Public hearing 13: Disability services (a Case Study), Virtual - Day 6
CHAIR: Good morning, everybody. Again, I would like to welcome everyone to this one day hearing which follows Public Hearing 13 of the Royal Commission. Public Hearing 13 was held over five days from 24 to 28 May 2021 at Homebush in Sydney. The principal purpose of that hearing was to examine the experiences of people with disability who are NDIS participants and who live in a disability residential setting managed by a service provider, in this case Sunnyfield Disability Services.
The principal purpose of today's hearing is to hear oral submissions from Counsel Assisting the Royal Commission and from parties who were given leave to appear at Public Hearing 13. We commence with an acknowledgment of country.
We wish to acknowledge the Gadigal people of the Eora Nation, the traditional custodians of the land upon which Commissioner McEwin and I are sitting, and pay respects to their Elders, past, present and emerging. We also acknowledge the Wurundjeri people of the Kulin lands upon which Commissioner Galbally is participating in this hearing. We pay respects to their Elders past, present and emerging. We also pay our respects to all First Nations people who are following this hearing on the livestream or otherwise.
Let me deal with the conduct of this hearing. Public Hearing 13, which I've already referred to, was the first hearing to be public in the fullest sense of the word since we held Public Hearing 4 which also took place at Homebush in February 2020. Public Hearing 13 was therefore the first hearing of the Royal Commission in over 15 months which members of the public could attend in person and, for that matter, witnesses attend in person.
I expressed the hope in my opening statement for Public Hearing 13 that all future hearings of the Royal Commission, leading up to presentation of the final report, which is now due in September 2023, two years away, would also be open to members of the public. I recognised that whether this proved to be true would depend, obviously enough, upon the success of the Australian community in preventing further outbreaks of COVID 19.
Regrettably, the advent of the Delta strain of the virus has dashed our hopes of conducting public hearings in person as opposed to conducting them remotely with the assistance of technology. It now appears that the remaining hearings of the Royal Commission in 2021 will have to be held remotely.
At today's hearing, I am joined by Commissioner Alistair McEwin AM, who is in Sydney but in a separate room. Commissioner Rhonda Galbally AC is in Melbourne, so once again she will be participating in this hearing remotely from her home. Counsel Assisting the Royal Commission, Ms Kate Eastman SC, is appearing in the same room as I am but at an appropriate distance. Ms Elizabeth Bennett of Counsel is appearing with Ms Eastman but Ms Bennett appears from Melbourne.
I shall take the appearances of other parties represented here today in a short while.
Public Hearing 13 marked a new phase in the work of the Royal Commission in that it was a forensic analysis of case studies involving allegations of violence, abuse, neglect or exploitation, experienced by people with disability in the setting of a group home. A similar, although not identical forensic analysis took place at public hearing 14 which was held in Adelaide from 7 to 11 June 2021. Among other issues, that hearing examined responses to the tragic death of Ms Annemarie Smith.
It is important to understand that the Royal Commission is required by law to provide procedural fairness to any party against whom an adverse finding may be made. That requirement, of course, applies to all hearings held by the Royal Commission but it is of particular significance for hearings which examine the conduct or practices of particular organisations and institutions such as Sunnyfield and the NSW Ombudsman, which may lead to adverse findings against those organisations and institutions.
At the conclusion of Public Hearing 13, I made directions that Counsel Assisting should file written submissions and that the parties who were given leave to appear at the hearing should have the opportunity to reply to those submissions in writing. Counsel Assisting has provided extensive written submissions which contend, among other things, that certain adverse findings should be made against Sunnyfield and the NSW Ombudsman. Both Sunnyfield and the NSW Ombudsman have filed written submissions in reply, arguing that the adverse findings should not be made. The Australian Government and Eliza, Melissa's sister, also filed written submissions. All submissions with some names redacted are available on the Royal Commission's website.
Today is the opportunity for all parties who wish to do so to make oral submissions in support of their written submissions.
Let me make a final point about the Royal Commission's program. So far as I am aware, no Royal Commission or similar inquiry has had to deal with challenges of the kind presented by COVID 19 and the lockdowns associated with it. Those lockdowns have continued, with various degrees of stringency, for a period of over 18 months and are likely to continue for another few months. The difficulties posed by the lockdowns are illustrated by Public Hearing 16 which was scheduled to begin in Alice Springs next Friday. An immense amount of work has gone into planning that hearing on the basis that First Nations witnesses with disability could appear in person in Alice Springs and receive the appropriate support for the purposes of giving evidence.
Public Hearing 16 will proceed as scheduled but it now has to be held remotely. This has presented another series of challenges with First Nations witnesses having to give evidence from various places in the Northern Territory and elsewhere, and the same applies to other witnesses scheduled to appear at the hearing.
Other hearings that we had planned for 2021, the balance of this year, have had to be
reorganised and in one case postponed because of the logistical difficulties created by the lockdowns. Those difficulties include making personal contact with and providing support to potential witnesses, especially, of course, witnesses with disability.
I want to commend the staff of the Royal Commission and all Counsel Assisting for their outstanding efforts in confronting and meeting these formidable and unprecedented challenges that the Royal Commission has experienced. This applies not only to our public hearings, important as they are, but to our research program, our engagement activities, our private sessions. We have held now 564. The processing of submissions, we have nearly 3,000 submissions. Responses to issues papers, we've had over 660 of those, and the numerous other activities that the Royal Commission conducts.
The Commissioners are deeply grateful and I am sure that people with disability and disability representative organisations are also grateful for the dedication, hard work and skills that have allowed the Royal Commission to continue our work during these exceptionally difficult times. I shall now take appearances.
MS EASTMAN: Thank you, Chair, and good morning Commissioners. I appear with Ms Elizabeth Bennett who is appearing remotely from Melbourne.
CHAIR: Thank you, Ms Eastman. Can I take other appearances starting with the Commonwealth of Australia.
MR DIGHTON: Thank you, Chair. My name is Dighton, I am appearing for the Commonwealth, instructed by Gilbert + Tobin.
CHAIR: Thank you very much. Can we move, please, to NSW.
MS FURNESS: My name is Gail Furness, I'm appearing with Trent Glover, instructed by the Crown Solicitors Office for the Ombudsman and State of NSW.
CHAIR: Thank you, Ms Furness. Mr Duggan.
MR DUGGAN: Commissioner, hopefully you can see and hear me. Duggan for Sunnyfield.
CHAIR: Thank you. Mr O'Brien, I think, for Eliza.
MR O'BRIEN: Morning, Chair. O'Brien, I appear for Eliza today.
CHAIR: Thank you very much. I take it there are no other appearances, so if not, Ms Eastman, I invite you to make your opening.
SUBMISSIONS BY MS EASTMAN
MS EASTMAN: Thank you, Chair. We also acknowledge and pay our respects to the traditional custodians of the lands on which we meet today, and we acknowledge and pay our respects to their Elders past, present and emerging, as well as to all First Nations people following the public hearing today.
Chair, as you have said, the Royal Commission held a public hearing in person in Homebush from 24 to 28 May this year. The hearing was the first of several Royal Commission hearings examining how disability service providers prevent and respond to violence, abuse, neglect and exploitation.
The public hearing, which I will prefer to as Public Hearing 13, was a case study. It focused on a short period of time, from early 2017 to 2019, and its specific focus was on the experiences of Melissa, Carl and Chen, who were residents of a house in Western Sydney. The house is operated by a non government service provider, Sunnyfield Disability Services. At the hearing, you heard from six witnesses and you also received extensive documentation.
The evidence in the case not only looked at the circumstances of the residents but also highlighted broader systemic issues.
Chair, as you've said, following Public Hearing 13, we prepared written submissions for Counsel Assisting submissions and the purpose of these submissions was to address the evidence and propose findings and recommendations that may be open to the Commissioners to make.
Representatives of the participants at the hearing were also provided with written submissions in response to our proposed findings and recommendations.
Chair, as you've noted, all of the written submissions are available to the public on the Royal Commission's website.
The purpose of today's hearing will be to cover the issues raised in the submissions, to answer the Commissioners' questions, if they have any, but there will be no witnesses today and today's hearing is concerned with making submissions.
Before I turn to that task, may I outline how we will proceed today. It's proposed that I will make the Counsel Assisting submissions, and following those submissions we'll then have a break of 20 minutes for morning tea. After morning tea, Mr O'Brien will present submissions on behalf of Eliza. Following Mr O'Brien's submissions, Ms Furness and Mr Glover will present submissions for the NSW Ombudsman and New South Wales. Commissioners, you may have questions of Mr O'Brien and Ms Furness and there will be an opportunity for the Commissioners to ask questions.
Following Ms Furness's submissions and any questions, we will then have a
one hour break for lunch and following lunch, Mr Duggan will present Mr Sunnyfield's submissions and also respond to any questions the Commissioners may have. We then thought it may be appropriate to have a short break. The Commonwealth has provided written submissions and indicated that it doesn't wish to speak to the submissions but is prepared to answer any questions from the Commissioners. If there's any outstanding administrative matters or matters that I need to respond to, I will do that, and then the Chair will close proceedings for today.
Can I start by speaking about the role of Counsel Assisting's submissions in a hearing of this kind. One of the tasks of Counsel Assisting is to adduce evidence. The purpose of adducing evidence in a Royal Commission is to identify and elicit material to the fullest and fairest manner in relation to the subject matter of the inquiry, in this case the broad Terms of Reference but also the particular matters identified by the case study.
There is a duty on Counsel Assisting in this regard, and we are responsible for establishing the truth or the facts concerning a particular matter, and we have a responsibility that may include eliciting evidence that either tends to support or contradict a matter or issue of importance. But ultimately, it is not for Counsel Assisting to make findings. That is a job for the Commissioners and it is for the Commissioners to make the necessary factual findings.
The Commissioners are assisted in making those factual findings by having the opportunity to hear from all parties, obviously in addition to Counsel Assisting, to ensure that the Commissioners may be fully informed of relevant issues concerning the evidence, but also what the Commissioners should make of that evidence and what findings might be appropriate.
Now, there's a wide range of findings that could be made and many are uncontroversial, or there's broad agreement. But Counsel Assisting has a particular obligation, at the conclusion of the evidence, and by way of providing closing submissions, to identify matters that might be described as adverse findings. Adverse findings might be those critical to a person or an organisation. It's our job as Counsel Assisting to put people on notice, that is tell them, what adverse findings we may be seeking, to provide such persons with the opportunity to respond to the adverse findings, and in this regard, I wish to ensure that the adverse findings that we have identified in our written submissions are not necessarily the findings that the Commissioners will make, but they are the findings on which the parties will have an opportunity to be heard today.
Commissioners, we've provided some fairly lengthy written submissions at about 136 pages. We've proposed 25 adverse findings: 23 concern Sunnyfield and one concerns the NSW Ombudsman. The missing finding touches directly on the conduct of SP1.
We've noted in our submissions that there wasn't a significant dispute about the facts in the sense about what happened or when things happened or who might have been
involved. You will see from the written submissions that much of the dispute really is around the perception, either of people's motives, intentions or perceptions about the consequences. I'm not proposing to read through or take you in detail through the 136 pages and I'm aware that the Commissioners have all carefully read all of the written submissions before today's hearing.
What I want to focus on is the key things. The Royal Commission received considerable evidence about the manner in which Sunnyfield operated at the time of the events, that's 2017 to 2019, and the evidence included evidence about its systems, policies and processes to ensure the safety and wellbeing of people with disability residing in the shared independent living homes.
Several themes emerged from the evidence concerning how these systems, policies and processes worked in the context of the events of the home, and we've set out those events in some detail in the written submissions.
Now, in addition to the evidence presented, there was also issues concerning the role of external oversight bodies, and note that New South Wales criticises us for calling the Ombudsman as a regulator, and I can easily clarify that. We've used "regulator" as a shorthand term to what we have described in our written submissions as external oversight bodies, and I trust the Ombudsman would take no offence at being described as an oversight body.
So, Commissioners, we focused on eight themes and they were as follows: first, governance and leadership; secondly, choice and control; thirdly, preventing and responding to violence, abuse, neglect and exploitation; fourthly, complaints and feedback systems; fifth, staff recruitment, supervision, complaints and the culture, particularly the culture at the Western Sydney house. Then we focus on risk management. We've touched briefly on the issue of CCTV, and then we make some final observations on the theme of violence and abuse.
Commissioners, Eliza, through her lawyers, has provided submissions, and Eliza makes submissions which agree with all of the proposed findings of Counsel Assisting but Eliza seeks further additional adverse findings about complaints and feedback, and Mr O'Brien will address those matters, we assume, when he makes his oral submissions.
The Australian Government has also provided written submissions. As we've explained in our written submissions, this particular hearing, Counsel Assisting has not sought any adverse findings about the Australian Government. The Commonwealth has said in its written submissions that as a general matter, Counsel Assisting should not construe the absence of comment or discussion by the Australian Government about any proposed findings that we have identified as either an acceptance or agreement by the Australian Government with those proposed findings. But it does say that it appreciates the opportunity to assist the Royal Commission with any of these inquiries. It may be that Mr Dighton will need to answer some questions from you, Commissioners, about the extent to which what
might be an ambivalence in either acceptance or agreement with the proposed findings means for the Commonwealth.
NSW has made submissions on behalf of the NSW Ombudsman, being a reference at different times to Mr Miller, or such other persons holding that office at relevant times. Also, the submissions deal with issues concerning the Ombudsman's office, and submissions are also made on behalf of the acting Ombudsman and the Deputy Ombudsman. There is one adverse finding sought with respect to the NSW Ombudsman, and that concerns a finding in relation to the disclosure of information to Sunnyfield.
We note that the Ombudsman submissions spend some time on the issue of whether the Ombudsman is compellable to produce documents or give evidence at a Royal Commission hearing. Commissioners, those issues are set out with some debate in the material. Counsel Assisting is not seeking any finding or asking you to make any firm view in relation to the compellability of the NSW Ombudsman to participate in the conduct of Royal Commission hearings or produce documents for the purpose of this hearing. If it becomes necessary at a later point in time, then, Commissioners, you may be assisted by a full hearing or full and detailed submissions addressing that issue.
The bulk of the adverse findings that we have identified in our submissions are directed to Sunnyfield. Sunnyfield, who we'll hear from later today, opposes the making of any adverse findings against it and says, in its submissions, that it is unnecessary to do so.
Sunnyfield has read Counsel Assisting's submissions with a lens of seeing our submissions as litigious or adversarial in nature, as if one is determining fault and liability. As Counsel Assisting, we're disappointed that those representing Sunnyfield have read the submissions in that way. It's quite obvious that if the Royal Commission was determining fault or liability, it would need to do so consistently with the terms of reference, and no doubt a five day hearing would have been incomplete to make the findings of the kind described in Sunnyfield's submissions.
Commissioners, there is an adverse finding in relation to the conduct of SP1. Both SP1 and SP2 did not appear at the hearing although they were put on notice of the hearing. They were also provided with the opportunity to make submissions for this part of the Royal Commission's work, and neither SP1 or SP2 provided any submissions.
So Commissioners, what I would now like to do in the next hour or so, and I hope I will travel comfortably with the time, is to turn to the particular findings that we have identified in our written submissions. I want to take you through each of those findings that we've proposed, identify the response made by Sunnyfield and make some observations about how, Commissioners, you might deal with Sunnyfield's response and, in the case of the Ombudsman, the Ombudsman's response.
In addition to identifying the findings, Commissioners, we also identified, in our written submissions, some recommendations. In that regard, Sunnyfield appears to accept the bulk of the recommendations and I will speak briefly to that at the end of these submissions.
So may I start with the findings. Now if it helps, Commissioners, I think Law in Order, who assist us with the conduct of the hearing and the technology may be able to put up on the screen the proposed finding and that might, in terms, be a little bit of a shorthand in terms of reading the findings.
So first is finding 1. This deals with a factual matter and the proposed finding, Commissioners, which you will see on the screen, is that there was no good reason for Sunnyfield to delay notifying Eliza for at least four months of its intention to evict Melissa, or for Sunnyfield having failed to discuss alternative options with Eliza prior to issuing the eviction notice.
We submit that a finding that is open to you, Commissioners, is that Sunnyfield's delay was deliberate and designed to protect Sunnyfield's interests and reputation over Melissa's wellbeing and best interests.
Sunnyfield has addressed this issue in its submissions at paragraph 74 and following. It rejects the contention that Sunnyfield was seeking some benefit for itself in delaying the termination notice. It says there was no benefit to Sunnyfield. The submissions make a contention that some of our submissions may be inconsistent. We'd also identify that Sunnyfield sought to terminate Melissa's residency because there was a short window of opportunity before the NDIS became operational. Commissioners, it's fair to read our submissions in their full context.
Sunnyfield says that what you should find is that the actual reason for delaying issuing the termination notice was that Sunnyfield was waiting until the Ombudsman had finalised its report into a reportable incident that had been notified in mid December 2017. So it suggests that any delay being deliberate was without foundation.
Commissioners, one may look at the Sunnyfield submissions and see that "deliberate" is intended to be pejorative. We don't think that that finding is appropriate. It's clear that the decision was deliberate, it was deliberate in the sense that Sunnyfield identified that they were waiting for the Ombudsman's report. So clearly there was a sense of deliberateness. The issue might be the reason, and there is dispute in relation to the reason for that.
So, what is not disputed, however, in Sunnyfield’s response, is that Sunnyfield did not discuss alternative options in the month that it delayed in implementing the decision. And when one looks at paragraph 77 of Sunnyfield's submissions, and the factors in favour of terminating Melissa's residency, it is fair to say that those points are not consistent with putting Melissa's interests at the forefront. Indeed, looking at all of those factors, there was no weighting against interest of Sunnyfield or Melissa,
and indeed you can make a finding there was no real consideration of Melissa's interests at all.
The second finding is related to that. The second finding is that Sunnyfield failed to properly consider the impact of its decision to terminate services to Melissa, and the impact that that would have on her and her family.
CHAIR: Can we just bring that up on the screen so people can follow that?
MS EASTMAN: This is number 2.
CHAIR: Yes, thank you.
MS EASTMAN: In its submissions, Commissioner, Sunnyfield says it would never have left Melissa without accommodation and supports, and it says that's evidenced by the fact that Melissa is currently residing with Sunnyfield. However, Sunnyfield accepts that the processes of issuing termination notices certainly could have been handled better, but it submits that none of the adverse findings proposed should be made.
In our respectful submission, Sunnyfield's assertion that it would never have left Melissa without accommodation or supports is entirely inconsistent with the evidence presented to the Royal Commission. Even at the hearing, Ms Cuddihy would not expressly clarify Sunnyfield's position as to whether or not the eviction notice was withdrawn or would be withdrawn. It seems only in the course of the preparation of Sunnyfield's submissions in relation to this matter that it's provided some certainty in terms of the eviction notice and confirmed that it would be withdrawn.
Sunnyfield accepts that the issuing could have been handled better or differently and on that basis alone, it's open to you, Commissioners, to make the findings sought in Counsel Assisting's submissions.
Can I next turn to the findings that concern particular themes and, Commissioners, I identified the eight particular themes earlier.
The first theme is the theme of governance and leadership, and these are addressed in our written submissions at page 60, paragraph 228 and following.
The third finding, if that can come up, was that the absence of a person or persons with disability on the Sunnyfield Board at the time of the public hearing failed to ensure people with disability were appropriately represented and involved in decision making. This posed a risk that the direct and lived experience of people with a disability was not represented on the board.
May I say, Sunnyfield's response to this contention is surprising. Sunnyfield's submissions appear at paragraph 33 through to 36. In summary, Sunnyfield says that
until law reform finds its way into the provisions of the Corporations Act, or other legislation, legal obstacles remain for the appointment of persons with intellectual disability to corporate roles. Without such reform, other obstacles are likely to exist. Sunnyfield does say at paragraph 36, that it is supportive of legislative reform directed towards providing greater representation of people with disability, both within and outside the disability services sector.
With respect to Sunnyfield, it has not engaged with the proposed finding number 3. We have carefully looked at the Corporations Law. There are four references to disability in the Corporations Law. None of them concern the role of directors. Section 1.5.5 of the Corporations Law sets out the qualifications or the requirements of a director. Disability does not disqualify a person from being a director. Disability does not mean just intellectual disability. There are many Australian directors who have disability who are able to perform their duties and the important director's duties competently, effectively, but also to give a perspective of lived and direct experience of people with disability.
The note that we identified in our written submission, and that is "Nothing about us without us", is important. It is not satisfactory, in our respectful submission, that the rights and interests of people with disability are talked about by people without disability. I know Commissioner Galbally has some questions that she wishes to raise in relation to these matters. But Sunnyfield has not addressed the fact that there may be many people with disability who would be excellent directors and could assist on questions of governance.
Commissioners, you should reject the submission that people with disability need to wait until law reform to the Corporations Act or other legislation, will be a means of opening the door to take on leadership roles.
CHAIR: Ms Eastman, the submissions of Sunnyfield appear to be directed primarily to what I take it to be their contention, that a person with intellectual disability is incapable of serving as a director of a corporation, including a non profit corporation with charitable status. Do you accept that?
MS EASTMAN: No, I do not accept that. My submission is that that makes a very high and generalised assumption about people with intellectual disability. It also fails to understand the supports that can be provided to people with intellectual disability in terms of supported decision making.
We were not suggesting that the Board be comprised entirely of people with intellectual disability that receive services from Sunnyfield. That is not the submission and that's not what we put in Counsel Assisting's submission. But people with intellectual disability, sufficiently supported, should not be precluded from consideration for leadership and directors roles. Those are our submissions.
CHAIR: Thank you.
MS EASTMAN: Our fourth finding, which can come up, I think, was that the composition of the Sunnyfield board at the time of the public hearing was weighted towards those with financial or commercial experience rather than people with direct experience of providing support services to people with disability.
At paragraph 38, Sunnyfield says that no such adverse finding should be made and it is entirely appropriate to have qualified and experienced directors on the board of Sunnyfield. In that respect, we agree, it is entirely appropriate for Sunnyfield to have directors on its board who are qualified and experienced.
Sunnyfield's submission says that it is required to its board to manage substantial amounts of money for the benefit of people with disability. Further, its property portfolio is critical to the aspect of service delivery, and if the board did not include appropriate volunteer directors to oversee the financial management of Sunnyfield, it would put at risk the viability of the organisation itself.
At paragraph 44, Sunnyfield submits that it would be unnecessary and unhelpful to make the findings sought with respect to the levels of representation of people with disability within the corporate structure of Sunnyfield.
In our respectful submission, in understanding and looking fairly and appropriately at what qualified and experienced directors should be on a board such as Sunnyfield, to suggest that the only consideration is the management of financial amounts of money with the implicit assumption that people with disability are not capable of doing so, should be firmly and roundly rejected, Commissioners. It is a submission that displays ableism, perhaps conscious bias rather than unconscious bias. In our respectful submission, there is nothing to support the suggestion that the inclusion of people with disability would put at risk the financial viability of the organisation.
The next finding, number 5, is that there was no operational system at the time of the public hearing for board directors to make regular visits to Sunnyfield, shared independent living houses, nor to hold meetings with residents of those houses, their families and supporter. Commissioners, you will recall the evidence and the questions that I asked Ms Cuddihy about these matters.
At paragraph 46, Sunnyfield says these criticisms are unwarranted. At paragraph 48 it says it may be undesirable for board members to pay regular visits to shared living accommodation, that accommodation is someone's home. We agree it is someone's home. We also agree, as submitted, that the privacy and dignity of that home should be respected. We agree with that. However, we do not see the visits from board directors to the houses where services are provided is inconsistent with paying respect to somebody's home or the privacy and dignity of that home.
CHAIR: Well, I suppose, Ms Eastman, like anybody else's home, people can invite others into their home.
MS EASTMAN: We agree. There is also a contention put that the board's function
is not one of management. We agree with that as well. But the submission made by Sunnyfield about the importance of qualified and experienced directors, and directors who can properly discharge their function, would necessarily mean that those directors have direct knowledge of the very services and the homes over which they have responsibility. To suggest that the directors should not discharge that function because the accommodation is someone's home is a straw man reasoning and it should be rejected.
We have not suggested, in our written submissions, that the directors are visiting the homes on a daily, weekly or monthly basis. Our point was a simple one, and that was that there was no operational system at the time of the public hearing for making regular visits. We do accept the observation made in the submissions but at the time of the hearing, the board and Sunnyfield were dealing with issues concerning the impact of COVID 19 on visits to the home. But perhaps, with modern technologies, that may have given Sunnyfield a range of options to look at having a system in place, to make regular visits to the homes, but also importantly, which seems to have been overlooked in submissions, to hold meetings with the residents of those houses, their families or supporters.
CHAIR: Ms Eastman, this is a corporation, non profit, but in terms of discharging responsibilities, is it not the case that directors of any entity, whether for profit or non profit, need to understand the nature of the undertaking, the challenges, in order to discharge fully the range of responsibilities that directors have, whether you're a director of a company running a casino or whether you're a non profit running a very large number of places of accommodation for people with disability. It's part, is it not, of a director's function to understand how the services are delivered, what problems there may be and what needs to be investigated, if anything, in order to ensure that all is well as far as the discharge of corporate responsibilities are concerned?
MS EASTMAN: Yes, Chair. We didn't put evidence on in this specific hearing about the specific roles of directors and the large text and advices and newsletters and guidelines produced by organisations such as the Institute of Company Directors, but clearly, being a director imposes particular responsibilities but the responsibilities have to be across the nature of the organisation for which you have responsibility, and that doesn't matter what the nature of the organisation is. I accept Sunnyfield will see that contention that we're seeking by way of findings seems to be harsh, but I think it is impressing that particularly when we're looking at measures and systems to eliminate violence, abuse, neglect and exploitation, and where circumstances make people with disability vulnerable, particularly people living in segregated settings who do not have extensive community safeguards around them, that perhaps places an extra and additional obligational duty on directors of disability service providers.
We talked about the importance of eyes and ears, and the directors can play a very important role in being both the eyes and the ears of the organisation.
The sixth finding was the absence of a person with disability on the senior leadership
team, and we said that fails to ensure that people with disability were and are appropriately represented and involved in decision making that directly affects their lives.
At paragraph 44, Sunnyfield responds in its submissions to say it is unnecessary and unhelpful about making findings sought with respect to the level of representation of a person with disability within the corporate structure of Sunnyfield. Commissioners, I understand you may have a question of this in relation to why the submission is expressed as both unnecessary and unhelpful. However, Sunnyfield has pointed out, and we certainly acknowledge, that Ms Cuddihy herself has experienced a disability and we don't shy away from that.
The next finding also relates to visits but this time of the members of the senior leadership team, this is at finding number 7. I've put the finding up there, the contentions from Sunnyfield are the same contentions raised in relation to board members paying regular visits. So my response to that submission reflects the response earlier in terms of eyes and ears.
The next theme and the next set of findings concerns the theme of choice and control. Commissioners, we've addressed this in our written submissions at page 68 and following paragraph 266 and following.
We've suggested a finding that is open to the Royal Commissioners was that Melissa was not afforded choice and control with respect to the service and residency agreements in April 2017. You will remember the evidence was that when Sunnyfield took over the operation of the Western Sydney house, there was a very short period of time, there was significant rush, I think, for everybody involved including Sunnyfield. You will recall that the evidence was that Melissa, with the assistance of Eliza, was required to enter into both service --- a service agreement and a residency agreement. Commissioners, you will remember at the hearing we took Ms Cuddihy to those documents and asked her some questions about it.
The issue of choice and control in this respect was the issue, in effect, to be able to negotiate the terms and conditions of agreements such as service agreements and residency agreements. You will recall the evidence at the time through emails was that these were standard form legal documents and so they couldn't be changed. So that's the context to which we sought the finding that Melissa was not afforded choice and control with respect to residency and service agreements.
Sunnyfield has addressed this at paragraph 51 and 132 of its written submissions. It says at paragraph 51 in respect to the question of choice and control, it appears at some moments in time, at least the relationship between Sunnyfield and Eliza was such that both parties wanted to end the arrangement so long as a suitable alternative provider could be found for Melissa. I'm not sure that that's directly referable to the finding that's sought. But at paragraph 132, Sunnyfield says it is accepted that Melissa's ability to negotiate the terms of Sunnyfield's standard support agreement was limited. So there does appear to be some concession.
I note in this respect that the Commonwealth's submissions also address the issue of choice and control in terms of the extent to which the concept of choice and control may be limited when it comes to what the service provider will, in fact, offer. Mr Dighton may wish to address you on this aspect of the Commonwealth's submissions. If I understand those submissions correctly, the tenor was that if the service provider does not offer a particular service or set out the way in which that service might be provided, then that may inherently limit the concept of choice and control, and that there may have been some implications of this in terms of the findings that the Royal Commission might make in relation to Melissa's residency and services agreement.
CHAIR: Can you give us a paragraph reference to the Commonwealth's submissions that you're referring to?
MS EASTMAN: This is page 3 of the Commonwealth's submissions under part D, and you will see it starts at paragraph 7.
CHAIR: Thank you.
MS EASTMAN: And you will see at paragraph 10 the Commonwealth says.
..... the Australian Government notes that the inability or unwillingness of a particular provider to provide supports or services to a participant, either at all or on terms that are acceptable to the participant, does not constitute a denial of choice and control to that participant within the meaning of choice or control in the NDIS.
CHAIR: Yes, I think there's a question as to what paragraph 10 is intended to convey.
MS EASTMAN: Yes, that's why I draw, Commissioners, your attention to this issue. I accept that the Commonwealth has provided very concise submissions and I accept that no adverse findings have been sought with respect to the Commonwealth, but I did find that paragraph to be somewhat cryptic. So it may be Mr Dighton can assist you further on that matter.
Next finding, number 9, concerns Sunnyfield's decision in January 2018 to terminate its residency ---
CHAIR: I'm sorry, just before you leave 8, am I correct in my recollection that the NSW Ombudsman addressed that question and did find that there had been, in effect, a denial of choice and control as far as the original agreement was concerned?
MS EASTMAN: I'll have to check to make sure I can describe that in the precise terms.
CHAIR: I'm sure the Ombudsman can help us with that. Anyway, I would just like to check that recollection.
MS EASTMAN: The 9th finding is that Sunnyfield's decision in January 2018 to terminate its residency and service agreements with Melissa was inconsistent with the principle of choice and control, and Sunnyfield prioritised its interests over Melissa's right to a safe and secure home. This finding relates to the earlier findings I touched on in terms of the circumstances of delay in relation to issuing notice.
Sunnyfield says, as part of its overarching response, at paragraph 5 of its submissions, that any suggestion that Sunnyfield prefers its reputation over the people to whom it provides services should be rejected. It does seem to address the aspect of this finding at paragraph 51 by reference to the fact that the relationship had broken down between Eliza and Sunnyfield, and it summarises its position at paragraph 92 as follows:
It would be open for this Royal Commission to provide recommendations as to the circumstances in which a service provider would be entitled to bring about an end to the provision of services to a person with disability. Such recommendations could properly consider whether this would include a situation where there has been a total breakdown of trust and communication between the service provider and the person with disability and their family or guardian.
Commissioner, it would be up to you whether or not it would be appropriate for this Royal Commission to make recommendations on the kind touching on the matters in paragraph 92 of Sunnyfield's submissions.
May we say in response to this contention, with respect Sunnyfield continues to fail to separate its duty to and agreement with Melissa from the breakdown of its relationship with Eliza. The fact that things were difficult with Eliza from Sunnyfield's perception does not mean that it absolves its obligations in terms of the residency and services agreement to say Melissa.
The next finding is a more general finding in number 10, and that is the residents' ability to exercise choice and control was limited as a consequence of Sunnyfield both being a provider of rental accommodation and a provider of disability support services.
At paragraph 133, I understand Sunnyfield's response is that with respect to the landlord being the provider of services, Ms Cuddihy agreed that those two things do not "travel together" and she said that "you certainly could have a separate provider who provides the accommodation." I know Commissioner Galbally wants to ask Mr Duggan some questions about this issue later, but in our respectful submission, Sunnyfield has not substantially addressed the risk of conflict or the inherent difficulty with the proposition about being both the provider of rental accommodation and also the provider of disability support services.
Commissioners, this is going to be a matter which cannot be finally resolved in the context of this particular hearing. It's a significant matter and it's a matter that the Royal Commissioners will need to carefully consider and perhaps address in the context of future hearings and the broader ongoing work of the Royal Commission.
Can I turn then to the next theme which is of preventing and responding to violence, abuse, neglect and exploitation. We have addressed these issues and themes at paragraph 297 at page 77 and following, and we make a proposal for a number of findings and one finding in this regard, it's Finding 11, and that is that Sunnyfield's specific policies and processes for preventing and responding to violence, abuse, and neglect of people with disability failed to prevent the abuse of Melissa, Carl, Chen by two of its staff, SP1 and SP2. Commissioners, this is probably the most serious and perhaps the most adverse of the adverse findings that we propose.
We have very clearly identified that the finding that we think is open is directed to policies and processes. In that regard, Sunnyfield has responded at paragraph 72b of its submissions, it says a suggestion that it was the policies and processes of Sunnyfield which failed to protect the abuse of Melissa, Carl and Chen must be rejected. Whilst Sunnyfield does not seek any finding itself as to the matters of causation, any causative finding which the Royal Commission does make, must be considered in light of the Ombudsman's conduct, and I will come to that in a moment.
At paragraph 93, Sunnyfield says this:
As a matter of bare logic, it is difficult to resist the proposition that the policies and procedures which were in place did not prevent the abuse perpetrated against Melissa, Carl, and Chen. However, it is a more taxing exercise to draft a policy or procedure which would have been failsafe in preventing the abuse that occurred. Like a government's attempt to achieve low crime rates, zero tolerance does not itself equate to a complete eradication of crime. Similarly, it must be assumed the risk of people like SP1 and SP2 seeking employment in the disability sector will never be eradicated completely.
May I say we found this response quite extraordinary. When we identified specific policies and processes for the purpose of this finding, we were not suggesting that the mere drafting of a policy or a process would be the answer. Policies and processes do several things. First of all, they clearly set the values and expectations of an organisation for itself, for its staff, for its consumers, and what it seeks to achieve. The policies and processes can identify who bears responsibility to ensure in this case a safe living environment. It is flippant, with respect, to suggest that the mere drafting of the policy wouldn't have prevented abuse. And to make an analogy that the Government's attempt to achieve low crime rate by using the expression "zero tolerance doesn't mean a complete eradication of crime", Commissioners, you should be concerned if, and I will give Mr Duggan the opportunity to respond to this, but what has been suggested here by Sunnyfield is that incidents of violence, abuse, or
neglect of people with disability who live in circumstances such as that provided by Sunnyfield, and perhaps even other service providers, mean that it may be inevitable that crime or violence will occur.
I'm not suggesting from a Pollyanna perspective that a policy or practice will prevent violence, abuse, neglect or exploitation, but unless those policies are met with a commitment to changing cultures and to ensure that practices in accordance with the policies are there to prevent violence, abuse, neglect, then of course nothing will happen.
So in our respectful submission, you should reject the submissions made by Sunnyfield in this regard, and I will also address in a moment the extent to which the Ombudsman should also be accountable in the manner Sunnyfield suggests.
CHAIR: Ms Eastman, I rather took Sunnyfield, Mr Duggan, to be saying that when you read proposed finding 11 literally, and there is a certain literalness in Sunnyfield's responses, I must say, it's self evident because, of course, the specific policies and processes for preventing and responding to violence and so forth did fail to prevent the abuse of Melissa, Carl and Chen, and it's self evident.
The issue, I think, is in what respect were the policies and processes deficient so as to allow that to occur. Now, I know you've addressed that in the written submissions, but perhaps you might just say something about that. I think that Sunnyfield's response was, in part, based upon this reading of the import of that particular element.
MS EASTMAN: I'm happy to address that, Chair. The deficiencies can be viewed in a number of different ways. The first is to ask whether there is a deficiency in the written version of a policy and that is to identify whether there are elements that are missing. We did not take this approach in this hearing to see ourselves as auditing Sunnyfield's policies to identify what should or should not have been in those policies. The deficiencies really came to the way in which those policies operated in practice. That depends on a number of factors. One, there's that broader institutional responsibility for how policies are implemented. The research tells us that the importance of leadership, in ensuring that policies and policy settings in organisations are led from the top, that the messages and policies are reinforced by the leaders. In this case, the absence of the board being actively involved in these matters that we could see on the documents available, and I accept, and I am not making a criticism of the board across the whole operations of Sunnyfield, but limited to this particular case, illustrated a very significant disconnect between what happened in the house and the reporting made by SP1 in relation to the events in the house through the management systems of the policy provided up to levels where people who should have been making decisions in relation to protecting people against violence, abuse and neglect, did not occur.
So the deficiency was not so much in the wording of the policies, but the deficiency was in the processes that enabled those policies to work effectively and to ensure that
the safeguards were built into those policies.
We didn't look in detail but you have the evidence in the written form about the response team, and the way in which the response team should address issues.
Clearly, there is capacity in the way in which Sunnyfield has processes and policies to be able to address these issues, but something was deficient and the deficiency seemed to be processes rather than strict written word.
CHAIR: Would it be, perhaps, more complete if finding 11 that you proposed was to the following effect: Sunnyfield's specific policies and processes for preventing and responding to violence and so forth, should have been implemented in the manner that prevented the abuse but was not implemented in that manner and hence the abuse occurred?
MS EASTMAN: Yes, that may be a finding. As I have said, these are findings proposed by Counsel Assisting, and it's ultimately a matter for the Commissioners to make those findings.
CHAIR: I understand that. That formulation would perhaps remove the issue of interpretation of proposed finding 11.
MS EASTMAN: Thank you, Chair. Coming back to the next issue which is the next theme of complaints and feedback systems, I've addressed this at paragraph 83 of our submissions and paragraph 320 and following. Paragraph 12 suggests the finding open to the Commissioners is the manner in which informal concerns or feedback from families about the house were dealt with contributed to a feeling of distrust and anxiety on their part, through to at least July 2019.
Now, I accept this is a difficult finding for Sunnyfield to respond to in this form because what we've identified as the adverse finding is about the manner in which the informal concerns or feedback were dealt with, and our findings suggest that that manner contributed to a feeling of distrust and anxiety. Distrust and anxiety, we say, is certainly a finding open to the Commissioners having heard the evidence of Eliza and Sophia, and also the written material that you have.
The question about the manner is linked in some part to the questions that you asked me earlier about policies and procedures, and this process is really where the manner, I think, becomes clear.
May I say, and Mr Duggan will address this, that I struggled to understand Sunnyfield's response to this contention. Its submissions at paragraph 136 through to 138 address this issue. At paragraph 136 it points to a period between April 2017 and December 2019 and says Sunnyfield received over 1,500 emails from Melissa's guardian which necessitated a response. That response necessitated internal work to provide answers to the issues raised. And it says:
It is evident that the administrative burden which that correspondence generated caused a high deal of stress to Sunnyfield's staff.
Pausing there, in my respectful submission, one only needs to read paragraph 136 to say that finding is open. The fact that Sunnyfield received over 1,500 emails from Melissa's guardian is probably the surest sign that the manner in which informal concerns and feedback wasn't working, and while the distress and distrust came from the families, it's also clear that the manner has also contributed to stress on the part of Sunnyfield staff.
But at paragraph 137, Sunnyfield says:
Notwithstanding the relationship had broken down, Sunnyfield does not accept there is a causal relationship between that strained relationship and a failure to appreciate SP1's abuse and exploitation of the residents in the House.
And at paragraph 138 it says:
It is not necessary to make findings [as we have] recommended ..... These matters are highly specific and do not assist in addressing systemic issues.
In our respectful submission, Sunnyfield has not really addressed the gravamen of the proposed finding made. If Sunnyfield continues to suggest that somehow Eliza's conduct was unreasonable or that she was the cause of the issue, then that remains a lack of insight, in our respectful submission, as to the way in which Sunnyfield, as the provider of the services, should have carefully addressed and considered the way in which it dealt with the informal concerns or feedback from family and in particular, Eliza.
CHAIR: That there were 1,500 emails may have had something to do with the fact that there was something very wrong.
MS EASTMAN: That's precisely my submission.
CHAIR: There's no dispute that there was something very wrong at this place of residence, and subject to what Mr Duggan might say, it's very difficult to understand anything that happened during this period without the context of, yes, something had gone really wrong.
MS EASTMAN: Finding 13 is related to this issue, and finding 13 is that from May 2017, Sunnyfield inappropriately took a defensive stance towards the complaints or concerns raised by Eliza and external clinicians supporting Melissa, and adopted a protectionist approach towards its staff. This protectionist approach contributed to its failure to recognise red flags in relation to the conduct of SP1 and the situation in the house. The matter set out at paragraph 138 of Sunnyfield's submission also addressed this, and it said that to make adverse findings on both finding 12 and 13 would necessitate due consideration of the issues raised and responses to, and the issues
raised in, as I read it, each of the 1,500 or so emails and that task was beyond the inquiry. In our respectful submission, Sunnyfield's submission should be rejected and the findings open.
Then finding 14 is, we have said it's open to the Royal Commission to make this finding, that labelling complainants as unreasonable, difficult or querulent, negatively influence how house staff might perceive them and deal with their complaints. You will recall the investigation undertaken by Jennie Piaud into a series of matters also looking at these issues.
As we read Sunnyfield's submissions, and I welcome Mr Duggan's clarification on this, we have not seen any specific response to proposed finding 14 other than the extent to which it's addressed in the response to proposed findings 12 and 13. And in our submission, we say that the finding is open.
Commissioners, can I now move to the theme of staff recruitment, supervision and complaints and the culture at the house. This starts at paragraph 349 of the submissions, at page 89 and following.
Finding 15 is not a finding that is specifically addressed to Sunnyfield. Finding 15, we submit, it's open to the Royal Commissioners to find that SP1's failure to provide his complete work history, along with not being asked to explain gaps in his CV when he was recruited by Sunnyfield, impaired Sunnyfield from conducting thorough pre employment checks and screening.
Now at paragraph 108, Sunnyfield has said that proposed finding 15 is not in its terms adverse to Sunnyfield, and none of the proposed adverse findings are critical of Sunnyfield's recruitment processes. So that's correct, we agree with that. Sunnyfield says it is not appropriate that no adverse findings have been sought in relation to Sunnyfield's recruitment processes, and we're not seeking any adverse findings in that regard.
In the circumstances, Commissioners, we submit it is open to make that finding and we say it's an adverse finding in relation to SP1.
Finding 16, we say it's open to the Commissioners that during SP1's employment at the house, Sunnyfield did not have appropriately robust systems in place to supervise SP1 and to prevent him from intimidating other staff, enabling a toxic workplace culture to pervade the house. And Sunnyfield managers were deceived by SP1, and they did not act on several red flags which should have resulted in a greater scrutiny of his conduct at an earlier stage.
Paragraph 73c, Sunnyfield says in its submissions it would be unfair to make such a finding in circumstances in which critical information about SP1 was withheld from Sunnyfield by more than one government agency, and it says, "For the same reason, it would be unfair to propose adverse findings", which I might deal with those later adverse findings.
I think we understand this contention to be Sunnyfield shifting the adverse finding on the basis that it did not know what the Ombudsman knew, and if the Ombudsman had disclosed the information to Sunnyfield. Sunnyfield wouldn't have employed SP1 and therefore all of these things would not occur.
A difficulty, in our respectful submission, for Sunnyfield is it did employ SP1, and that SP1's conduct was obvious, in our respectful submission, and what was missing was that level of supervision to either address his conduct or to manage the situation appropriately.
CHAIR: The fundamental issue, I think, that Mr Duggan has drawn attention to is that of causation. You can't sit on cases in the NSW Court of Appeal for a decade or so without coming to grips with the concept of causation in many different areas. What I think Mr Duggan, I want to draw this to his attention so that perhaps he can think about it between now and the time he makes his submissions, the issue that arises is there can be concurrent causes of any event. That is why, in so many areas of the law, trade practices law, as it was once called, the law relating to negligence and causation, there can be more than one cause of something happening. There can be two causes. If one had not taken place then maybe the event wouldn't have occurred, but also it may be true of the other, that if that event hadn't occurred or that causation didn't exist, then the event wouldn't have occurred either.
So I think Mr Duggan may have to address what seems to be an assumption underlying many of the submissions, that there can only be one cause of something that has gone wrong. It's very common experience that there are multiple causes of something going wrong, each of which may have been sufficient in itself to result in the harm that has taken place.
MS EASTMAN: It might be convenient at this point, given the issues raised, is to deal with the one finding that Counsel Assisting has sought in relation to the NSW Ombudsman. This is proposed finding 25, I'm sorry to Law In Order to jump down to the end, and we've addressed the finding in relation to the Ombudsman at page 106 of our written submissions, paragraph 417 and following, and the proposed finding is a short finding, that is the NSW Ombudsman should have disclosed to Sunnyfield the information gathered about SP1.
The Ombudsman's submissions address this issue at paragraphs 40 to 56. Commissioners, I know you've read the lengthy response, but perhaps the position can be summarised in the matter set out at 53 where the Ombudsman says it's not surprising that the decision was ultimately made not to send the information to Sunnyfield. The test, which requires the Ombudsman to believe on reasonable grounds that there is a risk of harm was clearly not met, dated, unsubstantiated, dismissed misconduct allegations could not, in the circumstances, have led to "a rational bearing on the formation of a reasonable belief that there was a risk of harm" and could not be considered "sufficient to induce in the mind of the reasonable person the necessary reasonable belief."
At paragraph 57 the Ombudsman says:
In conclusion, we note that there is no criticism of the handling of the various complaints by way of the Ombudsman's Office's communication with the complainants or the protracted attempts to engage in conciliation with Eliza and Sunnyfield ..... That should be reflected in the final report.
We acknowledge paragraph 57, but the issue in relation to this finding is whether the Ombudsman should have disclosed.
Commissioners, the Ombudsman is saying to you, as we understand the submission, that there was no obligation or requirement to disclose anything to Sunnyfield unless there were reasonable grounds that there was a risk of harm.
You have, in the evidence, some material from the Ombudsman, including a notation from the Ombudsman's office that an investigation in 2005 in relation to SP1 lacked rigour. I don't take that matter much further. But you may be assisted by Ms Furness in terms of the extent to which dated unsubstantiated, dismissed misconduct accusations could not in the circumstances have had a rational bearing on the formation of reasonable belief I accept that the submission may be made that with the benefit of hindsight, one cannot reverse engineer these matters, but it may assist you, Commissioners, to understand what would it have taken, what else would have been required in these circumstances for the Ombudsman to believe on reasonable grounds that there was a risk of harm? That's proposed finding 25.
I will come back to finding 17 and this finding reflects, for the most part, matters that I've already touched on. But this finding is that there was a lack of appropriate systems that resulted in senior managers failing to receive reliable reports and accurate information about what was happening at the house. For two years, Sunnyfield managers accepted what was reported through SP1 about the situation in the house. Their reliance, that's the managers, on SP1 influenced their negative perception of Eliza.
At paragraph 116, Sunnyfield responds to these matters and says that there are a number of reasons why SP1 and SP2's misconduct in the house went undetected and, Commissioners, I won't read them all out now, I'm just conscious of the time. I accept that there are a range of matters that would be taken into account in terms of why SP1 and SP2's misconduct went undetected. But to blame those who were subjected to intimidation of not being prepared to report, it self highlights the issue that if there is a fear in reporting matters of violence, abuse, neglect or exploitation, then to blame those who are too scared to come forward really highlights a deficiency in systems and processes.
The next theme that we identified was the theme of risk management and we've addressed this in our written submissions at paragraph 374, page 95 and following. Proposed finding 18 is that Sunnyfield's approach to risk management is from the
perspective of the impact of risk on the organisation itself and it is not person centred or focused on the interests of the people with disability receiving services.
Sunnyfield says at paragraph 123 of its submission that this proposed finding is, with respect to risk management, misconceived and does not reflect the way in which Sunnyfield operates. And the submissions go on to address the relevant policy documents and also at paragraph 124 to talk about what the nature of risk means. The submissions say that risk, as an expression, is an ambulatory term and in the context of a disability service provider, risk management may refer to, for example, financial compliance, regulatory compliance or occupational health and safety. It could also refer to the risk of violence, abuse, neglect of people with disability, and it says it does not follow from the fact that policies exist in relation to financial regulatory workplace risk, that such corporate and operational risks are prioritised over the safety and well being of clients of the service provider.
With respect, that was not what our submission was. We were looking at the approach to risk management in the context of managing risk in circumstances that would lead to the risk of violence, abuse and neglect within the delivery of the particular services by reference to the evidence in relation to the Western Sydney house.
Commissioners, you have in the material, and we can take you further to this, and I think the submissions cover it, the various risk management frameworks and policies and documents. But it's clear, in our respectful submission, that where documents are drafted to be policies, that seek to minimise liability for an organisation, inherently those policies are drafted from the certify perspective of ensuring compliance and minimising risk for an organisation.
There are opportunities to learn from the issues raised in this case study about integrating an approach to managing risk, together with those important risk areas of financial compliance, work health and safety and the like.
Related to that finding, finding 19, proposed that Sunnyfield has a low tolerance for reputational risk and reputation is listed as a potential impact in both its operational risk matrix and its corporate risk matrix. We are not saying that it's a situation where an organisation would not be concerned about its reputation. Reputations of individuals and incorporations are very important. But the question is whether or not a concern about reputational risk overshadows risk and management of risk for people with disability from the risk of violence, abuse, neglect and exploitation.
Sunnyfield has addressed these matters at paragraphs 127 and 128 of its submissions. In our submission, we think the finding is certainly open, based on the circumstances and the evidence that you heard in this case study.
Number 20 is also related both to the eviction issues, which we've touched on earlier, and the question of reputation. Proposed finding 20 is that the issuing of an eviction notice to Melissa on 4 June 2018 was part of the management of perceived risk to
Sunnyfield's reputation due to Melissa's sister, Eliza. This is addressed at paragraphs 77 and 78 of Sunnyfield's submissions. Commissioners, you can read those matters.
In our respectful submission, of all the justifications proffered for Melissa's eviction, again, none of them focused on Melissa's needs and interests. There was a distinct lack of open and transparent communication that one would expect to see if the eviction was no more than a reflection of the breakdown of a relationship. In our respectful submission, the available evidence allows you to make a finding that the perceived risk to Sunnyfield's reputation, particularly against the Ombudsman's inquiry, was a significant concern.
The next theme we deal with is the theme of violence and abuse. This is page 104 of the Counsel Assisting's submissions at paragraph 408 and following. Finding 21 is that Melissa, Carl and Chen were subject to violence and abuse at the house. Responsibility for that violence and abuse lies with SP1 and SP2. However, responsibility also lies with Sunnyfield, its board, its CEO and its senior leadership team. As I mentioned earlier, a finding of a similar form we've addressed earlier but this is a particular serious finding. However, Sunnyfield says at paragraph 96 that this proposed finding is far less benign than Findings 11 and 22. It says, if made, it would amount to a finding against particular individuals including directors of the board, the CEO and the members of the senior leadership team. We accept that this is a significant finding.
As Counsel Assisting, we have thought very carefully about the findings that we propose to the Commission, and we accept the seriousness of it, but so too is the seriousness of the experience of Melissa, Carl and Chen who, as Sunnyfield says, were in their own home. And in their own home they were not protected with respect to their privacy or their dignity or their safety.
So, mindful of the particular circumstances, and where the responsibility lies, responsibility lies not only with individual perpetrators, but the responsibility also lies with institutions. Those institutions may be large institutions like governments, they may be large corporations, they may be small organisations, but responsibility and accountability is essential if we are to address and understand violence, abuse, neglect and exploitation for people with disability.
While I accept that this is a harsh finding that we invite the Commissioners to make, in our respectful submission that finding is open. I note, and I have carefully read Sunnyfield's submissions in relation to resorts of standard of proof that are used in both civil and criminal proceedings, the Chair in particular will be mindful of many times that the Briginshaw concept has been cited. We're very well aware of those matters and we've taken them into account. Notwithstanding that the finding is harsh and we agree with that with respect to Sunnyfield, we do not agree that the finding is unnecessary.
The next finding, number 22, is Sunnyfield failed to create an environment where the residents of the house were safe and well supported. At paragraph 95 Sunnyfield
responds to this proposed finding, suggesting that the finding overlooks the contribution of the workers in the house other than SP1 and SP2, who support the residents in their daily lives and assist them with their favourite activities.
Sunnyfield says that community support workers, be key workers, and senior support workers, have genuine relationships with the residents and the proposed adverse finding does not account for the efforts these workers and regional managers have made to assist the residents. And they note that Ms Piaud confirmed in the situation in the house dramatically improved following SP1's suspension or termination.
We do not, as Counsel Assisting, overlook the contribution of the other workers. Indeed, we have noted the circumstances and the culture in the house that also silenced the workers. Our submission is directed to Sunnyfield rather than to any particular persons, and if, Commissioners, it requires some qualification in the proposed finding to make it clear that we are not seeking any adverse finding against any support worker other than SP1 or SP2, who supported the residents in their daily living, then we would certainly encourage the Commissioners to think of a finding that made that abundantly clear.
I'm almost there. Finding 23 is Sunnyfield's incident reporting system failed and its managers failed to listen closely to, to value and respond appropriately to all feedback, concerns and complaints raised by the residents' families. They also failed to actively supervise SP1, to recognise and respond to the red flags relating to him, and to ensure that staff underneath him were able to do their work and voice their concerns without fear or intimidation.
So this finding is very closely aligned to the findings that we've addressed earlier, but it's a finding, obviously, in the context of this particular theme. Sunnyfield has responded to this finding at paragraph 117, and it sets out a number of steps that were taken by Sunnyfield to address these issues once they came to light.
We do not make any criticism of the steps taken by Sunnyfield since the matters came to light, and they are very helpfully set out at paragraph 117. However, the question is what occurred in relation to the failure of the systems, particularly the reporting system that allowed the violence and abuse of the residents at the home. In our respectful submission, Sunnyfield has not addressed this issue and has not, in looking at what measures it's taken since those events, acknowledged or taken accountability for its own systemic defects.
The final finding is number 24. This is quite a narrow finding but we've said that Sunnyfield should not have asserted legal professional privilege over any of Ms Piaud's reports, and those reports should have been provided in full to the NDIS Commission. Sunnyfield deals with this at paragraph 142 and 143 of its submissions. It suggests there's no basis for making an adverse finding of the form described in number 24, and suggests that there's no evidence to suggest that there was any attempt to restrict the information flow to the NDIS, and nor was there any evidence that the NDIS regarded Sunnyfield's communications with it as deficient.
I'm not sure it is for Sunnyfield to speak on behalf of the NDIS, but it does include a quotation from Commissioner Head's evidence.
I think coming back to the core issue is this: the assertion of legal professional privilege is a concept known to the way in which the law operates, that if a legal practitioner is giving advice, or there is the preparation of material in contemplation of litigation, then a perspective litigant should have the right, called legal or client professional privilege, to be able to disclose confidential and sometimes damaging material to their own lawyers for the purpose of receiving frank legal advice. It's another step to assert legal professional privilege to hide or keep things confidential that go to issues of accountability of the kind that we're dealing with in this case study.
We've raised this as a matter of concern because if legal professional privilege can be used to hide or to keep matters confidential, that will be important to investigating, understanding and responding to violence, abuse, neglect and exploitation, then that may be a matter that the Commissioners want to examine in further detail.
Finally, I want to deal with recommendations. It may be unusual for Commissioners to think of making recommendations prior to the conclusion of a Final Report, and the recommendations that we have identified for this particular hearing are recommendations that we thought we would advance, somewhat tentatively, to deal with the particular circumstances of this case study. But, of course, the Commissioners in the course of preparing the final report will think very carefully about particular recommendations that go beyond just what we have suggested, but more broadly looking at the totality of the work done by the Royal Commission.
At paragraph 502 of our submissions, we said that given this was the first time the Royal Commission, through its public hearings, had focused on disability service providers in this forensic style of hearing, that we didn't propose to make any recommendations about the provision of disability services more broadly. We did submit that there were a number of matters that should be the subject of further consideration and inquiry by the Royal Commission as part of its ongoing work relating to disability service providers. One of that was an issue we raised in the theme, was the potential use of CCTV and safeguarding measures in supported accommodations. This is a matter I expect Eliza's Counsel may address you on. Sunnyfield has also addressed the issue of CCTV at paragraph 145 of its submissions and the Commonwealth at paragraph 36 to 34.
It's likely to be an ongoing issue where the use of CCTV as a safeguarding measure in supported accommodation has to look at a range of competing rights and responsibilities. We don't propose to make any findings to the Commissioners on this issue or suggest any recommendations other than it should be a matter of further investigation by the Commissioners.
Then, we've also suggested other areas for further work. One is the role of the NDIS
Commission and other external regulators, or may I say oversight bodies, to oversee the conduct of disability service providers, and this includes such matters as the way in which investigations may be conducted, and the way in which the NDIS Commission is able to actively able to monitor the allegations or complaints. The Commonwealth has touched briefly on this matter at paragraphs 30 to 31.
We've also raised, as a matter for further consideration, is the operation of a national worker screening check system, including the extent to which organisations will be able to access information about allegations of previous misconduct on the part of workers. The Commonwealth has addressed this at paragraph 33.
We have also identified as an area for further work the extent to which people with disability who have high support needs have appropriate choice and control over where they live, with whom they live, and that they are not left vulnerable to violence and abuse as a result of homelessness. And, Commissioners, I understand this is a particular issue that you want to explore perhaps in the course of further hearings in the life of the Royal Commission.
At paragraph 504 of our submissions, we made some recommendations that the Royal Commission may wish to make with respect to Sunnyfield and its response, specifically to violence and abuse that occurred at the home at Western Sydney. There were three particular matters.
First, Sunnyfield should clarify in writing that the 4 June 2018 eviction notice sent to Eliza has been withdrawn. Sunnyfield has addressed this in its written submissions at paragraph 153, noting that Sunnyfield has written to Eliza to confirm the exit notice was no longer current.
The second was that Sunnyfield should engage in discussions with Eliza about revising its service agreements with her for Melissa, and ensure those agreements are consistent with Melissa's rights and her exercise of choice and control.
We have also suggested that Ms Cuddihy and appropriate members of the board, should meet with Melissa, Carl, Chen or their families to provide an apology for Sunnyfield's behaviour to prevent the violence and abuse they endured, and to discuss what additional supports and assistance they require.
I say those recommendations are directed to Sunnyfield, they also, in part, are touching directly on the interests of the residents of the home and their family members.
Sunnyfield has addressed in its written submissions at paragraphs 148 to 152 the steps and measures that Sunnyfield has undertaken, following the hearing to engage with Eliza, with Sophia and with the family members. Mr Duggan, no doubt, will wish to tell you what steps have been taken.
Commissioners, I've gone a wee bit over the time proposed. Thank you for your
indulgence and those are Counsel Assisting's submissions.
CHAIR: Thank you very much, Ms Eastman. We will now adjourn and resume at 11.30. Thank you.
ADJOURNED [11.14 AM]
RESUMED [11.32 AM]
CHAIR: Yes, Mr O'Brien.
SUBMISSIONS BY MR O'BRIEN
MR O'BRIEN: Thank you, Chair. By way of very, very brief introduction, the witness Eliza is the sister and legal guardian of Melissa. Melissa is now 24 years of age and she, at the relevant time in this Commission's inquiry and case study and until now lives --- lived in the supported accommodation in Western Sydney, provided by Sunnyfield.
Eliza gave evidence before the Royal Commission in Public Hearing 13 on 24 and 25 May this year, and as Counsel Assisting has indicated, Eliza has made submissions to the Commission and agrees with and endorses all of the key themes, all of the proposed findings and the recommendations outlined by Counsel Assisting in her submissions.
There are two additional matters that we encourage the Commission to consider. The first relates to a recommendation, and this is set out in our submissions from paragraph 8 through to 19. That is a recommendation that Sunnyfield should consider the use of CCTV as a safeguarding measure in the house with the wishes of Melissa, Carl and Chen and their families being central to this process.
Counsel Assisting at paragraph 398 has very helpfully and concisely set out the evidence from Eliza in relation to this point. Counsel Assisting says in that paragraph that Eliza explained she has strong views about the need for CCTV to protect Melissa and the other residents at the house because they cannot speak for themselves in a way that would be taken seriously by a court or tribunal. She said Melissa had no voice and can't defend herself. A CCTV could provide a record of things that might happen which she could not speak about.
She also said that it could provide a measure of protection to staff from false accusations of wrongdoing, and could be used as a tool for learning about effective behaviour support strategies.
When one considers that there were criminal procedures against SP1 and SP2 that failed and that was largely because of an absence of corroborative evidence as to the allegations made by police, when one considers what has now been told to this Royal Commission about what was happening within this house, we respectfully submit that in the balance, given what we now know has occurred, and perhaps, more importantly, what we don't know has taken place in the premises, that the recommendation that Sunnyfield should, and we're not suggesting they should do it as a matter of urgency or as a matter of implementing it straight away without considering all of those matters that Counsel Assisting has set out in particular at paragraphs 406 and 407 of Counsel Assisting's submissions, but rather, that there should be a recommendation from the Commission so to steady Sunnyfield's resolve to begin a dialogue with the families of the residents of this house to consider the implementation of CCTV monitoring within the premises.
CHAIR: Mr O'Brien, are you submitting that this should be done only in relation to this particular house, and if that's right, why shouldn't it be extended more widely?
MR O'BRIEN: We are submitting that it should happen in relation to this particular house because of the circumstances as they came to be brought light upon in this Commission's inquiry. We don't say that it shouldn't be taken as a recommendation that would be appropriate for other residences. But that, we say, is not a matter for us to submit upon, but rather a matter for the Commission to deliberate upon, and we certainly don't suggest that it's not a good idea across the board, it certainly should be considered in all residences such as this where the residences are similar to Melissa, Carl and Chen especially, but in relation to this particular place where Melissa lives, we say that Sunnyfield should be given some impetus from a recommendation such as the one we've formulated in our submissions that I've just mentioned.
CHAIR: Yes, thank you.
MR O'BRIEN: Commissioners, we also say that there should be an additional adverse finding and, really, this goes to the point that you made, Chair, related to those various and many possibilities as to causation. It was obviously the case that there were many red flags, as Counsel Assisting has submitted that were missed by Sunnyfield. But we say that one of them related to a complaint made early in the piece, a concern raised early in the piece by Eliza to Sunnyfield, related to concerns she had about the use of unauthorised restrictive practices by SP1 at a previous place of employment. We say that the Commission should consider this available adverse finding.
Sunnyfield did not appropriately act on Eliza's concern as to SP1's use of an unauthorised restrictive practice on a person with disability at a previous place of employment. Commissioners, at paragraph 23 through to 29 of our submissions, we set out the circumstances in which Eliza spoke to Ms Cuddihy and Mr Swain in around October 2017 about concerns she had related to SP1 and his use of unauthorised restrictive practices at his previous employment.
The relevant exhibits are exhibits 13 329 and 13 330. They include an email from Eliza to Mr Jonathan Swain dated 27 October 2017, and notes of a conversation with and between Eliza and Mr Swain on that same date.
CHAIR: The first of those is a document I think you referred to at note 14 of your submissions. I wonder if that document can be brought up. Can you give the reference? I can't because I've managed to put a black biro mark through the reference.
MR O'BRIEN: The first exhibit was 13 329, that's it on the screen now.
CHAIR: We've got it, I'm sorry. I wasn't looking. Thank you.
MR O'BRIEN: The importance of this, Commissioners, is that it occurred quite early in the piece in contemplation of this Commission of Inquiry's case study. This was a discussion between Eliza and Mr Swain back in October 2017 and if we can go to the next exhibit which is Exhibit 13 330, if it can be expanded somewhat, we go to the second circle under the dot point "Jonathan provided feedback". That document, the concerns raised by Eliza at time in that conversation, related to an incident with SP1 restraining a client without consent. Eliza's notes indicated that Mr Swain had responded to the effect, and this is on the last circular dot point, if the screen can go down to that:
When asked whether the previous provider had been contacted in relation to the incident with SP1 restraining a client without consent and against management discussion, Jonathan [that's Mr Swain] said he couldn't access some information and required written consent from SP1 first.
The importance of this is that there is no further evidence nor any indication that this complaint was taken further nor seriously. It was a complaint of a grave nature and as time came --- as we've come now to know, with the effluxion of time and this inquiry, was of very significant import given the timing of it, and the significance of what was being brought to the attention of Sunnyfield.
And so we say that there was a failure to act appropriately on Eliza's concerns and this did put, in context of what we now know about SP1 and his practices, the residents of that house at risk. We say, Commissioners, respectfully, that the additional adverse finding can be made that Sunnyfield did not act appropriately on Eliza's concern as to SP1's use of an unauthorised restrictive practice on a person with disability at a previous place of employment. This dovetails neatly, we say, into the adverse findings number 13 and 16 about which the Commission has been referred by Counsel Assisting earlier on.
We say that that is so because what this demonstrates, this interaction between Mr Swain from Sunnyfield and Eliza, is that Sunnyfield downplayed the seriousness of Eliza's complaints and concerns from a very early stage. It is a tangible example of
how things brought to their attention were not addressed appropriately and how things may have been different --- may have been different had these alerts been acted upon seriously and appropriately.
CHAIR: Mr O'Brien, does this submission go further than identifying another red flag? Ms Eastman has a submission that there were a number of red flags that should have alerted Sunnyfield to major problems at this house. Is this just another red flag or does your submission go further than that?
MR O'BRIEN: This is certainly a red flag. But this submission goes further than that because of the timing of it, Chair. This submission is --- underpins the proposition that from a very early stage they didn't take Eliza's concerns and complaints seriously, notwithstanding the gravity of them, and secondly, because of the early nature of this complaint, and, again, the seriousness of it, it is open for the Commission to make an additional finding of the type proposed because of its timing, and because of its alarming --- because of the alarming inaction that was taken in relation to it.
The red flag recommendation is also consistent with that --- I mean this recommendation is consistent --- sorry, this adverse finding, I should say, is consistent with the findings proposed by Counsel Assisting in 13, in relation to the protectionist approach towards its staff that Sunnyfield evidently did have. And 16, related to the failure to have robust systems in place to supervise SP1 and prevent him from intimidating other staff.
Can I move, please, Commissioners, to several adverse findings in some of the submissions made by Sunnyfield.
CHAIR: Sorry, just before you proceed. Mr O'Brien, I'm looking at pages 85 to 86 of the transcript as referred to in your submissions, and that is where Eliza gives evidence of these conversations and the notes that she made of those conversations. Was Eliza's evidence challenged by Sunnyfield?
MR O'BRIEN: It was not.
CHAIR: And was Ms Cuddihy asked specifically about this?
MR O'BRIEN: I don't believe she was.
CHAIR: All right, thank you.
MR O'BRIEN: Turning to proposed adverse finding 1, and this relates ---
CHAIR: Are you going to be taking us through all 20 odd proposed findings?
MR O'BRIEN: Not at all.
CHAIR: If you've got something very specific that you want to add to what Ms Eastman has put, specific and brief, yes, but we are pressed for time and if it's in effect repeating what Ms Eastman has said, then that's unnecessary as far as the submissions are concerned.
MR O'BRIEN: Thank you, Chair. I don't intend to repeat Ms Eastman's submissions at all, except endorse them. And I only want to deal with four individual proposed adverse findings, just in relation to how Sunnyfield has dealt with them contrary to my client's interests.
Adverse finding number 1 relates to the delay in the notification to Eliza as to the decision to evict and terminate services and support. Sunnyfield says at paragraph 77 that it was not motivated by reputational interests, and they then go on to assert in paragraph 77 that:
The discussed reasons for termination include the fact that Melissa's guardian lacked trust in Sunnyfield staff, had unrealistic expectations of the level of service, wanted to 'manage the medical processes outside Sunnyfield's processes [which] created confusion, staff stress and errors', [and issued directions regarding CPR].
This submission, with respect, is utterly without basis. First of all, Commissioners, none of that was put to Eliza and it should have been put to Eliza if submissions were going to be made upon it at all. The submission in particular that Eliza gave instructions in relation to the withholding of CPR in the event of a medical emergency is entirely wrong and presents a serious level of offence, a serious level of offence to Eliza. In any event, any issues involving Eliza and Sunnyfield related to the events of the care plan for Melissa were discussed and resolved prior to 2018, the date of this briefing referred to in paragraph 77 and prior to Sunnyfield notifying the Ombudsman that they were ---
CHAIR: Do you mean February 2019?
MR O'BRIEN: February 2018.
CHAIR: 18? Paragraph 77, am I misreading something, says "2019"?
MR O'BRIEN: I think that's a typo.
CHAIR: I will substitute "2018".
MR O'BRIEN: I think you will find Mr Duggan has made an error there, simply a typo.
CHAIR: Thank you.
MR O'BRIEN: But the point being that those issues related to CPR had already been
dealt with and finalised, and agreement had been reached between Sunnyfield and Eliza before the decision to terminate Eliza's [sic] support and evict her.
Proposed adverse findings 2, 9 and 20 all go to the decision to evict Melissa and terminate support services. It said that Sunnyfield --- Sunnyfield says, in their submissions, to the effect that they considered the interests of Melissa and her family in the decision to evict her. I want to take and endorse the comments by Counsel Assisting's submissions at paragraph 81 in relation to this. The notice of termination was clear and unambiguous. Melissa was required to leave with or without support, with or without housing, by 5.00 pm on 5 September 2019. Ms Luff's letter as summarised in paragraph 81 of Counsel Assisting's submissions could not have been clearer.
And, in addition to that, Sunnyfield, of course, had four months to reconsider that decision before notifying Eliza of the decision to evict and terminate services. In that time, there was no inquiries made, in our respectful submissions, as to the best interests of Melissa, and there was no proper effort, appropriate effort, to improve the relationship they say was strained with Eliza.
At paragraph 80 of Sunnyfield's submissions, they said that it was not necessarily the case when Melissa was terminated, that it was against her interests to change providers and in reference to that, and in support of that contention, they refer to the NDIS plans from August 2019 and October 2020.
Now, those --- the attempt to rely on those plans when the eviction notice had so long ago been served, where conciliation and mediations have been unsuccessful, where the eviction still stood, where two workers had been dismissed for serious misconduct and were facing criminal charges, and more than 21 months had passed since the decision to terminate the service agreement by Sunnyfield had been made, it is entirely disingenuous to suggest that those documents can assist in any way to determine what they think Melissa's best interests were at the time of eviction and that decision being made.
We say that the submission itself evidences the dearth of consideration for Melissa's interests in their desperation to find something that might support the contention they make against Counsel Assisting's open adverse finding against them, is open for the Commission to find that the eviction was a culmination of Sunnyfield's inability to appropriately deal and respond to fair complaints of staffing and staffing practices by a guardian of one of their clients.
Paragraph 88 of Sunnyfield's submissions purportedly extracts a series of examples of the friction between Sunnyfield and Eliza. They are entirely out of context. They are entirely self serving. The fact that those matters are submitted and intended to be relied upon for any purpose whatsoever against the backdrop of this case study and what has been brought to light, and as what the Royal Commission has learnt about what was going on at this Sunnyfield residence, highlights the ongoing lack of appreciation and insight as to the gravity of the problems that Eliza was witnessing,
and very fairly and reasonably complaining about, in relation to the care and support given by this organisation to her sister.
None of these allegations in paragraph 88 were put to Eliza. Neither at the time they were made, nor during this hearing. We note that in paragraph 17 of Sunnyfield's submissions, they discouraged findings, adverse findings, made in the context of an ongoing relationship. Melissa still lives in a Sunnyfield home. Yet they're content in their submissions to make comments and statements such as those outlined in paragraph 88, which invite disparaging and untested assertions against the witness to somehow in a nebulous way form the basis of decisions that Sunnyfield made. Those assertions in the submissions are hurtful and they have the potential to damage the ongoing relationship further. They shouldn't have been made, and given those submissions have been made, as Counsel Assisting submitted earlier, it shows a continued lack of insight by Sunnyfield as to the gravity and the import of what this Royal Commission has unearthed.
I want to address the Commission very briefly on one aspect of the Ombudsman's submissions. The Ombudsman has submitted in paragraph 51 that a reason why it was justified in not notifying Sunnyfield as to the information they had about the conduct of SP1 was, quote, "that the serious allegation for which he had been dismissed", and that was in 2016, "concerned fraud and not a matter involving risk of harm to residents." That distinction is a distinction with no difference in the context of complaints related to the 2016 allegations for dishonesty and misconduct in the administration of medication and in filling in time worksheets. That did involve risk of harm to residents, and it was substantiated by the employer at first instance and by the Ombudsman. We say that the Ombudsman clearly ought to, as adverse finding number 25 sets out, have notified Sunnyfield as to the information they had related to SP1.
CHAIR: Mr O'Brien, just so I'm clear about that, you're referring to the last sentence of paragraph 51, as I understand it. It's also relevant that the serious allegation for which he was dismissed concerned fraud and not a matter involving risk of harm. Are you saying that that allegation for which he was dismissed was fraud in relation to the administration of medication?
MR O'BRIEN: Yes, and the filling out of time worksheets.
CHAIR: Where do we find --- you don't have to answer immediately, but could you let us know either during the day or very shortly after today, where the relevant material is on that?
MR O'BRIEN: You will find it at first instance, at paragraph 47 in the statement of the Ombudsman, Mr Paul Miller, which was tendered and is exhibited in the proceedings.
CHAIR: That's the source, is it?
MR O'BRIEN: Yes.
CHAIR: Thank you very much.
MR O'BRIEN: Those are my submissions, Chair, Commissioners, unless I can assist further.
CHAIR: I will ask whether Commissioner Galbally has any questions.
COMMISSIONER GALBALLY: No questions, thank you.
CHAIR: And Commissioner McEwin.
QUESTIONS BY THE COMMISSION
COMMISSIONER McEWIN: Yes, just one question, Chair.
Mr O'Brien, with respect to your recommendation about using CCTV as a safeguarding measure, has Eliza thought or considered other safeguarding measures that could also be considered a part of supporting and protecting the residents in the house?
MR O'BRIEN: Yes, very, very many, I'm certain of it. Can I take that on notice, please, Commissioner, and provide some of the evidence that Eliza gave in relation to that very issue when she was giving evidence before the Commission in answer to questions by Counsel Assisting?
COMMISSIONER McEWIN: Thank you. That's fine. Thank you.
CHAIR: Yes, if you would take that on notice and, of course, when you reply, which should be done within seven days, could you please ensure you provide copies of your answer to the other parties that have been given leave to appear.
MR O'BRIEN: Most certainly.
CHAIR: Thank you. Thank you, Mr O'Brien.
Ms Furness, I think you're next on the list.
SUBMISSIONS BY MS FURNESS
MS FURNESS: I am, thank you, Chairs and Commissioners. There are seven matters I wish to address in respect to Counsel Assisting's submissions and a number
in respect to Sunnyfield's submissions, but can I first say that an understanding of the role and purpose of the Ombudsman, and his office, is, in our submission, absent from both the submissions of Counsel Assisting and Sunnyfield. And I refer the Commission to our submissions in relation to competence and compellability, and in particular paragraph 19, which I will read.
This comes from the report of the Law Reform Commission in 1973, and the report at page 176 states that "Section 33 is prompted by the special features of an Ombudsman's usual manner of working. He works privately and with free access to confidential information and documents. We think that complainants and public authorities must both be able to communicate with him without fear of their communications becoming public property or open to public scrutiny. A successful Ombudsman will be trusted by the person with whom he deals, and part of this trust will come from the knowledge that whatever is disclosed to him is disclosed on a confidential basis. For these reasons, we specify the only circumstances in which information may be disclosed, and for the same reasons we propose section 34."
It is our submission that that context is necessary in understanding the powers and prohibitions in the Ombudsman's legislation.
CHAIR: Ms Furness, can I just make something clear from my point of view. There has been no issue raised on the claim of competence of the Ombudsman at this hearing. Whilst I note that paragraph 18 attempts to put some interpretation on what I said, I don't believe anything I said indicates that I have accepted the submissions about competence and compellability in the light of the provisions of the Royal Commissions Act. I don't have a concluded view about that. I think there are serious issues to be argued. The point is they weren't argued, so we can operate on the basis that for the purposes of these hearings, a claim was made by the Ombudsman that he or his office were not competent or compellable as witnesses, and that hasn't been directly challenged. That, I think, is the starting point. Let us not assume that that will necessarily be accepted into the future.
MS FURNESS: Thank you, Chair. I note that Counsel Assisting had indicated this morning that she is not making any submission as to competence and compellability, so from that, and based on the procedural fairness tenets which apply, we take the view, and please tell us if we're wrong, that there will be no finding in respect to competence and compellability.
CHAIR: I think I've made the position clear.
MS FURNESS: Sorry, it wasn't clear to me but thank you very much, it is now.
The first matter is the Counsel Assisting submissions from this morning. It was not clear to us whether the submission that the Ombudsman did not cooperate is correct, and if it is pressed, then I have further submissions to make. If it isn't pressed I can move on.
CHAIR: I take it that's a question directed to Ms Eastman?
MS EASTMAN: Chair, I saw that issue in the same light as the compellability issue. Our submissions addressed the fact that we extended the invitation on a number of occasions for the Ombudsman to participate voluntarily. He didn't avail himself of that opportunity. I don't go so far as to say that that was a deliberate or wilful approach on the part of the Ombudsman not to participate, so with respect to my learned friend's contention, that's not a finding that I'm seeking.
CHAIR: Does that answer your question?
MS FURNESS: It does, and I might, then, in those circumstances, make the brief submission that on our submissions, the Ombudsman is neither competent or compellable, therefore it must follow that any evidence to a lack of cooperation was unavailable when we started.
Moving then to my second point, and that is in relation to section 34(1)(b2) in relation to disclosure of Sunnyfield. Again, it's not clear to us from the oral submissions this morning whether or not Counsel Assisting is pressing that finding. There is no reference, as far as we heard, to that finding being pressed. Again, I will make submissions ---
CHAIR: I will take that as a question to Ms Eastman who will no doubt clarify.
MS EASTMAN: I'm pressing the finding as identified as finding number 25 in our written submissions at paragraph 453, the NSW Ombudsman should have disclosed to Sunnyfield the information gathered about SP1.
CHAIR: And that, of course, Ms Furness, has been supported by Mr O'Brien's submissions this morning.
MS FURNESS: Thank you. We rely upon our written submissions, which deal at some length with the legislation and the facts as set out in the evidence, and the application of those facts to the legislation to submit that, indeed, the legislation prohibited disclosure unless an exception applied. It's not a question of whether the Ombudsman had power or was responsible or obligated to provide that information to Sunnyfield. Our way of interpreting the legislation is that he was prohibited unless an exception applied, and the exception
CHAIR: How is that different, Ms Furness, than the Ombudsman having a power, assuming the exception applied?
MS FURNESS: In our submission, the difference is that when one has a power, frequently it is accompanied by a discretion. Where there is a prohibition and there may be an exception to that prohibition, one, in our submission, must be satisfied that that exception applies and that exception is in 1(b2), and if it's not before the Commissions I can read that section.
CHAIR: It's in your submissions at paragraph 49.
MS FURNESS: It is.
CHAIR: So we have that. So the question then is, as far as the submissions to which you are responding are concerned, the question is whether the Ombudsman believed on reasonable grounds the disclosure was necessary to prevent or lessen the likelihood of harm being done to any person.
MS FURNESS: Yes, but there's a further phrase, in brackets, but only if the Ombudsman believes on reasonable grounds, that there is a risk of harm, including self harm being done to any person. So there are two limbs, if you like, to that exception.
CHAIR: Yes. It's a little bit difficult to see what the second limb adds to the first but yes, I understand the point.
MS FURNESS: Now, in our submission, regard should be had to Exhibit 13 230, which is the Ombudsman's letter to the Children's Guardian, to understand the matters that were within the knowledge of the Ombudsman at the relevant time.
Now, I don't propose to take the Commission through each of those, however, we do submit that it is that document that should be relied upon for an accurate and complete recitation of the events that were the subject of the Ombudsman's knowledge at the relevant time.
In short, there were five allegations in 2003 to 2005, all of which were not substantiated, and that was some 14 or so years earlier. Three allegations in 2016, two were not substantiated, only one which was fraud which, in our submission, relates to his time sheets and not the client's medication, which certainly may amount to misconduct but unlikely to fraud. And we say that that finding was unrelated to violence, neglect or abuse. And the allegations in 2017, which were the most recent in time, were all unsubstantiated. In our submission, reference to the 2018 allegations are spurious because they were known by Sunnyfield, because they were made by Sunnyfield.
We submit that section 34(1)(b2) requires a current belief by the Ombudsman, and that those dated unsubstantiated in relation to risk of harm, allegations could not find a current risk of harm being done to any person.
Now, Chair, you inquired earlier what, indeed, would be necessary if that information was known to the Ombudsman and if it's convenient, I will address that now.
In our submission, to form a reasonable view about current risk of harm, one needs a currency of allegations. Allegations that are some 14 or 15 years old that have not
been substantiated could never, in our submission, satisfy the test in section 34(1)(b2), they're simply too old as well as being unsubstantiated. The only substantiated allegation is in relation to fraud, and that is not a matter that goes to risk of harm.
So in terms of what would be needed, it's a speculative, hypothetical exercise, substantiation would be needed, each of which is absent.
CHAIR: Yes, I think it was actually Ms Eastman that asked the question, not me, but that's the answer.
MS FURNESS: Now the fourth matter I wish to deal with is found in Exhibit 13 227. Counsel Assisting referred to --- I don't have the transcript in front of me --- but referred to an assessment by a current officer, or current at the relevant time, officer of the Ombudsman as to the rigour of an investigation conducted some 13 years prior, and if I can refer to Exhibit 13 227, which is an email dated 20 March 2018 ---
CHAIR: Yes, could we bring that up, if possible, please? Thank you.
MS FURNESS: Now, that is an email that was written by a senior investigation officer of the Ombudsman to somebody else, three other people, it appears, in the Ombudsman copied to two further, and that, on its face, refers to a 2005 allegation and noted that at the time that that matter was investigated by the Ombudsman, that the Ombudsman found that the office --- the investigation, that is by the provider, was satisfactory. And this person, this senior investigation officer, expressed the view in 2018, as I say, some 13 years later, on her review, her assessment, the agency's investigation lacked rigour.
Now, in our submission, that is no more than the view of a relatively junior officer of a review that she conducted some 13 years later and, in our submission, one could not elevate that comment in an internal email to the view of the Ombudsman.
CHAIR: So what does that last paragraph mean? "We assess the finding as being reasonable based on the available evidence". That's the view of the senior investigation officer who has prepared this email, is that the position?
MS FURNESS: Well, there are two interpretations. One is that that first "assessed" in that paragraph, to be assessed. That's how we read it. We assess, we the Ombudsman's Office assessed the findings being reasonable based on the available evidence obtained
CHAIR: That's an assessment made in March 2018?
MS FURNESS: As I read it, as I say, there are two interpretations. One is reading it literally, it suggests that it's 2018, which doesn't make sense with the rest of the paragraph. The second interpretation is that it should be in the past tense, we
assessed the findings being reasonable, and then that's repeated again, we assess the investigation as being satisfactory. Whether on my review, current, 2018, it is my assessment that the agency's investigation may trigger.
CHAIR: And the agency is the Ombudsman?
MS FURNESS: No, the agency is the provider who investigated the allegation and reported it to the Ombudsman.
CHAIR: I see. So it will make sense if the word "assess", which is the second word in the paragraph, reads "assessed", past tense?
MS FURNESS: That's certainly our submission.
CHAIR: All right. Thank you.
MS FURNESS: Now, turning to the fifth matter, and this arises from Counsel Assisting this morning, and it may be that I've actually addressed this because she spoke in terms of there being no obligational requirement to disclose anything, I think we've addressed that by reference of it being an exception to a prohibition.
Now, the sixth matter, Counsel Assisting submitted that the Royal Commission may be assisted by submissions later in respect to competence and compellability, and that's a matter, you, Chair, raised earlier. I take it then that if this issue in respect of the Ombudsman is to be agitated at some further stage, the Ombudsman will be given an opportunity to participate in that.
CHAIR: I think that's a fair assumption.
MS FURNESS: Now finally, in relation to Counsel Assisting, there was reference to the Commonwealth submissions in respect of the issue of choice and control, and it was suggested by someone, the Chair, I believe, that we might be able to assist in whether or not the Ombudsman made a finding in respect of that matter. And if that's a matter that is still pressed, I can assist.
CHAIR: Yes, please do.
MS FURNESS: Exhibit 13 307 is a letter from the Ombudsman to Sunnyfield dated 18 December 2018. On page 2 of that letter, the second last paragraph it is stated that we, that is the office of the Ombudsman or the Ombudsman, do not accept that presenting standard service agreements that are unable to be modified is consistent with the NDIA terms of business or the expectations of practice under the NDIS.
CHAIR: Yes, thank you. It's a matter of great relief that my recollection sometimes is moderately accurate. Thank you.
MS FURNESS: Can I turn, then, to the submissions of Sunnyfield. Can I first make
the general observation that at no stage in Sunnyfield's submissions do they engage with the law in respect of the Ombudsman or the Office of the Children's Guardian. There are various broad assertions made without any attempt to bring those assertions in the confines of the law, and we rely upon our various written submissions as to what that may be.
In addition to comments in relation to the Ombudsman, there were comments made in relation to the Office of the Children's Guardian and those comments were made without any regard to what the legal position may be and should be and in our submission reject it.
Can I just then refer to some particular paragraphs of Sunnyfield's submissions. Firstly, paragraph 63. 63, the last sentence is in relation to the Ombudsman declining to give evidence on the basis that he wasn't competent to do so. Sunnyfield notes that Sunnyfield was unable to explore this issue with him, and the issue being notifying Sunnyfield, in our submission, had available to them the two statements which set that out, and in any event does not seek to engage with the competence or compellability of the Ombudsman competence in that regard.
Paragraph 67, there's reference to it being bizarre, I quote, “the Ombudsman's Office encourage a conciliated outcome to Melissa remaining in the house”. The evidence, as I understand it, is clear and uncontroversial that Melissa wanted to remain in the house and, indeed, remains in the house.
Paragraph 69, reference to a consistent line of allegations against SP1 dating back to 2003. I'd merely note there that the consistent line does not engage with the fraud allegation.
Paragraph 70. Regrettably, the comment is, the OCG did not notify Sunnyfield of any change to the working with children's status. Firstly, there's no evidence whatsoever as to what the OCG did or didn't do, had the power to do or not to do, nor whether or not there was any change to that status. That paragraph should be rejected.
Paragraphs 111 and 113 are to similar effect, broad brush comments about the Ombudsman and the OCG without any attempt to engage in any legal basis.
Paragraph 72, if I can then turn to that, there's reference using language which we say is inappropriate, given the lack of engagement with the law. In paragraph 72b, there's reference to the Ombudsman's conduct, conduct is an entirely inappropriate concept in relation to the legislation which prevailed. Similarly in relation to sub paragraph C, there's reference to information being withheld from Sunnyfield by more than one government agency. There's only evidence about one agency, there's no question about it being withheld, there's no reference to the legislative basis for the decision that was made not to disclose the information.
Similarly, the end of that subparagraph there's reference to non communication of
relevant matters by two government agencies. They should be rejected.
There were also various submissions and references made to the Ombudsman declining to give evidence and, again, Sunnyfield chose to or failed to engage with the law as to compellability or competence. However, we note that when specifically asked whether they wished a summons to be addressed to the Ombudsman said they did not.
They are our submissions.
CHAIR: Thank you, Ms Furness. I will ask Commissioner Galbally whether she has any questions of you.
COMMISSIONER GALBALLY: No questions, thank you.
CHAIR: Thank you. Commissioner McEwin.
COMMISSIONER McEWIN: No, thank you.
CHAIR: In that case, Ms Furness, thank you very much for your submissions.
I'm not sure whether the Commonwealth wishes to make any oral submissions in addition to the written submissions that we have received. Could that be clarified, please?
SUBMISSIONS BY MR DIGHTON
MR DIGHTON: Thank you, Chair. No, we do not wish to advance any further oral submissions, and at some stage when convenient to the Chair, I can clarify the opening paragraph that was referred to by Counsel Assisting.
CHAIR: Yes, please do, and then I will invite Commissioners, if they have any questions of you, to put them to you. Yes, please, go ahead.
MR DIGHTON: Thank you. The specific reference by Counsel Assisting was to paragraph 4 and lest the wrong impression be conveyed, all that was sought to be said there was that the effect of the submissions, as you will have seen, it is under section B scope of the submissions, was that where a matter was not relevant to the Commonwealth, then no comment would be made about it, but to the extent that the Commonwealth could assist, or it may assist the Royal Commission, that submissions had been made and that is set out at paragraph 3. It was simply a reference of relevance rather than any comments on the substance of the findings themselves.
CHAIR: Thank you for that. Perhaps you might also, while you're interpreting the
written submissions, go to paragraph 10 and indicate what was intended to be conveyed by that paragraph. I ask that because it wasn't quite clear to me what point was being made.
MR DIGHTON: Certainly, Chair. In that respect, we would urge that paragraphs 7 to 12 be read together in that the comment was made by Counsel Assisting, or the submission was made that it may be an area of further inquiry for the Royal Commission into what is choice and control and what that actually means as a statutory object, that for people who have disability with high support needs and want appropriate choice of control with whom they live, that is at paragraph 503 of Counsel Assisting's submissions.
What was sought to be drawn out there in light of what was, or would be an important point for the Royal Commission, is what choice and control would actually mean in a statutory and then practical sense when trying to give effect to it and to maximise the choice and control in circumstances similar to or that might be expected to be found, such as were in this case study. And in particular, for example, the evidence that was given by Commissioner Head and that was in his statement to the Royal Commission. It wasn't traversed orally. What is to be done where the Commission does not have the power to compel a provider to provide a service, yet there has been some sort of breakdown, how is choice and control to be given a practical effect and maximised in those circumstances.
CHAIR: So the proposition is that if the NDIS Commission doesn't have the power to direct certain actions, then it's not a denial of choice and control by the Commission if, in fact, it does not intervene since it doesn't have power to do so, is that the point?
MR DIGHTON: No, it's to separate the notion of choice and control from the practical effects of it such that the denial, in and of itself, would turn our attention, in our submission, to how the NDIS Commission and the NDIA can ensure that the choice and control is one of a number of entitlements of a participant would be able to maintain such as through the continuity of the service, or as seamless a transition as possible to another service, and that would incorporate in the notions of those matters referred to by the Commissioner in his statement, and that is going to the Practice Standard Rules and other guidelines.
CHAIR: All right. Thank you. I might ask Commissioner Galbally now whether she has any questions of you in relation to the submissions made on behalf of the Australian Government.
QUESTIONS BY THE COMMISSION
COMMISSIONER GALBALLY: Yes, thank you, Chair. First of all, given the importance that you ascribe to the exercising of choice and control, taking into
account the statements you have just made, but particularly with regard to the role of specialist support coordination for developing choice and control in just this group that we're talking about for people in group homes, is anything being considered to be placing in packages of every person in a group home specialist support coordination? That's my first question.
CHAIR: Let's pause there, I think, and come back to your second question.
Yes, Mr Dighton.
MR DIGHTON: Thank you.
Commissioner, to answer your question directly, and then I will provide some context, to answer your question directly I am not aware, and I can take those instructions and provide that information as soon as possible. I can, by way of context, say that the issue of utilisation and effectiveness of specialist support coordination is something that is exercising the relevant sections of the NDIA, and that particular pattern was that it seems that there is unspent funds in the specialist coordination packages arising out of those who have been given them.
The issue then arises is whether or not there is some way in which the manner in which the services are provided, or the ways in which they are understood can be improved, and that is currently the subject of a course of work being done by the NDIA to improve those specialist support coordination outcomes, some of which may have some relevance to the question that you asked, Commissioner, but as a direct answer, we will provide that information to you.
COMMISSIONER GALBALLY: Thank you. My second question follows up on that one, and that is the issue of the independence of the provision of specialist support coordination completely separate from the entity of the service provider. Given that in exercising choice and control, people may wish to be supported to have a look at alternative ways of service provision being provided or even living arrangements, so is there a plan to require that support coordination be provided independent completely of the service provider to prevent any conflict of interest?
MR DIGHTON: I will take instructions on the very specific point of your question. My understanding is that on the evidence that was led in the Commission, is that there is not a requirement, and I can take, Commissioner, you, or the references to Mr McNaughton's evidence during the course of the Commission where the issue was, while there was a strong preference for that to be the case, that is that level of independence, while there was a maturing market or, in the circumstances of a thin market, such a requirement may have the adverse consequences of either depriving a participant of a service that might otherwise be available to them or, in some other way, eroding their potential choice and control if that's something that they actually want. I can take you to the specific references of that, but as to your specific question, no, I'm not aware of any plan for a specific requirement.
COMMISSIONER GALBALLY: I've just added another question, if that's all right, Chair, just following up. In that case, if there's any suggestion that not choosing to have an independent support coordinator is illustrative of genuine choice and control, I'd like you to spell that --- I'd like that to be spelt out a lot more thoroughly. How would that be exercising genuine choice and control rather than using the term in a very broad and slightly flexible way?
MR DIGHTON: Yes. I'm sorry, can I make sure I understand your question, Commissioner? Is it your --- are you asking me whether or not there is a specific way in which --- are there any circumstances in which independent support coordination would be permissible?
COMMISSIONER GALBALLY: No. My question was really referring to Mr McNaughton's evidence where he said, well, he implied, some people might choose to not have independent specialist support coordination and that's their choice and control. And I thought that was --- I was asking a question about whether that's an appropriate use of the term "choice and control" actually. That refers to your first statement of putting more meat on the bones of what choice and control really means for people in group homes.
MR DIGHTON: I understand. I can't advance that in particular without getting more information on that specific point but, again, I'm happy to do so.
COMMISSIONER GALBALLY: Thank you.
CHAIR: Mr Dighton, if you could follow the same procedure, let us have that information in writing within seven days and, of course, provide copies to other parties who have leave to appear.
COMMISSIONER GALBALLY: I have one more question, if that's alright, Chair.
CHAIR: Just a moment, one more question.
COMMISSIONER GALBALLY: This is the question relating to any plans that there may be to require that an occupancy agreement and a service agreement are provided by separate entities genuinely separate entities too, not Chinese screen separate entities so that each resident can choose their own service provider with their SIL package, can choose whichever service provider they wish to have with their SIL package?
MR DIGHTON: I understand, Commissioner, and, again, I note your advised use of the word "require" in circumstances where the evidence of Mr McNaughton went to preference. As to a future plan to make that a requirement, I don't --- again, I don't have those direct instructions but it's something I can obtain.
COMMISSIONER GALBALLY: Thank you.
CHAIR: Yes, thank you. Commissioner McEwin, do you have any questions?
COMMISSIONER McEWIN: Just one, perhaps as a follow up to that last question, Mr Dighton. It relates specifically to paragraph 47 in your submission. If there is --- if there are multiple agreements, for example, an occupancy agreement and a service agreement, can you tell me if both of those are reviewed as part of the NDIS practice standards and quality indicators? Thank you.
MR DIGHTON: My understanding, and this is an understanding that wasn't reflected on the evidence in the hearing, so I would immediately qualify it by I will check and come back to you if its the case but my understanding is yes.
COMMISSIONER McEWIN: Thank you. Thank you, Chair.
CHAIR: Thank you very much. Thank you, Mr Dighton, if you could do that. One more question from me. Paragraph 32 of your written submissions expressed support for Counsel Assisting's submission that Sunnyfield should not have asserted legal professional privilege over any of Ms Piaud's reports, that they should have been provided in full to the NDIS Commission. What is the reasoning behind that support expressed for Counsel Assisting's submission?
MR DIGHTON: On the evidence that was given by Commissioner Head in the hearing and I think in response to a question from you, Chair, where if the investigation has been either sought or is known to be part of the complaint and compliance process, as between the provider and the NDIS Commission, it would seem, in your words, it was consistent, and in the words of Commissioner Head it was in the spirit of the process, that the results of that investigation would be provided in full rather than a summary of it.
CHAIR: Yes, thank you. I understand. Thank you very much, Mr Dighton. It's now 12.40, or nearly 12.40. I suggest that we resume at 1.30 and then that will --- we'll start at that time with the submissions to be made on behalf of Sunnyfield. Thank you, so we'll adjourn until 1.30.
ADJOURNED [12.40 PM]
RESUMED [1.34 PM]
CHAIR: Yes, Mr Duggan.
SUBMISSIONS BY MR DUGGAN
MR DUGGAN: Thank you, Chair.
Commissioners, if I may, I'd like to start with the issue of corporate governance. There are three adverse findings in particular that Counsel Assisting seeks in relation to this issue. If I can deal with Finding 3 first, and the adverse finding, as it is expressed, it uses language such as failure to ensure and talks about posing a risk that direct and lived experience of people with a disability was not represented. Using that sort of language, in our submission, is suggestive of wrongdoing.
Sunnyfield resists the suggestion that there is any wrongdoing in the way in which its corporate governance is structured. That does not mean that Sunnyfield does not accept its procedures and its governance structures could not be enhanced and improved.
The current model, and Commissioners, you may recall some evidence about this and there are some submissions about this, the current model is that there is a membership structure, and the membership structure allows indirect representation of people with disability through family members and guardians.
There's also an informal way in which those people are supported in that there's an appointment to the board of members, and so ordinarily if someone becomes a director they usually have a connection with someone with disability, and if one looks at the bios of the board members, there are a number of them that have a direct connection to people with disability. And so there's an understanding there, it's submitted, of broad directors of the needs of people with disability.
CHAIR: Isn't there a difference between people with lived experience with disability, that is, people with disability, and people who may be family members or supporters of people with lived experience with disability. Your submission seems to equate a board member who has, and I understand obviously the family issues and so forth that would be related to this, but a board member who has a child or knows somebody who has a particular disability, that doesn't make that member a person with lived experience of disability in the relevant sense, does it?
MR DUGGAN: The experience is a vicarious one, it's not a direct experience of having lived with disability, and I accept your point in relation to that, Chair.
CHAIR: Yes, I'm not minimising that experience of family members and so forth, I'm just querying the use of that language which does appear in the submission.
MR DUGGAN: Yes, I accept that point. In any event, the point I'm seeking to make is that Sunnyfield embraces ways in which it can better give representation of people with disability, whether that's people on its Board or whether it's part of its senior leadership team or some other way to give it a voice. The issue taken in relation to the recommended finding is that it's very negative. Sunnyfield submits that it would be better to express it as a positive recommendation rather than saying there's a failure, there's a risk and so on. For example, the positive recommendation might be
that disability service providers should strive to enhance representation of people with disability on the board, there should be structures to encourage nomination and election of board members, who have disability. Commissioner Galbally, during the hearing, raised a good point and that was it's a fairly common practice to have a director who is a person with disability and also a leader in their community on the board of an organisation such as Sunnyfield. We would embrace recommendations along those lines.
There may be other suggested recommendations such as their use of board subcommittees, which could include members on those subcommittees who have lived experience with disability or who are employees working in shared living accommodation so that that perspective can also find representation.
CHAIR: Mr Duggan, if Sunnyfield accepts the virtue of what you've just described, what's to stop it or has stopped it doing something about it?
MR DUGGAN: Nothing. Absolutely nothing, chair. And the Royal Commission in this forum has been beneficial in terms of shining a light on the structures of the organisation, and it's accepted that the model that was put in place for Sunnyfield was put in place a long time ago and may need updating. There's no doubt about that. And we're open to that discussion to positive recommendations.
CHAIR: Are you able to tell us that Sunnyfield has in fact done anything to embrace these propositions, or is this something for the future for Sunnyfield's Board to consider?
MR DUGGAN: I'm not in a position to set out any particular changes its made in terms of its board structure. I would anticipate that the constitution would need to be changed if there were formal changes to be made to the way in which board members are elected, but I don't have any further material to put to the commission that wasn't raised during the public hearing.
CHAIR: As I understood your submissions, they are to the effect that it would not be open as a matter of law for Sunnyfield, for example, to include on the Board a person with intellectual disability. Is that your position?
MR DUGGAN: No, and I apologise for the ambiguity in relation to that. It was really a reference to the fact that during the hearing the CEO, Ms Cuddihy, gave evidence that one of the reasons there may not be appointments to the boards of persons with intellectual disability is the issue of capacity. Now, the perception that capacity may be an obstacle to appointment is a matter that needs to be taken into account. Now, if there is no issue in relation to that, then that's one thing. But the Law Reform Commission looked into issues of capacity in some detail and it was clear that supported decision making was the key to having people with intellectual disability serve in leadership positions like on the board. But it wasn't intended through the submission to suggest that you could not have a person with intellectual disability on the Board. No, that was not the submission.
CHAIR: I must say I did read it that way, but thank you for that clarification. You or the board you represent may be familiar with the Council for Intellectual Disability. Do you know of that organisation?
MR DUGGAN: No, I don't, Chair.
CHAIR: If you did, and you go to the annual report, you will see that the Council for Intellectual Disability, which has an income between $2 million and $3 million a year, so it's not trivial, has a number of people with intellectual disability on the board, including the chair. So it would be odd if that organisation somehow was in conflict with legal requirements. We have had a number of people from CID give evidence at these hearings. So it's not as though there isn't a precedent for --- and that's an incorporated body, limited by guarantee, charitable status, as is Sunnyfield. So in case anybody needs a precedent, there it is.
MR DUGGAN: I'm indebted to the Commission for pointing that out. Thank you.
Can I deal next with adverse Finding 4, if I may, and that dealt with a slightly different issue. That dealt with the weighting on the board of those with financial and commercial experience rather than people with direct experience of providing support services to people with disability. So it wasn't talking about board representation with people with lived experience of disability, it was relating to those who provided the support services.
The criticism really seems to be that the Board is too corporate. It submitted that that's an unfair criticism for a couple of reasons. The first reason is that implicit in the criticism is that it suggests the current board don't understand the challenges of providing support services to people with disability and I would commend the bios of a number of the directors to the Commission which is set out in our written submissions to demonstrate that that's clearly not the case. There clearly is an understanding of the current board of the issues related to the provision of support services.
CHAIR: Why would we draw that conclusion from the bios?
MR DUGGAN: I can take you to the details, but there are a number of directors who have children or close relatives with disability, and it's clear from reading the bios that they have --- they would have been exposed to the issues relating to the provision of supports for those people.
CHAIR: I understand that, and I understand what it means to have a relative or someone close who has a serious disability. I'm just wondering why that fact provides the necessary experience and expertise to provide the services that this organisation provides and ensures that --- not just in relation to the family member but generally, there are safeguards in place that will prevent violence, abuse and neglect, exploitation of people under the care of the organisation. It's not obvious to
me that it necessarily follows.
MR DUGGAN: Some of those directors do have or have had family members who were resident at Sunnyfield or receiving services from Sunnyfield.
CHAIR: I follow that.
MR DUGGAN: But just in relation to the wording of the recommended adverse finding, it refers to people with direct experience of providing support services, in my submission, that there would be an understanding on the part of those directors on the board who have family members as to the nature of the support services and what issues might arise.
CHAIR: What do you say about Dr Carter, who apparently considers that Sunnyfield has been incredibly supportive to [redacted] and his family for many years and has always gone the extra yard? Is that in relation to his own child, is it?
MR DUGGAN: Sorry, what paragraph?
CHAIR: Page 16 at number 9. Sorry, I shouldn't have mentioned the name, we will redact the name. But there's a daughter --- I'm just wondering what the relevance of that is in a submission. The fact that somebody considers that a relative has been well treated elsewhere within the organisation, how does that help? It's page 16 at number 9.
MR DUGGAN: Thank you.
CHAIR: I shouldn't have mentioned the name. We'll redact the name.
MR DUGGAN: I don't think that has particular relevance to this issue that we're discussing at the moment.
CHAIR: Thank you.
MR DUGGAN: But there is an issue about --- I withdraw that submission. So just going back to the issue of this criticism in the recommended finding, the second issue that I wanted to address is that it is a large and complex organisation in a heavily regulated sector dealing with over 1,200 clients and staff of over 1,000 with employment costs over $80 million. The importance of suitably qualified individuals on the board is underscored by a couple of examples. One is Endeavour, that was a disability services organisation that was taken over by Sunnyfield in the Hunter Valley because that had some financial issues, as I understand it. And there's also the example of Disability Services Australia which, the Commission may be aware of, recently went into voluntary administration. That's an organisation in similar size to Sunnyfield.
The criticism in recommended Finding 4 seems to be that you shouldn't have a
weighting towards people with commercial and financial experience. Those two examples illustrate why such experience is necessary ---
CHAIR: Mr Duggan, what I would have thought that it demonstrates is that where you have an organisation that has an income stream of something like $100 million a year, you need some people on the board who understand fully the financial aspects of the organisation, and understand the management practices that are required to ensure that the organisation remains solvent and uses its resources wisely. That's a very different thing from saying that the organisation should consist almost entirely of such people. That's the issue, I think, that Ms Eastman was raising in the submissions that she has put. Nobody, I don't think, is suggesting, I doubt that Commissioners Galbally or McEwin are going to suggest that there sought to be nobody on a board that has financial expertise. It's the balance, it's the understanding of the needs and aspirations of people with disability, in this case people with intellectual disability and the need to ensure not just that family members are looked after, but that everybody is.
MR DUGGAN: I certainly agree with that, and there's a distinction between the point I was making in relation to representation of people with lived experience of disability and this recommended finding, which seems to be slightly differently expressed, which talks about having representation on the board of people with experience at providing support services, which is a slightly different issue.
CHAIR: Yes, all right. Thank you.
MR DUGGAN: Can I next address the issue of visits, which is Recommended Adverse Finding 5. That seeks a finding that there was no operational system for board directors to make regular visits to Sunnyfield shared independent living houses. Can I please take the Commission to Annexure A to our submissions at page 7. I'm not sure whether that can come up on the screen, or how easy it is to locate.
CHAIR: I'm not sure whether that can be brought up.
MR DUGGAN: All right.
CHAIR: Mr Duggan, I'm sorry about that, but if you don't mind, just proceed, and if there is some way of bringing it up, I'm sure those responsible will do so.
MR DUGGAN: Thank you. The top of the document appears to be part of a board pack in November 2019. If you look under the heading "For noting" it says:
Directors have requested to visit Sunnyfield services across New South Wales and the ACT for the purposes of organisational familiarisation, gaining knowledge and undertaking workplace health and safety inspections. Group tours of Sunnyfield services are very difficult to organise regarding suitable times for directors and are imposing for clients and staff whilst delivering normal services.
So the first thing that that indicates is that the directors were trying to achieve this, that they did actually want to engage in visits to the facilities, including the shared living accommodation.
CHAIR: In November 2019?
MR DUGGAN: Yes.
MR DUGGAN: The proposal is set out under the heading there that directors and associates individually book with the CEO office so that visits could be undertaken with minimal service interruption, and then there's a schedule as to how that might occur and shared living is included in that. And then at the end of that table, there's a reference to a director's feedback form for the service visit so that various thoughts could be captured, and that feedback form is over the page, which allows the director to indicate what is working, what is not working, and so on.
CHAIR: What is it that you derive from this, Mr Duggan?
MR DUGGAN: What we seek to derive is that it demonstrates Adverse Finding 5 should not be made because there was a system in place for board directors to make regular visits, or at least it was proposed, and the evidence of Ms Cuddihy was that this did not go ahead because of COVID restrictions.
CHAIR: This demonstrates that something was proposed in November 2019.
MR DUGGAN: Yes.
CHAIR: But the question that arises is, why wasn't it done long before, and that's, I think, what the finding posted?
MR DUGGAN: The proposed finding says that there was no operational system at the time prior to the public hearing. So assuming that means May 2021 there was --- the point being made is that there was a system proposed, but there was a reason it didn't go ahead, and that was the onset of COVID ---
CHAIR: Was there a reason why there was no such system well before November 2019?
MR DUGGAN: I would have to seek instructions on that, but I suppose the point being made is that the directors, the board, have asked to visit the facilities, including the shared living homes, and there appears to be a criticism in Adverse Finding 5 that there's no operational system, or that the directors were trying to put one in place in November 2019.
CHAIR: Yes, go ahead.
MR DUGGAN: Thank you, Chair. Can I deal next with the issue of causation.
Chair, you raised the very valid point that you can have concurrent causes in terms of an event, and it's clear that something went wrong in the house. There's no doubt about that. However, the issue for Sunnyfield, in terms of the adverse findings made against it, is that they isolate Sunnyfield, and they make findings which are taken, we say, out of context. And the reason for that is that there's an interconnectedness between a disability service provider and government entities and other service providers in terms of the information flow and in terms of the processes that disability service providers have in place. And to take Sunnyfield in isolation without looking at the other information available, in this case in relation to SP1, is unfair. It's not a question of an inability to have concurrent causes, we accept that, of course, that there can be concurrent causes for an event, but it's more a question of taking things out of context.
Can I deal, in that regard, to the Ombudsman's submissions and hopefully ---
CHAIR: Just before we get there, can I just put the context as I see it. There are two possibilities. Either the Ombudsman should have conveyed information relating to SP1's antecedents or the Ombudsman, as Ms Furness submits, was entitled, if not bound, not to divulge the information?
MR DUGGAN: Yes.
CHAIR: If the latter, then the only relevant actions or inactions are those of Sunnyfield, is that not right?
MR DUGGAN: We wouldn't look at it in such a binary way, Chair. It may be that the Ombudsman was not obliged to disclose this information at law. But that may be something that the Commission wishes to express a view on, whether that's an acceptable state of affairs.
CHAIR: Let's pause there. There may be two separate questions, whether it's a good idea for an Ombudsman to have that degree of immunity, well, that's a question of policy and legislative judgment. Let's take the situation as it was at the relevant time. If the Ombudsman was, as Ms Furness submits, prevented from divulging the information, it must follow, doesn't it, that the only relevant actor as far as the abuse of these premises was concerned, was Sunnyfield?
MR DUGGAN: There's SP1, of course, but as a matter of logic, Sunnyfield has certainly can't resist the proposition that something went wrong in a house that it provides services for.
CHAIR: I'm putting a rather different proposition to you. That is if, Ms Furness is right, it's only Sunnyfield that could have prevented the violence and abuse that
concededly took place at the premises, and it's not taking anything out of context to look at what Sunnyfield could have and should have done to prevent that.
MR DUGGAN: As an organisation that may be true, there may be individual workers in the house that could have done something, including SP2. There's also the issue of the relationship between service providers. So in this case, SP1 was --- had, working with children checks carried out by a number of service providers in 2017, 2018, and there's an issue as to how those service providers communicate with each other. So there was no communication to Sunnyfield, and I'm not suggesting there is any legal obligation to do this, but there was no communication between any of the previous employers of SP1 and Sunnyfield.
CHAIR: All right, let's assume for the sake of argument that the NSW Ombudsman had power to divulge this information to Sunnyfield but did not do so. What I'm struggling with is how that diminishes Sunnyfield's responsibility in any way. Can you explain how it diminishes Sunnyfield's responsibility for a state of affairs at the premises, that is, a fact that somebody else could have stopped it but didn't? Does that alter Sunnyfield's responsibility?
MR DUGGAN: No, but the submission being made is that there's an unfairness in singling out Sunnyfield for its conduct, if that finding ignores the context, and particularly the context in which a government agency was possessed of knowledge about SP1 that was far greater than ---
CHAIR: I thought you answered my question no, it doesn't diminish Sunnyfield's responsibility. But then what followed was, "but Sunnyfield isn't as responsible as otherwise would be the case". I'm not sure that your first answer is consistent with the rest of your answer.
MR DUGGAN: No, I'm not suggesting that Sunnyfield's responsibility is diminished. What I'm suggesting is that there is an unfairness in singling out Sunnyfield's conduct and isolating its conduct and examining its conduct in isolation to what was known about SP1 by government agencies and by other individuals. But I'm not suggesting it diminishes the conduct or the responsibility, rather.
CHAIR: All right, thank you.
MR DUGGAN: If I may develop the submission in relation to what the Ombudsman has said in writing, what the Ombudsman says in its submissions, at paragraph 53, is that it was not surprising that the decision was ultimately made not to send the information to Sunnyfield. This is the information about SP1 and previous allegations. That submission assumes that there was, in fact, a decision that was made not to send the information. There's no evidence before this Commission that there was a positive decision not to send the information. Can I go to Exhibit 319 to develop that point, and if possible, to have that brought up onscreen. Thank you to whoever is operating the computer.
That document is a file note of a case meeting with the Deputy Ombudsman on 7 November 2018, and it discusses on the first page various allegations made against SP1 and refers to section 34 at the bottom of the page. But it's page 3 in particular that I want to draw the Commission's attention to.
Page 3 says that specifically in relation to SP1 and the release of information, and there's an individual name there who I assume is the Deputy Ombudsman, advised we "release information to Sunnyfield (Current employer) and to all the agencies he is currently verifying for working with children checks. We can do this under section 34(1)(b2)”, and then it sets out that process and the question of forming a belief about likelihood of harm and so on. Then it says, in a letter to these agencies, we state a lot of allegations over a period of time, doesn't need to reach findings, consider re risks. So at that point at least, there appears to be a belief, on the part of the Deputy Ombudsman at least, that there is some likelihood of harm, and we would embrace the concept that that's a reasonable belief.
That position, as we understand it from the documents, did not ever change. There were a number of drafts, then, prepared to Ms Cuddihy as CEO of Sunnyfield informing Sunnyfield of the various allegations against SP1 and those iterative drafts seem to change minimally over time but were never sent and never finalised.
If I can go to, please, the next exhibit, which is 231. And it's, I think, page 3 of that document, page 3 of that document is one of the draft letters to Ms Cuddihy that was never sent, and there's a notation at the top in handwriting "12 December 2018, phone call from" and one assumes that's the Deputy Ombudsman, "Released to the OCG under 16A and liaise with someone re this." It's a bit ambiguous as to what this is, whether it's the draft letter or the 16A release, but that's the form of the letter to be signed by the Deputy Ombudsman that was never sent.
So in December, or mid December, there's certainly a belief, one would have thought, that this should still be sent, consistent with the first document I took the Commission to.
There is then a reference in the Ombudsman's submissions to the fact that the Deputy Ombudsman finished up in his role some time in December, and that's at paragraph 35 of the Ombudsman's submissions. I don't need to go to that. But then the next document I'd like to go to is Exhibit 230, and that is the letter that was sent to the Office of the Children's Guardian. The Commission will note the date at the top, 7 January 2018. It's clear from the context that that's a typo, that's actually January 2019 that that letter was sent. This is the chapter 16A notification to the OCG about SP1.
The relevance of this document is that it seems that there was contemplation that the OCG would be informed about SP1 and Sunnyfield would be. The Deputy Ombudsman resigns or retires or leaves office in December 2018, and then the trail goes cold in relation to Sunnyfield. It's not open to the Commission to make a positive finding that this just slipped through the cracks, but that is certainly a
possibility, and the ultimate submission being made is that there's no evidence that a positive decision was made not to send this information to Sunnyfield.
CHAIR: Can we just have the rest of that document bought up on the screen? It may not be anything else relevant. Thank you.
Can you remind us, please, of the criterion or criteria for the release of information under chapter 16A of the Children and Young Persons Act?
MR DUGGAN: I'm just looking it up now. There are some objects and principles set out at section 245A ---
CHAIR: I don't want you to go through the Act as we're going, I thought there might be a short answer. We can have a look at the relevant provisions ourselves, but I was just wondering about the relevance of this document to the submission you're making.
MR DUGGAN: The section is 245C, but that section relates to the safety, welfare and wellbeing of a particular child or young person, and that concept of welfare, safety and wellbeing, is that SP1 may pose a risk to young persons in his care. Now, there was some reference in some of the earlier documents as to why the OCG needed to be informed, and it's submitted it's clear from the internal consideration within the Ombudsman's office that the concern was that SP1 was a risk to people within his care.
The other issue is that the Children's Guardian is the entity that provides the working with children checks. In one of these documents there's a list of those checks which had been verified by the office to a number of the service providers and so it's submitted that it's relevant to that function. That as part of the policies and procedures of disability service organisations in recruitment, they obtain a police check, they obtain a working with children check and so on. That's one of the reasons why the Ombudsman will be looking to inform the Office of the Children's Guardian under chapter 16A.
But bringing it back to the point, there's a submission made by the Ombudsman, and I think it's at paragraph 53 of the Ombudsman's submissions, the second sentence,
The test which requires the Ombudsman to believe on reasonable grounds that there is a risk of harm was clearly not met.
The Commission should not accept that submission, particularly in circumstances where all of the Ombudsman's internal documentation suggests that it was met.
CHAIR: Mr Duggan, I understand that submission, I understand what you're saying about the absence of the Ombudsman notifying Sunnyfield about SP1 as a risk to people within his care. When one reads your submissions as a whole, it does have the flavour that if we were to find that the Ombudsman should have released this
information, that somehow exonerates Sunnyfield. That's the connection I have great difficulty with, and I'm not quite sure why the actions or inaction of the Ombudsman have anything much to do with the issues confronting Sunnyfield.
MR DUGGAN: It doesn't exonerate Sunnyfield. That's not the intent of the submission. But if I can go to Finding 11 as perhaps the best way to discuss this issue, Adverse Finding 11 says that Sunnyfield's specific policies and processes for prevents and responding to violence and so on failed.
Now, one of the policies and processes is conducting police checks, conducting working with children checks, relying on government agencies, to provide information about employees. If the adverse recommendation --- sorry, adverse finding is that the recruitment of the policies failed in that relevant respect or that Sunnyfield's policies failed because it didn't carry out the right checks or it didn't access the right information, then that must be viewed in the context of what it was told by others and what it was required to be told by others.
Really, Sunnyfield, in one sense, was operating with its hands tied behind its back in relation to a critical piece of information, that being that SP1 had had a series of very serious allegations made against him and was a risk. So that's ---
CHAIR: I think, as was discussed with Ms Eastman, as I follow it, the thrust of this proposed finding is not so much the recruitment of SP1, as the failure, as the argument proceeds, of Sunnyfield to act upon the multiple red flags that have been identified and had Sunnyfield done that, then it would have implemented its procedures in a way that prevented, would have prevented the violence and abuse that was experienced by people at the home. I think that's the substance of what is being put.
MR DUGGAN: Yes. The question is precisely what policies and procedures failed and what can Sunnyfield as an organisation do better in future to address that. It's not really identified with great clarity as to what policies and procedures are being talked about in this Adverse Finding 11.
Can I address a further issue in relation to the policies and procedures and how they operate. Can I take you, Commission, to Exhibit 319, please? This is a document I went to a moment ago which is the case meeting with the Deputy Ombudsman. Can I go to page 2 of this document, please. This is advice provided by the Deputy Ombudsman in relation to recruitment checks and probity inquiries and so on in relation to Sunnyfield in relation to SP1. It's expressed in various ways, but perhaps number 5 is the clearest way in which the advice is expressed. And that says perspective employees to declare any inquiry investigation they have --- they have been subject to whilst employed by any organisation of any allegation including formal and informal inquiries in relation to the treatment of any person.
So the suggestion there by the Deputy Ombudsman boils down to the fact that you should ask your interviewee whether there have been any investigations in relation to
their past employment.
If I can go to Exhibit 209, please. This is a document, as the heading suggests, which is the employment application form of SP1.
CHAIR: Mr Duggan, I'm wondering whether you're not making submissions in opposition to submissions that were never made. I don't understand --- maybe I am missing something --- I don't understand the proposed findings to be critical of Sunnyfield's employment practices. The only finding that relates to the engagement of SP1 is proposed Finding 15 that SP1’s failure to provide his whole history impaired Sunnyfield from conducting thorough pre employment checks. And I think Ms Eastman explained that that's not intended to be a finding that is adverse to Sunnyfield. So in a way you're a bit like the man who has lost something and is looking under a light, and he's asked by a passerby, "What are you looking for and why are you looking there?" He says, "I've lost it, it was over there." "Why are you looking under light, when it's light?" It's not really responsive to the particular submission that is have been made.
MR DUGGAN: It is in this sense, that the recommending finding, particularly recommended Finding 11 is general, it's a generalised finding about specific policies and processes which failed. This is a particular policy and process which is recommended by the Ombudsman, it appears, in finding out whether or not you're dealing with someone who may have previous allegations made against them. Clearly SP1 has lied. The context and the fact that the Ombudsman did not inform Sunnyfield of this issue is relevant to the failure of the processes of the organisation.
CHAIR: Yes, I think it depends upon which processes are being referred to, and I accept there's some ambiguity about that proposed finding, but it was the subject of explanation by Ms Eastman in the interchange between Ms Eastman and myself.
Rather deal with a submission that has not been made, can I suggest you revert to submissions that have been made against you?
MR DUGGAN: Certainly. Thanks you, Commission, Chair.
Can I deal next with submissions made by Eliza, or on behalf of Melissa. There was a submission made in relation to CCTV to the effect that Sunnyfield should give consideration to installing CCTV in the house. That is a recommendation that is accepted or should be accepted by the Commission, in our submission. The issue of CCTV is one that Sunnyfield would gratefully receive guidance on from the Commission. It raises a number of privacy issues, Workplace Surveillance Act issues, and so on, and there may be circumstances in which some members of the house would like the CCTV but others would not and so on. So any guidance that the Commission was able to give would be well received. But the short point is that we embrace that recommended finding by Eliza.
In relation to the second recommended finding that is sought by Eliza, which is on
the last page of Eliza's submissions, it seeks a finding that Sunnyfield did not act --- did not appropriately act on Eliza's concerns as to SP1's use of an unauthorised restrictive practice at a previous place of employment. The submissions indicate that this relates to information that was inquired about by Mr Swain of the previous provider, and that that inquiry was not fruitful. However, the Commission did not hear from the previous service provider, there's no indication as to what SP1 was talking about in terms of the unrestrained practice, nor did the Commission have the benefit of hearing from Mr Swain about whether any further steps were taken or what, if any, action was conducted in relation to this particular issue. It's a very fact specific finding that is sought on an isolated question.
Sunnyfield accepts it's the sort of matter about which a service provider should inquire further about, but it's submitted that it's not necessary for the Commission to determine this particular issue in circumstances where it wasn't fully explored in the public hearing.
Can I deal with the issue of the termination notice. Sunnyfield expressed regret, sorry, has expressed regret for the distressed caused by the sending of the termination letters, that's been described, and as Counsel Assisting pointed out in her submissions this morning, it's a situation that certainly could have been handled better by Sunnyfield.
It's submitted that Sunnyfield would never have evicted Melissa onto the street without proper supports in place
CHAIR: How did Eliza know that?
MR DUGGAN: Quite, Chair
CHAIR: At the time she received the letter of termination giving three months' notice, how would Eliza have known that?
MR DUGGAN: She would not have. And what I just submitted is not what's said in the letters. It's accepted that Sunnyfield should have discussed the issues fulsomely and personally with Eliza and Melissa rather than sending legal letters.
CHAIR: Isn't that the relevant point rather than the assertion which may now be true, but the assertion that Sunnyfield would never have evicted Melissa out into the street? That the critical question is what did Sunnyfield do, what impact would have it had, and then why did Sunnyfield do it at the time when it did? They're the issues, aren't they?
MR DUGGAN: Yes, and certainly in relation to the first issue, Sunnyfield has expressed regret, the CEO expressed regret a number of times about this and there's no submission contrary to that, that this ought to be made.
In relation to the current position, Counsel Assisting referred the Commission, I
think, to the correspondence which has been sent to Eliza confirming that the notice of termination was no longer current and steps have also been taken for mediation to occur between Sunnyfield and the three families, consistent with the recommendations sought by Counsel Assisting in that regard. If the Commission would like to view that correspondence, I note that it's at page 13 of Annexure A to our submissions, but I don't need to go to it for the moment.
CHAIR: I'm not sure my version of Annexure A actually has pagination. It's sporadic, I see. It starts again at you're referring at page 13 to the letter about the mediation conference?
MR DUGGAN: Yes, there is a reference there to the proposed mediation.
MS EASTMAN: I'm sorry to interrupt at this point. Part of the difficulty in making this material available is that the solicitors from the Royal Commission wrote to Sunnyfield's solicitors on 2 September to ask about the documents annexed to the Sunnyfield submissions, and what was the status of these documents and whether it was intended that these documents complies new or further evidence. We have not received a response to that request, and so there is some uncertainty as to whether the documents Mr Duggan has referred to as annexures to the submissions are intended to be submissions or intended to be new evidence. So there may be some difficulty in locating this material because we have not tendered this material and it's not part of the exhibits that are available to the parties. So there are some uncertainty about it. I'm raising that now, Chair, because, as you say, pagination is unclear on some aspects, and I don't want either the transcript or any parties or the Commissioners who are participating remotely to get lost.
CHAIR: Yes, in fact the pages are numbered but in some pages the numbering is obscured. But more importantly, Mr Duggan, what is the status of these documents? And, in particular, if you go, for example, to the document at page 9 dated 3 June 2021, that's a document that doesn't appear to have an addressee, that is signed by Ms Cuddihy. Are you saying or do you wish to tender this document as a letter that was, in fact, sent to Eliza?
MR DUGGAN: Yes, although I'm not sure that one, Chair, that you've referred to was sent to Eliza. I've got a redacted version and it's not clear who the addressee of that particular letter was. But the short point ---
CHAIR: Sorry, are you placing any reliance upon this material as establishing that Sunnyfield, through Ms Cuddihy, has made an apology to Eliza?
MR DUGGAN: Yes, it's in answer to paragraph 504 of Counsel Assisting's submissions.
CHAIR: If you're putting this forward as evidence of an apology after the event, as it were, after the hearing, then we have to establish, don't we, the status of this material? You have to establish by evidence --- I'm not suggesting it wasn't sent, but
you have to establish by evidence that there was a letter sent in these terms, or if not in these terms, establishing the terms in which the letter of apology was in fact sent.
MR DUGGAN: I hadn't understood there was an issue about this documentation being before the Commission, but in paragraph 504 of Counsel Assisting's submissions, a recommendation is sought that Sunnyfield should clarify in writing that the eviction notice sent to Eliza had been withdrawn. That is an issue which is raised in this correspondence. 504b, Sunnyfield should engage in discussions with Eliza and so on, well there's discussion about that in this correspondence.
CHAIR: I understand that, the point I'm making, following on from what Ms Eastman has said, it may well be the case that these letters, which appear in Annexure A, were in fact sent on or about the date that they bear, and the reason they don't have the name in case of an addressee is because it's been redacted, and because there are three letters of apology, one might infer that letters were sent to the supporters, parents, guardians, of the three people in the group home. But it needs to be established, not just annexed to submissions that come in after the hearing has been held without any explanation as to what they actually are and evidentiary support as to when they were sent.
So you will need to address that, and if you wish to have these documents in evidence, what I suggest you do is to have a short affidavit that annexes the documents and tells us when they were sent so that we have an evidentiary basis for reaching the conclusion that they have been sent in those terms and similarly, if you're relying upon any of the other material in Annexure A, then it does need to be verified in some way or another.
MR DUGGAN: Thank you for clarifying.
CHAIR: If you can do that within seven days and provide copies to the other parties, we can determine a decision will have to be made about it, but on the basis of that material, a determination can be made as to whether the material should be admitted into evidence, and Counsel Assisting may have some views about that.
MR DUGGAN: Thank you, Chair. There is a letter from my instructing solicitors which is part of Annexure A which explains what this material is. But I take onboard what you've said and I will take up the invitation to prepare an affidavit.
CHAIR: What you might do, assuming that that evidence --- that material comes and is admitted into evidence, you might direct attention to the terms of the apology:
On behalf of Sunnyfield, I extend to you an unreserved apology for the unacceptable actions and other matters that occurred at but not expressing our apology sooner.
I must say, reading that, I'm not sure at all what Sunnyfield is apologising for. You might take that onboard as well. Are they apologising for the fact that SP1
misconducted himself, but we're not responsible? Or are they saying "We accept responsibility if" --- it looks awfully like a lawyer's letter.
MR DUGGAN: I take that onboard. Thank you, Chair.
Can I address the issue of prevention of abuse.
MR DUGGAN: It's submitted that any findings that are made should accommodate the context in which Sunnyfield took over the services and the challenges it faced from the very beginning in relation to this house. There appeared to be a perfect storm. There was a quick handover from the previous provider, there was a transition in which the previous staff were gone by lunch on the first day, as I understand it. I've referred to the fact that the information wasn't provided by the Ombudsman and I won't make further submissions about that, but that is part of the context. There's also the fact that SP1 lied in his recruitment process, and there's a specific adverse finding made in relation to that which we would embrace.
There was also a cultural reluctance within the workers, in the house to report SP1 because there was a perception that he wielded power. One way in which he did wield power over the staff was that he had the power over the roster, and there was some fear that if staff reported SP1 further up the chain that they would lose their shifts.
The reality is that this was a very complex situation, and any findings that the Commission make in relation to this should reflect that complexity in our submission.
The findings should also accommodate the fact that things have improved dramatically since SP1 and SP2 have been removed and should, in our submission, refer to the fact that the response by Sunnyfield, in relation to learning of the full nature of SP1's conduct was entirely appropriate.
Now, that's not a matter in dispute, but given that a number of adverse findings are sought against Sunnyfield, it's submitted that a positive finding should be made in relation to its response. This is not a situation where there's been some sort of institutional cover up. Quite the opposite. As soon as Sunnyfield management were seized of the true nature of SP1's conduct, SP1, and I should include SP2 in that, they were both suspended, they never returned to work. Things improved dramatically from that point, according to Ms Piaud. And the NDIS was notified, the Ombudsman was notified, the police were notified and Ms Piaud was appointed as the independent investigator. That, of itself, was a step which was not required by law but which Sunnyfield undertook as an appropriate response.
The other way in which Sunnyfield has responded is to look at its own processes. The service coordinator of the house is no longer in charge of rostering, so the
cultural issue which existed with SP1 hopefully would no longer occur. An experienced service coordinator was put in charge of this particular house to improve things. The regional manager now has increased visibility and there's a protocol in place for random visits to be conducted of shared living accommodation and there's also increased face to face interaction with staff. One of the issues identified by Ms Piaud was that staff were reluctant to come forward and were reluctant to speak to management and so that change is designed to address that particular issue.
So the submission being made is that those positive factors should be included in whatever findings the Commission makes in relation to prevention issues.
The other issue I wanted to deal with was that of legal professional privilege. I did not understand, and I may be corrected, but I did not understand the evidence of the NDIS Commissioner to suggest that Sunnyfield had not been candid with the NDIS in terms of the information being provided about what happened in relation to the various complaints against SP1 and SP2.
There was a question asked of the Commissioner Head and also of his counsel earlier today about legal professional privilege in relation to experts reports. And as I understood Commissioner Head's evidence about that, it was not directed towards the Ms Piaud situation of an independent expert that was retained by Sunnyfield off its own bat. I understood Commissioner Head's evidence to be directed towards a situation where the NDIS exercises its power to require an investigation to be carried out. In those circumstances, it would not be appropriate for legal professional privilege to be claimed over any expert report that was the product of that process.
That certainly is a position that we wouldn't seek to be heard against. However, this situation was different. The purpose of the legal professional privilege in this case was because of the industrial relations dispute that was brewing between SP1 and SP2 and Sunnyfield, and if there was a disclosure of the four reports to the NDIS or to the families, there was the distinct possibility that privilege would be waived against SP1 and SP2.
Now, there wasn't, and I don't understand there to be any suggestion, particularly by the NDIS, there's anything underhanded in the claim for legal professional privilege in relation to the industrial relations dispute ---
CHAIR: I don't think anybody's suggesting it was underhanded. Why was the report privileged in the first place?
MR DUGGAN: Because of the litigation or potential litigation involving SP1 and SP2, at least in part. I may be able to find a reference.
CHAIR: So the sole purpose of obtaining this document was for the purpose of giving legal advice for pending legal proceedings?
MR DUGGAN: The issue of the purpose wasn't expressly put to any witness during
the hearing, and so there is no direct evidence from any witnesses as I understand it. There might have been something from Ms Piaud, but certainly no one within Sunnyfield or Sunnyfield's solicitors at the time as to what the purpose was but one can draw the inference that at least some of the materials in these reports was prepared for, specifically for the industrial relations dispute between SP1 and SP2 and that's born out by the fact that when they were both terminated, the termination letters specifically referred to the findings of Ms Piaud and the language of Ms Piaud and reasons for the dismissal.
There were some questions about this during the public hearing because it looked as though they were just being terminated because they hadn't followed policies and procedures. What was really happening, one apprehends, is that they were being given the Al Capone treatment. It was easier to get them on the tax fraud than anything more major. The strongest grounds to dismiss them were on the breach of the protocols, and so Ms Piaud's report was used specifically for that purpose, and there certainly was the possibility of litigation arising out of that dismissal.
CHAIR: What do you say about the material from the Ombudsman that criticised Sunnyfield for not waiving privilege, if there was privilege?
MR DUGGAN: Sorry, Chair, I don't --- which material is that?
CHAIR: That was the question I asked Ms Furness this morning and she referred to a passage in the communications from the Ombudsman, as I recall.
MR DUGGAN: Criticising Sunnyfield for not releasing?
MR DUGGAN: I'm just trying to dig up that reference now so I can answer that question. Was that in the letter of 18 December?
CHAIR: I'm sure Ms Furness can help us. It may be my longer term memory is better than my shorter term memory, but I thought that's what was said this morning.
MR DUGGAN: There was a lot that was said this morning so I may have missed that gem.
MS FURNESS: If I can assist, the document I referred to was, I think, Exhibit 13, was it 227? Or, I'm just checking if there was another one, Exhibit 13 307. That was the letter from the Ombudsman to Sunnyfield, and on page 2 by reference to the NDIA in terms of business. I'm not sure if that's what you were referring to, Chair, but that's the document I certainly referred to.
CHAIR: Yes, that's my recollection. Thank you. If we can't find the relevant passage we'll just pass that one by, I think, just for the moment. There is, by the way, so you're aware of it, Mr Duggan, page 405 of the transcript Ms Cuddihy was
asked a series of questions by Ms Eastman as to the purpose of Sunnyfield asking its external lawyers to engage Ms Piaud. So I just draw that to your attention.
MR DUGGAN: Thank you, Chair.
CHAIR: All right, I think perhaps move on from that issue. What comes next?
MR DUGGAN: I have no further submissions, Commissioner. Thank you.
CHAIR: All right, thank you very much. I will ask Commissioner Galbally first whether she has any questions she would like to put to you.
QUESTIONS BY THE COMMISSION
COMMISSIONER GALBALLY: Yes, thank you, Chair. I've got a couple of questions. Just to follow up the Chair regarding the composition of the Board, I'd just like to know if there are plans on recruiting independent disabled leaders of whatever disability, including intellectual disability, for the Board and within what time frame. If you could come back to me on that, unless you know the answer.
MR DUGGAN: I don't, unfortunately, but I will certainly make inquiries.
COMMISSIONER GALBALLY: My second question was to pick up Ms Eastman's reference, and yours, too, I think, to supported decision making for potential members of the Board or the SLT with an intellectual disability. And I just --- brought me to the question of does Sunnyfield have a process for providing supported decision making for all the residents so that they can exercise their choice and control? That's the first question on that topic.
And then, are support staff trained in supported decision making? And if so, could you please provide the Commission with the training modules. Is that --- you're frozen. You've unfrozen now.
CHAIR: That's the effect of your question!
MR DUGGAN: Commissioner, they're excellent questions. I don't have the answers off the top of my head but I will obtain the answers and provide them to you.
COMMISSIONER GALBALLY: Thank you. My third lot of questions is that Sunnyfield agrees in principle that it is desirable for occupancy and support services to be provided by separate entities, so that a resident is not evicted if they had problems with support services or support services break down. So my first question is that Sunnyfield reports that they've set up Gateway as a separate company. Is Gateway able to evict residents? Under what circumstances? And would Sunnyfield recommend to Gateway to evict(?) services as the only service provider? So that's a
And I was just very struck by despite Sunnyfield embracing the operation of occupancy from support services, that they see it as quite complex and difficult to have numbers of support services coming into a residence. So I would like to understand their concerns more in what have they done, any modelling about the financial or rostering or other impacts of really enabling choice and control for all residents in a single group home in their services, so that they can allow that separation. I'd like to know if there's any modelling that's been done, and any plans to do any.
MR DUGGAN: Thank you for raising those issues. I will take instructions and answer those queries.
CHAIR: Commissioner McEwin, do you have any questions of Mr Duggan?
COMMISSIONER McEWIN: Thank you, Chair. Just a couple of quick points from me. Firstly, to pick up again on that issue of composition of the Board, I really want to understand and I've read your written submissions. If I can take you to paragraph 39 in your written submissions, and it said:
If Sunnyfield was not managed by a board with suitable professional experience, it may risk insolvency, financial hardship .....
Et cetera. So to help me really understand what you are saying, is it Sunnyfield's position that a person with intellectual disability who has expertise, lived expertise of having lived in a group home, could not sit on a board, a Sunnyfield board, along with other people with relevant professional expertise? Can you help me understand your submissions around that point? Thank you.
MR DUGGAN: Thank you for raising that. That's not the submission that was sought to be put. That paragraph was addressing adverse finding 4, which was talking about the weighting between people with commercial experience and financial experience, and the relative weighting of people with direct experience in providing supports, and perhaps I was reading too much into that, but it appeared to be a criticism in relation to those with the financial experience, as opposed to those with support services experience. So I was really addressing that issue, not the representation of people with disability on the Board.
COMMISSIONER McEWIN: Thank you. I think you just froze but I think you concluded your answer.
Just one point or question for me, Mr Duggan, how about 48 where you talk about where it may be undesirable for the Board to pay regular visits, for example, that accommodation is someone's home. You may not be able to answer it directly, and I think you have addressed it in bits and pieces across, but my question is, what would be an effective way for the Board and senior leadership team to be informed of what
is happening in an effective and efficient way of issues, say, in the group home we've discussed in this hearing? Thank you.
MR DUGGAN: Certainly home visits is one way. Certainly rather than it coming from the Board, there may also be a process in which open invitations can be made by the residents, if they've got any concerns, for the Board members to come out and discuss those with them. The other is an issue I've already mentioned, and that's one of board subcommittees and other regular meetings in which issues can be aired. For example, if you had a monthly shared living meeting, anyone with concerns wanted to raise them, it may be raised in that particular forum. There are certainly different ways, there could be some ability for the voice of the people in the home to be communicated and heard by at board level.
COMMISSIONER McEWIN: Thank you, Mr Duggan. Thank you, Chair.
MR DUGGAN: Thank you, Commissioner.
CHAIR: Thank you, Commissioner McEwin.
Mr Duggan, just a couple of questions that arise from your paragraphs 103 and 104 where you prefer to the prospect of sheeting home responsibility to individuals and say there's an absence of procedural fairness. I just want to be clear about who it is that you're representing. You appear on behalf of Sunnyfield, is that right?
MR DUGGAN: Yes.
CHAIR: That means, does it not, that you're making submissions on behalf of the Board of Sunnyfield?
MR DUGGAN: Yes, but not in their capacity as individual directors. And the criticism in adverse finding 21 really seeks to sheet home responsibility against individuals, and any reasonable member of the public reading that finding, if it were made, would think that the individual members of the Board had done something wrong.
CHAIR: That's not what finding 21 says. It says responsibility lies with Sunnyfield, its Board, by which I take it is meant its Board as a collective decision making authority and its team. Your role representing Sunnyfield gives you the opportunity, does it not, to answer that on behalf of the Board and, indeed, that's what you've done.
MR DUGGAN: Well, no, I would resist that proposition, Chair, for this reason, that someone reading that would think that there was an individual responsibility or individual criticism that was being made in that adverse frame, albeit collectively, and given the seriousness ---
CHAIR: I understand your interpretation, I'm not sure I agree with it but I
understand what you're putting. As far as Ms Cuddihy is concerned, Ms Cuddihy gave extensive evidence, and you have made in your submissions extensive references to her evidence and supporting her account of events. So I take it that the submissions that you have made have been made on Ms Cuddihy's behalf. She's had the opportunity to have submissions made on her behalf by you and you have done so correctly at some length and we will take them into account. I'm right in that assumption, aren't I?
MR DUGGAN: Yes.
CHAIR: Thank you. All right.
MR DUGGAN: Chair, can I just develop the point in relation to the individual members of the board. If there is an apprehension that some people may read a finding to be a collective one relating to a group of individuals, there may be serious consequences for those individuals should such is a finding be made. Now, that's another factor that is referred to in our written submissions and we would ask the Commission to take into account.
CHAIR: That will depend on whether any findings are made that sheets home responsibility to individual members of the board. At present I don't understand any of the findings sought to do that. There is a difference between the Board as a collective decision making entity and individual members of the Board, and I'm not suggesting this is the case here, but in the hypothetical case, it's a different situation where someone is alleging that a particular member of the Board failed to comply with his or her duties under the corporations act or otherwise. This is not the area we're in.
MR DUGGAN: I can't say any more than what's in the written submissions and what I've already said.
CHAIR: Yes, thank you. Can we take it these submissions have been endorsed by the Board of Sunnyfield?
MR DUGGAN: Can I take instructions on that?
CHAIR: I would have thought you would know.
MR DUGGAN: I don't know whether there's been any formal endorsement, but I just want to clarify that.
CHAIR: All right.
MR DUGGAN: I don't know whether there is any formal endorsement, I don't have those instructions.
CHAIR: I'll leave that with you and in the absence of anything further, I suppose we
can draw whatever inferences are appropriate. The principal reason I ask is paragraph 88 of your submissions. And I wonder why it was thought appropriate to make, in effect, criticisms of Eliza and attribute a good deal of what happened to might be described as, in effect, an allegation of Eliza's intransigence or persistence? The difficulty with that, as I see it, is that it may suggest that Sunnyfield, through its Board or decision makers, hasn't really understood the significance of what has happened here, and I would just like you to address that. It seems like an odd thing to find in submissions, having regard to the evidence and having regard to the concessions that have been made --- fairly --- why the submissions would make these points that are, in effect, critical of Eliza. Do you want to withdraw paragraph 88, do you think?
MR DUGGAN: I'd have to seek some instructions about that, but I refer the Commission to paragraph 89 and it makes it clear in that paragraph that no findings are sought in relation to the issues that are raised in paragraph 88. What the paragraph was designed to illustrate was there was substantial friction between a family member and Sunnyfield.
CHAIR: Nobody could read that, I don't think, without inferring that the intent was to blame Eliza.
MR DUGGAN: That's certainly not a submission that's been made.
CHAIR: I can't think of any other reason why this would be put at the moment. You might enlighten me, but it's difficult to understand why this material is there. And as I say, one possible inference is that Sunnyfield, perhaps the Board, hasn't really grasped the significance of what's occurred.
MR DUGGAN: The purpose of the submission was to demonstrate that there are situations in which there are significant breakdowns between families and guardians and the service provider. And that's what's referred to in paragraph 89. The submission
CHAIR: Yes, but the critical issue is why was there a breakdown? That's the point.
MR DUGGAN: That's not a point that paragraph 88 is addressing. Paragraph 88 is addressing a different point.
CHAIR: All right, thank you very much.
I will just ask Ms Eastman if there is anything that she wants to say in response to the submissions that have been made on behalf of the parties that have been given leave to appear.
MS EASTMAN: Thank you, Chair. No, I don't wish to make any submissions in reply and I thank the legal representatives, particularly in the circumstances that we're in, appearing remotely for their submissions. We read them very carefully and
we've given them a lot of consideration, and I'm indebted to their participation this afternoon.
CHAIR: Yes, thank you, Ms Eastman. I, too, add my thanks on behalf of the Commissioners for the very detailed written submissions that have been received both from Counsel Assisting and the parties given leave to appear and for the helpful oral submissions that have been made today.
As I indicated in my opening remarks, these submissions, written and oral, will be taken into account by the Commissioners in determining what, if any, findings should be made and what, if any, recommendations should be made arising out of the evidence that has been given at Public Hearing 13 and the parties can rest assured that not only have the submissions been considered very carefully up to date in the sense of being read very carefully and thought about, they will be given further careful consideration before any determinations are made.
MS EASTMAN: Chair, I think all that's left is some of the parties have taken questions on notice or indicated that they would like to provide a more detailed response. I think in respect of some of the questions you've suggested seven days. I'm not sure whether the parties can give an indication as to whether seven days is sufficient for them to respond or you wish to make some directions in relation to timeframes for responses.
CHAIR: Perhaps the biggest burden falls on Mr Duggan. Is seven days enough for you to respond to the questions in particular that Commissioner Galbally asked you?
MR DUGGAN: I'm just looking sideways, Chair.
CHAIR: For help.
MR DUGGAN: Fourteen days might be more realistic.
CHAIR: This is the customary interchange that takes place at the end of a hearing. All right, 14 days is fine.
MR DUGGAN: Chair, if I can say, if we can do it more quickly we will.
CHAIR: That's fine.
MR DUGGAN: Can I also answer one of the queries that's been raised a moment ago. I'm instructed that the Board did endorse the submissions.
CHAIR: Thank you very much. Ms Furness, I think in the circumstances the sensible thing is to give 14 days for you as well.
MS FURNESS: Chair, I don't believe I took anything on notice.
CHAIR: Didn't you? I just assumed in your usual, helpful role there was something you were going to provide us with. That's fine. Is there anyone else who has promised to do something? Mr O'Brien, you were the one, and Mr Dighton, both of you were going to give us some extra material. We'll make that 14 days.
So any additional material that is to be provided in response to issues that have been raised during the course of the hearing by any of the parties should be provided in writing within 14 days, copies provided to all other parties who have been given leave to appear or to Counsel Assisting as the case may be.
Mr Dighton, is there anything else that you wish to put about that?
MR DIGHTON: No. Thank you, Chair.
CHAIR: Mr O'Brien, you're content with that?
MR O'BRIEN: Yes. Thank you, Chair.
CHAIR: Thank you. We will now adjourn. The next hearing, as I've indicated previously, will commence one week from today, Friday the 17th, and that will be dealing with issues concerning First Nations people with disability and out of home care. Thank you. We'll adjourn.
HEARING ADJOURNED AT 3.03 PM UNTIL FRIDAY, 17 SEPTEMBER 2021 AT 10.00 AM.