

MS EASTMAN: It was pretty difficult to get through the barrier of the care provider to have contact with Howie; is that right? 

AUSTYN: Very. Very difficult. 

MS EASTMAN: So, what can you tell us about how you went about this? Because you were quite persistent, weren't you? You weren't going to give up? 

AUSTYN: No. 

MS EASTMAN: So, how did you go about it? Did you have to do anything to be able to get into contact and re establish that contact with Howie? 

AUSTYN: First, I called them, and he was with the same care provider he had been with the entire time. He hadn't changed. They wouldn't tell me if they still cared for him. They wouldn't even tell me at first if he was still alive, because he's not   you know, he's quite disabled and anything could have happened to him. Eventually they told me, yes, he is alive, but they would not give me any more information. I had to provide a police check, all identifying documents, photos of us together as siblings, you know, at family gathering and things like that. Yes, lots of information. Like, I had to pay for my own police check, provide his birth certificate, which, you know, I had. All sorts of things. 

MS EASTMAN: Even after you took all those steps, you told the care provider that your mum was unwell, and she had a terminal illness. And that really seemed to be the point at which the care provider agreed to let you visit your brother but under their supervision. 

AUSTYN: Yes. At their head office. 

MS EASTMAN: So, Howie   you didn't get to see Howie at his own home. 

AUSTYN: No. 

MS EASTMAN: You had to have a supervised visit. 

AUSTYN: Yes. 

MS EASTMAN: How did that make you feel? 

AUSTYN: I was just happy to see him, to be honest. Yes, they let me   mum travelled from another state to come here, and she only had, I think, one day left before she went home, and they allowed us to see him on that last day. 

MS EASTMAN: And for you, it wasn't just a matter of seeing him once. When you reconnected with him, you really wanted to re establish the relationship with Howie. Is that right? 

AUSTYN: That is correct. Yes. 

MS EASTMAN: And you wanted to be able to visit him for occasions like Christmas. Were you allowed to do that? 

AUSTYN: Not that year, no. 

MS EASTMAN: And did you understand why the care provider was restricting you or stopping you coming to visit him even for Christmas? 

AUSTYN: No. 

MS EASTMAN: You kept persisting. 

AUSTYN: Yes. 

MS EASTMAN: And in March 2019, a representative of the care provider invited you to the office. Is that the same visit, that first visit? 

AUSTYN: No. 

MS EASTMAN: This is a different opportunity? 

AUSTYN: A second visit. Howie was not at that meeting, the second visit. I had been allowed to see him once or twice between   like, it was out in the community. I wasn't allowed to see him at his home. 

MS EASTMAN: Okay. So, we get to March 2019, and you were invited to the head office, and you were told the purpose of the meeting was to discuss Howie's birthday party. 

AUSTYN: That is correct. 

MS EASTMAN: But when you got there, the meeting was a little different. And the care provider said that it was going to apply for guardianship of Howie. 

AUSTYN: Yes. 

MS EASTMAN: And at that time, did you know what guardianship was? 

AUSTYN: No. And I believed that my mother or them had guardianship already. I had no idea that he had no guardian. 

MS EASTMAN: So, you didn't know what it was. Did you know where you go to do guardianship? 

AUSTYN: No. 

MS EASTMAN: You now know about a place called NCAT, the New South Wales Civil and Administrative Tribunal. Is that right? 

AUSTYN: Yes, that is correct. 

MS EASTMAN: But you didn't know about that at the time. 

AUSTYN: No. 

MS EASTMAN: Okay. So, you had heard this in March. You actually were able to go to Howie's birthday party, and that was around April 2019. 

AUSTYN: Yes. 

MS EASTMAN: And at that party, somebody had a quiet word to you, didn't they? 

AUSTYN: Yes, she wasn't exactly quiet, but she did have a word, yes. 

MS EASTMAN: What did she say to you? 

AUSTYN: That I must seek to become Howie's guardian, and she was very, very insistent. Very insistent. Frighteningly so. 

MS EASTMAN: That conversation rattled you? 

AUSTYN: Yes. 

MS EASTMAN: And did that make you say, "I think I need to find out a little bit more about what this guardianship business is.” Is that right? 

AUSTYN: Yes. She   she stated that she believed it would be a conflict of interest for them to have guardianship. So, I looked into it on basically the next day. 

MS EASTMAN: How did you go about finding information about what guardianship would be or how guardianship orders would be made? How did you go about that? 

AUSTYN: I didn't even understand about orders at the time. I went on to the NCAT website and read what I could, and there's lots of pages of information that aren't necessarily informative, and just read everything I could on there. 

MS EASTMAN: And did you ring NCAT and want to speak to somebody? 

AUSTYN: I did, on a Monday. 

MS EASTMAN: And when you rang   so, you went to the birthday party on the weekend. 

AUSTYN: On the Saturday, yes.

MS EASTMAN: Got on to the website and read all of the things. 

AUSTYN: On the Sunday, yes. 

MS EASTMAN: And on the Monday you decided, well, I'm just going to ring someone at NCAT and ask them what is going on and how does it happen. 

AUSTYN: How does it work. 

MS EASTMAN: When you rang the person about NCAT, what do you remember about the conversation? 

AUSTYN: She asked me the name of the person I wanted to talk to about guardianship, and she told me that the hearing had actually been that day and that he was now   he had a guardian, and it was not me or a family member. And I at the time believed it was the care provider, but it was not. 

MS EASTMAN: Okay. So, you discovered that the order had been made for the Public Guardian to be appointed as Howie's guardian, not the care provider. 

AUSTYN: Yes. 

MS EASTMAN: And you found out that the orders had been made. And that the Public Guardian would have responsibility to give consent for Howie's medical or dental treatments; is that right? 

AUSTYN: Yes. 

MS EASTMAN: And you also found out something else, that the New South Wales Trustee was appointed as Howie's financial manager. 

AUSTYN: Yes. 

MS EASTMAN: You found that. So, in the documents that we have got for the Royal Commission   and, Commissioners, this is behind tab 38 in bundle A   that we have got a copy of the decision of the Tribunal. And you've seen that decision, haven't you? 

AUSTYN: Yes. 

MS EASTMAN: And did you get a copy of this decision after the conversation with the person at NCAT or at some later point in time? 

AUSTYN: No, not until the review and when I became guardian. 

MS EASTMAN: Okay. So, let's take that next step. So, when you had discovered that the Public Guardian had been appointed, that meant doing some more research and finding out what was going on and who the Public Guardian was. And you decided, though, that you thought that you should be Howie's guardian. 

AUSTYN: The lady at NCAT suggested that I should have known about the hearing that was being held, and that perhaps I should put in what's called a review of the decision, and I did that. 

MS EASTMAN: So you pretty much made the review application on the day that you spoke to the person at NCAT. 

AUSTYN: On the Monday, yes. 

MS EASTMAN: And to do the review application, am I right in understanding that you just did that yourself, you didn't go and try to find a lawyer or anybody to help you do that? 

AUSTYN: No. There's just a form that I printed off and I filled it out and uploaded it, sent it back to them. 

MS EASTMAN: And part of filling out the form meant that you had to think about why you might be the right person to be the guardian. And by this stage, you had done some nursing studies. You were partway through your nursing studies. 

AUSTYN: In the middle of them, yes. 

MS EASTMAN: And you felt that you would have good knowledge about your brother to be able to support the decisions around his health and his medical needs. Is that right? 

AUSTYN: That's correct. Yes. 

MS EASTMAN: And part of what caused you to say you wanted the review was that you didn't think that the care provider was doing enough. I think you tell the Royal Commission that you had observed that the care provider was doing the bare minimum for Howie, and you felt you could better ensure that he was getting good care and act in his best interests. 

AUSTYN: Yes. 

MS EASTMAN: I'm going to ask you, when we go through the NCAT process, about some of the concerns you had around Howie's health. 

AUSTYN: Yes. 

MS EASTMAN: And his physical state. But let's just do the NCAT process first. Is that okay? 

AUSTYN: Yes. 

MS EASTMAN: So, you made the application. Now, were you still having contact with the care provider after you made the application? 

AUSTYN: Yes. 

MS EASTMAN: Did their attitude towards you change? 

AUSTYN: Very much so. 

MS EASTMAN: What happened in terms of the changes? 

AUSTYN: They became adversarial, so to speak. They   not stopped allowing me to visit but would give me a date to visit and then ring me and say, "Where are you" and the date would be different from the one I had noted down, as I kept a diary. I wasn't getting invited to the family functions, which I had previously been told I would be invited to. I would ring for a visit, and they would say, "No, sorry, he's out" but not tell me where he was. It was like I had no rights to know where he was, and they told me it was due to the Privacy Act. 

MS EASTMAN: Do you know anything about the Privacy Act? 

AUSTYN: No. 

MS EASTMAN: Do you know anything about the Privacy Act? 

MS ANDERSON: Not really. I know a little bit now but not much. 

MS EASTMAN: As the hearing for the review application approached, you decided that you needed to be really prepared for this, because am I right in understanding, like, going to courts and tribunals is not the sort of usual thing you were doing? 

AUSTYN: No, it's not my regular day out. 

MS EASTMAN: So, you wanted to be informed. And you had some neighbours who had had experience with the guardianship process. Is that right? Or something like that? 

AUSTYN: I didn't know they this experience with the guardianship process. I just had conversation with them about what I was doing that week. Mentioned that I was going to that, and they started having a conversation next to me. And it turns out that they both work in disability services. I had no idea what they did for a job. 

MS EASTMAN: And so that helped you think about how do you prepare. So, they were able to give you some information. 

AUSTYN: Yes. 

MS EASTMAN: So, you   but you thought, "I think I might need a lawyer now." So, did you ring NCAT and ask about whether you can bring a lawyer? 

AUSTYN: Yes, I already had by that stage asked if I could bring a solicitor or, you know, a lawyer because I was willing pretty much to do anything to get regular contact, and they told me no. 

MS EASTMAN: And so did you think you could have anyone there to   

AUSTYN: No. 

MS EASTMAN:   support you or speak for you at the hearing? 

AUSTYN: No. 

MS EASTMAN: So, did you sit down with your neighbour, who became a family advocate, I think   that that person came with you as a support person in the end? 

AUSTYN: Yes.

MS EASTMAN: And that person, the neighbours helped you prepare a submission to help you know when to speak at the hearing and what to expect at the hearing. 

AUSTYN: Yes. 

MS EASTMAN: Looking back on it, do you think you could have done that without the help of the neighbour and to support you to understand the process? 

AUSTYN: No, not really. 

MS EASTMAN: What do you think would have happened? 

AUSTYN: Because I didn't know. I didn't understand the process at all. 

MS EASTMAN: Okay. So, you remember going to the NCAT for hearing. 

AUSTYN: Yes. 

MS EASTMAN: And did you have to speak at that hearing? 

AUSTYN: Yes, I did. 

MS EASTMAN: And the end result was that NCAT made the orders appointing you as Howie's limited guardian for healthcare, medical services and certain restrictive practices decisions. 

AUSTYN: Yes. 

MS EASTMAN: Okay. 

AUSTYN: I think there is four different categories I'm guardian for. 

MS EASTMAN: Okay. And you became the guardian for a period of two years from April 2019. 

AUSTYN: Yes, initially. 

MS EASTMAN: Initially. And did you get a copy of the reasons for NCAT agreeing to appoint you as a guardian? 

AUSTYN: I did. 

MS EASTMAN: And they are the documents that you have given to us in the Hearing Bundle. 

AUSTYN: Yes. 

MS EASTMAN: So, since that time, you had to take on the responsibility of being a guardian. And I assume you hadn't done anything like this before, of having to be a guardian, perhaps other than just with your kids or something. 

AUSTYN: Not to this extent, no. 

MS EASTMAN: So, what did you have to do to learn about what did it mean to be a guardian and how were you going to support Howie and make the decisions for him? 

AUSTYN: I had no idea what I was doing, none. 

MS EASTMAN: Was there any information that you could get about   

AUSTYN: There are fact sheets on the NCAT website. 

MS EASTMAN: Are they helpful? 

AUSTYN: Limitedly speaking. They are probably helpful if you are a lawyer or a solicitor and you can interpret them. But not really to the lay person, no. 

MS EASTMAN: Okay. So, as a lay person, what did you do? 

AUSTYN: I just dived in, basically. I just tried to do what was best. At this stage, I thought the care provider was helping me, but they weren't necessarily helping me. I just followed their lead, so to speak, until I realised that it wasn't in Howie's best interest. It was more in the best interests of the care provider, the way it was all set up. If that makes sense. 

MS EASTMAN: In terms of just, as you said, just diving in and starting, one thing was wanting to make sure that you got to know what Howie did, how he lived, what he liked doing, and to develop some communication with him. Is that right? 

AUSTYN: Yes. 

MS EASTMAN: So, part of this is reconnecting with him. And did you do that by visiting him as much as you could? 

AUSTYN: I did, but I was still unable to visit his home at that stage   no, I was allowed for his birthday to visit his home, but I do community visits to start with. He doesn't like to be fed by people he doesn't like. He doesn't like new people. He has various little intricacies. I passed them all, apparently. He liked me. He knew who I was. We grew up together. He was fine with me. I   all the things he liked when we were kids and when he was a younger person, he still liked. I just slotted in fine with his life. 

MS EASTMAN: And since you started to see him more regularly and you are taking on this responsibility of being the guardian, you feel that you've discovered some confronting and disturbing realisations about his care at the time prior to being the guardian. 

AUSTYN: Yes.

MS EASTMAN: And one was that you noticed that every time you saw him he had the same pair of shoes on. 

AUSTYN: Yes. 

MS EASTMAN: What was   

AUSTYN: Very ugly shoes. 

MS EASTMAN: And they were tattered? 

AUSTYN: Yes. 

MS EASTMAN: Falling apart? 

AUSTYN: Yes. 

MS EASTMAN: And did you ask about what was going on with Howie's shoes? 

AUSTYN: Yes. 

MS EASTMAN: And you found out that he hadn't had a new pair of shoes for more than five years. 

AUSTYN: Yes. That is correct. 

MS EASTMAN: He had one pair of shoes. And one pair of slippers. 

AUSTYN: Yes. 

MS EASTMAN: Was anybody able to tell you why? 

AUSTYN: No. Not really. I was just alerted that he had   that was all he had. And that he could really do with some new shoes and new   he needs orthotics for the shoes. And they have to be specially fitted. You can't just take him anywhere and get them. They have to be done to his gait and his feet. 

MS EASTMAN: Have you been able to support him to get new shoes and   

AUSTYN: Yes.

MS EASTMAN:   put those arrangements in place. 

AUSTYN: He has lots of new shoes now. 

MS EASTMAN: Okay. The other thing you noticed about him was his really poor dental health. 

AUSTYN: Yes. 

MS EASTMAN: His teeth were black and brown, and you could smell his breath from what seemed like 20 metres away. 

AUSTYN: Yes. 

MS EASTMAN: And you knew from your experience that poor dental health is often an indicator of poor heart health and other risks, and you were really worried about his dental health. 

AUSTYN: Very concerned. They were foul. 

MS EASTMAN: The Tribunal decision talks about Howie's dental health. 

AUSTYN: Yes. 

MS EASTMAN: And the Tribunal in its decision said this: 

"...that he has six monthly dental check ups which usually require a general anaesthetic.” 

What does that tell you, that you have to go into hospital, have a general anaesthetic to have a dental check up. Did that cause you some concern? 

AUSTYN: No. Because he would need that to have that done. But it wasn't happening. 

MS EASTMAN: So, you don't think even the six monthly was happening? 

AUSTYN: No. He was having six monthly dental check ups, but he certainly was not getting those teeth scaled and cleaned. 

MS EASTMAN: As the guardian, you made arrangement for him to see a dentist. 

AUSTYN: A different dentist, yes. 

MS EASTMAN: A different one to the care provider. 

AUSTYN: Yes. 

MS EASTMAN: Were you able to find a dentist who specialised in special needs   I think special needs dentists? 

AUSTYN: Yes. 

MS EASTMAN: There's not many of them around in New South Wales. How did you find someone? 

AUSTYN: It's more about them being willing to take on a client who has special needs and be willing to coordinate with a hospital to have the person sedated to have their teeth cleaned. 

MS EASTMAN: And how is his dental health now? Has it improved? 

AUSTYN: Very much so.

MS EASTMAN: The other thing that you observed was about Howie in terms of his engagement with the community and doing activities that he enjoyed doing. And you thought that the daycare programs that he was enrolled in were not really serving him in terms of what he wanted to do, and you thought that he was just sort of going along to those programs because it was convenient to the care provider because somebody else was going to those programs. Is that right? 

AUSTYN: Yes, other participants were attending those, so they were just taking him to those. 

MS EASTMAN: And so did you have to go and find out where he was going, and did you have a chance to see what it was like for him at the day program? 

AUSTYN: Yes. I got   organised a visit to go and have a look at the day program. And   

MS EASTMAN: What did you see? 

AUSTYN: Okay. It's a big room. It's like a giant daycare centre for people with disability. He   Howie has this need to put things back where they belong, and the people had put activities all around the giant room for him to engage with, and he picked up every single activity piece of equipment and put it back in the corner where it actually belonged and obviously where it stayed, because that's what Howie does. If something is not where it's supposed to be, he puts it back where it's supposed to go. 

MS EASTMAN: I think you say he essentially cleaned the room for them, but he didn't use the equipment. 

AUSTYN: No. 

MS EASTMAN: And your concern was that Howie doesn't communicate by speaking, that he makes sounds and uses gestures. And he will be able to tell you whether he likes something or doesn't like something. And he's got his own form of communication. Is that right? 

AUSTYN: Yes. 

MS EASTMAN: So, if you get to know him, you can pretty much work out what he would like to do or not. 

AUSTYN: Yes. 

MS EASTMAN: And did you get the sense, sort of observing him, that he was quite isolated in that environment and that people were not responding to him or communicating with him in a way that he could be involved in the activities  

AUSTYN: No, they weren't. 

MS EASTMAN:   of the day program? 

AUSTYN: No, he just put everybody back where it belonged and then went and sat in a certain chair, and apparently that's where he sat permanently. 

MS EASTMAN: Okay. What have you done about Howie's opportunities to participate in the community and to engage in activities and doing things that he really likes doing? 

AUSTYN: Okay. So, COVID has made it a little bit more difficult, but I took him out of that day centre, because that's my decision, my choice. He wasn't enjoying himself there, so I wanted to find something else, but then COVID came. So, the care provider has actually started their own day centre and he's been attending that. I've looked into other day centres, but we haven't found the right fit for Howie yet because he has certain restrictive practices, and a lot of care providers aren't willing to impose those restrictions on their other participants. 

MS EASTMAN: Well, you have noticed that he likes fast things. He likes fast traffic, fast trains, as long as they are not too loud. But he also is very drawn to colourful lights and colour. So, you have given a lot of thought to what does Howie need if these are activities that he likes to be involved in. And have you tried to get, for example, a sensory light board for him so that he could work with coloured lights? What can you tell about that?

AUSTYN: Okay. I've been trying to organise a sensory light   it's a wall, it's actually a wall feature, it's quite large - for four years now. 

MS EASTMAN: How are you going with that? 

AUSTYN: Still going. 

MS EASTMAN: Still going. And what might be the block or the barrier to   

AUSTYN: The care provider likes to do risk assessments, and apparently it's a risk or a hazard to have said sensory light board. But in the last couple of weeks, we seem to have made some forward steps, let's say, and we might end up with one. 

MS EASTMAN: Four years is a long time. 

AUSTYN: Within the next six months or so. 

MS EASTMAN: So, you are still waiting. 

AUSTYN: Yes. I also might have to pay for it. 

MS EASTMAN: Howie is an NDIS participant, isn't he? 

AUSTYN: Yes, he is. 

MS EASTMAN: Are you his NDIS nominee? 

AUSTYN: Yes, I am. 

MS EASTMAN: Have you had experience with the NDIS before meeting   going   become Howie's guardian. 

AUSTYN: No. 

MS EASTMAN: How is the NDIS process going for you? 

AUSTYN: Not great. The NDIS is extremely complicated for a person with no disabilities. I would not like to be a person with a significant disability. 

MS EASTMAN: And have you found, to be able to do your job as Howie's guardian, that you need to be really active in supporting him with decisions around the NDIS, as well as the medical and other decisions? 

AUSTYN: Yes, definitely. I still don't understand it. I have engaged a very good support coordinator, and she is a super human and organises all of that for me and Howie. 

MS EASTMAN: So, originally, the support coordinator was a representative of the care provider. 

AUSTYN: Yes. 

MS EASTMAN: And you thought that might be what we would call a slight conflict of interest. 

AUSTYN: Yes. 

MS EASTMAN: And so with the family advocate, you have been able to find an independent support coordinator. 

AUSTYN: Yes. 

MS EASTMAN: And what difference has that actually made? 

AUSTYN: Massive. Massive difference. 

MS EASTMAN: Can you give me some examples of where it has been different and the outcomes? 

AUSTYN: Okay. Every person who was engaged in service providing for Howie was either an employee or a former employee of the care provider. I have wiped that slate completely clean. I refuse to have anyone who works for the care provider as a service provider now. 

MS EASTMAN: So you want separate people - 

AUSTYN: Completely separate. 

MS EASTMAN:   doing supports - 

AUSTYN: Yes. 

MS EASTMAN:   from where he lives. 

AUSTYN: Yes. Completely. 

MS EASTMAN: And you have achieved that? 

AUSTYN: Yes, I have. 

MS EASTMAN: How have you managed to do that? 

AUSTYN: The super woman did it, not me. The support coordinator. I told her that specifically, because once I worked out just how many people, service providers, were working previously for the care provider, I realised that that's not a good thing. And so I got her to separate that everywhere. Like, I was very vocal about that. 

MS EASTMAN: Has that helped you in terms of engaging with the care provider? Because you have said in your statement that the care provider can be, for you, very difficult to work with. Not necessarily respecting your role as the guardian and not telling you about things that are relevant to you being able to do your job as guardian. So, has the support coordinator helped with you that or is still a bit   

AUSTYN: She has helped me, but I don't   they are less than impressed, the care provider. They're not happy. 

MS EASTMAN: Are you thinking about whether there might be some alternative accommodation options for Howie? 

AUSTYN: I have many times, yes. 

MS EASTMAN: And what have you had to do to explore looking for somewhere else for him to live? 

AUSTYN: Because of his complex disabilities, it's difficult to get a placement for him elsewhere. So, I will keep looking and so will the support coordinator, but we   at the moment, he's transitioning to a different property, so I just would like to leave it for the time being so he's comfortable. I want what's best for him, not what's best for the care provider or me. So, I just need to let him get transitioned first and then try again. 

MS EASTMAN: This experience of taking on the role as guardian and seeing Howie's circumstances up really close have made you think about what changes might need to happen, and when we spoke to you in preparing for the hearing, we asked you whether you wanted to say to the Royal Commissioners what your suggestions might be for change or fixing up some of these problems. Can I ask you about those things? 

AUSTYN: Okay. 

MS EASTMAN: What would you like to start with? If you have got your statement, I'm up to about paragraph 49 on page 10, and you've got a few headings there, and I'm keen for you to tell the Royal Commissioners what you think you would like to see changed. 

AUSTYN: Okay. I think that people who are making decisions for another person need to centre the decisions back to that person. They shouldn't be made easy for other people like service providers; they should focus on what the person needs and wants in their life. It needs to be dumbed down. 

MS EASTMAN: So, you mean by that it's got to be person centred. 

AUSTYN: Yes. 

MS EASTMAN: It's got to start not with what suits   

AUSTYN: The care providers. 

MS EASTMAN:   the care provider but start - 

AUSTYN: With the actual person, yes. 

MS EASTMAN: And would that   what would be the difference for Howie in his life if that approach was taken? 

AUSTYN: It would be about him and not how much money the care provider can save by just sending him to the cheapest option. 

MS EASTMAN: Yes. The other point you've raised is about attitudes and the treatment of people with disability. And you've got a very strong view that people with disability should be treated humanely and respectfully. And you say when you reflect on Howie's life, you imagine a lifetime of frustration he must have felt being treated like a nothing. 

AUSTYN: Yes. Just existing. Not living. 

MS EASTMAN: Do you feel that his sort of life and the day to day decisions about him have really been about survival rather than a quality of life? 

AUSTYN: Definitely. They've been about the care provider, not about the participant. 

MS EASTMAN: You give an example of a restraint. And one of the functions you have got as a guardian is in relation to authorising restrictive practices. 

AUSTYN: Yes. 

MS EASTMAN: When you took on being the guardian, did you know what restrictive practices were? 

AUSTYN: Not really. 

MS EASTMAN: Have you had to learn that? 

AUSTYN: Yes, it's not that difficult. That's probably the easiest part. It's a restriction basically to keep that person safe. 

MS EASTMAN: Yes. And so that might be about Howie how travels in the van. 

AUSTYN: Yes. 

MS EASTMAN: And so you have set this out in the statement at paragraph 54. What can you tell us about what you've seen in terms of the restraints that have been used, even for Howie to travel in the van? 

AUSTYN: Okay. The restraint that Howie had when I first started seeing him was very restrictive. And it was awful. No human should have to wear that kind of   and I fought and fought with them over it. And eventually I got my way. So, now we have him in the van in his wheelchair, which obviously he's harnessed into by a seat belt. The harness before that was similar to what you would see if you were on the flight of Con Air. 

MS EASTMAN: Right. So, pretty locked in? 

AUSTYN: And not pleasant. And if I refused to allow him to wear that, they   the care provider and the day centre would not take him on outings or to the day centre, for instance, because I would not allow him to wear that. 

MS EASTMAN: And that sort of made you really think about is this about managing what Howie needs or whether this is about managing the risk of injury, either to the care provider's staff or to Howie. So, you sort of see the care provider looking at everything through this risk perspective or that lens? 

AUSTYN: It's about liability, yes. It's not about Howie's wellbeing. Because there were other options, but no one was willing to go with the other options. 

MS EASTMAN: The other suggestion you've made is that you have call the them community auditors and that the auditor should be able to go into group homes and do checks on people with disability and their living conditions and you say: 

"I think this could avoid situations where people are living bare minimum standards and to prevent their neglect. I think these auditors need to be independent of service providers, attend the home without notice to service providers, and for them to do a review of living conditions and how people are living at a service provider.” 

So, you have made that suggestion. Can I ask you this: Have you heard of community visitors at all? 

AUSTYN: Yes. 

MS EASTMAN: And when you are talking about community auditors here, are you talking about community visits or something different? 

AUSTYN: Similar, yes. 

MS EASTMAN: And what do you know about whether Howie's ever had a community visitor? Do you know anything about that? 

AUSTYN: He has, as far as I know, had community visitors attend the care home. They announce when they are coming. 

MS EASTMAN: So, you would like them to be not announcing when they are coming but just to come in and   

AUSTYN: It doesn't make any sense. They also   the record keeping at the care provider that Howie is with is abysmal, and you can't go back in years to look at incidents, or there's no good record keeping. So, if there is an incident, they have to ask what date the incident occurred. It's a waste of time, being a community visitor, as far as I'm concerned, because they are not doing what they should be doing. 

MS EASTMAN: You would like something a bit stronger. 

AUSTYN: Yes. And unannounced. 

MS EASTMAN: The last point you have raised is the NDIA, and I think we have talked about that, and you say that it needs to be much more accessible to the everyday person and easier to navigate. 

AUSTYN: Yes.

MS EASTMAN: And you have got a really good support coordinator now, but I think you raised the question of what happens if you don't have somebody like that. 

AUSTYN: Yes. If you don't   I don't know what would happen to you. Because I'm   this woman is super human. She knows all the rules and regulations. I don't know what I would do without her. But not everyone would have that option. 

MS EASTMAN: So, Austyn, the last question I want to ask you, and the Commissioners might have some questions, is what do you see as the future for Howie? 

AUSTYN: I hope to move him somewhere more pleasant. Not environmentally speaking, but people speaking. I want him to just have the best life ever, and he has the ability, funding wise, to have that best life ever. But it's just not happening. It's all about profit over people, instead of people over profit. And, yes, I just want him to have a fantastic life. Because of his disabilities, he might not be here as long as the rest of us, and I just want him to enjoy what time he gets. That's all. 

MS EASTMAN: Austyn, thank you very much for sharing your experiences and Howie's story. And, as I said, the Commissioners might have some questions for you. Thank you, Chair. 

CHAIR: Yes, Austyn, thank you very much. If it's okay with you, I will ask my colleagues if they have any questions for you, and I will start with Commissioner Ryan. 

COMMISSIONER RYAN: Thank you for your evidence, Austyn, but I don't have any questions for you because it's a very clear story. So, thank you very much. Thank you, Mr Chair. 

CHAIR: Thank you very much. Commissioner McEwin? 

COMMISSIONER McEWIN: Thank you. I have one question. It sounds like from when you were   and thank you for your evidence, Austyn. It sounds like, from your evidence, that the day program was providing no benefit to Howie. Is that correct? 

AUSTYN: That is correct. No benefit to him at all. Just getting him out of his actual home for the day. 

COMMISSIONER McEWIN: And your expectation was that, with the NDIS plan, he should be able to go out into the community as he chooses to and do   be in community. 

AUSTYN: And engaged with activities that he enjoys, yes. 

COMMISSIONER McEWIN: Thank you. 

AUSTYN: You're welcome. 

CHAIR: Austyn, thank you very much again for the evidence you have given, including the statement you have provided, and for telling us about your experiences and also Howie's. We thank you very much for your contribution to the work of the Royal Commission. We appreciate your coming here and telling us about your experiences and Howie's. Thank you very much. 

MS EASTMAN: Thank you, Austyn. And I will just ask the Chair to receive into evidence your statement and some accompanying documents. So, Chair, if you could mark those documents Exhibit 30.114 to 30.118, and that includes the hearing report, together with some NCAT reasons. And so those documents are available to the Commission as well. 

CHAIR: Yes. Thank you very much. The statement that's been provided by Austyn will become Exhibit 30.114, and the supporting documents will be admitted into evidence with the markings 30.115 to 30.118. Thank you. 

<EXHIBIT 30.114 STATEMENT OF AUSTYN DATED 8/11/22

<EXHIBITS 30.115 TO 30.118 SUPPORTING DOCUMENTS TO STATEMENT OF AUSTYN

<THE WITNESS WITHDREW

MS EASTMAN: Thank you. Now, could we have perhaps a five minute adjournment just to reconstitute the hearing room, and you will hear then from the Council For Intellectual Disability. Thank you, Chair. 

CHAIR: Yes, thank you. We will take a short adjournment, and we will resume when the hearing room has been reconfigured. 

<ADJOURNED 12:21 PM 

<RESUMED 12:31 PM

<JUSTINE O'NEILL, CALLED

<RICKY KREMER, CALLED

<ALEXANDER ELLIOTT, CALLED

CHAIR: Yes, Ms Eastman.

<EXAMINATION BY MS EASTMAN SC 

MS EASTMAN: I'm very pleased to welcome pack to the Royal Commission the representatives from Council for Intellectual Disability, CID, and they have all taken their affirmations already because I want to use as much time as possible for the discussion we are going to have today. So, Chair, what I propose to do, unless you want to make some opening remarks, just to introduce everybody to you, and then our panel have prepared a conversation that they are going to have, and they are giving me a break from asking lots of questions for a while. So, that's what we are proposing to do this morning. Or now afternoon. 

CHAIR: Okay. Well, first if I can just thank, if I may use the first name, Justine, Ricky and Alexander, for coming to the Royal Commission. Can I say at the outset that the Council has been of immense assistance to the Royal Commission, not only in coming to hearings and we have heard from people from the Council, a number of people, but also in a number of other ways, and we are really very, very grateful for the work that the Council has done. It's enriched our work and given us all sorts of information and guidance that has helped us enormously. So, thank you for that. Thank you for coming today to give evidence and, Justine, thank you for the statement you have provided yet again for the Royal Commission. 

MS EASTMAN: So, can I introduce you. Alexander Elliott, Alexander, can I start with you? So Alexander works as a Project Worker at CID. Alexander has worked on projects related to supported decision making, as well as the communications team where he develops and shares stories of people with lived experience. In his work, Alexander uses his expert knowledge from his own experience as a person with disability. He mentor his peers, and he uses his skills to make the resources and training that educate others in up inclusive practices. So, Alexander welcome to the Royal Commission. 

Ricky, can I turn to you next. So, can I introduce Ricky Kremer. Ricky works as a Project Officer at CID, and he is working to develop confidence in people with intellectual disability to make their own decisions by knowing their rights and having conversations with supporters about making decisions. Ricky has spoken at conferences and webinars about co design, inclusion, and supported decision making. He has also appeared in a video about vaccination and worked as a Peer Advisor for Ability Links with St Vincent de Paul Society. Ricky has co written and acted in Short Changed, with the Waverley Community Living Program for the Focus on Ability Film Festival and with Bus Stop Films. 

I'm just going to pause there, Ricky. Commissioners, you will hear from Bus Stop Films at the hearing in December but with Bus Stop Films, Ricky interviewed parents for the documentary, What Was It Like? And this film was shown at the 2020 Flickerfest and various other film festivals. Ricky also took part in an internship with Fremantle Media and worked on Australia's Got Talent. I know I would like to ask you more questions about that, Ricky, but that's not our topic for today, and also studied at the Uni to Beyond Program at Sydney University. And, Commissioners, you are also going to hear about Uni2Beyond at our next hearing in Brisbane in December. So, a big welcome Ricky. Thank you for joining us. 

And, Justine, thank you for returning to the Royal Commission. It's important that you are here because we started our hearing here in this hearing room in 2020 before COVID, where we had the privilege and opportunity to hear you in conversation with Jack Kelly. And we were talking about supported decision making back then. So, thank you for coming back. We have reminded the Commissioners about your statement from the previous hearing and included it in the bundle of material. 

So, since then, you have continued to be the CEO of CID, and you said that's all we need to introduce you, but I do note that in your earlier statement, you have set out a lot of background and detail about your work and experience. But can I mention that you have worked for the New South Wales Office of Public Guardian as a Guardian, a Community Educator, and assistant Public Guardian for Advocacy and Policy, and during the last eight months that you worked in that office, you acted as the Public Guardian for New South Wales. So, you have a lot of experience in both substitute decision making and also supported decision making. 

Now, when we talked about this, the three of you together have done an enormous favour to me, and you have decided that you are going to run the conversation. You are going to talk about your work on supported decision making. And at this point I'm handing over to you, and I think, Alexander, you are going to start. So, thank you. 

MR ELLIOTT: Council for Intellectual Disability, CID, is a systemic voice organisation in New South Wales. We raise issues that affect people with intellectual disability. We are led by people with intellectual disability, who form more than half our board. In our evidence, we will use the term "people with lived experience." What we mean by this is people with lived experience of intellectual disability or people with the lived experience of cognitive disability. 

MR KREMER: CID recently had a conference called My Life, my Choices. That's what supported decision making is about. Our lives, our choices. 

MS O'NEILL: And we think reform of guardianship and administration is necessary, but at the same time, skills in supported decision making need to grow and be available in the community. And there needs to be leadership to make this growth happen and the leadership needs to involve people with cognitive disability. Over to you, Ricky. 

MR KREMER: People need support, but also people with lived experience need to be leaders in supported decision making.  That means being a leader in talking about it, deciding what is good support, training. An example of leadership by people with lived experience is the peer mentor group I led. We talk about things like moving out, getting a pet, practising making decisions, what makes it easier and how it can be hard to speak up. 

Another example is the workshops I run for people with disability about the supported decision making. I have started running these workshops with a work colleague with lived experience. We have gone from having people with   having   from having people facilitate workshops with us to us becoming the facilitators. I have gained the skills and confidence to do that and take a leading role. In future, ideally it would be great to keep doing what I'm doing and develop more - lead more projects and lead more other things. 

People with lived experience of intellectual disability can support each other too. It is not just being one part of the role. People ask you for advice and thoughts, and it goes both ways. 

MS O'NEILL: Ricky, what do you talk about in the workshops? 

MR KREMER: Well, we talk about decisions. We talk about what makes things easy and hard. We talk about things, barriers that could be involved with your daily lives. Yeah. 

MS O'NEILL: And the aim is, as you have said, is to get people thinking and talking about decision making and for people to feel more confident. Yeah. And that so the topics are similar to the peer group topics. And I'm going to draw your attention back to here, if you wanted to cover those as well. The one below. 

MR KREMER: Sure. Yes. So, we ask people in the workshop for their opinions on different topics, what makes things hard and easy. We ask them a question to prepare, for example, think of a decision you made over the last week. We also ask them what they thought of the session, good and bad. People come to eight weekly sessions across two months. My idea is to make the workshops roll on after the project is finished.
 
MS O'NEILL: So you have just talked about how people with lived experience, which is a term I know you prefer, can and must be leaders in their own lives. We also need governments to take responsibility to drive forward good practice and resource decision making. And I don't mean for governments to decide or say what types of supported decision making are allowed, but to help communities work out how to do it well and how to safeguard people's rights to make their own decisions. 

So, for example, the NDIS and the NDIA Quality and Safeguards Commission have roles in promoting and upholding best practice in supported decision making through appropriately resourced plans, practice standards that uphold the rights of people with disability, ongoing professional development on evidence based practice, ongoing accountability through quality standards and ongoing co production or we call it co design with people with lived experience of disability.

The NDIS has an important role here, but we should be aiming for best practice by any provider, government, non government, any provider of service wherever, private. That could be in giving support for decision making or it could be in taking responsibility for reasonable adjustment, which we will talk about later. And it could also be in understanding the different ways communities do decision making. For example, with collective or group or individual focus. 

There will not be just one model of supported decision making or even three models, but they will have a lot of ideas in common. So, I know Colleen   Dr Pearce was just talking about needs a model to move forward. What we might suggest is what we need is the agreed principles and that is itself, I suppose, a type of model. Agreed ideas about the general principles of good, supported decision making, which are really around people's right to decide and the right to support, and then people need to go out and live it and work out what's best for them. Ricky, there are a lot of assumptions about getting support. Yes. 

MR KREMER: Yes, so when we talk about supported decision making, people talk about how we all get support. For example, going to see an accountant. But actually a lot of people with disability don't get support to make decisions. CID has been working in supported decision making for a few years. I mentioned a conference we ran in September this year. We have also been working with a group with people in group homes and now we are running a project called My Rights  Matter. 

The project will help people learn about the rights of people with disability, make new decisions in their life, engage with supports to achieve what they want, become champions of support, learn how to offer support as workers and run many projects through micro grants. In the rights   My Rights Matter project, we are giving information and training to people with disability and their supporters in the community. We are going to offer grants and champion leadership supports to organisations wanting to lead in cultural change, and we are leading the systemic advocacy of law change. We think we will make a bigger impact if we do law reform and practice development at the same time. 

MS O'NEILL: Alexander, you work on the My Rights Matter project as well. Do you want to tell us about your work? 

MR ELLIOTT: At work, we all bring something to the table. I have achieved much more at CID than I would have had I not learnt to speak out. I work in the My Rights Matter team and in communications writing, proof reading and posting articles about our messages. During my work in CID's communications team I presented a series of Our Visibility podcasts. We interviewed various peoples in the creative field who have a disability. 

We talked to award winning actors, musicians and authors. What we have seen repeatedly is that encouraging decision making from an early age has only beneficial results later on. In our interview with the children's author Naomi Lake, we saw how decision making and encouragement assisted her in not just becoming an award winning author, but going even further into becoming a Health Ambassador for Down syndrome Australia. 

I like working on a real human rights issue, seeing and hearing about change. Decision making doesn't sound like anything major, but it is. One unsupported decision and your entire world is challenged. Taking the information and stories to others in different places means we can make the change happen. Some leadership advice I would give to others is that you are the boss of your own life. You can be taught to lead and take part in a way that is easy and welcoming to you. You come first. 

MS O'NEILL: A question for both of you   and, Ricky, you might like to go first. Why is it important for us to believe that everyone has decision making capability? 

MR KREMER: So, if you don't believe that everyone has the right to make their own decisions, then it would mean lack of freedom, your lack of choice and being able to have your own mind and be in part of how you want to be involved in the community. 

MR ELLIOTT: Even if it is limited, we still have the intrinsic human right to make a decision and for that decision for be respected. 

MS O'NEILL: We have heard a lot at the hearing about capacity. CID thinks we should have a better way of things about decision making capability. We should move away from the idea of   traditional idea of capacity assessment of a person to understanding that decision making capability is made up of a person, supports, and adjustments. And we are interested in some ideas from Canada about how you can use reasonable adjustment, or they call it reasonable accommodation. 

So, that is in line with the social model of disability, if we know that barriers to inclusion and decision making and other things are created by community and laws, not by disability, then we need to actually do something about those barriers. So, to really shift supported   to supported decision making we need to see adjustments for people with cognitive disability. A shift is needed in law reform, as well as appropriate policy, community education and resourcing. 

And supported decision making is not just about an alternative to guardianship. Supporting decision making capability means reasonable adjustment in lots of areas of life, as Alexander said, starting from a young age and across the lifespan. Ricky, you can say what we mean by adjustments? What are adjustments and why are they important for decision making? 

MR KREMER: So, adjustments means making a change to get a fair result. So, they help to meet the needs of a person. An individual adjustment may be using a communication device to say a choice. A bigger system adjustment may be changing a policy to say people have the right to make their own legal decisions with support. Adjustments are important because change in the world around the person helps them make more of their own decisions. People feel good when they lead their own lives. 

MR ELLIOTT: Ricky, what kind of adjustment and support do you get from your team at work? 

MR KREMER: People in my team do things like take notes, make Easy Read documents like the agenda, reflection sessions with me afterwards, and we are doing things like all staff do the same online training in Easy Read. Alexander, why is Easy Read so important as an adjustment in decision making? 

MR ELLIOTT: We need clear understanding of what things mean. Easy Read can really assist. When we understand, we can make an informed decision. 

MR KREMER: NDIS service provider contracts should be in Easy Read or other accessible formats, so people have a better chance of being able to sign. 

MS O'NEILL: And CID has worked with the Australian Law Reform Commission decision making principles to create a framework that has language that works better for us, with words like   

MR ELLIOTT: Believe, decide, act, enable. 

MS O'NEILL: I have already given Ricky and Alexander a warning here that I'm going to talk for a little bit. Sorry about that. It's going to be me for a couple of minutes. But I'm going to say a few things about a legal situation. 

And so I would like to start with a maybe rare positive example about the New South Wales Ageing and Disability Commission, which can receive and respond to allegations of abuse, neglect, and exploitation in family and community settings in New South Wales. The Commission asked for the person's consent to investigate an allegation that someone is harming them. As part of this process they find out the person's will and preference, or they attempt to find out the person's will and preference, and later they report on whether the person's will and preferences were respected or upheld. 

They are not required by law to do this. They just do it out of good practice. They have made a choice to do it. Guardians can't do the same, because the law requires them to follow different principles. CID was involved in the development of the Guardianship Act in the early 80s, and in 1987, it was a big step forward, but it isn't any more. In 2018, the New South Wales Law Reform Commission recommended a new law to replace the Guardianship Act, and new laws around financial administration. 

I mentioned this in February 2020, and I will mention it again now, because nothing has changed. The New South Wales Government hasn't responded to recommendations about amending the Act. They have not promoted alternatives to guardianship, and the New South Wales Government has not allowed guardians in New South Wales to make decisions based on people's will and preferences. 

MS EASTMAN: Can you slow down a bit? 

MS O'NEILL: Sorry. This is a problem for people who might end up losing their decision making rights just because of a lack of alternative options or good ideas to support families who are unsure of how to help. It's a problem for people who might have guardians now but might not need them with a bit more support. And it's a problem for people who might always need representative or what some people call fully supported decision making because they rely on other people to observe and interpret their views. It's really important that we develop skill and understanding in how to make decisions based as far as possible on a person's will and preferences, or their likes and dislikes, if that's all that we know. 

To give another example, the New South Wales Capacity Toolkit, which is produced by the New South Wales Department of Communities and Justice in about 2008   I could be wrong, but around about then   is still about the only guidance from government about decision making in New South Wales. It has a lot of useful content. It talks about decision making being decision specific and things like that, and it now attempts to introduce the idea of supported decision making, but it is very limited. 

The Department's Disability Inclusion Action Plan 2020 to 2024 says the Department intends to review the Capacity Toolkit and develop supported decision making resources so they can be implemented across sectors. But no action has been taken and in fact, the toolkit needs the complete rethink rather than just an update. It's an example of where lack of leadership and action perpetuates a more restrictive and subjective system of capacity assessment and fails to offer substantial alternatives to guardianship. 

It also means that we are very slow to develop better skills in understanding and responding to risk. Our current system allows organisations, in some cases, to make or require guardianship or financial management applications due to concerns really that are about risk to the organisation, rather than issues for the person. A focus on capacity assessment also slows down the development of skills in fostering self determination across those same sectors that the Disability Inclusion Action Plan talks about. 

To nurture someone's self determination across their lifespan, you need to develop skills, provide opportunities to practice, and build and use supports. Alexander, we need to see people supported to make decisions in all parts of their life. Do you want to say something about your thoughts on young people and how this can be supported in education? 

MR ELLIOTT: In education, the onus is on the staff and not the student. Think about opportunities. Think about where opportunities arise where the person with the disability could be supported to make a decision and trust them to have a say in how they want to be treated or seen by fellow students. For example, even deciding where a tutor group might spend the last day of term. Good support in school builds confidence for decision making in future. 

One of my teachers who did provide good support was when they knew me so well that they knew I stood a much better chance of success if she sat in on my speaking exam in the HSC as a reasonable adjustment. They fought the Board of Studies to extreme levels to make this happen, resulting in a higher mark. This demonstrates that supports must be considered in the classroom and across all levels of education. When a person is old enough to make their own decisions, not being consulted can have dire consequences. This is especially important in transitioning to post school options. 

The bottom line is that school councillors, tutor groups, teachers, sports teams, support from other people who know you influence how you experience life. They can help you develop the skills, give you the opportunities to practice leading your own life, and help you build and use the supports and adjustments you need to make more of your own decisions. Ricky, you have also had experiences with inclusive education. 

MR KREMER: Yes, I was part of Uni2Beyond, which gives people the right to education. You can learn subjects and explore university life. I had choice of subjects, whether I wanted to join the lunch events and societies. There was definitely a lot more choice and participation in mainstream classes, which had already been inclusive, which is great. 

MS O'NEILL: Ricky, getting back to the training that you do, what sorts of things have come up for people in training about decision making? 

MR KREMER: I think people   I think people feel they voice their own opinion about what choices they want to make in their lives, as well as really thinking about the process of decision making. When we bring up a topic in peer mentor group, like friendships, sometimes the effects being bullied come back to people. 

MS O'NEILL: Something we found out is how emotional talking about decision making can be. We found that thinking and talking about decision making can bring up painful memories about being left out or decisions that were made that maybe weren't so great. And we have needed to have a think about a trauma informed approach to these conversations. 

MR KREMER: Mmm. Something we have done is create conversation cards. They are about starting conversations when you don't know how to. For example, an ice breaker or mystery cards. They talk about and help deal with feelings and emotions. That is a big part of decision making. The cards can help when people are worried about hurting feelings or when they can't find the words. For example, a family voice is important but so is respect for the person as a decision maker. 

A way for service providers to deal with this is to have a discussion at the beginning and maybe acknowledge that not everyone is going to be happy with a decision or outcome. A person's privacy should be respected. The person should decide what the family should know. From the support worker's point of view, their main job is to support the person to do what they want to do. It helps when the support worker's relationship with the parents is really good. 

MS O'NEILL: Final thoughts? 

MR ELLIOTT: Support people's ability. Believe their decision making capability can be grown and developed over time. For example, letting them make small decisions and building it up. Letting them do small bits of work and be a part of decisions around the house. Helping them feel equal. 

MR KREMER: Decision making is a human right. Human rights means that everyone in the world has value. They are rules about what a person can do or have or not. It means to have control over my own decisions, with or without support and adjustments. We need investment within people with disability, less guardianship and more supports. With the right support, there would be much less need for guardianship. People will gain confidence to do it themselves. And if they can't do it themselves, they should still get support with decisions. 

MS EASTMAN: Well, Alexander, Ricky, Justine, thank you very much for talking to us about supported decision making today, but also reminding us about linking that to human rights. As you've said, Ricky, human rights and the right to make decisions are very important in people's lives. I'm not going to ask you any questions, but the Commissioners might have some questions. Would it be okay if the Commissioners asked you some questions? 

MR KREMER: Sure. 

MS EASTMAN: Okay. And you tell them if you don't want to answer them. Chair. 

CHAIR: Okay. I will ask first Commissioner McEwin, who's in the room with you, whether he has any questions. 

COMMISSIONER McEWIN: Thank you, Chair. Thank you to the three of you. I'm very grateful for your information. It's very important. I have a question, perhaps, I will ask Ricky and Alexander, if that's okay. We have heard in this Royal Commission that some people in the community believe that people with disability, including people with intellectual disability, should not be allowed to make their own decisions because they might make a bad decision. How does that make you feel when you hear that? 

MR KREMER: You feel like   just like everyone else, people should learn. Hey, should be able to learn from mistakes. So, if they do make a bad decision, yeah, they will be able to learn from those mistakes. But as long as they are getting the right supports, then it should be fine. 

COMMISSIONER McEWIN: Alexander, do you want to respond? 

MR ELLIOTT: Yes. So as Ricky said, you make a mistake, but that's not an excuse to immediately say, "Oh, well, we will never do that again." With the right supports, we can learn and push towards   and push towards something good. You wouldn't   we are not pushing for, like, immediately throwing them the keys to the car and telling them to drive. We are talking about doing enough to allow them to have the right to a dignified, normal life. 

COMMISSIONER McEWIN: Thank you. Justine, did you want to add anything from a systemic point of view?

MS O'NEILL: I think they have said it all. 

COMMISSIONER McEWIN: Thank you, both. 

CHAIR: I will ask Commissioner Ryan if he has any questions. 

COMMISSIONER RYAN: Thanks, Mr Chair but, look, I have thoroughly enjoyed the presentation both of you have made and I have learnt a lot from it. And I actually don't have a lot of other things to ask you because you were so clear. And may I compliment all of you for saying things which are sometimes very difficult for us to express. You   both of you seem to have expressed things even better that I've seen them in textbooks or research, and I really want to compliment you because I suspect I will be using your words in the future instead of those. So, thank you. 

MS O'NEILL: Can I say you thank you for the compliment but if I could also comment, the team has worked really hard on language, because this area is quite complicated, and the concepts are hard. And so Alexander and Ricky are obviously just all around fantastic people but also have worked very hard with the team, and it's important that people are given space and opportunity to do that hard work and grapple with difficult ideas, because there are so many benefits, as you have commented on, from doing that hard work. 

COMMISSIONER RYAN: Thank you. Thank you, Mr Chair. 

CHAIR: What Justine has just said is absolutely right. These are not easy concepts, and you have obviously worked extremely hard in order to put together a presentation that makes the position from your point of view very clear and explains the concepts in ways that are extremely helpful and, if I might say so, extremely insightful. So, in short, you've done a terrific job. So, thank you very much in everything you have done to prepare for today and the way you have presented the material. It's of enormous importance for us. 

Thank you, all three of you, but thank you in particular for Ricky and Alexander for the work that you have done, and I suspect there is probably a bit of a team behind you, so if you don't mind, if you can pass on our thanks to the team behind you who might have contributed to your presentation today. So, thank you again. 

MS EASTMAN: Thank you, Chair. So, there's two documents that we would like to tender into evidence. It's the CID position statement on support for decision making and the CID position statement on guardianship law reform. If you could take those two documents into evidence and mark them 30.119 and 30.120 and Ms O'Neill's statement that I referred to earlier is Exhibit 4.2 from Public hearing 4. So, just if anyone wants to read Ms O'Neill's statement, it's available on the Royal Commission's website. But other than that   

CHAIR: Yes, the two position statements will be admitted into evidence with the markings that Ms Eastman has indicated. And as Ms Eastman has also indicated, there is no need for Ms O'Neill's statement to be admitted. It's already in evidence before Commission.

<EXHIBIT 30.119 CID POSITION STATEMENT ON SUPPORT FOR DECISION MAKING

<EXHIBIT 30.120 CID POSITION STATEMENT ON GUARDIANSHIP LAW REFORM

MS EASTMAN: Our thanks again to Alexander, to Ricky, and Justine for teaching us today more about supported decision making. Thank you very much. 

<THE WITNESSES WITHDREW

MS EASTMAN: Chair, could we adjourn now until 2.15. 

CHAIR: Yes. We can do that. So, we shall resume at 2.15 Sydney time. So, thanks again. 

<ADJOURNED 1:09 PM 

<RESUMED 2:17 PM 

CHAIR: Yes, Ms Eastman.

MS EASTMAN: Thank you, Chair. We now turn our attention to New South Wales, to the New South Wales Trustee and Guardian. And we will start with Ms Simpson, but before I introduce Ms Simpson, Commissioners, you will have in the materials for Bundle C4. It's described as NSW Government material. There is a statement prepared by Ms Caroline Cuddihy, the CEO of New South Wales Trustee and Guardian, dated 14 November 2022. 

Ms Cuddihy is not giving evidence at the hearing this afternoon, but, Commissioners, you will see in her statement, if you've got a copy there, that she has provided an overview of the role of the New South Wales Trustee, setting out the relevant legislative source of powers. She sets out some history of the New South Wales Trustee in New South Wales and how that's changed over time. And, Commissioners, if you have the statement, you will see at paragraph 18 she sets out the capacity   sorry, she sets out when the New South Wales Trustee may be appointed to act in a range of matters. 

And you will see there that that includes the preparation of wills, powers of attorney, enduring guardianship appointments and to carry out related professional services. And this may be a matter that I can raise with Ms Simpson. Sorry, Chair. 

CHAIR: Yes, go ahead. 

MS EASTMAN: So some of the questions that I want to ask the witnesses this afternoon will follow the approach that I've taken with other jurisdictions. But Ms Cuddihy in her statement sets out the numbers of people in New South Wales who have a financial manager appointed. And you will see at paragraph 36 and following some of the numbers. So, I think, Ms Simpson, you have got a copy of Ms Cuddihy's statement and if there is any issues arising on some of those numbers, that you can refer to Ms Cuddihy's statement; is that right? 

MS SIMPSON: Yes.

MS EASTMAN: And to the extent that you are able to answer any questions, particularly on the statistics, those are matters that I can deal with. Alright. 

MS SIMPSON: Yes. 

MS EASTMAN: Alright. So, just with that introduction, our first witness is Deborah Helen Simpson. And, Ms Simpson, you are taking an affirmation? 

MS SIMPSON: I am. 

CHAIR: Ms Simpson, thank you very much for coming to the Royal Commission to give evidence. We appreciate the assistance you are about to give and have given. If you will be good enough to follow the instructions of the Associate who is to your right, she will administer the affirmation to you. Thank you. 

ASSOCIATE: I will read you the affirmation. At the end, please say yes or I do. Do you solemnly and sincerely declare and affirm that the evidence which you shall give will be the truth, the whole truth and nothing but the truth? 

MS SIMPSON: I do.

<DEBORAH HELEN SIMPSON, AFFIRMED

CHAIR: Thank you, Ms Simpson. I will now ask Ms Eastman to ask you some questions. 

<EXAMINATION BY MS EASTMAN SC

MS EASTMAN: You are Deborah Helen Simpson? 

MS SIMPSON: I am. 

MS EASTMAN: You are the Director, Estate Management for New South Wales Trustee. And you are responsible for leading and overseeing the delivery of services to people who are subject to financial management. Is that right? 

MS SIMPSON: That's correct. 

MS EASTMAN: You've prepared a statement dated 14 November this year? 

MS SIMPSON: I have. 

MS EASTMAN: And you have got a copy of the statement with you and some of the accompanying documents.

MS SIMPSON: Yes. 

MS EASTMAN: Are there any changes that you wish to make to any part of the statement? 

MS SIMPSON: No, there isn't.

MS EASTMAN: And are the contents otherwise true and correct? 

MS SIMPSON: They are.

MS EASTMAN: Thank you. You haven't been present in the hearing room during the course of the hearing this week. 

MS SIMPSON: No, I have not. 

MS EASTMAN: But have you been able to follow any of the evidence? 

MS SIMPSON: Yes, I have been. 

MS EASTMAN: Have you been watching the whole of the proceeding or just parts of it? 

MS SIMPSON: No, I have watched the whole proceeding. 

MS EASTMAN: So, you would have heard me over the past few days ask some questions of your counterparts in the other jurisdictions, in particulars from Queensland and then yesterday from Victoria. 

MS SIMPSON: Yes. 

MS EASTMAN: So, I want to start with some of the questions related to the statutory functions of the New South Wales Trustee. In New South Wales, there is the Trustee   New South Wales Trustee and Guardian Act 2009. That right? 

MS SIMPSON: Yes, it is. 

MS EASTMAN: Then there is separate legislation which is the Guardianship Act of 1987. 

MS SIMPSON: That's correct. 

MS EASTMAN: Some jurisdictions we have examined far have both the Trustee's role and the Guardian's role in one suite   one piece of legislation, but in New South Wales they are separate; is that right? 

MS SIMPSON: That's right. 

MS EASTMAN: So, to the extent we look to the New South Wales's Trustees powers, functions and responsibilities, we find them in the New South Wales Trustee and Guardian Act of 2009? 

MS SIMPSON: Yes.

MS EASTMAN: Now, your role, as I said, is to lead and oversee the delivery of services. What does that actually mean in day to day practice? What do you do? 

MS SIMPSON: So in day to day practice, we have a number of teams who support clients who are under a financial management order. So, that's from the time we receive the order, the support that we provide during the time of the order and then, of course, following through to finalisation either due to the order being revoked or the person being deceased. And we also have the private management function. So, we have statutory oversight of private financial managers, and we have recently established a Customer Independence and Support team. 

MS EASTMAN: I want to ask you some questions about that in a moment. In terms of the language used for the New South Wales Trustee in relation to people for whom a financial manager is appointed, are they described as ‘managed persons’? 

MS SIMPSON: Within our organisation, they are described as ‘customers’.

MS EASTMAN: Is ‘managed persons’, though, an expression used in the legislation? 

MS SIMPSON: Yes. 

MS EASTMAN: So, you describe them as ‘customers’? 

MS SIMPSON: We do. 

MS EASTMAN: Is there any reason for that language, ‘managed person’ versus ‘customers’? 

MS SIMPSON: Prior to me joining New South Wales Trustee and Guardian, the New South Wales Trustee and Guardian established customer excellence principles. 

MS EASTMAN: Can I ask you to slow down a little bit so our interpreters can keep up with us. 

MS SIMPSON: Of course. Established customer excellence principles. And they are pillars that underpin our work, how we engage and how we support people under a financial management order. 

MS EASTMAN: In New South Wales, what has to happen for a financial management order to be put in place for a managed person or a customer? 

MS SIMPSON: So application is made to NCAT, New South Wales Civil and Administrative Tribunal. We are not involved in the applicant, that goes to NCAT. And then, of course, we are notified an order is made post the making of the order. 

MS EASTMAN: You have no role in making applications at all?

MS SIMPSON: On very, very rare occasion and under exceptional circumstances. 

MS EASTMAN: And so, in your experience, what are the circumstances in which the Public   the New South Wales Trustee would be making applications of this kind? 

MS SIMPSON: In rare occasions where we may be working in conjunction with the Public Guardian, and it may be necessary for an application to be submitted to   particularly in circumstances where there may be exploitation, undue influence that we may become aware of. 

MS EASTMAN: In terms of applications that are not initiated by the New South Wales Trustee, for the most part, how are those applications initiated? What might be the source of somebody seeking to have a financial manager appointed? 

MS SIMPSON: I can only surmise, given that we are not involved pre the order being made. However, orders that come through, there are a number who are   they are submitted by a social worker, a support person of the individual, or where someone has no support network at all. And then of course, if there is the identification by a support network who does not wish to be a private financial manager, where there may be circumstances of exploitation, undue influence. But also in circumstances with residential aged care facilities where people are losing capacity due to diagnoses of dementia, Alzheimers and other age related illnesses. 

MS EASTMAN: And is the New South Wales Trustee the financial manager of last resort? 

MS SIMPSON: Yes, it is. 

MS EASTMAN: And in New South Wales as at 31 October this year, New South Wales Trustee is appointed financial manager for 12,580 people in New South Wales. That's a figure from Ms Cuddihy's statement. So, you are familiar with that? 

MS SIMPSON: Yes, I am. 

MS EASTMAN: And in terms of understanding the particular disability that becomes one of the reasons for the triggering of the process for the appointment of the New South Wales Trustee, the information provided to the Royal Commission indicates that about 33   so a third   33 per cent are people who live with psychiatric disability. For your internal purposes, what does "psychiatric disability" mean and what would be the nature of people in that cohort?

MS SIMPSON: Psychiatric disability is a range of disabilities. It can be due to   diagnosis due to substance abuse, it can be episodic mental illnesses, and   but, primarily the psycho social disabilities. 

MS EASTMAN: For this cohort of people who are subject to financial administration, would a psychiatric disability for most part be acute or temporary? Or is it your experience that these are life long disabilities? 

MS SIMPSON: During my three years at New South Wales Trustee and Guardian in the knowledge I have of our customers, it's a mix of all of those. 

MS EASTMAN: In terms of a person who lives with psychiatric disability, and it may be an acute or very sort of short term disability, is there anything in the New South Wales Trustee and Guardian Act that allows for very short term arrangements to be made for financial management of somebody who might be experiencing an acute situation or episodic psychiatric disability? 

MS SIMPSON: All orders that are made are permanent unless otherwise stated when they are made. 

MS EASTMAN: So, if, for example, somebody is in an acute situation   it might be a   almost a crisis situation   is it possible for an order to be made in relation to that person that would be limited in time? 

MS SIMPSON: Yes, it is. 

MS EASTMAN: Would that require NCAT to make a decision to limit the scope or the duration of the order? 

MS SIMPSON: Yes, it would. 

MS EASTMAN: But if NCAT does not make any timeframe in relation to the order, then it just continues. 

MS SIMPSON: That's correct. 

MS EASTMAN: Is there, for somebody with an acute psychiatric disability, any provision in the legislation for there to be a review of an order if it's not time specific? 

MS SIMPSON: They can make application to NCAT to have the order reviewed or revoked. 

MS EASTMAN: And in terms of the New South Wales Trustee, do you have any function for the third of people for whom financial orders apply, described as psychiatric disability, to assess the ongoing capacity or incapacity of a person? 

MS SIMPSON: No, we do not. 

MS EASTMAN: So, if the person is well treated and their psycho social or psychiatric disability is managed, is it up to the person themselves or their supporter to initiate a review of any order in relation to financial management? 

MS SIMPSON: Primarily, yes. However, in the engagement process with the onboarding, we start to build a customer story, get to know them, get to know their support network, actively engage. So, in review processes that we have within our internal processes, it may be that we identify that someone's health has improved in that circumstance, and then we would, of course, provide information about how they can go about applying, making application to have the order revoked. That would entail, of course, having evidence that their condition had improved. 

MS EASTMAN: Would the onus be on the person who wishes to have the orders revoked to produce that evidence to the Tribunal? 

MS SIMPSON: Yes. 

MS EASTMAN: Does the New South Wales Trustee have any role or responsibility in assisting that person to present evidence to demonstrate that they do have capacity to make decisions about their financial affairs? 

MS SIMPSON: No, we don't. 

MS EASTMAN: If somebody with a psychiatric condition wants to review, does the New South Wales Trustee take a role as what we might call a contradictor? So   or do you play a neutral role if the application goes back to the Tribunal for review? 

MS SIMPSON: We play a neutral role. However, we do submit reports. That report will be in relation to the information we have as the financial manager. 

MS EASTMAN: Alright. So, coming back to the other cohorts and groups, the next largest group is people who live with intellectual disability. Is that intended to be a description of people who live with forms of cognitive disability? 

MS SIMPSON: Yes. It is. 

MS EASTMAN: And, for the most part, are these life long disabilities rather than fluctuating or acute disability? 

MS SIMPSON: Yes, they are. 

MS EASTMAN: And then you have given us, or I think Ms Cuddihy has provided to us some of the other categories. 

MS SIMPSON: Yes.

MS EASTMAN: But if we take those two categories together, psychiatric disability and intellectual disability, that's pretty much two thirds of the cohort. 

MS SIMPSON: That's correct. 

MS EASTMAN: Is that right? We have asked you about the age of people and, again, two thirds of clients are aged 65 years or under, and then a third over 65 years. Are you able, within the cohort under the age of 65, to give us any sense as to whether there's one particular age group that might be overrepresented? 

MS SIMPSON: No, I'm not. 

MS EASTMAN: And we have also asked about the percentage of First Nations people who are managed persons. And you've told us it's 7.31 per cent. So, I assume it's for people who identify as First Nations in some way. 

MS SIMPSON: That's correct. 

MS EASTMAN: In terms of the 7.3 per cent, is that a disproportionate number to the population of First Nations people in New South Wales generally? 

MS SIMPSON: Yes, it is. I understand in the general population, representation is approximately 3.3 per cent. 

MS EASTMAN: Has the New South Wales Trustee examined why there is a disproportionate number of First Nations people who have a financial manager appointed to manage their affairs? 

MS SIMPSON: No, we haven't examined that internally. 

MS EASTMAN: Why not? 

MS SIMPSON: I can't answer that. What I can   my experience is that generally there is an overrepresentation in many support functions, and financial management is one of those. 

MS EASTMAN: In terms of   if I perhaps just deal with First Nations now. So, we understand from the evidence provided that New South Wales Trustees did not have any Aboriginal Liaison Officers employed in the office. Is that right? 

MS SIMPSON: No, it doesn't.

MS EASTMAN: Have you ever had any Aboriginal Liaison Officers employed at the New South Wales Trustee? 

MS SIMPSON: Not during my time there. 

MS EASTMAN: Do you have a policy that sets out cultural safety and culturally responsive practices for First Nations people? 

MS SIMPSON: What we have is, in our corporate induction, an overview of cultural diversity, cultural safety. It's not currently specific to First Nations, but the corporate induction is going to include some information and some training that's been identified by the Public Service Commission of New South Wales. 

MS EASTMAN: That sounds like you are telling me that there is training when somebody starts in the organisation. 

MS SIMPSON: Yes. 

MS EASTMAN: But my question was directed to whether you've got a policy that sets out a policy in relation to cultural safety and culturally responsive approaches to working with First Nations clients. 

MS SIMPSON: It's not specific to First Nations clients. We work on an individualised approach with all of our customers who come in the door. Part of learning about, though, each and every individual includes their culture, their preferred method of communication, who they identify as their support network, how they wish us to support them, who they wish to include in conversations, what is important to them in their lives. And that is what we do for all of our customers. 

MS EASTMAN: I'm going to ask you about that a little later on, but that seems to put the onus on the person who is the subject of financial management to advise the New South Wales Trustee as to their preferred mode of communication. I'm interested in what step is done before that to make sure that asking those questions or finding out that information is done in a culturally safe and culturally responsive way. 

MS SIMPSON: So, we have included   we have some First Nations staff. So, they have been included in the development of our   we are moving to a new operating model   in the development of our review of all of our onboarding practices. So, they have had input into that. That input will continue with the ongoing practice of management. 

MS EASTMAN: So, this is something that's starting but not presently fully implemented or in place; is that right? 

MS SIMPSON: That's correct. 

MS EASTMAN: We also asked about people who   within the cohort - who identify as culturally and linguistically diverse people. 

MS SIMPSON: Yes. 

MS EASTMAN: And the New South Wales Trustee doesn't capture any specific data reflecting culture or a person's preferred first language. Is that right? 

MS SIMPSON: Excuse me, I will just refer to Ms Cuddihy's statement. 

MS EASTMAN: I think it is paragraph 40. 

MS SIMPSON: Thank you. So, we do identify the primary language. 

MS EASTMAN: Right. What do you mean by "primary language"? Preferred language? Or first language? 

MS SIMPSON: Preferred language. And that is how we identify the different backgrounds. 

MS EASTMAN: Is there any identification by a person's country of birth? 

MS SIMPSON: Yes, there is. 

MS EASTMAN: And I think Ms Cuddihy sets out a long list of different countries there. 

MS SIMPSON: That's correct. 

MS EASTMAN: And so, to the extent that you have any sense of the diversity of people who are subject to financial management orders, you know that from their country of birth? Is that the main thing, not by ancestry generally? 

MS SIMPSON: It is by country of birth, yes. 

MS EASTMAN: Are there any policies or practices within the New South Wales Trustee in terms of engaging with people from such a diverse range of backgrounds? You've got a very wide range of people there. 

MS SIMPSON: We do. We do. Again, we engage   we have a significant number of staff from culturally and linguistically diverse backgrounds and so, of course, we have input from them in the process. 

MS EASTMAN: Just looking at the numbers, in some cases   and I'm just looking at Ms Cuddihy's statement with the various tables of the countries in paragraph 41   is that, in some cases, it might only be one or two people from a particular country. 

MS SIMPSON: Yes.

MS EASTMAN: How do you go about making sure that a person who might be in quite a small minority   say, for example, there's three people who identify from Sierra Leone. 

MS SIMPSON: Yes.

MS EASTMAN: What support and what approach would you take for somebody from an African country whose primary language, as you describe it, may not be English? What would be the approach taken to support a person? 

MS SIMPSON: So, we would engage interpreters, which there is no fee for our customers who require an interpreter. And as part of that engagement with the interpreter, we would then have them have the customer identify who are the important people who they wish to support them when we are working with them, to ensure that it is understood where there are cultural differences, where there are language differences. It may be, for example, that they would prefer to have a client service officer of the same gender. So, those really important elements that are important to work with individuals. 

MS EASTMAN: Alright. So, then we asked about the number of people who are also NDIS participants, and that's 44 per cent of clients. 

COMMISSIONER McEWIN: Ms Eastman, sorry, before you go on I just have a question, going back to paragraph 40, Ms Simpson. In that list under ‘English’, you’ve got non verbal. I'm curious to know, why is there the cohort of people who are non verbal included in a group when you are talking about culturally and linguistically diverse. Could you explain to me the rationale why non verbal is included in that? 

MS SIMPSON: I'm sorry, I can't, but I'm happy to go back and then we can submit. 

COMMISSIONER McEWIN: Thank you. 

MS EASTMAN: Just while I'm on that topic, these tables    and Commissioner McEwin is drawing your attention to paragraph 40   you also include Auslan speakers in that list; is that right? 

MS SIMPSON: Yes. 

MS EASTMAN: So, 11 per cent of customers is - is that right - are people who are Auslan speakers as a first language? 

MS SIMPSON: I'm sorry, which image   table   what table are you referring?

MS EASTMAN: Page 10, paragraph 40.

MS SIMPSON: Yes.

MS EASTMAN: You will see there's the number of clients, so English is the first language. 

MS SIMPSON: Yes. 

MS EASTMAN: So, I think it must be less than 1 percent, is that right? 

MS SIMPSON: For non verbal? 

MS EASTMAN: No, no, further down the list to Auslan. 

MS SIMPSON: I'm sorry, I can see that now. Yes, it's .11 per cent. 

MS EASTMAN: So, just under   so, 1 percent, 14 out of the total. 

MS SIMPSON: Correct. 

MS EASTMAN: Okay. Right. So, I think I was on that NDIS. 

MS SIMPSON: Yes. 

MS EASTMAN: And 44 percent of clients are NDIS participants. 

MS SIMPSON:    to be, yes. 

MS EASTMAN: And in terms of the New South Wales Trustee role in relation to any NDIS issues, do we understand that, for the most part, you have nothing to do with the NDIS other than, I think as you say, some transport matters? 

MS SIMPSON: That's correct. 

MS EASTMAN: Can you explain why you would have something to do with transport but not to do with anything else relevant to a person who may be under financial management but also an NDIS participant? 

MS SIMPSON: Yes. So, as financial managers, we manage income and assets. The NDIS funding is not considered to be income. What we do is transport funding. Some of our customers do manage their transport funding. The others, we manage it for them, and that is our engagement when we receive invoices for payment. 

MS EASTMAN: So, we've heard earlier this week that, particularly for Victoria, that there are some real challenges in the Victorian Trustee discharging its duty for some of its customers who are also NDIS participants. 

MS SIMPSON: Yes. 

MS EASTMAN: But New South Wales does not have those challenges? 

MS SIMPSON: There are challenges. We   

MS EASTMAN: What are the challenges? 

MS SIMPSON: Similar to Victoria. Some of our customers who receive NDIS funding will provide us with their plan. Others don't. We will engage   and the purpose of that is so that we are developing budgets, when we are looking at expenditure, to try to protect the financial assets of the customers so they are not spending their own funds where they may be eligible for additional NDIS funding. Where that is the case, and where we have contact details of a support coordinator, or the support network, what we will then do is notify them that there may be other funding that our customer can access from the NDIS. 

MS EASTMAN: Does the fact that a person is an NDIS participant create additional complexity for the person themselves if they are engaging with the New South Wales Trustee but also engaging with the NDIS? 

MS SIMPSON: Yes, it can. 

MS EASTMAN: And is there any guidance or material that are provided to NDIS participants to assist them understand the interrelationship between the NDIS and the extent to which the New South Wales Trustee is managing their financial arrangements? 

MS SIMPSON: Yes, in the welcome pack that is sent to all customers, it does explain the difference between what New South Wales Trustee manages and what is managed by the NDIS. 

MS EASTMAN: Have you provided the welcome pack to us in the documents? 

MS SIMPSON: Yes, we have.

MS EASTMAN: Okay. And I might just, in the interests of time, Chair, not go to those documents unless the Commissioners would be assisted by it. I want to turn to when orders are revoked, and we've touched on that. And Ms Cuddihy has said in her statement that, for the relevant period, 830 financial management orders were revoked, but that included not only the New South Wales Trustee, but also any private arrangements. And you have addressed in your statement at paragraphs 73 and 74 some of the barriers for people to have their orders revoked. And I just wanted to ask you about that. And you have identified this in terms of the trends. So, you will see that's the last two paragraphs of your statement. 

MS SIMPSON: Yes. 

MS EASTMAN: So, some of the key barriers are a lack of support for some individuals, their disability contributes to social isolation and an inability to engage in normal daily activities. And you say that this group is at greater risk of abuse and exploitation from others in their life. 

MS SIMPSON: Yes. 

MS EASTMAN: That's one. Can I just ask you to explain what you mean by that, both in terms of social isolation, in terms of inability to engage in what you describe as normal daily activities, and what is it about this group that creates the greater risk of abuse and exploitation? 

MS SIMPSON: Yes. So, the lack of support, we see   we see many people under financial management who have no one else in their life. So, they don't have a natural support network. They may be living with psychosocial disabilities that make it difficult for them to engage in community, be that agoraphobia, schizophrenia, you know, numerous disabilities. And then normal daily activities become difficult for them: to be able to go to a supermarket, they don't engage in a social circle. And because they tend to be isolated, then the greater risk of abuse and exploitation is because there is no one there to recognise that. 

MS EASTMAN: Does that mean, then, that the New South Wales Trustee plays a very prominent role in the lives of people who you've described? 

MS SIMPSON: Yes. It depends on the individual needs, of course, of the person. We certainly identify where someone may be at risk of exploitation or undue influence, and then we take action on that. 

MS EASTMAN: What's the action that you take?  Is that a referral to the Ageing and Disability Commission? 

MS SIMPSON: Yes. So, it can be a referral to any number of agencies, dependent upon what we identify. So, yes, we do support those people as best we can as their financial manager. 

MS EASTMAN: So, is there   do you have the same tension that we heard earlier this week, that as a substitute decision maker, you are there to make decisions about financial matters. You are not there as a case manager generally. To what extent may those lines blur and how far, particularly for this cohort you describe in paragraph 73, that the New South Wales Trustee may also be picking up case manager responsibilities. 

MS SIMPSON: There are significant tensions between our statutory role and then the role of supporting people to ensure their safety, their engagement. We do make referrals to other organisations. We do seek to understand what support might be available. And, of course, our staff use their contacts to be able to do that in their local communities where they can. But it is a very difficult tension because we are bound by our statutory authority as financial managers. We also   as you noted, we have over twelve-and-a-half thousand customers. To be delivering quality financial management services to those people with the staffing levels that we have is at times very   is at times difficult. 

MS EASTMAN: Alright. The second area you have identified in paragraph 74: that there appears to be a lack of services providing support in the areas of budgeting and financial counselling. And particularly where a limited support network is in place, the opportunities to practice new skills over an extended period is not available. So, this is a barrier to the orders being revoked; is that right? 

MS SIMPSON: I believe so. 

MS EASTMAN: And we asked you in the statement what information the office   the New South Wales Trustee – provides, and I think in various paragraphs   56, 57, 62, 63 and 69   you've said it's not the function of New South Wales Trustee to provide resources to people with disability, people under financial management orders, supporters or stakeholders, or minimising the restriction on the human rights of people under financial management orders. So, when we are talking about that tension in the case manager-meets-substitute-decision-making role, would one of the ways of navigating that tension to be providing information to people? If you don't see that as your function at all? 

MS SIMPSON: We   New South Wales Trustee and Guardian has, in some information you would have, in welcome packs, information in relation to services that can be accessed. Also on our website, we have relevant links through to information. That is the information that we have access to ourselves because we are not the creator of that information or the owner of that information. 

MS EASTMAN: So in terms of supporting a person to acquire budgeting skills - 

MS SIMPSON: Yes.

MS EASTMAN:   to have the opportunity of financial counselling, that person would have to look outside New South Wales Trustee for that level of support or skill building; is that right? 

MS SIMPSON: At the moment, yes. However, we have just created our Customer Independence and Support team. We are in the early stages, and it will be operational by approximately March 2023. 

MS EASTMAN: So, forgive me for interrupting, but when you say, "we've just started" - 

MS SIMPSON: Yes. 

MS EASTMAN: - can you tell the Commissioners, when and what and what was the reason for this being set up. Is it to address the issue I've identified? 

MS SIMPSON: Yes, it is. So, through recent enhancement to our funding, one of the things that we identified was the need for us to better support customers where there was eligibility or assessment for a section 71 grant which is   

MS EASTMAN: Okay. We had better deal with section 71. If people need to know about it, in the documents behind tab 5 on page 11, there's a bit of an explanation about what section 71 of the New South Wales Trustee and Guardian Act is. But what can you tell us about section 71? And then we will go back to the rest of the answer? 

MS SIMPSON: Of course. Sorry. So, section 71, where we are working with a customer and they are telling us that they wish to manage all of their finances or part of their finances, however the indications are from our contacts with them that they may be able to manage part of their finances, then a submission is put to the CEO, and the CEO can, under section 71, grant them the opportunity to manage part of their finances. And those conversations with the person, and again, their support network   which comes back to paragraph 74   and their support network occurs. 

At the moment, we do not have the team in place, and we are looking at what is the best way that we can support this group of customers. The current   currently, the access to financial counselling, budgeting skills is limited and so we are looking at what is the best way for us to do it. Is it an identification and referral process to the services? So, that will mean we will need to engage with external services. So, we will then for 12 months   once the section 71 grant is made - for 12 months, that customer has the opportunity to   and practice those skills, what is the support that they have to display that they can manage an increasing amount of their finances. But our intent of creating this team is to support our customers to regain financial independence. 

MS EASTMAN: When you say "support", do you mean supervise? Or do you mean hands on support in terms of building the skill and capacity? 

MS SIMPSON: At this stage, it would be monitor and engage with external organisations because we don't have the internal capability, nor do we have the resources to do it in house. 

MS EASTMAN: So, at paragraph 53 is in your statement where you speak to the Customer and Independence and Support team. And you talk about that in the future tense. What can you tell us about the nature of that team now? 

MS SIMPSON: The nature of the team at the moment, we have a team leader and approximately three staff who are   

MS EASTMAN: So that's team leader and three staff. 

MS SIMPSON: Yes.

MS EASTMAN: And you have got twelve and a half thousand customers. 

MS SIMPSON: We do. 

MS EASTMAN: Okay. I'm going to ask you some questions about the staffing in a minute. 

MS SIMPSON: Of course. 

MS EASTMAN: Right. So, tell me about the team now and what the team now is doing. 

MS SIMPSON: So, they are very keen, they are very dedicated, they are very focused on this piece of work. What they are currently doing is the background work on what do our internal processes look like. They are speaking with some of our current customers who are currently subject to a section 71 grant to see what it is that they would need. I really liked Alexander's comment before, "You don't throw someone a set of keys and say, here, drive a car." So how is it that we can incrementally support our customers to regain all or part of their financial independence. So, at the moment, we are in that development phase of what does this look like. 

MS EASTMAN: Does the development phase   sorry, I take it by that there is no one currently supported by the team. But does the development phase include the application of supported decision making principles? 

MS SIMPSON: While we are substitute decision makers and it's a best interests model, you will also note that in a number of documents, we seek the views of our customers and their support network, where appropriate, ensuring we don't breach any privacy legislation. So, we do seek views. What is important to them? And it's the balance of being financial managers, yet enabling our customers to be able to live the life they wish to live and then managing the risk that comes with some of that. 

MS EASTMAN: So, some might say just simply asking people what their views are is a form of consultation. And that might be a little different to actual supported decision making. 

MS SIMPSON: Yes. 

MS EASTMAN: So, does the work that this new team is planning on doing going beyond just asking somebody their views and actually practising supported decision making? 

MS SIMPSON: We would love to be able to do that for all of our customers but, again, with twelve and a half thousand customers to be able to support all of them and engage actively in supported decision making for every customer, we do not have the resources to do that. 

MS EASTMAN: But if the resources were dedicated to a task like that, and assume, based on listening to CID today, it’s not going to be overnight, you could set targets and plans, let's say, over a five- or 10-year period. And if that works successfully, the net outcome might be a significant reduction in the number of people who are subject to management orders and that is a sort of net gain, isn't it, in terms of the state and the funding of an agency like the New South Wales Trustee? 

MS SIMPSON: Yes. Government funding can be complex. You know, required savings and our community service obligation funding. So, yes, it could. 

MS EASTMAN: Will the Customer Independence and Support team be setting targets in terms of the number of people that it will support on the program and on the journey to the section 71 arrangements? 

MS SIMPSON: Yes, we will have targets on that. What is a caseload that is manageable and how do they best support those people. Yes. 

MS EASTMAN: Will the New South Wales Trustee publish information to people to know that that option may be available to them and what may be required of them? 

MS SIMPSON: Yes, we will. 

MS EASTMAN: And you are hoping when this is all going to happen? 

MS SIMPSON: It will commence in March 2023. 

MS EASTMAN: Okay. So can I turn now to the office itself, and you have told us in the statement that there are 188 full time equivalent employees. Is that right? 

MS SIMPSON: That's correct. 

MS EASTMAN: And you have mentioned earlier that there are First Nations people who are employed in the office? 

MS SIMPSON: Yes, there are. 

MS EASTMAN: Do you have the sort of proportion. I don't want you to identify any one person intentionally, but what sort of proportion of the staff identify as First Nations people? 

MS SIMPSON: So those that identify are at approximately 1.8 per cent. 

MS EASTMAN: Okay. And what about staff with people who identify as people with disability? Do you keep any records in relation to staffing of people with disability? 

MS SIMPSON: Yes, we do. And, in fact, we are over the benchmark. 

MS EASTMAN: What is the mark? 

MS SIMPSON: As in, the last government benchmark. I would need to refer to our notes. I'm sorry. 

MS EASTMAN: What proportion of the staff are people with disability? 

MS SIMPSON: I don't have that exact number on me, I'm sorry. 

MS EASTMAN: And do you know if the staff members who identify as people with disability have that frontline role in acting as financial managers? 

MS SIMPSON: Yes. 

MS EASTMAN: Does the New South Wales Trustee have any external liaison or advisory committee of people with disability to seek advice or consult in relation to the programs and policies and the discharge of the statutory functioning? 

MS SIMPSON: We don't currently. 

MS EASTMAN: Why not? 

MS SIMPSON: A formal advisory committee. 

MS EASTMAN: Why not? 

MS SIMPSON: I can't answer that. 

MS EASTMAN: When you say not currently, would the Royal Commissioners take from that that there may be a proposal to do something to establish a form of consultation of people with disability, be it by way of liaison or advisory committees? 

MS SIMPSON: Yes, our Customer Advocacy unit is doing some work on that currently at the moment. 

MS EASTMAN: And would any part of the work of the Customer Advocacy unit involve co design with people with disability in terms it of the way information is provided and/or the services are delivered? 

MS SIMPSON: Yes. It will. Some of the other activities we have undertaken, we   in Estate Management, we have co designed and consulted with people with disability around what does their annual statement look like, what are their needs and that was facilitated by our Customer Experience Division and we also   I'm sorry, I've just gone blank on that. 

MS EASTMAN: It's okay, take your time. 

MS SIMPSON: So, you were talking about external  

MS EASTMAN: So, just any consultation and then any co design in working with people with disability in designing information, policies or in the delivery of services. 

MS SIMPSON: That's what I was going to say. We have as part of our review of our customer foundation, which is our onboarding, we have, in fact, reviewed all of our customer communication and so it meets Easy Read requirements, and impact has been measured against external standards to New South Wales Trustee and Guardian. 

MS EASTMAN: I want to ask you now in relation to staff training it, and you have set this out in some detail in paragraphs 13 through to 30. And you have described the onboarding training and you have described in the statement the initial four week induction training program to assist financial managers to understand the customers in relation to fiduciary duties, their legal obligations under the legislation, an overview of the Guardianship Act and modules relating to their day to day roles. You have described those things. What   can I ask you this, because what we couldn't see in the response to this was any training that has a very specific focus on the Convention on the Rights of Persons with Disabilities. Are we right in understanding that? 

MS SIMPSON: Yes, it's not included in here. 

MS EASTMAN: Why not? 

MS SIMPSON: I have received information on that today. So, our disability awareness training includes references to the CPRD, and it is rolled out as part of the corporate induction. 

MS EASTMAN: In paragraph 26, you say you currently are developing training around dignity of risk for clients as well as delivering disability awareness, NDIS and authorised visitor training. So, that's paragraph 26. 

MS SIMPSON: Yes.

MS EASTMAN: So, are you saying that as part of currently delivering disability awareness, or is it future delivery of disability awareness training? I just want to be clear before I ask you about the CRPD. 

MS SIMPSON: Of course. So, paragraph 26. So, we are currently considering the dignity of risk. We are delivering a lot of the other training. 

MS EASTMAN: So, in terms of disability awareness, if that involves the CRPD, is there any reason why you hadn't told us about that in the statement? 

MS SIMPSON: I wasn't aware at the time. That's delivered by the corporate learning and development. 

MS EASTMAN: And do you have any knowledge about what exactly is said or done in relation to the CRPD as part of disability awareness training? 

MS SIMPSON: No, I don't. I don't deliver that training. 

MS EASTMAN: Does the CRPD have any broader relevance to the work of New South Wales Trustee? 

MS SIMPSON: I think it has significant relevance to the work that we do. 

MS EASTMAN: And so if it does have relevance, how do you see that relevance applied in a very practical basis in the statutory functions you discharge and the services that you deliver? 

MS SIMPSON: So the statutory functions and the services that we deliver, ensuring that our service delivery is inclusive, that we deal with people individually according to what their needs are and, of course, ensuring that we don't, as an organisation, discriminate and that, in fact, we   where we can, within our limited functions, advocate and ensure that we act consistently. 

MS EASTMAN: So, I'm not sure how that really fits within the CRPD. So, can you help me understand what you've just said as relevant to the practical application of the CRPD? 

MS SIMPSON: I   sorry, I've had a mind blank. 

MS EASTMAN: That's alright. You can take your time. 

MS SIMPSON: Can we come back to that one? Is that okay?

MS EASTMAN: One question we also asked you in relation to the training is whether or not any of the training is delivered by people with disability. And you've said in paragraph 29 that the internal staff training resources have not been developed with any targeted consultation with   and we have asked you people with disability, First Nations people with disability, people with disability from CaLD backgrounds, people with disability who identify as LGBTIQA +, advocates of persons under financial management orders and family members of persons under financial management orders. So, we identify that sort of large cohort. And the training resources have not been developed with any of those relevant groups or people who identify in that way. Is that right? 

MS SIMPSON: Our   we do have the person who delivers some of the disability awareness training lives with disability. But we have not actively engaged. No. 

MS EASTMAN: And you say you are proposing to conduct consultation with relevant sectors for the development of future training and education resources. 

MS SIMPSON: Yes. 

MS EASTMAN: Can I pin you down a little bit on that. 

MS SIMPSON: Yes. 

MS EASTMAN: First, what does it mean and when will that occur? 

MS SIMPSON: Of course. What does it mean, is that we will actively engage with services that are relevant to that training. And part of the development of the customer consultative group is to also utilise that as a tester. 

MS EASTMAN: And how and with when will that be done? 

MS SIMPSON: I'm not sure. I'm not responsible for that training. 

MS EASTMAN: Is that something you want to take on notice? 

MS SIMPSON: Yes, it absolutely is. 

MS EASTMAN: You can let us know. So, coming back to the CRPD, what I was asking you about is how the CRPD and the rights in the CRPD are, as you've said, relevant to the work that you do. But how, in effect, are they operationalised. How do they become part of the day to day discharge of statutory functions or services that you deliver? 

MS SIMPSON: I think that starts with a change in the way we have undertaken recruitment in recent times whereby we are actively seeking to employ people with disability. We have taken a location agnostic approach to our recruitment to ensure that we have   we are employing the best candidates. And then, of course, bring in the skills that other people bring in, their knowledge, to ensure that what we are doing is not focusing on the technical aspects of what we work. 

So, not working in a transactional way, but, instead, working in a manner which ensures that what we are doing is ensuring that people's rights are upheld within the processes of where we have review processes, informing people of what their rights are, ensuring that we engage, ensuring that we are trying to meet the individual disability of people and that all of our interactions are appropriate. 

MS EASTMAN: Well, it’s one thing to recruit people with disability, but if you are recruiting people who don't live with disability do you require them to have a solid working knowledge of the CRPD as part of the qualifications to be able to come and work in the organisation? 

MS SIMPSON: No, we do not. 

MS EASTMAN: Why not? 

MS SIMPSON: I don't know. I can't answer that. 

MS EASTMAN: So, I want to ask you about the level of engagement. So, in terms of what for the twelve and a half people who are your customers, I couldn't get a clear sense of what the level of engagement might be. You've set out some matters at paragraph 38, 39 and 40, and you have said that it's subject to the individualised treatment, and you have referred to this expression "intensive consultation at least once annually." 

So, can we start at the beginning. Is there an obligation for New South Wales Trustee, whoever is going to be the financial manager, to meet very quickly after an order is made to meet with the customer? 

MS SIMPSON: Not in person. 

MS EASTMAN: Is there any obligation to meet with a customer in person at all? 

MS SIMPSON: No, there isn't. 

MS EASTMAN: To what extent would a meeting with a customer in person ever occur? 

MS SIMPSON: We, under exceptional circumstances, will meet with a customer. 

MS EASTMAN: What would exceptional circumstances be? 

MS SIMPSON: It may be that we have a very quick and significant decision to make. Or where we are located geographically and can meet with that customer. We also have the Customer Specialist Centre in the city where those who are living rough and people who have no support network living in the city, they can come into that service, and they will be able to meet with their Client Service officer and we engage with services such as the NDIA, homelessness services, medical services, who come into the centre so that our customers can meet with them. 

MS EASTMAN: And what proportion of the twelve and a half thousand people would that apply to? 

MS SIMPSON: There are approximately 280. 

MS EASTMAN: And for the rest? 

MS SIMPSON: Yes. 

MS EASTMAN: If there's no face to face communication, what is the usual mode of communication and the frequency of communication? 

MS SIMPSON: So the mode of communication varies and, of course, again, depending on how the customer wishes us to communicate, we use Teams, FaceTime, mail, telephone, email. So, there are different methods of communication. And, of course, there are   dependent on the complexity of the life of the person that we are supporting, those with more complex lives will have more frequent contact than those with less complex lives. 

MS EASTMAN: How do you work that out? 

MS SIMPSON: It's difficult. 

MS EASTMAN: So, what's the   is there a policy that sets out how you collect the information to work out particular clients or customers will require more attention than others. How do you do that in practice? 

MS SIMPSON: We have recently developed a logic around that, and so the data logic, which we are yet to test, and that has been based on number of contacts during the year and the type of contact during the year. Not only with our customer, but with their support network, where they have one. 

MS EASTMAN: And we asked you if the New South Wales Trustee has any role in identifying a customer who may be at risk of violence, abuse, neglect or exploitation, including financial abuse. And you've said to us that the staff have been provided with in depth training on how to recognise, first, and respond, secondly, if they suspect, identify or receive information relating to allegations of violence, abuse, neglect or exploitation of a customer. 

MS SIMPSON: Yes. 

MS EASTMAN: So, this might have touched upon some of the earlier matters that we spoke about, or I asked you about with the referrals to the Ageing and Disability Commissioner. 

MS SIMPSON: Yes. 

MS EASTMAN: But can you tell us about the nature of the training? When you say "in depth", what does that actually mean? And what can you tell us about the training with respect to both recognising and responding to suspected violence, abuse, neglect or exploitation? 

MS SIMPSON: So, the training has been developed this year, and it was developed and delivered in conjunction with the ADC and with police   I think it was the Aged or the DV Liaison Officers who, in fact, came along and delivered in person. So, all customer facing staff in New South Wales Trustee and Guardian have had to attend the training face - 

MS EASTMAN: Was it one day training or -

MS SIMPSON: Face to face, yes, one day training and then there are now online modules and recordings available for other staff. That training involved information on how to identify, how to recognise and identify possible abuse. 

MS EASTMAN: What can you tell us about that? 

MS SIMPSON: So, what I can tell you is there are a number of things such as we can see if there is a change in spending pattern, for example, with our customers. If they are hesitant to speak when a certain person is around, if they are self disclosing. If they are not contactable or if their patterns of contact have changed. So, they are indicators that something might not be right. 

MS EASTMAN: How do the staff do that if they are not seeing people in person? Their only contact with them might be over the phone or I don't know if you do video links. 

MS SIMPSON: Yes, we do video links as well. 

MS EASTMAN: How do you work that out if you haven't got a true and full sense of the person and their circumstances? 

MS SIMPSON: You can go and visit someone in person, and I'm not suggesting this happens all the time. But you can visit someone in person and while you may think, you know, the circumstance might look okay, it may not. It's really difficult for our staff to be able to   to be able to identify that. However, being aware of some of the indicators then allows us to look at that person. We can engage an authorised visitor go out and visit. The other thing we do is, if we know that person is also subject to a guardianship order, is to speak to the guardian so we can gather more information about the person's circumstances. 

MS EASTMAN: What about responding to any suspicion that a person might be experiencing violence, abuse, neglect or exploitation? What does the training tell you about the way in which there should be a response and what does that involve? 

MS SIMPSON: So, there are a number of responses. Of course, if the staff member considers that there is an immediate risk, then they will go straight to their manager, and we can do a report to police. 

MS EASTMAN: Has that occurred, to your knowledge? 

MS SIMPSON: Yes. Yes. But then there are referrals to the ADC, we can make   if there is a suggestion that it could be a service provider that is charging for services that are not being delivered then, of course, we go down a different path. 

MS EASTMAN: Where do you go? 

MS SIMPSON: We go to the NDIA   NDIA's Quality and Safeguard to ensure -

MS EASTMAN: Is there an MOU or some arrangement between New South Wales Trustee and the NDIS Quality and Safeguards Commission? 

MS SIMPSON: No, there isn't but we have met with them. 

MS EASTMAN: What would be the arrangements? Because would you not be faced with the issue that you have talked about before of disclosing personal and confidential information? 

MS SIMPSON: We seek permission of the person. If the person does not give permission, then of course, we can't provide all of the information, and we are very conscious of not breaching privacy. However, if someone's safety is involved, then we will make sure that they are safe. 

MS EASTMAN: Do you think it would assist to have a formal MOU so that people for whom you provide services would know, in the event that there was a suspicion of violence, abuse, neglect and exploitation, that a report   particularly if it was a service provider   that a report could be made to the NDIS Commission? 

MS SIMPSON: Yes. An MOU would be beneficial. We have an MOU with the ADC. 

MS EASTMAN: Right. I wanted to also ask you about authorised visitors. 

MS SIMPSON: Yes. 

MS EASTMAN: And you have got a reference to an authorised visitor in paragraph 44. Is this part of the response if there is an allegation of violence abuse, neglect and exploitation? 

MS SIMPSON: Yes, it can be. 

MS EASTMAN: So, where when and how does that authorised visitor come into operation if there's a suspicion of violence, abuse, neglect or exploitation? 

MS SIMPSON: So, we have a panel of authorised visitors across New South Wales who have been through a selection process and who are noted on the panel. They are in different geographic locations, they are of different cultures and all experienced in working with people with disability. If we do see that   if we do consider that someone is at risk, we can engage an authorised visitor to go out and visit that person in their home, and then, of course, they submit a detailed report to New South Wales Trustee around their circumstances, and we, of course, provide some information in relation to the person so that they can go out and be   be as informed as they need to be. 

MS EASTMAN: The last question I want to ask you   and the Commissioners may have some questions   comes to how the Trustee manages conflicts. And one of the functions of the New South Wales Trustee is to prepare wills. Does the Trustee also have a function in representing the managed person in relation to commencing proceedings like family provision proceedings? Do have you that function? 

MS SIMPSON: Yes. 

MS EASTMAN: How is that conflict managed? 

MS SIMPSON: So, it's managed   

MS EASTMAN: Sorry, I withdraw that. Perception of the conflict managed? 

MS SIMPSON: Thank you. So, it is managed in a number of different ways. I'm the Director of Estate Management, so the people who are under financial management are within my division. We have a separate division, which is our Estates Planning and Administration division, and that has a separate Director. They also have separate client information databases and neither team has access to the other. The other thing that we do is where there is family provision   and the numbers are quite low   is we refer out to an external panel solicitor. So, those solicitors are external to New South Wales Trustee and Guardian, however, have been through a process to be placed on the panel. 

MS EASTMAN: This is   I accept is not in your area, but is there any advice or warnings provided to a person whose will might be prepared by New South Wales Trustee that if they have a family member who is or may at some time in the future be a person with disability who themselves becomes subject to financial management orders, that there is the possibility that action may be taken in relation to the will? And you may have heard Suzanne Nunn's recommendations to manage conflicts, and you've heard her circumstances in terms of navigating a protracted dispute with a Trustee. Do you do that in New South Wales? 

MS SIMPSON: I can't answer that, but I'm happy to take that question on notice. 

MS EASTMAN: Alright. Thank you, Commissioners. I'm conscious of the time, and the Commissioners may have some questions. Thank you, Ms Simpson. 

CHAIR: Yes, thank you very much. I will ask my colleagues if they have any questions. I will ask first Commissioner McEwin. 

COMMISSIONER McEWIN: Thank you. Thank you, Ms Simpson, for your information. I just want to go back to my question that you said you would take on notice about the cohort of non verbal people. I just wanted to add also, again, my curiosity as to why that is being put in there. Including, for example, have you presumed that they don't understand English and are they always non verbal? So, please, if you could take all that on notice I would appreciate that. 

MS SIMPSON: Thank you. 

MS EASTMAN: My next question is about, you were talking about providing support to   the people you provide support to, are you able to give me the breakdown of the settings they live in? Group homes, boarding house, homelessness, etcetera. Are you able to give me a breakdown? 

MS SIMPSON: Not a detailed breakdown, but what I would say is they could have any circumstances on the spectrum of their living situation from very comfortable   you know, comfortable in their own home, right through to supported independent living, boarding houses, to sleeping rough on the streets. 

COMMISSIONER McEWIN: And how do you use that information to then make assessments about how isolated they are or whether they have got access to services? How do you use that? 

MS SIMPSON: So, in getting to know each of our customers and identifying their support network, that is one of the first indicators of isolation where we can go through the list of people in their lives and where there are very few   and, sadly, some people have nobody   then that is the first indicator of isolation. Certainly, geography can be another indicator of isolation. And their disability. It's complex. 

COMMISSIONER McEWIN: My final question is in relation to the disability awareness training. 

MS SIMPSON: Yes.

COMMISSIONER McEWIN: Have you completed that training? 

MS SIMPSON: Yes. 

COMMISSIONER McEWIN: So you know for a fact that the CRPD is part of that training. 

MS SIMPSON: Yes.

COMMISSIONER McEWIN: Thank you.

CHAIR: Thank you. Commissioner Ryan, do you have any questions. 

COMMISSIONER RYAN: Just one detail about your charging of fees. I think   I'm just checking that I read this correctly. If a person, say, was living in a group home and had financial management applied to them, it looks like they will be subject to a single one off fee which looks to be quite modest and then probably no other fee after that. Is that likely to be the case? 

MS SIMPSON: Yes. Our low asset customers pay very low fees. 

COMMISSIONER RYAN: Because it seems to amount to not much more than a couple of hundred dollars a year. 

MS SIMPSON: Yes. 

COMMISSIONER RYAN: Just earlier, you said that you will be coming back to us about how the CRPD is   does that mean you were taking that on notice? 

MS SIMPSON: Yes, it does. 

COMMISSIONER RYAN: Right. Thank you. 

CHAIR: Yes, thank you. Financial management orders, as I understand it, are made under the Guardianship Act. Is that right? 

MS SIMPSON: No, they are made under the New South Wales Trustee and Guardian Act. 

CHAIR: They are made under the   

MS SIMPSON: New South Wales Trustee and   

CHAIR: Sorry, we are talking about financial management orders? 

MS SIMPSON: Yes. 

CHAIR: And you say they are made under the Trustee and Guardianship Act. 

MS SIMPSON: No, Trustee and Guardian Act. 

MS EASTMAN: Sorry, Chair, we set that out at the beginning. There is two pieces of legislation. 

CHAIR: Yes, there is one called the Guardianship Act 1987. 

MS EASTMAN: Yes. And then  

CHAIR: New South Wales Trustee and Guardian Act 2009. 

MS EASTMAN: Yes. 

CHAIR: You say the financial management orders are made under the latter, that is, the New South Wales Trustee and Guardian Act 2009. 

MS SIMPSON: Yes. 

MS EASTMAN: Why, then, does Part 3A of the Guardianship Act deal with making financial management orders and making of review and revocation of financial management orders? 

MS SIMPSON: I don't have that in front of me, I'm sorry. 

CHAIR: You've got the wrong Act. And when there is an application for a financial management order, I think you were asked what role the Trustee plays. What role does the Trustee play on an application for a financial management order? 

MS SIMPSON: We don't play a role in the application of a financial management order. 

CHAIR: And you don't know that under the Act, the Trustee is deemed to be a party to any such application. 

MS SIMPSON: The Trustee is deemed to be a party, yes. 

CHAIR: That's section 3F of the Act? 

MS SIMPSON: That's correct. Section 3F, we are a party. However - 

CHAIR: So if are a party, what do you do? 

MS SIMPSON: So there are 120 new orders come out of NCAT every month into New South Wales Trustee. In addition to that, there are approximately 140 new private management orders coming into the New South Wales Trustee. We do not have the resources to appear with every application. 

CHAIR: So do you turn up? To the hearing? 

MS SIMPSON: We turn up when we are required. 

CHAIR: What does that mean? 

MS SIMPSON: We turn up when we are asked to appear. However, we are not entitled to any information prior to the making of the order and we cannot take any action prior to the making of the order. 

CHAIR: If you are a party to the proceeding, you must get the application. 

MS SIMPSON: No, we don't receive the application. 

CHAIR: You are a party to the proceedings, but you don't get the application? 

MS SIMPSON: That's correct. 

CHAIR: Right. Under the New South Wales Trustee and Guardian Act, the Trustee is also response for management of estates if an order is made by at Supreme Court; is that right? 

MS SIMPSON: That's correct. 

CHAIR: What difference, if any, is there between the management of an estate pursuant to an order of the Supreme Court and the financial management orders made under the Guardianship Act 1987? 

MS SIMPSON: In the application of those orders in practice, nil. We manage those orders in the same - 

CHAIR: Yes, in practice, yes. 

MS SIMPSON: Yes.

CHAIR: So, they are actually dealt with in the same way? 

MS SIMPSON: Yes, they are. 

CHAIR: Yes, alright. Thank you. Thank you very much for your evidence and thank you for the statement in writing. We appreciate the assistance you have provided to the Royal Commission. Thank you. 

<THE WITNESS WITHDREW 

MS EASTMAN: Chair, the next witness is Megan Osborne. Perhaps if we just have a moment or so to reconstitute the hearing room. And, once again, I forgot to invite Ms Needham to announce her appearance. So, perhaps we can do that when Ms Osborne comes. But if we have a minute or two. Thank you. 

CHAIR: Certainly. Alright. We will take a short adjournment. 

<ADJOURNED 3:35 PM 

<RESUMED 3:49 PM

CHAIR: Yes, thank you. I understand that during the evidence of the last witness, there was some audible discussion and other noises coming from those   or at least some people within the hearing room. We would be very grateful if any conversations or any comments could be kept below a level where it is audible to anyone giving evidence or to Counsel. It's very important that witnesses be treated with appropriate respect and also be given the opportunity to give their evidence without interruption. So, I would be grateful if that could be borne in mind. Yes, Ms Eastman 

MS EASTMAN: Thank you, Chair. I think Ms Needham will make her appearance. 

MS NEEDHAM: Yes, may it please the Commission, my name is Needham. I appear for the New South Wales Trustee and Guardian. 

CHAIR: Thank you, Ms Needham. 

MS EASTMAN: Our final witness today is Megan Osborne, and you are going to take an affirmation? 

MS OSBORNE: Yes. 

CHAIR: Yes, Ms Osborne, thank you very much. Sorry to keep you waiting to give your evidence, but I'm sure you are familiar enough with proceedings of the Royal Commission to know that we can't always be precise as far as timing is concerned. We are very grateful for the detailed statement that have you provided and for your willingness to give evidence. If you would be so good to follow the instructions of the Associate who is located to your right, she will administer the affirmation to you. Thank you. 

ASSOCIATE: I will read you the affirmation. At the end, please say yes or I do. Do you solemnly and sincerely declare and affirm that the evidence which you shall give will be the true, the whole truth and nothing but the truth? 

MS OSBORNE: Yes. 

<MEGAN RUTH OSBORNE, AFFIRMED

CHAIR: Thank you, Ms Osborne. Now I will ask Ms Eastman to ask you some questions. 

<EXAMINATION BY MS EASTMAN SC

MS EASTMAN: Thank you. So you are Megan Ruth Osborne. 

MS OSBORNE: Yes. 

MS EASTMAN: And you prepared a statement dated 14 November 2022? 

MS OSBORNE: Yes. 

MS EASTMAN: And you have had an opportunity to read the statement? 

MS OSBORNE: Yes. 

MS EASTMAN: There's a number of attachments to the statement as well? 

MS OSBORNE: There is. 

MS EASTMAN: Are there any amendments to the statement? 

MS OSBORNE: No. 

MS EASTMAN: And are its contents true and correct? 

MS OSBORNE: Yes. 

MS EASTMAN: This is the second or third time that you have appeared before the Royal Commission, and the Royal Commission is aware from your participation in Public hearing 11 in the case study concerning Melanie about your role as the New South Wales Public Guardian and about the particular support in relation to Melanie. For this hearing, I want to ask you some questions more generally, and have you been following the Royal Commission's proceedings over the last few days? 

MS OSBORNE: Yes. 

MS EASTMAN: You have heard me ask questions of your comparable counterparts in Western Australia, Queensland, and Victoria? 

MS OSBORNE: Yes. 

MS EASTMAN: So, some of those questions I need to ask you, but perhaps not all of them because I know that you've given evidence before. But I think you have told us that from 1 August this year, you have returned to the role of New South Wales Public Guardian. 

MS OSBORNE: Yes. 

MS EASTMAN: You have also participated in the Royal Commission's roundtables on guardianship and supported decision making. 

MS OSBORNE: Yes. 

MS EASTMAN: And you are familiar with the Royal Commission's work and the outcomes of both those two roundtables. Is that right? 

MS OSBORNE: That's correct. 

MS EASTMAN: So, can I start, by just for those following the proceedings who may not have heard your evidence earlier, about the functions of the Public Guardian in New South Wales. The law that regulates what you can do and how you can do it, so your powers, functions and responsibilities, are set sought in the Guardianship Act 1987. 

MS OSBORNE: Yes. 

MS EASTMAN: And you are empowered to make applications to the Tribunal; is that right? 

MS OSBORNE: We are.

MS EASTMAN: Are you empowered to request review of guardianship orders once they are made? 

MS OSBORNE: Yes. 

MS EASTMAN: But the Act, in effect, makes you the guardian of last resort? 

MS OSBORNE: Yes. 

MS EASTMAN: So if there's not another family member or other appropriate person to take on the role of guardian, it may be that the Public Guardian is appointed, and it's that context you are the last resort? 

MS OSBORNE: Yes. 

MS EASTMAN: You may also be appointed as temporary guardian when urgent orders are made? 

MS OSBORNE: Yes. 

MS EASTMAN: And you don't, compared to other jurisdictions, have any investigative role, do you? 

MS OSBORNE: No, we don't. 

MS EASTMAN: So unlike some of the other jurisdictions that we've heard that there is a function to investigate whether a guardian might be required, that doesn't exist in New South Wales? 

MS OSBORNE: No, it doesn't exist for the Public Guardian, but it is with the New South Wales Ageing and Disability Commissioner. 

MS EASTMAN: And in terms of that function, with the Ageing and Disability Commissioner, is there any interaction between the two agencies where a circumstance arises as to whether a guardian should be appointed and the nature of the investigation? 

MS OSBORNE: Yes. And that usually occurs where the ADC may do an investigation into someone who may be at risk and one of the outcomes of that investigation is an application made to NCAT for a guardianship order to be made and then NCAT determining if the order needs to be made, and an outcome may be that the Public Guardian is appointed. 

MS EASTMAN: So as at 31 October this year, the Public Guardian was appointed to be the guardian for 3,726 people. That's paragraph 24 of your statement. 

MS OSBORNE: Yes, that's correct. 

MS EASTMAN: And in terms of the description used, the Act refers to "person under guardianship". Do you have any other expressions that you use to describe people who are persons under guardianship? 

MS OSBORNE: We would refer to them as ‘represented persons’. 

MS EASTMAN: Represented persons. Thank you. And we asked you about the cohorts by reference to disability for guardianship orders to be made. And you've set this out, Commissioners, at paragraph 28 of your statement. And are we right in understanding that a quarter   so I'm just rounding the numbers up a little bit here, but a quarter are people who live with intellectual disability. 

MS OSBORNE: Yes, that's correct. 

MS EASTMAN: About a fifth are people who live with schizophrenia? 

MS OSBORNE: Yes. 

MS EASTMAN: And 15 percent are people who live with dementia. 

MS OSBORNE: Yes. 

MS EASTMAN: And then there is a sort of smaller cohort. But you have also got about 23 percent, people who live with other specific physical and cognitive disabilities. So, what   can you explain that cohort? 

MS OSBORNE: So, that could be made up with a range of different disabilities and also the disability that is recorded here would be the main disability for the represented person, but in a lot of cases, the people we represent have multiple disabilities. So, really, it's capturing the main disability here. 

MS EASTMAN: Now, the numbers you have given us also indicate that 7 per cent of people who have a guardianship order have no disability recorded. How can that be possible? 

MS OSBORNE: That's possible through we may not have been given any clear diagnosis information from when we received that information about the represented person. 

MS EASTMAN: Can I ask you to slow down a little bit. 

MS OSBORNE: Sorry. We may not have received the information about the person. There may be an unclear diagnosis. There may be information still coming or reviews still happening to determine what that disability is. 

MS EASTMAN: Right. We asked you about the breakdown age between people over 65 and under 65. So, it's about 65 percent of represented people are under the age of 65, and the balance over 65. In terms of the group under 65, are you able to give us any indication if there's a particular age group or category that are sort of disproportionately high in the under 65s? 

MS OSBORNE: It would mostly be sort of in that 50 to 60 age group, basically, where people are starting to see deteriorations in health, particularly with a disability. That seems to be the area that is most prominent. 

MS EASTMAN: We asked you about the percentage of First Nations represented people. And it's 8.8 per cent. Now, if I take Ms Simpson's evidence as an indication, you would agree with me that that's disproportionately high compared to the general population of First Nations people in NSW. 

MS OSBORNE: It is, yes. 

MS EASTMAN: Why is that the case? 

MS OSBORNE: I think colleagues around Australia have outlined some of those reasons, but I would also add from the New South Wales perspective is we also tend to see the First Nations people that they have a high representation - 

MS EASTMAN: Just slow down a bit. 

MS OSBORNE: Sorry, a high representation in other sectors such as criminal justice systems, mental health systems, and other systems that tend to have them highlighted for need for guardian and then an application flowing out of those. 

MS EASTMAN: Has there been any reference or evaluation of the way the guardianship processes operate for First Nations people that might explain, in addition to what you've said, this disproportionately high number of First Nations people? 

MS OSBORNE: Not that I'm aware. 

MS EASTMAN: Now, I think you know what my next question is going to be, and the answer is going to be no; is that right? 

MS OSBORNE: That's correct. 

MS EASTMAN: That there is no Aboriginal Liaison Officers employed by the Public Guardian? 

MS OSBORNE: There isn't any employed, no. 

MS EASTMAN: Have there ever been? 

MS OSBORNE: Not that I'm aware of. 

MS EASTMAN: Are there any First Nations staff members? 

MS OSBORNE: Yes, we have both First Nations people who identify and Torres Strait Islander staff members who identify. 

MS EASTMAN: And are those people serving as a role of guardian under your delegated authority? 

MS OSBORNE: Yes, they are. 

MS EASTMAN: So we also asked you about the number of people who identify from culturally and linguistically diverse backgrounds. And are you able to have   to give any sort of indication of what those numbers might be? Paragraph 33, I think you deal with some of this. 

MS OSBORNE: So, the breakdown we have provided gives a   I have given two breakdowns at paragraph 32 and 33. The first one is their primary language spoken, and then 33 is their country of birth, if we have that information. 

MS EASTMAN: Are we right in understanding that if we are looking at a working definition of culturally and linguistically diverse people for the Public Guardian, that essentially you work on primary language or country of birth. 

MS OSBORNE: Yes, we take both into account. 

MS EASTMAN: But you don't take a broader view as to what might be a person identifying from a CaLD community? 

MS OSBORNE: No. 

MS EASTMAN: Alright. Now, we also asked you about the number of participants who are also   sorry a number of persons who are NDIS participants, and you have said at paragraph 34 that there are 2,009. And that's about 54 per cent. So, I wanted to ask you   and you might have heard me ask Dr Pearce this morning   have you in the New South Wales Guardian noticed any trends or any issues with respect to the number of NDIS participants and the relationship to guardianship orders? 

MS OSBORNE: It's definitely been a driver for guardianship orders since the inception of the NDIS, particularly in the areas of a person needing a guardian appointed for what would call services decisions, and what I mean by that is where somebody needs a person to consent to the service providers that they might engage under their NDIS plan or it also might mean in relation to where we make an accommodation decision, so that somebody can go into supported independent living. 

MS EASTMAN: And are there any formal relationships between the New South Wales Guardian and the NDIA? 

MS OSBORNE: We have regular meetings and we have attempted to engage for an information sharing agreement directly with the agency but haven't had any success with that at the moment. 

MS EASTMAN: Right. Can I ask you to look at paragraph 146 of your statement? And, in this part, we have asked you about the correlation between guardianship orders being made and the NDIS. So, you have identified there that the NDIS is the largest   single largest sector reform in the way services are provided to people with disability. And then if you go down to paragraph 148, you say that: 

"The data indicates a 367 per cent increase in the number of guardianship applications between 2018 and 2022 indicating the NDIS as a primary reason for the application.” 

MS OSBORNE: Yes, that's correct. 

MS EASTMAN: That is a significant number, is it not? 

MS OSBORNE: It is staggering. 

MS EASTMAN: We have had a look at some of the early decisions of NCAT around 2016, and some of those decisions indicate that the need for an advocate to navigate the NDIS was itself a reason to appoint a guardian. I'm not asking you to know what those decisions are, so just assume that we have had a close look at some of the decisions in 2016. In your experience, do you think that that assumption in NCAT with respect to decisions to appoint a Public Guardian still continue to act on the assumption that you need a guardian to engage in the NDIS? Is that something you have come across? 

MS OSBORNE: I think it is still very much a theme and it   it goes to the part of in New South Wales, is there a need for a guardian, which is key to the Guardianship Act. And I can see how that conclusion may be drawn. Because it is a difficult sector or scheme to navigate for anybody, let alone somebody who may not have support or who has a cognitive disability and may not be able to understand what decisions need to happen, the information that they should ask for and what that they may be entitled to as well. 

MS EASTMAN: Accepting that the NDIS has at its heart the concept of choice and control, developing independence, do you not see an absolute contradiction on one hand to meet the objectives of the NDIS but on the other hand the assumptions being made by Tribunals that are authorised to make guardianship or financial management orders, that you need to have a guardian in order to navigate this system. Do you see a contradiction in that? 

MS OSBORNE: I do, and I also see how that then plays out, that we end up with guardianship orders that go on for much longer than they should when   Dr Pearce again talked about it this morning   that a guardianship order should be the least restrictive and for the shortest amount of time. That cannot happen when somebody needs to keep consenting to services for someone through the NDIS. 

MS EASTMAN: And is it essentially about signing legal documents in terms of service agreements or is it something else? 

MS OSBORNE: It is about service agreements, but it is also about navigating what might be available to somebody and how they find an accommodation provider, how do they find a service provider for a day program? These are not things that are just easily available to people for them to be able to navigate on their own without significant support. And I   from the observations I make of my guardians, significant advocacy goes into supporting people to navigate the NDIS, ensure they have appropriate funding for the services and accommodation that they need. 

MS EASTMAN: Are the drivers for this very significant increase coming from service providers? Or are they coming from people with disability or families or advocates more generally? What can you tell us about that? And I accept you're not in the shoes of NCAT to be able to do this, but given that you may be the end result in terms an appointment, who is driving this? 

MS OSBORNE: I think it comes back to the requirements of particular sectors, and so NDIS is not alone. Aged care has the same issues where there is a requirement for someone to consent to a service agreement or an aged care placement. Somebody has to consent, otherwise they are not going to be accepted into those systems. So, you can see where the person is already at a disadvantage because somebody requires them to sign or consent to something. 

MS EASTMAN: And if someone is going to be a life long participant in the NDIS   and assume they start their NDIS journey as a teenager, for example   is there not a risk that their whole life will be one where a guardian walks with them, makes decisions for them and, at the same time, they are in a system designed to give them choice and control? Is that the likely   

MS OSBORNE: Unfortunately yes unless there can be the informal supports built around that person so that they don't need a formal substitute decision maker to be doing those decisions for them so that that person can either be supported to make the decision themselves or we can have families, friends, other people who know the person better step in and help. 

MS EASTMAN: Do you think there needs to be some reform   and if this is outside what you can say, please let me know. But do you think there needs to be some reform that with respect to the NDIS and navigating the NDIS as a reason for a guardianship order to be made to be revisited? 

MS OSBORNE: Yes. And an example would be service agreements. Again, NDIA will say service agreements are not of their volition, not their doing, and it doesn't matter whether they are signed or not. However, the reality for the person who is a participant is that the provider wants somebody to consent to that and sign it. So, you can see where there's a disconnect and how it might be driving guardianship orders unnecessarily. 

MS EASTMAN: And what would be an alternative model to achieve that reform, if that reform is necessary? 

MS OSBORNE: I think it's been what a lot of people have talked about this week, which is around what are the supports, what are the reasonable adjustments that we can be giving people so that they don't have to find themselves under a guardianship order, so that they can exercise their own autonomy, their own choice, and their own control properly through a scheme like NDIS. 

MS EASTMAN: I want to ask you now about when orders are revoked. So, you have got the power under the Guardianship Act to apply to the Tribunal for the revocation or review of an order. Is that right? 

MS OSBORNE: That's correct. 

MS EASTMAN: Are we right in understanding that there's not a fixed time by which a review has to be undertaken? 

MS OSBORNE: So guardianship orders are set with a statutory review. 

MS EASTMAN: So what's a statutory review? 

MS OSBORNE: So, a statutory review means a time limitation. So, an order may be made, for example, for 12 months, and before that 12 months is up, it goes back to NCAT for a review. 

MS EASTMAN: So, we heard this morning be   and I'm not asking you to comment on Austyn's case at all, but having found out on the day or the day after orders were made, on that very day she made an application for review. There’s no restriction on making an application immediately, is there? 

MS OSBORNE: No, there's not. 

MS EASTMAN: And if NCAT makes an order imposing a guardianship arrangement, NCAT might say, "This order needs to be reviewed in 12 months or six months" or sometimes in two years. Are there any occasions where the order is in place indefinitely? 

MS OSBORNE: Not that I'm aware of. The guardianship orders in New South Wales are time limited. 

MS EASTMAN: And is there any part of your functions to inform yourself as to whether or not a review might be necessary prior to the expiration of the order? Is that something that you undertake? 

MS OSBORNE: Yes. So, we definitely can take the guardianship order back to the Tribunal for a review before the statutory review period, and we do that where we think that either the person is no longer in need of a guardian or the functions that we have been appointed with, there may be a function that we are not making decisions or we think the person can make decisions in that part of their life. So, we would be asking for a revocation of the order or a variation of the order. 

MS EASTMAN: To do that, does that require your office to make an assessment of somebody's capacity in relation to decision making? 

MS OSBORNE: No, not to make an assessment of capacity. What we would take into account, though, is, again, what is the person able to do with reasonable adjustment, support, who else is around them supporting them that might help them make those decisions for themselves. 

MS EASTMAN: And we asked you about what the barriers might be preventing people under guardianship orders to have the orders revoked. And you've set this out at paragraph 142 and following. I want to just ask you about these barriers and your views about how some of these barriers might be overcome. You have said in paragraph 143: 

"The key barrier preventing the revocation of an order is the ongoing need for decisions to be made in the foreseeable future and the determination that the represented person does not have capacity for making those decisions.” 

So as you have identified: 

"This might be with respect to ongoing restrictive practices, major medical treatment, regular changes of accommodation and things of that like.” 

In those circumstances, that is an impenetrable barrier, isn't it? 

MS OSBORNE: It is. 

MS EASTMAN: And it sounds that, in terms of people who might meet that description, that their life may be one where a guardian is part of their life forever. Is that right? 

MS OSBORNE: That's correct. 

MS EASTMAN: Are there any alternatives that you think may be open for people who may need ongoing substitute decision making for whole of their life? 

MS OSBORNE: I definitely think that the consideration should be given to are there being enough supports and adjustments given to that person for them to be able to make the decision for themselves, so   

MS EASTMAN: Can I just jump in there, before we go   

MS OSBORNE: Yes.

MS EASTMAN: Who is making the adjustments and who is providing the support? 

MS OSBORNE: And that's exactly probably what a lot of people have been alluding to this week, is that available to people already? And from what I have seen, there's not enough of it, if it is. So, the informal networks that we talk about, there is definitely a lack of those in the community for people to be able to lean on. The work that CID is doing is fantastic but, again, there is only limited resources from CID and other organisations like them. 

So, I think it's around how do we build, I guess, a normalisation of being able to adjust for people where they require it and then how do you provide information in this a way that they can understand it and make their own informed decision. Or how can they be supported to make the decision or have someone who knows them, a family member, a friend, or somebody else that they are comfortable with, rather than this formal substitute arrangement. 

MS EASTMAN: To overcome this key barrier for this cohort, does it require law reform, or does it require a change in practices at a very sort of grassroots level, be it within families or be it with service providers, or just the way in which we design what we do, where we go and how people live their lives? 

MS OSBORNE: I think it is layered. I think, yes, law reform is a pillar, but law reform in itself won't bring about the change that we would all like to see. It also includes how do we ask people with disability what they want and what would it look like. How do we then support those informal supporters I keep talking about, and how do we change community perception? Just because somebody presents with a disability, what we tend to see a lot of the time is people assume that they don't have decision making ability. And they do but what are we doing about adjusting ourselves and our attitudes and expectation to allow them to be able to do that and have their autonomy. 

MS EASTMAN: Alright. The second barrier is: 

"...the continuation of family conflict in a matter with both sides unable to reach consensus on decision making for the represented person." 

So, in those situations of family conflict, the way in which the conflict is managed is to have a Public Guardian in. To what extent are you aware of supports for families in conflict around alternative dispute resolution, mediation, other sort of conciliation, some processes that take you away from the formal structures around NCAT? And I accept that for guardianship matters, there seems to be an informality, in some senses, for NCAT, but we have equally heard this morning from Austyn that it's quite an intimidating process. So, what in New South Wales   what is there in New South Wales that supports people in terms of alternative dispute resolutions and assisting families to resolve conflict? 

MS OSBORNE: So, there obviously are mediation services available to people. But I think when you come to having a guardian appointed and going through the Tribunal process and the application process, the crisis is already here and now. And so it's really about the ability to be able to have some work done with the family prior to that crisis happening and getting to a point where there is such ingrained conflict. So, what   I think it's actually a gap at the moment in around what is available to families. Particularly people with lived experience this week have talked a lot about in the education system and in their younger years being able to support them to build their decision making ability, rather than waiting until they become an adult and then we are lumped with all of these choices that need to be made and what are we going to do about it? So being able to bring that support in at an early part of their life. 

MS EASTMAN: In that situation of conflict and the Public Guardian is appointed, is it often the case that the dispute that may exist within families also starts to focus on the role of the Public Guardian? And do you have any role in navigating, supporting and resolving these family conflicts? 

MS OSBORNE: So, to the first part of your question, yes. Obviously   and I can understand from a family's point of view, it's a very emotional time, it's a very difficult time, and so we can be the focus of that. However, we don't have a role in being able to conciliate and fix family conflict. What our focus is for the person we have been represented for. What are the decisions they might need, what are the supports that they might need, and then how do we make those decisions, taking into account what they want, and then how do we give effect to that? 

MS EASTMAN: So, it sounds for the person about whom the orders are made, where decision making is taken away from them, that that's the price they have to pay because of family conflict. Is that right? 

MS OSBORNE: Yes, in some cases, yes. 

MS EASTMAN: The third barrier is when a represented person is vulnerable to undue influence from others, which places them at ongoing risk of neglect, abuse, and exploitation. And I've just asked Ms Simpson some questions about the work that the New South Wales Trustee does, and she's told us there's been some training and that the Trustees are looking at identifying risk. In this barrier, do you and your guardians have a role in being able to identify ongoing risk of neglect or abuse or exploitation for a person who is subject to orders? 

MS OSBORNE: Yes, we do. 

MS EASTMAN: And to what extent, if you identify that risk, are you able to respond to that risk, which in turn might reduce the barrier to ongoing guardianship arrangement being in place? 

MS OSBORNE: There's a couple of different paths that we might take, depending on the risk and depending on what it is that we find. But a good starting point is the guardian going out and visiting the person and having a look at what is actually happening for them. Being able to talk to them by themselves and understand what they think the risk might be or are they worried about anything. We have also got an MOU with the Ageing and Disability commission where we can make referrals to them where we have got a concern, and we obviously don't have the investigation power that they do. 

We also have quite detailed practice guides around formulating an action plan if we think there's a concern and how we might gather more information and what steps we then may take to try and reduce the risk and hopefully eliminate it. And, of course, we would also engage things like New South Wales police, if it was appropriate to do a welfare check, or New South Wales Ambulance, if that's also appropriate. 

MS EASTMAN: I asked Ms Simpson earlier whether or not the New South Wales Trustee provides information to people about the process of financial management orders being made, and she indicated in response to her statement that it's not their function. Is this a function for the Public Guardian to provide information? 

MS OSBORNE: It is a function. It's a function under the Guardianship Act that the Public Guardian provides information and referrals for people who have been appointed privately as a guardian or an enduring guardian or any member of the public who would like to know about guardianship or alternatives to guardianship. 

MS EASTMAN: And you saw Austyn give her evidence earlier today, and she has indicated that she was able to use the internet to find information or to ring NCAT. I will not ask you to comment on her particular circumstances, but she found that information very difficult. And I think her evidence was it might be fine if you're a solicitor to understand that, but she needed assistance. And she's somebody who has got some health training as well. 

Have the resources that are available been designed with people who have no legal training, no understanding of these guardianship systems, may have never heard of NCAT or been to these Tribunals   do you think the information is pitched at a level to enable ordinary people to understand what's going on and what to do? 

MS OSBORNE: I can talk about the information my office provides. So, we have a Stakeholder Engagement team and within that we have what we call the Guardian Support Unit. That's a dedicated team who are available during the week for anybody to call and ask questions about guardianship, application processes or anything to do in that space, as well as supported decision making and alternatives to guardianship. They have taken nearly 6,000 inquiries last financial year, and we are also very proactive in the information we then share with private and enduring guardians as well, as well as medical professional, etcetera. 

The information that we do have, though, that we make available, we have done that in conjunction with private and enduring guardians so that we can ensure that the information is fit for purpose for people to understand who aren't inside the system all of the time and know how to navigate it. Because it is incredibly hard to navigate. 

MS EASTMAN: You heard perhaps Ms O'Neill earlier today talk about the New South Wales Capacity Toolkit. 

MS OSBORNE: Yes.

MS EASTMAN: I think she indicated that it was probably a good document for its time, but it may be a bit dated. Have you got a view on whether the New South Wales Capacity Toolkit could be updated at all and, if so, what would be the nature of the updates required? 

MS OSBORNE: I think it needs a significant update   actually needs nearly a restart, including making sure that people with disability are included in the making of that resource, as well as making sure it's pitched at the right people as well. It's not just for people with lived experience. It's also family members, medical professionals, people in the community. It should be document that can be used widely for people to understand how do you support people. 

MS EASTMAN: Right. And I know you have provided a lot of information in your statement, and the Commissioners may have some questions. So, my last question to you   it's probably a big one, though is - your statutory function is to apply a best interests approach. 

MS OSBORNE: Correct. 

MS EASTMAN: So, you have to meet the obligations under the law. To what extent, in applying a best interests approach, is there any opportunity for the New South Wales Public Guardian to apply supported decision making principles? And you have heard CID talk about that this morning, but it's been an issue the Commissioners have considered during the course of the week. Are they either end of the spectrum and there is nothing in between? If you do have the capacity to work with supported decision making in that best interests model, how does that work in practice? And   as I said, big questions here   does there need to be reform in New South Wales to have better clarity? 

MS OSBORNE: It is a hard one to navigate when we have a substitute decision-making and best interests legislation. However, in practice, what that looks like for our guardians is that the time is taken to understand and seek the view of the person we represent   so what is their will and preference, what do they want to happen   then take into account other people who might be important in their life as well. 

But the focus is on what the person wants, who is able to tell us that, and we may at times have to rely on previous views, if that person can no longer give us a view. And then, where we can, trying to make a decision that lines up with that person's will and preference. The only time that we wouldn't make it in line with that will and preference is where there might be risk that we can't mitigate to an extent that then would put them at risk. 

MS EASTMAN: Commissioners, I am conscious of the time, and Ms Osborne has provided a very detailed statement. It may be, Commissioners, that you have got some questions of Ms Osborne on topics that I haven't had the opportunity to cover this afternoon. 

CHAIR: Alright. Thank you very much. Ms Osborne, I will ask, first, Commissioner Ryan if he has any questions to put to you. 

COMMISSIONER RYAN: Mr Chair, you will be thrilled to know that I don’t, but I thank you for coming and giving us this evidence. 

CHAIR: You have made my day, Commissioner Ryan. Commissioner McEwin. 

COMMISSIONER McEWIN: Well, maybe I won't be making your day, but I have two questions, Chair. Yes, just two questions, which I hope are brief. Thank you, Ms Osborne, for your information, including for the previous hearing that Ms Eastman referred to. My first question is about the people you represent who are on NDIS plans, how many of them are self managed? 

MS OSBORNE: I would have to take that on notice. I don't have that to hand. 

COMMISSIONER McEWIN: Thank you. And my second and final question is, when you were talking about asking people what they need in terms of support, what about people who don't know what to ask for or people who have been isolated or people who have had no interaction whatsoever with systems and have developed knowledge? So, just like that phrase if you don't know, you don't know what to ask for. 

MS OSBORNE: So, I think a good example of that would be when we become somebody's guardian and the person is accessing an NDIS plan. The guardian would go along to the planning meeting and be there to help them navigate, but also advocate for things that they may not be aware that they could ask for funding in their plan. And you're right, sometimes it does take some time for our guardians to get to know the people we represent to be able to understand what it is that they might need or could ask for. So, it does take quite some time to build up that rapport with the person. 

COMMISSIONER McEWIN: And, broadly, what percentage of your   the people that you represent would be in that cohort that you've just described? 

MS OSBORNE: Again, I would have to take that on notice, I'm sorry. 

COMMISSIONER McEWIN: Thank you very much. Thank you, Chair. 

CHAIR: Thank you. We have heard a lot about the relationship between guardianship orders, financial management orders and the NDIS. And following on from what Commissioner McEwin has asked, if we are talking about somebody   a person, perhaps, with intellectual disability who finds it very difficult, understandably, to navigate the application process, to get on to the NDIS and to determine what the contents of a plan should be and how it works, the use of a guardian to assist in this process would seem to be a sledgehammer to crack a nut. 

Surely the answer to that aspect of the NDIS is more advocacy, the availability of an advocate. Whether you call it supported decision making or advocacy doesn't matter very much. Why do we need the intervention   I'm not being critical of people who are acting as guardians through the statutory office, but why do we need the intervention of a guardianship order in order to enable that process to work to the maximum advantage of people with disability who otherwise would find it very difficult to work out how to get their entitlement under the NDIS? Am I on the right track with this? 

MS OSBORNE: I think you have hit the nail on the head. You know, is it other alternatives that are short term to support the person, the use of advocates or other people who can support someone through the process and know how to navigate it rather than having someone's basic human rights taken away by having a substitute decision maker appointed to be able to access something that they are entitled to. 

CHAIR: It just seems entirely unnecessary to go through an elaborate process that has historical origins   I understand where it comes from and why it's there. But it does look to be, if I can use yet another metaphor, square pegs in round holes. Now, the other aspect of NDIS, and there's more than one, is apparently the insistence on service providers of having what amount to contracts signed. It's not the existence of a piece of paper with a signature. 

It's that, I assume, the service providers want some kind of assurance that they themselves are entitled to be paid for the services they provide and so on. Again, it seems like an inappropriate use of a guardianship proceeding to ensure that service providers receive the comfort that they feel they are entitled to. It really would be much easier to change some of the rules within the NDIS in order to ensure that service providers can get the comfort they want without the need for some kind of assumed capacity to enter into a formal contract being at the heart of it. It just seems to be another inappropriate way of dealing with the problem. Again, am I on the right track with that one? 

MS OSBORNE: Commissioner Sackville, yes. In New South Wales, the Public Guardian does not sign service agreements because they contain requirements that sit outside of the role of the guardian. So, we are unable to sign them. What we can do is consent to the components that we have got functions for. And the second part I would say to that is, I have asked the NDIA on several occasions to work with them around what does service agreements mean for people who are accessing the scheme, how can they be more accessible to them and what is the onus on service providers to explain the service agreements to the person. 

CHAIR: Yes. Alright. The last thing I wanted to put was what do you see as the rationale for the distinction between guardianship orders and financial management orders? Why do we have two separate statutory regimes dealing with these matters when, on one view, financial management orders are just a subset of guardianship? 

MS OSBORNE: Speaking from a New South Wales perspective, the reason that the roles are separate is so that there isn't one agency or person who has complete decision making authority over the entirety of a person's life. What I do as the Public Guardian is completely separate to the New South Wales Trustee. And we make decisions, as we keep saying, for the person to represent, not to appease the New South Wales Trustee or another party. 

CHAIR: I understand they are separate, but why? 

MS OSBORNE: To keep the separation of authority for decision making. Making sure that that person doesn't have the same entity making all decisions in their life. I think there is a friction and a tension between having an agency who makes financial decisions and also lifestyle decisions, so which one wins out? If there's an accommodation that the person really wants to live in but it’s going to cost more, which one is going to win out? The financial aspect or what the person wants? 

CHAIR: So, if there's a guardianship order plus a financial management order, then the person subject these orders has two separate agencies within the one statutory body to make the relevant decisions. 

MS OSBORNE: Yes, that's correct. 

CHAIR: Alright. Thank you very much for your evidence again, and your assistance to the Commission. Once again, we appreciate the advice and information you have provided to us. It is, as always, very helpful. Thank you very much. 

MS EASTMAN: Thank you, Ms Osborne. That concludes Ms Osborne's evidence. Chair, if I could just tender all of the New South Wales material in one block. If you could receive into evidence the three statements and a range of accompanying material, together with some responses that the Royal Commission has received from the New South Wales Civil and Administrative Tribunal, and mark those documents starting with Exhibit 30.121 through to 30.174. 

CHAIR: Yes. The documents to which Ms Eastman has referred will be admitted into evidence and given the markings that she has identified. 

<EXHIBITS 30.121 TO 30.174 NEW SOUTH WALES MATERIAL AS PER THE SCHEDULE

CHAIR: Thank you. Does that mean we adjourn until 10 am tomorrow?

MS EASTMAN: That concludes the evidence today to adjourn until 10. And tomorrow will be a shorter day. We have three witnesses. We have a witness appearing for the Older Person's Advocacy Network, and then we have two witnesses appearing for the NDIA. So, tomorrow will be a shorter day for a range of reasons, including some issues related to the activities here at Homebush. So, I hope that we should be able to finish before lunch tomorrow, all being well. 

CHAIR: Right. I understand that 6,000 students are going to descend on to Homebush in order to perform. Is that what's happening?

MS EASTMAN: As we understand, it that may be the case. 

COMMISSIONER RYAN: It's magic, Mr  Chair. 

CHAIR: Well, Commissioner Ryan, you won't have very far to go to join in the festivities. Alright. We will adjourn until 10 o'clock tomorrow. 

MS EASTMAN: Thank you. 

<THE WITNESS WITHDREW

<ADJOURNED AT 4:36 PM UNTIL FRIDAY, 25 NOVEMBER 2022 AT 10 AM