Public hearing 14: Disability services (South Australia), Virtual - Day 6
CHAIR: Good morning to everybody who is following these proceedings. This is a one day hearing that forms part of Public Hearing 14 of the Royal Commission. The first five days of Public Hearing 14 took place in Adelaide from 7 to 11 June 2021. The subject of that hearing was preventing and responding to violence, abuse, neglect and exploitation in disability services in South Australia.
Before commencing today, I wish to acknowledge the Gadigal people of the Eora Nation on whose lands Commissioner Alastair McEwin AM and I are sitting, and pay our respects to their Elders, past, present and emerging.
I also acknowledge the Ngunnawal people on whose lands Commissioner Barbara Bennett PSM is participating in the hearing. We also pay our respect to their Elders, past, present and emerging. I extend our respects to all First Nations people who may be following these proceedings.
The purpose of today's hearing is to allow Counsel Assisting the Royal Commission and the parties given leave to appear at Public Hearing 14 the opportunity to present oral submissions in support of their respective written submissions.
Counsel Assisting the Royal Commission filed written submissions on 6 August 2021. They invite the Commissioners to make certain findings in the two case studies that were the subject of detailed evidence at the hearing. The written submissions further contend that it is open to Commissioners to make recommendations concerning responses by the South Australian Department of Human Services to the circumstances of each case study.
Counsel Assisting's submissions also address the lessons to be learned from two important reports into the tragic death of Ms Ann Marie Smith that occurred on 6 April 2020. The first report is that of the Safeguarding Task Force, in fact there are several reports, established by the South Australian Minister for Human Services. The second report was prepared by the Honourable Alan Robertson SC at the request of the NDIS Quality and Safeguards Commission.
The State of South Australia filed written submissions on 10 September 2021 in response to evidence given during Public Hearing 14. South Australia's submissions accept some matters advanced by Counsel Assisting but dispute that the Commissioner should make findings adverse to the interests of South Australia.
The Australian Government also filed written submissions on 10 September in response to Counsel Assisting's submissions. The Australian Government notes that Counsel Assisting does not seek specific findings or propose recommendations about the functions, powers and policies of the NDIS Commission or the National Disability Insurance Agency.
Victoria and James, the pseudonyms afforded to the parents of Mitchell, filed submissions on 17 September 2021. Victoria and James agree with the key claims
and findings outlined in Counsel Assisting's submissions, but propose that certain additional findings should be made adverse to the interests of South Australia.
A note has also been received from the South Australian Public Advocate and Principal Community Visitor, clarifying certain matters referred to in Counsel Assisting's submissions. All of these submissions are published on the Royal Commission's website. There is also a response from Ms Karen Rogers and I understand that Senior Counsel will make reference to that in due course.
As I have indicated, the three Commissioners participating in this hearing are Commissioner Bennett who is in Canberra, Commissioner McEwin who is in Sydney and myself, I am also in Sydney but in a different room than Commissioner McEwin. I will now take the appearances today.
MS EASTMAN: If the Commission please, I am Kate Eastman and I am Senior Counsel Assisting the Royal Commission. I appear with Ms Elizabeth Bennett and Dr Hayley Bennett.
CHAIR: Thank you, Ms Eastman. Can I take other appearances, please, starting with the Commonwealth of Australia. Is there an appearance?
MR DIGHTON: Thank you, Chair. I appear for the Commonwealth instructed by Gilbert & Tobin.
CHAIR: Thank you very much, Mr Dighton. Is there an appearance for the State of South Australia?
MR SIMPSON: Sorry, Chair, we had difficulties with the video. May it please the Commission, I appear for the State of South Australia.
CHAIR: Thank you very much, Mr Simpson. Is there a representative for Victoria and James?
MR O'BRIEN: Yes. Good morning, Commissioners. I appear for Victoria and James.
CHAIR: Thank you very much, Mr O'Brien. Are there any other appearances to be announced? If not, Ms Eastman.
CLOSING SUBMISSIONS BY MS EASTMAN
MS EASTMAN: Thank you, Commissioners. As Counsel Assisting, we also acknowledge and pay our respects to the traditional custodians of the lands on which we meet today. We acknowledge the First Nations Elders, past, present and emerging and we also acknowledge and pay our respects to all First Nations people
following the proceeding today.
Commissioners, from 7 to 11 June earlier this year, you held a public hearing in Adelaide, Public Hearing 14. The hearing was one in a series of public hearings that will examine systemic issues concerning the manner in which disability services can or should prevent violence, abuse, neglect and exploitation of people with disability.
Public Hearing 14 had two parts. The first part examined the experiences of Mitchell and then Daniel Rogers. They both received disability accommodation services and support services provided by the South Australian Department of Human Services, DHS.
The second part of the hearing examined the responses of the South Australian and Australian governments, respectively, to the inquiries following the death of Ann Marie Smith on 6 April 2020.
Ms Smith was a South Australian resident and an NDIS participant. In the years leading up to Ms Smith's death, she lived by herself in her own home. She had a sole carer who was employed by a registered service provider. She died on 6 April 2020 in what has been described as appalling circumstances, after a substantial period of neglect and having lived in squalid circumstances.
Ms Smith's death shocked the community and prompted a review into the safeguarding of people with disability. There were two inquiries established, one by the South Australian government and one commissioned by the NDIS Quality and Safeguards Commission.
In relation to Ms Ann Marie Smith, the Royal Commission's Terms of Reference expressly direct the Commissioners to ensure that evidence that may be received that identifies particular individuals having been the subject of violence, abuse, neglect or exploitation is dealt with in a way that does not prejudice current or future criminal or civil proceedings or other contemporaneous inquiries.
Media reports have revealed, following the public hearing in Adelaide in June, that on 28 July this year Ms Smith's carer pleaded guilty to a charge of manslaughter. The criminal proceedings are ongoing. Nothing in these submissions today is intended to be a comment on or in any way touching on the ongoing criminal proceedings with respect to Ms Smith.
As the Chair mentioned, following Public Hearing 14 in June, we prepared Counsel Assisting's submissions. Those are submissions in writing and Counsel Assisting has an obligation at the conclusion of evidence presented at a public hearing to provide notice by way of closing submissions of issues upon which adverse findings may be made by the Royal Commissioners.
The purpose of the written submissions was to address the evidence and propose findings and recommendations that may be open to you, Commissioners. It is
important to note that our proposals and our suggested findings do not represent the Commissioners' views or findings that will be made.
Commissioners, you have also received written submissions from the parties who participated in the hearing and today is an opportunity, and an important opportunity, for you to hear from the other parties.
Chair, as you said, all of the written submissions are now available on the Royal Commission's website. So for the purposes of this hearing, I do not propose to read out our written submissions but I want to cover some of the matters raised from the evidence that you heard in June.
Before turning to this task, can I outline how we will proceed today. I will present the Counsel Assisting's submissions, keeping an eye on the time in front of me. We will break shortly after 11 am for morning tea. I suspect I may still be going by then and so I will try to complete the oral submissions after morning tea.
Ms Karen Rogers was not represented at the hearing. She has provided you with some written submissions but she would also like an opportunity to address you personally today. Commissioners, I hope you will grant Mrs Rogers the opportunity to have leave to present a short oral submission.
When Mrs Rogers has finished her statement, Mr O'Brien will present the submissions for Victoria and James. You will recall that Victoria and James are the aunt and uncle of Mitchell. Then we will break for lunch.
Commissioners, it may be that the representative for the Commonwealth, the Australian government, may wish to make short submissions or you may have questions of him. That will then be followed by the opportunity for South Australia, through Mr Simpson, to make such submissions as he wishes to make. Then we will close. I cannot tell you precisely when we will finish today, but I hope we will make reasonable time.
Commissioners, turning to our submission, in our submissions we sought to set out the key factual matters and identify things that emerged from the evidence. The totality of the evidence enabled us to identify the following themes: the concept of vulnerability and risk, what a person centred approach to service delivery means, communication, the quality of services, safeguarding systems, the concept of provider of last resort, the importance of independent reviews, and we touch very briefly on some issues about the respective responsibilities of South Australia versus the Commonwealth.
These matters are outlined in our written submissions. I do not propose to take you through each of these areas separately, but I thought I might identify the eight overarching findings we have set out in our written submissions and address the seven recommendations with respect to South Australia. Those are matters that arise in relation to the case studies of Mitchell and Daniel Rogers.
While we did not seek any specific findings or proposed recommendations about the functions or powers of the National Disability Insurance Scheme or the NDIS Quality and Safeguards Commission or the National Disability Insurance Agency, we did identify some key themes in relation to areas that might be of further work for the Royal Commission. Commissioners, you have ongoing work in relation to the provision of services by disability support services and ongoing issues in terms of regulation around those services.
However, because the Australian government has provided some helpful submissions, I want to touch on what we identified as three key issues arising out of the two reports.
Commissioners, can I start, please, with the findings and recommendations concerning Mitchell and matters touching on the interests of Victoria and James.
Commissioners, you will recall Mitchell was 38 years old at the time of the hearing. He has Autism Spectrum Disorder and he lives with an intellectual disability. You heard that over the years he has also received diagnoses of anxiety, bipolar disorder and possibly Post Traumatic Stress Disorder. You heard accounts of Mitchell's early life and you heard that his needs have been significant.
In his teenage years, his family felt they could not provide him the level of care he needed. By the time he was 18 years old, Mitchell had lived in three disability residential services. In 2000, when he was 18 years old, he moved to the Strathmont Centre and lived at the Strathmont Centre until 2016.
With respect to the Strathmont Centre, you will recall Mr Richard Bruggemann's evidence. He served as the Chief Executive Officer of the Intellectual Disability Services Counsel from 1982 to 2006 and he was the senior practitioner from 2003 until 2018.
He told you something about the history of disability services in South Australia. He told you that in March 1971 the Strathmont Centre opened at Oakden. The South Australian government provided accommodation and training to people with intellectual disabilities, including children and young people. Mr Bruggemann said that the model was already outdated by the time of construction of the Strathmont Centre and he noted the trend in Europe and elsewhere was to move to smaller accommodation units.
Prior to the decommissioning of the Strathmont Centre in 2016, Victoria and James worked with the accommodation manager at the centre to find suitable accommodation in the Adelaide suburbs for Mitchell. By December 2016, Mitchell had moved into a unit among a newly built cluster of units that were operated by DHS. You will recall the accommodation was referred to as the Residence at the public hearing.
Mitchell had a one bedroom unit with open plan dining and living area. The evidence was that this was intended to be a short term stay of about six months. However, by May 2021, Mitchell continued to live at the residence. We now understand Mitchell has relocated to new accommodation.
You heard from Victoria and James and they described their concerns about the quality and safety of the support services and accommodation provided to Mitchell from 2017 to early 2018. These matters are set out in our written submissions and I understand Mr O'Brien might touch on some of the issues.
I will go directly to the matter of particular concern that founds the proposed findings we have made. Commissioners, you will recall that on 3 March 2018, Victoria and James received a letter at their home address. The letter became an exhibit in the proceeding. The letter threatened violence and abuse towards Mitchell. There was no author to the letter but the letter, which is reproduced in our written submissions at page 16, made it clear that the author of the letter had turned his or her mind to ways in which Mitchell would now be at risk.
The letter said this:
Food ..... poison
shampoo ..... what's in the bottle acid?
bruises ..... how did that happen?
another client with violent behaviour, eg dumb bells
going out ..... falling down stairs
how well does he swim
going through the wind screen ..... seatbelt unclipped
It concludes by saying:
This little piglet is going to be abused with cruelty violence regularly and repeatedly
The author was not and has never been identified. At the hearing, Ms Muriel Kirkby, who you will recall was the Director of Accomodation Services, said this letter was:
..... completely heartbreaking to even think anyone would write such a letter about anyone, particularly a vulnerable person.
Commissioners, our first finding, Finding 1, set out in our written submissions is a finding where we contend that the DHS failed to carry out an appropriate investigation into the 3 March letter in March 2018 or at all. Then we identify six specific reasons to support that finding.
Victoria and James support this finding in its entirety. In their written submissions, though, they propose two additional findings and I expect Mr O'Brien will address the additional findings when he presents Victoria and James' submissions shortly.
In its written submissions, South Australia accepts that following an initial disclosure of the letter, DHS did not undertake a discrete and targeted investigation to determine the author of the anonymous letter. Ms Lois Boswell, who you will recall gave evidence towards the end of the hearing, accepted there was not a thorough investigation and the steps that had been taken, she agreed she did not think were sufficient.
South Australia in its submissions says its response to the letter was the immediate measures to ensure Mitchell's safety and to address other matters raised by James and Victoria in line with James' requests. The submissions say that South Australia accepts that DHS had a responsibility to attempt to identify the author of the letter, irrespective of the wishes of the family, and asserts that it did so, at the same time accepting the investigations were not as thorough in respect to this issue as they ought to have been.
Our reading of South Australia's submissions is that South Australia accepts that a gap existed in its policies for the management of the incident and there was no identified or suspected author. But as we read the submissions, South Australia does not accept that this represents a systemic defect.
In our respectful submission, the issue that we sought to identify in this overarching finding was there was lack of clear guidance or protocols for responding to a threat, particularly such a serious threat. This is a threat that could have actually eventuated and, in that context, may be viewed as indicative of a systemic defect. Because no known or suspected perpetrator had been identified, it was important that the threat be properly and comprehensively addressed.
Looking at the component parts, and I understand, Commissioners, that the relevant extracts from the findings will come up in a moment. Finding 1a.
CHAIR: Is a reference needed?
MS EASTMAN: Commissioners, and for people following the proceedings, all the findings are set out in a summary form at page 83 of the written submissions. I think that finding is now coming up.
CHAIR: Can we please bring up paragraph 323 of Counsel Assisting's submissions? That has now come up, Ms Eastman.
MS EASTMAN: Thank you. You will see this finding is directed to the following: DHS did not take the 3 March letter seriously enough on 3 March 2018 and in the immediate days that followed; DHS acknowledged that the first investigation into the 3 March letter became distracted from the aim of finding the source of the threats
South Australia disputes this proposed finding. In paragraph 5 of its written submissions it says the actions of DHS on the days immediately following the receipt of the 3 March letter demonstrated that the Department took the letter seriously. In its submissions it sets out particular actions taken by DHS staff that demonstrated a genuine concern for the welfare of Mitchell and a commitment to taking all reasonable steps to ensuring Mitchell's safety and to reassure his family.
However, Commissioners, it is not our submission that DHS failed to take the letter seriously. Our contention is that DHS did not take the letter seriously enough on the day or in the immediate days that followed with respect to the context of the investigation. In response to South Australia's contention, we submit that Finding 1a is centred around the primary contention that there was no appropriate investigation at that point in time or in the days immediately after.
A key part of that reason for not having an appropriate investigation, in our submission, is the relevant officers in the DHS did not take the threat seriously enough to elevate it to an immediate investigation. We note the evidence presented at the hearing, particularly Ms Boswell's evidence. She accepted that the letter contained a serious threat to Mitchell's life. She said.
..... that it was appalling and needed investigation.
So the proposed finding in 1a is very much directed to whether or not the letter was taken and given sufficient serious attention to warrant an immediate investigation. That investigation is not in lieu of or instead of the support provided to Mitchell and the concerns for his welfare and the reassurance that DHS says it sought to provide the family.
In our submission, while South Australia accepts its failure to undertake a proper investigation overall, there is really no explanation as to why it failed to do so on or in the immediate days following 3 March. In our respectful submission, the finding proposed in 1a should be accepted.
The second component to Finding 1 is paragraph 1b. The approach we have taken to the findings is to step through the events from 3 March and following.
Paragraph 1b states that the failure to treat the 3 March letter seriously at this point in time had significant consequences for the manner in which the matter was handled by DHS throughout 2018 and 2019.
Again, the South Australian submissions at paragraph 15 contend the premise of this finding should not be accepted and, again, repeat that the letter was taken seriously. It also suggests in its written submissions that this proposed finding is ambiguous in its terms because we have not identified the significant consequences and what specific matter was being addressed.
We would be assisted, when Mr Simpson gives his oral submissions, to perhaps explain this context. If the concern arises because Finding 1b has been taken in isolation from the totality of findings in paragraph 1, we regret that has been the approach taken. However, in our submission, we say the context is patently clear.
The proposed finding that DHS failed to take the 3 March letter sufficiently seriously is immediately preceded in our written submissions in paragraph 68, where we say:
On or around 10 March 2018, the Director of Accommodation Services spoke with some managers and supervisors from the Residence to see if they suspected anyone of being the author of the 3 March Letter. This was not a formal, methodical investigation. No records were retained and no investigation report was produced.
So, seven days after the letter, on 10 March, what might be scoped as a start of an investigation was nothing more than a chat with various managers and supervisors. The fact that none of this was documented has to be a matter of some significance, creating consequences and, indeed, significant consequences for the way in which the matter was then handled throughout 2018 and 2019.
In our submission, the lack of a contemporaneous record of the recollections is significant. The lack of examining any records of the movements of staff or data that could have been reported or cross checked at that time is significant. A collection of reliable and helpful material to inform an investigation, on or closely around 3 March, could have made a difference. In that respect, we say the finding that the lack of investigation and a lack of taking the letter seriously on 3 March is what causes the significant consequences that see their way through 2018 and 2019 and, Commissioners, you may well say even through to the hearing in June this year.
CHAIR: Ms Eastman, the reference in that proposed adverse Finding 1b, "the failure to treat the 3 March letter seriously", I take it from what you have said, that should be read seriously enough in the sense used with proposed adverse Finding 1a?
MS EASTMAN: Yes. Next is Finding 1c and the conclusion is to describe the first investigation as "seriously deficient".
Now, South Australia acknowledges and accepts that the focus of investigators on matters other than identifying the author of the 3 March letter was detrimental to identifying the author of the letter. That is at paragraphs 17 to 19 of its written submissions.
However, it contends this: it says there is no certainty that the author of the letter would have been identified whenever the investigation had been commenced. At paragraph 19, South Australia says that while the first investigation was deficient in terms of identifying the author, the first investigation could not be described collectively as seriously deficient. It raises the question of what was the purpose of
the first investigation if not to identify the author of the letter.
In our submission, it appears, looking closely at the South Australian submissions, that DHS accepts the investigation was unjustifiably delayed and it did not constitute a full or thorough investigation aimed at identifying the author of the letter. In its submission, it says it accepts this:
..... the focus of investigators on matters other than identifying the author of the 3 March letter was detrimental to identifying the author of the letter.
Notwithstanding this concession, South Australia still resist the adverse findings in the form described in paragraph 1c.
If it is the case that South Australia contends that there could never have been any certainty, regardless of when an investigation started or the manner of the investigation to identify the author of the letter, that is a matter of some concern.
I turn to proposed Finding 1d. The reference here to the second investigation is an investigation that occurred following preliminary findings of the South Australian Ombudsman. Commissioners, you will recall in April 2019, an Ombudsman investigation commenced. The Ombudsman later expressed a preliminary opinion that the first investigation was not adequate and the Ombudsman recommended there be a further investigation.
Finding 1d is referable to the second investigation. The proposed finding is that it had deficiencies in methodology, analysis and the scope of information reviewed, such that it was neither sufficient, proper nor competent. South Australia says in its submissions at paragraph 20 that the scope of the second investigation was clearly directed to the identification of the author of the anonymous letter.
At paragraph 25, South Australia contends that whilst circumstantial evidence indicates that the author of the letter may have been a person who was at some stage an employee of DHS, the totality of the evidence does not permit a finding that this was necessarily the case. In our respectful submission, DHS in its submissions, and I use "DHS" and "South Australia" interchangeably for present purposes, does not explain why it makes this submission.
If DHS proceeded on the basis that the author of the 3 March letter was someone outside the DHS system, that is not recorded in any of the investigations. This is not a conclusion suggested by any of the reports. If the author of the letter is not an employee or former employee of DHS, one might ask this question: who were the alternative suspects? DHS does not address this anywhere in its investigations or its submissions.
In our respectful submission, this contention to suggest there may be uncertainty as to the identity of the author, who may be somebody outside the DHS system, again fails to address the central point we have proposed in this finding about the
methodology, analysis, adequacy and thoroughness of the investigation.
CHAIR: That would be enough, would it not, that there was a reasonable prospect that the letter was written by somebody who was employed by the relevant agency?
MS EASTMAN: In our respectful submission, that was certainly the tenor of the evidence and the evidence provided by the witnesses appearing for DHS at the time. This new proposal that there may be alternative suspects is a matter, in our respectful submission, that had not been raised squarely at the hearing. In our submission, you should reject that the second investigation might have turned up an alternative suspect. And for what purpose at the end of the day, I respectfully say?
In our submission, it can plainly be accepted, particularly in the light of Mr Allwood, who you will recall gave evidence. He is an experienced auditor. He was called by DHS to review and explain the first and second investigations and he agreed with the following points. First, he agreed there was no analysis of the evidence in the report of the second investigation. Secondly, he agreed there was no analysis of how the information obtained in the second investigation might fit in with respect to the information obtained in the first investigation.
He agreed there was no chronology, no identification of key players and that these were things you would expect to see in a competent and proper investigation. He conceded, when pressed in examination by Ms Bennett, the second investigation was not a proper or competent investigation.
Commissioners, in such circumstances, we submit you could be comfortably satisfied that the second investigation had the deficiencies in methodology, analysis, the scope of information reviewed, such that the second investigation was neither sufficient, proper, nor competent.
The next part of Finding 1 is paragraph 1e. You see there, Commissioners, we draw the conclusion that DHS's failure made it less likely that the author of the 3 March letter would be identified and, further, that the person would be free to continue working with people with disability.
South Australia says in its submissions at paragraph 27 that the author of the letter may not have been identified irrespective of when an investigation commenced and it acknowledges the author has never been identified. In our respectful submission, we say you can accept that the failure of the first investigation to focus on the identity of the author of the 3 March letter was to the detriment of finding the author. That must be clearly so and, in our respectful submission, that was accepted by Mr Allwood at transcript page 192.
The next finding is Finding 1f, that DHS's failures caused Victoria and James significant distress because of these events and a loss of trust and confidence in DHS. We do not understand South Australia to dispute that Victoria and James were significantly distressed because of these events, and because of those events they
have lost trust and confidence in DHS.
That is Finding 1. I turn to Finding 2, which is that Victoria and James' experiences highlight the significant impact when communication breaks down and the outcomes for the person receiving care are at risk. Victoria and James say they fully endorse this finding.
In paragraph 29 of its submissions, DHS accepts a breakdown in communication between Victoria and James occurred and accepts this exacerbated the concerns Victoria and James had about Mitchell's care. DHS says in its submissions that it attempted to adopt a flexible communication arrangement to accommodate James' and Victoria's requests as to how they considered effective communication would best be achieved. They note the regular minuted meetings and the involvement of a positive behaviour support specialist.
It is clear, Commissioners, from the evidence you heard that there was a breakdown in communication and this affected both sides. But what was not able to be achieved is a way of identifying effective communication to put Mitchell at the centre in a person centred approach.
South Australia, in its written submissions, point to some evidence given by Ms Kirkby and Ms Boswell about restructuring in April 2019 of the accommodation services. They say this introduced a flatter reporting structure, embedded team supervisors with accommodation facilities and introduced additional positions of quality and safeguarding officers, capacity building officers and service coordinators into the service delivery structure.
South Australia tells you that these changes are aimed at preventing communication breakdown, such as occurred with James and Victoria, from occurring in the future. Notwithstanding these changes that have occurred in South Australia, in our submission, we say the finding remains open to you, Commissioners.
The importance of communication is not necessarily the structures itself but the importance of communication is also built on the importance of effective working relationships, the capacity to listen and understand, the capacity not to bring pre judgment, the capacity to be aware of the impact of trauma in the way and the manner in which effective communication can occur, and even such things as not being constrained by our unconscious bias. There are lots of aspects to communication and it is an ongoing exercise, rather than something that can be immediately cured by a remodelling of structures.
I turn to Finding 3. We have suggested it is open to you, Commissioners, to make a finding that Mitchell's case study highlighted a failure to be person centred and maintain central focus on the safety and wellbeing of people in accommodation services.
At paragraph 36 of its submissions, South Australia says Finding 3 is not available
on the evidence before the Royal Commission. It says the evidence demonstrates a focus on concern for Mitchell and his safety from the moment the 3 March letter came to its attention. It says DHS endeavoured to accommodate the wishes of the family, including in respect of flexible communication arrangements and approving staff to work with Mitchell as they have outlined in their submissions.
They make the point that Mitchell's wellbeing more generally was not examined in any significant depth, so as to permit a finding as broad as we have posited in our submissions. In our respectful submission, sometimes it is the acute or crisis situation that needs to be examined to ask whether or not the day to day maintenance of services can be jeopardised or a person can be put at risk.
In our respectful submission, South Australia's submissions do not substantively address the risk that occurred as a result of the 3 March letter and the nature of that risk, in terms of what may have been before but, more importantly, what followed for Mitchell and for Victoria and James following 3 March 2018.
The critical point is this: the author of that letter described ways to poison somebody, to put acid in shampoo bottles, to cause an injury, to have a person flying through a window because the seatbelt was not on properly. Is this the type of person we want working in the disability sector?
Mr Allwood gave evidence. Ms Bennett asked him this question:
And the Ombudsman observed that it was likely to be necessary to consider people who had worked with Mitchell over a far longer period of time; is that not the case?
Mr Allwood said, "Yes, yes."
To a similar effect, Ms Kirkby said in her evidence:
There's a potential that one of our staff could have written that, that absolutely sends shivers down my spine.
The concerns and the observations expressed by both Mr Allwood and Ms Kirkby highlight the importance of a focus on the safety and wellbeing of people in accommodation services. That necessarily has to be person centred. If it is person centred, the question is who is around that person who may create vulnerability in this case for Mitchell or create a risk to Mitchell's safety and wellbeing.
In our submission, the issue is not that we looked chapter and verse on a day by day basis to say whether on a particular day Mitchell was safe or experienced wellbeing, our contention is that the circumstances that arose in relation to the 3 March letter highlighted that there were indicators in this particular service that there may be somebody who, because of a grievance that had generated as a workplace issue,
would act on that grievance by threatening the wellbeing of a person with disability and a person to whom care and accommodation depended entirely on those working in the service.
In our submission, South Australia has erroneously focused upon Mitchell rather than what we sought to raise in this finding about people in the accommodation services. Proposed Finding 3 is focused on safety and wellbeing in accommodation services, not just Mitchell. If the author of the letter is indeed a person who worked or works in DHS' accommodation services, then the risks to Mitchell are also risks to others receiving services at that time.
When we say DHS became distracted from the aim of finding the source of the threats against Mitchell in the first investigation, they became distracted from identifying, with respect, the risk that might occur to others if that person sought to act upon their grievance in a way that would harm and threaten the wellbeing of a person with disability.
Commissioners, it is worth pausing for a moment to consider what is meant by this finding. If a person employed by DHS wrote and delivered the letter to Victoria and James' home, then that person had a lot of personal and sensitive information. That person had considered a range of ways to harm a vulnerable person in the context of accommodation services and that harm be perpetrated in a manner that could not be easily detected.
The person thought carefully about that. The person considered a range of ways to kill a vulnerable person in the context of accommodation services, so that the harm or the death could not be easily detected. The person committed those thoughts to writing. The person delivered those thoughts to a family member, knowing or they must have known the distress it would cause.
Maintaining a central focus on the safety and wellbeing of people in its residential services meant, for South Australia, keeping these central facts foremost in its mind on 3 March and then in the period following 3 March. Indeed, the absence of the identity of the author means that it is ongoing.
In our respectful submission, South Australia's focus was only on the steps taken by DHS with respect to Mitchell and it has not, with respect, engaged with the broader question of whether DHS's distraction meant there was a lack of focus on the risk posed to other people living in supported accommodation who may or may not have come in contact with the author of that letter or, frankly, anyone else who was aware of that letter and who has not said anything. The submissions of South Australia do not engage with the very real possibility that the author of the 3 March letter could have worked in its services and continues to do so.
Commissioners, in relation to Mitchell's case study, we also propose a number of recommendations. These appear at paragraph 322 of our submissions, page 82. Victoria and James say they wholeheartedly agree with the recommendations.
South Australia, in annexure A to its submissions, has addressed the recommendations and provided to you information in respect to the actions it has taken following the hearing in June this year.
The first recommendation in relation to Mitchell, Victoria and James, recommendation (a), is that DHS should engage an independent investigator with appropriate forensic skills to conduct an investigation into the 3 March letter. South Australia will tell you that an investigator external to DHS has been appointed to conduct an investigation.
The next recommendation, (b), is DHS should consult with Victoria and James about the terms of reference for the investigation and be given the opportunity to participate in the investigation. South Australia will tell you there has been correspondence with the investigator and the investigator has been instructed to consult with Victoria and James.
The third recommendation, (c), is that DHS should commit to publicly releasing any investigation report. South Australia says the DHS intends to consult with Victoria and James at the conclusion of the investigation about releasing any investigation report. We accept that a report should not be released without the consent of Victoria and James. We accept that if there is material that should not be put into the public domain, then that may be appropriate.
Finally, recommendation (d), and there are two parts to that recommendation. They are both up on the screen. Commissioners, South Australia have said that on 11 March the Chief Executive of DHS issued a formal letter of apology to Victoria and James, acknowledging the impact of receiving the 3 March letter and acknowledging the outcome of the investigation which failed to determine the author of the letter.
You will recall that this letter had not been received by Victoria or James and they became aware of it in the preparation in the days immediately before the hearing in June. South Australia will tell you that a further letter was sent on 20 July this year, apologising to Victoria and James for the errors identified by the Ombudsman's final report of 27 January 2021, and that has also been provided.
CHAIR: Do you accept, Ms Eastman, that South Australia has acted on the proposed recommendations?
MS EASTMAN: Based on what is provided in annexure A, yes. It may be that Mr Simpson can tell you more about that. Obviously I do not represent the interests of Victoria and James and so to the extent that what has occurred meets the expectations of Victoria and James, they are matters Mr O'Brien may be able to assist you with.
CHAIR: Thank you.
MS EASTMAN: Commissioners, I note the time. I may start with the second case study and see how I go. We may reach about 10 past 11 before we have a break.
I turn now to the findings and recommendations specific to Daniel Rogers. Commissioners, you will recall at the time of the hearing, Daniel Rogers was 40 years old and he was born and bred in Adelaide. His mother Karen Rogers gave evidence and she told you that Daniel Rogers has limited speech and he has a limited ability to articulate for himself meaningfully or have interactive conversations. He lives with an intellectual disability.
Karen Rogers told you about Daniel's early life and about the very loving family that Daniel Rogers is a part of. She told you about the agonizing decision of Daniel moving to live in supported accommodation when he was 11 years old.
This hearing focused on events at the accommodation described as N Street. The specific concern for this case study was the physical injuries in the form of unexplained bruising, and DHS' response. I will also touch on issues more broadly in terms of neglect.
I will start with the bruising. In October 2018, bruising was observed on Daniel and a record was made in Riskman. Commissioners, you will recall that Riskman was the online program which DHS officers and staff were required to enter reporting and to assess the relevant level of risk. So that is October 2018.
In November 2018, Mrs Rogers gave some evidence that she picked Daniel up for a visit to home on the weekend. When she took him home and his jacket was removed, she observed bruises on Daniel's inner arm. She said the bruises were close together and about the size of a forefinger. She took photographs and raised her concerns with the accommodation manager at N Street, who told her the matter would be investigated.
Moving to February 2019, Mrs Rogers said there were further incidents of unexplained bruising. On 17 February, staff noted bruising on the left side of Daniel's left buttock. It was noted by the staff, but no Riskman report was completed in relation to those observations. On the following day, 18 February, bruising was noticed again and a staff member did make a report in the Riskman system but the bruising was rated as insignificant.
On 21 February, a further Riskman report was made by staff, stating that staff had noticed a medium size bruise on the right bottom and the colour of the bruise was pink. This bruising was again described as insignificant in the Riskman report.
On 22 February, late in the afternoon or early evening, Mrs Rogers said she received a call from N Street and she was told there was a large bruise on Daniel's back. She was asked to give her position that N Street call the locum doctor to examine and assess Daniel, and she agreed. The locum doctor attended Daniel and the locum doctor recommended that Daniel be admitted to hospital.
Mrs Rogers went to the hospital and there she saw the bruising for herself. She was shocked by the size of the bruising and the location of the bruising. Commissioners, you will recall you saw photos of the bruising as part of Mrs Rogers' evidence. Mrs Rogers, you will recall, was very distressed about this incident and so too was Daniel, particularly because of his fear of hospitals and the circumstances of his attendance there.
In terms of what happened next, on 26 February, Mr Cunningham, the Accommodation Services Manager, called and asked Ms Rogers to report the bruising to the police and she did so. Mrs Rogers was also told that DHS would investigate Daniel's injury, but neither Daniel nor Mrs Rogers was involved in any investigation undertaken by DHS.
You will recall her evidence that it was not until about a year later that Mrs Rogers met with Mr Dodd, the then Director of the Investigation Unit. Mr Dodd told Mrs Rogers that DHS' investigation was inconclusive. Mr Dodd did not provide her with a copy of the report. He told Mrs Rogers she would need to make a Freedom of Information request in order to see the report. At the time, Mrs Rogers said, this was too onerous for her.
At the hearing in June this year, all of the DHS witness expressed concern about Daniel's injuries and the extent of those injuries. Mr Cunningham told you that the staff had received "refresher training" to hold them accountable because "of the lack of appropriate reporting and escalating the incident".
Similarly, Ms Kirkby gave evidence that she was concerned that the bruising on Daniel was not reported in a timely way and she described this as "a huge concern". She frankly accepted there had been "a number of poor reporting practices" in the week leading up to a family member receiving a phone call to get a locum to come and have a look at her son on a Friday night.
In relation to the bruising and the unidentified and unexplained bruising, we have proposed Finding 4 and there are three elements to that. You will see the overarching finding is that DHS' response to Daniel Rogers' injury was inadequate. The relevant parts in relation to that finding are: in subparagraph 4a, that DHS did not immediately investigate the cause of the bruising identified on 22 February 2019, with the DHS staff supporting Mr Rogers, so that was focused on the immediate staff support; second, the finding did not seek expert medical opinion as to the likely or possible timing or cause of the bruising; and, third, it is not clear what the effect of this delay in investigation and escalation had on the prospects of identifying the cause of Daniel Rogers' injuries.
In its submission, South Australia invites the Royal Commission to find it did investigate the cause of bruising at an appropriate time, making appropriate use of earlier investigations that had been conducted by the South Australian Police. In addition, South Australia disputes Finding 4a and Finding 4c, concerning delay, on
the basis we had not expressly put to any witnesses the issue of delay.
South Australia submits that the Riskman reports about the bruising made in the days prior to Daniel's hospital admission should be understood in the context of general experience with bruising. It suggested that general experience with bruising is that it worsens over time following an initial trauma. That is at paragraph 45 of South Australia's submission. The source of this so called general experience with bruising is not made clear, particularly a general experience of bruising of such severity it and the location of the bruises on Daniel's body.
South Australia refers to Mr Cunningham's evidence that he believed the bruising started off small and seemed to have grown. That is at paragraph 45. May we say that this contention is not consistent with the evidence. You will recall there was also evidence of observations made at Daniel's day program, Windermere Park, and staff at Windermere Park observed that the bruising on Daniel Rogers was in existence on 18 February but it did not report the bruising. So there seems to be an inconsistency about this sense that the bruising started off small and seems to have grown.
Overall, South Australia's submissions about the early Riskman reports about the bruising failed to address the inconsistency and, frankly, inadequacy in those reports. First, the bruising was noticed on 18 February and staff made a report in Riskman. That bruising was described or rated as insignificant. This was later accepted as an inaccurate characterisation.
The relevant Riskman report was not reviewed by Mr Cunningham until 20 February. He did not inspect himself the bruises, to assess whether the report accurately described the bruising as insignificant.
As I have noted, Windermere Park also noted bruising on Daniel's body on 18 February but it did not describe the bruising in any particular way to suggest that it was minor or insignificant. Mrs Rogers pointed out in her submissions, and she notes this at the time, that the bruise was then of a substantial size, and there was the suggestion that there was a substance, that it may have been painted over.
On 21 February 2019, the further Riskman report was that the bruising was of a medium size on the right bottom and the colour was pink. But it was still described as insignificant and, again, that was inaccurate. When the report was made of a major incident, the major incident was a report of the fact that Daniel had an admission to hospital but not of the injury itself.
It is difficult, in our respectful submission, to accept the South Australian contention that the bruise had begun as small somewhat, or if the implication is "small" being insignificant, and progressed to a size where it was significant. That contention fails to address that clearly, even if small, the reporting on 18 February through to 21 February was inadequate and the lack of actual inspection and action in relation to the bruising has not been explained.
In our respectful submission, South Australia should not be able to rely on its own inaccurate records to suggest a conclusion about how the bruising presented or what its cause might be. In fact, that is precisely the point we seek to make in our submissions: the inaccurate records have been an impediment to identifying both the cause and the nature and the extent of the bruising.
Contrary to the submissions made in the written submissions, we submit you can rely on Ms Boswell's evidence. She plainly accepted that the reporting was completely inadequate for the size and scale of what was happening with Daniel's bruising. That is at transcript 161, lines 39 40.
Commissioners, I think that probably deals with Finding 4. I turn to Findings 5 and 6, and I will complete those matters and then suggest we have a break for morning tea.
I turn to Findings 5 and 6. I will deal with these two together, I think.
Finding 5 is that Daniel Rogers experienced neglect when he resided at N Street. His personal hygiene, his grooming, a lack of care about his clothing, his choices about his purchases, the poor state of cleanliness and maintenance at the home, all reflect an absence of a person centred approach.
Finding 6 is that DHS failed to ensure its services and accommodation provided to Daniel Rogers was provided in a manner consistent with the provision of an adequate standard of living, and amounts to neglect.
You will recall Mrs Rogers' evidence that she often felt she had cause to complain about Daniel's care and that she decided she had to pick her battles. She herself is a disability advocate and understands well the systems supporting her son. Her evidence was that in the period following late 2016, through 2017 and beyond, she felt things were deteriorating.
At the hearing, South Australia's witnesses gave frank evidence that parts of Mrs Rogers' experience and Daniel's treatment have been unacceptable. For example, Ms Kirkby spoke about how she was concerned that Mrs Rogers felt she did have to pick her battles and she appropriately said:
Why is that? And what does that say about our culture and what we need to do about it?
That was an important observation and one, may we say with respect, of great insight. Likewise, Ms Boswell expressed her concern about the way Mrs Rogers felt.
When Mr Cunningham gave evidence about these matters in terms of clothing, the purchases, the medication and the like, he said the failure to pack Daniel's proper clothes and medication for the holiday in Melbourne was unacceptable and that he
told staff they had to take responsibility for their actions.
Likewise, when he was asked about the purchase of the bed linen, and you will remember the evidence concerning the purchase of the quilt, that was done without any reference to Mrs Rogers or Daniel. Mr Cunningham expressed his concerns. He said he was concerned the family had been lied to and he said he expected clients to be involved in decision making around their purchases.
The South Australian witnesses had no difficulty in frankly addressing the concerns that the conditions in which Daniel lived involved a degree of neglect. For example, Ms Kirkby was asked if N Street had "an air of neglect" and she said absolutely. That is transcript page 172 at line 33. Commissioner Bennett, you asked Mr Cunningham why no one else saw the "general air of neglect", and Mr Cunningham said that, in his view, it was acknowledged and attempts made.
In its submissions at paragraph 59, South Australia accepts that the standard of personal hygiene and grooming, and cleanliness of N Street, provided for Daniel was at times unacceptable. It also accepts that on one or more occasions, insufficient care was taken in relation to his clothing. In respect of the choices about his purchases, only one instance is identified in the evidence. We accept that.
However, at paragraph 60, South Australia contends that while the standard fell short of what DHS aimed to meet, it submits, Commissioners, you cannot make a finding that the shortfall in standards amounts to neglect, as defined by the Royal Commission itself. The Royal Commission defines neglect in this way:
Neglect includes physical and emotional neglect, passive neglect and wilful deprivation. Neglect can be a single significant incident or a systemic issue that involves depriving a person with a disability of the basic necessities of life such as food, drink, shelter, access, mobility, clothing, education, medical care and treatment.
Mrs Rogers says in her written submission that it was from Daniel not being cleaned when he had used his bowels, from not having his teeth cleaned properly, that he was also regularly in other people's clothing, and clothing which required ironing was never ironed. I think Mrs Rogers captures this very well.
In our respectful submission, to suggest the finding of neglect is not open suggests that, with respect, South Australia is taking a very legalistic and narrow approach to what constitutes neglect.
At the core of our submission is that South Australia failed to adopt a person centred approach which considers the significance of a person being unable to participate in the community, unable to articulate his needs and the consequence being that he is left in a state where he is not clean or not appropriately dressed. A service that treats residents interchangeably, so it doesn't matter whose quilt it is, it doesn't matter who wears whose clothes or somebody else's clothes, is indicative of neglect, in our
submission. Being clean and being well cared for is a fundamental aspect of all of our lives and it is something a person with disability, living in accommodation services, who is not able, perhaps, to attend to these matters for himself, ought reasonably to expect.
Being repeatedly inappropriately dressed or poorly groomed reflects a failure to afford essential care and dignity. Dignity of human beings is a dignity to be treated as a human, not to be cast aside. In our respectful submission, Findings 5 and 6 are available on the evidence.
I do not want to go into detail on the financial arrangements but, Commissioners, you will recall there was evidence about the financial arrangements at the hearing. We have not sought a specific finding in relation to the circumstances around the management of Daniel Rogers' money and the way in which that money was accounted for. But we do acknowledge South Australia's submission, particularly at paragraphs 62 and 64, where they seek to address and make certain acknowledgements in relation to financial matters.
Commissioners, the next topic I want to deal with shortly in relation to Daniel Rogers' case study is matters raised by the Commonwealth after Daniel left N Street and returned to live with his parents. It may be an appropriate time to adjourn now and then I can complete those submissions and the balance of the matters I need to address.
CHAIR: Yes. Thank you very much, Ms Eastman. It is now nearly 11.20. We will resume at 11.35.
CHAIR: Yes, Ms Eastman.
MS EASTMAN: Thank you, Commissioners. I want to say something briefly about Daniel Rogers' and Mrs Rogers' experience after he left N Street. The evidence is that he returned to live with his parents and he becomes an NDIS participant.
Mrs Rogers gave evidence about what might be perhaps politely described as some challenging aspects of engaging with the NDIA. She gave evidence that she gave up her work to support Daniel. She said the experience of navigating the NDIS was like proving that Daniel had a disability all over again.
We have not sought any specific findings in relation to this aspect of Mrs Rogers' evidence. But the Australian government in its submissions at paragraph 9,
representing the NDIA, acknowledges Mrs Rogers' evidence, acknowledges the NDIS can be difficult to navigate at times, and the NDIA also expresses its regret for the delay Mrs Rogers and Daniel experienced while it conducted Daniel Rogers' planned review. We acknowledge that concession by the Australian government.
The government also goes on at paragraphs 10 and 11 to refer to the independent review of the NDIS Act conducted by Mr David Tune, the Tune Review. It notes that it identifies opportunities to make the NDIS process simpler and more straightforward. For today's purpose and for the purpose of this public hearing, we do not propose to engage in those steps taken by the Australian government. But, Commissioners, the extent to which the Tune Review identified opportunities to make the NDIS processes simpler or more straightforward are matters that will inform your ongoing work.
The next finding we propose, Finding 7, brings together some systemic issues we thought the Commissioners could consider arising out of both Mitchell and Daniel Rogers' case study. Finding 7 is that there has been no personal or institutional accountability with respect to the treatment of Mitchell or Daniel Rogers. The individuals and their families have no closure on these significant impacts on their family members and themselves.
A critical issue here is about accountability. Commissioners, accountability does not necessarily mean blame, it does not mean punishment. But what it does mean is the importance of being accountable where an organisation or a person has responsibility, or a person or an organisation has committed to providing services at a particular level or standard. Accountability is acknowledging if there has been a shortfall or a failure or, indeed, a significant deficiency in the delivery of those services, that a person takes responsibility. That is what we mean by accountability.
DHS, in paragraph 67 of its submissions, acknowledges there were deficiencies in its handling of the incidents involving Mitchell and Daniel Rogers. It refers again to having made significant improvements in the culture and practice relating to service delivery, incident reporting and communications with clients and families. It points to evidence before the Royal Commission which, despite its failings, demonstrate the DHS and its employees assume both responsibility and accountability for the incidents that occurred for both Mitchell and Daniel Rogers. These are set out in detail in paragraph 68 of the submissions.
We make this respectful submission: while DHS concedes deficiencies in the handling of these matters, it resists a finding with respect to full and true accountability. We submit the finding as proposed in Finding 7 remains open for the following reasons. Firstly, the immediate response to Mitchell's safety was marred by a failure to take a step to identify and hold accountable the person who authored the letter. This illustrates a lack of accountability and it is at the core of our submissions.
Secondly, there is perhaps a strange disconformity in this aspect of South Australia's
submissions. In the face of clear failings, such as the failure of DHS to communicate with Victoria and James after the few months following the 3 March letter, this communication failure was not explained. Indeed, James and Victoria learnt that the Department had not investigated the letter via the intervention of the Principal Community Visitor and the Community Visitor Scheme, not through the Department.
DHS accept that James and Victoria suffered significant distress because of the events occurring around the 3 March letter and they accept there was a loss of trust and confidence. Then at paragraph 29, DHS accepts the breakdown in communication exacerbated concerns about Mitchell's care.
The failures are not disputed, nor is it disputed, as I said earlier, that no one has identified the author of the 3 March letter. So any suggestion that there has been adequate accountability should not be accepted, in our respectful submission.
CHAIR: Ms Eastman, the proposed adverse finding is in these terms:
There has been no personal or institutional accountability
I think you said then no "adequate" personal or institutional accountability. Is that the way you now put the finding you seek?
MS EASTMAN: Yes. If it needs to be qualified from an absolute no to perhaps adequacy, then, Commissioners, we are prepared to accept that modification to our proposed finding.
Finding 8 is the final finding. This finding proposes that DHS failed to create an environment where Mitchell and Daniel Rogers were safe and well supported, and that DHS' policies were not followed and the failure to implement the policies and procedures in a person centred way at times resulted in, and then there are a number of dot points. Three dot points are identified there.
At paragraph 69, South Australia concedes that the case studies highlighted a number of instances in which DHS failed to create an environment where Mitchell and Daniel were well supported, and they accept that finding is available. South Australia submit that the evidence before the Royal Commission, however, does not permit a finding that Mitchell or Daniel Rogers were unsafe in DHS accommodation and that during the course of PH14 in June, we did not examine the degree to which Mitchell and/or Daniel were supported more generally. South Australia submits that because the case studies focused on specific incidents where Daniel or Mitchell were not well supported, as they ought to have been, we cannot then make that broader general finding.
We accept that, obviously, the focus of the case study were on particular incidents and events, but we do submit that if one looks at those case studies and draws the systemic issues of concern, then we do submit the finding remains open. We submit
the contention made by South Australia here is a distinction made without a difference.
I will take you to the evidence of Ms Boswell. I put to Ms Boswell at the hearing this:
You would accept, wouldn't you, that things such as making observations about how a person presents, how they smell, their grooming, those sorts of things where you've got to get a set of eyes that might assist in identifying risk to somebody's safety and wellbeing, would you agree with that?
She said that she did. That is really at the core of it.
CHAIR: Do you have the reference, please?
MS EASTMAN: At transcript 373, lines 10 to 15. That is the essence of it.
While we did focus on acute and critical events, you also had that sense from the evidence of the families that in the lead up to what might be called the acute or crisis issues, there was a sense of concern, a sense of deterioration, as Mrs Rogers described it, in Daniel's overall wellbeing.
Commissioners, you also got a sense of it with the evidence around the audit reports that looked at the accommodation and questioned the accommodation. In our respectful submission, Finding 8 remains open to you.
CHAIR: It has never been suggested, as I understand it, that there was neglect over a period of two decades. The evidence related to certain periods and that, I take it is, is the focus of the submission?
MS EASTMAN: Yes, it is.
Commissioners, I will move to part 2 of the hearing. As I said, the Royal Commission was not investigating the cause of Ms Smith's death at this public hearing and we were very mindful of the ongoing criminal investigation and other investigations.
We raised the circumstances of Ms Smith's death because her death shocked the community. Her death and her circumstances have continued to resonate with the community.
It is not only this Royal Commission. Following her death, a number of investigations and inquiries and reviews were set in train. Specifically, this included investigations by the South Australian Police, the South Australian Coroner and also SafeWork South Australia.
At this public hearing we examined two reports. Chair, you mentioned these earlier
this morning. The first is the South Australian Safeguarding Task Force and it produced interim, final and supplementary reports.
The second was the independent review of the adequacy of the regulation of supports and services provided to Ann Marie Smith, an NDIS participant. That was a report commissioned by the NDIS Quality and Safeguards Commission. It was conducted by a former judge of the Federal Court, Mr Robertson. We refer to the report as the Robertson Report in our submissions.
Commissioners, as we mention in our opening address, your Terms of Reference require you to have regard to the findings and recommendations of previous relevant reports and inquiries. These two reports are materially relevant to the work of the Royal Commission. Accordingly, Public Hearing 14 sought to make inquiries and to understand the responses of relevant agencies, such as the Department of Human Services in South Australia, the NDIA and the NDIS Commission, and how it had sought to address the recommendations made in the two reports. In this respect, we say the approach taken at the public hearing was consistent with the terms of reference.
The South Australian Safeguarding report came about on 21 May 2020, when the Minister for Human Services in South Australia established the Safeguarding Task Force. The responsibility of the Task Force was to:
Examine the current gaps in oversight and safeguarding for people living with disability in South Australia.
The Safeguarding Task Force published an interim and final report on 5 June and 31 July, respectively. The supplementary report was provided on 28 September 2020. The totality of that work identified 14 safeguarding gaps and seven recommendations were made to address those gaps. Those recommendations were directed to the NDIA, the NDIS Commission and the State Government of South Australia.
The Robertson Report came about as a result of the NDIS Commission engaging Mr Robertson on or around 26 May last year. Mr Robertson was asked to conduct an independent review of the adequacy of the regulation of the supports and services provided to Ms Smith. He was asked to identify and describe the nature and levels of support provided to Ms Smith as a person with disability and to consider mechanisms that might have guarded against Ms Smith's particular vulnerability, recognising that Ms Smith had been living in relative isolation since around 2009.
On 31 August last year, Mr Robertson provided the NDIS Commission with two reports, a complete and unredacted version and a version that could be made public which included various redactions. The version we relied on was the redacted version and the one that was publicly available.
Commissioners, written submissions deal with the issues in some detail but can I just perhaps draw out of our submissions to say that we sought to identify three key
issues arising from the two reports and I want to speak to these issues.
The first key issue that we address was the issue of identifying heightened risk of neglect or abuse. This is dealt with in our submissions at paragraphs 203 to 220. This first key issue seeks to identify what are the circumstances of heightened risk.
You might remember at the hearing a number of witnesses talked about vulnerable participants in the NDIS or about people with disability being vulnerable. We sought to explore that expression and that description of "vulnerable". While the term "vulnerable" has been used and it appears in both reports, we think a better expression is "heightened risk" or "at risk". That is important because it shifts that sense that "vulnerable" is something inherent in the person.
But as Mr Robertson said in his report, being vulnerable or being at risk of harm or neglect is not static. A person with a disability may become vulnerable or may be vulnerable at one point, but cease to be vulnerable. It is also worth saying that being a person with a disability does not by any means make you vulnerable.
I am concerned in this case with a cluster of circumstances which made Ms Smith vulnerable. Language is important and if we use the adjective "vulnerable" to describe a person with disability, we overlook a fundamental matter of importance; that is, having a disability does not make you inherently vulnerable. It is what occurs around you, the people you engage with, the services provided, that can create a situation of vulnerability.
For this reason, we feel it is better to focus not on the inherent qualities of the person but to use language such as "heightened risk" or "at risk".
In relation to identifying circumstances of risk or heightened risk, the Safeguarding report stated that having a process to identify potentially vulnerable participants is key. The Safeguarding report said there should be processes that occur to enable the identification of risk or heightened risk. The Safeguarding report said that the NDIA must develop a methodology to assess the potential vulnerability of participants as part of the planning processes and to put supports in place according to the participant's level of vulnerability.
Mr Robertson found in his report that the NDIS Commission should act to identify earlier, people with disability who are vulnerable to harm or neglect. Every stage of decision making, including corrective regulation, should be alive to factors indicating that a participant may be vulnerable to harm or neglect. Mr Robertson said the NDIA should also act in the planning processing continually.
In its submissions, the Australian government has addressed the first key issue we identify. As I said, we are not seeking any findings in that regard. But in its submissions at paragraph 27, the Australian government says:
To the extent that the Safeguarding Task Force Report or Counsel Assisting is
suggesting that the NDIA does not have a "methodology to assess the potential vulnerability of participants as part of the planning process" and it does not "put supports in place according to the participant's level of vulnerability", the Australian Government does not accept this suggestion.
We cannot speak for the South Australian Task Force and I do not propose to do so. But may I respectfully submit, in response to this contention from the Australian government, that it was not part of our evidence or submission to suggest there was no methodology. Rather, we sought to identify the concerns raised in both reports. It seemed to be clear that the issue was not so much that there was no methodology, but the issue is clearly if there is a methodology in the planning process, is it appropriate, is it adapted to identify risk?
That leads me to the second key issue. Key issue number 2 is that risk embodies risk management, once circumstances of heightened risk are identified. We address this in our written submissions at paragraphs 221 to 248. In summary, the second key issue concerns the appropriate response, once any heightened risk of abuse or neglect has been identified. The two reports consider a number of safeguarding responses for NDIS participants identified as being at heightened risk.
One question was whether a specific person or officer should have overall responsibility for the safety and wellbeing of a person at risk of abuse or neglect. Should there be a person designated with overall responsibility for NDIS participants at heightened risk of harm. In our submission, a major theme of the two reports is that the piecemeal provision of care is not an effective way of managing heightened risk when so identified. Mr Robertson said this in his report:
As it was put to me in submissions, the NDIS has many moving parts with many roles. This complexity may lead to an end point where there is nobody that has a locus of responsibility to make sure things are going well overall for the individual. Because there are so many different players, there is no natural person to contact when things are not going so well.
We certainly adopt Mr Robertson's observations. The Safeguarding report referred to the NDIA's Local Area Co ordinator, the NDIA planner, the Plan Manager and the Support Coordinator. The Safeguarding report made this observation:
As well as this cast of players, there is an array of functions they perform from local area coordination, support connection, support coordination, specialist support coordination, plan management and planning. If that sounds confusing and unnecessarily complex, it is because it is.
The major theme captured from these two reports is perhaps dealt with in Mr Robertson's recommendation. He made this recommendation:
For each vulnerable NDIS participant, there should be a specific person with overall responsibility for that participant's safety and wellbeing. That
individual should be clearly identified by name and ideally introduced in person to the vulnerable NDIS participant. Although not within my Terms of Reference, that individual should be identified in a participant's plan.
In this context, the Australian government in its submissions at paragraphs 13 to 14 refers to our use of the term "shared responsibility" in our Counsel Assisting submissions. It notes that expression "shared responsibility" was not used in either the Safeguarding report or Mr Robertson's report. The government is critical that we provide no explanation or discussion of that term.
Commissioners, you may reject that submission, with respect. The term "shared responsibility" is raised in Counsel Assisting's submissions at paragraph 122 and it was raised in reference to the accounting of funds at N Street. We said in our submissions that at N Street, it appears that no single person had primary or overarching responsibility. Mr Cunningham described it as shared responsibility.
The term was also used in the examination of Mr Hoffman as part of his oral evidence. Mr Hoffman accepted that shared responsibility was one way of putting the approach that the NDIS took to looking at safety. The relevant transcript references appear at pages 252 to 253. I put this to him:
It's the case, isn't it, that your view is that there shouldn't be a single locus of responsibility and your view is consistent with the quality and safeguarding framework that it is different players starting with the participant, share responsibility for promoting safety and wellbeing of a participant and working to reduce risk of abuse, violence, neglect and exploitation and the role of nominees and statutorily appointed guardians is especially significant. That's what you say in paragraph 75?
Mr Hoffman said, "Yes, that's right." Then I asked:
Do we take it by that that it's NDIA's view that looking at safety is a shared responsibility?
Mr Hoffman agreed:
That would be one way of putting it, yes.
At paragraphs 32 to 43, the Australian government in its submissions address the second key issue. The government acknowledges that the matter of whether there should be a person with overall responsibility for NDIS participants who are at heightened risk of violence, abuse, neglect and exploitation may be considered as part of the NDIS review. It says the NDIA is currently reviewing support coordination service models to consider how it could be improved to better support participant outcomes. It says it has reform initiatives, and we will explicate the important role of support coordinators, amongst others, in the context of participant safety.
Again, Commissioners, in our respectful submission, it is right not to make any findings in relation to the second key issue. But we do note the Royal Commission will need to continue to examine these issues, including matters that are the subject of current review by the NDIS.
In this context, we also looked at the issue of conflict of interest. One of the elements was whether there was a conflict of interest where the provider of support coordination is also the same provider that provides core supports.
The Safeguarding report found that any support coordinator who is employed by an agency that also provides other services for that participant is not an independent pair of eyes and is, therefore, a conflict of interest. So the Safeguarding report further found that to not separate the roles invites conflicts of interests and, in the wrong hands, the participant is captured.
At paragraph 42 of its submissions, the Australian government says on the issue of conflict of interest and support coordination, that it acknowledges there is potential for a conflict of interest in certain circumstances. It also acknowledges that this is an issue that should be kept under consideration.
The Commonwealth also refers to some material identified by Ms Gale at paragraph 43 of its submissions. I note that in passing, Commissioners, without requiring you to address that for the purpose of today.
Finally, the third key issue is concerned with information sharing. We address this in our written submissions at paragraphs 249 to 266. The question here relates to information sharing between the State of South Australia, the NDIA and the NDIS Commission.
In summary, Mr Robertson recommended greater levels of information sharing between the various entities at a number of levels. The Safeguarding report also referred to gaps in information sharing as part of its inquiry and recommendations.
At paragraph 44 of its submissions, the Australian government acknowledges Counsel Assisting's assessment of the evidence in relation to the third key issue and welcomes the conclusion that:
.... "the evidence suggests that South Australia, the NDIA and the NDIS Commission have taken steps to increase information sharing and the process is ongoing.
In that regard, we also note the Australian government refers to a National Disability Insurance Scheme Amendment (Improving Supports for At Risk Participants) Bill 2021. The Bill was introduced on 3 June 2021. It largely relates to information sharing arrangements that have the effect of implementing Mr Robertson's recommendations numbered 1, 5, 7, 8 and 9 of his review.
Commissioners, you do not need to make any findings with respect to this step, but to watch the progress of the Bill and then the extent to which the matters in the proposed amendments to the NDIA Act address those concerns.
CHAIR: I assume, Ms Eastman, the Bill is not yet passed?
MS EASTMAN: I don't think it has but I can double check if there have been any developments in recent times. But Parliament is not presently sitting.
CHAIR: Thank you.
MS EASTMAN: Finally, I refer Commissioners to paragraph 321 of our submissions, where we identify matters that could be the subject of further consideration or inquiry by the Royal Commission in its ongoing work in relation to disability service providers.
I won't read them all out but, essentially, it is looking at the role of the NDIS Commission and other external regulators in oversight. Secondly, the development of a National Community Visitor Scheme. Thirdly, model policies and procedures for effective and appropriate complaint systems that are person centred and trauma informed. The extent to which people with disability who have high support needs have appropriate choice and control over where they live, with whom they live and that they are not left vulnerable to violence, abuse and the risk of homelessness.
Then, finally, the risks and whether there is an inherent conflict of interest where a participant receives support coordination from an NDIS provider that also provides core NDIS supports to the participant. I accept the comments made by the Australian government that we should also add in there the words "including accommodation".
We note the Australian government, at paragraph 55, has said it welcomes the opportunity to provide further input to the Royal Commission in relation to these matters. There is some discussion about the extent to which we may have anticipated the development of a Community Visitor Scheme. Our submissions were based on Mr Head's statement and his evidence, but we acknowledge paragraphs 57 to 59 of the Australian government's submissions that there is work to be done in relation to whether there is a National Community Visitor Scheme.
Commissioners, unless there is any further questions, those are our submissions.
CHAIR: Thank you, Ms Eastman. I will inquire of my colleagues whether they have any questions. First, Commissioner Bennett, do you have any questions to put to Ms Eastman?
COMMISSIONER BENNETT: No, I don't, Chair.
CHAIR: Thank you. Commissioner McEwin?
COMMISSIONER McEWIN: No, thank you.
CHAIR: Thank you, Ms Eastman.
MS EASTMAN: Can I say, Chair, I think Karen Rogers is participating today. She was not represented at the hearing and she would like an opportunity to make a short statement to you which you could receive as a submission.
CHAIR: Yes. Formally speaking, I think it is necessary to give Ms Rogers leave to do that and that should be done. So Ms Rogers will have leave to make a statement. The basis for making that statement, I should make clear, is these will be submissions. They are not regarded as part of the evidence at the hearing.
Can we bring Ms Rogers up on the screen? Good morning, Ms Rogers. Oh, good afternoon, I'm sorry.
MS ROGERS: It's morning in South Australia, so that's fine.
CHAIR: Yes, but that doesn't count; it's here that is important.
MS ROGERS: (Laughs).
CHAIR: Whichever it is, thank you very much for coming to the Commission and thank you for the written comments you have provided. Each of the Commissioners has a copy of the written comments you provided.
I should make it clear, so you know where we all are, Commissioner Bennett is joining the hearing from Canberra, Commissioner McEwin is participating in the hearing from Sydney, as am I, but Commissioner McEwin and I happen to be in different rooms.
If you would care to make the statement that you intend to make, please do that now. As I have explained, that will be regarded as a submission and, as with all other submissions, it is not part of the evidence in the case.
SUBMISSIONS BY MS ROGERS
MS ROGERS: Okay. Thank you, and thank you for the opportunity.
To say that I was pleased when the Disability Royal Commission was announced would be a major understatement. I wanted people to know about what was happening here in Australia. When I wrote to the Royal Commission in 2019 and subsequently testified at Public Hearing 14 in Adelaide in June this year, my main intentions were to bring public attention to what is happening to people living with
disability, and to have such an impact that changes would be made to improve the way they were treated by society and, very importantly, by the people paid to support them.
I believe that most people are unaware that even today in 2021, people with disability are still subject to violence, abuse, neglect and exploitation on a daily basis. After testifying at the Royal Commission, I heard testimony of others, people I had trusted and put my faith in to support my beautiful son. These people failed. They failed in their duty of care to Daniel, they failed to honestly report situations, they failed to provide a safe environment for Daniel and they failed to include Daniel in the very basic spending of his own money. Yes, only one incident was actually given as evidence but I can assure you there were many, many, many more instances of Daniel's money being spent without his knowledge. And they failed to address situations brought to their attention.
This was evident by the fact that the situation of Daniel's hygiene was brought to the attention of the Department of Human Services manager almost weekly, despite him denying that when he was testifying. After hearing testimony from the Department of Human Services auditor Tony Allwood at the Royal Commission, I was devastated. The very people who I had trusted and relied upon knew that the men at N Street were being neglected and they did not act.
I would like to briefly talk about the incident of severe bruising of Daniel which occurred in February 2019. After hearing testimony about the serious inadequacies in reporting of the injuries, I had difficulty in controlling my emotions. I had seen the photographs from Daniel's day options from earlier in the week, showing bruising extending right across one side of Daniel's back. How someone can report this as insignificant causes me to question what is being covered up.
The fact that there was testimony that the Department of Human Services staff had spoken to Daniel about this caused me great concern. Very few staff there actually knew how to communicate effectively with Daniel. However, I do. Had they at any stage wanted to question Daniel, which I do not believe they did, they should have included me, so I could ask Daniel questions in a way he could understand and respond.
Also, I would ask when this questioning occurred, as we brought Daniel home immediately after notifying management of the injuries. I was horrified to hear the manager report that there was bullying towards the staff member who reported the bruising to me some four days after it had been observed. The manager himself was in fact the person who told me that the shift supervisor asked a support worker in very graphic terms if he was having an affair with me and that's why he kept talking to me about this.
I was upset to read the statement that Daniel had been reimbursed for the comforter, the very expensive quilt purchased with Daniel's money without his involvement, the quilt that disappeared. Daniel was never reimbursed for that quilt and the quilt was
never found. There are so many inconsistencies and untruths that I have read and heard, I could go on for hours. However, that would not be helpful.
I may sound emotional but I make no apology for that, I am emotional. This is my son. This is my beautiful, innocent and defenceless son. And yes, I will say it because I believe it absolutely is the truth, he is my vulnerable son. The guilt I felt when Daniel went into care has been compounded because I allowed this to happen. I had known for some time Daniel was unhappy, returning to N Street after his weekly trips home, but I didn't act.
Since Daniel has come home and lives in a safe and caring environment, he has blossomed. He is talking more, he is exemplarily clean so he no longer smells all the time and he has regular dental hygiene visits, so he no longer has bad breath.
Daniel still has some signs of trauma. He still becomes agitated when we go near N Street and he will hit himself in the head and he cries out, "Don't want it". We still engage the assistance of a psychologist in addressing the issues as they arise. This is covered by Daniel's NDIS package.
We, as a family, will continue to provide care for Daniel. We specifically handpick support workers who work with him and we watch them closely, because trust is a major issue. I won't lie, it's not easy. Daniel is regularly awake at night and he is often very noisy during the night. He is often incontinent at night and this sometimes necessitates up to three full loads of washing just of bedding in the morning.
There are appointments with a psychologist, occupational therapist, a podiatrist, a support co ordinator, a developmental educator, an exercise physiologist, the specialist dental clinic, medical appointments and NDIA to co ordinate. Last year we also co ordinated an appeal against the NDIS, an appeal we won, but it took many hours and it was at great emotional and financial expense.
Daniel now has an individualised day program targeted at the development of his ability and skill, and it increases his community networks. I have developed and I co ordinate this program and I oversee the support of the three workers working with Daniel. I step in if staff are unavailable, so his program can continue.
All of these things take time and, as Ms Eastman said, I have given up work to ensure that Daniel has a good life. Daniel will continue to live in the family home until the day he leaves this earth. When my husband and I are no longer here, his siblings will oversee his support.
I thank the Royal Commission for digging into Daniel's situation and extracting information that, although it has been difficult to hear, has answered many questions for us, Daniel's family.
This is not the end of Daniel's story. He will continue to blossom in his loving environment, but we need to ensure that the Daniels of Australia, without family
involvement, are not forgotten. There must be a way that support can be monitored and I will continue to implore that the recommendations of the Royal Commission will be listened to and acted on. Thank you for your time.
CHAIR: Thank you very much, Ms Rogers. Thank you again for giving evidence at the hearing in June and thank you for your statement that you've just given. Thank you so much.
Mr O'Brien, I think the timetable, as I understand it, provides for you to make some submissions on behalf of Victoria and James now.
SUBMISSION BY MR O'BRIEN
MR O'BRIEN: Thank you, Chair. Commissioners, as has been acknowledged already in submissions and in the overview by the Chair this morning, Victoria and James agree with key things and findings in Counsel Assisting's submissions. They wholeheartedly agree with submissions Counsel Assisting has submitted upon. They also agree and commend all the adverse findings as proposed by Counsel Assisting to the Royal Commission.
Victoria and James do urge the Royal Commission to consider two additional adverse findings against the Department. Victoria and James say that there can be no doubt that, one, the DHS investigations into the letter were seriously flawed for the matters set out by Counsel Assisting. And, two, the failure to properly investigate and the manner in which the investigation took place demonstrate a lack of appropriate concern for the welfare of those people in DHS care.
The first available finding arises and follows the evidence related to the clear instructions from the Director of DHS to the first investigator in relation to the letter, to not follow up on establishing who the author of the 3 March letter was. And this is set out in paragraph 81 of Counsel Assisting's submissions.
Counsel Assisting therein writes:
Concerns over the scope of the first investigation are exacerbated by a diary note located by Mr Allwood
You will remember he was the auditor that looked at these investigations in 2021
The diary note was in the IMU investigation diary and was apparently made by a person who reviewed the investigation of the file of the first investigation. The diary note states: Clear instructions were given to the investigator, at the time from the Director, not to follow up on establishing who the author was.
And that diary note was exhibited in the proceedings at exhibit 14 105.
CHAIR: Mr O'Brien, is there a date for that diary note? It's not referred to, I don't think, in Counsel Assisting's submissions.
MR O'BRIEN: The date of the diary note is a date in 2021.
CHAIR: No, I understand that. There is no more precise date?
MR O'BRIEN: I will have the exhibit found and come back to you, Commissioner.
CHAIR: Thank you.
MR O'BRIEN: The evidence, we say, clearly suggests that it was very likely, very likely that, one, the author of the 3 March letter was an employee of DHS. Two, a person who at some stage had worked with Mitchell. Three, and therefore probably was working or had worked or was going to work into the future with other residents or people in the care of DHS.
We say therefore that this direction, this clear instruction to the investigator by the Director of DHS at the time represented a very serious failure and a dereliction of responsibilities of the Department. During the hearing Mr Allwood, that auditor who examined the investigation, was examined by Counsel Assisting and then Ms Bennett. We've set out in our submissions at paragraph 16, Commissioners, the exchange relevant to this investigation diary.
It was squarely put, we say, that it was a serious dereliction of duty and it was fairly put by Ms Bennett that the letter represented a grave departure from what should have been the primary focus of the first investigation. There can be no doubt that identifying the letter of the author of the 3 March letter should at all times, but particularly in the early stages, have been the first and foremost priority for DHS.
And this direction by the Director at the time not to follow that up represented a significant departure from the duty of care that DHS had for the safety and wellbeing of the people who live and are cared for by their services. And for that reason we say that it is open for the Commission to make this additional adverse finding against the Department.
The instructions from the Director of DHS to the investigator in the first investigation to not follow up on establishing the identity of the 3 March letter represented a dereliction of its responsibilities to the safety and welfare of those in DHS' care.
In paragraphs 18 through to 23, Commissioners, we set out a second available adverse finding against the Department. And that is that DHS wrongly and inappropriately blamed James for their failure to properly investigate the identity of the author of the 3 March letter. And this additional finding arises from the evidence related to manner in which DHS attempted to blame James for the flawed scope in all
three investigations into the 3 March letter.
In response to Counsel Assisting's line of inquiry regarding the unknown author of the 3 March letter, Mr Allwood highlighted the suggestion of this blame against James in the transcript at page 198. At line 35, Mr Allwood said:
The then director of the incident management unit had met with James and at that meeting James had indicated, according to the notes by the then Director, James indicated he was not concerned about the letter or identifying who sent the letter.
As that evidence demonstrates, DHS suggest that James did not want to know the identity of the author and, in turn, they say this shaped the manner and scope of the investigations, series of investigations indeed by DHS into the 3 March letter. In effect, DHS blamed James for the failure to properly identify the author and this represented, in our submission, a serious example of blaming the victim.
The suggestion that James did not want the author identified is entirely wrong. At paragraph 51 of his statement tendered in the proceedings and exhibited, he said:
In relation to the letter the Director of IMU expressed the view that the letter was intended to cause distress to our family. He said the Department would investigate the author of the letter but due to privacy and confidentiality we would have no knowledge of their internal investigation. I recall saying to the Director of IMU words to the effect, 'We don't need to know who it is, as long as the Department knows who it is'. I left the meeting believing that although we would not be given details of the identity of the author, we would be informed officially of the outcome of the investigations.
James was also asked by Counsel Assisting about his interest in not pursuing the author of the letter. He said in answer to those questions that it was 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. And that, Commissioners, is at page 45 from line 30 to 45 of the transcript.
Counsel Assisting put the issue of DHS' habit of blaming James squarely to Mr Allwood as well and that exchange is set out in our submissions at paragraph 23. So this adverse finding, we say Commissioners, was squarely put to the Department through that examination, a portion of which is set out at paragraph 23 of our submissions.
Can I address you, Commissioners, very briefly please on some of the issues raised by the Department. The Department have contended that it took the investigation of the letter seriously. Victoria and James agree with the observations and submissions of Counsel Assisting regarding it not being taken seriously enough.
And it certainly was not taken seriously from the perspective of Victoria and James.
If I can take you back, Commissioners, to their statements prepared with a reflection of their thoughts at the time, Victoria at paragraph 59 of her statement which was exhibited at 1427 said:
Despite the implementation of the interim measures in the following days, James and I did not feel comfortable with how the Department was responding. We felt there was a lack of timeliness in the actions being taken by the Department. It also did not appear that the matter had been escalated to the senior executives. We questioned why the Chief Executive or other senior representatives were not involved. No one at the department appeared to be concerned. The matter was left to be managed at a local level.
And also James' observations as to what was happening at that time in relation to the Department's investigation. James reflected and said at paragraph 43 of his statement, exhibited at 1428:
I did not feel confident in the approach being taken by the Department as it was an extraordinary event which I felt was being met without the necessary urgency.
As Counsel Assisting observed in her submissions earlier today, Victoria and James found out about there having been no investigation into the author of the letter from the South Australian community visitor. And the South Australian community visitor also expressed serious reservations about the very poor and inadequate nature of the investigation at the time.
The community visitor, Mr Corcoran AM wrote to James and Victoria later in the year on 23 October 2018 and the email between Victoria and James and the community visitor is tendered in exhibit 1452. And it's worthwhile quoting, Commissioners, what the community visitor had to say. He said in this email:
I've met with the Director of IMU and have confirmed that his unit did not investigate nor interview staff regarding the threatening letter. So I remain concerned that this was never properly investigated by either the police nor the FAIR team and I've stated this in my annual report.
Mr Corcoran goes on to say:
The Director of IMU had the view that the primary concern was to make sure Mitchell was safe and to ensure that he had close monitoring and support which was confident, that the local management had organised that very senior departmental staff were kept informed of this, to prioritise and ensure the safeguards were in place. He, that is the Director of IMU, was of the view that he thought the letter was aimed at driving a wedge between management and yourselves
That is Victoria and James
And that he didn't think the letter writer would actually carry out the threats to Mitchell.
Mr Corcoran says:
For me personally as a social worker for 30 years, I felt the letter was extremely concerning and disturbing and in that a lot of thought and consideration had gone into it. By this I mean they had obviously considered a range of ways they could inflict harm on Mitchell. But then to hand deliver it to your letter box demonstrated to me they were willing to take risks and had information about where you lived. It was on an unusual paper should have been checked for fingerprints and forensically checked for other information such as how or what sort of paper was used. Staff should also have been made aware of the letter and the threats made in it and individually asked whether they knew anything about it, who wrote it and who delivered it.
Commissioners, the community visitors' view is completely in line with that of James and Victoria's and the submission advanced by the Department that it took the letter seriously or seriously enough by the State cannot be supported. It also didn't constitute a critical incident, we learnt through the course of the hearing. But there can be no doubt that the 3 March letter did constitute, as a threat as menacing as it was, a critical incident.
At the time of the receipt of the letter on 3 March 2018, according to the evidence of Ms Boswell, this is at transcript 391, line 20, a critical incident only referred to incidents involving specific injuries to residents within DHS. It is inexplicable why a critical incident would not have included a malicious threat to the safety of a resident in DHS' care in 2018.
This most certainly contributed to the ad hoc and lackadaisical approach that DHS took the investigation of the 3 March letter right throughout and further undermines the Department's submissions that they dealt with the letter with the severity or gravity that it required. Commissioners, we have supported an augmented Council Assisting's submissions regarding adverse finding 2 in paragraphs 24 27 of our submissions.
In relation to finding 2 by Counsel Assisting, and this relates to the communication breakdowns between the Department and Victoria and James, the Department contends at paragraph 34 of their submissions that there are past and on ongoing communication initiatives designed to encourage general communication between the Department and families.
Victoria and James note that these are mostly push style communication strategies. That is, one way communication from the Department and in relation to the satisfaction surveys that have been administered, Victoria and James note the absence of any strategic plans to address the deficiencies nor pick up on positive result
s. And there is no publication, as we understand it, of the results of those satisfaction studies at all. In fact the experience of James and Victoria in the Department's satisfaction surveys is that there is no follow up from the Department either.
At paragraph 42 of the State's submissions, the State commends to the Commission the Accommodation Services Quality and Safeguarding Committee and the safeguarding framework. James and Victoria submit that as a matter of logic no matter how many levels of bureaucracy and committees and subcommittees are implemented and no matter what the framework, if they exist in a culture that would avoid the glaringly need obvious need to identify the author of a menacing letter such as that received in 2018, the Department will never enable a proper environment ensuring the safeguard for people with disability in their care. For James and Victoria, deep cultural change is required.
James and Victoria fully supported adverse finding number 7 as outlined by Counsel Assisting in that there has been no personal or institutional care and ability in respect to the treatment of Mitchell. The individual and their families have no closure on these significant impacts and their families themselves. We adopt the submissions made earlier in the day by Counsel Assisting on this point and wish to add only one further point, and this is in relation to the letters of apology referred to by the Department at paragraph 68.6.
At paragraph 102 of Counsel Assisting's submissions, Counsel Assisting sets out a letter that put a full stop to the investigation so far as the Department was concerned into the 3 March letter. They wrote to Victoria and James and the contents of that letter is set out in paragraph 102 of Counsel Assisting's submissions but it's worth having look at in the context of an apology issued only a week or two later. They said in this written correspondence:
I wish to advise that the Department has acted on the recommendations of the Ombudsman and an additional eight witness statements have been obtained. The author of the letter was not identified and I am satisfied no further inquiries can be made. I now consider this matter closed.
That letter was blunt. It demonstrated no insight into the impact that the issues had on Victoria and James and in that context an apology sent, although it wasn't received, but sent on 11 March 2021 and exhibited at 1451, sent by the Department needs to be read in the context of that earlier correspondence. And accountability needs to be measure in light in the context of that correspondence and given the fact that the Department was about to have at that time, March of 2021, the spotlight turned upon it in relation to how it had dealt with this matter by the Royal Commission.
Commissioners, the Chair asked earlier a question of Counsel Assisting about the recommendations. I can indicate, Commissioners, that there has been some developments in relation to the recommendations set out in paragraph 322 of
Counsel Assisting's submissions. The short answer to whether there has been an implementation of those recommendations is not fully, it is a work in progress. There has been an independent investigator who has been given the task of investigating the 3 March letter, that is evident. Victoria and James have not at this stage been invited to, nor approached by the Department nor in the investigation in relation to the Terms of Reference. They have indicated they would be more than prepared to assist the Department in that endeavour. In relation to 322(c), obviously that will flow from
CHAIR: Mr O'Brien, in what you've just said, do you mean Victoria and James have not been approached for the purposes of determining the content of the Terms of Reference. Is that what you meant?
MR O'BRIEN: Correct. They have been told that there will be an investigation. They have not been asked to participate, at this stage, in the formulation of the Terms of Reference. The public release of the investigation report will flow down the track, no doubt. But they haven't been asked about that at this stage. In relation to 322(d), which relates to their wishes in respect to a genuine and meaningful apology and in relation to the issues of redress or additional supports, there has not been any discussion with them in relation to those matters.
They do, however, look forward to be meaningfully consulted and participate in that recommendation should the Department adhere to it and implement it. Commissioners, those are the submissions on behalf of Victoria and James. Thank you.
CHAIR: Thank you very much, Mr O'Brien. I will inquire whether my colleagues have any questions. Commissioner Bennett?
COMMISSIONER BENNETT: No, thank you, Chair.
CHAIR: Commissioner McEwin.
COMMISSIONER McEWIN: No, thank you.
CHAIR: Thank you very much, Mr O'Brien. Thank you. Is it convenient now to adjourn? Can I inquire, please, as to Mr Dighton, how long you are likely to be?
MR DIGHTON: I can indicate at this stage I don't have any oral submissions but would be willing obviously to take any questions from the Commissioners to the extent that assists.
CHAIR: All right. Thank you. Perhaps I could also ask Mr Simpson how long you anticipate you will take in your submissions?
MR SIMPSON: Chair, I expect that I may be 30 to 45 minutes in my oral submissions.
CHAIR: All right. Thank you very much. In that case it's now 12.45 Eastern Standard Time. We will adjourn until 1.45 Eastern Standard Time. Thank you.
RESUMED [1:45 P.M.]
CHAIR: Yes, Ms Eastman?
MS EASTMAN: Thank you, Commissioners. There are two matters. One is a correction to a reference I gave you earlier and, secondly, I'm sorry but I omitted to deal with the recommendations in relation to Daniel Rogers.
Commissioners, I wrongly attributed some words to Ms Lois Boswell when I gave you the reference in relation to the reporting of Daniel Rogers' bruising. I gave you a transcript reference at 161, lines 15 to 40. That should be Mrs Kirkby rather than Ms Boswell.
Commissioners, you might recall that I addressed the recommendations in relation to Mitchell, Victoria and James. There was also a proposed recommendation in our Counsel Assisting submissions in relation to Daniel Rogers. We say there that DHS should: one, provide an apology to Daniel Rogers and his family for its failure to prevent abuse and neglect when Mr Rogers resided at N Street; and, two, discuss what redress and/or additional supports and assistance Daniel Rogers and his family require arising out of the events at N Street.
In her written response, Mrs Rogers noted a recommendation and she said:
Shortly after the hearing in Adelaide, we, the Rogers family, received a letter of apology from Lois Boswell. The letter had the incorrect date of Daniel's injury. It was pointed out to Ms Boswell and she acknowledged in an email that an error was made and she did not reissue the letter.
I wish to bring that to your attention, thank you, Commissioners.
CHAIR: Thank you very much. Mr Dighton, you indicated that you do not wish to make any oral submissions in support of the Australian government's written submissions. Is that still the position?
MR DIGHTON: It is, thank you, Chair.
CHAIR: You also indicated you would take any questions the Commissioners might have. With that in mind, I shall inquire whether Commissioner Bennett has any
questions she wishes to put to you as a representative of the Australian Government?
COMMISSIONER BENNETT: No, I don't, Chair. Thank you.
CHAIR: Commissioner McEwin, do you have any questions you wish to put to Mr Dighton?
COMMISSIONER McEWIN: Yes, Chair. Just one question.
QUESTIONS OF MR DIGHTON BY THE COMMISSION
COMMISSIONER McEWIN: Mr Dighton, in your submission at paragraphs 42 and 43 you acknowledge that the conflict of interest issue is one you will keep considering. Are you able to tell me, will the Commonwealth consider the issue that can arise where a service provider may set up subsidiary companies that then provide multiple services to the one client, such as tenancy support coordination, service and support? Can you tell me if the Commonwealth is considering that as part of your consideration of the broader issue?
MR DIGHTON: I am aware and understand the evidence that has been heard by the Royal Commission about that issue to date and it has come up in relation to instructions. As to the very specific instructions on the very specific question you have asked, I cannot confirm it. I imagine it would be part of that broader discussion that is being had, but I can certainly clarify that and bring that to your attention.
COMMISSIONER McEWIN: Thank you, Mr Dighton. Thank you Chair.
CHAIR: Thank you, Commissioner McEwin.
Mr Dighton, you will recall that Ms Eastman referred to some evidence that did, in fact, reference the use of the expression "shared responsibility". That relates to paragraphs 13 and 14 of your written submissions.
MR DIGHTON: Yes.
CHAIR: Do you accept what Ms Eastman put, namely, this concept did in fact form part of the evidence?
MR DIGHTON: Yes, and it was not, lest it be thought it be a criticism as such, it was more a request for clarification to understand how that term should be understood, given the various forms that it might take and the manner in which it had been used, once it has gone into detail in implementing things like Recommendation 3 from the Robertson Report. So to that extent, yes, the question was asked and the question was answered. To the extent we can then later go into any further detail in any hearings the Commission might want to about how that might work in detail, as
we say in our outline, we are happy to assist.
CHAIR: I rather read paragraphs 13 and 14 as an answer to the quoted extract from Counsel Assisting's submissions. The extract reads:
However the terms of the concerns raised and recommendations made in the two reports suggest that any focus on Ms Smith as a person fell between the gaps of shared responsibility.
May I take it from your answer that the Australian Government is not necessarily resisting that proposition, it is more one of benign neutrality?
MR DIGHTON: Yes, I think benign neutrality is an appropriate expression.
CHAIR: Very good.
MR DIGHTON: May I add this, not as a qualifier but as an extension of it: naturally, as has been said quite properly by Counsel Assisting, the inquiry was not into the terms of the death of Ann Marie Smith itself or the circumstances of it, but the report that came out of it and then the forward looking use of how to implement the recommendations that might fall.
So to the extent there that the question is "What is shared responsibility?", that is where, for example, the exchange with Mr Hoffman becomes relevant and the collateral work that has been done by the Commonwealth Government on these issues at the same time.
CHAIR: Thank you. In your submissions dealing with community visitors, I think you have, in effect, corrected what Counsel Assisting had put and it is quoted in paragraph 18 of your submissions. As I understand it, the thrust of what you have said is that the NDIS Commission has not in fact already taken steps to start the process of establishing an NDIS Community Visitor Scheme but this is something that is to commence later in 2021 as part of a review of the NDIS framework. Is that the point of those paragraphs?
MR DIGHTON: It is. To highlight that, a National Community Visitor Scheme is not within the province of the Commissioner but rather the ministerial council, as Commissioner Head went into in his oral evidence. While that letter triggered the form it might take, it then shifts to the other departments, including DSS, as to how that might look through the framework review.
CHAIR: Why do you say it would not be within the province of the NDIS Commission to establish or fund a community visitor program?
MR DIGHTON: Sorry, it is, but the decision as to the establishment and funding would go through the ministerial counsel, as I understand Commissioner Head's evidence.
MR DIGHTON: I can take those instructions. It is not clear to me from the evidence, but that was the evidence given by Commissioner Head.
CHAIR: Thank you. I think in the submissions, and perhaps this is a not uncommon experience when submissions are put in answer to Counsel Assisting's submissions, but there may be a question of language or terminology. At paragraph 27 of your submissions, you say:
To the extent that the Safeguarding Task Force Report or Counsel Assisting is suggesting that the NDIA does not have a "methodology to assess the vulnerability of participants as part of the planning process", and that it does not "put supports in place according to the participant's level of vulnerability", the Australian Government does not accept this suggestion.
I think it was explained by Ms Eastman that the proposition was not that there is no methodology, the proposition was that the methodology may not be adequate. Is there anything else you wish to say in relation to the approach of the NDIA as to the adequacy of the methodology, or are you content to leave it as it is?
MR DIGHTON: No, I accept learned Counsel Assisting's clarification on that. That then feeds into the remaining points we make in that section. I don't have anything to add.
CHAIR: At paragraph 36, you say the NDIA is currently reviewing the support coordination model to consider how it could be improved to better support participant outcomes. There was, I take it from paragraph 36, a public request by the NDIA for submissions on this issue; is that correct? Has that been done publicly?
MR DIGHTON: That has been done publicly, yes.
CHAIR: The position is that there will be some kind of is it a discussion paper to be released in December 2021 or is it to be a set of recommendations or proposals, or is that as yet unclear?
MR DIGHTON: That is as yet unclear, on my instructions, but I can double check that for you, Commissioner.
CHAIR: That's all right. I am content with you recording what your instructions are for the moment. Can you please tell us what the current position is with the NDIS Amendment (Improving Supports for At Risk Participants) Bill 2021? Is that still working its way through the Parliament?
MR DIGHTON: It is before the Senate.
CHAIR: It has not been passed by the Senate but has been passed by the House?
MR DIGHTON: As I understand it on instructions, yes.
CHAIR: That is something we can easily enough check. Unless there is something else you want to say, they are all the questions I have. Thank you very much for your written submissions and for appearing today. Thank you.
MR DIGHTON: Thank you, Chair.
CHAIR: Can we go now, please, to Mr Simpson representing the State of South Australia. Yes, Mr Simpson?
MR SIMPSON: Thank you, Chair. We were alerted during the break that there may be an issue with our technology, so if there are any issues in understanding us from this end, please don't hesitate to draw that to my attention.
CHAIR: If there are IT problems, we probably won't be able to draw it to your attention, but we will do our best.
MR SIMPSON: Thank you, Chair.
SUBMISSIONS BY MR SIMPSON
MR SIMPSON: Chair, Commissioners, the State welcomes the opportunity to supplement its written submissions at this oral hearing. I do not propose to revisit every submission that is made in the State's written submissions, but to respond to a number of points, in particular, that have come out of Counsel Assisting's submissions from this morning.
The first point relates to proposed adverse Finding 1a. The issue the State takes with the proposed adverse finding is really the assertion that the State or DHS did not take the 3 March letter seriously enough. The State's submissions in relation to that identify the steps that were taken that demonstrate that the State did indeed take the letter seriously.
There is more to taking that letter seriously than just the investigation. We accept that the investigation into the author of the letter is an important part of the response to that letter and the State and DHS acknowledge that that part of the response was not adequate. Steps are now being taken to attempt to remedy that.
But the proposed adverse finding goes beyond the investigation and the fact that that investigation became distracted from identifying the source of the letter. The State's submissions respond to that submission or that proposed adverse finding that goes beyond the scope or the adequacy into the investigation of the author of the letter.
CHAIR: But you are not disputing that there was a failure in the immediate response to the letter to undertake or set in train proper investigations into the author of the letter?
MR SIMPSON: That's correct, Chair, and we do not resist the balance of proposed adverse Finding 1a. The point we take it is with the proposition we did not take the letter seriously enough. We accept the investigation into the author of the letter was not sufficient and not satisfactory, and steps are being taken to address that. But the point we make is the Department did take the letter seriously and it put measures in place to address Mitchell's safety, immediately following advice about the existence of that letter.
CHAIR: It may be a question of what label one puts on the admitted failure. It may be it is not so much a question of whether the letter was taken seriously, it is more likely what was actually done as a response to the letter. There seems to be a degree of common ground that the response did not include something very important that should have been done.
MR SIMPSON: I would agree with that assessment, Chair.
CHAIR: Thank you.
MR SIMPSON: In relation to proposed adverse Finding 1b, the State's contention is that proposed adverse finding is unacceptably broad in its terms. Again, there are proposed adverse findings that deal with and address the adequacy of the investigation to identify the author of the letter. If that is what is contemplated by adverse Finding 1b, then we, the State, submit that adverse Finding 1c(ii) and indeed that which is accepted in adverse Finding 1a, address those shortcomings in the investigation to attempt to identify the author of the letter. But the way in which adverse Finding 1b is framed, it is not confined to those matters which are directed at identifying the author of the letter, which is an accepted shortcoming of the response by the Department to the letter.
CHAIR: That is not the only shortcoming, as I read your submissions, that is accepted. If you go to adverse Finding 1c, you do not dispute, I think, proposed adverse Finding 1c(i) or 1c(iii).
MR SIMPSON: That's correct, Chair.
CHAIR: I am not quite sure what your position is on 1c(ii), that the delay made it less likely that the author of the 3 March letter would ever be identified.
MR SIMPSON: The State's position is this: effectively, we accept that the delay in the investigation to attempt to identify the author of the letter may have affected the likelihood of identifying the author, may have adversely affected the likelihood. The only point we make is there can be no certainty that the author of the letter ever
would have been identified. That is really the only submission we make. We accept that the delay may have made it less likely that the author would have been identified.
CHAIR: I don't think adverse Finding 1c(ii) is in absolute terms. It just says, as you have in effect read out, that the delay made it less likely the author would ever be identified. But, in a sense, that is self evident, isn't it?
MR SIMPSON: Indeed, Chair. The only point we make in response to that submission is that the Commission cannot go further than what is proposed by adverse Finding 1c(ii). That is, in effect, the State's submission.
CHAIR: Thank you.
MR SIMPSON: In response to adverse Finding 1d and Finding 1e, the State accepts there is a reasonable prospect that the author of the letter may have been an employee of the Department. But the point we make is Counsel Assisting's submissions seem to proceed on the basis or the assumption that it is a foregone conclusion the person was necessarily an employee of the Department. The only point we make is that we don't know that, we cannot be sure of that, until the author of the letter is identified.
But we accept that the mere fact there is a real prospect the person was an employee of the Department at some stage means the Department had an obligation to attempt to identify the author of the letter. We accept that, notwithstanding any request the family may have made or otherwise, and that was not undertaken with sufficient rigor in the first and second investigations. Steps are now being undertaken to attempt to address those deficiencies with the further investigation that is being undertaken.
CHAIR: Thank you. I understand that and I am sure my colleagues do as well. Thank you.
MR SIMPSON: In relation to proposed adverse Finding 2, in effect, the State relies on its written submissions in relation to the changes that have been made. But also in relation to how those changes look to the implementation of those policies to go beyond only structural changes but also the implementation to have real effects to the people in the Department's services.
CHAIR: I think that Ms Eastman's proposition in relation to proposed adverse Finding 2 was that recognising there have been some steps taken, as outlined in your submissions, by the State in the form of a restructure, nonetheless, the finding is open. What is your response to that?
MR SIMPSON: I accept, Chair, that adverse Finding 2 is open on the evidence, but it is important context to understand that adverse finding relates to policies as were in place at the time the conduct occurred, and to recognise that changes have been made is an important part in understanding the steps that have been taken since these
CHAIR: Does the evidence indicate whether the changes that occurred from April 2019 were prompted by these particular circumstances or, as far as the evidence goes, does it show that these changes were in contemplation in any event and were unrelated to the circumstances of Victoria and James' case?
MR SIMPSON: As I understand the evidence before the Commission, I don't think there is an answer to that question before the Commission. I can take instructions on that point, if it would assist?
CHAIR: It is not a question of instructions, it is just whether the evidence addresses it. If it does, it does; if it does not, it does not.
MR SIMPSON: My understanding is the evidence does not address it, Chair.
CHAIR: Thank you. Yes, keep going.
MR SIMPSON: In relation to proposed adverse Finding 3, the State's submissions, which are directed at the immediate response to address Mitchell's safety, addresses the proposed adverse finding insofar as it relates to the response or, rather, the focus being person centred. Those steps taken to address Mitchell's safety demonstrate a focus on the services being person centred.
Insofar as the question may relate to the safety and wellbeing of people in accommodation services more generally, it is accepted, of course, that if the author of this letter is a person who was or is working with vulnerable people, that is a matter the DHS would want to identify as a matter of priority. Of course you would not want a person who would write a letter in the terms that were sent to James and Victoria working with vulnerable people. That is, of course, the position.
DHS witnesses gave evidence to the effect that it was heartbreaking to imagine someone writing a letter in those terms working in DHS services. Of course, the Commission has received evidence about DHS' acceptance that the investigations to attempt to identify the author of the letter were not sufficient and that further steps are being taken to attempt to identify the author.
But if we are looking at the safety and wellbeing of people in accommodation services more generally, there are a range of measures that have not been the subject of evidence in the Commission, involving working with vulnerable people checks that the Department implements and supervision of people working in accommodation services and reporting of incidents.
In my submission, those matters are all relevant to the question of the safety and wellbeing of people in accommodation services.
CHAIR: Did you say these measures have not been the subject of evidence?
MR SIMPSON: At Public Hearing 14, no, they have not been.
CHAIR: But you want to tell us about them anyway?
MR SIMPSON: No, Chair, I don't. But I am suggesting that proposed adverse Finding 3 goes beyond what is sustainable, based on the evidence that has been presented at Public Hearing 14.
CHAIR: It is really the same point over again, isn't it? You accept there was a failure to do something that should have been done, that was important both to the health and safety of Mitchell, but also to the health and safety potentially of other residents in accommodation that was provided by the Department. So if adverse Finding 3 is focused upon that failure and its consequences for the safety and wellbeing of people in accommodation services, I assume you wouldn't resist it?
MR SIMPSON: That's correct, Chair. The submission the State makes is simply that the proposed adverse finding is broader than what is sustainable on the evidence.
CHAIR: What about the proposed finding that the case study highlights a failure to be person centred in relation to Mitchell himself? There are really a couple of propositions caught up in proposed Finding 3, I would think.
MR SIMPSON: Yes. The submissions that address the steps that were taken to address Mitchell's safety, in my submission, address that asserted failure to be person centred. In my submission, the steps taken by the Department demonstrate an emphasis on being person centred, for Mitchell and his safety, and the steps that were implemented specifically in relation to him, while accepting the investigation was deficient, in my submission, that part of the proposed adverse finding is not available and should not be made.
CHAIR: I follow that. Thank you.
MR SIMPSON: It may be convenient to address at this point the proposed additional adverse findings put forward by James and Victoria.
MR SIMPSON: The first of those relate to what is described as a direction not to investigate the author of the letter. What is in evidence before the Commission is an audit report that was prepared in June 2021 which contains reference to a diary entry prepared by the investigator who conducted the second investigation. There is reference there to that second investigator's understanding of a direction that was given to the first investigator. So, the evidence before the Commission is not entirely clear about the context in which that asserted direction may have been given.
CHAIR: But it is consistent with the rest of the evidence, isn't it? It is not disputed
that there was no investigation of that issue. Now, there may be a question as to whether that was because of things James is alleged to have said or otherwise. That is perhaps a separate factual question upon which there may be some differences. But it would hardly be surprising, would it, for there to be such a direction since that is what happened?
MR SIMPSON: With respect, Chair, my understanding of the evidence, and this is in the State's submissions, is that the first and second investigations did attempt to identify the author of the letter. Those attempts were not sufficient and not adequate, but there were attempts made to identify the author of the letter in each of those investigations. Notwithstanding this suggestion there was a direction not to do so, it was in fact the case that attempts were made, witnesses were spoken to, to attempt to identify the author of the letter. Those investigations were not sufficiently thorough, but attempts were made.
In that context and in circumstances where neither investigator, neither the author of the diary note referred to in Exhibit 14 105, nor the original investigator, gave evidence at the Commission, and in circumstances where attempts were made to identify the author of the letter, in my submission, the proposed additional adverse finding should not be made.
CHAIR: I am looking at paragraph 74 of Counsel Assisting's submissions which state:
The IMU did not commence its investigation until 20 April 2018, some six weeks after the letter was received.
It goes on to comment on the failure to institute a formal inquiry.
If there were a diary note or a diary entry, it appears, on the basis of the evidence set out in Mr O'Brien's submissions, that the diary entry would have been made at some point in April 2018. That might suggest it was a diary entry directed, if not to the question of whether any inquiry would be made at all, but whether any inquiry beyond the speaking to some staff members, which in fact took place over a period of six months, as indicated in paragraph 76 of Counsel Assisting's submissions. So it perhaps does fit. I understand the point you make that there were some inquiries made, but it may go to explain the nature of those inquiries and the limitations on them.
MR SIMPSON: My understanding is that the diary note referred to in the evidence is dated in 2021, in the context of the second investigation undertaken. We do not know the date of any direction that may have been given in relation to the first investigation, is my understanding of the evidence. So, we just don't know, if a direction to that effect was given, when it was given and to what it was directed.
CHAIR: Well, it may be I have misunderstood that evidence and I will need to go back to the primary evidence. I had rather understood this to be a reference in 2021
to something that happened in 2018. But if that is not the case, then it is not the case.
MR SIMPSON: I think, Chair, you are correct in that but we don't know when in 2018, is my understanding of the evidence.
CHAIR: Thank you.
MR SIMPSON: In relation to additional adverse Finding 2, which relates to the assertion the Department blames James for the failure to properly investigate the author of the letter, in the Department's submission, the Department does not blame James for the failure to adequately investigate the author of the letter. The Department accepts it had an obligation to undertake that investigation, irrespective of anything James may or may not have said.
The only point the Department makes in relation to its understanding of James' wishes is that it provides context to the focus of the investigation and the decisions of the individuals involved in directing those investigations. It is not directed at blaming James for those shortcomings in the investigations. The Department accepts it had an obligation to undertake those investigations, irrespective of anything James may or may not have said.
CHAIR: So to that extent, any dispute as to what was said or what understanding might have been derived from what was said is not really relevant is the way you put it?
MR SIMPSON: That's correct, Chair.
In relation to the proposed recommendations in relation to Mitchell's case study, annexure 1 to the State's submissions outlines some steps that have been taken. Mr O'Brien has indicated his understanding of certain matters.
There is only one additional point I really want to make. I am reluctant to go into questions of evidence in these submissions but, on my instructions, a letter was sent by the Minister for Human Services for the State of South Australia to James and Victoria on 18 June in 2021. That letter indicated that the Minister had asked the CEO of DHS to initiate a supplementary independent investigation and that the Minister had asked that James and Victoria be consulted and interviewed as part of this process, if they choose. That letter was sent well prior to Counsel Assisting's submissions and the proposed recommendations.
CHAIR: Sorry, this is paragraph 4 of annexure A you refer to?
MR SIMPSON: That's correct, Chair. That letter does not refer to terms of reference explicitly, because this letter was written well before Counsel Assisting's submissions and proposed recommendations that refer to terms of reference. But the reference to James and Victoria being invited to be consulted in relation to the investigation, on my instructions, is an invitation to effectively provide some input
into the scope of the investigation.
CHAIR: The letter is not in evidence, is it?
MR SIMPSON: No, Chair, that's correct.
CHAIR: I am not quite sure why we are having a discussion about something that postdated the hearing in respect of a letter that is not in evidence.
MR SIMPSON: It simply goes to the submissions that have been made by Mr O'Brien about the response to the proposed recommendations. We have heard what Mr O'Brien said in terms of James and Victoria's willingness to be consulted as to the scope of that investigation, so I have no doubt that process will occur. But it was simply a matter to respond to the submissions that came from Mr O'Brien on behalf of James and Victoria.
CHAIR: Thank you.
MR SIMPSON: Turning then to Daniel Rogers' case study and proposed adverse Finding 4. The terms of proposed adverse Finding 4 are directed at the question of the adequacy of an investigation by the Department. Adverse Finding 4a talks about the investigation. In fact, Findings 4a, 4b and 4c each refer to investigations. That is the reason the State has made submissions that the question of an investigation into the cause of Mr Rogers' injuries was not the subject of direct evidence at the hearing.
What was the subject of evidence was the adequacy of the reporting of the injuries. If the proposed adverse finding were directed at the adequacy of the reporting, that would be a different matter and the State's position would be somewhat different. But what has been put forward is an adverse finding that relates to an investigation that was not the subject of evidence at the hearing. That is the reason the State contends the proposed adverse findings are not available on the evidence.
CHAIR: Are you contending the evidence demonstrates that the Department did immediately investigate the cause of bruising identified on 22 February 2019?
MR SIMPSON: Chair, I am not.
CHAIR: So why then are you disputing proposed adverse Finding 4a?
MR SIMPSON: Because the question of whether or not the Department immediately investigated the cause of the injury was not the subject of evidence at Public hearing 14. What was the subject of evidence was the way in which that injury and observations of that injury were reported on the Riskman reporting system and whether or not those incident reports that were entered on the system accurately reflected what the policies dictate should have been highlighted in those reports.
The State accepts, and the witnesses that gave evidence at the public hearing accept,
that the reporting of those incidents and those injuries was inadequate. But what was not the subject of evidence was the question of investigations directed at identifying the source of the injuries.
CHAIR: If the reporting is inadequate, that would support an inference, would it not, that there was no immediate investigation, and perhaps a lot turns on the word of "immediate" or "immediately". But if the records, if that is the position, understate the extent of the bruising or its possible seriousness, it rather supports such an inference, doesn't it? How do you prove the negative?
MR SIMPSON: What the evidence demonstrates is that shortly after Mr Rogers' admission to hospital, DHS takes steps to encourage that the incident be reported to police and that then a police investigation is undertaken in relation to the injuries. That is the point at which the police process took its course. In the State's submission, it was appropriate for that police process to be undertaken prior to any investigation by the Department into the cause of those injuries.
But the point is this: that was not the subject of evidence at the public hearing. The public hearing looked at the reporting and the adequacy of the reporting, it did not look at that next step.
CHAIR: What was the date of the referral to the police? Your paragraph 46 suggests it was 26 February. That is presumably on the Tuesday following the admission to hospital on the 22nd.
MR SIMPSON: I'm sorry, Chair, I missed that last comment.
CHAIR: I'm sorry. Your paragraph 46 suggests that Mr Cunningham recommended that Mrs Rogers report the incident to the police and that recommendation was made on 26 February. That tells us, if that is correct, when Mr Cunningham recommended it to Mrs Rogers, it does not tell us when it was actually referred to the police. I may not have appreciated all the evidence at this stage, but am I correct in thinking this was the mechanism by which the matter came to the attention of the police?
MR SIMPSON: My understanding is that, yes, that is the mechanism by which the matter came to the attention of the police.
CHAIR: So it is a recommendation made by Mr Cunningham to Mrs Rogers?
MR SIMPSON: That's right. My understanding is that both Ms Rogers' evidence and Mr Cunningham's evidence is they attended a police station together, as my memory serves, to make that report to police either on the 26th or shortly thereafter.
CHAIR: You say that process is inconsistent with the proposed adverse Finding 4a because four days after Daniel was admitted to hospital, the recommendation was made to Mrs Rogers that she make a complaint to the police?
MR SIMPSON: Yes, Chair. In my submission, that is correct.
CHAIR: I follow that. What do you want to say about proposed Findings 4b and 4c?
MR SIMPSON: In effect, Chair, it is the same point in relation to the question of investigations. It is accepted that the Department did not seek expert medical opinion as to the likely or possible timing or cause of the bruising. However, SA Police did undertake that as part of their investigation. Again, in my submission, the question of investigation I have dealt with in the written submissions and in what I have said this afternoon.
There is reference in the State's written submissions to a summary report. That is referred to in paragraph 51. That is, in effect, a summary of the investigation that was undertaken by SA Police.
If, contrary to my submissions, the Commission does intend to consider the question of the adequacy or otherwise of any investigation undertaken by DHS into the cause of the injuries to Daniel Rogers, then in my submission the State should have leave to seek to tender that summary report provided by SA Police. It is not presently in evidence before the Commission. The reason the State had not raised it previously is we had not understood that the adequacy of any investigation undertaken by the Department was going to be the subject of proposed adverse findings, as it had not been the subject of evidence at the public hearing.
I raise that, Chair, because I am not seeking to tender that document unless the Commission does intend to examine the adequacy of any investigation.
CHAIR: Well, the Commission will certainly be considering the submissions that have been made by Counsel Assisting, and since Counsel Assisting has made the submission that possible adverse finding 4 should be made, then clearly we are obliged to consider that submission and determine whether the evidence supports it.
MR SIMPSON: In those circumstances, Chair, I seek leave to tender this summary report that is referred to in paragraph 51 of the State's submissions. It may be that is a matter dealt with subsequent to today, because that document did not appear in the hearing bundles for Public Hearing 14, so the interested parties or the parties with leave to appear may not necessarily have seen that document before. But, in my submission, that is relevant to the Commission's consideration of that question.
CHAIR: As I understand the relevant chronology, the hearing takes place in early June. Then there is a direction or invitation, however you want to put it, whereby South Australia and other parties were to identify by 2 July any documents they wished to tender. You did not identify the police report at that time but you say that was because at that time you did not have the submissions by Counsel Assisting which were served on 6 August. Is that the chronology?
MR SIMPSON: That's correct, Chair. To add to that, the question of the adequacy of any investigation undertaken by the Department was not the subject of evidence, in my submission, at the public hearing. So it was not in our contemplation that it would be the subject of proposed adverse findings, such that we would need to tender documents relevant to that topic.
CHAIR: What, then, is the relevance of the report? I think each Commissioner has a copy of that document because your submissions indicated it was relevant. It was not part of the Tender Bundle and it was not included in any additional documents you sought to tender by 2 July. I understand the basis upon which you now tender it, but what is the relevance of the police investigation?
MR SIMPSON: The relevance is that after the matter was reported to police in February 2019, the police undertook an investigation into the possible cause of the injury. That involved speaking to witnesses and seeking expert medical opinion about the possible cause of the bruising, and they came to their views about what conclusions could be drawn, based on the evidence that was derived from their investigation.
CHAIR: But does the document take it any further than one would expect; namely, there was a referral to the police and the police conducted an investigation. Does it really matter what the police actually did? We can assume the police did their job.
MR SIMPSON: That's correct, Chair. But then that investigation file was provided to the Department for the Department to then consider as part of its own internal investigation. So the question of whether or not the Department conducted a sufficient investigation is based on the materials that were compiled by SA Police.
The State's contention that the Department undertook an appropriate investigation, making appropriate use of the earlier investigation that had been conducted by SA Police, is based on that investigation that was undertaken by SA Police. That is the contention advanced in paragraph 44 of the State's submissions.
CHAIR: When do you say the Department got the summary report? I think it is called a detailed occurrence report.
MR SIMPSON: I don't have to hand the date the report was provided to the Department, but my understanding is it was around mid 2000, shortly prior to Mr Dodd's
CHAIR: It couldn't have been around mid 2000. It might have been around mid 2020 possibly.
MR SIMPSON: 2020, sorry. Thank you, Chair.
CHAIR: The document actually has a date of 7 December 2020. I am not quite sure how this advances the argument, in the sense that the matter was referred to the
police, there appears to be no contest about when that happened, the police then conduct an investigation and reach certain conclusions. Anyway, let me hear what Ms Eastman has to say about the tender.
MR SIMPSON: Thank you, Chair. It is relevant, in addition, to the question of proposed adverse Finding 4b that the Department did not seek expert medical opinion as to the likely possible timing or cause of the bruising. The reason the Department did not do that is it already had SA Police's investigation that addressed that question of expert evidence.
CHAIR: That depend upon when they got the police report.
MS EASTMAN: Chair, this picks up paragraphs 148 to 150 of Counsel Assisting's submissions. The investigation by DHS was always a core and relevant issue in this hearing for this reason: it was Mrs Rogers uncontested evidence that she was told by DHS that it would investigate. That is a very different thing to being asked by Mr Cunningham, who is part of DHS, for Mrs Rogers to report to the police.
The issue in relation to what Mrs Rogers was told and her belief that DHS would investigate the complaint is that she acted on that belief and continued to act on that belief for up to a year. Again, her uncontested evidence was that she heard nothing about the investigation, neither she or Daniel were involved, and about a year later she had the meeting with Mr Dodd and I think Ms Boswell may have been present where she was told that DHS' investigation was inconclusive.
It is surprising the State would say its investigation was the South Australian Police investigation. It was Mrs Rogers who reported the matter to the police. The issue is, there is no account for what DHS did, although we are now told DHS had the benefit of the police material and relied on the police investigation to perhaps advise Mrs Rogers that the investigation was inconclusive. You will recall Mrs Rogers said she was not given a copy of that report and she was told she had to obtain it through Freedom of Information.
CHAIR: When you say "that report", do you mean the police report or the DHS report?
MS EASTMAN: The DHS report. The issue here is that Mrs Rogers’ evidence, and it was repeated in her submission this morning, is she trusted DHS to conduct an investigation. It did not occur. The submission I understand my learned friend is making is that what the police did was what DHS then took and considered as part of its investigation.
We do press that point and we do think the submission is open and the finding is open. Whether or not the police obtained a medical report is a matter relevant to the police. But there is nothing to indicate that DHS itself sought to obtain relevant advice from a medical practitioner as to the cause of the bruising at the time it occurred. That is the nature of our submission.
I oppose the tender of the material. Mrs Rogers has not had a chance to review that or look at that, and in circumstances where she has not been represented, it would be unfair for the Commission to receive that material into evidence because it is referred to in a submission.
CHAIR: Mr Simpson, I think the fundamental difficulty with the tender is it only supports the propositions you wish to put if there is additional evidence; that is to say, what was the relationship between the Department's investigation or its intention to conduct an investigation, and the police investigation; to what extent did the Department rely upon the police investigation; what were they told. This would require a whole further set of inquiries that we are not in a position to undertake. For that reason, I would not be inclined to accept the tender of the particular document.
Unless there is something else you wish to say? I am perfectly prepared to consider it, if there is something that answers that point.
MR SIMPSON: Chair, only that if that is the position, in my submission, the proposed adverse finding is not available on the evidence before the Commission.
CHAIR: Yes, I understand that finding. If there is nothing further to be said, I reject the tender.
MS EASTMAN: Chair, can I advise that I have just been asked to tell you that Mrs Rogers' recollection is that Mr Cunningham did not attend the police station with her. Mr Cunningham encouraged her to report to the police and she attended the police by herself.
CHAIR: We will have to see what the evidence at the hearing was on that, thank you. Please continue, Mr Simpson.
MR SIMPSON: Thank you, Chair.
CHAIR: Have we dealt with proposed adverse Finding 4?
MR SIMPSON: Yes, Chair. I believe we have. Save and except for this submission, and I believe this is made in our written submissions, but I will just make it again in case it's not. The Department's policy dictates that if a family member or a client is not willing or able to report a matter to SA Police, then the Department will do that subsequently. And that appears in paragraph 48 of Mr Dodd's affidavit. That appears as exhibit 14 109.
Now, in response to proposed adverse findings 5 and 6, the State accepts that the underlying facts that we are discussing, that have been the subject of evidence at the public hearing are not in dispute. Counsel Assisting has made reference to the evidence that was given by the witnesses for the Department that the treatment of Daniel Rogers and Mitchell was unacceptable and substandard and that is accepted in
the State, and the Department accepts that. The question that the proposed adverse finding invites is unavoidably legalistic. Because Counsel Assisting is inviting a finding of a legal conclusion as to whether or not those facts meet the threshold that is described in the Royal Commission's definition of neglect.
CHAIR: Why is that a legal conclusion? It's a factual conclusion, isn't it?
MR SIMPSON: Well, the facts are not in dispute here, Chair. The State accepts what occurs.
CHAIR: I understand that. But there are facts and facts. There are primary facts and there are inferences that you draw from primary facts as to how you characterise them and that's a different fact. We are not applying a statute here. We are applying a definition employed by the Royal Commission to explain the concept of neglect. It may or may not be a comprehensive definition but the question of whether the uncontested primary facts fit the definition is just a question of judgment as to a matter of fact, isn't it?
MR SIMPSON: I accept that, Chair. I accept that.
CHAIR: What we've got essentially is a different characterisation of the same factual substratum.
MR SIMPSON: That is correct, Chair. In effect, that is the issue that the State's submissions are directed at. And the State and the Department accepts that what occurred for Daniel and for Mitchell was unacceptable and it was substandard and that it's treatment that people with disabilities should not be subjected to and the consequences for Mitchell and Daniel and their families are very real and we don't shy away from the fact that the Department strives to do better than what was the subject of evidence at the public hearing.
CHAIR: A pretty good description of neglect, isn't it, what you've just said?
MR SIMPSON: The definition of neglect that the Commission has put forward describes an absence of basic necessities of life such as food, drink, shelter and other matters. And while this treatment is unacceptable, in our submission, this does not meet that particular definition.
CHAIR: I think it starts off with the words "neglect includes".
MR SIMPSON: Yes, Chair. But the general has to be limited by the specific. We've got specific types of conduct that are described in the definition and that's the extent of the State's submission on that topic.
CHAIR: I think if you are coming to adverse Finding 7, Ms Eastman I think accepted the proposition that that should be understood to mean there has been no adequate personal institutional accountability and then Ms Eastman explained further
what she meant by that concept.
MR SIMPSON: Yes, Chair. I am grateful for the Chair's observation on that account. I think an adverse finding in those terms, the State would accept that there has not been adequate accountability. The State's submissions address the extent to which there has been accountability and the State relies on its written submissions in that regard. In respect of adverse Finding 8, the State simply relies on its written submissions.
CHAIR: Thank you, Mr Simpson. I will just inquire whether my colleagues have any questions. Commissioner Bennett, do you have any questions you wish to put to Mr Simpson?
COMMISSIONER BENNETT: No, I think you've covered the field, Chair.
CHAIR: I will take that as a compliment. Commissioner McEwin, do you have a question?
COMMISSIONER McEWIN: Yes, Chair. I have one question. Mr Simpson, can I take you to paragraph 40 of your written submission and your first sentence begins by saying:
The mandatory induction and training programs within DHS are successfully achieving cultural change.
And I won't read the rest of it. Can you tell me how will the Department or how is the Department measuring success?
MR SIMPSON: Commissioner, I may have to take that on notice. I don't have the instructions specifically on what parameters are being measured. So perhaps if I can take that on notice I will provide a response to the Commission in due course.
COMMISSIONER McEWIN: Thank you. I would appreciate that. Thank you, Chair.
CHAIR: Let's make due course within seven days. Ms Eastman, is there anything you wish to say in reply to the submissions of either South Australia or the Australian Government.
MS EASTMAN: Nothing specifically other than thank my colleagues and the representatives of the parties with leave for preparing their submissions and co operating with our timetables. We are grateful for their co operation. And I also thank Mrs Rogers who prepared the written account and also her comments today. Thank you, Chair.
CHAIR: Thank you. I too wish to thank Counsel Assisting, of course, but also the parties representatives for their written submissions and for the oral submissions that
have been made today. They are very helpful to the Royal Commission and we appreciate the assistance we have received, and also we express our appreciation to Mrs Rogers for participating in the hearing and presenting her submissions today.
If there is nothing further, then we will adjourn and I'm not at all sure when our next hearing is. There will be a hearing on 13 October, Ms Eastman informs me, dealing with issues concerning women and girls with disability and abuse, neglect or exploitation of that cohort. Thank you very much. We'll adjourn.
HEARING ADJOURNED AT 2.55 PM UNTIL WEDNESDAY, 13 OCTOBER 2021 AT 10.00 AM