Public hearing 14: Disability services (South Australia), Adelaide - Day 1

CHAIR:  Good morning, everybody.  I extend a welcome to all of those who are attending this Public hearing 14 of the Royal Commission on preventing and responding to violence, abuse, neglect and exploitation in disability services with particular reference to South Australia.

I wish to acknowledge the Kaurna people of the Adelaide Plains, the traditional custodians of the land on which the Royal Commission meets this week, and to pay our respects to their Elders past, present and emerging.  I also acknowledge the Gadigal people of the Eora Nation, upon whose lands I am sitting and the Wurundjeri people of the Kulin Nation, from whose lands Ms Elizabeth Bennett of counsel is appearing.  I pay our respects to their Elders past, present and emerging and I also pay our respects to all First Nations people who are attending the hearing in person today as well as those who are viewing the hearing on the livestream.

This is the first Public hearing the Royal Commission has held in South Australia.  Indeed, it is the first Public hearing we have held outside the three eastern mainland states.  This was not the original plan.  Our program for 2020 included public hearings in each state and territory, the two territories, even Western Australia.  Those plans were frustrated by the arrival of the COVID 19 pandemic and the restrictions that went along with it.  Not only were we unable to hold any public hearings between February and August 2020, but when hearings resumed they had to be conducted remotely, without members of the public being able to attend in person.  It was not possible to hold hearings in states or locations outside Queensland or New South Wales.

People who follow the work of the Royal Commission will know that we recently held Public Hearing 13, the first hearing since February 2020, which members of the public were free to attend.  At that hearing at Homebush in Sydney, witnesses gave evidence in person in the hearing room, Counsel Assisting and the legal representatives of parties who had leave to appear were also present in the hearing room.  Two of the three Commissioners were present at Homebush, while Commissioner Galbally participated in the hearing from Melbourne.

In my opening at the Homebush hearing I was rash enough to express the hope that all future hearings would be open to the public and we would not be subject to constraints by any resurgence of COVID 19.  Unhappily, I spoke too soon.  The unfortunate fresh outbreak of COVID 19 in Victoria has prevented Ms Elizabeth Bennett, one of the Counsel Assisting the Royal Commission, from leaving Melbourne.  For reasons connected with the outbreak, I am participating in this hearing from the Royal Commission's premises in Sydney, rather than travelling to Adelaide.  However, Commissioner Alastair McEwin AM and Commissioner Barbara Bennett PSM are present in the Adelaide hearing room in the convention centre, as is Ms Kate Eastman SC, the Senior Counsel Assisting the Royal Commission, and Dr Hayley Bennett, Counsel Assisting.  All witnesses will give evidence in person in Adelaide.

I should mention that Commissioner McEwin is Adelaide born and bred and  
maintains strong connections in Adelaide, so I'm sure he will feel very much at home.  I cannot claim to be Adelaide born and bred, but I do have a Royal Commission connection with South Australia.  A few people following this hearing might be old enough to remember the South Australian Royal Commission into the non medical use of drugs which I chaired from 1977 to 1979, a mere four decades ago.  At that time, Don Dunstan was Premier, nobody had even thought of transforming the Victorian Football League into the Australian Football League, let alone Adelaide and Port Adelaide joining the national competition.  I am disappointed not to be able to participate again in person at a Royal Commission in Adelaide, following an adjournment of 42 years.  I doubt I shall be available in another 42 years!

Let me turn to the scope of this hearing.  This is the second Public hearing at which the Royal Commission is investigating the responses of service providers and regulators to alleged or actual cases of violence against or abuse, neglect or exploitation of people with disability living in supported residential accommodation.  The hearing will focus upon two case studies which involve the experiences of people with disability receiving disability accommodation services provided by the South Australian Department of Human Services, to which I will refer at DHS.

Ms Eastman's opening will provide more details of the evidence to be presented concerning these two case studies.

The hearing will also examine the responses of DHS, the National Disability Insurance Agency, that is NDIA, and the National Disability Insurance Scheme Quality and Safeguards Commission, the NDIS Commission, into the tragic death of Ms Ann Marie Smith.

Ms Smith died on 6 April 2020.  She lived by herself in her own home and she had a single carer employed by a registered service provider.  Ms Smith was an NDIS participant.  She lived with cerebral palsy and at the time of her death she was found to have experienced, among other things, septic shock, multiple organ failure, severe pressure sores and malnutrition.  She had been living in squalid circumstances.

The hearing will consider the responses of DHS, the NDIA and the NDIS Commission to the recommendations of reports.  They are the report by the Hon. Alan Robertson SC, entitled "Independent review of the adequacy of the regulation of the supports provided to Ms Ann Marie Smith, an NDIS participant".  That report was presented on 31 August 2020.  The second set of reports are the interim and final reports of the South Australian Safeguarding Task Force that were delivered, respectively, on 5 June 2020 and 31 July 2020.  There was also a supplementary report from the Task Force that was presented on 28 September 2020.

The recommendations emerging from those inquiries relate to a number of matters including: the identification of vulnerable NDIS participants by the NDIA and the NDIS Commission; the NDIS Commission's regulation of sole carers; the responsibility of Local Area Coordinators set up under the NDIS and support  
coordinators for NDIS participants' safety and wellbeing; the role of the Community Visitor Scheme in South Australia.  We have in previous hearings heard about Community Visitor Schemes; information sharing arrangements between the NDIA and the NDIS Commission; and information sharing arrangements between state and Commonwealth agencies.

I want to refer to a constraint imposed by our Terms of Reference.  It is very important to appreciate that the Royal Commission's Terms of Reference constrain the scope of the investigations that we can conduct in relation to the circumstances leading to Ms Smith's death.  The Terms of Reference expressly direct the Royal Commission to consider:

.... the need to ensure that evidence that may be received by the Royal Commission that identifies particular individuals as having been subject to violence, abuse, neglect or exploitation is dealt with in a way that does not prejudice current, future criminal or civil proceedings or other contemporaneous inquiries.

There are in fact criminal proceedings underway in South Australia and there may also be inquiries into the circumstances of Ms Smith's death that have not yet been completed.  For these reasons, this hearing will be directing attention primarily to the measures taken in response to the investigations that have already been conducted.

Let me now refer to the bilateral agreement between the Commonwealth and South Australia.  In my opening statement to Public hearing 13 at Homebush, I provided some basic national data about participants in the NDIS.  I shall not repeat that information.  Because this hearing will be examining services provided by DHS, which of course is a South Australian Government department, it might be helpful to explain why South Australia is continuing to provide services after the NDIS has come into operation.  That will require reference to the bilateral agreement that I will come to in a moment.  A more detailed explanation of the various arrangements is given in various statements that will be tendered in evidence in due course, notably the statement of Ms Boswell, the Chief Executive of DHS.

The transition to the full NDIS began in South Australia in January 2016, including the gradual transition of South Australian Government disability clients to the NDIS.  The current arrangements between South Australia and the Commonwealth are set out in a bilateral agreement which commenced on 1 July 2018.  The bilateral agreement outlines the respective responsibilities of South Australia and the Commonwealth under the NDIS.  South Australia, like the other states and territories, makes very substantial financial contributions to the NDIS.  Its contribution, according to the bilateral agreement, in the current financial year, 2020/2021, amounts to at least $800 million.  The bilateral agreement contemplates that South Australia will continue to provide what are known as in kind contributions to NDIS participants.  These in kind contributions can include accommodation services and Supported Independent Living services, SIL services.  South Australia, in effect, receives a credit for the value of in kind services which it can set off  
against its funding contributions to the NDIS.  The in kind arrangements are to be phased out by 30 June 2023.

It is important to note, as we shall hear, that in kind services provided by the state are not subject to regulation by the NDIS Commission.  Regulation of these services is a matter for state authorities, in particular the DHS itself.

As at 31 March 2021, 39,608 South Australians were participants in the NDIS, including about 23,000 who were receiving support for the first time.  According to Ms Boswell's statement, 479 participants in the NDIS currently receive community accommodation services provided by DHS.  There is a statement from Mr Hoffman, who is the CEO of the NDIA, that gives slightly different figures, but they are not materially different.  DHS also provides other services to NDIS participants under the in kind arrangements.

After the in kind arrangements finish in 2023, DHS intends to continue providing accommodation services that NDIS participants will be able to select if they choose to do so.  DHS is a registered NDIS provider.  That means that NDIS participants who choose DHS as a service provider will indirectly fund those services through their NDIS plans.

Let me say something about state responsibilities.  The NDIS is often thought of as a Commonwealth scheme.  As I have pointed out, the states and territories make very significant financial contributions to the NDIS and DHS provides a range of in kind services to NDIS participants.  As Ms Anne Gale, the South Australian Public Guardian, points out in her statement that will be tendered in evidence, she says that despite the transfer of responsibility for the regulation and administration of the NDIS to Commonwealth agencies, the states retain important responsibilities.  These include, as we saw at Public hearing 6, the authorisation of restrictive practices and the screening of disability support workers.  Ms Gale also identifies gaps in the NDIS that may have to be filled by state funded services.  One example is where support or accommodation services for an NDIS participant are withdrawn or fail for some reason, and the participant experiences difficulty in sourcing alternative providers.  In these circumstances, the state may become a provider of last resort.

In considering the measures required to prevent violence against and abuse, neglect or exploitation of NDIS participants, it is therefore necessary to examine the respective responsibilities of the Commonwealth on the one hand and the states and territories on the other.  As we have all been repeatedly reminded during this pandemic, Australia is after all a federation.

I shall now take appearances and then I shall invite Ms Eastman to make an opening statement.

MS EASTMAN:  My name is Kate Eastman, I appear as Counsel Assisting the Royal Commission with Dr Hayley Bennett here in the Adelaide hearing room and with Ms Elizabeth Bennett, who is appearing from Melbourne via the video link.
 

CHAIR:  Is there a representative from the Commonwealth?

MS DOWNES:  Kylie Downes, with Mr Ben Dighton, instructed by Gilbert + Tobin for the Commonwealth.  We also appear for the NDIA and the NDIS Commission.

CHAIR:  Is there an appearance for the State of South Australia?

MR SIMPSON:  My name is Simpson and I appear for the State of South Australia.

CHAIR:  I think there is a further appearance?

MR O'BRIEN:  Commissioners, O'Brien is my name, I appear for the witnesses Victoria and James.

CHAIR:  Thank you very much, Mr O'Brien.  Yes, Ms Eastman.

MS EASTMAN:  Thank you, Chair.  Commissioners, we also acknowledge and pay our respects to the traditional custodians of the lands on which we are meeting today.  We pay our respects to First Nations Elders past, present and emerging, as well as to all First Nations people following this Public hearing.

The hearing is the second in several public hearings that will examine the provision of disability services and how disability service providers respond to violence, abuse, neglect and exploitation.  This hearing will have a particular focus on South Australia.  I want to start with addressing some of South Australia's history.

Later today, you will hear from Richard Bruggemann about the history of disability services in South Australia.  In 1870, the Parkside Lunatic Asylum was opened.  It was later renamed Parkside Mental Hospital in 1913.  Mr Bruggemann has shared an article that describes life at Parkside in 1961, that's some 60 years ago.  At that time there were about 2,500 patients, including 600 people who were described as "developmentally delayed".  It also included 142 children under the age of 12.  The article describes squalid, inhuman and prison like conditions.  The grounds are described as cottages surrounded by an 8 foot high galvanised iron fence, with men aged between 12 into their mid 50s dressed all alike in boiler suits, the boiler suits being canvas like material.  The majority are bare footed and they are moving around in an aimless, relentless buzz of turbulent activity.

In the decade between 1961 and 1971 there was a growing awareness that the needs of people with intellectual disability, particularly children, were different from those who live with psychosocial disabilities.  Efforts were made to introduce education, workshops, recreational areas for people with intellectual disability.  There was also a focus on retraining staff and developing educational programs to deal with prejudice in the wider community.

In March 1971, the Strathmont Centre opened in Oakden.  It was run by the  
government service for accommodation and training of people with intellectual disabilities, and that included children and young people.  Strathmont had capacity for 650 people.  Mr Bruggemann will tell you that by the time it was constructed it was already an outdated model, with emerging trends in Europe by this stage tending towards smaller accommodation, rather than larger institutional styles.

Mr Bruggemann will tell you that whilst the 1970s were a period of quite radical change, paternalism and institutionalisation continued to be embedded in the approach.  In the late 1970s, services for people with intellectual disability continued to be institutionally oriented, uncoordinated and inconsistent, but also with a nod to some of the trends emerging around the world.

In 1976, the South Australian Government commissioned The Law and People with Disabilities Project, and in 1978/79 the Intellectually Retarded Persons Project.  There are two reports that emerged from these projects, made wide ranging recommendations on the service systems and the rights of people with intellectual disability.  Mr Bruggemann will tell you later today that, to this day, the direction identified in those reports remain relevant and were the drivers of the most changes in service developments in the early 1980s.

Then the Bright Report recommended there be an intellectually handicapped persons authority, and that was to be established by legislation.  The McCoy Report suggested that services for people with intellectual disability become part of the Department of Community Welfare.  In 1981, the Intellectually Disabled Services Council, IDSC, was created and it was incorporated into the Community Health Service in July 1982 and it had a mandate for service reform and development.  The IDSC was governed by an independent Board of Directors, which included parents of children with intellectual disabilities.  Mr Bruggemann was appointed the Chief Executive Officer in 1984 and continued in this role until 2006.  The role of IDSC was to plan and provide support and advocacy services to people with intellectual disabilities and their families.

By the 1980s, the second iteration of deinstitutionalisation had begun with a focus on community living and integration.  Ms Lois Boswell, the Chief Executive of the Department of Human Services, which I will refer to as DHS, will tell you that from the 1980s there was a gradual shift in the system of service delivery away from large institutional whole of life settings towards home and community based care.  She says the structural changes that ensued reflected the growing recognition of the rights of people with disability and policy development and a push towards arrangements that promoted those rights, most notably the right to self determination and the advancement of independent living arrangements.

Mr Bruggemann will explain why he considered the focus became increasingly driven by ideology.  Deinstitutionalisation, he will tell you, becoming an end in itself, with success judged by the numbers of people who moved into group homes, rather than the means by which people with disabilities could exercise choice and enjoy a better life.  Ms Boswell, in her evidence, acknowledges that while positive  
changes were achieved throughout the transition, the new model of care did not fully incorporate cultural and practice changes.  So aspects of practice and work arrangements from institutional care remained in the provision of services in community based settings.

Mr Bruggemann will tell you about the period of intense learning "on the go" in the 1980s and over time how practices improved to be in line with person centred approaches, including the introduction of an integrated case management approach called Strategic Community Work.  The Strategic Community Work, which I will call SCW, is an approach that identifies the person with intellectual disability as part of a societal network that may be made up of friends, families, information networks, community groups, mainstream agencies or service providers.

These networks also occur within a broader political, cultural and economic systems.  Rather than necessarily seeking a service delivery response when an issue or problem emerges in a person's life, the strategic community work views the societal network around a person as a major source of potential support and problem solving, which can be strengthened and expanded.  The SCW also focused on supporting individuals with intellectual disability and their families to develop real connection with and participation in the local community.  In this way, people were treated not only as consumers but as citizens who should have opportunities to enjoy and exercise their citizenship.

By the mid 1990s the South Australian Government moved towards a purchaser/provider model through the Options Coordination.  This could be regarded as the start of what we now look at as individual packages or plans.  Mr Bruggemann will tell you this worked well for most of the disability types and it did ensure that people with disability and their family had some additional power in the system.  But he will also tell you that this model did not always consider the needs of some people with intellectual disability who had benefited from a case management support approach.

By July 2006, IDSC's functions were incorporated within DHS.  On 1 July 2015, South Australia began its transition to the National Disability Insurance Scheme.  It started with a trial site for children under 14, with the complete role beginning in the latter part of 2016.  Ms Boswell had responsibility for the planning and transition for the South Australian Government's disability services to the NDIS and she will give evidence about this transition in the course of this week.

Also in July 2018, the National Disability Insurance Scheme Quality and Safeguards Commission commenced its operations, with the South Australian Government then starting to step back from its previous oversight role for those who had transitioned to the NDIS.  But as the Chair noted in his opening remarks, the South Australian Government continues to provide some in kind accommodation services.  Ms Boswell has addressed this arrangement in her statement and we will examine these matters with her, particularly the nature of in kind accommodation services which South Australia will continue to provide until no later than June 2023.
 

As Ms Boswell explains in her statement, with respect to the in kind DHS accommodation services, there is no obligation on the DHS staff to report incidents to the NDIS Quality and Safeguards Commission.  So one issue to be examined in this hearing will be how and when incidents are reported and then addressed with respect to DHS accommodation services.

I want to now turn to the presentation of this Public hearing.

Over the next two days, you will hear about the experiences of Mitchell, and then Daniel Rogers.  They have each lived in accommodation provided by DHS.  Before addressing the issues to be explored at the hearing and talking about some of Mitchell's and Daniel Rogers' experiences, I need to warn people watching or listening to this hearing that I'm about to describe some incidents of violence and abuse that may be distressing and confronting.

You will see on the screen the contact numbers are available for people who require support.  The Royal Commission encourages people who are distressed to seek support and for people attending the hearing here in Adelaide, the Royal Commission's counselling team are on site and may be supported by anybody attending this hearing for support.

I want to tell you a little bit about Mitchell.  Mitchell is 38 years old.  You will hear Mitchell has a very loving and caring and humorous personality.  Mitchell feels empowered by supporting others and likes to connect with those around him.  Mitchell prefers quiet environments where there is peace and calm.  But he also enjoys routine which has been built into his life.  He finds that changes to the routines can be upsetting.

He dislikes being forced to do things and wants to feel that he has choice in what he does and how he engages in activities.

Mitchell has autism spectrum disorder.  He lives with an intellectual disability.  Over the years, he has been diagnosed with anxiety, bipolar disorder and possibly post traumatic stress disorder.

During Mitchell's teenage years, his family worked to support Mitchell, to find accommodation and services to support the level of care that his disabilities required.  By the time Mitchell was 18 years old he had lived in three different accommodation services.  When Mitchell was 21 years old, he moved to the Strathmont Centre.  He lived there until 2016, when the Strathmont Centre was decommissioned.

From around 2013, his aunt, who I identify for the purpose of this hearing as Victoria, and her husband, James, worked to find Mitchell a community based home.  They will give evidence shortly and they will tell you it took some time to find the right house and to assemble a new team of support workers to support Mitchell.  Mitchell lived in a new home for about four months, before moving to a newly built  
one bedroom unit in a cluster of units operated by DHS.  I will call that the "residence".

Initially, that arrangement was intended to be short term, for a period of six months.  But the arrangement with the residence has continued for about four years.  Victoria will tell you that within the first few months of Mitchell living at the residence, she began to have some concerns about the care and the services provided to Mitchell.  In 2017, Victoria raised some of her concerns and her perception based on the way in which her concerns were responded to was that she felt she might be targeted in relation to allegations made about her and they may have been designed to discredit her reputation.  But Victoria and James put Mitchell at the forefront of their concerns and they agreed with new communication strategies to improve the flow of communication, including fortnightly meetings.

By the end of February 2018, the Accommodation Services Manager moved on from the residence and Victoria was optimistic that the change in management would lead to improved communication.  However, that was not to be.  On 3 March 2018, Victoria found a letter in her mailbox.  The letter was undated, it was not signed.  Victoria wants to share that letter with you, Commissioners, shortly, and she will read the letter out.  It is deeply distressing.  But in summary, the letter contains threats to Mitchell's life, his safety and wellbeing.  Victoria and James were shocked and horrified by receiving the anonymous letter and the anonymous letter triggered a chain of events which you will hear about when Victoria and James give evidence.  They took immediate action to try to protect Mitchell from the threats of harm described in the letter and this included taking the letter to the DHS staff and also making a report to the police.

This hearing will examine why there was a delay in investigating the threatening anonymous letter and it will look at the actions taken by Victoria and James to see something done, and that included making a complaint to the South Australian Ombudsman and also to the NDIS Quality and Safeguards Commission.

Commissioners, you have the South Australian Ombudsman's report in the material for this hearing.  In a Final Report dated 27 January 2021, the South Australian Ombudsman found that DHS failed to properly investigate the letter and its failures were unreasonable, noting of course that is an expression identified in the Ombudsman's Act.

The Ombudsman made a number of recommendations, which included a recommendation that DHS provide a formal apology to Victoria and James in regard to the errors identified in the investigation and also recommended that DHS conduct some further inquiries in relation to identifying the author of the letter.

DHS reopened its investigation.  The investigation was conducted between January and 11 February 2021.  Commissioners, you have a report of that investigation.  Mr Stewart Dodd, the current director of the Incident Management Unit, says in his statement that he reviewed the investigator's report, noting that statements had now  
been taken from eight DHS staff members but no further evidence or information had been obtained to identify the author of the letter.  And so he decided to close the matter.

In March this year, Victoria and James received a letter from Mr Dodd telling them the investigation had been conducted and the author had not been identified.

At the time of preparing her statement, Victoria will tell you that this was the only correspondence she had received from DHS.

At that time, she had not received a formal apology.  But she is now aware that Ms Boswell did prepare a letter and sent the letter by email to Victoria and James on 11 March 2021, and in that letter a formal apology appears.  So Victoria and James are now aware of that letter.

Victoria and James will tell you about the impact of these events on them, their family and Mitchell.

I now want to tell you about Daniel Rogers.  Mr Daniel Rogers is 40 years old.  He was born in Adelaide.  Mr Rogers' mother, Karen Rogers, will tell you Daniel is a lovely man.  He's very gentle and he's very sweet.  For the purpose of this opening, I am going to refer to Mr Rogers as Daniel and to Mrs Rogers, just to avoid confusion, as Karen.  So I hope they are happy with that.

Karen will tell you about Daniel's early life.  She will tell you when Daniel was a young child she took him to see doctors a number of times because she suspected he might have a disability.  Those doctors dismissed her concerns and told her she was just a young mother.  When Daniel was four years old he was diagnosed with a severe intellectual disability and epilepsy, but it took another four years before Daniel was also diagnosed with autism.  When Daniel was 11 years old, Karen was pregnant with twins and she will tell you quite honestly that by this time they were not coping with Daniel, despite doing absolutely everything they could.  Karen was told by someone with experience in disability that the twins would be "in peril" if Daniel were to remain in the family home.

Social workers suggested and indeed advised Karen that she should relinquish care of Daniel and that Daniel should enter the foster care system.  Karen will tell you that she was not prepared to relinquish Daniel.

Later in her pregnancy, there were three other boys who were of similar age to Daniel whose parents had relinquished those boys into respite care.  This resulted in permanent accommodation arrangements being set up for these three boys by the Intellectual Disability Services Council.  That created an opportunity for Daniel to move into a home with the other boys.

He continued to live in the house until around 2000.  Daniel was relocated to the Strathmont Centre for a short period of time and then returned back to the house.  He  
eventually moved into a house that Karen will refer to in her evidence as the [N Street] house, and that was in very late 2004 or very early 2005, and Daniel lived there with three other men.  [N Street] was one of three houses on the same street that provided accommodation services to people with disability.

During the time Daniel lived at [N Street], his accommodation services were always provided by the South Australian government.  But the name of the provider changed to IDSC, then Options Coordination, and then to Disability SA and then finally the Department.  Daniel and the other residents at [N Street] attended day options during the week and the DHS support workers organised activities for the men in the house on the weekends.

During the time Daniel lived at [N Street], there were staff at the house all of the time, with one or two support workers on shift during the day and one support worker throughout the night.  The support workers at [N Street] were supervised by a shift supervisor who supervised a few different houses and the shift supervisor in turn reported to a manager who worked in the DHS offices.

Karen will tell you that she often felt she had cause to complain about Daniel's care but she has always been a person who is of the opinion that one should "pick my battles."  Karen is a disability advocate herself and well understands the system that was supporting her son.  However, Karen will tell you that certain issues relating to Daniel's care become acute for her from about 2017.  For example, from about 2017 to 2019, Karen had ongoing concerns about Daniel's hygiene and grooming.  Despite raising her concerns, Daniel continued to present on occasions as unkempt and smelly and he often came home to her home wearing clothes that were not his.

Karen will tell you about the events that caused her worry and a particular worry that the support staff were not being truthful with her.  One incident involved the purchase of bed linen for Daniel.  You would think that that would be a relatively straightforward matter.  Karen was asked by a support worker about whether or not some of Daniel's money could be used to purchase pillows and linen, and Karen thought this was a good idea, she agreed and suggested that Daniel should decide what he wanted and he should go shopping.

But later, she discovered that before the phone call with her, a staff member had already been to the shops and had purchased the bed linen, and there had been no attempt to seek the prior approval, and Daniel had not been included in the decision about the bedding.

In October 2018, and it was shortly after this incident, Karen was particularly concerned about unexplained bruising on Daniel.  She raised her concern with the Accommodation Services Manager, Mr Wayne Cunningham, and she was not aware of the outcome of an investigation into the cause of the bruising on that occasion.

In February 2019, Karen was contacted by a support worker at the house about a large bruise on Daniel's back and whether or not the locum doctor could be  
contacted.  On that occasion, Karen gave her consent, but actually Daniel was taken to hospital.  When Karen arrived at the hospital, she saw extensive bruising around Daniel's waist.  The nature of the bruise was large.  It went from his spine around to the front of his kidney.  Commissioners, you have in the evidence photographs of the bruising, but I won't display them at the present time.

After a short period in hospital, Daniel was going to return to Karen's house for a short time, but they went to Daniel's home to pick up some clothes and medication, and Karen saw how distressed he was.

She took Daniel to her home and Daniel has never returned to live at the house.

Karen will tell you about the steps that she took to find out what happened to Daniel and how Daniel could have sustained such an injury, and this included making a report to the police at the end of February 2019.

Karen made inquiries with Daniel's day program provider; she wanted to know if any notifications had been made to the NDIS Quality and Safeguards Commission.  With respect to this incident, you will hear from Mr Cunningham and Ms Muriel Kirkby about the actions taken by DHS.  Daniel's injury was investigated by the South Australian Police and by 30 March 2019 the South Australian Police advised the Incident Management Unit of DHS that the police would take no further action.

Then on 8 May 2019, the Incident Management Unit's investigation team reviewed the South Australian Police investigation, the Disability Services documents and drafted its investigation report.  The Incident Management Unit's report, dated 8 May 2019, concluded this:

Whilst the injury is uncommon, it is unable to be determined the likelihood that the injury has resulted from an assault or an accident.

Mr Stewart Dodd accepted the recommendation and the matter was closed.

Karen will tell you she was not involved in or consulted about the DHS investigation and when she sought to follow up about what had occurred with respect to the investigation, she was told the investigation was inconclusive and she would have to make a freedom of information application to obtain a copy of the investigation report.

Lois Boswell will tell you that she met with Karen and her husband on 8 July 2020.  Ms Kirkby and Mr Dodd were also present.  Ms Boswell acknowledges Karen was upset and that Mr Dodd had not contacted her at the time the investigation had concluded.  Ms Boswell apologised for this and she apologised on behalf of DHS for the failings of DHS and its handling of the unexplained injury incident.

Karen will also tell you about the experiences of her family navigating the NDIS, including seeking financial support to make modifications to their home where  
Daniel now lives.  Karen will tell you that Daniel now has a good NDIS plan, but to get there, they had to go so far as taking an appeal to the Administrative Appeals Tribunal.  There is a letter that Karen wrote to the CEO of the NDIS, which Karen no doubt will share, in terms of her reflections on navigating the NDIS, and she will share her reflections generally about these matters and the impact on Daniel.

Commissioners, after we have examined the experiences of Mitchell and Mr Rogers, we will focus on the Commonwealth agencies and the South Australian government's response to a number of investigations following the death of Ann-Marie Smith.  Ms Smith died on 6 April 2020, in what has been described in one of these reports as a substantial period of neglect, having been living in squalid and appalling circumstances.

Ms Smith's friend, who will be identified as Brooke, has prepared a statement for this hearing.  She has also shared some photographs that account for Ms Smith's life.  Brooke and Ms Smith were friends from primary school.  Brooke says Ms Smith was a caring person who was given a lot of love by her family.  And Brooke will tell you this:

We watched each other grow from little girls to adult women and I will always cherish our friendship through the many good years.

Brooke has decided that she doesn't want to give evidence in person and so I will read the full statement that she has provided to the Royal Commission when we reach that stage in the hearing.

Following Ms Smith's death, a number of investigations, inquiries and reviews were set in train.  These included an investigation by the South Australian Police, the South Australian Coroner and by SafeWork SA.  We wish to make it very clear that the Royal Commission is not investigating the cause of Ms Smith's death in this public hearing.  The South Australian Coroner is empowered to conduct an inquest to ascertain the cause or circumstances of a person's death and it is appropriate for the Coroner to undertake the inquest into the circumstances or cause of Ms Smith's death.

The Royal Commission is also aware that the South Australian Police have charged a person and a criminal justice process is underway.  This public hearing will not conduct a hearing to determine whether any particular individual or organisation involved in the care or support of Ms Smith engaged in any wrongdoing or a breach of the criminal law.

This public hearing will focus on the two reports following the inquiries established by the South Australian Minister for Human Services and by the NDIS Quality and Safeguards Commission.  We focus on these reports for this reason: the Chair referred earlier to the Royal Commission's Terms of Reference and the constraints.  But our Terms of Reference require the Royal Commission to also take into account the following matters.  First, all aspects of quality and safety of services, including  
informal support provided by governments, institutions and the community to people with disability, including the NDIS and the NDIS quality and safeguarding framework agreed by all Australian governments in 2017; and, secondly, we are to take into account the findings and recommendations of previous relevant reports and inquiries.

With respect to the inquiries established following Ann Marie Smith's death, the two inquiries I have identified have resulted in two reports: the South Australian Safeguarding Report and the Robertson Report.  We will turn to look at those reports in some detail.  But before doing so, you will hear from Ms Anne Gale, and she is the South Australian Public Advocate and Acting Principal Community Visitor.  She was also a member of the Safeguarding Task Force.  Ms Gale will give evidence about the role of the Public Advocate and of the Community Visitor Scheme.  The Chair has noted some of the matters Ms Gale will address in her evidence in his opening.

With respect to the South Australian inquiry, on 21 May 2020 the Minister for Human Services in South Australia established the Safeguarding Task Force and its responsibility was to do this:

.... to examine the current gaps in oversight and safeguarding for people living with disability in South Australia.

In establishing the Task Force, the Minister said this:

It is clear we have some gaps in our system for our most vulnerable people with disabilities.  The case of Ann Marie Smith has just shocked everyone.  There have been many failings and we want to correct them.

The Safeguarding Task Force comprised 12 members, including people with lived experience of disability, family members, service providers and State government officials.

On 31 July 2020, the Task Force published a report with a final (referred to as “Supplementary”) report on 28 September 2020.  This latter report will be referred to as the “Safeguarding Report” and it identified 14 safeguarding gaps and made seven recommendations to address those gaps.  Those recommendations were directed to the NDIA, the NDIS Commission and the State Government of South Australia.

Also, on 26 May 2020, the NDIS Quality and Safeguards Commission engaged the Hon. Alan Robertson SC, a former judge of the Federal Court of Australia, to conduct an independent review of the adequacy of the regulation of the supports and services provided to Ms Smith.  As part of this inquiry, and the provision of the report, the Terms of Reference stated as follows:

The review is to be conducted in a manner that avoids prejudice to any pending or current criminal or civil proceedings.  The Commissioner of the NDIS  
Commission intends to publish the report of the review, subject only to any redactions necessary to avoid prejudice to any criminal, regulatory or civil proceedings and any redactions identified as appropriate by the Independent Reviewer to protect the privacy of any individual.

So in accordance with these Terms of Reference, on 31 August 2020 Mr Robertson provided the Quality and Safeguards Commission with two forms of the report --- a complete unredacted version and a version to be made public.  This Royal Commission will work with respect to the version of the report that was made public, bearing in mind our concern not to prejudice any criminal, regulatory or other civil proceedings.

Mr Robertson made 10 recommendations.  We will examine the response to those recommendations and the actions taken following that report.

Commissioners, you will hear from Mr Graeme Head AO, the Commissioner of the NDIS Quality and Safeguards Commission, about his reasons for establishing the inquiry.  Mr Head will explain the response of his Commission to both the Safeguarding report and the Robertson Report and explain the broader context of the NDIS safety framework.

You will also hear from the Chief Executive Officer of the NDIA, Mr Martin Hoffman.  Mr Hoffman was also involved in the Robertson Report, with making submissions to that inquiry.  Mr Hoffman will explain the procedural context of many issues raised in both the Safeguarding Report and the Robertson Report, and will explain to the Royal Commission the responses of the NDIA to a number of issues identified in the two reports.

Finally, you will hear from Lois Boswell.  Ms Boswell was also a member of the Safeguarding Task Force and made submissions to the Robertson review.  Ms Boswell will give evidence about the systems, policies and procedures in place in South Australia to prevent violence against or abuse, neglect or exploitation of people with disability in receipt of disability services from DHS.  Ms Boswell will also provide a description of the role of DHS in safeguarding the wellbeing of people in South Australia who are in receipt of disability services.

We will ask Ms Boswell to provide an update on any responses of the South Australian government to the findings and recommendations of both reports.  We also want to ask her about the current scope of the South Australian Community Visitor Scheme and we understand she will provide an explanation as to why community visitors no longer visit all premises at which disability service providers are providing accommodation to people with disability in South Australia.

Commissioners, you are committed to ensuring the conduct of this hearing is fair.  The South Australian government, NDIA and the Quality and Safeguards Commission will have an opportunity to be heard and respond to the issues we examine.  At the conclusion of this Public hearing, you will make directions about how y 
ou wish Counsel Assisting to proceed; whether that be by way of the preparation of written submissions followed by oral submissions, and also the extent to which you wish Counsel Assisting to identify any proposed findings following hearing the evidence.

Finally, I want to remind everybody following these proceedings that there are provisions in the Royal Commissions Act that have the clear objective of protecting witnesses who give evidence before the Royal Commission.  In particular, I want to draw attention to section 6M of the Act, which provides as follows:

Any person who uses, causes or inflicts any violence, punishment, damage, loss or disadvantage to any person on account of that person having appeared as a witness before the Royal Commission or given evidence before the Royal Commission or producing documents to the Royal Commission commits an indictable offence.

The maximum penalty for committing such an offence is imprisonment.

Commissioners, I note the time.  It is now 11.23 in South Australia.  Can we propose, subject to any matters, Chair, to take the morning tea adjournment and then we will return with the evidence of Victoria and James.  If the Commissioners please.

CHAIR:  Shall we adjourn to 11.45 Adelaide time.  Is that convenient?

MS EASTMAN:  It is convenient, thank you.

CHAIR:  We will adjourn until then.  Thank you.

ADJOURNED    [11.24 AM]

RESUMED    [11.45 AM]

CHAIR:  Yes, Ms Eastman.

MS EASTMAN:  Thank you, Chair and Commissioners.  You will see in our hearing room we have our first witnesses, who are giving evidence together.  They are using the pseudonyms Victoria and James.  They will both be taking an oath.

CHAIR:  Thank you very much.  Victoria and James, thank you very much for coming to the Royal Commission to give evidence in Adelaide.  I'm sorry I am not present there in person.  But Ms Eastman is and you can see, of course the other two Commissioners, Commissioner McEwin and Commissioner Bennett.  If you would be good enough to follow the instructions of the Associate, we will take the oath for you.
 

VICTORIA, SWORN

JAMES, SWORN

CHAIR:  Thank you very much.  Ms Eastman will now ask you some questions.  If at any time --- I'm sure you have been told this --- you want to have a break, please let Ms Eastman know and that can be done.

EXAMINATION IN CHIEF BY MS EASTMAN

MS EASTMAN:  Victoria, can I start with you.  You have given the Royal Commission your full name and your address.

VICTORIA:  That's correct.

MS EASTMAN:  You are using the pseudonym Victoria.

VICTORIA:  I am.

MS EASTMAN:  You have also provided a statement to the Royal Commission dated 25 May 2021.

Commissioners, you will find a copy of that statement in the hearing bundle, part A, behind tab 28.

CHAIR:  Thank you.

MS EASTMAN:  Victoria, there is one bit of your statement where at the time of preparing your statement you had not received any correspondence from Ms Boswell or any formal apology.  So you make a reference to that in your statement.

VICTORIA:  That's correct.

MS EASTMAN:  You have now received a copy of Ms Boswell's letter; is that right?

VICTORIA:  We became aware last Thursday, and in good faith we do believe that an email letter of apology was sent to us in March.  But we weren't aware of it until last Thursday.

MS EASTMAN:  That doesn't require any changes to any part of your statement.  But you wanted to address that at the beginning.  Can you tell the Royal  
Commissioner whether the contents of your statement are true?

VICTORIA:  They are most definitely true.

MS EASTMAN:  James, can I turn to you.  You are using the pseudonym James.

JAMES:  That's right.

MS EASTMAN:  You have also provided to the Royal Commission your full name and address.

JAMES:  Yes, I have.

MS EASTMAN:  You made a statement also dated 25 May this year?

JAMES:  Yes.

MS EASTMAN:  Are there any changes to your statement?

JAMES:  No.

MS EASTMAN:  The issue of the letter from Ms Boswell has been covered by Victoria; is that right?

JAMES:  That's correct, yes.

MS EASTMAN:  Can you tell the Royal Commissioners whether your statement is true?

JAMES:  Yes, most certainly true.

MS EASTMAN:  Commissioners, what I'm proposing to do with James' and Victoria's evidence this morning is that they are giving their evidence together.  It may mean that we touch on topics that both James and Victoria will respond to, or it may be bit by bit, but we will see how we go.

You are here really to be Mitchell's voice today; is that right?

VICTORIA:  That's right.

MS EASTMAN:  You want to start by telling the Royal Commission about Mitchell.  He's a very loved and precious member of your family, Victoria?

VICTORIA:  Without a doubt, yes.

MS EASTMAN: You're his aunt?

 
VICTORIA:  Yes.

MS EASTMAN:  You have been in Mitchell's life, his whole life, haven't you?

VICTORIA:  Yes.

MS EASTMAN:  You have brought something with you that's important.  It's almost like the token that we have that Mitchell is with us in the room, isn't it?  What have you brought with you?

VICTORIA:  This was given to Mitchell by his great aunt when he was first born.  It's very precious and it's like even today, when I visit, he actually says to me, "Are you bringing the special dog?"  So I thought it was relevant to actually bring it today.

MS EASTMAN:  You want to have something which reminds all of us that Mitchell is here with us?

VICTORIA:  Yes.

MS EASTMAN:  And that while we're talking about him, we are not talking around or about him, that we really want his sense to be present here; is that right?

VICTORIA:  He is aware that I am talking to the Commissioners and he was very much in agreement that we should do this.  Although he lacks capacity to understand most of what has occurred, he is very much of the opinion that we should talk.

MS EASTMAN:  Mitchell is now 38 years old?

VICTORIA:  Yes.

MS EASTMAN:  As I mentioned in the opening, when he started to reach adolescence, the family worked hard to find the right accommodation and services for him; is that right?

VICTORIA:  We never imagined that he would have to leave the family home.  But we could see that, as he progressed, we had concerns and we felt that if we were to introduce some changes early, we would actually be able to readdress some of the issues and that we would be able to set him on the right path for adulthood.

MS EASTMAN:  Before he was 18, he had lived in three different accommodation services.  By the time he was 21, he moved to the Strathmont Centre; is that right?

VICTORIA:  That's right.

MS EASTMAN:  You had the opportunity to visit him and engage with him while he lived at the Strathmont Centre?

 
VICTORIA:  Most certainly.

MS EASTMAN:  In around 2013, you started to talk to the manager at the Strathmont Centre about Mitchell moving into community living; is that right?

VICTORIA:  Yes.

MS EASTMAN:  James, you and Victoria spent some time trying to say, what are going to be the right options for Mitchell in terms of living in the community, so things such as whether he should live with other people or live by himself?

JAMES:  Yes.

MS EASTMAN:  The support worker team around him.  What can you tell the Royal Commission about that period of Mitchell's life in starting to think about leaving Strathmont Centre and into some new housing.

VICTORIA:  Certainly the location was really important for Mitchell and his interests and his lifestyle, also the choice of whether he lived by himself or whether he lived with others was really important to him as well.  In particular, the care team was very important.  He responded particularly well to female carers, due to incidents of abuse in his previous life, or earlier in his life, and so we worked very hard to have a care team that was predominantly female and that was something that we worked on with Peter at the time.

MS EASTMAN:  As life happens, when Mitchell moved to the new home, there was a bereavement in the family, Victoria?

VICTORIA:  Yes, there was.

MS EASTMAN:  That had an impact on Mitchell and his grieving process?

VICTORIA:  Yes, and all the family really.  But it was the first time he had ever experienced any form of grief in that sense.  Yes, it would have obviously have affected him, as it did with everybody.

MS EASTMAN:  That meant that the work in terms of finding that initial first home was no longer the right fit for Mitchell in terms of the circumstances, and then he moved into the unit in the cluster accommodation; is that right?

VICTORIA:  Yes.

MS EASTMAN:  That's where he has lived?

VICTORIA:  Yes.  It was supposed to be a short term accommodation.  We were optimistic about the behaviour support that would be involved in that.  But it's now four years and he hasn't actually moved.  So we are enthusiastically looking at the  
next steps for his life and how we can make some positive changes.

MS EASTMAN:  Many things have happened since he's lived at the residence for the last four years.  But I want to focus on a few particular issues.  When Mitchell started to live at the residence, you say, Victoria, in your statement --- and if you have got a copy there, it's paragraph 29 --- that you don't recall receiving any clear information explaining the reporting lines.  And you are aware from your interactions with the Department over the years that the support workers report to shift supervisors, who in turn report to Accommodation Services Manager and then the manager reports to the Area Manager, who in turn reports to a regional manager, and they are overseen by a Director of Accommodation Services, who reports to the Executive Director, Disability Services within the Department.  So I had to read that out because when we look at it, there's a lot of reporting lines.  Your recollection is no one gave you any clear information about reporting lines.  Was this to report what?  Every day experiences, particular incidents?  What were you not clear about.

VICTORIA:  We had known the service provider for a considerable amount of time so we became quite familiar and we obviously felt more comfortable to talk to certain people and so ---

MS EASTMAN:  I'm going to ask you to slow down just a little bit so the Auslan interpreters can keep up with both of us.

VICTORIA:  We were aware of the reporting lines but we had never formally been given any details of it.  People would introduce themselves to us.  We have a terminology, sometimes we call it the magic roundabout, because we had met so many different people in the same role, particularly over the last two years.  But we are very comfortable with addressing issues and we have usually taken them to --- I would call it a mid management role, as probably the first point of contact of where we've needed to go.

MS EASTMAN:  You say in paragraph 33 that you weren't aware of the policies and procedures to how to raise complaints or concerns.  But you felt you had good relationships with the key people in the Department, including the Accommodation Services Manager and the Area Manager.  So that's what you say in the statement.

Is it the case that when the relationships were working well, that knowing whether there's a particular policy or procedure or a way in which you have to raise a concern or complaint didn't really matter, you were just able to speak to the people who you thought would need to deal with an issue; is that right?

VICTORIA:  Open, honest, communication, that's --- you know, they could talk to us, we could talk to them and usually it would just get resolved one way or another.

MS EASTMAN:  Were you aware that prior to 7 January 2017, that if someone who was in the care of DHS had to be hospitalised or receive medical treatment, that DHS would notify the Public Advocate first, before notifying the family members?  Were  
you aware of that?

VICTORIA:  No, not officially.  It was something where --- we had constant communication with Mitchell and with his support workers, obviously, because of that.  So whether there was a formal system in place or whether it was informal, we would find out information very quickly.

MS EASTMAN:  What, if anything, was your understanding about what staff were required to do?  We have covered the line management to shift supervisors, accommodation manager and then up the line.  What was your understanding that if staff saw something happening to Mitchell in his accommodation or affecting his welfare, did you have any understanding what staff were required to do?

VICTORIA:  No, not at all, actually, when I reflect back on it.  I think, just as any member of society, if there was ever any concern, you would address it.  But no, there was never any thought of their procedure or how to go about doing that.

MS EASTMAN:  James, from your perspective, did you have any sense of what the reporting lines were and how to raise issues or how to escalate matters up to more serious complaints of the kind?

JAMES:  No.  The only clear direction or understanding that I had is that family were asked not to take things up directly with the support workers; that should we have matters that we needed to address, that we should take it up with Area Managers or with more senior, and that they would then communicate to the support workers.  That is great in theory but in practice that didn't always materialise.

MS EASTMAN:  Can I ask both of you, in terms of your knowledge about Mitchell and if he wanted to raise an issue or concern, what would Mitchell do?

VICTORIA:  He would usually raise with it Aunty Victoria, and he would constantly tell, if he was upset with someone, that he would report it to Aunty Victoria, which I was very happy for him to be able to do that and I've constantly made it clear that it was --- it was okay for him to do that, he had a voice, that he was able to do that, and communicate with me.  And if I did perceive it to be an issue that I needed to raise further, then obviously I would.  But in the majority of cases, it was something where he was really just getting it off his chest and expressing how he felt and his frustration.

MS EASTMAN:  I should have asked you this earlier.  You are Mitchell's formal guardian; is that right?

VICTORIA:  Yes, we are.

MS EASTMAN:  There are two guardians.  Can you explain what the arrangement is there in terms of your role and what the other guardian does.

 
VICTORIA:  Since about July 2018, James and I are full guardians.

MS EASTMAN:  You are full guardians now.  But at this time?

VICTORIA:  At that time, there was the Office of the Public Advocate also had limited guardianship of Mitchell, which we had very little contact with them, but everything just sailed along, progressed, and there wasn't really anything that we needed to do.  It was only in around October 2016 when Mitchell was moving from the Strathmont Centre that we really began to work more closely with the OPA, and we found that we had an excellent relationship with the person involved and we were all very much on the same page with how we wanted things to progress.

MS EASTMAN:  I want to take you to the early part of 2017.  From early 2017, there are things that Mitchell told you or you became aware of that started to cause you concern about how was Mitchell being treated, how were decisions being made, what role did Mitchell have in making decisions.  You tried to find ways of communicating with the relevant people in this line management system, those concerns.  Victoria, you started to get the sort of feeling that because you had raised these concerns, that you were just getting that feeling that maybe people were starting to become negative towards you, and there was an incident where somebody said, "Oh, Victoria is speaking to Mitchell 15 times a day", and that then really started to sort of fuel the fires, didn't it?  What happened on that occasion?

VICTORIA:  So, as life does, there were people within the service provider who actually became sick themselves, and so some of our closest contacts had to take sick leave.  And that meant that we were introduced to some other people, which was fine, we still felt that we had a professional relationship with those people.  But as time went on, there were some very unusual --- and I would say concerning --- incidents in Mitchell's care that we felt were necessary and very important to raise.  So we did raise them.  And when we were raising those things, it then became aware through the OPA that reports were being put to senior executives and Ministers that I was actually making 15 phone calls a day to the service provider.

MS EASTMAN:  Was that true?  Had you been making 15 calls a day?

VICTORIA:  No.  It was actually James who made me aware of this and I was like, "What?  How ridiculous."  So we actually went back to the service provider and raised this.  It was like, "What are you suggesting?"  This is actually --- it's nonsense and we are prepared to show you records of my phone records, if you really do need to see this.  But I felt that I had a good relationship with these people, and why would these things even be being said?

MS EASTMAN:  James, you were somewhat concerned about this because you are aware that Victoria felt that this was impacting on her reputation, her relationship with the support workers in the house, and the line managers?

JAMES:  Yes.
 

MS EASTMAN:  So you decided to say, "Right, we need to fix this up"   

JAMES:  Yes.

MS EASTMAN:  --- and let's see what's actually going on here.  You raised your concerns that Victoria was being the subject of some sort of investigation; is that right?

JAMES:  Very much so.  As Victoria has said, a number of these people were new to us and we had never met them and they were being --- they were providing disinformation to the Office of the Public Advocate.  So there seemed to be a whispering campaign in the background.  As Victoria said, we challenged that and we asked who was saying this, and what evidence there was.  And we received a formal apology on that occasion, for the 15 phone calls.  That's just an example, though, of the sort of whispering campaign, if you like, that we felt was happening behind the scenes.  There were unexplained things that were happening behind the scenes, there was rumours or hearsay about Mitchell and his previous conduct and previous behaviour that were simply untrue, that had been passed from person to person to person, amongst this magic roundabout, and we felt that both Mitchell and ourselves were getting a reputation that was completely undeserved.

MS EASTMAN:  That caused you to lose some trust and confidence in the managers that you were dealing with; is that right?

JAMES:  Yes, yes.

MS EASTMAN:  Did anyone at that time say, "Right, let's just have a little circuit breaker here.  How do we improve the communications?"  There was an attempt to do that, wasn't there?

JAMES:  There was.  That only happened after we were informed that Mitchell had been out of control and had been for months.  This was a week after he had seen his psychologist, so we are quite taken aback by that.  Victoria had attended that appointment, there was no mention of him being out of control.  So, again, we challenged to what extent that actually meant and at that point we then raised those concerns to a higher authority and we then began a series of fortnightly meetings to try and improve the communications.

MS EASTMAN:  You provided to the Royal Commission a copy of the minutes of some of those meetings.  They look like fairly formal meetings and they are minuted.  Is that the sort of relationship that you expected to have with the Department, fortnightly minuted meetings?

JAMES:  It probably wasn't, it didn't necessarily have the desired output.  They were minuted but they were minuted by a former support worker who had previously worked with Mitchell, so it wasn't a formal minute taking session.  The minutes of  
the previous meeting, I would usually receive those on the morning of the next meeting, so I didn't have time to review them or check them.  On some occasions we raised some concerns; on other occasions we didn't because we had things going on in terms of Mitchell's day to day care and our own family's care.  So I attended most of those meetings due to proximity, they were close to where I worked, but in terms of getting to where we wanted to go, they probably didn't have the desired impact.

MS EASTMAN:  It is the case, isn't it, that by January 2018, both sides acknowledged a breakdown in the communications?

JAMES:  I think that's fair, yes.

MS EASTMAN:  You have talked about that and provided the Royal Commissioners with a copy of some of the correspondence as part of your evidence.  But you had some hope, didn't you, in February 2018, that one of the particular support workers was --- she was the accommodation manager; is that right?

JAMES:  Yes.

MS EASTMAN:  That she was going to move to a new role and you thought, look, maybe a change in staff might be an opportunity for a fresh beginning.  That was your perspective; is that right?

JAMES:  It was always our intention to work collaboratively and to work to resolve issues.  We felt that that was a positive step forward by the Department in actually moving somebody away who frankly was not up to the job and moving them to a different role and bringing somebody more experienced in to manage that team.  We felt that that was an important step.

MS EASTMAN:  Things didn't quite turn out that way.  I want to move to the events on 3 March 2018.  I know this was a pretty distressing day, as you have described in your statements.  I think you were busy with family matters and going out and, Victoria, you looked into the letterbox and in the letterbox was a letter addressed to you and James, with a stamp on it and you opened it.  And you want to read the letter, so that those following this webcast and here in the hearing room can put themselves in your shoes when you opened the letter.  We are going to put up on the screen the letter, which Royal Commissioners, you will find at tab 53 of hearing bundle

Victoria, let's see how you go.  You want to read out this letter?

VICTORIA:  If I can just explain, we were actually in the processes of moving house, so not only was life busy, as it normally is, but we had actually been at the house all day, busy cleaning, and we were just about to get in the car, and it was like, oh, we haven't checked the letterbox.  So it was a Saturday afternoon and we went --- I went to the letterbox, as we were about to drive away, and got in the car, opened up this envelope, and was confronted with this.
 

MS EASTMAN:  We will put that up.  You have got a copy with you.  I know you want to read that.  But if you have changed your mind, that's absolutely fine.

VICTORIA:  No, I'm fine.  Thank you:

Dear Victoria and James

Thought you needed to know that senior management has seen fit to remove the site manager Lesley Evans from the [site].  Her colleagues think this is unfair as she has been a great employee and advocate for DCSI and your nephew (AKA) the piglet for many years.

I would like to point out that due to her professional work ethic and approachable manner, many staff (60) I believe felt the need to support her and have signed a partition to keep her in the role, not all of them from [REDACTED].  Management (Claude Bruno, Justine Matthews and Jenny Karandrikus) have been active in putting a stop to this petition bullying and threatening staff with threats of job loss if they don't stop what they are doing.  As you would imagine the staff involved are angry and pissed off, which now puts your nephew at risk.

*food....poison.
*medication....wrong.
*shampoo....what's in the bottle acid?
*bruises....how did that happen.
*other clients with violent behaviour....eg dumb bells
*going out....falling down stairs.
*how well does he swim.
*locked up.
*food withheld.
*going through the windscreen....seat [belt] unclipped.

This little piglet is going to be abused with cruelty violence.... regularly and repeatedly.

That was the letter.

MS EASTMAN:  That had a profound impact, didn't it, when you read it?

VICTORIA:  When I opened the letter, I was sitting in the car, as we were driving away from our house.  I was like, "Look at this!  My God!"  We were only moving to a house which was approximately 10 minutes away.  I was really --- it was shock and disbelief.  But also a sense of --- I've never felt completely comfortable in all of the time that Mitchell has been with this service provider and I know there are some exceptionally good people.  However, I've always had a sense that there are some very concerning people.  And I immediately said to James, "What have I been telling  
you?  This just validates my feelings over the years."  Although I never ever expected to receive anything like this, but there was an underlying element that existed and that we should have serious concerns.

MS EASTMAN:  You say in your statement you were shocked and horrified.  But you knew that you needed to remain calm and measured, and Mitchell's ongoing wellbeing was your highest priority, and you felt at the time that this letter constituted a serious risk and it was your view that someone could quite easily carry out these threats; is that right?

VICTORIA:  There was no doubt.  We were home within 10 minutes.  The first thing that I did was got a large Ziplock bag and put this letter in it, because immediately I thought, this could be finger printed, this is a serious matter.  This can't just be taken lightly.  And then we contacted Claude Bruno from the service provider ---

MS EASTMAN:  The two of you worked together.  So I think, James, I think you might have contacted the Accommodation Services Manager ---

JAMES:  Yes.

MS EASTMAN:  --- just to raise the concern.  And it's the case, isn't it, that both your recollections is that his initial response to the letter was shocked and he was appalled?

JAMES:  Yes.

VICTORIA:  Definitely.

MS EASTMAN:  You wanted immediately to work with him to implement a series of what you describe in your statements as interim measures to ensure Mitchell's safety?

JAMES:  Yes.

MS EASTMAN:  That was the number one priority.  Is it fair to say that your number one priority wasn't "Who wrote this letter and let's find them", your priority was, take the letter on face value, even if it's anonymous, there are threats to Mitchell's life and to serious risk of injury if those threats were acted on.  You wanted those threats taken seriously and you wanted the immediate reaction to be about having some safety measures put in place in relation to Mitchell; is that right?

JAMES:  Yes, that's correct.

VICTORIA:  Definitely.

MS EASTMAN:  It's the case --- I want to come back to what measures were put in place.  It's the case, isn't it, that a decision was made to also approach the police and  
report the incident to the police.  Who initiated that, to the best of your recollection?  Was that you or was that a suggestion made by the Accommodation Services Manager?

JAMES:  I think, from recollection, I think it was the Accommodation Services Manager who suggested it, and both he and I attended Holden Hill Police Station together.

MS EASTMAN:  That was on or about 5 March, a couple of days after?

JAMES:  Yes.

MS EASTMAN:  Did anyone explain to you that if the police were going to investigate this letter, that that might have any bearing on what the Department could do in terms of conducting its own investigation?

JAMES:  There was certainly an understanding going into the police station that we thought it was a police matter and that the police would take it up.  That proved not to be the case.  However, I was left in no doubt that the Department would conduct their own internal investigation.  That was the advice of the police officer that we spoke to and I was left in no doubt that that's what the Department would do.

MS EASTMAN:  Before we get to the investigation and the steps taken, Victoria, can I take you back to your statement.  This is paragraph 54.  The Accommodation Services Manager, who you have referred to as Claude here, implemented the following measures:

a. regular safety checks conducted by Shift Supervisors

b. ensuring a supervisor was based on site overnight, and

c. implementation of an approved list of carers for Mitchell.

You also implemented a further safety measure which involved calling Mitchell more regularly.  So that's something you initiated.  These calls were check up calls, but you framed them as normal calls, to ensure he didn't suspect something was wrong?

VICTORIA:  The last thing we wanted to do was disturb Mitchell's life more than it needed to be.  But we were well aware that this was something that we had to deal with and take the matter very seriously.  But we wanted to keep things as calm and as measured as we possibly could.  And it was a very delicate situation.  Obviously, you know, we were just completely shocked with what had happened, but --- and our whole family was, because obviously we made everybody aware of this.  It was just --- we all agreed that none of us felt that it was his core team of support workers that would do such a thing and we felt that because of that we had some time that we could actually stay calm, work through this while investigations were taking place to  
remove this hugely toxic element from around any disabled person.

MS EASTMAN:  You didn't think it was in Mitchell's best interests to tell him or show him the letter; is that right?

VICTORIA:  Mitchell can't actually read, but he does have huge anxiety problems and potential PTSD.  I didn't think it would --- and I still don't --- believe that it would be in his best interests to inform him that he needed to be careful of what was in the shampoo bottle, for example.  It might stop him actually wanting to have a shower.  You know, it's like, "Be careful of what you're eating."  These are things that are actually way above his ability to cope with.  And so it was a matter of his guardians and the people around him to actually take control and to deal with.  This is not a matter for Mitchell to have to work with.

MS EASTMAN:  Was it the case you just wanted Mitchell to go on as if everything was in its routine, you were not disrupting the routine, you maintained the peace and the quiet that he likes; is that right?

VICTORIA:  Without a document.

MS EASTMAN:  What supports were offered to the two of you at this time?  Because, as you've said, you were deeply shocked and horrified.  Did anyone offer you any supports?

JAMES:  I was speaking with Claude fairly regularly.  We also involved the OPA at that time and the OPA expressed shock and horror at the letter, but pretty much took a back seat in order for us to work through the issues.  We also involved Maurice Corcoran, the Principal Community Visitor at that time, and he was invaluable at that point as well and made a few suggestions in terms of taking Mitchell away for a holiday, for example, just to remove him from the environment for a period of time.  I felt that we were only dealing with Claude and that perhaps Claude had been left to deal with it by himself.  I would have expected, given I had been involved in senior management roles myself, I would have expected somebody more senior to contact the family, to express their concern around the letter, to effectively say, "This is not who we are, this is not what we're about."  We heard nothing from anybody else until we prompted that call.

MS EASTMAN:  I want to get to those matters.  Victoria, you say in your statement that you received an email from Claude on or around 7 March 2018, this is four days or so after the letter, and he told you that the senior staff had met with HR and the Incident Management Unit on 6 March to discuss the measures to ensure Mitchell's safety and he told you that as a result of that meeting, at least two staff would be moved, new staff would be brought in with appropriate experience and credentials to strengthen the management at the site, and you have included a copy of that email in your evidence.

But it's the case, isn't it, that despite the implementation of these interim measures, in  
the days that followed, you and James didn't feel comfortable about how the Department was responding, and this is your point, James, isn't it?

JAMES:  Yes.

MS EASTMAN:  You felt that you were trying to be calm and measured but in being calm and measured you didn't want the Department to think, this is sort of nothing?

JAMES:  Correct.

MS EASTMAN:  I think you said you sort of wonder whether the calm and measured approach might have perhaps conveyed the sense that "It's not a big deal and these things will sort themselves out."  But you were quite sort of worried that, were people taking this really seriously?  You didn't know what was happening on the Department's side but the lack of communication from your perspective meant that you felt, "Look, are they taking this seriously?  What's going on?"  Is that fair?  I'm just trying to summarise what you have said in your evidence.

VICTORIA:  It's one thing to stay calm and measured if you've received something like that, and to, we must stay focused, but as the days progressed, we noticed that --- I think it would just be normal for me, if this hadn't come to me personally, and I found out about this, I'd express some sort of a connection with the people who had and, you know, just to say, "Wow, are you okay?"  Or there's --- something about it.  And we believed that the Department would inform the support workers.  None of the support workers mentioned it.  There was an attitude, even though we wanted everything to be calm and normal for Mitchell, that someone would --- well, someone would say something.  And as the days progressed, no one was saying anything.  It was, okay, we can stay calm and measured, but how was this proceeding?  It was actually also suggested to us that it be known that this letter was sent to the Department, not to Mitchell's family.  And we immediately saw that as a red flag, of why would you be suggesting that it went to the Department?  It should be known that this has been sent to Mitchell's family.

MS EASTMAN:  You remember --- and you have said this in your statement --- you did receive a call later in that sort of first week from the Executive Director of Disability Services at the Department --- that's Ms Young --- she acknowledged the letter.  So you did have a conversation with her; is that right?

JAMES:  That was after ---

MS EASTMAN:  That was after the prompting?

JAMES:  After asking for it.  On a Saturday morning, a week after the event, we received a phone call, saying "How horrible that you've received a letter, and we're here for you when you need us."

MS EASTMAN:  Following that conversation, is that the context in which you felt  
that it was sort of being left to Claude to sort it out at a local level?

JAMES:  It was probably before that.  I think that phone call was designed to assuage my concern.  It did the absolute opposite.  It was really just a tick the box, we can now say that we have contacted the family and we can move on.  The whole event was treated in an ordinary manner, and we felt it was anything but ordinary.

MS EASTMAN:  But you still believed, did you not, at this time that the Department had commenced its own investigation?

JAMES:  Yes.

MS EASTMAN:  I think you have included in the material you have provided to the Royal Commission some emails between you and Claude.  You had a sense from those emails that the Department were going to conduct an internal investigation and you also were waiting to see what the police might do?

JAMES:  Yes.

MS EASTMAN:  So you were aware of those two things perhaps going on.  Alright.

Let's deal with what happened with the police.  It's the case, isn't it, that the police didn't conduct an investigation; is that right?

JAMES:  When we left Holden Hill Police Station, the police had taken a copy of the letter, for intelligence purposes, I think they called it a street report, but indicated that they didn't see it as a police matter, they didn't see it as a direct threat, and they said it was an internal matter for the Department to interrogate who had access, for example, to our home address and to conduct the internal investigations.  I was assured at that time that the IMU, the Investigations Management Unit, had a former police officer in charge, and that they would take up a pseudo police investigation.

MS EASTMAN:  Victoria, was it the case that you were also under the belief that by 11 March, that the Department was conducting its own investigation and that was the day where you decided to go and visit Mitchell in person and you had an opportunity to speak to some of the support workers?  I want to ask you about what happened on that day, because this ends up in allegations being made about you; is that right?

VICTORIA:  It did.

MS EASTMAN:  What happened?  You have set this out in your statement but could I ask you to briefly tell the Royal Commissioners what you remember happening on that day.

VICTORIA:  It's one of the most appalling days for me.  So as the week progressed, we had received a couple of phone calls from people within the Department expressing how appalled they were, and we appreciated those phone calls.  There  
was other things that were said, but none of the support workers had actually acknowledged in any shape or form a threat to Mitchell.  So when I was about to visit, I had said to James, "I'm going by myself.  I feel really uncomfortable about this."  He was like, "Look, you're going to be fine."  It's like, well, I was really in a dilemma.  How do I do this?  This is just the most extraordinary of circumstances.  So I actually took a copy of the letter with me, because no one had said anything about it, you know, with anyone within the immediate care of Mitchell.  But I recognised that Mitchell might be interested, might even snatch it off me if I even brought it up in conversation.  So I took just another piece of paper with other details on it, that he could actually have and I could hand it to him, so it would almost be a distraction for him while I could engage with the support workers.  So I visited.  I noticed an atmosphere straight away.  I actually feel like I had a good relationship with the support workers, and to have this reaction and nothing being said, I just thought, this is --- this is so strange.  Anyway, so I actually took Mitchell out.  We actually went to the swimming centre.  And so I was in the company of Mitchell and the support workers for over three hours, and nobody said a word about threats, about "Victoria, I'm so sorry you've received this terrible thing."  No acknowledgment at all.  Eventually, it would have been about 4.30 in the afternoon, I was just like, what do I do here?

MS EASTMAN:  So what did you do?

VICTORIA:  So the support workers were in and out of the house, and so I set my phone to record and I asked them to come back and then I started a conversation about having received the letter.  So that conversation, I asked them if they were aware of the letter.  I sensed that they were very nervous and I really wanted to put them at ease because we had always, and all of our family had always felt that, particularly in that week after receiving the letter, that Mitchell actually was safe in their presence, otherwise we would have acted immediately and removed him from their care.

MS EASTMAN:  In your statement, you say you gave the two support workers a copy of the letter but you didn't suggest that they personally were involved and you wanted to discuss the letter with them, so they could be vigilant against any unusual activity; is that right?

VICTORIA:  Absolutely.  We're very much a case of you need to communicate these things.  You don't hide these things.  But then again, we have to be careful and we have to make sure that Mitchell doesn't become aware of all of those awful things.  So it was very unusual circumstances.  But I suggested, right, do you want to see it?  Because we're not hiding this.  We all need to talk about this and be vigilant.  And we had a conversation, I definitely expressed that I didn't think that these people were involved, and that we need to stand up to bullies and we need to address this, because this is a really toxic culture, and that we --- you know, for Mitchell's sake, we need to --- and not just Mitchell's sake but for everyone with a disability, particularly in the residence that he was living, needed to know that this element was removed.
 

MS EASTMAN:  Can I interrupt.  James, you were not with Victoria on this visit, but while Victoria was still at the unit with Mitchell, you got a call?

JAMES:  Yes.

MS EASTMAN:  You got the call from the accommodation manager ---

JAMES:  Yes.

MS EASTMAN:  --- who told you that the two support workers had raised a claim or a complaint with him?

JAMES:  Yes.

MS EASTMAN:  So what were you told?  So, Victoria, you're still in the unit while this is happening.

JAMES:  So Victoria is still in the unit.  Claude has called me and advised that the two support workers had gone next door and were "in tears", that they had been forced to read the letter out loud to Mitchell and --- had been forced by Victoria to read the letter out loud and could not possibly go back, could not possibly work with them --- with Mitchell again, and had effectively been accused of being party to the letter.

MS EASTMAN:  Okay.  So this incident led to another fairly significant breakdown in the relationship; is that right?

JAMES:  It did, because Victoria had attended the house of her nephew, she was apprehensive to do so, the Department hadn't communicated effectively with the support workers, we hadn't received the support that we felt that we needed.  The fact that Victoria felt the need to protect herself, to record herself, is self evident of the fact that we were concerned about our own reputation, our own safety, and that was borne out, that the story was completely turned around and that the two support workers had effectively conducted or concocted a story between themselves that, had we not had evidence, had we not had proof, we would not have been believed and that we would have been the ones accused of bullying staff.

MS EASTMAN:  Your concern was that not only did you think the Department was investigating the letter but, based on this conversation, the Department was now going to investigate Victoria's conduct?

JAMES:  Correct.

MS EASTMAN:  You wanted to say, "Well, maybe there's a different side of the story"?

 
JAMES:  Yes.

MS EASTMAN:  So after speaking to Victoria, you said, "There is a different side to the story" from your perspective and you would like that then to be investigated?

JAMES:  Yes.

VICTORIA:  If I can just say, so we're the family who have received this most appalling of letters, death threats to one of our loved ones, and nothing has been said by anybody, which I --- in any context, I consider that the most strangest of circumstances.  Then when James phoned me up to say, "I've just had a phone call from Claude and he's suggesting this", it's like, "What on earth is going on?"  What kind of culture is this, where we actually are the ones who have received this terrible letter and now I'm actually being --- it's suggested that I am actually doing the wrong thing with the support workers.  Where is the support to Mitchell and his family in any of this environment?  So I immediately told James, "I actually recorded this conversation for my own personal protection", never ever expecting that I would ever have to use it.  But I thought, thank goodness, it's one of the best things I that ever did, and agreed to meet with Claude.

MS EASTMAN:  You are now aware, but you weren't at the time, that the complaints that you wanted to raise about the letter or seeking action about the anonymous letter was not send to the Triage Panel of the Incident Management Unit until 19 April.  That's something you learned from the Ombudsman's later investigation; is that right?

JAMES:  That's correct.

VICTORIA:  That's correct.

MS EASTMAN:  An investigator wasn't allocated to investigate the letter until 20 April.  You're aware of that now?

JAMES:  Yes.

MS EASTMAN:  Mr Dodd will give some evidence, or he has set that out in his statement.  But for the two of you, you thought, let's just see what's going to happen here about the investigation and you were under the belief that the investigation was continuing.  But by about October, you hadn't heard anything in relation to the investigation; is that right?  And, James, you wondered, what's going on after five months?

JAMES:  We felt that a significant investigation was being undertaken.  We felt that any organisation that was worth its salt would take a letter like this and look inwardly at its culture, would look at what sort of --- what sort of culture was breeding this, that somebody felt at liberty to send this to somebody's house, to --- those people knew where we lived, they knew where our children lived.  We felt there was a  
significant piece of work being undertaken.

We felt at that point that the best thing we could do, rather than ringing every week and saying, "What's going on with the investigation", as much as we wanted to, we felt the best thing was to step back and let the investigation take its course and we had no reason to believe that it was doing anything other than that.

MS EASTMAN:  By October 2018, you decided to speak to the Principal Community Visitor to follow up what was happening with the investigations; is that right?

VICTORIA:  Much to my frustration, and James would agree, he would often come home and I would say, "Have you heard anything?  What's happening?"  It just did seem like an incredibly long time.  But we --- we were like, look, let's people do their job, let's stay quiet, let's just let things proceed.  We had actually met with Maurice and we had said to Maurice, "Have you heard anything, Maurice?"

MS EASTMAN:  Maurice is Mr Corcoran, the Principal Community Visitor?

VICTORIA:  The Principal Community Visitor.  He's like, "No.  Would you like me to follow it up?"  It's like, yes, please.  Someone needs to.  And so, yes, Maurice kindly followed it up for us.

MS EASTMAN:  He reported back to you in an email on 23 October 2018.  You have referred to that in your statement.  Commissioners, you have a copy of this email behind tab 54 in the bundle.  I don't need it to go up on the screen.  But the Principal Community Visitor said this to you in an email:

I have met with Trevor [that is a relevant officer in the Department] and have confirmed that his unit did not investigate nor interview staff regarding the threatening letter.

Mr Corcoran said to you:

So I remain concerned that this was never properly investigated by either the police nor the FAIR team and I have stated this in my Annual report which should be tabled in Parliament this coming Thursday.

So the letter then went on to express his concern and you responded to the email, saying:

Experience has taught us to expect very little from Disability SA but it's appalling that they didn't feel it warranted to interview staff or courteous to inform us.

Then you were going to have a meeting.  Do you remember receiving that email?

 
VICTORIA:  I do.

JAMES:  Yes.

MS EASTMAN:  That then led to the report being tabled in the Parliament and there was a little bit of media around the time; is that right?

VICTORIA:  There was.  We were just flustered.  We had no idea.  This was something that we had --- we never imagined that we would be in a position where we would have to, five months after receiving a letter like this, have to work through where we go from here.  I did believe there was a level of integrity somewhere within this Department that people would stop and say, "This is serious and we need to do something about this."  I genuinely did believe that.  And so to receive what Maurice sent us was like, "Oh, I should have known."  And how do we proceed?  And that's where we were.  We were very grateful for it to be tabled in the PCV annual report.  We thought it was very important that it needed to be known, it was a story which, right from the very beginning, people needed to be aware of this because it's not just Mitchell's safety.  If people are writing a letter like this to us, they might not be writing letters like this to other people, but what are they doing to disabled people?  It was just --- it was a burden that has been extremely heavy and I find it --- I am so pleased that I can now today release this burden from me because it genuinely has been so difficult to hold on to it.  Thank you.

MS EASTMAN:  Take a deep breath and a minute.  Let me know if you need a break.

VICTORIA:  Okay.

MS EASTMAN: In that five months while you were waiting to find out what was going on, how were things for Mitchell during that period of time?  Was his life sort of carrying on in the routine that he likes?

VICTORIA:  It actually had some improvements because when Lesley Evans had left the residence and a lady called Wendy Gill had come in, and I've always felt that the majority of people who have worked in the system have actually been good and caring people, and I felt Wendy was a breath of fresh air and I felt that she was interested in Mitchell's care and concerned and that although there were big improvements, there was stability and that we were setting things forward.  So I didn't want to impose on Wendy the things that were going on and I genuinely believed that there was an investigation, and so it was better to remain quiet.  Occasionally I would bring it up, you know, "You know that there's an investigation, Wendy" but we wouldn't progress with it.  So, yeah, there definitely was a level of balance and improvement after she came on board.

MS EASTMAN:  Coming back to the tabling of the report in the Parliament; as I mentioned, there was some media attention.  Victoria, you say in your statement that following the tabling of the report, the South Australian Police made contact  
with you and said that they wanted to reopen the investigation.  And you and James were supportive of this and you felt it was --- you say here:

.... in the best interests of all people with disability for this course of action to take place.

There was some contact with the South Australian Police around that time but you didn't hear anything further as to whether that investigation progressed.  Is that right?  James, do you want to deal with that?

JAMES:  Yes.  So I was contacted by SA Police a day or so after the story had reached the newspaper and a police officer attended, or a detective attended our house, spoke with us for a couple of hours, took the letter, gave us a receipt for the letter, and we haven't heard anything from SAPOL since that time.  That would have been in October/November 2018.

MS EASTMAN:  Around the time where there was some media attention and this interest to reopen the investigation from the South Australian Police, you say, Victoria, in your statement that you didn't have any offer of support from the Department at this time and you were a little bit concerned about whether the media attention might cause the need to revisit the measures for Mitchell's safety; is that right?

VICTORIA:  So we were aware that it was going to be in the PCV annual report.  We were fully supportive of that.  We definitely believed it needed to be.  We weren't sure how to proceed.  I actually remember, I was actually sitting outside of my children's school, I just happened to open my phone, and there's details about, you know, a little bit of this story.  I was like, this is us, my goodness, what do I do?  So we --- immediately it was like, oh, my gosh, Mitchell, we are raising this.  It had become almost like an elephant in the room.  It was the strangest of circumstances, because no one was talking to us about it.  And I had had that experience of trying to raise it and, you know, and then being, you know defamed and complete --- these absurd accusations.  So it was just the most strangest of circumstances, of, okay, where do we go with this and how do we proceed?  So we were talking to the former PCV and then working out how to proceed.  We had the police contacting us.  And then we were advised that the Ombudsman had contacted ---

MS EASTMAN:  I want to ask you about that.  So the Principal Community Visitor told you in around November 2018 that the South Australian Ombudsman was assessing whether to commence an own motion or an own initiative investigation.  So you understood that didn't mean you were making a complaint, but the Ombudsman could decide to commence an investigation himself; is that right?

JAMES:  That's correct.  And we --- at that point we had run out of options, I suppose.  We don't know how much further to go.  We had received the advice from Maurice that the Department hadn't investigated and so we thought that having a third party such as the Ombudsman investigate, that would be a reasonable course  
of action.  So we consented to that.

MS EASTMAN:  So you were supportive of that approach?

JAMES:  Initially we were, yes.

MS EASTMAN:  We will work our way through.  In early April 2019, you were told that the Ombudsman had commenced a preliminary investigation, and that was into the Department's response to the letter?

JAMES:  Correct.

MS EASTMAN:  You understood the nature of the investigation.  And by 28 September last year, so it's quite a period of time in between, you received the Ombudsman's report on the preliminary investigation and you were given the opportunity to respond, which you did by 20 October 2020.  So over that period, from being told in early April 2019 through to 28 September 2020, during that period of time, what contact did you have with the Department about the Department's investigation and whether there had been any further action following what Mr Corcoran had told you, that there was no investigation?

VICTORIA:  So when ---

MS EASTMAN:  Did you become aware that in fact something might have been going on at that time?

VICTORIA:  We always realised that we were probably never going to be given very much detail about an internal investigation within the Department.  We accepted that there were procedures in place, that we wouldn't be given very much information.  But as we visit Mitchell and we are quite savvy with, you know, the residence he lives in and things go on, and that we --- you know, we talk to people, that we would have some knowledge of what was actually happening and who had been removed, for example, and things that you find out naturally.  So when we, quite naively now, look back and see that nothing had actually happened, it's --- you know, we look back and we think, the thing that we really should have done was shout and scream and go to the media and, you know, raised as much noise about this as we possibly could have, but we genuinely believed that we were acting professionally and in the best interests of everybody to let the government do the right thing.

When the Ombudsman came on board, we were really pleased, we thought that this is good because, clearly, the wrong thing has been done here, and we needed to have that addressed.  And we were advised by the Ombudsman initially that he believed it would be August 2019 when his investigation would be concluded.  So when it took until September 2020, I was extremely frustrated.

MS EASTMAN:  And you say that in your statement.  You were also frustrated by the fact that the Ombudsman's investigation was confidential.
 

JAMES:  Yes.

MS EASTMAN:  So this set of confidentiality that surrounded what started with the letter in your letterbox, you found that was very difficult to understand or why it had to be confidential; is that right?

JAMES:  It meant that --- yes, we found it difficult to understand.  It meant that the Department could hide behind that confidentiality, so in effect refused to engage in any sort of conversation.  We contacted the Minister's office, the Minister refused to speak on --- in view of it being a confidential, on any matter, irrespective of the fact that we wanted to speak about other issues concerning Mitchell's care.  We felt that the Ombudsman's report was used as a coverall to effectively delay any conversation, any outcome, and it gagged us from doing anything else.

MS EASTMAN:  Would it be fair to say that this state of uncertainty while the investigation was going on did not assist you in terms of your trust and confidence in the Department, and the underlying concerns that you had about Mitchell's safety continued?

VICTORIA:  I think I would always like to think that there are good people within the system and, regardless of my feelings for certain individuals, that overall there are good people and I personally have met some very good support workers and managers within the system.  So I had confidence in those.  But in higher people, unfortunately, no, I had no confidence at all.

MS EASTMAN:  You did receive a letter from the Minister, didn't you ---

VICTORIA:  Yes.

MS EASTMAN:  --- in January 2020.  And you have included it in the bundle.  Commissioners, this is tab 49.  You have got a copy of the letter at tab 49.  This is a letter from the Minister for Human Services, James, addressed to you.

JAMES:  So we contacted the Minister in --- it would have been around October 2019 initially and we received no response.  We then contacted the Premier of South Australia and that afternoon we received a letter from the Ombudsman which was effectively providing the Minister with the direction, if you like, to talk to us, so that she could talk to us.  Because up until that time it had been that she couldn't talk to us.  We then received a letter in January 2020.

MS EASTMAN:  This letter said to you that the Minister was thanking you for your letter to her and to the Premier regarding matters arising from the Department of human Services, Accommodation Services support for your nephew:

As this matter falls within my responsibilities, I am responding on the Premier's behalf.
 

The Minister said to you:

I was deeply concerned when I learnt of this incident and acknowledge the distress this must have caused your family.  Whilst the Investigation Management Unit in DHS and the South Australian Police conducted thorough investigations into the incident, they were unable to determine the source of the anonymous letter.

Then the letter goes on to continue.  But it was this paragraph where the Minister said to you that 
"the Investigation Management Unit in DHS and the South Australian Police conducted thorough investigations into the incident", when you received that letter, that sort of caused you some alarm, didn't it?  You say in your statements that you wanted to found out, well, what and when did this investigation occur by the Investigation Management Unit or South Australian Police?  Is it fair to say that this letter was quite confusing to you, because it seemed to be different to what you had been told?  Is that fair enough?

JAMES:  Yes, yes.  It contradicted the previous advice.

MS EASTMAN:  Did you still want to meet with the Minister after that?

VICTORIA:  A number of things had occurred, one of them being that a manager had actually advised me that words of the effect of "You know who it is, Victoria, it's not just one person, you know who it is."  So that made me believe that there were --- that if I had some knowledge of who this is, then obviously they do, so I've always believed that within the system, even if the investigation unit have completed an investigation, that they haven't looked thoroughly enough because there are people saying this to me within the Department.  But then when --- so Wendy Gill had chosen to move to a different area, and ---

MS EASTMAN:  Can I jump in there, because I want to bring you back to the letter around this time in January.  Because a few weeks after the letter, you became aware of the final report of the Ombudsman.  So I just want to bring you back to this sense that you were being told by the Minister that an investigation had occurred internally and by the police and you were concerned to say, when, where and how has this happened?  Is that right?  I want to focus on that.

VICTORIA:  This letter was a year before we actually received the final Ombudsman's report.

MS EASTMAN:  That's right.  So the final report, you didn't get until the following January.  Thank you for reminding me about that.  But that year, between referring the Minister's letter and then the final Ombudsman's report, really piqued your curiosity to go, "What's been going on and why haven't we been told?"  Is that right?

 
VICTORIA:  Really about where do we go, who do we talk to about this?  This is an important matter.  We had always come back to, well, we can keep Mitchell safe or relatively safe but who is keeping everyone else safe?  It was the, "Why are people not actively wanting to investigate this as much as what we felt it warranted?"  And so we were continuously frustrated that, even though we were told the investigation unit had actually investigated and that we needed to move on, that just wasn't possible.  We are not moving on.  Regardless of whether we say these people are not around Mitchell, they might be around other people, and it was for that reason that we felt that we had to keep raising it.

MS EASTMAN:  I'm conscious, Commissioners, of the time.  The next topic that I want to turn to is when we get to the Ombudsman's report.  I was trying to jump too quickly, I think.  My apologies.  When we get to the Ombudsman's final report, your reaction to that report and then I want to ask you some questions about what you were told in terms of the Department's response to that report.  Then I want to come back to the impact that this has had on you.  I think the Commissioners have got a sense of the impact as you have been giving your evidence today.

Commissioners, would it be convenient if we break now and that gives Victoria and James a bit of an opportunity to have a break.  Then if we resume in an hour, we will turn to the topics I have just identified.

CHAIR:  Yes, thank you.  Thank you, Victoria and James.  What we will do is adjourn for an hour until 2.00 pm Adelaide time.  We will resume with your evidence then, thank you.  In the meantime, we will adjourn.  You can have some lunch and fortify yourselves.  Thank you.  We will adjourn until 2.00.

ADJOURNED    [1.00 PM]

RESUMED    [2.00 PM]

CHAIR:  Yes, Ms Eastman.

MS EASTMAN:  Thank you, Commissioners.  We are back with Victoria and James.

Just before lunch, we got up to the point where you became aware of the Ombudsman's Final Report, but were you aware that the Ombudsman had prepared a preliminary report before the final report?

JAMES:  Yes.

MS EASTMAN:  Did you receive a copy of the preliminary report?

 
JAMES:  Yes, we did, in September 2020.

MS EASTMAN:  So you were generally aware of the recommendations that the Ombudsman was going to make and also some of the findings in relation to the department?

JAMES:  Yes.

MS EASTMAN:  The Commissioners have a copy of the final report, which you have referred to, Victoria, in your statement as a document that you received on or about 27 January 2021.

VICTORIA:  Yes.

MS EASTMAN:  When you read the Ombudsman's final report, what was in that report that was new or different to what you understood had been the steps taken by the Department in relation to investigating the anonymous letter?

VICTORIA:  We found that the preliminary report and the final report were very similar.  Our comments that we had provided to the Ombudsman in October 2020 had been put in but very little of it had actually changed.  We agreed with the assessment that the anonymous letter hadn't been investigated properly and the Ombudsman had concerns about re investigating the letter.  But our biggest concern was the --- he decided that he wanted to keep it confidential, which all the way through this, it's always been about informing others of this anonymous letter.  So, for us, it wasn't just about, okay, now we can put this matter to rest.  It's actually, where do we go now?
We actually do --- it's so important for other people to actually know about this.  We were in a bit of a dilemma ---

MS EASTMAN:  While you are on that, the Ombudsman's final report is going to be part of the evidence for this hearing.  The Commissioners have a copy of it in hearing bundle D behind tab seven.  So you were concerned, weren't you, that the report was confidential.  So how would people know about the particular findings and the recommendations?

VICTORIA:  It was my biggest problem.

MS EASTMAN:  In terms of --- the Ombudsman's report is quite lengthy.  But in terms of a summary of the findings and recommendations, as you said, the Ombudsman formed the view that the Department had failed to properly investigate the letter and that was unreasonable within the meaning of section 25(1)(b) of the Ombudsman's Act.

I want to ask you about the recommendations that the Ombudsman made.  Did you make any suggestions to the Ombudsman with respect to any of the recommendations and the remedial action?
 

VICTORIA:  Prior to him releasing the report, we actually had contact with the Ombudsman in regards to one of the suggestions he was making about the re investigation.  We agreed that it could be re investigated and that there were certainly people who were still involved with Disability Services who could be spoken to.  We had no idea who had actually been spoken to prior to that.  But we confirmed and we agreed with him that, yes, it's a good idea to re investigate the letter.  And other than that, we --- look, as far as --- we just wanted it confirmed that it hadn't been investigated properly.

MS EASTMAN:  So the recommendation which is number six in relation to the department re investigating, said this.  The recommendation was:

That the Department conduct further inquiries to identify the author of the letter, including but not limited to:

interviewing the author of the petition referred to in the letter, if possible, to establish who else was aware of the petition;

interviewing any other employees who worked at [the residence] when the letter was received and who were aware of the petition.

and continue to an investigation where those enquiries indicate that the author of the letter might be identified.

After doing so, if the department is unable to identify the author and no further enquiries can be made, I recommend that the department advise Victoria and James of the steps it has taken and their outcomes.

If the department is able to identify an author, and the author is still employed by the department, I recommend that the department consider disciplinary action.

So that investigation, or the recommendation around the investigation, was directed to identifying the author of the letter.  Were you satisfied with the scope of an investigation directed to identifying the author of the letter?

VICTORIA:  From what we can gather, from details that we've received last Friday, we don't think that it's been investigated thoroughly enough.  One of the people --- well, several of the people that should have been investigated or asked for details back in March or in 2018, were only asked details in February 2021.  Personally, I found that quite astonishing.  So ---

MS EASTMAN:  Just pausing there, when you are talking about what you found out last week, it's that you have now had an opportunity to read the statements provided by the department to the Royal Commission and it's on reading those statements that you now have an understanding of how the department responded to this  
recommendation; is that right?

VICTORIA:  Yes.

MS EASTMAN:  You've seen, haven't you, that in terms of the response --- and I mentioned this in the opening this morning --- that between the period January to February there were some further interviews done of staff.  You saw that?

VICTORIA:  Yes.

MS EASTMAN:  The conclusion was that the author couldn't be identified and the decision has been made to close the investigation.

VICTORIA:  Mm hmm.

MS EASTMAN:  You have been notified of that; is that right?

VICTORIA:  Yes.

MS EASTMAN:  But in terms of what the Department did, that you were not aware of what the Department did in terms of acting on this recommendation until you read the department's evidence last week; is that right?

JAMES:  That's correct.  As Victoria has outlined, there were some people who were core members of Mitchell's team, including the Area Manager, who were not interviewed until 2021.  So three years after the event, some key people who would have been present and fully around the area at that time and aware of the residence and aware of the people within the residence, were not interviewed at that time.

MS EASTMAN:  What is your view about an inquiry being directed just to try to identify the author of the letter?  I'm asking you that because earlier in your evidence today you said, when you first saw the letter, your interest was not in pursuing who was the author of the letter or authors of the letter, but you were concerned about the measures that would be put in place to ensure that Mitchell was safe.

JAMES:  We had ---

MS EASTMAN:  I am getting some feedback.  There's some sound in the auditorium.  Can I ask that that be checked?  Chair, it may be that the doors to the auditorium are open, and there's quite a lot of noise coming in, so I want to be able to hear what James and Victoria have to say.

CHAIR:  I'm sure someone will attend to that.

MS EASTMAN:  Thank you.  I think we are fine now.

JAMES:  As we outlined earlier, we have for a number of years raised concerns  
about the culture around the residence.  We felt that the letter was proof positive that there was a toxic element within the residence and we felt that this gave the Department all the impetus it needed to investigate further, not just the author of the letter, but the culture that would allow somebody to write the letter and to potentially carry out the threats that are detailed in the letter.  So we felt that limiting just --- limiting the investigation just to the author of the letter was somewhat narrow.

MS EASTMAN:  Would you say it's a case that if the inquiry was just to identify the author of the letter, that that starts to suggest that responsibility lies with an individual person, but your approach has always been around the departmental responsibility and accountability, and you are saying it's not just one person, but what was it in the culture and the way in which the Department addressed issues like that was really the gravamen or the fundamental aspect of your concerns; is that right?

JAMES:  Yes, yes.  So the department will talk about a zero tolerance policy to abuse.  What does that actually look like in real life?  What does that actually look like?  Because to us, when we have raised concerns, we have been told to move on, we have been given misinformation, we have been gas lighted effectively, and told that we are the problem, that we are creating stories, or making up stories or exaggerating the truth.  Here, we have something that was proof positive that there was a malignant culture and nothing was done.

MS EASTMAN:  One of the other recommendations made by the Ombudsman was:

That the department review and amend the Managing Misconduct Guidelines, and any other guidelines or internal documents, to provide greater clarity on:

  when misconduct investigations are to be undertaken
  the responsibilities of the department where a complaint has not been made but there is good reason to commence an investigation
  how to manage an investigation where external authorities, such as SA Police, are involved, and the scope of the department's investigation in such circumstances
  the investigative process, particularly where it is initially unclear who is responsible for the alleged misconduct.

So that recommendation was been made.  I want to ask you three parts to that.  First of all, have you seen the Managing Misconduct Guidelines?

JAMES:  No.

MS EASTMAN:  I assume, then, that these guidelines were never provided to you on or around the time that you raised the anonymous letter with the department?

JAMES:  No.

 
VICTORIA:  No.

MS EASTMAN:  In terms of managing the investigation with external authorities such as the SA Police and the scope of the Department's investigation of the circumstances, you recall I asked you earlier today about attending the police station and whether you were told what this would mean for the department's investigation.  I think you said at the time that you were not clear exactly what the process would be.  But has anybody examined that with you further?

JAMES:  No, not at all.

MS EASTMAN:  In terms of the focus of an investigation into who was responsible for alleged misconduct, this recommendation also seems to point to finding responsibility for an individual, rather than the broader culture.  That's my interpretation of the Ombudsman's report.  But has anyone discussed with you or sought your opinion or views on a review to amend or manage --- amend or review Managing Misconduct Guidelines?

VICTORIA:  No.

JAMES:  None whatsoever.

MS EASTMAN:  If someone was to ask you do you have a view on how Managing Misconduct Guidelines might work effectively for a person with disability or their family members, would you have views on that?

JAMES:  Most certainly.

MS EASTMAN:  And no one has asked you about that?

VICTORIA:  No.

MS EASTMAN:

JAMES:  Not at all.

MS EASTMAN:  Have you been told about the status of any review or any proposed amendments to those guidelines?

VICTORIA:  No.

JAMES:  No.

MS EASTMAN:  Another recommendation made was:

That the department amend its standard agenda for support worker meetings to include items on incident reporting, behaviours of concern, and staff wellbeing.
 

Are you aware of any amendments made by the Department to the standard agenda?

VICTORIA:  No, not at all.

MS EASTMAN:  Has anybody asked for your views on how that could be strengthened?

VICTORIA:  No, not at all.

MS EASTMAN:  If you were asked, would you have any views on this topic?

VICTORIA:  We would certainly think about them.

MS EASTMAN:  I'm working backwards on the recommendation.  The other recommendation was:

That the department amend its relevant policies to require regular audits of incident reporting.

Are you aware of what the relevant policies are in relation to audit of incident reporting?

VICTORIA:  No.

JAMES:  No.

MS EASTMAN:  That's never been raised with you?

VICTORIA:  An audit of incident reporting?  No, no.

JAMES:  Not at all.

MS EASTMAN:  The next recommendation is:

That the Department review and amend its policy, or develop and implement a policy to provide greater clarity on required supervision levels for the first 12 months of a new accommodation facility, including periodic reviews within that time.

So you saw that recommendation?

VICTORIA:  No, we see no recommendations, no policies.  We see nothing.

MS EASTMAN:  You are aware, aren't you, that this recommendation reflected some other parts of the Ombudsman's report that looked at some of the concerns that you raised when Mitchell first moved into the cluster units?  We touched upon those  
briefly this morning in terms of raising those concerns, and, Victoria, your sense of how you were treated when you raised those concerns.  But no one has spoken to you about any policy or development of any policy on supervision levels?

VICTORIA:  No, not at all.

MS EASTMAN:  The first recommendation --- I'm working backwards --- is, "the department provide a formal apology to" the two of you, "in regard to the areas identified" in the Ombudsman's investigation.  So I think we touched on this at the time that you prepared your statement, you hadn't received anything, and you have clarified earlier this morning that you have now seen an email and the letter from Ms Boswell.  But has she contacted you or have you spoken to her at all?

VICTORIA:  No, no, we tried to raise our concerns and as James said, we went as far as the Minister for Disability, and we were getting nowhere, and so we obviously feel that the CEO of the Department would actually be involved in any of that, and up until last Thursday, the apology letter is the first acknowledgment of anything to do with this experience.

MS EASTMAN:  Last Thursday is when --- again, when you saw the department's evidence and you saw that letter, you did a search through all your emails and junk and various things, but James, you also separately received the letter again; is that right?

JAMES:  I received the letter for the first time.  So the original email was sent an unused email address and singularly to an unused email address and the email that was sent last Thursday also copied my email address, which is the only reason we saw it.  The one sent to Victoria's address had also gone into the junk email.  The only reason we saw it was because it was copied in to me.

MS EASTMAN:  Some might say, look, you have exhausted a whole lot of processes and you have now got a report from the Ombudsman.  Does this bring to an end for the both of you the issue around the anonymous letter and do you feel that you are able to trust and have confidence in the Department going forward?

VICTORIA:  For me personally, I feel that bringing it to the Disability Royal Commission and voicing it is what has actually now made people aware, because there is no point having a Department investigate and keep things quiet, especially if they can't find the source of the author.  So for us to come today, I actually do feel like the weight has been taken off my shoulders and that I can start moving forward with this.  I've always felt that there's a certain degree of trust that I have within the department, there has to be, but it would take a great deal of rebuilding and honest communication for us to be able to move forward with the department.

MS EASTMAN:  What at this point in time would you like to see happen in terms of the letter, the anonymous letter?

 
VICTORIA:  I would actually like people to honestly assess whether they could have any idea who the authors were and to feel comfortable actually being able to voice those concerns within the department.  And if --- and the people, families, to actually feel that they now know that this exists within the Department, and so if they have concerns, to know that they can actually come forward and if the only way of doing that is to actually come to the Disability Royal Commission, instead of going to the department themselves, to know that they are not alone.  We have opened that and I would like to think that people will be empowered so they can actually do it themselves.  For us personally, the letter --- the statements that were in the letter are appalling and --- but we have moved past that.  We --- we are well on guard all of the time, but we needed to let other people know.  So we feel that the people around Mitchell at the moment will keep him safe.  But that we --- we just needed to let other people know about it.

JAMES:  Can I just add to what Victoria has said.  I think any organisation that can look at that letter and think that that's okay, any CEO or director who can look at that letter and think it's okay for a worker or a group of workers to refer to one of their clients as "piglet" and think that that's okay and think that that's a culture that they can tolerate, I don't think they should be in the positions they're in.  The standard that you walk past is the standard that you accept.  The Minister will no doubt say that she didn't know and lessons will be learned, the CEO might well say that lessons will be learned.  They were fully aware of all of this throughout the process and they have turned the other way.  They haven't taken the opportunity to look inward and say, there's actually something wrong here.  If we are looking towards a reason for this, a reason why this has happened, and trying to explain it away to the Ombudsman, then there's something wrong.  If you're doing the right thing, you should be open and transparent and honest all the way through.  And if you can genuinely look at that letter and think that that's okay, there is something wrong.

MS EASTMAN:  That's really prompted you, I think, to want to come and tell your story and account to the Royal Commission.  I think you have said, it's not about trying to find one person and say they are the wrongdoer, but you really want to impress about the importance of institutional responsibility and accountability.  Can I sort of summarise what you say in that way?

JAMES:  Yes.

VICTORIA:  Yes.

MS EASTMAN:  Before I ask you a little bit about how Mitchell is now, and you have said in your statement, Victoria, that you are now working on getting the NDIS planning and arrangements into operation, but stepping back, what has been the impact on you and your family in working your way through these systems and getting to the point where you are today, here sitting at the Royal Commission.  What has been the impact on you?

VICTORIA:  It's been extremely frustrating.  Just to --- to be told that we had to keep  
things confidential, I actually did feel I was trapped in an Ombudsman's investigation and that I would never have agreed to pursuing it with the Ombudsman if I had known that it would take so long to go down that avenue, to then be told, "We would like to keep this confidential", because what public interest was it in actually doing that?  And so to have to sit here and expose ourselves, expose Mitchell, in this way, there is an element of resentment that, you know, it should never have come to this.  This is something where it should have been immediately addressed and it should have been open and communicated and, you know, we are pretty strong people, we don't need to have someone hold our hand and support us through, but within an organisation, we have had several people say to us, "If that was my organisation, I would turn heaven and earth to expose who this actually is."  And I agree with James that you just --- you can't let a matter like this rest.  It would have been easy for us just to say, "Oh, this is ridiculous" and roll it up and throw it in the bin.  But what good would that have actually done and how would that have actually helped people who are exposed to dangerous situations?

MS EASTMAN:  What does support look like for both of you now?

VICTORIA:  Support would look like being open and honest and understanding that we are building a team around Mitchell who are a team of professionals in many different spheres and that we are moving his life forward.  And his life has regressed in the last two years.

MS EASTMAN:  Why is that?

VICTORIA:  There are --- he has no day options, no measure of any activity.  His circle is extremely limited to a very small family and to support workers who --- it's like a revolving door of support workers.  So we have some positive plans moving forward and we are very positive people, so we don't want to --- we have been working with two streams.  We have been working with pursuing this letter and exposing this letter to the public, as well as looking after Mitchell and making his life go forward.  And the NDIS has actually been able to provide that.  We are making steps forward because we can now appoint external people.

Unfortunately, we haven't had very good experiences within the Department but we are now finding, as we progress, we are --- there's an ability to work with the Department but appoint external people who can actually look at this with fresh eyes and with a realism, because their history around Mitchell, there's so many untruths about him, that he's become entrenched in a story that just doesn't exist.  It's just not a real story.

MS EASTMAN:  James, any reflections from your part from the impact on the family and yourself?

JAMES:  The impact on us has been quite intense.  We have a family as well, and as well as Mitchell's day to day needs, which can be quite intense.  Victoria can be called upon for hours every day, she has the unique and wonderful gift of being able  
to talk to Mitchell in a way that no one else can.  But that takes its toll, it takes its toll on us as a family, it takes its toll on our kids as well, and it is infuriating when we have professionals, we have been able to appoint professionals who can think the way we do and can work collaboratively the way we do and yet we have a full stop with the service provider, who just point blank will not go along or implement the strategies that have been developed for them, and point blank refuse, to the point where Mitchell's life is now pretty much isolated from the community.

So it is frustrating, it is infuriating.  As Victoria said, we are strong people and the rest of our life will insulate us from that but our experience, we are fully aware, is not the worst and there are other people who cannot speak for themselves, who don't have advocates that Mitchell does, that will be having a far worse experience than we have.  And it's for that reason that we are continuing on with this.

MS EASTMAN:  Can I thank you both very much for giving your evidence.  I know some of the Commissioners may have some questions for you.  Chair, can I revert to you?  I know the Commissioners have got a few questions for you.

CHAIR:  Thank you very much.  I'll ask, first, Commissioner Bennett whether she has any questions to ask you.  She of course is in the same hearing room as you.

QUESTIONS BY THE COMMISSION

COMMISSIONER BENNETT:  Firstly, can I thank you both for appearing today.  The strength to come forward to the Royal Commission and to share what happened to you, what happened to Mitchell and the impact, is greatly appreciated.  I would like to pick up on the last point that you made about that you felt strong, that you felt supported and you list, in paragraphs 110 and 111, those supports.  James, you mentioned that some people don't have a voice.  Do you think there is a role for a different structured advocacy for people to go to, to turn to when they need assistance?  Whether it's an instance like this or a person with disability that needs someone to assist them to have that voice, and what do you think it should look like, based on your experience, to avoid this --- as you said --- the wearing and isolating experience that you went through?

JAMES:  Certainly I think there is a role for some level of independence.  One of the frustrations that we had is that we had nowhere to go.  We were effectively reporting our concerns to the department, who were in turn investigating themselves and implementing their own suggestions.  And so it was --- and it is --- just a circular argument.  Unfortunately, what that means is that if you continue to ask the question, then you as a family are, unfortunately, tarnished or stigmatised in some way.  And so one of the biggest frustrations that we had is that there is nowhere else to go, there is no independent commission that we can report to or that can intercede on our behalf.  So I certainly think that that is something that South Australia is significantly lacking.
 

COMMISSIONER BENNETT:  Do you think the NDIS, for those people with disability that are part of the NDIA, that the Safety Commissioner would be able to fulfil some of that role or do you think still some sort of separate mechanism for families and people with disability?

JAMES:  We are yet to really test the Commission to any extent.  We haven't had reason to report to the Commission, so I think it would be unfair to comment in that regard.  Sorry, the second part of your question, in terms of an advocacy group or a ---

COMMISSIONER BENNETT:  Or something separate.  If you thought that might potentially ---

JAMES:  Yes, I suppose our experience in terms of advocacy, again within South Australia, is that not many advocacy groups want to get involved with the government because they don't have the resources to necessarily challenge the government's view or to tackle the government.  They don't have the wherewithal.  There is a level of vested interest, I suppose, because if you sort of irritate the government over here, then you are not going to get any more --- you are going to get a poorer response over here.  So, again, it becomes that circular argument that you are continually banging your head against a brick wall, that it all comes back down to one body and a group of individuals who are making decisions that --- and I think that's a point of failure, effectively.

COMMISSIONER BENNETT:  Thank you.

VICTORIA:  I think because there is an in kind agreement, if there wasn't an in kind agreement, we would have been able to go to the NDIS Quality and Safeguards Commission, and that's certainly something that people have raised with us.  But we were stopped because of the in kind agreement.  And so I do think, going forward, that things will improve.  There are so many people around me, external people, who are saying, it's a different world out there.  And there's --- you know, there's reporting mechanisms.  So I do think those things are actually already in place, at least to a degree, which fortunately we haven't had to test them and let's hope we never need to.  But with the in kind agreement that has existed, we feel that we haven't been able to go forward with this.  We have had to stay within the South Australian Government.

COMMISSIONER BENNETT:  Thank you.

CHAIR:  Thank you.  Commissioner McEwin, do you have a question?

COMMISSIONER McEWIN:  Thank you, Chair.  Yes, I have one question.  Before I ask the question, I too want to express my thanks to both of you for your willingness to come to the Royal Commission and to share your experiences about Mitchell with us.  My question is: you have touched upon this a little bit through  
your evidence, you have got some hope, you are quite positive about next steps.  What would a good home look like for Mitchell, to both of you?

VICTORIA:  So I have some excellent people who have joined what we call our team in the last 12 months and they say to me, "Victoria, you know, Mitchell really isn't that bad."  And it's like, "Thank you!"  People are seeing what I see.  And I genuinely do believe that life is going to get better for Mitchell and that, with the right supports in place.  So we need to set up those supports and we need to have an environment that he's happy, he needs to have day options, he needs to have the right NDIS funding in place.  So at least for the foreseeable future we can stabilise things, so we can then start moving forward, because there is so much chaos going on.  And we recognise, and there are times when we really do appreciate, there's so much chaos, we don't need to add to it and we just slow things down and let's just be calm and measured.  But I genuinely do know that we are going to move forward.  I just need to be able to do it in a slow, measured way.  Thank you.

JAMES:  If I can add to that, Mitchell is very, very keen to move to the next phase of his life.  He is acutely involved in the decision making.  He asks every day, several times a day, what's the next step, where are we going?  I guess it's our job not only to temper those expectations but also to manage that transition as well, and to make sure that we have everything in place to make sure that the next move is the right one.  And with each --- and move in a physical sense, but also move in a team sense, so every person is introduced in the right way, every person who comes on board is familiar with our --- with our ethos and how we want to work.  We again are empowered by the NDIA to an extent that we can now control that.  Up until two or three years ago we didn't have that level of control and now we do.  Again, we are very fortunate that we are able to navigate that path and be able to invest some time and some resources into that which other people necessarily don't, but we are positive that that's the right step forward and it's in cooperation with Mitchell and with the rest of the team that we are building.

COMMISSIONER BENNETT:  What does that look like to Mitchell?  Is that living with people that he might have things in common with, or is it living alone or what do you think he's aspiring to in this next stage?

VICTORIA:  He does live alone at the moment and we think, at least at this point in time, living on his own with a great community around him is really important.  We are very open to the possibility of him living with at least one other person.  But we need to stabilise the chaos that's going on at the moment.  And so introducing him to a meaningful day options program, which he enjoys in his life, will be one of the first things to slowly introduce him to there's fun out there.  He constantly says to me, "I'm bored and I'm lonely."

We are a very small family, so it is something where I try and give him as much attention as I possibly can.  I am his aunt, but he is very much loved by the other members of our family as well, who also try to give him as much attention as they can.  It's the social aspect, but he also needs a great deal of therapy, because people  
who are involved in receiving letters like that, being called "piglet", you know, there has just been a lot of various kinds of abuse in Mitchell's life and it's actually the therapy and then slowly, slowly moving his life forward.  We are --- we have made great progress in the last 12 months.

COMMISSIONER BENNETT:  Thank you.

CHAIR:  I have one brief question.  Did the Ombudsman or anyone from the Ombudsman's office explain to you why the report was to be kept confidential?

VICTORIA:  We did respond back and we asked that question and we were told that there was a lot of information about Mitchell which we might not want to be made public.  Well, we agree that we don't want to make that information public.  But we had to temper that with, well, it's so important to actually make people aware of this letter.  So in regards to making the Ombudsman's report public, we are actually now of the opinion we would rather it wasn't made public, because we have now been able to expose the letter in this forum.

CHAIR:  Thank you.  Before we finish, I will ask if any of the other legal representatives want to ask you any questions.  Does anybody here ---

MS EASTMAN:  Chair, we have checked that and I understand there are no questions from any of the parties with leave to appear.

CHAIR:  Very good.  In that case, let me, as my colleagues have done, thank you most sincerely for coming to the Royal Commission to give evidence.  We know it is not an easy thing for you to have done but you have told us not only your story but you have told us Mitchell's experiences and we have benefited greatly from the account that you have given, and particularly the way you have spoken so frankly and directly about your experiences, it's been of enormous assistance to us.  So thank you very much indeed for coming to us and giving your evidence.  Thank you.

JAMES:  Thank you.

VICTORIA:  Thank you.

THE WITNESSES WITHDREW

MS EASTMAN:  Chair, before we adjourn, we do not propose to tender evidence as we go along for this Public hearing, but there is one exception, and that is with respect to the anonymous letter, which is in hearing bundle A at tab 53.  Just because of the way in which that evidence was taken today, I would like to tender just that document into evidence.  If it could be marked exhibit 14-1.

 
EXHIBIT #14-1   ANONYMOUS LETTER

CHAIR:  The document which is at tab 53, being the anonymous letter, will be marked as exhibit 14-1 and admitted into evidence.

MS EASTMAN:  If we could take an adjournment now until 3.00 pm Adelaide time, Dr Hayley Bennett will take our next witness, who will be our final witness for the afternoon.

CHAIR:  Yes.  We will adjourn until 3.00 Adelaide time.  Again, thank you very much for coming to give your evidence.

ADJOURNED    [2.42 PM]

RESUMED    [3.00 PM]

CHAIR:  Yes, Dr Bennett.

DR BENNETT:  Thank you, Chair.  The next witness is Mr Richard Bruggemann.

Mr Bruggemann, you have provided the Royal Commission with a statement dated 24 May 2021?

MR BRUGGEMANN:  Yes.

CHAIR:  We had better administer the oath before we go into the statement.  I notice that you are variously described as Professor Bruggemann, Mr Bruggemann; what do you prefer?

MR BRUGGEMANN:  In South Australia I'm known as Richard.  I'm not fussed.  Mr Bruggemann is fine.

CHAIR:  Very good.  In that case, Mr Bruggemann, if you would be good enough to follow the instructions of the Associate, she will administer the oath to you.

MR BRUGGEMANN:  Will do.

RICHARD BRUGGEMANN, SWORN

EXAMINATION IN CHIEF BY DR BENNETT

 

DR BENNETT:  Back to your statement, do you have a copy of that statement with you at the moment?

MR BRUGGEMANN:  Yes.

DR BENNETT:  Do you have a copy of it with you?

MR BRUGGEMANN:  Yes, I have.

DR BENNETT:  Is it the case there an error on that statement at page 6?

MR BRUGGEMANN:  Yes, in paragraph 21, I started with the Intellectual Disability Services Council as a CEO in 1984, not 1982.

DR BENNETT:  For the Commissioners, that's on the last line of paragraph 21.  It says, in the third word across, "1982", and should be 1984.

CHAIR:  Yes, thank you.

DR BENNETT:  Mr Bruggemann, just starting on the front page of your statement, you have set out your professional background.  I will take you very quickly to some parts of that background.  From 1984 to 2006 you were the Chief Executive Officer of the Intellectual Disability Services Council.  That's referred to in your statement as the IDSC.  Is that what it is generally known as?

MR BRUGGEMANN:  Yes, it is.

DR BENNETT:  It is the case that a lot of the evidence you will be giving today and a lot of the experience you have had is based on the time you spent at the IDSC?

MR BRUGGEMANN:  Correct, yes.

DR BENNETT:  I am going to slow down a little bit.

MR BRUGGEMANN:  Okay.

DR BENNETT:  It was during that period that the IDSC was the South Australian government organisation that was responsible for planning, funding and providing services to people with intellectual disability?

MR BRUGGEMANN:  Yes.

DR BENNETT:  Since 2006, you have been a Professorial Fellow in the Department of Disability and Social Inclusion at Flinders University.  You say there:

I regularly write and advocate on issues concerning the wellbeing of people  
with intellectual disability.

What is the nature of the work you have done at the university?

MR BRUGGEMANN:  I developed a program called the Graduate Certificate in Disability Studies and Leadership, which was a program for about 20 young --- not necessarily young --- but leaders in the disability sector.

DR BENNETT:  At paragraph five you said:

In April 2020, I was appointed by the Attorney General of South Australia to be the Authorising Officer for the purpose of the COVID 19 Emergency Response Act.

And that you were engaged as a consultant and your engagement would cease on 31 May 2021.  Has that happened?

MR BRUGGEMANN:  Yes, it has.

DR BENNETT:  You also say that in May 2020, following the death of Ann-Marie Smith, that you were appointed as a member of the South Australian Safeguarding Task Force to examine the gaps in the safeguards for people with disability.

MR BRUGGEMANN:  That's correct, yes.

DR BENNETT:  What period of time did your time with the participation with the Safeguarding Task Force ---

MR BRUGGEMANN:  Probably two or three months, around that period of time, two or three months.

DR BENNETT:  You say you were a member of the NDA Intellectual Disability Reference Group.  What period of time were you a member of that group?

MR BRUGGEMANN:  As I recall, it was about from about 2014 to 2017.

DR BENNETT:  You also say that as part of your work over the period of time you have worked in the area of intellectual disability, that you came to understand the history of disability, specifically in South Australia and the history of that within South Australia.  You have said here:

This history provides, what consider to be important contextual information to any understanding of disability services, particularly for those with intellectual disability, and how services have changed over time.

Mr Bruggemann, can you please give the Royal Commission a bit of a thumbnail sketch of some parts of that historical context?  What I ask you to do is, firstly, start with that earlier period from, say, 1970 --- from 1870, bringing us up to about 1975?
 

MR BRUGGEMANN:  Yes.  In the early days, basically lots of people were basically dumped in asylums.  There was an attempt to differentiate, and some of them went into institutes for the poor.  People who had mental illnesses, as we'd now know them, and intellectual disability, came to be a part of the mental health system as it then was, the Parkside Lunatic Asylum, that was its name at the time, and they were basically all lumped in the same category.  There was a non government agency, even then, Minda, but it took the people who were less disabled at the time.  But this was the government service.  It continued until about 1960.  In the 1950s, Hillcrest Hospital also provided accommodation to people with intellectual disabilities.

And so the process of starting those changes started in the 1960s and I have put in an article about --- called "From darkness to light" which describes some of the conditions in those psych hospitals at that time.  There is a view that we needed to change.  Parents were a huge driving force in this, as they have been in every movement that's ever occurred.  Families who have a different vision for their son or daughter were involved, with professionals who had an interest in that area.  And those years were transformative in that they started to see people --- kids with intellectual disabilities being taught, and my parents were amongst the first people to be involved in that.  I will just get a plug in for them.

As that decade continued, there was a view that people with intellectual disabilities didn't belong in the same place as people who had psychiatric illnesses or who had disabilities as a result of their psychiatric illnesses, and so there was planning in those early 1960s, towards the end of the 1960s, for some new services to take over from those back ward services.

DR BENNETT:  At paragraph 14, following on from that, you refer to the article you just mentioned and you say that it goes on to summarise what you call the "first iteration" of deinstitutionalisation.

MR BRUGGEMANN:  Yes.

DR BENNETT:  Then you talk about the Strathmont Centre.  Can you tell the Royal Commission something about that process?

MR BRUGGEMANN:  Yes.  The government decided they were going to build some alternatives to the Hillcrest and Parkside, and they were planning two institutions, Strathmont Centre and another one called Eleanora, which was never built.  One was in the north and one was in the south.  These were to be areas where the staff would have a focus on intellectual disability, the staffing model was to become mental deficiency nurses who had expertise in intellectual disability, and this was an area where there was going to be an attempt to develop skills and to give people the opportunity to develop as much independence as they could, but still within a fairly paternalistic model that didn't at that time even think, in my view, of things like citizenship.
 

DR BENNETT:  You say in paragraph 16:

Strathmont was built in 1971 with a capacity for around 600 people.  It was already an outdated model by the time construction was finished ......

MR BRUGGEMANN:  Yes.

DR BENNETT:  Can you say something about the concept?  Was there an awareness at that time that it was outdated?

MR BRUGGEMANN:  Yes.  The principal architect, Joe Craig, and I don't know if it was the people from the mental health system, went overseas and had a look at things that were occurring and they saw some of the trends that were happening in Europe and in the United States about moving into the community, and it was interesting, Joe Craig originally wanted to build a sort of a demountable institution that could be pulled down in little bits and transported into the community.  Eventually, it was just impractical.  So Strathmont was built.  It had 16 villas, each villa had four units, and each unit was basically a house size structure around a common courtyard.  So four units around a courtyard.  Those villas were spread around the perimeter of a figure of eight campus.  In the centre of that figure of eight were things like the school for children --- because this was a service for children as well --- the admin, the medical centre, the gym, the swimming pool and those sorts of central services.

DR BENNETT:  Thank you.

CHAIR:  Was this the only such facility in South Australia?

MR BRUGGEMANN:  It was, yes.  As I mention, Minda had been operating for some time but it was, again, as I said, largely operating for those people who had what we would now call mild and moderate levels of intellectual disability.

CHAIR:  What happened to people with intellectual disabilities who lived away from Adelaide?

MR BRUGGEMANN:  Sorry, I missed that?

CHAIR:  To people who lived outside Adelaide?

MR BRUGGEMANN:  Well, they had to come to Adelaide.  Of course, many people continued to live with their families.  One of the interesting things at the time was basically families had two choices: do everything yourself without any help or put your son in the Strathmont Centre.  There was nothing in between.  So it was city centric.  You can imagine, Chair, that if you were living in a country town and you knew the local football club and the shops and you get bunged into Strathmont Centre and you know no one and your behaviour get a bit stroppy and you get  
zapped with drugs and restrictive practices, this is stuff that we didn't do well at that time.

CHAIR:  Thank you.

DR BENNETT:  Mr Bruggemann, they would be circumstances where the family might stay in the country areas?

MR BRUGGEMANN:  Yes.  Often, farming families who were committed to living in the country.  And often, I can't tell you the grief that it caused families when it came to that point where they had to make the decision to have their son put into Strathmont or to Minda, for that matter.

DR BENNETT:  The next phase of time you talk about in your statement, from paragraph 18, is from 1976 to 1982.  There you have raised a concept of normalisation, and you say there that it promoted the idea that people with disabilities should be given responsibilities to live the same kinds of lives as nondisabled people.

MR BRUGGEMANN:  Yes.

DR BENNETT:  Is that a concept or a term that is currently used?

MR BRUGGEMANN:  It is.  And it has gone off the boil a bit, you might say.  I think we need another dose of it in Australia, but that's another story.  Basically, normalisation or social role valorisation, as it was called, promoted the idea that people with disabilities should have the same opportunities as other people in the community and that their lives should follow the same patterns as our lives.  One of the things in an institution, you can spend a lot of time sitting in your pyjamas in a beanbag.  For us, we get up in the morning, we get dressed, go somewhere else, do things, come home, we do that five days a week, the weekend is different.  But for people in institutions, every minute of every day was basically identical.  SRV says we should be putting in place the same patterns for people with intellectual disability that we have as other citizens have them.  That was largely about what SRV was about.  It invited us, every time we made a decision about some type of service, to ask the question, "If this, then what?"  Because it presupposes that every time we actually do something that's good, in it might be the seeds of something that's not quite so good and that we need to guard against and have safeguards against, and SRV was seen as one of the huge safeguarding tools in America and in Australia.

DR BENNETT:  From paragraph 23 you refer to the 1980s and deinstitutionalisation, and you say there:

By the early 1980s the second iteration of de institutionalisation had begun with a focus on community living and integration.

So what were the features of the second iteration?
 

MR BRUGGEMANN:  So, again, a lot of this came out of the theoretical framework of SRV, like citizens in Australia don't live in big institutions, we live in houses, therefore that should be the norm for people with disabilities, intellectual disabilities.  And around the world --- and not only in this area but also in the mental health domain, there was a view that we should be deinstitutionalising our services.  And I think one of the unfortunate things is that whenever you get a theory like this, there are some people who become so enamoured of it that they serve the theory rather than the people they are meant to serve.  I have to put my hand up and say I think we did a bit of that as well.

DR BENNETT:  From paragraph 27 you talk about the work of IDSC and you say this:

I found the 1980s was a period of intense learning "on the go".  Mistakes were made along the way, such as those mentioned above.  Another mistake we made was that we continued to use restricted practices without the proper safeguards because that was the norm at the time.

Can you tell the Royal Commission something about what was happening at that time and some of those mistakes that you feel you made?

MR BRUGGEMANN:  Yes.  I think with the deinstitutionalisation, one of the things that we didn't understand was the rich relationships that existed between clients.  So when we were grouping four people to move into a group home, we didn't always get it right.  We might have done that much better.  Later on, we did do it much better.

We also, I think, underestimated the angst in the community about these people with intellectual disabilities who were going to be descending on us.  Totally unfounded.  But you can understand the concern of communities.  I don't think that we prepared communities enough for that.  I don't know how you prepare them, I still don't know.  The biggest learning experience that communities have is when people lobbed and people found out that they weren't the menace that they thought they would be.  So those were some of the things we learnt.  Restrictive practices, it was just what everyone did, you just locked people up, drugged people up.  We didn't give it a second thought because we didn't think of these people as citizens.  In fact, if you ask me what we thought about people with intellectual disability up to the 1970s, early 1980s, we thought of them as problems to be solved and we solved those problems by putting them in institutions and doing that as cheaply as we could.

CHAIR:  We are talking here about the 1980s?

MR BRUGGEMANN:  Yes, even into the 1980s.  In the 1980s we started to have this view, we didn't term it in terms of rights at the time, but we did sort of define it in terms of what are the arrangements for other citizens and we should be making those arrangements for people with intellectual disabilities.  I don't know that I heard "rights" mentioned at the time but that's basically what it was.
 

CHAIR:  I'd rather understood you to say that by the 1970s or perhaps early 1980s, the concept of social valorisation had taken hold, the very essence of which was ensuring that people with intellectual disabilities were to be regarded as citizens, so it seems a little odd that by the 1980s practices such as chemical restraints and physical restraints, which certainly aren't treating people as citizens, were still maintained.  I wonder what the pressures were that led to that?

MR BRUGGEMANN:  Many of the pressures came from staffing.  You have got a limited number of staff, drugs are the cheapest option to control people.  It's an unfortunate reality.  On a number of occasions, I have had Ministers ring me and say, "Richard, we have got this guy, his mum is driving me nuts, you have to find him a place" and he would go to Strathmont Centre, probably with disruptive behaviours, in a villa with other people, and restrictive practices were in many instances the only way we could deal with it.  It's nothing to be proud of but as a part of our learning process, we started to understand that those things weren't right; they weren't right for others, they weren't right for people with intellectual disability.

DR BENNETT:  Were they called "restrictive practices" at that time?

MR BRUGGEMANN:  No, I don't --- no, we just gave people medication, and they had time out.  You have a whole new language, of course.  "Time out" basically is seclusion, basically false imprisonment.  And it was a way that you treated people.  They are still doing it in schools.  You would have thought that would have stopped.

DR BENNETT:  Do you have any idea about when the term restrictive practices, which squarely confronts what it is, that conduct is doing, do you know when that came into place?

MR BRUGGEMANN:  I started to hear it being used towards the end of the '80s, but in a sort of, we should be finding the least restrictive way of dealing with this situation, and so rather than lock people up, can we get them to just sit quietly here for a while, and if that works, then we don't have to lock them up.  So there was a view that we should be using the least restrictive alternatives.  But even then I don't think the term "restrictive practices" was widely used.

DR BENNETT:  From paragraph 29 you talk about some of the work of the IDSC and in particular you talk about strategic community work.

MR BRUGGEMANN:  Yes.

DR BENNETT:  Can you explain to the Commission how that works?

MR BRUGGEMANN:  Before IDSC, largely, we had a very small family training unit to help families learn skills to deal with their son or daughter with a disability.  But, largely, the only services that were offered other than that were accommodation services.  So families --- you dealt with it all yourself or you said, "I can't do it any  
more" and your son went into Strathmont Centre.  What the IDSC's mission was, was to paint into the spectrum a new range of services; respite, family support.  One of the ways that we dealt with that was by having a robust case management system.  People would come to us with an issue and what we would then do would be to try and help them resolve that issue.  As we developed, we developed a concept called strategic community work, and at its core was that there should be a systems approach to our case management.  That, first of all, we should see the individual in the family, in the community, in the wider context, and we should also understand that some of the issues that might help that individual and that family might also be in the community, in generic services or in just things like clubs, like, this kid wants to do something exciting, and okay, we can involve him in a rowing club, which is what one of the families or one of the individuals wanted to row.

So the strategic community work approach was intervene as lightly as possible.  Can we help a family just by providing information?  Our library in its last year of operation, provided support to 300 families.  Sometimes, just getting that information was enough, all the information they needed at that time to ensure that they could keep their son or daughter in their family and for that to work well.  Sometimes it was linking with a local service.  Sometimes it was linking with a local activity.  Sometimes it was finding partners.  So one of the partners that we found were the Kiwanis, and the Kiwanis worked with our staff to form what were called Aktion Clubs, which are basically Kiwanis clubs for people with intellectual disability.  They had meetings, socialising, having a meeting --- I said that twice, and importantly, community service.  So working with the Kiwanis, in the backyard of a widow whose husband has died and her backyard is overgrown, going there and helping to support that woman and other people in their community.  Actually participating, being involved.

And we don't think of it as a service.  When we do it, we don't think of it as a service to us but it actually is, it's one of the things that gives us a great deal of the Maslow higher order needs, fulfilment, et cetera.  These things worked in a partnership.  So Kiwanis know all about service clubs, they don't know anything about intellectual disability; we don't know anything about service clubs but we know a lot about intellectual disability.  Whether there is a guy who has some iffy behaviours in the Aktion Club and the Kiwanis don't know what to do, and why should they, then we were there to help them and to help people participate.

It was often not just buying a service or providing a service, it was finding ways in which the need that the individual had could be addressed through what --- non service options, by being involved with the Kiwanis in those Aktion Clubs, and also being involved in employment.  We helped a lot of people get into jobs, completely without any involvement with the Disability Employment Services, just by taking a guy around and showing him jobs, asking them whether they would be happy to give him a go, offering to be there if they needed any help.

So it was a way in which we had a lot of strings in our bow and the final string was always Strathmont Centre, and that was always our last choice.  What do we do  
before we get to that point?  Information, linking, local services, disability services, tertiary services, like Strathmont Centre.

DR BENNETT:  I think, at the bottom of paragraph 29, you have summarised some of that there.  You said:

Rather than necessarily seeking a service delivery ......

Just stopping there, when you referred earlier, you referred to local services and generic services, in terms of how the NDIA might be looking at it, would that be the mainstream services?

MR BRUGGEMANN:  Yes, they call them mainstream services.

DR BENNETT:  Right:

Rather than necessarily seeking a service delivery response when an issue or problem emerges in a person's life, [Strategic Community Work] views the societal network around a person as a major source of potential support and problem solving, which can be strengthened and expanded.

MR BRUGGEMANN:  Yes.

DR BENNETT:  So, again, using the language that the NDIA or the NDIS Commission might use, is that what is currently being referred to as informal or natural supports?

MR BRUGGEMANN:  Yes.  Yes.  And they are important and they are often the more powerful things.  Services, at the end of the day, are the things that get you back to square one.  You don't go around saying, "I have got a fantastic dentist, he does all this great dental work."  We talk about our footy club and our jobs and our relationships and our gardens and we only talk about dentists when our tooth hurts.  When our tooth stops hurting, we forget about our dentist, unfortunately for the dentists who might be listening.

DR BENNETT:  You have already touched on this a bit earlier.  From paragraph 33 you said:

Thirdly, the IDSC sought to ensure that a worker intervene as lightly as possible in the life of a person with intellectual disability.

Can you explain a bit more about what "intervening lightly" is?

MR BRUGGEMANN:  Yes.  In one way, it's doing those things that I mentioned before, that graduated list of responses.  But the other thing that we need to remember is that we are dealing with people who have a limited ability to understand and to learn.  It's very easy to take over.  I have to say, there are some people who  
have worked in this field who love working in this field because they can boss people around.  But intervening lightly is about understanding the differential of power between yourself and the individual and compensating for it, so that you are not intervening your views into the person's ability to make their own decisions.  This is a really important thing and many people never get it, unfortunately, and shouldn't work in the field.

DR BENNETT:  You have used the term, it's easy to take over, and that's the easy thing to do, and elsewhere in your statement you say that part of the problem can be when people do take over and create a dependency.

MR BRUGGEMANN:  Yes.

DR BENNETT:  How does that fit in with some of the ideas about the strategic community work?

MR BRUGGEMANN:  We actively, as a part of our training of our workers, said, you need to be aware --- we gave them training on those power differentials, what it meant, how you compensate for it, how you ensure that it's the person's decision that's coming through this, not their decision.  It's very difficult.  When you are dealing with people who have a limited ability, if you are teaching them to cook, for example, it's easier just to cook yourself for them.  It's often easier to make a decision.  It makes more time and care to teach the person how to cook or to teach them how to make their own choices.

DR BENNETT:  That follows on from paragraphs 34 and 35.  Again, you address the issue of intervening lightly and you say there are three different levels to that.  I know you have mentioned that already but can you take the Commission through those three levels?

MR BRUGGEMANN:  Yes.  The three levels are largely --- the first one is just the links with the community.  With clubs, with kinder gyms, with the kayaking --- it was not canoeing, it was the kayaking association, and I remember clearly when our worker went to them and said, "We have got this young lad, he wants to join the kayaking club".  "Oh, great, always looking for new members."  "He's got an intellectual disability."  "Urgh."  "He'll have a worker to help him."  And what would happen, five or six weeks down the track, because he was doing something he wanted to do and really loved it, the kayaking club would say, "Actually, we don't need to have that worker here anymore, we can cope with him ourselves."  So those sorts of links, where you are looking for those opportunities in the community to support people to do the things that they want to do.  Firstly, find out what are those things and then help them to do them.  There was a view at one stage, "Every child with intellectual disability will swim and bowl."  We found out that many of them didn't want to do either, they wanted to do some quite exciting things.  So how do you ensure that parks are accessible, that clubs are accessible, that libraries are welcoming?  It takes a little bit of work to make it happen.  And when it happens, that library becomes an advocate itself, like, we do that, we accept these people, it's  
great, we understand it now.  And they become an advocate.  You don't need to continue to do it.  That is the first level.

The second level is linking people with more targeted services, like their GP, their dentist, employment services, education services and helping them to resolve issues like with Centrelink and services like that.

The third level is basically the disability specific supports that people might need.  That might range from specific support in the home through to a person being admitted into an accommodation service like Strathmont, but increasingly in our group home system.

DR BENNETT:  At paragraph 40 you refer to the background you have just given and then you say:

...... I am of the opinion that in the current era, we need to ensure that within the disability sector we do not accept that the market forces which underpin the NDIS model are the be all and end all.  If we do, we will treat people with disabilities at consumers rather than citizens.  Indeed, the term "consumer" is one that we should use with significant care in the disability sector lest we believe that, with the consumption of a service, all issues facing people with disabilities are resolved.

Can you tell the Commission what you are meaning there about the care that should be taken with the concept of a consumer, the consumption of a service?

MR BRUGGEMANN:  Yes.  As we've --- we all have various roles in society; consumer, citizen, subject.  And with people with intellectual disabilities, they have certainly been --- well, at one stage they weren't even consumers, they basically --- they took what we gave them.  We have now defined them as consumers.  If we do just that, if they are consumers, and that our task is about making sure that the consumption of services is done through agencies which jump through the NDIS quality and safeguarding hoops, in my view we haven't done a great deal because those things, as I said, are the things that get you back to square one.

Our lives as citizens and the things that are important to that are the things that go beyond that, our contribution to our community, our capacity to be involved with other members of the community.  And so a lot of people have said, the NDIS gets you all dressed up, there's nowhere to go.  Whether that's true or not in all cases, I don't know, I think it works extremely well for some people.

But I think that one of the things that we did in our old model was to have in the back of our mind that these people are citizens and that they have these desires to do the things that citizens do and we could do those through some of those natural networks.  Now we have sort of a uni path which is get assessed, get package, get service, and life is solved.  Well, it doesn't work for me and I suspect it doesn't work for anyone.
 

CHAIR:  Are they mutually exclusive?

MR BRUGGEMANN:  No, no.  Services, like, what I mentioned before, when your tooth is throbbing, there is nothing more important in the world than a dentist, and we are all consumers, we consume a range of services, but we are also citizens and we are also subjects and there are probably other ways that we can be defined within our Australian system.  But what we have done with people with disabilities, I think we have made a mistake that we have over emphasised the consumer part and we haven't looked at them having opportunities to be citizens and indeed subjects, because one of the responsibilities we have as subjects is to vote.  It's only been relatively recently when people with intellectual disability have been given that opportunity to fulfil that role in society.

CHAIR:  The point of my question is why can't you have high quality services plus the things that you are talking about that establish links with the community?  You seem to suggest that providing services results in a person with disability being characterised as a consumer and therefore denied other opportunities, but they are complementary to each other, aren't they?

MR BRUGGEMANN:  Yes, I certainly agree.  However, when you look at our regulatory arrangements, they are largely about ensuring that you are okay as a consumer, and what I'm saying is that I think that we have lost some of the emphasis that we had on citizenship.  In a way, that's to be done though the NDS, the National Disability Strategy, which is about including people in the fabric of the Australian community.  You ask people in the street, have you heard of the NDIS?  Yes.  Have you heard of the NDS?  Largely, no one has.  Yet, the NDIS is supposed to be subservient to the NDS and it's the other way round.  I think one of the things that we've lost, in my view, is the capacity to see people as citizens and to integrate that into their role as a consumer as well as the services that they get.  And we then try to do it after the fact by having LACs involved.  I think that has to be rethought.  I will talk more about that later perhaps.

DR BENNETT:  Just taking up that point, Mr Bruggemann, looking at the current model under the NDIS, if you accept that, for example, a participant's plan might include funding for a particular service provision, funding for that service, it might also include some sort of connection with mainstream services?

MR BRUGGEMANN:  Yes.

DR BENNETT:  It might also include some sort of informal or natural safeguard support.  Just assume for a moment there are three parts to a plan.  Do you accept that the funding component and connection to the funded services might properly be regarded as being a consumer?  They get funding for it and they make a decision about what service provider they would like to meet that need?

MR BRUGGEMANN:  Yes.
 

DR BENNETT:  And is the difficulty more with conceptualising the access to broader mainstream services or even to the community, it's not necessarily a consumer product?

MR BRUGGEMANN:  Yes.  And I think it's --- one of the things that needs to be said is that when we are looking at the spectrum of people with disabilities, they range from people who are highly able to look after their own interests.  In some work we did a few years ago we met a young --- I can't remember whether she was a lawyer or an accountant in a wheelchair and she said, "I can't wait to do my plan, get my package, set up what I want and get everybody out of my life."  This will work for her because she will be making her choices about how she's going to be a citizen.

For a person with an intellectual disability, making those choices about how you are a citizen is not something that comes naturally.  It's one of the things that our workers used to help people do, like again, trying not to take over, but “what do you think about being involved in this club where you can meet with other people and do things?  Would you like to be involved in that?”  “Yes”.  So giving them those opportunities.  They will need help and I think later on we need to investigate how that help is given and who does it in the new model, because we have a lot of people puddling in this particular pond.

DR BENNETT:  Also in your statement you address the issue of the transition to the NDIS in South Australia.

MR BRUGGEMANN:  Yes.

DR BENNETT:  You note from paragraph 52 that a trial commenced on 1 July 2015.

MR BRUGGEMANN:  Yes.

DR BENNETT:  You say the NDIS Commission commenced its operations in July 2018.

MR BRUGGEMANN:  Yes.

DR BENNETT:  From paragraph 54 and 55 you say:

However, my concern is that the South Australian government intends to vacate the disability sector, with all responsibility handed over to the NDIA and NDIS Commission.

And you also say:

I am of the view that the South Australian government retains an important role to play in the disability sector which has not been fully realised during the transition period.
 

What important role do you say the South Australian Government has to retain?

MR BRUGGEMANN:  Well, I think State Governments largely have a responsibility to ensure that vulnerable citizens are doing well, and we have already seen in South Australia the Adult Safeguarding Unit set up.  They are the level of government which is probably most involved with rights, with common law issues, with ensuring that people are not subject to abuses like restrictive practices --- prohibited restrictive practices, which are crimes and torts, and these things, they fall into the bailiwick, as I understand it, of State Governments.  I think they have a responsibility in this field.  And I think, quite frankly, that they have tried to get out of this as quickly as they could.

DR BENNETT:  But you believe that would be good for them to continue?

MR BRUGGEMANN:  Yes.  Look, they will continue whether they like it or not because one of the things we used to do, we had an emergency service, so if at 2.00 am in the morning there is somebody with an intellectual disability who is suddenly homeless, our after hours service was available within hours to get them some response, perhaps sleeping in a respite bed that night and then the next day a longer term plan.  I don't know who does this in the new arrangements but I know that when these people are going to lob into homelessness overnight or mum and dad have been killed in an accident and there's a guy with a severe disability at home, it will be the State Government who will have a responsibility for those, because what does the NDIA do?  They deal out money basically.  What does the Commission do?  It regulates organisations.  There is no one there other than the State Government to do this back up service.  So whether they like it or not, they are going to be there.

DR BENNETT:  In the second half of your statement you refer to some issues that were raised in the Safeguarding Report and the Robertson Report.

MR BRUGGEMANN:  Yes.

DR BENNETT:  From paragraph 59 you say:

At the outset, it is important to note that not all people with disability are at risk of violence, abuse, neglect or exploitation.  However, there is a cohort of people with disabilities who are at risk, often due to a range of complex and interrelated factors which may or may not be related to their disability.

MR BRUGGEMANN:  Yes.

DR BENNETT:  Then you say:

There must be a process to identify people ......

How is it that the IDSC went about this process?
 

MR BRUGGEMANN:  Usually we would meet somebody at a time when they had some need.  It might be a family doing it on behalf of their son or daughter or it might be the individual themselves.  When there was an initial contact, there would be a report back to the --- if it was the adult team, for example, "Look, we have met this family, mum and dad are not very confident, we think they are going to need some really intense support for a period of time."  So at the very initial point of contact there was an assessment, which we might have got wrong and we might have had to adjust it down the track, about how much support this family would need, and to ensure that they got that level of support.  That might be fairly intense in the first instance.  So it was done basically at initial contact.

DR BENNETT:  You go on to say at paragraph 62:

The identification of risk factors would lead to the provision of ongoing robust case management provided by a dedicated worker ......

How would it be that somebody would get from point A to that point, that robust case management?

MR BRUGGEMANN:  For example, a woman who has an intellectual disability, she is married, she is being beaten up by her husband --- an unfortunate reality too often.  One of the things we would do in that case, there would be a case worker who might be in touch with her every day, a phone call, "How are things?"  Or it might be a visit once a week, so fairly intensive.  It would depend upon the needs of the individual and the assessment that was made about their vulnerability or the propensity for them to be at risk of violence, abuse, etc.  Equally, there would be people who weren't in that situation.  They basically wanted help to get their son or daughter into this particular service or get this thing sorted out, problem sorted, don't need to deal with them again because they are in control and when they have got another issue, they will be back in touch with us to get that one sorted out.  Now, intrusive case management is not needed, it's belittling to the individual, and it was a waste of resources as well, which is another reason for not doing it.

DR BENNETT:  What was the professional background in terms of experience of a case worker or a number of backgrounds?

MR BRUGGEMANN:  They could be a psychologist, a social worker.  In our children's services we had therapists, physiotherapists, occupational therapists, speech pathologists.  We also had a developing group here in South Australia who were called developmental educators, who were the old mental deficiency nurses from Strathmont Centre who we had retrained because they had a huge amount of background and experience on intellectual disability.  So that was our range of people who did that case management work.

DR BENNETT:  Further down the page, at paragraph 63, you have said that you are of the view that identifying risk factors --- now you are looking at the current system  
--- should be detected through the NDIS planning process, right at the beginning, and then revisited.  Do you have any views on a practical level on how that might be done?

MR BRUGGEMANN:  Firstly, it has to be done face to face and preferably in the individual's home so that --- but the planner has a limited role.  They are basically there, you have got a template, you go through the template, you tick the appropriate boxes, and it spits out your package.  They are not the ones who are helping you navigate and do things.  That's someone else in the system.  We have separated these things now.  So even before, if people are about to access the system, one of the things we might do is to see whether the LACs, the Local Area Coordinators, when they finally get over their job of doing planning, to get rid of the backlog of planning, one of the things they could do would be to meet people in the first instance, make an assessment of their vulnerability, and to determine whether they might need some ongoing support through the process that they are going to be put through, including the planning process of the NDIS.

CHAIR:  I get the impression that you are not entirely enamoured of the NDIS as presently constructed?

MR BRUGGEMANN:  No.  For that young professional in the wheelchair, it will work really well, but for people who lack capacity --- and remember, one of the premises of the NDIS is choice and control.  We are talking about a group of people who have never --- in some instances have never exercised choice or control about anything in their lives.  Sometimes they are lucky to have families who really do that well on their behalf, who are able to step back and see what are the issues for their son versus what are the issues for themselves.  There are other families who find it difficult to differentiate, like, “what's best for me is best for my son”, and there are other families who are just plain naughty and do the wrong things by their sons and daughters, so they make bad decisions.  We have had instances in IDSC where families wouldn't even agree to the first line of defence in health issues, when they were the guardian, where they had made decisions based upon their own values, rather than using the process of standing in the footsteps of the individual and making    

[Technical malfunction]

CHAIR:  Apparently we are back again.  Mr Bruggemann was in full flight when he disappeared from the screen.  Dr Bennett, I suggest you continue from an appropriate point.

MR BRUGGEMANN:  I had been asked a question about the role of families and the view that many families wanted the NDIS.

COMMISSIONER BENNETT:  I think the point I was making is that the past didn't work for everyone and we had Victoria and James that were still talking about much of the experience of Mitchell was when the South Australian Government was  
controlling it.  The point that I'm asking you is: there are strengths as set out by counsel about components of being an informed consumer, yes, perhaps more work needs to be done about assisted decision making.  But really in a positive way, what are the improvements that could be made, rather than going back to something that wasn't ideal in its time?

MR BRUGGEMANN:  Yes.  One of the improvements is that for those people who require it --- I will just go back a little step.  One of the issues in this field is a thing called dedifferentiation and it would be useful for the Commission to talk to Professor Chris Bigby about this.  Basically what this says is that basically all disabilities are the same, you know, like treat people with disabilities and you'll get it right.  What she says is there are some unique things about intellectual disability, where there are some things in common with other people with disabilities and there are some things that are certainly quite different.

In all of the debate that has ever occurred about disability, one of the dilemmas that has occurred is this: that people with other disabilities have been able to advocate for themselves but it's been families in many instances who have advocated for their sons and daughters with intellectual disabilities, and they have often been told, "Oh, you shouldn't be here, it should be the person with an intellectual disability" who doesn't have the capacity to be there and to contribute in the way that would be meaningful.  Families have done this over a long time.  So I think we have an NDIS that works extremely well for some people and not very well for a lot of others, as you will hear over the next day or two.

COMMISSIONER BENNETT:  It has scope for improvement.

MR BRUGGEMANN:  It has scope for improvement, yes, and it needs some things added to it.

COMMISSIONER BENNETT:  I have another question for later.

DR BENNETT:  It is a point for me to make a quick apology, noting the time, and ask the Commissioners if it would be possible to continue for another 15 to 20 minutes, to complete Mr Bruggemann's evidence.

CHAIR:  Let's aim for 15.

DR BENNETT:  We will aim for 15 and we will do that.  Mr Bruggemann, an issue has arisen that you haven't addressed in your statement, which is raised by Commissioner Bennett, which is the issue of assisted decision making or supported decision making.  You have raised the issue of the importance of choice and control in the whole new model.  Do you want to say something very quickly about the work that is there to be done in that area?

MR BRUGGEMANN:  Yes, I think you will hear more about this later in the week through the Public Advocate.  We have had a couple of goes at assisted  
decision making.  I have to say, sometimes even the most seemingly conflicted service provider makes good decisions --- or assists people to make good decisions.  I think what we saw in some of our trials of supported decision making, it was just another way unfortunately of alternative decision making.  That is, the person who is supposed to be supporting the individual to make a decision, at the end of the day was making the decision.  This is going to be an ongoing dilemma until we really understand how we communicate with people with intellectual disability.  How we solve that is beyond my ability.  But we have seen trials of this and they often default to alternative decision making rather than supported decision making.  I hope we get it right.

DR BENNETT:  At paragraph 65 you say:

For planners, a critical part of their role will be establishing trust with a participant ......

In relation to the issue of the development of trust, what do you think is critical here?

MR BRUGGEMANN:  If I could give you an example.  One of the things that our staff did was helping families with toileting, toilet training, both of families and workers involved in poo.  There is no better way to develop trust than sharing those sorts of experiences with individuals, with families, and being there for the long haul, knowing there is someone you can talk to when you have got an issue, they were the things that I found people valued and felt that if there is  at least one trusted person that I can talk to who is going to be there next week and the week after, unless they get promoted or something, but they will largely be there, and in an organisation that had managers who were there for the long haul, and who also, I think, engendered trust by basically doing what you said you would do and making yourself available.  And all of our managers are expected to make themselves available.

I'm not wanting to make a big deal of it but my --- the phone that was on my desk, that phone number was in the phone book, so people could ring, parents could ring me on my direct phone.  Because --- and it was never abused because I was of the view, people don't want to ring me just because they like to ring me because I'm such a wonderful guy, they have got an issue that they need to talk about and if it's an issue for them, then I need to know about it and help them to deal with it.  It's just by having a culture where you trust your staff, where they can trust you, and your clients see that you are trustworthy through that experience with you.  And I think it's really important.  Again, I'm not quite sure how you do it in the new arrangements.

DR BENNETT:  Related to that, at paragraph 73 you said:

For participants identified at risk, I am of the view that a case manager should be delegated as the person with ultimate responsibility for monitoring the safety, health and wellbeing of a participant.

Does that trust issue relate to a person, a delegated person, or does it relate to a role?
 

MR BRUGGEMANN:  At the end of the day, it's to a person.  It's by basically doing what you say you will do.  It's as simple as that.  I have mentioned having case managers in the system, which means we have got planners, service coordinators, LACs, special service coordinators, case managers, you know, we are getting a very complicated system.

DR BENNETT:  From paragraphs 74 to 75 you raise the issue of access to health services.  You say at paragraph 74, the monitoring and health outcomes for people with intellectual disability is a particular issue requiring increased attention by the NDIS.  Then down the page you say:

The renewed focus on intellectual disability health recognises, at least in part, the complexity surrounding the management of health issues for people with intellectual disability and the risk of a person's health being neglected.

In terms of current system, do you have a vision of how this might work?

MR BRUGGEMANN:  Yes.  I think when the NDIS plan is done, there should be an health component.  In that health component it should have things like monitoring.  The group that are most at risk, in my view, are those people with mild to moderate intellectual disability who live at home and who may have Webster packs or who are having to monitor blood sugar levels or do any of those number of things where they forget or they don't understand the importance of it and where there may need to be some process to ensure that those things continue to be done.  Phone calls, visits.  It needs to be in a plan which should be a part of the NDIA plan.

DR BENNETT:  In terms of those services, though, Mr Bruggemann, you are accepting that the NDIS doesn't provide the services themselves?

MR BRUGGEMANN:  No.

DR BENNETT:  Are you suggesting that there should be an access component or a linking component?

MR BRUGGEMANN:  Yes, a linking component, which should be a part of your plan.

DR BENNETT:  From paragraph 77 you talk about relationships and community participation.  You have said something about that in terms of the work that you used to do with the IDSC.  You have said there:

However, the key "natural" safeguarding factor in the lives of people with disability who are at risk ...... is the extent of their relationships (with family, friends, colleagues and other social networks) and their participation in community life.

 
Again, this natural support or safeguarding, you are saying is a central component?

MR BRUGGEMANN:  Yes.  For example, those young people who are involved in the Aktion Clubs, where the Kiwanis were involved, we never talked about it in terms of it being a safeguard, but it was.  If people had turned up with bruises, the Kiwanis would have been pretty quickly in touch with us about what was going on.  So just the involvement with more people, more eyes, is a way in which we keep people safe.

DR BENNETT:  You have also, from paragraph 88, raised the Community Visitor Scheme.  You have said it is a critical preventative and corrective safeguard.

MR BRUGGEMANN:  Yes.

DR BENNETT:  What are the key elements, just very briefly, that you say make it protective?

MR BRUGGEMANN:  Basically, what community visitors do is they go into houses, they ask questions, they examine documents, they look at what's going on and they can see bad things if they are happening.  They also see good things and they report on those increasingly.  I train the community visitors now to deal with --- to identify restrictive practices, so they now report on those.  They have been involved in some significant issues, changes to the service system.  For example, when Maurice Corcoran was the Principal Community Visitor, went to a house, people are zonked out in their bean bags, medication, reported it to the manager of the service, she did a review undertaken by a senior psychiatrist, they had a total revamp of their medication, a lot of medication just dispensed with.  There were people whose medication had largely not been reviewed for 18 years, and the next time Maurice went back to that house, it was the people themselves who greeted him.  So systems changes.  He did the same thing in the area of food, where we made some incredible changes to our dietary processes, through his involvement, his eyes.

So they see the bad things and they report on them and they require that those things are fixed.  They see the good things and they report on those and motivate organisations to do more of them.  And they have been involved in those systems responses that have made significant changes to the service system.

DR BENNETT:  You also recognise in your statement that the Community Visitor Scheme doesn't visit people in their own home.

MR BRUGGEMANN:  Correct, yes.

DR BENNETT:  You raise the possibility that perhaps there could be an opt in component to it.  What sort of vision do you have there?

MR BRUGGEMANN:  Yes.  When the community visitors --- when we were looking at the Ann Marie Smith Task Force, the idea of community visitors having  
visited Ann Marie was just talked about.  There was a view, "No, we don't want people coming in to see us, we are competent", et cetera.  So I think it has to be --- for some people it has to be an opt in model.  When you live in a serviced --- in a group home, it should be compulsory, but when you live in your own home, I think it should be an opt in arrangement.  It is very interesting and again it's a part of that dedifferentiation, that there are some people with physical disabilities who I have heard say, we just think case management doesn't have a place.  I can totally understand how it doesn't have a place for them.  It certainly has a place for people with cognitive disabilities.

DR BENNETT:  You also say, in your paragraph 96, in addition to the CVS, you note that the NDIS Commission is able to make occasional visits.  You note that is a good thing.  You say:

However, I believe that policing minimum standards is not enough; the development and enforcement of positive standards must also be included.

What do you mean about that distinction?

MR BRUGGEMANN:  Well, basically the Commission is concerned that you don't get beaten up, robbed, sexually assaulted, otherwise exploited or subjected to unauthorised restrictive practices.  When we think about the things that are important to people with an intellectual disability, living in a group home, one of those is that you are learning new skills.  And so there's the new paradigm of active support.  So in the old days, breakfast, four bowls, four lots of cornflakes, four lots of milk, there is your breakfast.  Active support: Richard, what do you want for breakfast?  I would like pancakes.  Okay, here is how we make pancakes.  Oops, you have just broken the egg.  Sometimes a very tortuous process.  What do you want, Hayley, for breakfast?  I would like bacon and eggs.  Okay, here is how we do bacon and eggs.

Organisations default to four bowls of cornflakes, essentially.  If one of those people got beaten up, the Commission is to them like a pack of wolves.  But if you are subjected to "ho humness" in your life, in not learning skills, in not developing the capacity to do things for yourself, fostering your independence, doing things that are important to you, it's not a blip on the radar, and it needs to be.

DR BENNETT:  Does that idea, then, relate to what you said elsewhere in your statement, where you talked about protective safeguards, for example, and the protective safeguards are what you are talking about when you are talking about policing minimum standards.  Then you have got positive standards there and elsewhere in your statement.  You have said that in addition to safeguarding you also have to have a highly positive dimension, and you said to enhance and promote a person's good life.  Is that what you are talking about there?

MR BRUGGEMANN:  Yes, and some organisations do this extremely well, but there is no systemic structure to this, there's no requirement for it, it's basically you just need to ensure that no one gets beaten up, robbed or sexually assaulted.  That's a  
crude way of putting it and I know it's not quite true.  But, largely, we are not interested in ensuring that the good things happen, we are interested in ensuring the bad things don't happen.  As long as we only deal with the bad things not happening, we will never get anywhere.

DR BENNETT:  That takes me to paragraph 100 of your statement, you say that the service providers that are committed to promoting the good life, they can also support participants to, and I quote, "dream big about future possibilities".  How can that happen?

MR BRUGGEMANN:  It's interesting.  Dreaming about a future is something that many people with intellectual disabilities have never done.  Life is a day by day proposition.  So it's interesting, I had written some stuff, and with your permission I will just read it.  And I think it gives you the flavour of what I'm trying to describe.  Beck, a young woman with an intellectual disability, employed as an integration worker by the South Australian Council on Intellectual Disability to educate other people with intellectual disabilities and their families about the NDIS, told me about gaining the skills to speak to large groups, the pleasure in working as a team member, her personal understanding of the NDIS and the service system.  Her optimistic confidence about the future shone through as she discussed her future plans.  What was so obvious is that when we put resources into developing skills, people flourish and they have less need for services.  When people have meaningful lives, they are less likely to have to use the challenging behaviours that we zap with restrictive practices.

Beck can help us create a society where people with disabilities are included as valuable citizens and in which, as a result, violence, abuse, neglect, exploitation will diminish by themselves.  And when they do better, our community does better.  And I think that's what I have learnt from people with intellectual disability.

DR BENNETT:  Thank you, Mr Bruggemann.  Chair and Commissioners, they are my questions.

CHAIR:  And the 15 minutes just expired.  Very good.  I'll ask the Commissioners if they each have maybe one question each.  First, Commissioner Bennett.

QUESTIONS BY THE COMMISSION

COMMISSIONER BENNETT:  Just going over the examples that you gave of the cornflakes bowl and all that, in the context of what you called the 1980s deinstitutionalisation, we have heard from some people that in fact all group homes are a smaller institution.

MR BRUGGEMANN:  Yes.

 
COMMISSIONER BENNETT:  And that that independence and the dream can't be achieved if people remain in that setting, where they can't choose who they live with, how they live and whether they want bacon and eggs, as you put it.

MR BRUGGEMANN:  Yes.  I understand the question and I think you are partially right.  But one of the unfortunate things in our sector is that CEOs, boards, often don't have a clue what happens within their organisations and they have got no structures to monitor what's going on.  And my grandson started working in this field a while ago, first day in a group home, keen as mustard, like, a flurry of activity at 7 o'clock, getting people up, toileting, showering, breakfast, dishes, and he's like, okay, what do we do now?  Just sit down, mate and watch television until it's time for another flurry of activity at lunchtime, and then sit down and watch television and then go home.  How do managers not know this is happening?  How did Integrity Care not know what was happening to Ann-Marie Smith?

Now, were this an isolated incident, it would be bad enough.  But I think it's endemic in the system.  And a few years ago there was a study by the Gallup organisation, looking at the motivation of workers around the world, that said 80 per cent of staff have got no connection with their job.  You come to work each day, basically wanting to get through the day, get your dough and go home and do the things that are important in your life.  In Australia, 75 per cent felt that way.  That means only 25 per cent of people are connected with their jobs and enthusiastic about their jobs.  What's it like in the disability sector?  Is it better or worse?  Say it's three times better.  25 per cent of your staff come to work each day not giving a tinker's cuss about their jobs and you have got managers who are not managing, who don't know what's going on in their organisations.

Coming back to your point, I do think that institutions, largely, once you have got a group of people, whether it's a share house with students or whatever, it becomes a bit of an institution, you have to give and take.  But often in group homes it's all of the residents basically give and the staff that take.

COMMISSIONER BENNETT:  It wouldn't feel like a home as most people would understand a home?

MR BRUGGEMANN:  It would not.  Having said that, I have seen a couple of group homes that have been sensational, but I think they are unfortunately the exception rather than the rule.

COMMISSIONER BENNETT:  Thank you.

CHAIR:  Commissioner McEwin, do you have a question?

COMMISSIONER McEWIN:  Yes, one question.  Thanks, Chair.  In relation to your comments about the NDIS and your concern that some people are not getting the support from the NDIS, for example at paragraph 70 in your statement, where you are concerned that people with cognitive disability or complex needs, people whose  
families also have limited capacity or those without family to provide advocacy and oversight, if for example individual advocacy was funded as part of the NDIS package, surely would that address your concern that you have expressed about some people not getting support through the NDIS?

MR BRUGGEMANN:  Yes.  Again, I guess our case workers were also advocates, in that they would be going to the Education Department and advocating for an individual to get those services.  And our organisation had an advocacy role to promote the inclusion within mainstream services.  So, yes, that was an important part of it.  How it fits now, I'm not quite sure.  You could have an advocate, it might be overkill, but certainly there needs to be someone --- you know, I have been thinking about who it might be.  You would know at the present time the LACs, the Local Area Coordinators, are basically just planners doing NDIS plans to get rid of the backlog.  That was not the role that was envisaged for them.  The role was largely based on the Western Australian LACs who are basically doing what our case workers did, those community connections.  So if we could get the LACs back to doing what LACs were supposed to be doing, that might be an area where we could get that advocacy.

What I'm reluctant about is we have already got --- we were told by the Productivity Commission that we had an underfunded and broken system.  I think we have got an even more broken system now.  We have got, as I've said, planners, support coordinators, special support coordinators    

COMMISSIONER McEWIN:  Can I interrupt and take you back to the original question.  If there was individual independent advocacy that was made available to all people with disability interacting with the NDIS, would that address your concern?

MR BRUGGEMANN:  It would address some of them.  How we deal, for example, with ensuring that the good things happen, I'm not sure.  That would mean they would have to be going into group homes and things like that.

COMMISSIONER McEWIN:  Sorry, I know you have a lot to say.  I want to bring it back to the original premise, which is that independent individual advocacy, which as we have heard in other hearings has been --- many have been defunded, many are having funding, but let's assume that there are individual independent advocates that could be funded through the NDIS; can I take it from you that that would be adequate for what you have explored in terms of your concerns?

MR BRUGGEMANN:  Yes, I think it would be a very good step.

COMMISSIONER McEWIN:  Thank you.

CHAIR:  Thank you, Mr Bruggemann, for your evidence and for the detailed statement you have provided and your passionate presentation today, which has been the source of some very interesting discussion.
 

I shall assume, Dr Bennett, that none of the counsel representing other parties wish to ask questions of Mr Bruggemann.  Is that a fair assumption?

DR BENNETT:  That is a fair assumption, Chair.

CHAIR:  In that case, Mr Bruggemann, thank you very much for coming to the Commission and for sharing your insights with us.

Dr Bennett, we shall resume at 10 o'clock tomorrow morning Adelaide time.

THE WITNESS WITHDREW

DR BENNETT:  Yes, Chair.  Thank you.

CHAIR:  Is there anything else we need to do this evening?

DR BENNETT:  Nothing further.

CHAIR:  Thank you very much.  We will adjourn until 10.00 am Adelaide time tomorrow.

THE HEARING ADJOURNED AT 4.22 PM UNTIL 10.00 AM ON TUESDAY, 8 JUNE 2021