Public hearing 20 - Preventing and responding to violence, abuse, neglect and exploitation in disability services (2 case studies), Virtual - Day 2
CHAIR: Good morning, everybody. Welcome to the second day of Public Hearing 20.
We begin with an acknowledgement of country. We acknowledge the Gadigal people of the Eora Nation, the traditional custodians of the land on which Commissioner McEwin and I are participating in this hearing. We also acknowledge the Wurundjeri people of the Kulin Nation upon whose lands Commissioner Galbally is participating in the hearing. We pay our respects to their Elders, past, present and emerging. We also pay our respects to all First Nations people attending this hearing and those following the hearing on the livestream.
MR GRIFFIN: Chairman, Commissioners, can I indicate before I commence with the first witnesses today that the program for today is to initially hear from Ms Jodi Rodgers and Ms Elizabeth Dore, experts in relation to the topics I mentioned in my opening. They will be followed by Counsel Assisting reading the statement of Jennifer. Jennifer is the mother of Natalie who I spoke about in my opening yesterday, who is unable to give evidence in person. Following the lunch break, Ms Samantha Taylor from the NDIS QSC will be giving evidence for the balance of the day.
CHAIR: Thank you.
MR GRIFFIN: I call the next two witnesses to give concurrent evidence in this Royal Commission hearing. They are Elizabeth Dore and Jodi Rodgers.
Elizabeth Dore is a relationship and sexuality counsellor and trainer. She has provided a statement for this public hearing, dated 16 November 2021, reference STAT.0481.0001.0001, in hearing bundle A, tab 6. The annexures are at tabs 60 to 63.
Jodi Rodgers is a sexologist and counsellor. She has provided a statement for this public hearing, dated 16 November 2021, identification STAT.0482.0001.0001. Her statement is in hearing bundle A at tab 5, and the annexures to her statement are in hearing bundle A at tabs 56 to 59.
Commissioners, can I indicate that both witnesses have been sworn prior to commencing today.
CHAIR: Thank you. Just before you commence, Mr Griffin, thank you very much, Ms Rodgers and Ms Dore, for coming to the Royal Commission to give evidence. We appreciate your assistance. Just so you can follow where everybody is, Commissioner Galbally is joining the hearing from Melbourne and you will be able to see her on the screen, Commissioner McEwin is with me on my right in the Sydney hearing room and Mr Griffin, who will ask you some questions shortly, is also in the Sydney hearing room. Thank you.
JODI RODGERS, AFFIRMED
ELIZABETH DORE, AFFIRMED
EXAMINATION BY MR GRIFFIN
MR GRIFFIN: Can I commence with you, Ms Dore, and ask do you prefer me to say Ms Dore or Elizabeth or Liz?
MS DORE: Everyone knows me as Liz Dore, so I would prefer Liz.
MR GRIFFIN: Thank you. Can you tell the Commission a little bit about your professional background?
MS DORE: I started out as a primary school teacher and then, in order to get a job in another area, I decided I'd work in a group home, and I found that so interesting that I studied special education while I was there. I then taught special education in a school but then went back to the disability field in a range of jobs; employment service, as a community integration officer, then for Family Planning in sexuality training, and then I opened my own practice as a relationships and sexuality counsellor and trainer.
MR GRIFFIN: How many years have you been doing this type of work?
MS DORE: The work that I'm doing now?
MR GRIFFIN: Yes.
MS DORE: Over 10 years.
MR GRIFFIN: Ms Rodgers, once again, do you prefer Ms Rodgers or Jodi?
MS RODGERS: Definitely Jodi.
MR GRIFFIN: Thank you. Can I ask you about your professional background, briefly?
MS RODGERS: Yes. Originally, similar to Liz, I was a special education teacher in segregated schools and also within special ed units, and then left education and went into the community sector, and then worked exclusively within the disability sector and also within the sexual health sector, like Liz, within Family Planning, associations, as a disability coordinator.
Then I added on degrees in both counselling and, finally, a Masters of Sexual Health, so a qualified sexologist. Then I was working in regional management positions within the disability sector but then six years ago I established a private practice to work as a clinician and therapist in my own private practice.
MR GRIFFIN: When you describe yourself as a sexologist, that emanates from the fact that you have a Masters Degree in Sexual Health?
MS RODGERS: Yes, that's correct.
MR GRIFFIN: Can I ask you both in turn whether it's the case that you have prepared your statements for the Royal Commission in response to a letter sent to you by the Royal Commission which set out certain information and asked you to comment upon it?
MS DORE: Yes, that's right.
MS RODGERS: Yes, that's correct.
MR GRIFFIN: What I propose to do initially is to take you through the scenario which was set out in the letter commissioning your reports. For the benefit of people following this hearing, I might simply read out the first scenario and then get you to comment upon it.
You were asked: If a young woman who lives in a group home came to you and said, "I've just started a relationship with my first boyfriend but I don't know much about sex", what would be your approach to working with her?
Can I commence with you, Jodi, in relation to how you would respond to that scenario?
MS RODGERS: Usually when people first come to see me, it's really having an evaluation of their knowledge base around sexuality, but it's also having a knowledge base around the way that somebody communicates or their cognitive capacity, in terms of whether they can understand things, their literacy level or the way they can comprehend information, their communication style. So that's one area, kind of having an evaluation assessment of how you can modify anything that you do based on their learning.
Then the other thing that I'd be doing straightaway is actually doing an evaluation of their current sexuality knowledge and their understanding of, you know, sex and sexual health and relationships.
MR GRIFFIN: Just pausing there, in practical terms, how do you carry out that evaluation?
MS RODGERS: So it's often based there's a couple of evaluations that have been established and are, sort of, researched based. One is the ASK, which is basically an assessment of sexual knowledge, that's what it's called. So it actually sets out for you in very, very clear terms, starting from a base of does somebody even understand the sexual and reproductive parts of their body, private parts of their body, all the way through to things to do with the legality of sex, consent, safe sex. So it's a really great system where it sets up from a very simple base, things that people may learn in primary school right through to quite complex sexualised behaviours and sexualised knowledge.
I use that in a way that I modify that assessment for every single person that I am with. So I may not do it in terms of just asking somebody verbally. You would use things that would support their learning by modifying it by maybe visually representing what you are asking them, to have an understanding or to be able to question them.
MR GRIFFIN: Once you have established that factual information from the client, do you then attempt to set some short term goals in light of that?
MS RODGERS: Yes, one hundred per cent. It's basically filling in the gaps. It's making sure that person has all the gaps filled where they may be lacking in understanding or where they may not have received really great, comprehensive sexuality education in the past, it's making sure they have accessible understanding to all areas of sexual health and sexuality. So, yes, you set short term goals that fill in the gaps of what they may be lacking in their understanding.
MR GRIFFIN: In your work, it is frequently the case, isn't it, that this is the first time you have seen that person?
MS RODGERS: Yes, that's one hundred per cent right. So like with any type of therapist, when somebody comes to see you, you know, it's really complex and difficult because any person speaking about sexuality, this is a really intimate discussion with people. So sometimes it is building the rapport with the person to allow them to have the space to know that a discussion that they may not have easily had with other people you have to make that environment very comfortable and very relaxed and let them know that there is nothing wrong with this discussion, and make them you know, help support them, that this is very private, this is confidential, that you will be able to talk about this freely and openly in a very relaxed manner, so they feel comfortable to talk about it. I mean, sexuality is difficult for all of us to talk about so, yes, one hundred per cent, you have to start by building a rapport with people.
MR GRIFFIN: You make an observation that it is important to speak positively and don't focus immediately on risk. Can you elaborate upon that?
MS RODGERS: I follow what's called the comprehensive sexuality education model and a basis of that is really talking about relationships and sexuality and
intimacy in a very, very positive light, because this is something that we should all see as joyful and this is something that we should all know provides us with a sense of wellbeing in life. So part of sexuality is to talk about the beauty of what sexual and intimate relationships are about, or even just our own experience of sexuality, even if that's not with another person. So yes, I always talk about sexuality, specifically in the beginning, in a very, very positive light.
MR GRIFFIN: Can I move to you, Liz, in relation to the same scenario. What approach would you adopt?
MS DORE: I usually, after having a chat with the person, get their permission to do a family tree on a big art pad, and most people are happy to do that. That gives me a sense of who is who in their family and what might have happened in terms of parents separating and siblings, so that if anything is disclosed later, I've got something to refer to.
I then use the art pad to do a timeline and I usually pass it to them. If they can't write or draw, then I would do it. I ask them to draw a line and put their name and the date in the middle and then I ask them to go back and put the best thing that's happened in their life and some of the highs, some of the lows in their life, where they are born and that type of thing, and I can keep going back to that later if I need to.
I then ask them what they want in the future and that's where most people say a relationship. They might also add move out of home, to get a job, but usually it's a girlfriend or boyfriend or to get married, that type of thing. Then I would do the ASK assessment.
MR GRIFFIN: As part of that process, do you identify from their background both positive and negative experiences they have had?
MS DORE: Yes, I do.
MR GRIFFIN: Why is that important?
MS DORE: If someone has really enjoyed living in a certain place or if someone has been sexually abused and needed either has reported that or not, then I would ask them is that something they did want to report or what has happened. That gives me a sense about what I need to be aware of, in terms of education, and what I need to focus on for the future, so they can put that on the timeline and keep it there if they want, and then I'm happy to go forward without referring to that, if that's what they want. It just helps both of us, I think.
MR GRIFFIN: In your experience at the initial consultation, is there any role for a support worker or a family member to be involved?
MS DORE: Usually in about the first 10 or 15 minutes, depending on the person. That's just so they feel comfortable with me. They hopefully come with someone
they know. If they don't, if it's a taxi driver or someone they don't know, then I just send them out and say "Go for coffee and come back 10 minutes before the end of the session". Most people are just happy to stay on their own. They usually know what it's going to be about and don't particularly want their parents or a staff member to be there.
MR GRIFFIN: You have both mentioned that you try to set some short term goals at the initial consultation. Can those goals then become part of an NDIA funding plan or an NDIS plan?
MS RODGERS: Do you want to answer that, Liz?
MS DORE: You go first. We can alternate, then I know that you're going first.
MS RODGERS: Pat, usually a lot of people who come to see me come with an NDIS plan, so it's part of their funding. Often what I'll find is that underneath NDIS plans, there may be overarching goals but they may not specifically be based on sexuality education or therapeutic intervention about sexuality. So you might find there is a long term goal in NDIS that says, you know, to support Liz, for example, to help Liz develop social skills or relationship development. But it may not say specifically a short term goal within that that is directly related to sexuality or sexuality education or therapeutic intervention. So that's one area.
But when you then write back to the NDIS so I what do is take the overarching NDIS goals and then work directly with the person seeing me, for them to help establish what are their short term goals. So it might be that somebody's saying, "I really want to have a partner". You actually then or that they want to learn more about sexuality, or you break that down into short term goals.
Then when you are writing, as every therapist does have to do for NDIS, a summary report, I write specifically to the short term goals that have been established with the client.
Sometimes I find if the NDIS goals come in from a planner, sometimes I find they are not specifically based on somebody's need, in terms of it may not ever say, "This person's goal is to have a boyfriend or a girlfriend". It will be more, "This person's goal is to learn more about sex or sexuality". Sometimes if it's a behaviour of concern, it might say something specifically about that behaviour of concern.
But, yes, we often don't establish the it's not our job Liz and my job is not to establish NDIS goals. Our job, as therapists, is to support the person coming to us to reach their NDIS goals. Do you agree with that, Liz?
MR GRIFFIN: Go ahead, Liz.
MS DORE: Yes. And the timeline helps do that. However, in reporting back to NDIS, because I don't want to disclose private information, then it's fairly broad.
What I found is the scores in the ASK assessment help. So they don't reveal private information but they might reveal that their knowledge around safe sex practices is 2 out of 10, their knowledge around consent is 5 out of 20. I think that helps NDIS to approve more funding without actually getting the particulars.
I might also add that their knowledge of that our goal would be to support them, to fill in the gaps in terms of steps in making friends and relationships and dating, to achieve their relationship their boyfriend/girlfriend or marriage goal.
MR GRIFFIN: Thank you. Can I indicate to the Commissioners and legal representatives that the document called ASK, stands for Assessment, Sexuality and Knowledge and appears under the reference IND.0131.0001.0001. In any event, you both use that as one of the tools in the initial consultation?
MS DORE: Yes.
MS RODGERS: Yes.
MR GRIFFIN: Can I move now
CHAIR: Just before you do that, do you mind if I ask a question.
Jodi, if I may call you such, you refer in your statement to a deidentified report that you prepared for an NDIS planner. That document, at least in the volumes I have, is behind tab 58 of bundle A. What was the purpose of that report?
MS RODGERS: I think that report is is that the NDIS summary report?
CHAIR: It says "Summary report for NDIS review", yes.
MS RODGERS: I actually with clients will sometimes present two reports. One will be directly to a planner and, as Liz was saying, that will not include intimate details. Then often I will do a second report that will go out to people, with the client's consent or the participant's consent, to be able to then give support to maybe any other multidisciplinary team that is working with that person.
We are expected, at the end you know, therapists or anybody who is funded to work with somebody within the therapeutic model of NDIS, we have a requirement that at the end of if we exit a client or at the end of their plan date, we must send to the NDIS planner a summary report to talk about the capacity of building within that person, and if the recommendation is for that person to continue with further therapy and whether they should receive further funding for their next plan, or whether we believe they have reached their goal set in that plan and, therefore, can exit that person and recommend that they no longer require therapy.
CHAIR: Was that summary report and others like it produced as a result of your relationship with the client and that relationship being funded by the NDIS?
MS RODGERS: That specific report, yes, was an NDIS funded therapeutic intervention, so the expectation is that a report is written at the end of that therapy.
CHAIR: So the NDIS may provide funding for services of the kind that you and Liz provide?
MS RODGERS: Yes. It's quite complex. Sometimes the planner will come sorry. So the planners are what I find is that it really is about who the planner is, and it's also about whether a participant or their representative, when they go into a planning meeting, actually specifically asks for this type of therapy.
So one person may go in and say, "I really want to have sexual education, I really need sexuality counselling", and the planner then might put that specifically in a goal within their plan. There are other planners who may just write it out. They might not specifically use the words "sexuality" or "sexual knowledge", they may just put an overarching goal that is about relationship development.
So sometimes it's within the plan but we have to break that long term goal into short term goals. Does that answer the question?
CHAIR: To a point. Let me put it another way: who pays you?
MS RODGERS: NDIS.
CHAIR: Right, thank you.
MS DORE: Can I let you know what I do?
MS DORE: What NDIS really like, or what I have found successful, is to add a quote to that report, and I haven't had one knocked back. So if a client really wants to return, the quote matches what I have recommended in the report, which, for a follow up client, might be a few fortnightly sessions, monthly sessions, some staff training or a couple of sessions with the parents. That has nearly always been approved.
CHAIR: Thank you.
MR GRIFFIN: Can I ask you, Liz, are you familiar with other counsellors who do something similar to what you have described, or not?
MS DORE: Well, there's Jodi and there's one other Sydney based counsellor as well.
MR GRIFFIN: Can I ask you in turn whether you watched any of the evidence in
the Royal Commission yesterday? Firstly you, Jodi?
MS RODGERS: Yes.
MR GRIFFIN: Who did you see give evidence?
MS RODGERS: Sophie and I was able to listen to Sophie's parents, but didn't get to the completion of listening to both I forget Michelle and
MR GRIFFIN: And Greg.
MS RODGERS: And Greg, yes. So I listened to all of Sophie's evidence but I only listened to well, I heard the majority but not quite the end of the parents' evidence.
MR GRIFFIN: Liz, did you get to hear any of the evidence from yesterday?
MS DORE: I listened to all of Sophie's evidence, but that's all.
MR GRIFFIN: You will recognise that scenarios that were put to you, to a certain extent, mirror Sophie's experience. The second scenario, for the benefit of those following the hearing, asked you: If the young woman came back to you a year later and said, "I broke it off with the old boyfriend, I'm now trying to find a boyfriend on internet dating sites/apps. I feel comfortable and happy using these sites and every other young person is using this method to meet people, so don't try and tell me not to use them. I also want to have sex", what would your approach be working with her? With her consent, what advice would you give the service provider and/or the family?
Can I commence with you, Liz, on this question?
MS DORE: That's an interesting question, because I have not so long ago held a workshop with a group of people with physical disability, so I got their feedback about online dating, and some of those had a negative experience. I'm not saying it was abuse but it affected their self esteem, because once they revealed their physical disability, people weren't interested in dating them. So I explained other strategies that I thought might be more successful than using those online dating sites.
However, there is a resource that Family Planning have developed to help people with online dating.
MR GRIFFIN: Is that resource called "The Online Dating Fact Sheet of Family Planning NSW"?
MS DORE: Yes.
MR GRIFFIN: Commissioners, that document appears at IND.0131.0002.0001.
What other options, apart from online dating, would you discuss with a person under this scenario?
MS DORE: I would explain that it's often helpful to find a group that shares an interest. So if they really love writing, then they look around for a writing group and they actually visit every fortnight and talk about writing. Because I have found that if people have something in common, like writing or singing, when they find that interest group, the fact they have a physical disability is not as obvious or relevant, if they can get to that group on their own.
I think that people can form friendships which are really good for their self esteem and I think there is an opportunity of dating someone that you have already met through that group.
MR GRIFFIN: Would you discuss with a person in this situation safe dating practices?
MS DORE: I would, and I do have a friendship guide as one document, and a dating guide as another.
MR GRIFFIN: Briefly, how does that discussion progress? Assume I'm the client you are speaking to.
MS DORE: I would talk to you about meeting and making friends and maybe meeting through those groups, and then talk about how the relationship or the friendship goes, in terms of turn taking on the telephone and text messages, just to check what the control is like.
I would then talk about dating and dating in a public place during the day and paying your own way. So always having money or a keycard and insisting that you will pay for your own coffee or meal, and letting someone know where you're going and yes. Just going from there and not focusing on going out at night, from the beginning, but to go during the day when there are other people around.
I also hold workshops and singles events where I have the details of not only the client but the support person, which could be a staff member or family member.
MR GRIFFIN: If there was a staff member present at this discussion we are describing now, what would you want to know about that staff member so they could then support the person?
MS DORE: Well, I'd like to ideally know that they have had some training in relationships and sexuality support of people with disability, but that's seldom the case.
MR GRIFFIN: Would you ascertain their experience and their attitude to these sorts of issues as part of the process?
MS DORE: Yes, I would, and sometimes that's in the 10 minutes before, you know, at the beginning of the session, 10 minutes later. Sometimes I find that they are very ignorant.
For example, one staff member thought a man masturbating in his bedroom too often would affect his brain. So I have talked to her about the facts around that and about resources available and also about lubricant. And to her credit, just with the information and support, she supported him to go out and buy the lubricant and the "Masturbation for males" books from Family Planning. So some people just need support.
MR GRIFFIN: In your experience, is it a concern that parents and support workers might have been in the role of telling the client what to do all the time?
MS DORE: Oh, yes, definitely.
MR GRIFFIN: How do you approach that issue?
MS DORE: Well, I come from what might seem to some strong advocates I come from a conservative perspective with the parents or the staff. I don't want to alienate them in the first session, so I try and get to know them and get their trust, before telling them that the young person might benefit from a sex toy from a sex shop. And some people have come around and actually gone off to get a sex toy from one of those shops. But if I mentioned it in the first session, they might they wouldn't have been happy, generally.
MR GRIFFIN: Can I move to you, Jodi, with the same scenario, using internet dating sites or apps. How would you go about that consultation?
MS RODGERS: This is every day of the week for me. This is I think we need to acknowledge that this is how many young people not just young people, all people are actually meeting one another. I think particularly in the last couple of years there has been a big shift, because of the way we are living our lives, onto internet dating. But this is how people are meeting.
So, for me, if similarly to Liz, I actually look at people give two different ways of working. So if you are meeting somebody online, if you are meeting people through dating sites and it's not just dating sites. Many of my clients aren't actually specifically on dating sites because they have to pay for that. They might be on free dating sites.
But lots of people are meeting each other through social media, through Tik Tok, through Facebook, through Instagram and then DMing, direct messaging each other. So it's also not just talking specifically about dating sites, it's talking about safety within meeting people on social media. So there's that way.
I also talk to people about developing relationships face to face, because there are different things we need to think about in those two specific areas. So yes, this is a weekly conversation in my life, about that.
MR GRIFFIN: Could you tell me the sort of cyber online safety issues that you would regard as being relevant?
MS RODGERS: I just really talk to people about what information we give away to somebody when we are you know, really specific stuff and very basic. It is in some of the resources that Liz was talking about. But really, what information do we give somebody and at what steps of our relationship or what level of our relationship do we actually impart information to somebody.
So the very, very first steps are that we don't give out our address to somebody, we don't give people information about where we live, we definitely don't give people our bank details. We talk about if somebody's requesting money from you. It's all the dos and don'ts about online safety.
What I find sometimes is that some of the people that I am working with, they are very eager to please, so what will often happen is if somebody requests and asks them for this information, if they haven't developed knowledge about what information to provide, then they will eagerly give that out because they are trying to please another person.
MR GRIFFIN: Jodi, can I ask you just to slow down a little to assist the Auslan interpreters?
JODI RODGERS: Yes.
MR GRIFFIN: Thank you. What about the issue of privacy, how do you canvass that with somebody?
MS RODGERS: In terms of their own private information that they give out?
MR GRIFFIN: Yes, in terms of privacy and the internet.
MS RODGERS: Similarly, it's what stage do people jump from being on a social app like Facebook or Instagram or a dating site to moving on to something that's more personal. You know, when people actually move on to personalised messaging, at what stage do we do that. It's really about talking about what is information that we do not give away to another person.
As Liz was saying, when I'm supporting somebody to develop the stepping stones to relationships, I might say we don't give away our address to somebody to start with. The first step would be, if you'd like to meet somebody face to face, you meet in a public place that's supported and okay, before we develop the next steps.
As we know, unless you know somebody in a face to face way, most of us wouldn't invite somebody back to our house. We wouldn't meet somebody at our front doorstep on our first meeting, we'd meet them socially in an environment in public.
MR GRIFFIN: What role, if any, does a support worker have in supporting a client who is using online sites for dating purposes?
MS DORE: I find that some support workers just need a few tips as well. So if I'm discouraging well, actually, I don't usually discourage, I let people know some other strategies where they can meet people, but I then let them know of the risk of using the social media sites. I then include the staff member, because one of my clients was getting into trouble in terms of finances, so we go through what Jodi said. But the client also needed support from the support worker to go through each of these people and say, "Have I met them? Which group was it? Which activity was it where I met them? Oh, I wouldn't have a clue whether they even live in Sydney, let's block them". So the staff members then help to block the ones the person hasn't actually met in person. Some of them want to have hundreds of friends because that seems to be the way these days, but I have just helped them focus on what they can do safely.
MR GRIFFIN: Is one of the roles of the staff worker, ideally, to be someone who can be there to answer any questions about this sort of conduct?
MS DORE: Definitely, and that's why I try to train them in such a short time before and after. By having the staff member in for that short time, it creates an open discussion and almost gives the support worker permission with the client's if the client's interested, to have a conversation.
I have also said to a support worker, "If you're worried about it, write down in some notes, 'Liz Dore said that it would be good to have a conversation with Mary Jones about X, Y, Z, or recommended taking him to a sex shop'.", because some of the support staff are a bit nervous about that.
MS RODGERS: I work a little bit differently than Liz. So I actually if somebody is coming to see me and I have assessed they might have difficulties with retention or generalising information out of the clinical setting into their day to day settings, I actually will ask somebody if they would like to have a trusted support worker with them. They choose who that support worker is and then I request that it is consistently the same support worker for every single session that we do together.
The reason I do that, sort of what Liz is saying, is you would want the support worker to have the professional development in understanding how we have these communications, how we have these conversations with somebody. But also so they are learning the strategies along with their client or the participant. So then when they are outside of these sessions with us, because as Liz and I know, we may only see somebody for one hour every two weeks, so really the people who need to be doing the day to day support in somebody's everyday setting is the support workers.
Some clients I work with say, "No, I don't want somebody with me". If they have the capacity to generalise these strategies into their everyday environment, then no worries. But really what I find is that many support workers love that interaction, they would with Liz and they would with me, because it's actually developing their skills in an area that is very complex and very difficult.
MS DORE: I also have a concern with who that support worker is. Some support workers appear not to have their own social life. This is an appearance; I don't know, I haven't asked them directly. But from their actions, they are treating my client like a friend. I think there is some danger in that.
If the support worker really wanted a friend and then my client might, with the sexuality conversation, thinks that staff member would be a great person to date, and if that support worker loves catching a ferry to Manly or going to certain movies, then you could end up with a strange relationship where the support worker is not supporting her to make her own friends and putting some guidelines around the sexuality education, and saying, "Well, I've had some staff training and what I have learnt is, if you've got any questions, it's a good idea to get this person to answer it or that staff member to answer it".
MR GRIFFIN: Liz, if you had the sort of concern on occasion that you just expressed, how do you deal with that or pre empt what might happen?
MS DORE: I have suggested staff training. I have recommended that on a number of occasions. I think every service could benefit from staff training, but it is in if I get the opportunity to do the staff training, then I'm quite straightforward about not being my client's best friend, but to support them to make choices and go through the steps of making their own friends.
MR GRIFFIN: Jodi, have you had that experience where you have had that concern about who role the support worker is taking?
MS RODGERS: I'm very upfront, so even when I do the initial assessment, one of the things I will ask people is who, by law, can we not have sex with, when you are evaluating it. I always talk about we do not have intimate sexual relationships with support workers because it's illegal.
If I have somebody in the room with me, if they even use the word if their client participant calls the support worker their friend, I'm very clear with them that that person is being paid and that is not you know, they are support workers and we are friendly with them, but they are not our friend.
I also talk to support workers very, very directly about that as well, that we need to be supportive in helping a person understand that a paid support worker, although we can have a good relationship with them, is a support worker relationship and it is not a friendship. Friendships are by choice and we are not paid to be each others friends.
So I am very black and white with that information. If I am in an appointment and there's a support worker present with a client that I am seeing, I will just call them on that in that moment.
It's a really complex situation because we have to remember that many, many people are very isolated and lonely. Even some of the people living within accommodation seek the support and they seek the they want to have that kind of friendly, intimate relationship. When I'm talking "intimate", I'm not talking sexually intimate, I'm talking it's a very complex situation because support workers can develop really great relationships and friendships. But it's making sure we acknowledge at every step of the way that they are a paid person in this person's life, and that is not what we would all consider a friendship.
Also, a support worker always has control in the fact that they may leave that job and then they'd never see that person again. So I think we need to be very upfront with the type of relationships that they are.
MR GRIFFIN: In summary, you would like the support worker to be able to be someone who could answer questions from the client and reinforce the advice you have given?
MS RODGERS: Yes.
MR GRIFFIN: On a daily basis?
MS RODGERS: Yes.
MR GRIFFIN: In some cases, a subsidiary benefit is that, by attending, the support worker undergoes de facto education, simply because they see what you are doing?
MS RODGERS: Yes. And Liz would experience that too. Sometimes you have support workers who come in that have had you know, they may have had minimal they may have done a Certificate III online in disability and then they enter a service, but they have had limited knowledge in terms of personal experience being with somebody with an intellectual disability or cognitive disability or acquired brain injury. So they can actually learn even just by watching how Liz and I might communicate with somebody or, as Liz was saying, Liz does a lot of drawing and so do I. So people can learn just by being present with people.
I one hundred per cent agree with Liz that there's limited training for many support workers and it's a very casualised pool, so there are people coming and going at all times. That has a big impact on people in all areas, but in this area specifically.
MR GRIFFIN: Can I take you to the third scenario which was put to you: If a few months later the young woman came to you and said, "I met a guy on the internet, I knew that I couldn't have him visit me in my group home, so he picked me up and we went to a motel and we had sex. He was gentle and I'm really happy about
the experience", what would be your approach to working with her and, with her consent, what advice would you give to the service provider and/or the family? Can I start with you, Liz.
MS DORE: Sorry, could you start with Jodi?
MR GRIFFIN: By all means. Jodi?
MS RODGERS: I'd just like to acknowledge that if the person is in their 20s or even their 30s, then I try to come from the perspective and point of view that if that person has had a consensual they have given informed consent and it has been a consensual relationship, even for one night. We live in what they call a hook up culture these days with many people, and there are many, many young people who are just I keep saying "young people", but I'd like to extend that out to everybody. People do make choices that they have this hook up culture and meet somebody in a motel and have, you know, a great time with that person.
What I would actually be looking at more is the statement of "I cannot have somebody in my home". That's what I would be much more looking into. As long as that person was safe, then I would never ever add, as you never would as a therapist or a counsellor we don't add our attitude or value about the type of relationships that people are choosing onto that person. So for me, it would be much more about why isn't that person able to have intimate relationships in their own home.
MR GRIFFIN: Would you regard that situation to be a restriction on their rights?
MS RODGERS: First of all, I'd have to ask the person about is that their choice not to have somebody in their home. Was it a choice that they wanted to meet somebody away from home? Is it their choice to not meet somebody at their home or is this something that has been placed upon them.
Many, many, many people who I work with have difficulty bringing people into their own environment, unless they are living in their own individual villa, really. They may have support but if it's not 24 hour a day support and they are not living on their own, then there sometimes are restrictions as to who can come and go into those environments.
MR GRIFFIN: In your experience, are those restrictions relating to the safety of the client but also the safety of other residents in a group situation?
MS RODGERS: Yes, one hundred per cent. It's really based on a risk management policy and procedure, and we have to acknowledge that sometimes in accommodation there are many, many people coming and going. There are staff members coming and going. Sometimes those staff members are casualised, sometimes they may be from an agency for back filling people who are not there. There are many therapists who can come and go out of these homes. There are
family members. I'd like to acknowledge that sometimes in these homes there are multiple different people coming and going at any one time. So, yes, I'm well aware that some of these practices are about risk management.
MR GRIFFIN: Can I go back to you now, Liz, in relation to this question?
MS DORE: I think, in terms of the disability standards, that people have the right to choose to have a relationship, to choose to have casual sex. I also think that the people in the house have the right to know who is coming home.
As I said in my statement, I have had a young person, a student, living with me and I met a woman in the bathroom in the middle of the night. So he had brought her home and I had never met her. So the next day I said to him, "Look, I know this is your home and you can bring people home if you want, but I'd like to know. So just let me know, send me a text or give me a call".
I have also spoken to some young people without disability who said they would ring ahead and tell their flatmates to quickly tidy the house and be on their best behaviour. So I think we, as counsellors and the support staff and the services, have to support people's choice, but let them know what's helpful in terms of flatmates and staff.
MR GRIFFIN: When the scenario posits that that experience was a very pleasant one for the woman concerned, is it important to then turn to what hopes and plans the woman has following on from that experience?
MS DORE: Definitely, and that's what the timeline activity is about. We often return to that timeline to see where a person is up to and what they want in the future. So, have they been dating? Have they had sex with someone? Is this someone who is dating material or not? What makes him dating material or what makes him someone who she just wanted to have sex with and then discovered she didn't want to see him again?
MR GRIFFIN: Can I take you to paragraph 53 of your statement. I will give you a moment to look at that.
MS DORE: Yes.
MR GRIFFIN: I wonder if you wouldn't mind elaborating upon the opinion you express in that paragraph?
MS DORE: I think that everyone has the right to bring someone home, and the idea of keeping their door open if they have somebody in there or for any reason, like the woman who thought the masturbation might affect the client's brain they have the right. That has never happened to me that anyone in my life has said I have to keep the door open. I had young adults living with me and I didn't ever expect that.
It confuses me that staff can't be in the house and support that woman's goals.
MR GRIFFIN: Thank you. The fourth scenario you were asked to consider: If a few months later the service provider came to you and said, "This is a safety plan that we have put in place to keep the young woman safe. Can you please provide feedback?", what would have been your advice and what changes, if any, would you suggest?
Can I ask that exhibit 20 1.1 be put up on the screen, which is the interim safety plan for Sophie regarding male visitors to the Lismore house. It appears in hearing bundle C at tab 366. Can I give you both an opportunity to look at that again. I think it was shown to you in conference.
Jodi, I might come to you first, whilst Liz is getting some documentation. Do you have a reaction in relation to that plan and any aspects of it?
MS RODGERS: Yes. So first of all, I would want to know if this had been a plan that was worked out with Sophie herself, whether Sophie had informed choice over this plan, whether she had agreed to this plan, whether it's something that she not only agreed to but understood, you know, people discussed her thoughts and feelings about this plan.
There are definitely parts of this plan that go against somebody's just their basic right to privacy in their own home.
The other thing is that when I read a plan like this, when it says that people you know, if further intimate action is planned, it must be off premises and staff must be aware of where they are going. First of all, I'd want to make sure that anybody I was working with had a full, comprehensive understanding of what "any intimate action" actually means, because that can be interpreted in a number of different ways. But the other thing is that when we ask somebody to take this offsite, we actually are then forcing them into something that may be way more unsafe.
So my initial reaction to them is, one, it breaks some fundamental human rights about privacy and about somebody's right to privacy in their own home. I think it's the use of "home" that's really important in that as well. The other one is, just through prior knowledge, sometimes when people are not able to bring somebody into their own home, then what happens is the opportunistic nature of having to be intimate, whatever that may look like, in another situation can leave people very, very vulnerable. It can leave them vulnerable even to offending behaviour, because they may do intimate actions in public, or they enter a space that is not known to them.
So, yes, I definitely had a reaction to this. But my initial reaction was whether Sophie fully understood and had really informed knowledge of exactly what all of these steps were, and that Sophie was making a choice. Because if Sophie said, "Yes, I one hundred per cent agree to all of this", and she had an understanding of
every single step, then that might be a different matter. But, yes, I definitely had some questions about it.
MR GRIFFIN: Jodi, if someone in Sophie's position was prevented from having someone in her home, does that suggest that she may be in the wrong home?
MS RODGERS: Yes. I would suggest that that is if Sophie's a lot of this even the fact that it has used another person's name in this plan. It has actually used Tyler's name, saying that it can't interfere with Tyler's care. That means that Sophie's decisions and choices about who can come into that home or who can't come into that home is really now based on the risk management of other clients.
So you would be hoping that in I know this is really complex and difficult because of difficulties with housing, but people should be given a choice of who they live with and as much as possible even not as much as possible, at every opportunity possible people should be matched with people with similar independent skills, similar choices. So that if Sophie wants to have somebody home, we are not having another person's name, another client's or resident's name, embedded into a safety plan. It's not Tyler's safety plan, this is Sophie's safety plan.
MR GRIFFIN: Liz, I can come to you. Assuming it's the experience of many younger people that they will live in a share house at some stage of their life, is there any useful lessons to be drawn from a conventional share house arrangement, which many people in their early 20s will be in, and what we are talking about in relation to a group home for people with disability support needs?
MS DORE: Well, I don't think when they sign the lease or rent the extra room out to another person that they come up with an agreement that you can't bring people home. It might come up if someone didn't know, as in my case, that someone was in the house. They might say the next day, "We'd like to know".
But I would be I'm really concerned that someone can't bring a person home because that's what home means, that you can have family over or friends over or someone over for the night. If they wanted someone over for the night, it's not up to the staff to know whether they are going to sleep in the bed and hug all night or whether they are going to have sex.
I think they are much safer in their home with somebody else in the house, so that they could yell out. One only needs to be able to yell out "Help" and maybe bang the wall to get someone in the house to come and help them. Whereas in a motel, I'm not sure anyone would hear that or if anyone would respond to that.
As you asked before, if you're not allowed to do that in your own home, then I think they should give her an option of moving to another home on her own or with other people who are more broadminded or all agree that they can have relationships. Although that should be assumed. I'd rather it come up, if it's an issue, so that other
people know they can you know, this is about the service standards, they have choice, they have individual outcomes, they have the capacity to complain if it's not the sort of house they want or the sort of service, and the service should respond to that.
MS RODGERS: Can I just add to that, Patrick, because Liz used one really important word there. That is, the difference between this situation and what you were asking is that, yes, many young people in their 20s live in a group home, but they have a choice of who they live with. I'm sure most of us would know that if their parent was coming in and telling them who they are going to live with, then lots of young people wouldn't be happy with that. You don't have people who have a lease arrangement over them saying, "Here are the three people that you're going to live with". When young people are living together, they have a choice of who they are going to live with and they choose to live with people who have common interests with them, they are similar. Those choices are not made for them.
The difference in the Sophie scenario, just like Liz said, is that there may not have been choice of who Sophie got to live with or who the other people in this home had to live with. It was a decision, obviously, made about the make up of the people within their home by a service provider. And this happens regularly.
I think that we need to acknowledge that, the differing situations. I know if I was telling a 22 year old who they should live with, they may come back and tell me that that's not what the plan will be.
MR GRIFFIN: Perhaps even stronger words than that?
MS RODGERS: Much stronger words. I think the one word that Liz said there, I think, that there may have been limited choice by Sophie about who she was living with at this point in her life.
MR GRIFFIN: Can I ask you, Liz, is there value in, to use my word, interrogating the service provider as to why they have a rule that prevents intimate relations within the house? Is there a value in understanding where it's all coming from?
MS DORE: Oh, yes. Well, I'd be interested in what policies they have formed around the Disability Services standards. It's surprising the number of staff who don't know what they are. When I have done some professional development, which doesn't happen very often, I have given out the Disability Services standards and I have asked the staff to circle those that are related to relationships and sexuality. In groups, they have usually gone through it and they have ticked a few, which might be their right to have a relationship and individual outcomes. But what they haven't realised is that every standard supports a person in the area of relationships and sexuality. Service management, service access, feedback and complaints, individual outcomes, participation and inclusion, and rights. But I don't think those staff get a list of those when they are employed.
MR GRIFFIN: Can I come to the final scenario. It relates to a situation of sexual assault, and I won't go through that again. But if the woman then is dropped back at the group home and reports having been raped, and the police and ambulance are called, what sort of support would this young woman need following the sexual assault? Secondly, what sort of response would be required of the service provider following this incident?
Can I go to you first, Jodi?
MS RODGERS: Definitely. I know within the area that I live that even a woman with intellectual, cognitive disability would have the same access to health services with the sexual assault units in the hospital. In our area, there are people who are very well trained to support in that area, and they would be referred through to sexual assault counselling at that point.
I think it's more about when that person then returns into well, one, making sure that counselling is in a way that that woman is supported, with their cognitive disability and their communication. But it's much more about the returning home. There is the legality of some of that that has to be taken into regard as well, because of the fact that if that person returned home, some of the staff members may then be part of the legal proceedings. So that holds in place.
I think, if we're talking specifically about Sophie, Sophie would need a lot of support and help, as any person who has been sexually assaulted will. The fact that many people with a disability, who may not have the capacity to actually articulate, just like all the rest of us, sometimes our emotional response to being sexually assaulted comes out in ways that are least expected and it can come out through quite complex and difficult behaviours. In my mind, it's really the staff having very, very good training at that point, and understanding what Sophie may do in reaction to the sexual assault, so they can support her.
I also would really, really acknowledge that because of the level of sexual assault in our community, there are probably members of staff who have been sexually assaulted. I think we always need to think about that, that we can't that we need to talk to staff members about if Sophie approached them and wanted to talk to them. That staff member may also have been sexually assaulted and triggered. Therefore, having skills to be able to say, "Sophie, I'm not the person to speak to but Liz is available for you to speak to". So even having a system set up within the household, so that Sophie is aware of who she can speak to, but there is always someone readily available for her to talk to, who has training in being able to support anyone who has been sexually assaulted in their own home.
I know in our own homes, if we have been sexually assaulted, we may not know who we speak to. But what we would do in our own homes is we would be picking a person within our home who we have that intimate relationship with that we feel we can disclose and talk to about that. We may not speak to every member of our family at all moments. So I would say that it's really about supporting that staff and
that service to know how, one, they can best support Sophie, but also understanding what may come from what Sophie's reaction to that sexual assault may be.
MR GRIFFIN: Jodi, is there a risk that a well meaning staff member may, in fact, retraumatise someone in those circumstances?
MS RODGERS: Yes.
MR GRIFFIN: In what sort of circumstances would that situation arise?
MS RODGERS: Sometimes people are over eager to be helpful and may directly ask somebody about the sexual assault. As Liz and I would know, when you have been working with people who have been through these traumatic experiences, unless you are going to be the investigator and when I'm talking about the investigator, the police we are there to support that person to tell their story as that story comes out. Liz and I would never directly question somebody because we could be retraumatising them in a very unsupported way.
So it might be that a staff member directly asks Sophie about that. We have to be aware that when someone has been sexually assaulted, the triggers can almost be unknown. It may be a song that is heard, it may be the smell of something. So I think that staff having an understanding of what triggers for sexual assault can be is really, really important. People with limited training in this area, sometimes with their most well meaning intention, can actually push somebody into retraumatising them.
MR GRIFFIN: I think it is clear, Liz, from your report that you would share those views?
MS DORE: Yes. I would also like to add that I think if a person has been sexually assaulted, they might want their very, very best friend to stay over with them because their best friend or their long term staff member is someone they feel safe with. That's the optimal situation, that in the environment they live, that they have the person they have known and felt closest to or trusted. So if there happens to be someone else, then they could suggest that they ring their friend and invite them over.
There are other things you can do, which is play games and jigsaws, and things, together, to keep the person busy, in a sense, but not too busy, but focused on something. If you were playing Monopoly, it's quite an active game and it's quite easy, and there's the focus on how you play the game rather than what has gone on before.
MR GRIFFIN: Many people in the community would understand trauma resulting from an incident like this, but tell us about grief and the role it might play.
MS DORE: A huge role, because the person's goal has been to have a boyfriend.
To have that goal, in their view at that time, sort of smashed, then it's like a death of the goal. Will I ever achieve this? The evidence is that I haven't. So there's a huge amount of grief and they will need support in going through a ritual, as you do with other sorts of grief. That might be being asked if there's anything in the house that they'd like to get rid of, to toss in the bin. You know, if someone has sent a message or they have a phone that has it, "Do you want to delete the messages?", or "Do you want to bury the phone and buy a new one?"
MR GRIFFIN: Have you had the same experience, Jodi, in respect to the grief aspect that might occur after an assault of this nature?
MS RODGERS: Yes. I think that when we talk about sexual assault, there are multiple different reactions that people can have. There's the immediate emotion. There can be all stages of grief that somebody will go through, because it is related to a very traumatic event. We've got to remember that somebody, to start with, could be very, very angry. Some people's expression of anger can actually be to lash out at other people, to break things. If staff don't have an understanding that that can be an expression you know, all these stages of grief that people will go through. Deep sadness, depression, as Liz was saying, wanting to get rid of things.
I think that grief always comes with loss, and if anybody has been sexually assaulted, not only have they lost something within themselves, but they have also lost their trust in other people. When we talk about grief in general, I think we talk about loss in all forms, and people having a really deep understanding of how that can present in another person.
When we are being supported by other people, then it's really about staff, in Sophie's matter, being able to have a deep understanding of the multiple different ways that Sophie may react to this. It may not be just in the first few days, it could peak months, and then through a court case, and then again, and then it may be in a new relationship. I suppose the answer is yes, I agree with everything that Liz was saying.
MR GRIFFIN: Picking up on what you said, Jodi, is that what's known as triggers that might cause trauma in the future?
MS RODGERS: Look, I think that you know, I am not a I work very closely with the sexual assault unit and those people are incredible, but they can talk about the retriggering of sexual assault based on the fact like, if we use Sophie's case, for example, we don't know whether Sophie will ever smell Kentucky Fried Chicken again without being brought back to this memory. There are people who are triggered by a sound, there are people who are triggered by a smell. This is stuff that we don't know.
But often, if we are articulate enough, then we can actually express that to other people. But for many people with intellectual disabilities or communication difficulties, it may be that they have an observable reaction, it may be that they get
aggressive and upset, but we sometimes don't know what that trigger is that's setting them off.
Sexual assault has life long ramifications. People don't just get over sexual assault within a day or two. We are talking about life long impact and a person needing to be supported whenever they seek that support.
MR GRIFFIN: Can I move on to some recommendations for change which you both identified. I think a common theme is the level of training or qualification that you would like to see with disability support workers. Liz, can you comment on that?
MS DORE: I would like to see that people who are employed have a Cert IV in disability, or something similar, and that they have had some training in sexuality and relationships, and that they have been given the disability standards and the policies that match the disability standards and human rights. That's not happening. I get a sense that people are walking in off the street without any qualifications. So at least a Cert IV.
MR GRIFFIN: Jodi, do you share that view?
MS RODGERS: I completely agree with Liz. I think that Liz and I would want this to be mandatory standards for all support workers, to actually have training in sexuality and the basic rights of people. We've got a convention of rights for people with disability and this is embedded completely in this, that people are given comprehensive sexuality education and access to education in a way that they understand, sexuality education.
I'm sure Liz and I my base line would be that I would really like support workers even to have basic training in not bringing their own attitudinal value when they are supporting clients. I really believe that sometimes we might be supporting somebody to have a girlfriend when really that person may not be seeking a girlfriend. Their sexual orientation may be that they are seeking a same sex partner, but we can sometimes overlay our own attitudinal value about these things on to the people who we are supporting.
So I agree with Liz, I think there is a baseline training that support workers frontline support workers is a very complex and a very difficult job, and I am one hundred per cent aware that there's not a lot of professional development provided for support workers.
MR GRIFFIN: Liz, I think you mentioned that you would like to see service providers establish a relationship and sexuality policy and procedure. Do you have in mind that such a policy and procedure would encompass the sorts of issues we have been discussing today?
MS DORE: Oh, yes, definitely. Education for the client and education for the staff,
and responses to certain situations. That might be a man putting his hand down his pants, and rather than continuing to give the "no" message, to go back to the policy or see it as a sign that he needs some education and support around that.
MS RODGERS: Organisations should have that.
MR GRIFFIN: As part of the procedure, should there be much more attention paid to documenting decisions made by clients as they move along this pathway you have been describing?
MS DORE: Yes, and I'm not sure organisations have this because I haven't worked in one, but I've recommended it, that they have a file for each client that's locked up. That might need to be in a group home as well, so they are not leaving their notes around. They probably have it in a central office, but I think the staff need to be able to just record, as Jodi and I do, some of the questions that the resident asks, or their client, and what they said about that, and just file it in the locked filing cabinet. So the staff member feels comfortable answering the question, but also so you know where that client is up to and what resources they might need if there is a meeting, a case conference or something like that.
MR GRIFFIN: Finally, Jodi, I would like to raise with you an issue in your statement concerning balancing duty of care with dignity of risk. You deal with that in paragraphs 76 to 78 of your statement. Can you explain to us, in practical terms, what that means?
MS RODGERS: When we talk about large services that operate under policy, then they are trying to embed in their policy to cover all rights of people with disability and all the laws, and all of that. I think sometimes what happens is that policy then gets broken down into procedure, but sometimes they are not living in action on a day to day basis within people's lives and homes. Underneath procedure then, there are also individual rights within that.
I think there is a great difficulty within disability services, particularly in disability services, that we would love to uphold and upholding a person's rights is really fundamentally important, but then we also talk about the vulnerability of that person. I think what often happens is we do higher risk management than we actually do supporting rights of somebody. And it is a very, very fine balance. I believe it's a very complex balance between those two things.
But when you do look at when I walk into people's homes and I often look at even a behaviour support plan, a behaviour support plan will often start with risk management. It will often start with how we stop or how we it's all about protection. I think sometimes what we need to do is flip that over and actually talk about what life is about, in terms of the positive nature of all of this. So maybe we should be working towards the proactive support of how we help somebody achieve these rights and these goals, and then we talk about the risk factors.
I think it's a general thing that what we are often looking at is that services, I think, are sometimes so worried about the ramifications if they don't put in risk management procedures across all areas of their clients and what the clients do, that we are actually taking away from basic fundamental human rights. And they are basic rights, some of these things.
MR GRIFFIN: Liz, is there anything you wish to add in relation to that duty of care/dignity of risk issue?
MS DORE: Yes. I think the dignity of risk, acknowledging that and acknowledging that for all people, moving in and having a relationship with a partner has a risk. People can could look up sexual abuse within domestic or intimate relationships and find, I think, it's about one in five. So the staff themselves are having relationships in spite of that risk. And, yes, we do have clients who are vulnerable, which is why they need the extra education, counselling and support, but we can't take away the risk factor completely.
I think people just need to focus on the duty of care and how they support people with their education and rights, so that the risk isn't as great. Keeping in mind that the risk is high for everyone.
MR GRIFFIN: Liz and Jodi, that concludes my questions. I will now hand you back to the Chair, to see if there are any questions from the Commissioners.
CHAIR: Thank you, Mr Griffin. Commissioner Galbally, do you have any questions of either Jodi or Liz?
QUESTIONS BY THE COMMISSION
COMMISSIONER GALBALLY: I have two areas I would like to ask some questions about. The first is the issue that was raised towards the end about support worker training and disability Cert IV. In looking at the content of that certificate, the issues you raised such as basic rights, identifying your own values and not acting from them because that's not the point, relationships, sexuality, sexual orientation, I didn't see any of those really in the certificate or in Cert III. Would you be calling on those certificates to be revised, in the first place, before you would recommend everyone do them?
MS RODGERS: I'm just going to nod and Liz, you can handle that.
MS DORE: I definitely think that should be the recommendation and that is why, because I didn't think it was there and I have to admit I haven't looked it up, but I did it years ago. That's why I think at the moment the Family Planning prof ed should be layered on top of that, or the sort of training I do or Jodi does. But it would be ideal that it was encompassed in one of the disability certificate courses.
COMMISSIONER GALBALLY: My second question: I think it was you, Liz, who referred to Sophie maybe being better off in a more broadminded group home that respected those rights. Would there be any group homes that wouldn't respect those rights? Would there be any reason why any group home in Australia wouldn't fundamentally respect the rights that both of you take into account, all of the issues you have raised about closed doors, home, all the things you have raised today so valuably?
MS DORE: Are you saying are there any group homes that wouldn't support people's rights?
COMMISSIONER GALBALLY: I'm asking whether you sort of implied that Sophie might be better off in a better group home.
MS DORE: I see.
COMMISSIONER GALBALLY: I am just wondering if any of the old style, who haven't respected those rights in their practice, whether they should still be doing that in Australia.
MS DORE: Oh, no, they should all be respecting the rights of the residents. But right now, if I was to meet someone, then occasionally I will recommend a different organisation, but I'm reticent to do that because I don't know all the staff in that organisation. But I definitely think it should be the case of all the group homes.
Occasionally I meet some staff who are supportive. I have known a lesbian woman who is well supported by the staff she has, so I might recommend a lesbian woman approach that organisation, if they were broadminded and accepting in that area.
COMMISSIONER GALBALLY: Except you would also want every group home to be supportive of sexual preference? I'm just pushing it a bit.
MS DORE: Yes, of course you would. But when I meet people who think seeing a sex worker is illegal in this country, I despair that maybe they don't understand all the other laws, let alone the basic rights for people with disability. So I'm sure it's not the case, but I would recommend it, definitely.
COMMISSIONER GALBALLY: Thank you.
CHAIR: Thank you.
COMMISSIONER McEWIN: Jodi and Liz, thank you. A question for both of you. You have both talked about the concept of being safe, being safe in your home, having a safe and healthy relationship. Help me understand better, what advice do you give to your clients when they want to do that, but they are facing resistance from support workers or family members, who might say very different concepts or
different reasons for being safe? What advice or specific strategies do you give to support the person to be independent?
MS DORE: I would usually put in there their NDIS report, with their permission, and the quote about the staff training, so that at least I could help the staff of that group home support them. Sometimes, if their parents are supportive, I involve their parents and give them more information. Some of them just want help to know where to go. So every now and again I will say, look, I know that this organisation has been supportive. So the parents or their advocate, I would get them involved as well.
COMMISSIONER McEWIN: What do you say to your client specifically, where they might be experiencing resistance? How do you support them?
MS DORE: I would say, "Look, this is not right of the staff to impose these restrictions", and, "Do you want my support?" Because I don't want my client to be the one who has to go and face three staff who might work for a conservative organisation. So I want to make sure my client knows it's their right, but work on who can support them in that.
MS RODGERS: In my role, when we are talking about safe relationships, I bring back that whole concept to what does a safe and healthy relationship look like. So, make sure that any person I am working with has a really good understanding of what respect looks like. And even bringing respect right back, to talk about it's about what does coercion look like, should somebody be insulting you. So it's helping bring back that complete level of what a healthy relationship looks like.
The second part is supporting somebody to be able to advocate for themselves. So I think some of this is that we have many, many people that Liz and I would both have worked with that have a they have been told their whole lives about how they should live or what they should be doing, and helping a person that has sometimes learnt helplessness, in the fact that many people who come to see me, if you even ask them a question, they may not even know that they have a choice. That, to me, is a fundamental difficulty. If somebody doesn't even know how to say yes or no, and know they have a deep understanding and a right to say yes or no, then we're actually not even supporting them to understand consent.
So some of it, for me, is embedding into all of the work we do, how does a person advocate for themselves to say, "This is my right, this is my choice", and to be able to then help others understand they are making an informed choice about this.
Once again, as Liz was saying, if they can't advocate for themselves, then making sure they have a very, very trusted person or involve an advocacy organisation that can help a person make a choice for themselves separate from often an organisation or a parent. As we know, organisations and parents are sometimes just so worried about the safety that sometimes we are not listening to the choice of the person themselves.
COMMISSIONER McEWIN: Thank you. My final question is to Jodi, in particular. You mentioned earlier that many of your clients, if I understood you correctly, are lonely, and I understood perhaps many of them were in group homes. Why are they lonely?
MS RODGERS: Many of the people who I see, because of the way that services are structured, often they may not even have a choice about shifting a different day program. Some people I work with have been attending the same group in the same day program in the same routine for 10 years, so they are not actually getting out and meeting new people. Some people might come to me and say that they'd like to have a partner or they'd like to develop a relationship, but when I say to them, "Do you even have a friend? Do you invite anybody from the groups that you go to out for the weekend?", they don't do that. They may only ever see people specifically in the services that they are in. Say they are in one service, they may only see people from the same service; they are not meeting people who are supported in other services.
That can also be a real hindrance because they might meet somebody in a supported work environment, but those two people might come from different services and if they want to catch up on the weekend, then we get all the difficulties of are they allowed to have each other in each other's cars, according to the risk management or policy of that service, can we have two support workers from different organisations go into each other's homes. Therefore, we get all of those things.
When people talk about loneliness, sometimes it's just the fact that they are not meeting new people and they may be the same people for years and years and years. So it may not be isolation in the fact that they hang out in a group home with three other people, but it may be those three people in that group home are not people who they would choose to be hanging out with on the weekend.
COMMISSIONER McEWIN: Liz, did you want to add anything to that?
MS DORE: Yes, please. One thing I have found, too, is the support staff often say when they arrive, "Today we're going to do X, Y and Z", rather than giving the person the choice. They might not know what the person wants.
Recently I passed a basket of objects to one of my clients who doesn't communicate very well and he took out a little horse and for almost the whole session he had this horse. When his support person came back, I said, "He picked the horse out of all of those things." Somebody else picked out UNO and now has started playing UNO. But I said to this person, "He might like to go to riding for the disabled". That person was, like, "That would be a great idea", but they didn't have an idea it existed and didn't have the means to help this person communicate. My client might actually make a friend at riding for the disabled.
COMMISSIONER McEWIN: Thank you both. Thank you, Chair.
CHAIR: Thank you. Jodi, I notice you have a Masters of Sexual Health Counselling. What does that involve?
MS RODGERS: That degree is offered through both Sydney University and Curtin University. It's a Masters in Health Science and it's specifically related to human sexuality and sexology. So some people call themselves sex therapists, but you have to have an undergraduate qualification that then you add that masters into. So it's like a specialisation in any area, you could be a counsellor, but this is a specialisation in human sexuality.
CHAIR: Is that within the school of psychology?
MS RODGERS: Health science.
CHAIR: In psychoanalysis, psychiatry, counselling, transference is something that is very significant. How significant is that in your role in dealing particularly with people with intellectual disability?
MS RODGERS: Sorry, can you say that again?
CHAIR: Transference, the client transferring feelings to the therapist.
MS RODGERS: Well, we are registered, you know, sexologists and counsellors are registered. We receive very, very high level supervision. We cannot stay registered unless we are provided with supervision. Liz and I would be the same, we have to have ongoing professional development. This is professional qualifications. This is not you know, we haven't just done a three week course.
CHAIR: I'm not suggesting that, I'm just wondering whether it is a particular issue with people with intellectual disability of the kind you are describing. For example, people who are very, very lonely?
MS RODGERS: I have worked, and worked you know, the specialisation that Liz and I work in, I work with people that my whole life I've worked with people with intellectual, cognitive disability and acquired brain injury, so I don't see it being any different than working with anybody who is non disabled.
Of course, there are clients that you have deep concern and deep worry for and wish they had greater access to these things. Then there's other people that you know, being a counsellor, you develop a genuine relationship. That's part you know, you develop genuine relationships with people, genuine therapeutic relationships with people. So of course part of that is having an emotional response to them. It's then just having the skills and the practice and the supervision and support to know what we have to do with that, so that we remain healthy and okay within our roles and jobs.
CHAIR: Thank you. Each of you has recommended, and you have explored this a
little with the questions from my colleagues, that there should be better training for support workers. If we go back to perhaps what might be a fundamental question, there is certain basic information, understanding, knowledge that I would think everybody should have about sexuality and relationships.
I am wondering whether there might be a more effective way of communicating basic information, rather than individual counselling. In the sense that you are very skilled and you will provide counselling to people dealing with their individual issues but, from what you are describing, you do seem to spend some of your time conveying some fairly basic information to people.
I am wondering could we do this rather better and have some mechanism for ensuring that everybody has the opportunity for this basic information, and you can do what you are best at and what you are best equipped to do?
MS DORE: Can I answer that?
MS DORE: I hold group workshops and I have done that for years, but with the NDIS funding, I had to look closely at how do I hold a workshop now, because there wasn't the right line item. But what I do is, I'm allowed to have group therapy of three, so we have one group therapy of three with one counsellor and the other group therapy of three with another counsellor, so that we at least have six people together. So then we are educating six people together, with the extra benefit of them being able to chat to someone when they go to a coffee shop and the therapists sit back. Someone looking at them might think that's not therapy when you go to a cafe, but there's the purpose of observing them and then practising and coming back and looking at photos of friendships, relationships, people in bed together. That is really effective in a group.
So I have trained staff in a way where they could hold those groups as well, but there's not so much opportunity for that now. But when I was at Family Planning, we did more of that and I have been attempting to do more and give the staff the resources, and the organisations, so they in turn can go and hold those groups of six or 10 and cover lots of things all at once.
CHAIR: What you are really suggesting, I think, is that the NDIS model of funding actually is an impediment to the kind of training or imparting of information that we are talking about?
MS DORE: It is. I'd cleverly sort of got around it, so if I wanted a group of nine, I would contract three counsellors.
CHAIR: We don't want you to reveal trade secrets.
MS DORE: But it would be good if they had a line item which was for sexuality,
relationships or other types of workshops. It could be a singing workshop of 12 people where they get to meet other people and not have to have so many staff. So I certainly think for that education of people with disability who can't just go to TAFE some of them can there needs to be the capacity for therapists to hold those sort of groups as well.
CHAIR: Thank you. Did you want to add anything briefly, Jodi?
MS RODGERS: I wish that Liz and my jobs didn't exist. In my lifetime, if we could actually be not existing that would make me the happiest ever, because I think that Liz and I, we pick up on the pieces that happen after the crisis. We pick up on people who haven't received this education.
In my mind, if every single young person with a disability or without a disability was receiving really great comprehensive sexuality education at a time equal to their peers in high school, or even upper primary school, if we could get in front of this and be proactive in this education then hopefully Liz and my jobs sorry, Liz, I'm doing us out of a job.
MS DORE: We could retire, Jodi.
MS RODGERS: I think that what we often do is we are responsive when there has been a problem. We are responsive when there's been an inappropriate sexualised behaviour. We are responsive when there's been a sexual assault or we are responsive when a young person's, you know, accessing explicit material or using sexualised language. In my mind, if we could have all educators being able to provide this knowledge to people who learn differently and communicate differently, then hopefully we wouldn't be in a position that we are in now.
CHAIR: Thank you. Normally, I think it's people saying they wish lawyers didn't exist, so it is the first time I heard someone saying they wish counsellors didn't exist. Thank you very much.
MS DORE: Can I add one thing to that?
CHAIR: If you don't mind, briefly, because we are running over time.
MS DORE: The people get referred for inappropriate things for counselling, but in those group workshops, lots of people, families and staff, think Mary or John want to make a friend, let's send them to the workshop, so that's a much more positive avenue.
CHAIR: Thank you for your evidence and statements. It's been a very interesting and stimulating discussion, so thank you very much. As usual, I bear part of the responsibility, we have gone over time a little, but should we now adjourn for 15 minutes?
MR GRIFFIN: Yes, and then we'll come back with the reading of Jennifer's statement.
CHAIR: Thank you very much.
ADJOURNED [11.46 AM]
RESUMED [12.01 PM]
CHAIR: Yes, Ms Baker.
MS BAKER: Commissioners, I will now read the statement of Jennifer.
CHAIR: Yes, go ahead.
STATEMENT OF JENNIFER READ BY MS BAKER
MS BAKER: This statement made by me accurately sets out the evidence I am prepared to give to the Royal Commission into violence, abuse, neglect and exploitation of people with disability. This statement is true and correct to the best of my knowledge and belief.
I wish to tell the Royal Commission about some of the experiences of my daughter, who I will call "Natalie", although that's not her real name. Natalie lives in supported accommodation in New South Wales. In particular, I would like to share some of Natalie's experiences of living in supported accommodation operated by Life Without Barriers and the concerns that I had with the quality of services provided by LWB to Natalie.
In general terms, those concerns relate to LWB's management of Natalie's health, Natalie's finances, and allegations that Natalie was indecently assaulted by one of the disability support workers employed by LWB.
Since my engagement with the Royal Commission, I have been diagnosed with a serious illness requiring treatment. As a result of my illness, I am physically unable to give oral evidence at the Royal Commission's public hearing in December.
I currently live in East Lismore, New South Wales. I have two daughters, Natalie and Anna. Natalie is the younger of the two. In this statement I will refer to my older daughter as "Anna", although that's not her real name. I am Natalie's legal guardian.
Natalie has cerebral palsy and a moderate intellectual disability. She uses a wheelchair, hearing aids and has glasses. She is cheeky, sociable and loves her family and friends. Natalie is quite intelligent when it comes to social interactions and is a very emotional person. She is very trusting.
Natalie was integrated into normal schooling from kindergarten and finished high school. She can read and write. Natalie is a very creative person. She creates art and participates in a signing choir, a women's group, boxing, and she used to be in a band.
Natalie requires a high level of support. Natalie is mostly non verbal. She has the use of one arm and one hand. She is unable to make her own meals or shower herself. She is also incontinent.
Natalie's wheelchair is motorised, so she is able to scoot around by herself. However, she needs support when she goes out into the community. She also requires assistance with financial management.
I cared for Natalie at home, with some home care assistance, until she was 21 years old. I had carers come to my house to help care for Natalie for approximately seven years, from 2005 to 2012. I paid for these carers.
Around the time that Natalie turned 21, I realised I was no longer able to continue managing looking after her at home. During this period, she was attending day programs at Realising Every Dream Incorporated, REDinc, five days a week from 9am to 3pm. REDinc assisted me in finding casual accommodation for Natalie in Ballina and Casino around the Christmas period of 2011 and early 2012. Natalie moved out within approximately a week of REDinc identifying the casual accommodation. It happened quite quickly because I was not managing looking after her myself at home.
In early 2012, REDinc assisted me to find a vacancy for Natalie in the supported accommodation operated by LWB located in Goonellabah, a suburb in Lismore, the Goonellabah house. At this time there weren't many supported accommodation options in the Lismore area, where Natalie and I live. I do not drive, so it was important for us that Natalie lived in accommodation nearby so that I could visit her easily. The Goonellabah house was the only supported accommodation option available to us at the time. I felt like I didn't really have a choice but to accept that house for Natalie.
Before Natalie moved into the Goonellabah house, I met with the LWB Acting Disability Program Coordinator for that house. We discussed how I would like Natalie to be cared for, including that I wanted Natalie's personal care to be performed by female carers only, as this was what Natalie was accustomed to and comfortable with. Prior to moving out of home, all Natalie's home carers and aides at school had been female. I assumed that Natalie's wishes, as identified by me to LWB, would be met when she moved in.
At this initial meeting, LWB did not outline what supports they would provide to Natalie. LWB only outlined what the cost of the rent would be and how much of Natalie's Disability Support Pension would be paid to LWB. I do not know if any records of this initial meeting were kept.
I didn't really know much about how supported accommodation worked when Natalie first moved into the Goonellabah house. Natalie moved into Goonellabah in late March or early April 2012. When she moved into the Goonellabah house, she initially lived with two other housemates, who I will call "Sophie" and "Naomi", although these are not their real names. Another housemate moved into the house a couple of years later.
I observed that because Natalie had higher support needs than Sophie and Naomi, they were sometimes jealous of the care that Natalie received from the disability support workers at the house. I was told by disability support workers at the Goonellabah house that sometimes Sophie and Naomi were nasty toward Natalie and that on a couple of occasions they hit and punched her. Despite these incidents, it appeared to me that the housemates would make up the following day and become friends again.
Based on my conversations and interactions with Natalie, I could tell that this dynamic with her housemates was confusing for her because she didn't understand it. Natalie likes everyone.
When Natalie moved into the Goonellabah house, LWB provided us with some information about how the house ran and what the roster system was. I observed very early on that the roster was not consistent.
When Natalie first moved in to the Goonellabah house, LWB did not provide much support to Natalie or the other residents to access the community. For example, whenever Natalie went out for dinner or visited her family, LWB made it seem like it was a huge hassle and we, her family, would have to organise the transport and logistics ourselves.
LWB staff told Anna and me that because there was only one staff member rostered on overnight, after 9pm they would not pick Natalie up if she was out at night. However, Anna and I didn't feel comfortable with Natalie going home in a taxi alone. It was only when the National Disability Insurance Scheme, NDIS, was introduced in 2017 that we were able to use a private aide to assist Natalie in accessing the community and staying out later at night when she was out and about.
From my observations, LWB did not seem keen to work closely or effectively with REDinc, where Natalie attended a day program, to support her and her goals. REDinc would write things in Natalie's communication book to communicate back to LWB. For example, I was told by REDinc staff that on one occasion they wrote in Natalie's communication book that she seemed tired at her day program that day, and
LWB wrote a defensive comment in reply. REDinc staff told me that LWB would often ignore their entries or would write something defensive in reply.
I did not feel welcome visiting Natalie at the Goonellabah house because of my history of poor communication with LWB staff and because I did not feel like they respected my concerns about their care of Natalie. Instead, I often visited her when she was attending her day program. I was told by an LWB staff member at the Goonellabah house that the LWB staff did not like that they had to answer to me in relation to decisions concerning Natalie. Some of the other residents' families were not as involved as I was.
Natalie is incontinent. After she moved out of home and into supported accommodation, issues with her bowels became progressively worse. When Natalie first moved out of home and into temporary accommodation in Ballina, she developed a blockage in her bowel.
One day I received a call from a REDinc staff member, asking me to go to the temporary accommodation in Ballina because they thought that Natalie had diarrhoea. I went to Natalie's accommodation in Ballina and realised that she most likely had a bowel blockage. I took her to hospital, where she was treated for the bowel blockage.
When Natalie moved into the Goonellabah house, I told the LWB staff at the house about this recent hospitalisation and told them to keep an eye on Natalie's bowel movements and her general wellbeing. Two or three months after Natalie moved into the Goonellabah house, I received a call from an LWB staff member at the, house asking me to come there to give Natalie an enema, which a doctor had told me how to perform. I advised the LWB staff member that they actually needed to take Natalie to the doctors to perform the procedure, and then I did not hear back from them.
A couple of days later, Natalie's father called me to tell me that Natalie had been rushed to hospital because of issues with her bowels and that he was there with her. Natalie's father said that Natalie kept asking where I was. I had not been informed by LWB that Natalie had been taken to hospital, so I called the LWB Disability Program Coordinator for the Goonellabah house and asked her why she didn't inform me that Natalie was being taken to hospital. She said she didn't tell me because she didn't want to tell me. From that point on, she and I essentially stopped communicating by phone or email.
My understanding, based on what I observed and based on Natalie's behaviour, is that from early on, staff at the Goonellabah house would make a big deal about cleaning Natalie after bowel movements, which would make her uncomfortable. It appeared that Natalie was then reluctant to pass bowel motions at the Goonellabah house and that she would hold on until she came to stay with me.
Natalie was put on a number of medications, namely aperients, for temporary relief
of her bowel issues. Natalie had pre existing bowel issues before she moved into the Goonellabah house, but I believe that the LWB staff did not manage her properly, despite me raising the importance of her bowel management with disability support workers and the team leaders on a number of occasions.
When Natalie first moved into the Goonellabah house in around April 2012, I was managing Natalie's finances, as I had always done. Natalie had her own bank account from the time she started receiving the Disability Support Pension. Natalie's Disability Support Pension payments would arrive in her account, which I managed for her. I would provide money to LWB staff when they asked me for it, so Natalie could do things like buy lunch. Because I had always managed Natalie's finances on my own, I was naive about this arrangement at the time and, unfortunately, did not collect receipts or maintain records.
In 2013 I received a letter from an advocate from a local disability advocacy service. The letter stated that the advocate was making an application to the Guardianship Tribunal to appoint a financial manager for Natalie. My understanding is that LWB had contacted the advocate and he had apparently met with Natalie. LWB had done this with no prior notice given to me. The advocate made the application to the Guardianship Tribunal on 11 June 2013, stating that Natalie did not have enough money to take part in activities and day programs, and that attempts to resolve the issues had been unsuccessful.
Guardianship Tribunal proceedings took place over the phone on 10 September 2013. I attended by phone with Anna and Natalie, and I recall that the advocate and someone from the New South Wales Trustee and Guardian also attended. Everyone present at the proceedings agreed that Natalie was not capable of managing her own financial affairs. The Guardianship Tribunal decided to commit Natalie's estate to the management of the New South Wales Trustee and Guardian.
Both the advocate and I provided an account of the money provided by me to Natalie. I had only been keeping record for the six months prior to the tribunal proceedings. The tribunal was not able to reach a financial conclusion about the conflicting accounts of funds provided to Natalie by me. However, the tribunal decided that the discrepancy in accounts was such that Natalie would still benefit from involvement of the New South Wales Trustee and Guardian and that Natalie would benefit from an opportunity to have more input into decisions about how her money was spent.
Initially I indicated to the tribunal that I would like to be appointed as financial manager. However, I subsequently withdrew my nomination because I was finding the process stressful.
A copy of the tribunal's reasons for decision, dated 10 September 2013, is annexed.
This meant that even though LWB were not Natalie's formally appointed financial manager, because she lived in a house operated by them, LWB was, in practical
terms, controlling her money. Natalie's Disability Support Pension arrived in her bank account, which LWB had access to because they were in possession of her keycard connected to her bank account. LWB staff kept Natalie's keycard locked in the safe at the house and the LWB staff working at the house had access to the safe and the keycard's PIN code.
Sometimes, if Natalie wanted to purchase something or go out, I would tell her to ask LWB staff to give her some of her money. Natalie would tell me that she had already asked, but that they would not give it to her. I often told the LWB staff that it was Natalie's money and if she wants to go out to lunch or spend it, she should be able to do that. I'm not really sure how LWB was using Natalie's money. I was still paying for many of Natalie's lunches out, pharmacy bills and new clothes.
One time when my daughter Anna went to pick up Natalie to take her on holidays for a couple of days, Anna asked LWB staff for her sister's keycard, to pay for things for Natalie while she was away. LWB staff told Anna that she was not entitled to have the keycard, even though she was only asking for it so that Natalie could have access to her own money. From 2013 to 2017, based on what Natalie told me, she appeared to have almost no money available to her to spend.
On 9 August 2015, I received a voicemail message from the LWB operations manager, advising me that she was in the area and wanted to arrange a meeting to discuss alleged indecent and sexual assaults of Natalie. This was the first I had heard about Natalie being the victim of alleged indecent and sexual assaults and it was a very distressing way to learn the news.
Anna and I met with the Area Operations Manager and an LWB investigator, who gave us a brief rundown on LWB's internal investigation. I was told that a male LWB disability support worker working at the Goonellabah house had been charged with aggravated indecent assault of a person with physical disability and the offence of a carer having sexual intercourse with a person with cognitive impairment.
I learned that these alleged offences had occurred while the male disability support worker was performing Natalie's personal care. I do not recall being told specifically when the incidents had occurred. I was told that LWB had received some complaints against the male disability support worker and that an LWB investigator had been appointed to investigate the allegations. I was told that LWB had stood the male disability support worker down during their internal investigation and reported the allegations to the police, but I'm not sure when.
The Area Operations Manager arranged for us to meet with a detective from Lismore Police Station, who was investigating the allegations. Anna, Anna's partner and I met with the detective on our own.
Before I was notified about the allegations in August 2015, on the occasions I did visit the Goonellabah house, I had noticed this male disability support worker paying an unusual amount of attention to Natalie. For example, he would usually be the
disability support worker who picked her up or dropped her off at my house. I also observed him getting really close to Natalie whilst they played games together on Natalie's iPad at the house, often sitting by themselves in the corner of the living room.
I mentioned my concern about this about four or five times in late 2014 and early 2015 to a couple of the LWB disability support workers at the Goonellabah house. But they dismissed my concerns and told me that the male disability support worker would never do anything to Natalie. I don't know whether any of my concerns were recorded by these workers.
I had also observed changes in Natalie's behaviour during 2014 and early 2015. I could tell there was something wrong with Natalie because she became angry when something was wrong. It was not like Natalie to be angry. When I visited Natalie at REDinc during her day programs, REDinc staff said they had noticed something was going on with Natalie. During this period, I also noticed that Natalie was not eating well. She was eating a lot of junk food and was gaining weight.
The male disability support worker was charged by police and pleaded not guilty. He was tried in the District Court in September 2017. Anna attended the trial, but I could not bring myself to because it was so distressing.
After we were informed of the indecent and sexual assault allegations in 2015, Anna and I had a number of meetings with the LWB Area Operations Manager and other LWB staff. At one of these meetings on 10 August 2015, Anna and I met with the LWB Area Operations Manager to discuss the indecent and sexual assault allegations, as well as other issues relating to Natalie's care.
We discussed such issues as maintaining Natalie's privacy during personal care, male carers to leave the room, Natalie to be covered by a towel and no pad changing by males; Natalie's diet, causing weight gain and constipation; Natalie's financial management and the fact that LWB staff seemed to be unclear as to my role in decision making around Natalie.
On 13 August 2015, the Area Operations Manager emailed Anna a summary of the issues discussed and how she would deal with these issues. Anna showed me this email and a copy is annexed to this statement.
The LWB Area Operations Manager emailed Anna on 11 September 2015 with a list of the concerns that had been raised at the meeting in August and her comments regarding how LWB was dealing with those issues. Anna showed me a copy of this email, which is annexed.
On 6 October 2015, a planning meeting for Natalie took place with the LWB Practice and Program Specialist, Anna, Natalie and I present. At that meeting we discussed issues, including that Natalie needed more financial planning and that she needed a key worker. The LWB Practice and Program Specialist emailed meeting notes to
Anna, which Anna has shown me and which are annexed.
Another meeting to discuss various issues with Natalie's care took place on 18 November 2015. In attendance were the Goonellabah house Team Leader, an LWB disability support worker, Natalie, Anna, the LWB Practice and Program Specialist, Natalie's independent carer from REDinc, Natalie's sexual assault counsellor and advocate, and me. The Goonellabah house Team Leader emailed meeting minutes to Anna, which Anna has shown me and which are annexed.
A further meeting took place on 9 December 2015 with myself, Anna, Anna's partner, Natalie's independent carer from REDinc, Natalie's sexual assault counsellor and advocate, the LWB Practice and Program Specialist, the new LWB Program Coordinator and the Goonellabah house Team Leader. I opened the meeting by discussing my concerns surrounding the support provided by LWB to Natalie and stated that my initial agreement with LWB included that no males would be rostered on any shifts without a female staff member to work with and support Natalie. We discussed Natalie's safety plans and issues with Natalie being able to access her money. A copy of the minutes from this meeting are annexed.
The tone of this meeting in December felt very aggressive to me. I became very upset during the meeting because Anna and I had asked LWB from the outset to ensure that Natalie's personal care was being performed by women only and for years I had believed this was happening, but in fact it wasn't.
After this meeting in December 2015 my communication with LWB staff at the Goonellabah house deteriorated further.
Although lots of action items came out of these meetings, I did not feel like there was any change in the attitude of the LWB staff towards me, or their care and support of Natalie, from my observation and experience with them. At the meeting it seemed to me like LWB was trying to fix up the mess it had created following the indecent and sexual assault allegations coming to light.
As far as I can recall, neither Natalie nor I have ever received an apology from LWB in relation to what happened to her. I truly felt, and still feel, that LWB's failure to have women only attending to Natalie's personal care enabled the assaults on my daughter to occur.
After Anna and I became aware of the indecent and sexual assault allegations, REDinc helped us to get some assistance from a sexual assault counsellor for Natalie. The counsellors went above and beyond in their support of Natalie. They started working as Natalie's advocates as well and really helped us. For example, they really advocated for Natalie in relation to increasing her financial independence and helped Anna and I understand how financial management orders under New South Wales Trustee and Guardian worked and how applications to the NSW Civil & Administrative Tribunal could be submitted.
I recall that at one counselling session that Anna and I attended with Natalie, the counsellor told Natalie she would never have to see the male disability support worker who had allegedly assaulted her again. Natalie started chanting "Never, ever, ever". Natalie is mostly non verbal and had never done anything like that before. Anna and I started crying because at that point we knew what had happened had deeply affected Natalie emotionally.
I was not able to bring myself to attend the criminal trial because it was too much for me, but Anna attended. The male disability support worker was found not guilty by the jury of the charges of aggravated indecent assault and the offence of a carer having sexual intercourse with a person with cognitive impairment. The trial occurred in September 2017, about two years after I was told about the allegations.
LWB did not refer Natalie or me to a counsellor or a solicitor, following the indecent and sexual assault allegations. After we met with the detective from Lismore Police Station, we met with some solicitors from the New South Wales Office of the Director of Public Prosecutions on a few occasions.
LWB did not offer Natalie any alternative accommodation so she wouldn't have to continue living in the same house where it had been alleged the indecent and sexual assaults had occurred.
My understanding, based on what the Area Operations Manager told me, is that the indecent and sexual assault allegations were brought to the attention of New South Wales police after LWB's internal investigation. I am not aware of LWB conducting any further investigation into how the organisation managed the indecent and sexual assault allegations, or of the related concerns and complaints raised to LWB management by its own staff over a number of years prior.
All of Natalie's housemates at the Goonellabah house moved to a newly constructed, purpose built residence in Lismore in July 2016, the Lismore house. The staff who had previously been working at Goonellabah also transitioned to the Lismore house to continue working with the residents.
A few months prior to July 2016, I was told by LWB staff that they were planning on moving Natalie and the other residents living at the Goonellabah house into a new residence. LWB told me they were going to include the parents in the transition process and asked questions about what they would like at the new home. So far as I know, this consultation process with the residents' families did not occur. There was very little communication or information shared by LWB with me or with Anna in relation to the move.
I could tell from her demeanour that Natalie was very worried about the move to the new house, as she doesn't like a lot of change. I asked LWB staff whether I could go down to the new Lismore house on the day Natalie moved in, to see how she was adjusting. An LWB disability support worker at the Lismore house told me over the phone that I could not visit her and they did not want parents interfering.
The next day I received a call from a REDinc staff member, telling me that Natalie was crying at her day program and was upset because of the move. I then contacted an LWB staff member at the new Lismore house and asked if I could visit Natalie because she was upset. LWB then allowed me to visit Natalie at the Lismore house the following day, but the disability support workers did not speak to me and I left quite quickly in tears, after only spending a short amount of time with Natalie, because I felt so unwelcome at the house.
After the indecent and sexual assault allegations came to light, I decided to dig deeper into some of the issues I had observed had been affecting Natalie while she was under LWB's care. These included issues relating to her health and her financial management. I spoke to Anna about this and she and I felt that LWB was mishandling Natalie's money and that the NSW Trustee and Guardian, who had been appointed financial manager in 2013, was not picking this up.
LWB staff would lock Natalie's keycard in the safe and would not give her access to her own money. About 13 or 14 people had access to the safe, from what I knew. It also wasn't clear to me where the remainder of Natalie's pension was being spent after LWB was paid from it.
Natalie's sexual assault counsellor and advocate explained to Anna and me how the New South Wales Trustee and Guardian operated. On 24 March 2017, Anna and I submitted an application to the Guardianship Division of the NSW Civil & Administrative Tribunal, NCAT, to have the New South Wales Trustee and Guardian removed and for Anna and me to become joint financial managers for Natalie. A copy of our application is annexed.
An NCAT teleconference took place with myself, Natalie, Anna, Natalie's sexual assault counsellor and advocate, an LWB disability support worker, the Goonellabah house Team Leader and someone from the New South Wales Trustee and Guardian. Natalie had, and still has, a trust fund managed by the New South Wales Trustee and Guardian. The fund comprises compensation she received after she fell out of her wheelchair and chipped her tooth as a child.
On 5 July 2017, the Tribunal decided that it was in Natalie's best interests for Anna and me to become Natalie's joint financial manager, on the basis that the decision would be reviewed in 24 months. The Tribunal found that Natalie did not have enough money to pay for her day program activities when LWB was controlling her weekly allowance, under the supervision of the New South Wales Trustee and Guardian. The Tribunal was satisfied that the arrangements for management of Natalie's weekly allowance at the time were not working. Natalie said that she was happy for me and Anna to look after her money for her. A copy of the Tribunal's reasons for decision are annexed.
Natalie's first NDIS plan was approved on 31 July 2017. Natalie received a nutrition plan in March 2019, which was emailed to me and Natalie's support coordinator at
REDinc. The dietician recommended a review at Natalie's group home, in order to assist her carers with implementation of the recommendations and meal plan. A copy of this plan is annexed.
In July 2019, the NCAT reviewed Natalie's financial management orders made in July 2017. On 19 July 2019, prior to the NCAT hearing, Anna emailed the NCAT on my behalf, copying me in, in relation to the hearing scheduled for 26 July 2019.
Anna requested that the LWB Team Leader at the Lismore house not be allowed to attend the hearing. Anna requested this because we believed that the information to be disclosed at the hearing did not concern LWB and we had concerns of recourse for Natalie following certain information being discussed. Anna said in her email to NCAT that there were issues of confidentiality in relation to LWB and their staff, and there were conflicts of interest originating from the previous financial management order review.
I was not aware that this email to the NCAT would be provided to LWB. A copy of this email is annexed.
The hearing was held on 26 July 2019. Despite our request, the LWB Lismore house Team Leader attended the meeting. A copy of the hearing report is annexed. The NCAT decided that it would not revoke its earlier decision made in 2017 and that Anna and I would remain jointly appointed as the financial manager of Natalie's financial affairs without further review.
During the NCAT hearing, Anna and I told the NCAT about Natalie's current financial arrangements. We told them that her income was the Disability Support Pension and after automatic deduction through Centrepay by LWB, there was about $210 per fortnight remaining, which we distributed in cash between Natalie's three service providers for her spending money.
At the hearing, Anna and I complained that LWB had not provided proper accounting for receipts or other accounting for the last six months or so. The LWB Lismore house Team Leader said this would be attended to. The NCAT reinforced to the Team Leader that this was necessary under the private manager obligations on Natalie's financial manager, Anna and I, to the New South Wales Trustee and Guardian. A copy of the NCAT's reasons for decision is annexed.
Following the NCAT hearing, the LWB Shared and Supported Living Coordinator contacted me about some of the issues Anna had raised in her email to the NCAT, dated 19 July 2019, when she requested that the LWB Team Leader not attend the NCAT hearing. I had two meetings with the LWB Shared and Supported Living Coordinator on 31 July 2019 and 15 August 2019. Some of the issues I raised at those meetings were that I felt generally uncomfortable and unwelcome visiting Natalie as the Lismore house, that I had ongoing concerns about her financial management, health and personal care. I also raised the fact that following the alleged indecent and sexual assaults in 2015, Natalie had experienced anxiety and
unable to sleep at night when there was a male carer on night shift. The LWB Shared and Supported Living Coordinator recorded notes of the issues I raised at those meetings. A copy of those meeting notes, along with her responses, is annexed.
It seemed to me as though the LWB Shared and Supported Living Coordinator really wanted to address some of the issues I had raised. For example, she noted that I would now be provided with monthly financial records and that staff would follow Natalie's meal time plan and dietician's recommendations. She also responded saying that female staff would now be on night shifts.
On 7 September 2019, I emailed the LWB Shared and Supported Living Coordinator, advising her that Anna and I had reviewed Natalie's receipts for the past six months and were livid about LWB wasting her budget. Approximately $450 had been spent on takeaway food. I believed that this reliance on takeaway meals was in some part contributing to Natalie's ongoing bowel issues. I observed when I visited Natalie at the Lismore House that very little food was prepared fresh. A copy of this email is annexed.
On 25 September 2019, the LWB Shared and Supported Living Coordinator emailed me a copy of the action plan for Natalie, dated 24 September 2019, which she had discussed with the LWB Operations Manager. In her email, the Shared and Supported Living Coordinator said that she had spoken with the LWB Lismore house Team Leader and that the plan would be implemented as soon as possible and that staff would be given direction to follow it. The Shared and Supported Living Coordinator said that she would follow up with the Team Leader weekly to ensure things are happening. She said that we would meet again with her and the LWB Operations Manager in about a month. A copy of the email from the LWB Shared and Supported Living Coordinator is annexed. A copy of the action plan for Natalie, dated 24 September 2019, is annexed.
I attempted to call the LWB Shared and Supported Living Coordinator some time after receiving Natalie's action plan, but was informed that she had left the organisation. The foreshadowed call with the Shared and Supported Living Coordinator and Operations Manager to discuss Natalie's action plan never happened.
In November 2019, Natalie was assessed by a speech pathologist who developed a mealtime management plan for her. I signed off on this plan. This was distributed to her support team at the Lismore house and her day services in December 2019. The plan stated that Natalie needs her food modified in texture and particle size.
In December 2019, the NDIS assessed Natalie for Specialist Disability Accommodation, SDA, eligibility. I told the NDIS I was not satisfied with the care that Natalie was receiving at her current home and was searching for alternative supported accommodation.
The concerns I raised at this time were that LWB staff put Natalie to bed at 7pm, contrary to her wishes, that she wasn't allowed choice in her meals and was often given meals that did not comply with what her treating dietician had recommended, and that her prescribed exercise plan wasn't followed, resulting in health complications.
Natalie was deemed eligible for SDA funding and was placed in the category of "extreme functional impairment", with the appropriate design category "high physical" support.
On 8 January 2020, I forwarded the LWB Acting Operations Manager at the time a copy of the former LWB Shared and Supported Living Coordinator's email, enclosing Natalie's action plan dated 24 September 2019. A copy of this email is annexed.
On around 25 February 2020, I had a meeting with the LWB Acting Operations Manager about my concerns about the care being provided to Natalie. I expressed my concern about the conversations between LWB staff that occurred in front of the residents. I made a number of requests, including that I be notified if any new staff, in particular male staff, were employed, and that Natalie be showered twice daily, due to the heat and humidity, and that receipts be given to me in a timely manner. I expressed concern that Natalie had an anxiety disorder. During that meeting it seemed to me that Natalie's action plan developed on 24 September 2019 was no longer viable.
On 9 March 2020, when Natalie was still living in the Lismore house, she was taken to the hospital emergency department by her carer. A CT scan of her abdomen was performed on the night she was admitted and she was diagnosed with chronic distension and a large faecal mass in her rectum.
In the weeks leading up to 9 March 2020, I suspected something was wrong with Natalie. I asked the LWB staff at the Lismore house numerous times in the weeks prior to 9 March to provide me with Natalie's bowel charts, because they hadn't been providing them to me.
Approximately a week before 9 March 2020 I saw Natalie and thought she seemed unwell. I spoke to the Lismore house Team Leader on the phone and told her that Natalie needed to be taken to the doctors because I had observed her to be feeling unwell.
Natalie was taken to see her regular General Practitioner by one of the LWB support workers on 5 March 2020. The Team Leader told me over the phone after the appointment that Natalie was fine and that the General Practitioner had said they just needed to give her more Movicol.
On Sunday, 8 March 2020, I visited Natalie at the Lismore house and thought she didn't look well. I mentioned this to two disability support workers. I mentioned
again that I still didn't have Natalie's bowel charts, and the disability support workers told me they were working on it.
On Monday, 9 March 2020, Natalie went to play bingo with her independent non LWB disability support worker. That worker called me and said that Natalie didn't look well and asked if she could bring Natalie to my house. I said, "Yes, of course". When Natalie arrived, she started crying and saying, "I don't feel well, mum". I was very worried about her. I immediately called a taxi to take us to the hospital. In the taxi to the hospital she was crying and her hands were clenched because she was in so much pain. It was horrible to see my daughter in such distress.
When we arrived at the hospital, LWB staff were only able to produce bowel charts for five days prior to the hospital. The disability support workers later said to me that bowel charts for all the other days hadn't been completed by staff at the house. I understood that the bowel charts are meant to be recorded by LWB staff every day and record all Natalie's food and fluid intake and her bowel motions.
On 11 March 2020, Natalie went into the operating theatre at the hospital for a manual disimpaction under general anaesthetic because I was told by the doctors that conservative management had not worked. Doctors at the hospital told me afterwards that calcified faecal mass had changed the shape of her uterus and this might be permanent. The doctors also said that they were not sure how things had gotten so bad with respect to Natalie's bowels in the lead up to her hospitalisation. Anna and I were told that she was close to having a ruptured bowel and consequent sepsis. Natalie nearly died because of this incident.
A couple of the disability support workers from the Lismore house came up to the hospital to support Natalie and be with her, but other than that there was very little support offered to Natalie, or to us as a family. Natalie needs constant support and could not really be left alone while she was in the hospital.
After this incident, doctors at the hospital and Natalie's GP said to me and to LWB that LWB should provide Natalie's bowel charts to me every two weeks. Initially, LWB provided them to me every two weeks, but then they stopped, and I practically had to beg for them after that.
They did provide the bowel charts to me on some occasions that I pushed for, but they were not provided to me routinely. Due to the issues that arose early on when Natalie first moved in to Goonellabah, Anna and I had been looking for a new home for Natalie on and off for almost 10 years. Some time after I was told about the indecent and sexual assault allegations in August 2015, REDinc identified a non LWB house in Goonellabah that Natalie might have been able to move into if certain modifications were carried out. However, those modifications did not happen. There were very few available alternative support accommodation options in the Lismore area. Since 2012 I have investigated and looked at anything that came up as an option but I found nothing that was really suitable for Natalie.
Ideally, Anna and I would have liked Natalie to move in to her own unit with one to one support. However, we were under the impression that the NDIS would not have agreed to fund this. After Natalie was hospitalised in March 2020, our search for a new home for her escalated because Anna and I were so worried about her safety and the state of support she was receiving at the Lismore house.
Fortunately, in 2020, a vacancy came up for Natalie in supported accommodation managed by a different service provider. I was able to secure a spot in this new accommodation for Natalie in August 2020.
In around May 2020, I applied to have Natalie's support coordinator at REDinc replaced by someone from a different organisation. The new support coordinator helped me a lot during the transition and helped us move Natalie into her new accommodation.
On 21 May 2020 I sent an email to members of the LWB management regarding concerns I had about the Lismore house. I stated that the LWB Shared and Supported Living Coordinator and I had discussed an action plan for Natalie which was approved on 24 September 2019 and that within three months this plan was non existent and things had returned to the old ways. What I meant by this was that Natalie's action plan, although it seemed good on paper, was never actually implemented by staff at the Lismore house after the Shared and Supported Living Coordinator left LWB, and I felt like once again none of my concerns about LWB's care of Natalie were being taken seriously.
In this email, I also raised my concerns about Natalie's hospitalisation in March 2020 and LWB's failure to respond to my concerns in the lead up to that hospitalisation. I also expressed my frustration at having to chase LWB staff constantly for Natalie's bowel charts.
I expressed frustration that after Natalie had been living in LWB homes for 10 years with many meetings held and emails sent, nothing really had changed and none of the issues and concerns I had raised with them over those 10 years had ever been properly resolved. A copy of this email is annexed.
On 22 May 2020, the LWB Operations Manager replied to my email saying she would ask the Acting Operations Manager to give me a call the following week and set up a meeting to make a new plan.
In October 2020, on Natalie's behalf I applied for supported independent living, SIL, funding for her new accommodation through the NDIS.
Natalie vacated the Lismore house on 23 October 2020 and moved into her new accommodation. When Natalie moved out of the Lismore house and we went to pack up her room we found four to five boxes of shampoos and conditioners, personal washes and medications. We also found that there was an unpaid bill at the chemist of around $300 which I had to pay for personally.
After Natalie moved in to her new accommodation she started saving money. I think she was able to save money because the money wasn't being spent on takeaway meals and other unnecessary expenses. Nowadays the staff at the new house check in with me before Natalie is planning to spend significant amounts of her money, but she is able to buy smaller things herself. Her chemist bill is paid at the end of every month.
Natalie is a very giving person and likes to buy people presents. She remembers all our birthdays and loves to plan presents weeks in advance. Last year at Christmas she had saved enough money to buy her family Christmas presents. She had a Christmas tree set up at her new unit and she put all the presents under it. For years she has had to ask me for money to buy people presents, but now she can buy them herself with her own money that she's saved.
Over the years that Natalie was living in homes operated by LWB I made many complaints to LWB. Most of the complaints I made were in person to the disability support workers at the houses or I would send text messages or emails to the team leaders. Whenever I raised a concern with a disability support worker at either the Goonellabah or the Lismore houses, it usually seemed to be referred to the house's Team Leader, after which things were never really properly looked into, in my opinion.
The team leaders did not seem to act on the complaints so I started making complaints to the LWB office in Alstonville. LWB had a very high turnover of staff which I believed affected its ability to respond to the complaints I was raising. The only time LWB appeared to take any of my complaints or concerns seriously was around the time that the indecent and sexual assault allegations concerning Natalie came to light in 2015. LWB has guidelines on their website and forms to fill out to make a complaint, but even when I followed this process and filled them out, this didn't seem to make any difference because LWB's response to my complaints or concerns would generally be that whatever they were doing was "within our guidelines".
For example, on one occasion after the indecent and sexual assault allegations came to light, LWB staff trimmed Natalie's pubic hair because they didn't want to shower her. When I raised this as a problem with LWB staff at the house, I was told that it was within their guidelines, even though Natalie had a history of allegations of being indecently and sexually assaulted by a male worker, and I considered removing her pubic hair in the circumstances to be really inappropriate. I often received this response but was never provided with any information or the details about what LWB's guidelines were in relation to personal care.
Over the years that Natalie was living in supported accommodation operated by LWB, I made a number of complains to oversight bodies such as the NDIS Quality and Safeguards Commission, the NDIS commission. Years ago I also made a complaint to my local member of Parliament.
In late March 2019 I made a complaint to the NDIS commission about the lack of communication provided to me by LWB with respect to Natalie. I also expressed concerns to them about Natalie's safety in the Lismore house and the inadequate number of staff supporting the residents, particularly between the hours of 3pm and 4pm when only one disability support worker was available.
I told the NDIS Commission about an incident that had occurred around that time where it appeared to me that one of Natalie's female housemates had verbally and physically assaulted two disability support workers and another resident, and in my opinion LWB was not taking enough action to prevent these kinds of incidents.
I had a subsequent conversation over the phone with someone from the NDIS Commission and provided them with further information about the incident in late March 2019 at the Lismore house where the female resident allegedly assaulted two disability support workers and a resident. I told the NDIS Commission that I had recently raised my concerns about LWB's lack of communication and Natalie's safety with the new LWB Disability Program Coordinator. The NDIS Commission asked me if I wanted to withdraw my complaint after the female resident who had assaulted others left the Lismore house. From memory I said I just wanted it leave it for now. I felt it didn't really matter who I spoke to or what I did because my complaints never seemed to be taken seriously. I'm unsure if the NDIS took any further action.
In June 2020 I received a call from someone at the National Disability Insurance Agency, the NDIA, asking about LWB's care of Natalie during the COVID 19 pandemic. During this call I advised the NDIA that I was very unhappy with LWB and was looking at changing Natalie's service provider. I told the NDIA about the fact that several years ago Natalie had been allegedly indecently and sexually assaulted by a male LWB disability support worker. I told them that following this incident I requested that LWB ensure that no male disability support workers support Natalie overnight, given the impact it had on Natalie. I told them this was accommodated for a couple of months, but after the Team Leader left that role, male disability support workers were once again rostered on to care for Natalie overnight. I told them that I raised this issue again with LWB but did not receive an adequate response.
I also told the NDIA about Natalie's hospitalisation in March 2020 and that LWB staff had initially taken Natalie to see a doctor and advised me that she was okay. I told the NDIA that following the hospitalisation, LWB staff did not accept any responsibility for the fact that they should have acted sooner in relation to Natalie's deteriorating condition. I told the NDIA that I had ongoing concerns about Natalie's wellbeing and safety at the Lismore house.
The person I spoke to from the NDIA encouraged me to contact the NDIS Commission to make a complaint about the issues I had raised about Natalie's care. I was told that the NDIA would refer the incidents I had raised to the NDIS Commission.
When I had a telephone conversation with someone from the NDIS Commission in September 2020, I advised that I no longer wished to continue the complaint against LWB because Natalie was moving into new accommodation run by a different service provider. The NDIS Commission asked for my permission to speak to LWB about the issues I had raised which I gave. I do not know whether the NDIS Commission ended up contacting LWB about my concerns or whether any further action was taken after my complaint was closed.
One of the reasons I did not wish to continue my complaint against LWB was because it had been so exhausting making complaints to different people and agencies over a period of 10 years and feeling like no action was being taken in response. I was ready for a fresh start for Natalie.
Overall, the NDIS has been good for Natalie. Prior to the introduction of the NDIS her funding wasn't very good. Now there is more oversight and control in relation to her funding.
I think that LWB needs to adhere to its own procedures, policies and guidelines. I also believe that LWB needs to improve their social and people skills and how they interact and work with the families of residents. LWB staff need to treat the parents of residents with more decency.
I also think there were cultural issues amongst the disability support workers working at the homes run by LWB that weren't addressed by management. It seemed like LWB did not want to let other organisations in. They were liked a closed shop or closed ranks.
From my observations, LWB treated Natalie like a commodity because she had a large funding plan. It was like they felt they had ownership of Natalie. I'm not sure whether these issues are specific to the homes that Natalie lived in, or whether it's the same at all homes run by LWB, but it seems like they need to improve their training and how they recruit their staff, because the disability support workers often didn't have a good work culture, from what I saw. LWB had an extremely high turnover of staff.
There was also a problem with privacy and confidentiality at the group homes. LWB staff would speak about residents' private issues in front of everyone else and it would be spread around. I observed occasions where LWB staff ate the residents' food and used Natalie's iPad for their own personal reasons, such as logging in to their personal Facebook accounts or dating applications.
Natalie often seemed like she was scared of the disability support workers and the Goonellabah and Lismore houses and that she was scared to speak up. At her new home she chatters all the time and appears very happy and comfortable with her workers.
Natalie continues to reside in her new supported accommodation. She is thriving there. She has more one to one support. In her current accommodation Natalie has her own unit, which is one of five units connected to a main house. She has her own independent support workers come in and work with her. This was not possible at the Lismore house during the COVID pandemic, but it is possible at the new accommodation with the new service provider.
I'm so happy that I got Natalie out of the Lismore house. I don't think she would have survived there much longer. Even though Natalie is very resilient, her physical and mental health were declining living at that home.
Anna and I and the whole family feel that Natalie's quality of life is much better in her new accommodation. We feel much more comfortable visiting her at her home, which was not the case when she was living in the homes operated by LWB.
We feel like we have our old Natalie back, like how she was when she lived at home with me.
Commissioners, further to Jennifer's statement, there are some documents within the bundles of documents that you should also be aware of. In particular, documents produced by the NDIS QSC, in particular at bundle F, tab 188, indicate that Jennifer had made a complaint to the NDIS QSC on 27 March 2019.
That document, and a further document found at bundle F, tab 189, indicated that the NDIS QSC was proposing to undertake a resolution process which would require LWB to examine and attempt to resolve the dispute and then report back to the Commission.
The NDIS document found at bundle F, tab 188, indicates that on 1 April 2019 a complaints officer telephoned Jennifer. The file note for that conversation states as follows:
I called to advise that following AD .....
..... advice, Rule 20(1)(a) was going to be enacted requesting the provider undertake a resolution process directly with the complainant. Jennifer advised that she was going to call back after our earlier conversation and request the complaint be withdrawn. Jennifer advised that she doesn't think anything will change at the group home and is in the process of searching for a new provider. I asked if Jennifer had any further questions, to which she replied "no". I confirmed with Jennifer that the withdrawal request was not as a result of the above advice. I advised the complaint will be withdrawn, a letter issued and the NDIS Commission could be contacted if any future concerns are identified.
Thank you, Commissioners, that concludes the evidence relating to Jennifer.
CHAIR: Thank you very much. Ms Baker, it is now just after 1. We will resume at 1.50 Australian Eastern Daylight Time. Thank you.
CHAIR: Yes, Mr Fogarty.
MR FOGARTY: Commissioners, the next witness is Samantha Taylor, Acting Commissioner of the NDIS Quality and Safeguards Commission and also currently, as I understand, Registrar of the QSC. Ms Taylor has provided a statement dated 17 November 2021 for this public hearing. It can be found at hearing bundle F, tab 4, and attachments are in the same bundle F at tabs 126 to 216.
I note that Ms Taylor provided a statement, dated 13 August 2020 for Public Hearing 5, entitled "Experiences of people with disability during the ongoing COVID 19 pandemic". For reference, that is also at hearing bundle F, tab 5. She appeared before the Royal Commission at that public hearing to give oral evidence.
CHAIR: Yes, thank you. Ms Taylor, thank you very much for coming to the Royal Commission to give evidence and appearing in person today.
So you are aware, Commissioner Galbally, who you can see on the screen, is in Melbourne; Commissioner McEwin, of course, is in the same hearing room as I am, which is the Sydney hearing room; Mr Fogarty will ask you some questions in just a minute. In the meantime, if you will be good enough to follow the instructions of my associate, he will administer the affirmation to you much.
MS SAMANTHA TAYLOR, AFFIRMED
EXAMINATION BY MR FOGARTY
MR FOGARTY: Ms Taylor, you have provided the Royal Commission with the statement I just referred to, dated 17 November 2021, in response to a notice to give a statement. For completeness, this morning a corrigendum was provided of seven paragraphs. For reference, that is in hearing bundle F, tab 4A.
To be clear on what that is, it is essentially amendments to four paragraphs of your
statement in respect of additional document identification numbers, or documents already referred to and identified, which I think were emails, and these additional document identification numbers are for attachments to those emails?
MS TAYLOR: That's correct.
MR FOGARTY: Thank you. Noting the corrigendum, are the contents of your statement true and correct, to the best of your knowledge and belief?
MS TAYLOR: Yes, they are.
MR FOGARTY: Ms Taylor, I will ensure that you have a copy of your statement with you because I propose to work through it fairly methodically. I note you have nodded, so you have a copy there before you?
MS TAYLOR: Yes, I do, thank you. I have a copy in front of me.
MR FOGARTY: Can I ask you to tell the Royal Commission your full name?
MS TAYLOR: Samantha Jane Taylor.
MR FOGARTY: So I am as up to date as possible, and the Royal Commission, you are the Acting Commissioner of the Quality and Safeguards Commission?
MS TAYLOR: Yes, I am.
MR FOGARTY: And also Registrar?
MS TAYLOR: Yes, I am.
MR FOGARTY: Your professional background and what the role of Registrar is was set out, I think, in your earlier statement of 13 August 2020. For reference it, as I said, is hearing bundle F, tab 5, essentially paragraphs 7 to 12. I don't propose traversing it again today.
To be clear, as Registrar, you are responsible for and I will list them firstly, registering providers, monitoring registered providers' compliance with the conditions of registration and taking compliance action as required?
MS TAYLOR: Yes, that's right.
MR FOGARTY: I'm uplifting this from your earlier statement. Secondly, providing education and guidance to NDIS providers on compliance matters?
MS TAYLOR: Yes.
MR FOGARTY: Thirdly, leading the Quality and Safeguards Commission's State
and Territory operations?
MS TAYLOR: Yes.
MR FOGARTY: Fourthly, establishing the QSC's activities in regard to national workers screening arrangements in the NDIS?
MS TAYLOR: Yes.
MR FOGARTY: Have I missed anything substantive in that role?
MS TAYLOR: I also do some work around market oversight, the Commissioner's functions around that.
MR FOGARTY: When you say market oversight, is that a provider or SDA or
MS TAYLOR: A provider. Market oversight within the context of the NDIS market, broadly.
MR FOGARTY: Is it the case that the Registrar reports to the Commissioner
MS TAYLOR: Yes, that's right.
MR FOGARTY: the structure?
MS TAYLOR: Yes.
MR FOGARTY: In terms of the role and functions of the Commissioner, I note that former Commissioner Graham Head provided a statement, dated 11 February 2020, for Public Hearing 4. That's hearing bundle F, tab 6. I don't propose to go through what's set out there, but I understand the Royal Commission is familiar, both from that statement and the evidence he gave on that occasion, in terms of the functions of the Commission.
CHAIR: At present, you are reporting to yourself.
MS TAYLOR: I am.
CHAIR: Do you find yourself satisfactory?
MS TAYLOR: On occasion. There is an Acting Registrar at present, who covers those functions and who I lead and guide in that acting arrangement.
MR FOGARTY: Turning to your statement, just to be clear again, in terms of the complaints and reportable incidents that were asked for comment from you in the notice to give a statement, your knowledge of those is incidental, in that you don't have, other than some parts I might take you to, direct knowledge of those. But you
have referred to records and you have spoken to relevant officers of the Commission in respect of that?
MS TAYLOR: That's right, I'm relying on the records of the Commissioner.
MR FOGARTY: And you set that out in your statement?
MS TAYLOR: Yes.
MR FOGARTY: Can I ask you, and I will give you page references please, if you want me to pause at any time for you to have a look at your statement or a document, please let me know. I will do my best, for any documents I put to you, to read out the parts that I want to emphasise, both to assist you and I, but also for those listening.
MS TAYLOR: Thank you.
MR FOGARTY: On page 3 at paragraph 16 there was a question asked of you in regards to reportable incidents. I will read to you paragraph 17. You say:
The NDIA's Commission has not received any notifications of reportable incidents from LWB in relation to which Natalie, one of the case study residents, is identified as the impacted person.
Can I take you to the definition of reportable incident. It's defined, as I understand, in section 73Z(4) of the NDIS Act; that's correct?
MS TAYLOR: Yes, that's correct.
MR FOGARTY: Again for the sake of those listening, it is defined as (a) death of a person with disability, (b) serious injury of a person with a disability; do you agree? I'll get you to say "yes", sorry.
MS TAYLOR: Yes.
MR FOGARTY: (c), and I will probably come back to this on a number of occasions, abuse or neglect of a person with disability; is that correct?
MS TAYLOR: Yes.
MR FOGARTY: (d) unlawful sexual or physical contact with or assault of person with disability?
MS TAYLOR: Yes.
MR FOGARTY: (e) sexual misconduct committed against or in the presence of a person with disability, including grooming of the person for sexual activity?
MS TAYLOR: Yes.
MR FOGARTY: Then lastly in that definition, (f) the use of a restrictive practice in relation to a person with disability other than where the use is in accordance with an authorisation, however described at the State or Territory in relation to the person?
MS TAYLOR: Yes.
MR FOGARTY: Do you agree that's the circumference of the definition in the Act?
MS TAYLOR: Yes.
MR FOGARTY: Awareness of one of those incidents having occurred or allegedly having occurred with a provider requires what from that provider? There may be a bit there for you to unpack, but if that has come to the attention of a provider, one of those reportable incidents, what is it that they need to do in respect to the QSC?
CHAIR: Do you mean under the legislation or practice of the NDIS Quality and Safeguards Commission, or a combination?
MR FOGARTY: In respect of the NDIS provider, that coming to their attention. Practically, what are they a registered NDIS provider, what are they required to do under the Act and also the relevant rules, once that has come to their attention?
MS TAYLOR: Thank you for clarifying around registered providers, because the obligation to report certain incidents to the Commission applies as a condition of a provider's registration under the Act, and rules around incidents and reportable incidents set out the things that a provider, who is registered by the Commission, must do in respect of maintaining and managing and responding. So maintaining a system, managing and responding to incidents that occur in the course of delivering an NDIS support or service.
A provider's obligation is to maintain an incident record of any incident, even incidents that are not that don't fit the threshold, that you just walk through, in terms of the allegation. So any incident, and then report certain incidents that occur, which you have just referred to, to the Commission.
Providers must do that for all incidents that are reportable, except the last one which you referred to around unauthorised use of restrictive practices, within 24 hours of the provider being aware of the matter. That can be a relatively simple report, advising the Commission that an incident has occurred.
They then are required to follow that first 24 hour report with a further more detailed report within five days, that sets out what they have done in response to the incident, how they have supported the participant, more details about what has occurred, people who might be the subject of interest, other participants who might have been
affected by the incident, and so forth. They do that through our portal.
MR FOGARTY: Does the notification have to be in writing, that first 24 hour one, or can it be a telephone call?
MS TAYLOR: We have a portal for the purposes of providers reporting, and we have a form. There is a requirement that the Commissioner establish the form of a reportable incident, so the Commission has determined the form for both the 24 hour and the five day report.
MR FOGARTY: There are two separate forms?
MS TAYLOR: That's right.
MR FOGARTY: Is that form required to be provided within the 24 hours?
MS TAYLOR: Yes, of the provider becoming aware of the incident.
MR FOGARTY: Aware. And I have noticed this: the awareness has to be with respect to key personnel, is that right, under the Act?
MS TAYLOR: That's right, it is in respect of key personnel becoming aware of the incident. Really, that relates to the broader obligation of having incident management systems where the requirement is really for us to be assured, with the having of an incident management system, that the provider is collecting, paying attention and has good mechanisms for responding and managing any incident that comes to their attention or occurs in the course of their business.
MR FOGARTY: Let's say a disability support worker becomes aware of an incident in a SIL funded situation. I understand under the rules, there are requirements upon them, a duty upon them to report up, essentially, and to keep a record of that. Then there is a duty on those above, also, to report that upwards, as I understand, and their duty is then to notify the Quality and Safeguards Commission. In terms of key personnel, in your view, is a disability support worker at the coalface key personnel?
MS TAYLOR: No. Usually a well, it depends on
MR FOGARTY: The structure?
MS TAYLOR: It's actually not a very straightforward question, actually. I think I'll just take a step back and say that the obligation to have an incident management system includes a range of obligations which are within well, there are obligations on workers within the code of conduct around avoiding and responding to incidents that might affect a person with disability who they might be supporting. There are obligations in that incident management requirement and in other practice standards that are also adherence to, also, a part of the conditions of registration, that put an onus on providers to make sure that their staff are aware of incident management
practices, they are trained in them, they understand how to identify them, record them and respond --- most importantly, respond to the needs of the person with disability who might be affected by the incident.
Key personnel are people who you would expect were oversighting/leading aspects of support, who had roles in oversighting the exercising of those obligations. So, Team Leaders or Managers, depending on the structure of the organisation.
MR FOGARTY: Let's say it is a group home situation and there is, certainly in the case of LWB, as I understand, a Program Manager. Are we getting to key personnel territory there?
MS TAYLOR: Yes, you would definitely be getting to key personnel in that role.
MR FOGARTY: For reference, for the benefit of those section 11A, I think, of the NDIS Act sets out that definition of key personnel?
MS TAYLOR: Yes.
MR FOGARTY: But in fairness, it is a fairly broad one, isn't it?
MS TAYLOR: It's a very broad one and it is necessarily broad because of the breadth of providers that are subject to these particular conditions.
MR FOGARTY: And how they might structure their
MS TAYLOR: How they might be structured.
MR FOGARTY: What their size is?
MS TAYLOR: Their scale, their diversity, and so forth.
CHAIR: Ms Taylor, I may have misunderstood you, but I rather thought you were drawing a distinction between incidents that a registered provider must record, and reportable incidents that must be communicated to the Quality and Safeguards Commission. Have I understood that correctly? And what is the difference between the two?
MS TAYLOR: Yes, thanks, Chair. Incident management, in the broader sense, is where the obligation lies on a provider to maintain good systems and to record and have policies around incident response. A subset of those incidents that they are required to record need to be reported to the Commission, and they are the most serious matters that affect the safety and wellbeing
CHAIR: Yes, I understand the definition of reportable incident. Where does one find a definition of "incident" about which a record must be kept?
MS TAYLOR: The rules, the incident management rules, set out the obligations on providers to maintain an incident management system, what's entailed with that. Then the second part of those rules refer to their obligations around reporting of certain incidents.
CHAIR: Thank you.
MR FOGARTY: I should confirm, too, that it is not necessarily proven reportable incidents, but it is alleged reportable incidents?
MS TAYLOR: Alleged. They can be allegations also, yes.
Can you confirm that the complaint was received, based on your statement, on 4 November 2020. It is given a QSC complaint number, and I will read this out because I come back to this, 4 34214902684.
I might ask, please, for you to be provided with a copy of that complaint. For reference, that's hearing bundle F, tab 128. I have a couple of questions about that document. It should be three pages, Ms Taylor.
MS TAYLOR: Yes.
MR FOGARTY: The front page has Paul's details at the bottom. I want to then, really, move to the last page to look at the substance of his complaint. Do you see on the last page there is a box and this really contains the substance of his complaint; do you agree?
MS TAYLOR: Yes.
MR FOGARTY: It says:
Re Management of Resident money by SIL Provider.
I am clarification of the responsibilities of a SIL provider in a SDA .....
That is Specialist Disability Accommodation:
..... in relation to the management of money paid by the resident for the purchase of food and other household essentials (ie board). My foster son Robert is a resident at an SDA [with the Melbourne house address]. There has been almost no information provided by the SIL provider about how his board is spent. Guardians of residents at the house raised the issue of how board
money was being spent and requested financial statements.
He then writes:
These were never provided and the organisation indicated they had no system to collect this data. It has now been brought to my attention that this matter is addressed in the Victorian Disability Act 2006, version 042 section 93. I seek clarification as to whether this requirement to provide monthly financial statements to residents applies under the NDIS.
Before I ask you about that question, I suppose, which is really at the very end of his complaint, if I'm reading correctly, in this document I didn't see there being a space for the date upon which it I couldn't see it and I wonder whether there is some other way, when it's uploaded or corresponded, that a date would appear on it?
MS TAYLOR: I couldn't talk to the technicalities of our system, I'm sorry. But these complaints are lodged electronically and so would be date stamped through a mechanism, but I couldn't explain what that would be.
MR FOGARTY: Are you able to respond to his question there? Obviously he is referring to a different State Act, but in terms of the NDIS, is there a requirement he is being quite specific to provide monthly financial statements to residents in an SDA?
MS TAYLOR: Not under the standards.
MR FOGARTY: What standards are you talking about?
MS TAYLOR: If I can explain, there are practice standards that set out things that registered providers are required to demonstrate in the course of delivering a support or service. Those practice standards are focused very much on the experience of a participant. So they refer to things like "each participant will", and the substance of the standard that that statement introduces then describes the experience that participant would have, if that standard were being applied appropriately.
Each standard is supported by a series of indicators which guide a provider around the types of things you would expect to be present, to facilitate that experience. Those indicators, because they apply across a broad range of settings, they are part of the core standards which apply to higher risk services. But, nevertheless, they apply to settings like accommodation, as well as other settings where people with disability receive relatively intensive supports; day activities and other things. They are necessarily broad.
They don't go into specifics such as administrative obligations on providers. However, when providers the practice standards, kind of, serve two purposes. Firstly, they serve a very broad purpose of driving practice. They are called practice standards for a very good reason. They are about what we would expect to see if a servic
e or support was being delivered in a way that would give the kind of experience that those standards set out for a participant.
They are also the tool that is used by independent quality auditors to assess a provider as to whether they meet those standards. That is an important input into a decision to register or not register a provider, depending on their compliance with those standards or assessment against those standards. So in the course of seeing how those standards apply through an audit, things like whether or not a mechanism for delivering aspects of those services exist, how it's accessed, how people know who are receiving the services is part of what the auditors look at.
In respect of this particular matter that Paul was raising a complaint about, there is no standard that relates specifically to the way in which board monies are applied by a provider. There is, however, a specific standard around participant monies. That really focuses more on discretionary funds that might be available to a participant and a provider's obligation around that.
Nonetheless, there are also standards around service agreements and communication, and other standards where
MR FOGARTY: That may touch upon this?
MS TAYLOR: Yes, that kind of would, in aggregate. If someone was wanting to understand these things, they could indeed, we would assist them in pointing to those obligations, in order to be satisfied that things they were interested in were being delivered.
MR FOGARTY: The quality audit is when a provider seeks registration, but there is also an ongoing review of registration, is that correct, where a quality audit takes place? Does a provider let's say LWB now. Everything ticking along, is there another time that they will be quality audited?
MS TAYLOR: There is a continuous monitoring that occurs in the system that we administer around registration. The audit is at a point in time to assist a delegate in making a decision about whether to register an organisation. It sits together with suitability assessments around the provider and the key personnel, as well, for example, amongst other things.
I completely lost my train of thought. That's all right, I'll get it back in a moment.
MR FOGARTY: I was asking you about whether there is a recurrent quality audit.
MS TAYLOR: Thank you. So after a registration occurs or in the course of a registration period, complaints are an important monitoring tool for us, as are reportable incidents, which we've already talked about. There is also an obligation for a provider to undertake a mid term audit, and that's an audit that occurs in the mid point of a registration period.
MR FOGARTY: Sorry to butt in, what would a registered term or period be?
MS TAYLOR: A registration term would usually be about three years, so we register providers at present on a three year cycle. So 18 months after a decision to register, a provider would need to have prepared and undertaken a mid term audit. That mid term audit can be a general audit that looks at standards, it can look at things that might have been picked up in the originating audit, or it can also be an audit which is directed by the Commission in terms of particular issues that might have arisen, for example, through trends in incidents or trends in complaints, or both, that we'd observed in the ensuing period.
MR FOGARTY: I am jumping around here a bit but your data, you say, and I think the former Commissioner, is improving in understanding trends; is that correct?
MS TAYLOR: It is. If you reflect on the period of time that the Commission has been in operation, and now in this calendar year is our first well, we've just tipped over our first year of national operation, following commencement in Western Australia last December. But our establishment has been incremental and it was intended that our establishment would follow the completion of transition in each of the jurisdictions, of their transition into the NDIS. So the sequencing of jurisdictions was determined around the agreements that were in place with States and Territories, and the Commonwealth around that.
So really our data, to go to your point, and our growing ability to observe trends and issues has been influenced both by transition, but also the timing of transition and its completion. What I mean by that is not every jurisdiction was fully transitioned at the point that we commenced in that jurisdiction. What that means is there were elements of the service delivery system for people who were intending to participate in the NDIS or indeed in some situations were participating but not all their services were part of the NDIS, which has meant our holdings have been a little slower.
MR FOGARTY: So it didn't all just start in New South Wales on 1 July 2018?
MS TAYLOR: Look, the best example I can give is in Victoria, actually, where the Victorian government had an agreement around maintaining what is referred to as "in kind" arrangements for a very significant amount, almost 50 per cent, of supported accommodation in Victoria. That in kind arrangement didn't conclude until earlier this year, although we commenced in Victoria on 1 July 2019. That means that from 1 July 2019, when we commenced in Victoria, we didn't have jurisdiction over all supported accommodation, for example.
So our holdings are developing and I am happy to take questions from you, if you are interested, about the own motion inquiry that I have initiated, because it's timely in that our holdings have started to give us a view of trends and issues, which makes that inquiry
MR FOGARTY: I am planning to get to that, hopefully. Two quick questions on the quality audit. Do quality auditors receive from the Commission any complaints or reportable incidents, as a matter of course, when they do their next, let's say, mid term review or not? Let's say you had received one between the start of the term and the mid term review, as a matter of course, do they see that?
MS TAYLOR: I think I'll need to not answer that, because I'm not sure what we're doing just at the minute around making sure that quality auditors have access to volumes of these matters. I think the thing I would say, though, is that of course neither a complaint nor a reportable incident or a number of them necessarily infers an issue with a provider. Of course many do, but not all do.
We have had an active process of encouraging people to complain to us where we obviously also encourage people to complain to their own providers, but people might preference complaining to us. That's not a bad thing.
MR FOGARTY: There is no wrong door.
MS TAYLOR: It doesn't mean providers are not learning from those complaints and adjusting to them. So I am happy to provide further information on what information is available.
MR FOGARTY: But you would accept, if an auditor is reviewing standards and some of those go towards, would you agree, risk or ensuring safety and quality services, that it would be relevant to be aware of and I accept those complaints may be quite small, they may not eventuate into any reportable incidents, they may be resolved in all sorts of different ways, but that would be relevant, wouldn't you agree, to that audit?
MS TAYLOR: Oh, entirely and that's why, particularly with the mid term arrangements, there are a couple of things that were put in place to support our transition that are relevant to servicing risk. The mid term audits I mentioned before allow us to appoint auditors to particular areas where we would like them to delve into particular areas where we might have some concerns, without it's very important we don't lead the auditors. We need that independence in how they undertake those assessments. But we might point them in that direction.
Also, at the point that we commenced in each jurisdiction, each State and Territory government, who of course had the regulatory or equivalent arrangements in place over disability services, worked with the Department of Social Services, who were supporting our implementation to set a plan around which providers were coming in under the Commission's jurisdiction as transitioning providers. They were previously registered. Their registration transitioned to us under transitional rules. The timing of them undertaking an audit and higher risk providers who might have had issues that were identified through previous State and Territory oversight mechanisms were required as a condition of registration to undertake those audits sooner than others.
MR FOGARTY: I see, thank you. I might steer us back to Paul's complaint. I am at paragraph 31, if it assists, but as I said, I will refer to particular parts of that. On 26 November 2020, in paragraph 31 you refer to a complaints officer telephoning Paul? Do you see that there?
MS TAYLOR: Yes.
MR FOGARTY: Do you agree he expanded on the detail of the complaint there and he said to the complaints officer and tell me if you agree, it's in that paragraph that he, Paul:
..... considered that LWB had taken excessive amounts from Robert's food and housekeeping money and that LWB had no systems to report on income and expenses at the house level.
The next action do you agree that appears to be what is recorded?
MS TAYLOR: I think he was referring to income and expenditure at the house level, the inference being about a particular individual's expenditure.
CHAIR: I think, Mr Fogarty, you said originally correct me that the document Paul sent does not have a date, but we know from paragraph 30 the NDIS Commission received the complaint on 4 November 2020, so that is the start.
MR FOGARTY: Yes, Chair, that is so. This is, as I read it, 22 days later. I agree it's in respect of it says "Robert's food and housekeeping money"?
MS TAYLOR: Yes.
MR FOGARTY: The next action, would you agree, after that phone call is the first written response that Paul received. That's an email on 26 February 2021 from the Assistant Director of Complaints, Victoria?
MS TAYLOR: Yes.
MR FOGARTY: Do you agree that is almost four months after the original complaint, 4 November, was lodged?
MS TAYLOR: Yes.
MR FOGARTY: Do you have any comment in respect of that period of time?
MS TAYLOR: Well, it seems long. However
MR FOGARTY: Yes.
MS TAYLOR: However, this was at a time there's a couple of things. One, I think we were aware at that point that Robert had moved to another provider, and in this particular complaint although we respect and consider every complaint to us to be important, this particular complaint did not indicate a particular issue of safety to the participant.
This was at a period of time where we were experiencing a very significant volume of complaints coming into the Commission, much greater than we had anticipated and, indeed, were bedding down at this point in time we had only just received a budget uplift at that point in time, recognising the fact that we were somewhat understaffed, and were in the process, following the budget in October, in recruiting additional staff to address this. So this timing is not surprising to me, given the
MR FOGARTY: Can I jump in and ask you whether at December 2021, the capacity to process complaints, whether that has now improved with that budgetary change?
MS TAYLOR: The former Commissioner gave quite considerable evidence at the hearing number which I can't recall, but recently, about the work that the Commission was doing on two fronts, one of which was the uplift in our staff. There were 100 additional staff that were brought in not only for complaints but for a range of functions, progressively following that budget being handed down. And now, to address volumes, we have maintained some additional staff to address the backlogs that had accumulated. By definition, we were getting new staff to address a much greater volume of work than we had anticipated, so that was accumulating. So we have done a lot of work in going back to people who were waiting.
We, at the same time and training was rolled out in May and has been progressively rolled out to new staff, May of this year changed the way in which we were guiding our complaints staff and our reportable incidents staff about managing complaints and reportable incidents, and particularly giving greater guidance to them around the streaming of particular complaints. So giving them guidance about how to prioritise matters. Matters that might affect that might be complex, for example, would be streamed as a category C, I think.
MR FOGARTY: I might assist you here. In paragraph 33 you refer to this complaint being triaged as a stream B on 29 July 2021?
MS TAYLOR: Yes, stream B. So that's about the ability to provide assistance to the complainant, work with a provider around seeking a resolution. So that's where we would require a provider to undertake a resolution.
CHAIR: Ms Taylor, I think you said that one explanation for the delay between 4 November 2020, when the complaint was received, and the email to Paul of 26 February 2021, is that this may have been treated as a complaint warranting lower priority because the person had moved residences. But it was not until 26 July 2021, nine months after the original complaint, or 10 months really, that it was triaged as
stream B. So it has taken nearly 10 months to determine that it's a low priority complaint. Have I understood what happened correctly?
MS TAYLOR: So having received the complaint and then made contact in February to get further information, yes, it has then taken a number of other months to then stream the complaint under the new arrangements. This would have been done as part of the I can only assume that this particular complaint would have been part of that team's backlog management volume, and would have been given attention through the work that was being done with those additional people that we brought in to the Commission following the budget uplift, as well as the additional staff that we retained as surge workforce, to assist us in going back to complainants that we hadn't had the opportunity to return to earlier.
CHAIR: Thank you.
MR FOGARTY: Chair, to be clear, I think the date is 29 July, not 26. That is in paragraph 33, but certainly
CHAIR: It says 26 July.
MR FOGARTY: My apologies if that's so. That's correct. I'm sorry, Chair, you are correct.
Another document I would like to show you in respect of Paul's contact with the Commission, Ms Taylor, is a letter of 20 July 2021 to you personally. It's hearing bundle F, tab 144. As I said, it is dated, if you have a look, 20 July 2021 from Paul?
MS TAYLOR: Yes.
MR FOGARTY: Is it the case that this letter may have prompted, or do you recall whether it prompted, the 26 July 2021 response, or are they not connected?
MS TAYLOR: I don't believe they are connected. I certainly didn't this would have come in through our usual executive correspondence pathway. It would have been allocated to me or to an officer to prepare a response to me or a delegate.
MR FOGARTY: As you said, it's to a contact centre email that he has emailed that, by the looks of it, at any rate?
MS TAYLOR: Yes.
MR FOGARTY: Do you agree it reads:
Monitoring of service standards and legal compliance in disability group homes.
Do you see that as the subject matter?
MS TAYLOR: Yes.
MR FOGARTY: I take you to the second paragraph, where it says:
I wish to draw your attention to two major systemic failures in the arrangements for disability group homes under NDIS. I believe the NDIS needs to urgently address these issues. These failures are: 1. There is no program to monitor the service delivery standards of supported independent living (SIL) providers managing group homes;
2. There is no program for monitoring of compliance with legislation and compliance with NDIS Practice Standards by SIL providers managing group homes.
I take you to the bottom of this complaint letter, as I will call it, the very bottom paragraph. He writes:
The experiences we had with this SIL provider included second rate service, incompetent management, failure to consult, failure to address issues raised, a revolving door of senior management, non compliance with and a blatant disregard for legal requirements and NDIS Practice Standards. These were just some of the problems encountered.
Then I take you to the last paragraph of this letter:
In your role as Commissioner, what steps will you take to ensure there is a strong proactive program involving frequent monitoring of service standards and a vigorous program for enforcement of legislative requirements and NDIS Practice Standards in disability group homes?
To be clear, you don't recall personally receiving or reading this letter, or do you, now that I have read parts of it to you?
MS TAYLOR: I don't recall every letter I get. I get quite a lot of them. But where they do come to me and I am responding to them, I pay careful attention to everything that's said in them.
MR FOGARTY: But you don't recall specifically in this case?
CHAIR: What's the likelihood, Ms Taylor? What's the likelihood that you saw it?
MS TAYLOR: It's likely. It's very possible.
CHAIR: What is the question, Mr Fogarty?
MR FOGARTY: It's to understand the process, to a degree, in respect of how complaints particularly, it seems to follow from Paul's earlier complaint.
CHAIR: My question is the question you have for the witness.
MR FOGARTY: Ms Taylor, following on from 26 July, and I'm looking at paragraph 34 to understand what next happened, on 29 July a complaints officer called Paul. Paul then sent that officer a number of emails this is in your statement relevant to his complaint, including a complaint he had made on 26 November to the Office of the Public Advocate. I think that's annexed to your statement?
MS TAYLOR: Yes.
MR FOGARTY: That, what I will call the OPA complaint, had already been provided to the QSC, hadn't it, initially on the 4 November 2020 complaint?
MS TAYLOR: As I understand it, yes.
MR FOGARTY: This wasn't the first time he had sent it through. Moving to paragraph 36 in the sequence of events from the QSC perspective, on 24 August, the same complaints officer, I think, emailed LWB about the 4 November 2020 complaint from Paul. Do you see that?
MS TAYLOR: Yes.
MR FOGARTY: Do you agree that this is now nine months after the 4 November 2020 complaint?
MS TAYLOR: Yes.
MR FOGARTY: This is the first time LWB is contacted in respect of the complaint?
MS TAYLOR: Yes.
MR FOGARTY: Do you have any comment in respect of that timeframe, or is it the same evidence you have given earlier, in terms of
MS TAYLOR: I don't wish to add to what I have said before.
MR FOGARTY: Paragraph 37
CHAIR: Are we right in getting the impression that the NDIS Commission, basically, was overwhelmed with complaints and couldn't deal with them in a timely fashion?
MS TAYLOR: As I have described, Chair, we did get a much greater volume of complaints than had been anticipated in the resourcing that the Commission had
originally been afforded to set up. The Commission was included in a review that was undertaken by David Tune, that reported to government
CHAIR: We have heard about that and we have all read that review, yes.
MS TAYLOR: So, of course, given the pandemic and the budgetary process, the budget wasn't determined until October of last year and we moved immediately to recruit. But that didn't stop the accumulation of matters. I referred before to us having a very concerted approach to making sure that we have been going back to every single matter that hadn't been able to be addressed while we on boarded those new staff.
CHAIR: I understand that, but I take it from your answer that in fact you do say, you do agree that the Commission was overwhelmed with complaints and, therefore, found it extremely difficult, if not impossible, to deal with them in a timely fashion?
MS TAYLOR: And that's one of the reasons that we introduced a prioritisation system as
CHAIR: I'll take that as a "yes", thank you
MS TAYLOR: Yes. I'm happy to I don't think there's a public servant who wouldn't say in the space that
CHAIR: I'm not suggesting necessarily that the Commission could have done better, but it may well have been a question of resources. It does tell us, I think, that there is a problem if complaints, genuine complaints, are not addressed in a very timely fashion, they become stale after a period of time and people obviously get frustrated.
MS TAYLOR: That is true.
CHAIR: Thank you.
COMMISSIONER McEWIN: Could I just ask a follow up question. You may not be able to answer this, Ms Taylor. If, say, a complaint like this came in now, hypothetically do you think it's fair to say, with the additional resources you have just described, it would have been more quickly responded to, or is that too hard to
MS TAYLOR: It is correct that that would be the case. A complaint coming in now would be immediately streamed and allocated to officers to respond in a much more timely way. That doesn't necessarily mean an immediate response, but certainly more timely than the timeframe that's set out in my statement for this matter.
MR FOGARTY: At paragraph 37, the next step appears to be, do you agree, that on 2 September, LWB emailed the complaints officer back, responding to the 24 August
email and attached a letter of 1 September from LWB, with some procedure documents and templates, including an LWB service template?
MS TAYLOR: Yes.
MR FOGARTY: At paragraph 37 you say:
The letter outlines the clauses in LWB service agreement template relating to client contributions for clients living in homes where LWB provides SIL supports and describes the steps by which LWB manages the client contributions.
I think in your earlier evidence you talked about service agreements being a tool that might set out what the obligations are in respect of financial statements and accountability?
MS TAYLOR: Yes, absolutely.
MR FOGARTY: The letter also contained, and you refer to this in paragraph 37:
In addition to this, LWB has a project underway designed to update the organisation's position in relation to clients' shared household contributions (board) as part of a broader client and household expenditure system (CHES) project.
Then that project is discussed in some bullet points:
An outcome from this project is that a new IT system is being conceptualised and developed by an external company with the intent of improving information available.
This new system, along with updated documentation, outlining the charges as referenced above, will be available to all financial administrators and clients in the near future. Unfortunately, due to COVID, this work has not progressed as quickly as LWB had planned. It is envisaged this will be completed within the coming months. The Commission would like LWB to keep them updated on the project, the outcomes and expected date of implementation. We are happy to oblige.
Again, the next step in the chronology, in your statement at paragraph 38, is that on 20 September, the Commission's complaints officer called Paul and conveyed to him an outline of what LWB had written in that email letter. Do you agree?
MS TAYLOR: Yes.
MR FOGARTY: The complaints officer concluded the call with Paul by saying that he was going to recommend that the complaint be closed, with monitoring. Do you agree with that?
MS TAYLOR: Yes.
MR FOGARTY: Is that a term of art, "closed with monitoring"? What does that involve, from the Commission's perspective, or is there a latitude in what the Commission can do in terms of that recommendation?
MS TAYLOR: So the complaints management rules set out the considerations the Commission has to take in determining whether to close a matter. With monitoring, in this one, LWB has flagged to our officers that they are implementing something pretty substantial in terms of an uplift in practice. It's not a compliance issue because, as I described before, there's no particular requirements on how these moneys are accounted for. We expect that they'll be accounted for in an appropriate and transparent way. But they are uplifting their systems and we will continue and go back to them at a later time. They are indicating a six to nine month process, I think, for the rollout of this, to see that it occurs. So we would keep a view on that.
MR FOGARTY: Does the complainant, in this case Paul, ever get updated or contacted again in this situation about what may or may not have happened with that CHES or the SIL provider?
MS TAYLOR: It really depends. Having closed a complaint, not usually. The complainant might ask for us to come back. We could record that as a future action, to update them.
MR FOGARTY: But that doesn't appear to be the case in this one?
MS TAYLOR: It doesn't appear to have been the case in this situation, no.
MR FOGARTY: In this situation, does there appear to be any obligation on the service provider? By "obligation" I mean to report back or to do anything in respect of this complaint again, or further?
MS TAYLOR: There is no obligation here because it's not a compliance requirement.
MR FOGARTY: Yes.
MS TAYLOR: The mid term audit that we talked about earlier would almost certainly pick up the improvements to systems that the provider was putting in place. And I'm certainly interested in, having put together this statement, about what a provider of the scale of LWB is doing in this context. So it will be something the Commission would certainly be looking to be updated by the organisation about, and they appear, from this record, to be quite willing to do that.
MR FOGARTY: Again from this particular complaint, there appears to be no record of what Paul has said in response to the complaints officer saying he was going to recommend that the complaint be closed with monitoring. Do you agree with that?
MS TAYLOR: Not in my view of the records, I can't recall seeing a note in that respect.
MR FOGARTY: Whatever his response was. Is that something that complaints officers are required to do or are guided to do?
MS TAYLOR: There would usually be a closing note on the record.
MR FOGARTY: As to the response of the complainant?
MS TAYLOR: As to the response and a final wrap up, if you like, of the complaint.
CHAIR: Is it your position that you think the Commission, under present rules, should be monitoring what this service provider is doing to ensure it is, in fact, designing or has designed a new system and that the new system works, or are you saying there ought to be additional powers conferred upon the NDIS Quality and Safeguards Commission to ensure that it can monitor?
MS TAYLOR: In this situation, I'm not I don't think I am suggesting we would need further powers. The organisation is willing to tell us about improvements to their management systems and I would take this to be improvements to the management and governance provisions under the practice standards that we would have an interest and pick up through a quality audit. I might also
CHAIR: How are you able to conclude and I'm not suggesting you can't, but what is it in the record that indicates that Life Without Barriers would voluntarily provide you with information as to the progress of this new IT system and its implementation?
MS TAYLOR: Well, they haven't said no.
CHAIR: They haven't said no?
MS TAYLOR: And it's not a if I can just the having of this system and the additional level of detail at an individual level is not a it's not an obligation, as a condition of registration, to have that. This appears to me to be an additional assurance that the organisation is putting in place, perhaps in response to feedback it has received from Paul and perhaps other participants.
I think the other thing I will say
MR FOGARTY: How would you know if Life Without Barriers didn't do what they said they were going to do?
MS TAYLOR: Well, we would go back to them and ask them, seeing they have given us a view that they'd be happy to keep us updated and ask them. If they didn't and we felt that it was a matter that was of you know, a material issue, which I think this is, then we might use our powers around requests for information to request that the organisation provide us with details about what they are doing to implement, or have done by way of concluding the implementation.
I think, Chair, the issue for me on this would be to understand, after a pilot which is yet to occur, how the system looks and feels for participants and their supporters and whether it's, therefore, delivering what they would like to see.
CHAIR: I appreciate that this is your position, sitting there, having prepared a statement and having looked at this. But if you hadn't had this involvement in this particular complaint, none of this that you are talking about would happen, would it?
MS TAYLOR: No, I don't quite agree. I think LWB is one of the providers that has a very significant market share in supported independent living and is captured by the terms of reference for the own motion inquiry around aspects into supported independent living. That particular inquiry, which captures seven providers that are of some significant scale in supported accommodation, will draw in and allow us to look at trends. And if this is a prevalent issue, for example, the independent inquiry that we have engaged to undertake would surface this as an issue, because that inquiry will look at all complaints that arise
CHAIR: I'm sorry, that's not quite the question I asked. I was asking you whether, had you not had the opportunity to look at this particular case carefully and prepare your statement, which includes a careful record of what occurred, there would not have been a response from the Commission to this particular complaint to ensure that Life Without Barriers was taking a particular action that they foreshadowed in their responses. That is a little different from a general inquiry into seven service providers, I would have thought.
MS TAYLOR: Unless that inquiry which I fully expect, if this is a very prominent issue in complaints and reportable incidents surfaces that need for greater clarity for participants around how board and lodging costs are accounted for by providers. In which case I mean, that's why I have initiated that inquiry, because it's a very relevant power to surface issues and to identify areas where perhaps further guidance and further instruction, even, to providers, either individual providers or more broadly across the sector, should happen.
As I said at the beginning, I think we are now at the point where we have sufficient volume in complaints. Might I say that that own motion inquiry will draw in around 700 complaints and around 2,000 or more reportable incidents.
CHAIR: Mr Fogarty may well have some questions about this. I might leave that to him.
MR FOGARTY: The supported accommodation inquiry, that report is due March 2022, or the
MS TAYLOR: So the Commissioner will provide under the rules, the Commissioner provides a report and that's due mid 2022. The inquirer has been engaged to undertake the review that would inform the Commissioner's report. The inquirer has been engaged to deliver that by the end of March 2022.
However, he has very recently written to me, seeking a short extension of a couple of months, following some very serious extenuating family circumstances he has had to deal with. We would like to keep him engaged and the project moving, so that will now be into June that he will report to the Commissioner.
MR FOGARTY: Still focusing on this complaint, paragraphs 41 and 42 of your statement on pages 10 and 11. Moving to it being closed off internally, on 1 October 2021, so two months ago, the complaints officer recommended closing the complaint with these reasons; do you agree:
Reasons for recommending closure.
LWB have committed to implementing improvement to the transparency and accountability of their management of participant funds.
Do you see that?
MS TAYLOR: Yes.
MR FOGARTY: This was then approved by the Assistant Director Complaints, Victoria, and a closure email was sent to Paul on 1 October 2021; do you agree?
MS TAYLOR: Yes.
MR FOGARTY: In your review of that, and this is a broad proposition put to you, are you satisfied that the way in which this complaint the way in which it was closed off was adequate and appropriate? Putting to one side the timing issues, but in terms of the substance of what was done by the Commission, do you consider it was adequate?
MS TAYLOR: Yes, I do. Yes.
MR FOGARTY: Do you agree, in substance, that LWB's response was that it had admitted that it didn't have a system to account for the expenditure or the discretionary inhouse expenditure of its residents' personal funds? Do you agree that's what they have essentially admitted in their documents to the Commission?
MS TAYLOR: The rent and board, the moneys provided by a person as contributing to the shared household expenses, yes.
MR FOGARTY: Yes.
CHAIR: Sorry, did you answer Mr Fogarty's question "yes", did you? I wasn't sure whether you were asking him what the question was or whether you were answering.
MR FOGARTY: Do you agree that, essentially, they said they didn't have a system that could account for that discretionary spend?
MS TAYLOR: Can I just clarify? I think in the question you put to me, you talked about their personal funds. I talked before about there being obligations on the provider around someone's personal discretionary income. I take it this is about the reconciliation of a person's share of household expenses, so consumables, food, et cetera.
MR FOGARTY: Yes. Thank you. Sorry, I should have clarified that. That's right.
MS TAYLOR: I just wanted to make that distinction.
MR FOGARTY: Paul says, I think, in his next email it's about the spending on food and those sorts of things.
MS TAYLOR: Yes.
MR FOGARTY: Do you agree that, essentially, LWB say, "We don't have a system in place that accounts for that at this point and that's why we're moving into this CHES system"? Do you agree?
MS TAYLOR: Well, that's what they're apparently saying. I'd be really I will be very interested in terms of our Victorian office follow up on this matter, in how that plays out. I think, if I may, in my experience, which is lengthy in disability supports, individual accounting for shared household expenses is extremely difficult. Individual shares of commodities that are shared and are general household items and determining who uses what elements of what and what they should be paying, is notoriously difficult. So I will be interested to see what is intended with this and how that's then communicated with participants and their supporters across the organisation, and how people feel about that, given that certain people may fluctuate in their use of commodities that are shared within a household, for example. It's a very difficult thing to
CHAIR: Isn't that precisely why Life Without Barriers should have had a system? You are not going to solve a difficult problem if you have no system.
MS TAYLOR: I mean, you know, it's difficult to determine who has used more of the cleaning equipment
CHAIR: I understand that, that's why you need a system.
MS TAYLOR: in a house or toilet paper in a house than another
CHAIR: Sorry. Isn't that why you need a system? If you don't have a system, you can't possibly solve the problem?
MS TAYLOR: It's important that there is a system for absolute transparency for residents in a property, that the money they have put under agreements, or whatever, to utilities and shared expenses is accounted for. There is no doubt about that. It's an area of absolute importance for the people who are sharing in those houses to be clear that the funds they are contributing to the upkeep of the house are being used for that purpose.
COMMISSIONER McEWIN: Ms Taylor, could I ask, is that something you hear about a lot or get complaints about from across Australia?
MS TAYLOR: On this specific issue, I couldn't say. But what I can say which I think cuts, to me, to the heart of this issue is about communication, and people being given real clarity about what they are signing up for, and their understanding of what they think is in a service agreement and what they think they will receive as part of that service agreement.
Communication is a really significant area of complaint for us. It could be, not being familiar with the intricacies of this but with the records that I have observed, that at the heart of this, this is about the expectations that were not fulfilled, and whether or not the communication was good enough about what could or could not be delivered in the context of the acquittance of the board and lodging expenses.
COMMISSIONER McEWIN: Thank you.
MR FOGARTY: Can I clarify? It's the case, isn't it, that Paul if you accept what he says in his original 4 November 2020 complaint says he had asked for service agreements and records and they hadn't been provided?
MS TAYLOR: Yes.
MR FOGARTY: With respect, do you agree that, on the face of it, it seems something deeper than communication?
MS TAYLOR: Yes, he has been quite specific. That's true.
MR FOGARTY: I note the time but before the break, you talked about the practice standards in terms of what I will call participant money, because there is a standard and it's 25. The National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018, schedule 1, part 5, 25 reads:
Participant money and property.
Participant money and property is secure and each participant uses their own money and property as they determine.
Is that the practice standard you said an auditor would cross check the provider in respect of?
MS TAYLOR: Yes.
MR FOGARTY: As we have discussed this complaint more today and you have given evidence about it, do you hold some concerns that this situation might not meet that standard, or do you think it's something different?
MS TAYLOR: No, no, because as I explained before, that standard is about the participant's money and their discretionary what I consider to be their discretionary income. I think, having heard earlier the evidence about Natalie, for example, and the use of her remaining income, that standard would very much go to those moneys.
MR FOGARTY: You refer to the evidence given earlier today or read out, from her mother?
MS TAYLOR: I do, yes.
MR FOGARTY: Do you recall, though, in that situation and I will summarise this there was a concern by Jennifer about how that money was being used inhouse for Natalie?
MS TAYLOR: Yes.
MR FOGARTY: Do you agree it is a similar type of complaint to Paul's?
MS TAYLOR: I think it relates to money and transparency but in the case of the evidence that was heard earlier, that related to her money to buy certain things at her own discretion, money to spend when she was accessing different service providers. It was described as the money that was left over after she had contributed to the board and lodging costs. It might be money that she might use in her going to activities in her day programs, and so forth. So it was more discretionary money, as opposed to what I take to be Paul's complaint, which is around how much of the how the board and lodging expenses were being attributed to each individual resident.
MR FOGARTY: But doesn't he also talk about spend on food and those sort of discretionary spends?
MS TAYLOR: He does refer to those, that is true, but at the heart of his issue is
what's left over from the shared expenses, is what I have taken from that particular complaint. That's what I gleaned from those records.
CHAIR: A common issue is proper recording, accounting and reporting, isn't it? That's the common issue in both?
MS TAYLOR: Yes, that is true, yes.
MR FOGARTY: Can I finish before the break on this: at the time in November 2020, so we are talking 13 months ago, you would accept that LWB managed quite a number of supported SIL group homes?
MS TAYLOR: Yes.
MR FOGARTY: With, and I will approximate here, thousands of NDIS participants in those. Given what appears to be an admission that they didn't have a system, doesn't it concern you then that this may have been a systemic problem? Does it now concern you, I should say?
MS TAYLOR: I have to say yes, yes, and that's why I will be wanting to understand what's being done around the implementation of this system. There are a range of things, as I was describing, that I can do to satisfy myself that that's being implemented, but successfully implemented. So I can request information from the organisation. They have undertaken to give us an update. We'll pursue that in the Victorian context. It's to be undertaken within the Victorian disability accommodation services initially.
It may also be, as I mentioned before, that in a mid term audit that will be forthcoming for them later next year, it's an area we ask the auditor to have a look at, how that's being implemented, because I think it will be around the time that they are indicating in response to this complaint that it will be in place.
MR FOGARTY: Very quickly: if this, though, had been picked up earlier, let's say earlier while the complaint was live, the team could have referred it off to the complaints officer internally could have referred it off to the compliance function or the compliance team? It could have?
MS TAYLOR: As I said before, it could have, could have, but if there were concerns about the use of participant moneys and the compliance with that particular standard, it might have. As I say, it wasn't evident to me that that's what this complaint was talking to. And we'd already just had an independent audit to inform registration for LWB which didn't find any major non conformities in their systems and processes.
But in the context of this particular complaint and surfacing the improvements the organisation is doing, that will be of benefit for hundreds, as you say, if not thousands. We'd certainly be interested in that. It will be picked up anyway in the
course of that mid term audit, as part of their management and governance and operational standard obligations.
So I am satisfied that there are sufficient mechanisms available for us to keep an eye on this and understand what's actually being done. But, more importantly, that it's dealing with Paul's particular issues. As I said before, with the inquiry, it will give us an opportunity to see whether this particular issue is an endemic, systemic issue for LWB through the themes that come through in the complaints.
CHAIR: If we confine ourselves to the complaint and how it was resolved, not what has happened generically, if I can put it that way, since, the summary would be as follows, wouldn't it: a specific complaint about the handling of money; an admission by the service provider that it had no system for proper recording and reporting and accounting for moneys; a response from the service provider "We promise to do better"; and the Commission says "okay". That's basically what happened, isn't it?
MS TAYLOR: Chair, I think I'd say, though, that in the complaint what is evident is that it wasn't that there was no system whatsoever, because the operations manager is receiving profit and loss statements from the house, so there is a system. Whether it's a capital S system and this will create greater efficiencies and more sophisticated management, I think is the thing that I've read through on this particular matter.
MR FOGARTY: Thank you, Chair. It might be an appropriate time for a break.
CHAIR: It is 5 past 3. We will resume at 3.20, if you wouldn't mind.
MS TAYLOR: Thank you.
CHAIR: Yes, Mr Fogarty.
MR FOGARTY: Could I take you to page 16 of your statement, where you provide some evidence in respect of what's called the May 2019 reportable incident. At paragraph 55, it reads:
I won't read out the incident number of the Commission:
..... related to an incident on 26 March 2019 in which Sophie alleged that a disability support worker known as LWB Worker 1 pushed Sophie over and ran
a wheelchair into her. It appears that LWB's key personnel were informed of this incident for the first time by Sophie's mother Michelle on 4 April 2019 in the course of a discussion. LWB told the NDIS Commission that they requested written advice and that they did not receive an email from Michelle until 29 April 2019. LWB informed the NDIS Commission of the reportable incident on 13 May 2019.
Do you agree that this type of incident is one that would need to be reported within 24 hours?
MS TAYLOR: Yes.
MR FOGARTY: Might I show you a document in hearing bundle C, tab 404. I will ask you to work from the back of this document. The very first email in the chain, do you see it is dated 26 March 2019 and it says:
Hi Michelle and Greg
I just wanted to .....
It should be the second last page.
MS TAYLOR: Yes.
MR FOGARTY: That is from the Lifestyle Supports Coordinator Far North Coast?
MS TAYLOR: Yes.
MR FOGARTY: Can I ask you to read the content of that email, which is the bottom of the second last page. It starts:
I just wanted to touch base with you regarding Sophie .....
MS TAYLOR: You would like me to read on?
MR FOGARTY: Yes, please.
..... and especially after her escalation on the weekend
MR FOGARTY: Sorry, to yourself, I should say, just so you are familiar with it?
MS TAYLOR: Okay, yes. I'm comfortable, thank you.
MR FOGARTY: Then over the page, there is a further email which starts at the top. Again, 26 March 2019, 8.09pm and it appears to be from Michelle. Do you see that?
MR FOGARTY: Are you familiar with the contents of that email, which starts with the name of one of her daughters:
[My daughter] picked Sophie up and she spent some time with her and she was okay.
MS TAYLOR: I can't recall when I have read this email, sorry.
MR FOGARTY: All right. Let me continue in that paragraph:
You will no doubt be aware there was a major incident tonight.
So 26 March:
Sophie was given the choice of coming home, going to the police station, or me staying at the house. I'm so sorry about the staff that got hurt, I am so ashamed. I do not want to defend Sophie, what she did is deplorable.
Could I take you halfway down, where it says:
Sophie informed me in front of .....
..... that LWB Worker 1 pushed her over.
Do you see that?
MS TAYLOR: Yes.
I asked her .....
That is Sophie, I think:
..... later in a calm moment to tell me what happened today. This by no means excuses her assault on staff but her story also needs to be told.
The next paragraph reads:
Sophie said early this afternoon she left her room to go to the dining area and said she wanted to do some art work. She saw an Aldi bag at the table and went to have a look in it. She said the bag was snatched away and she was told it had nothing to do with her. She was told she is not allowed down there as
other people are not safe.
Then the second last paragraph:
Sophie said she walked down the corridor and stood with her arms folded. LWB Worker 1 told her to move and Sophie said if she had asked nicely she would have moved. Sophie states that LWB Worker 1 said, "I've had enough of this", then pushed Sophie over. While Sophie was on the floor, she said that LWB Worker 1 tried to push Tyler's wheelchair over her. She said that she said to LWB Worker 1, "Can you give me a chance to get up?"
Do you agree that the content here is an alleged reportable incident?
MS TAYLOR: Yes.
MR FOGARTY: Do you agree it appears to be from Michelle on 26 March 2019?
I will ask you to turn the page. There appears to be a further email from Michelle the next day, 27 March 2019, still to the Lifestyle Supports Coordinator Far North Coast, LWB. Do you agree it appears that the email I have just read out to you was sent to that LWB officer?
Do you agree, on that basis, that on 26 March, key personnel within LWB were on notice of a reportable incident?
MS TAYLOR: Well, I have only seen this for the first time here, but it certainly would appear so.
MR FOGARTY: All right.
CHAIR: I'm sorry, Ms Taylor, in your statement at paragraph 83, you have commented that it's not clear to you why the LWB investigator found that the allegation concerning pushing, I think it was, was not sustained. You have obviously read, in making that concession, if I can put it that way, the final investigation report, the FIR, which was made earlier than that and is referred to earlier in your statement.
Did you not go through the whole chain in order it reach the conclusion that you did in paragraph 83 about
MS TAYLOR: I have read the full FIR, yes.
MR FOGARTY: Including the email?
MS TAYLOR: I don't recall the email being a part, but I do recall the content of the email forming part of it. I just haven't seen it in this form, Chair.
CHAIR: But you are familiar then with the substance of the email content?
MS TAYLOR: Yes, with the content, definitely.
CHAIR: Thank you.
MS TAYLOR: So I have read the FIR in full and I am aware of what the incident involved that was being investigated in that, absolutely.
MR FOGARTY: At paragraph 55 of your statement at page 16, you there write and you have given evidence about seeing the detail of this email. You say:
The incident was first reported by Michelle on 4 April 2019 in the course of discussion.
Do you agree now, having seen this email, that that's not the case, that it was 26 March 2019 it was reported to LWB?
MS TAYLOR: Yes. So can I just clarify that I'm familiar with the content of the incident, but I haven't seen this email trail that would suggest that it had been that other staff in LWB were made aware of the incident earlier than we understood from our records.
MR FOGARTY: Do you accept that that staff member falls within the definition of key personnel?
MS TAYLOR: I don't know what the role description for this person would be. Of course I couldn't comment on that. If the Commission has that information, it may well be the case. I'm not familiar with LWB's structure.
MR FOGARTY: You are not familiar with Lifestyle Support Coordinator Far North Coast, what their oversight might be; is that correct?
MS TAYLOR: No, I'm not.
MR FOGARTY: If it were a person who fell within the definition, would you have some concerns then that the report wasn't actually made until 13 May 2019, this reportable incident?
MS TAYLOR: Yes, and I think in my evidence I also have already said that we had marked this as an incident that was reported out of time.
MR FOGARTY: Yes.
MS TAYLOR: I've also referred to the fact that even though it formed part of a compliance activity that I subsequently initiated with LWB, not as a specific example of a late reportable incident, but of a number of reportable incidents and a trend and an issue with this organisation reporting incidents within the statutory time period.
MR FOGARTY: You issued in September 2021 of this year a compliance notice; correct?
MS TAYLOR: Of
MR FOGARTY: On LWB?
MS TAYLOR: Of last year, 2020.
MR FOGARTY: My apologies, September 2020?
MS TAYLOR: Yes.
MR FOGARTY: To your knowledge, if you recall, there are 11 instances recorded in that compliance notice of a failure to comply? Do you recall that?
MS TAYLOR: I do, and they were examples of failures
MR FOGARTY: I see.
MS TAYLOR: to not comply of not complying.
MR FOGARTY: When you say "examples", were there more that the Commission was aware of, or are they all
MS TAYLOR: Well, this particular one was marked in our system as being an RI, a reportable incident, which was reported late by LWB, so it was captured by the intent of the compliance notice.
MR FOGARTY: But it wasn't one of the 11 listed in that compliance notice; do you agree?
MS TAYLOR: Not that I can recall, no.
MR FOGARTY: Not that you can recall, all right. Is it the case though, until now, that the non compliance in terms of timing in notifying the Commission by LWB was more like 14 days? Do you accept that, on your understanding, the clock started to tick from 29 April 2019, when LWB told the NDIS Commission that they had requested written advice from Michelle and that she didn't they didn't receive that until 29 April?
MS TAYLOR: Sorry, can you repeat that?
MR FOGARTY: What I am trying to understand is prior to me showing you this email of 26 March 2019, was it your understanding that the clock was ticking for them to notify you from 29 April 2019?
MS TAYLOR: Well, that's my evidence, yes.
MR FOGARTY: Yes.
MS TAYLOR: Based on the information that was available on our records, yes.
MR FOGARTY: So your understanding was they were roughly 14 days late?
MS TAYLOR: That's right.
MR FOGARTY: But now, on looking at the documents, assuming this person falls within key personnel, they may have been something more like 48 days?
MS TAYLOR: Yes, yes.
MR FOGARTY: If that is shown, is that a breach of the incident management rules, a non compliance?
MS TAYLOR: Well, it's a non compliance against under the conditions of registration to report incidents within the prescribed time periods.
MR FOGARTY: Yes.
MS TAYLOR: And that was obviously an issue not only in well, we'd identified this as a trend in Life Without Barriers and had been engaging with them on this matter for a while, which then led me to initiate the compliance notice in 2020, asking them to take actions to comply.
MR FOGARTY: Are you able to share with the Royal Commission if you are aware of where that's up to? Have they completed the compliance requirements?
MS TAYLOR: Yes, I think I can't recall, but I have given in my statement I do step through the issuing of the compliance notice but also that subsequently they satisfied me that they had complied and they had resolved and done a number of improvements within the organisation to make sure they were meeting that condition.
Since the closure of that compliance notice, which is on our public register as having been complied with, I have continued and instructed staff to continue to monitor LWB's compliance with these obligations. In fact, I had asked that to coincide with, for want of a better term, the anniversary of closing off that compliance notice, that I write again to LWB with an assessment of how their compliance against that obligation had been met throughout that subsequent period.
I am satisfied that they have met those continued to meet those obligations, but we continued to monitor this. It has been a broader compliance strategy for the Commission since the 2019/2020 financial year to monitor compliance of these
matters with providers.
MR FOGARTY: In fairness to you, just for reference, might the witness be shown hearing bundle F, tab 179, the compliance notice? I will show that to you. As you say, it's dated 21 September 2020.
MS TAYLOR: Mmm hmm.
CHAIR: That is dealt with at Ms Taylor's statement at paragraph 98.
MR FOGARTY: Yes. If you look at the table on the second page, do you agree the extent of non compliance in days, the longest period there is 34?
MS TAYLOR: Yes.
MR FOGARTY: When looking at that list, are you satisfied that this incident isn't one that's recorded in this list, that is Sophie's?
MS TAYLOR: I am. Whilst I would say that that table sets out, as it says, examples of non compliance, the compliance notice is not limited to those matters. It addresses failure to comply to the subject terms of those rules across a range of incidents and those, as I say, are examples of that.
MR FOGARTY: It's the case, in terms of notifying your Commission and this is at paragraph 63 that LWB lodged a five day notification form on 13 May?
MS TAYLOR: Yes.
MR FOGARTY: Is that the right form to lodge, given your evidence earlier about 24 hours and the five days is unauthorised restrictive practices
MS TAYLOR: Well, given it was a late matter can I just clarify, whilst there may be two forms, one form is contained within the other form, in that the 24 hour report forms part of the five day report. So given the event had passed, the 24 hour report would not have been a relevant form to notify us. That time had clearly passed. So the five day report would have been the more comprehensive report usually provided by a provider. Given the passage of time, they would have been perfectly able to furnish us with the information that we were requiring in that five day form.
MR FOGARTY: In terms of what the Commission did following the receipt of the five day notification form, and I am looking at paragraph 68 of your statement, the next contact made by, I'll say, the team, the QSC team, was on 17 July 2019, that is to LWB; do you agree?
MS TAYLOR: Yes.
MR FOGARTY: Asking for documents and information. I'll just let you look at your paragraph 68, if that assists?
MS TAYLOR: We did acknowledge before that, though, receipt of the five day notification.
MR FOGARTY: Is that automated, that acknowledgement of receipt?
MS TAYLOR: I can't tell you that, I'm sorry. Again, my technological understanding is
MR FOGARTY: That's all right. Do you agree that is then almost two months before the team took any step in respect of LWB?
MS TAYLOR: Yes. However
MR FOGARTY: From LWB, looking back, or receiving any correspondence
MS TAYLOR: That's my evidence, so
MR FOGARTY: The Commission requests documents and information in that correspondence; do you agree?
MS TAYLOR: Yes. That's the usual process, yes, if we think that if the officer considers that the five day report we need more information.
MR FOGARTY: The Commission doesn't check or audit what material is provided, does it? When requested, it doesn't do its own check as to whether there are more materials LWB might have that would bear upon this incident?
MS TAYLOR: The information that we request can be very far reaching.
MR FOGARTY: Yes.
MS TAYLOR: The records that are attached to reportable incidents are usually very extensive and relate to any manner of things, depending on the nature of the incident. So I couldn't give you a definitive, it depends on the situation.
MR FOGARTY: My question is: you don't check the Commission doesn't check what they provide or don't provide; correct?
MS TAYLOR: Well, we check that the five day report is complete and that they have provided us with all the information they are required to provide. We then determine whether or not we've got enough information for an officer to determine whether or not we are satisfied that they have managed the incident in accordance with their obligations, in order to form a view about whether or not we need to ask them to take further action under the rules, which could include, for example,
undertaking an investigation. In this particular instance, that was already underway, from my understanding.
MR FOGARTY: An internal investigation?
MS TAYLOR: An internal investigation, or we might suggest that the matter be referred to another body such as the police, or any manner of things.
MR FOGARTY: But what I am asking you is, you rely solely on what the Commission relies solely on what LWB provides, in terms of documents and information?
MS TAYLOR: Yes, because the obligation is on the provider to satisfy us that they are managing and responding to an incident in an appropriate way. The information that we require of them might not only be information, though, that is generated by the organisation; it might be evidence of engagement with the participant or in some circumstances, for example, a medical practitioner, or any manner of things. So the information that is requested assists us in being able to monitor the effectiveness of their response and that information. Although the five day report would be generated by the provider, the supporting information would be much broader.
MR FOGARTY: But you rely on the provider to give you that information?
MS TAYLOR: Yes, because it's a condition of registration that they assure us that they are managing the incident in an appropriate way.
MR FOGARTY: Is that ever audited later on, to see that they have done that, in a quality audit, for example?
MS TAYLOR: Yes, because the reporting of incidents is a condition of registration as well as a standard, and the auditing of arrangements for reporting incidents and their broader incident management systems, which I described earlier, is part of that assessment.
MR FOGARTY: One of the documents provided, and I think you referred to it in your earlier evidence, and which I understand you have read is the financial investigation report?
MS TAYLOR: Yes.
MR FOGARTY: That was done internally by LWB, by an officer of LWB?
MS TAYLOR: By someone engaged by LWB, as I understand it.
MR FOGARTY: This is at paragraph 75 or thereabouts. So 11 September 2019, the Commission emailed LWB, following up about that final investigation report?
MS TAYLOR: Yes.
MR FOGARTY: LWB responded the same day, providing that final investigation report?
MS TAYLOR: Yes.
MR FOGARTY: That report was dated 23 July 2019; do you understand that's the case?
MS TAYLOR: Yes, I understand that's the case.
MR FOGARTY: Was that of concern, that between the provision of that and that earlier date?
MS TAYLOR: As I understand it, there were other things that happened following the date of that report within LWB, which included the provision of the report to the management.
MR FOGARTY: An outcome meeting was held?
MS TAYLOR: An outcome meeting, that's right, and then determination about whether or not there was the investigation was adequate, from their perspective, before it was then submitted to us. There seems to have been an issue with the passage of time between that meeting and our providing it and, unfortunately, we had to follow up for its provision to us.
MR FOGARTY: In fairness to LWB, I think the officer apologised and had been on some leave?
MS TAYLOR: Yes.
MR FOGARTY: And, it would appear, responded quite promptly?
MS TAYLOR: Mmm.
MR FOGARTY: On 12 September 2019, this is paragraph 79, the reportable incidents officer with oversight of this particular reportable incident recommended to the Assistant Director that this reportable incident be closed; do you agree?
MS TAYLOR: Yes.
MR FOGARTY: Summarising the reasons:
1. The findings of the final investigation report has found allegations against LWB Worker 1 not to be substantiated; 2. As the Commission understood, New South Wales police were not pursuing the incident;
3. Sophie was now in temporary accommodation with one to one support awaiting approval of her NDIS plan to transition to new permanent accommodation;
4. That LWB had identified the need for training and supervision for staff with focus being on managing challenging behaviours.
You understand those are the four reasons for recommendation?
MS TAYLOR: Yes.
MR FOGARTY: Do you agree that the approval appears to have happened from the Assistant Director on 7 January 2020, some months later?
MS TAYLOR: Yes. I might just comment that unlike with a complaint, with reportable incidents a closure is an administrative step by the Commission. It's not a it's simply a closure of a record for workflow purposes within our system, as to opposed to an obligation we have to take action in management of these issues under the rules.
MR FOGARTY: I see.
CHAIR: Ms Taylor, what was the point of the final investigation report prepared by Life Without Barriers being supplied to the Commission?
MS TAYLOR: To satisfy us that they had looked into the circumstances of the incident and identified any issues they might need to remedy for the participant, particularly.
CHAIR: I take it from your paragraph 83, that having looked at the final investigation report, pages 24 to 26, dealing with the particular complaint relating to one of the support workers pushing Sophie, you, having read that, found it difficult to understand why the Commission officer was satisfied with the inquiry undertaken by LWB?
MS TAYLOR: I found it difficult on two levels, Chair. Firstly, I was concerned that LWB had accepted the report with that finding when it was actually an admission by the worker, through the interview that had been undertaken as part of that investigation.
CHAIR: We know that from page 26 and it is reproduced, very fairly, in your statement that in relation to the allegation, it has been established that I won't use the name did push Sophie over when in the hallway, causing her to fall to the ground. It is possible the fall caused the bruise to Sophie's leg. The support worker reported she used two hands and a force of about 5 out of 10 when pushing Sophie. That is pretty clear?
MS TAYLOR: I agree.
CHAIR: So LWB having accepted, apparently, on the basis of the investigator regarding that as insufficient to sustain the allegation, notwithstanding the admission, the Commission says that's all right. How do we deal with that?
MS TAYLOR: Well, I've said in my statement that I have concerns about that, but that wasn't that that hadn't been picked up by our staff. And I've set out in my statement what I think could then have occurred. Of course, the first thing I'm saying I think could have occurred, if both LWB and potentially our officer had identified this and alerted LWB or asked the question to LWB, would have been an apology to Sophie for what had occurred. But it may also have resulted in further actions by LWB in regard to the worker involved in that particular incident. I have acknowledged that there were supervision and training actions arising, but who can tell what might have been done in addition.
CHAIR: Who can tell, indeed. I understand that. The Reportable Incidents Officer, has that officer been counselled about this, or the issue drawn to his or her attention, as the case may be, that it appears to be inexplicable?
MS TAYLOR: As I have said in my statement, and sorry if I can't recall the exact paragraph, not only this incident, but I think there is a need for guidance to providers about how they go about incidents how they go about undertaking investigations, to make sure those investigations are truly independent and give a full account of the incident from the perspective of the person affected, their supporters and other people involved.
That's not the only piece of guidance that's needed, though; it's how those reports, for officers who may not be used to reading formal investigation reports or who may be new to the job or what have you, are interpreting and understanding where to raise issues. So that training material is being developed for both providers, but also internal to the Commission, to assist all our staff in dealing with reviews of these kinds of documents.
CHAIR: The document itself appears to be signed by an Investigations Officer and then approved. This is the investigation report by a person described as "Manager, National Investigations and Complaints". They seem to be, do they not, officers of Life Without Barriers?
MS TAYLOR: That would seem to be the case.
CHAIR: Not an independent investigator?
MS TAYLOR: Chair, I don't think that it's always essential that investigations staff are people are engaged completely separate to the organisation. I say that from my own experience in being responsible in a previous role for direct service delivery where the important thing was that the team who were involved in undertaking investigations are independent of the direct service delivery and are not under the
control or oversight or influenced in any way by the people that they are investigating.
It is possible to have people engaged within an organisation who are separate and able to undertake that function. It would be something that I would fully expect a board or senior management to have absolute confidence in their autonomy in undertaking those investigations to give the organisation assurance.
CHAIR: This sort of report might cast some doubt on that, mightn't it?
MS TAYLOR: The report itself I found satisfactory. It seems that the investigator did take all endeavours to engage with the participants in the house and to engage with them in a way that gave their ability to put their best views forward. Each of the participants was engaged
CHAIR: I understand that, but you've accepted in your statement that basically you can't understand how the LWB investigator made the finding that he or she or they did?
MS TAYLOR: Yes.
CHAIR: I'm sorry, how does an investigation get to be classified as satisfactory when it reaches a conclusion that you, having read it, cannot understand, and I agree with your assessment, having read that?
MS TAYLOR: That is a fair response to my assessment. Thank you, Chair.
CHAIR: Yes, Mr Fogarty.
MR FOGARTY: Ms Taylor, may I show you another document, please. It's hearing bundle G, tab 4. Could I ask you whether you recall seeing this document before?
MS TAYLOR: No I might have done, I'm sorry, I can't recall.
MR FOGARTY: Do you see it's headed "Operational and Systemic Issues Identified During the Investigation" and it appears to be a Life Without Barriers document?
MS TAYLOR: Yes.
MR FOGARTY: Do you see on the front page that the investigator, do you recall, is the same person as the final investigation report?
MS TAYLOR: Yes, yes.
MR FOGARTY: When you say you don't recall
MS TAYLOR: It looks similar to the header that was on the FIR.
MR FOGARTY: The FIR, all right. Perhaps if I let you read the front page to yourself and see whether what's referred to there in this document is something you recall having seen or read before?
MS TAYLOR: Would you like me to read the whole of the document?
MR FOGARTY: No.
MS TAYLOR: There are aspects of this that I do recall seeing.
MR FOGARTY: But you can't be sure whether this was a document provided by Life Without Barriers to the Commission?
MS TAYLOR: I've looked at many documents. I couldn't pinpoint this particular one.
MR FOGARTY: Would you want this to be a document that was provided on the request from the Commission about this reportable incident? Do you think this would be a useful document?
MS TAYLOR: It certainly does seem to any document that assists us in understanding what's gone on in an incident is a useful document.
MR FOGARTY: Yes. I won't walk through it, but the subheadings are "Reporting of reportable incidents" and a highlight of this officer say in respect of the five day reportable incident notification, that this needed to be reported to ICU, I understand it, that's an internal unit of LWB, immediately for settlement; reporting to police is highlighted there:
All allegations of serious physical assault should be reported to police. Where possible, client should be supported by LWB to make the report themselves.
Then there's a topic of "Sophie's transition to an alternative accommodation option":
There was no transitional plan to assist Sophie's move from her current accommodation option to an alternative one.
Then there's reference to an incident on 23 March 2019, which I think preceded the matter we were discussing a moment ago, but also you will see in the paragraph under that the reference to:
As a result, LWB Worker 1 appeared fearful and/or may have held resentment towards Sophie which contributed to the incident which unfolded on 26 March 2019, as LWB Worker 1 tried to avoid Sophie throughout the shift, which may have resulted in the events which unfolded on 26 March 2019.
That part I just read to you, do you recall having read that before? Does that spring to mind, that analysis?
MS TAYLOR: I haven't heard the word "fearful" before in regard to the worker, no.
MR FOGARTY: And then the next subheading, "LWB Worker 1's behaviour":
Throughout the shift that worker responded to Sophie in an inappropriate manner. Sophie's PBSP .....
Which I understand is positive behaviour support plan:
..... clearly states that some of Sophie's triggers include being ignored, failure to acknowledge Sophie. Throughout the shift LWB Worker 1 described how she went to extreme lengths to ignore Sophie by one point pretending to be on the phone to management for a lengthy period of time when in fact she was on the phone to her partner.
Does me reading that
MS TAYLOR: Yes, I recall some information I have read about that. I think she made that admission, that she pretended to be on the phone to her partner saying to Sophie that she was on the phone to her manager.
MR FOGARTY: You recall the reference to PBSP and those sorts of behaviours being triggered for Sophie?
MS TAYLOR: Yes, I do, yes.
MR FOGARTY: The next subheading "Training", and this is reference to LWB Worker 2, who I understand there was involvement in respect to the on the same day there was an issue with respect to two workers, this being the second worker. It reads:
Has not had any training since becoming an employee. It is also problematic that LWB Worker 2 was interviewed by Sophie as this appears to have caused a power imbalance. Sophie said she thought this worker was no good for the job. She'd only ever met this worker in the local coffee shop where that worker used to work.
Do you recall that information being in anything you've read before?
MS TAYLOR: It's not familiar to me, no.
MR FOGARTY: All right. Then the last heading on this page, "Rostering Issues":
Sophie was funded to have support from 3pm. LWB Worker 1 was the sole
person on shift throughout the day until 5pm. This was a rostering issue as LWB Worker 1 should have had the support of a second staff member from 3pm. The incident unfolded around 4pm.
Does that something
MS TAYLOR: I'm broadly familiar with the rostering arrangements having been referenced in other things, yes.
MR FOGARTY: If that's the case, would you agree that on its face, it appears to be, would you agree, an internal analysis by LWB of what happened on 26 March 2019?
MS TAYLOR: Yes, it appears to be an analysis of that and the events and maybe contributing factors to that incident.
MR FOGARTY: Could, and I will use the word "under staffing", which appears to be what's suggested here, could that amount to neglect in terms of a reportable incident, in your view, in terms of the definition of reportable incident?
MS TAYLOR: Understaffing in and of itself?
MR FOGARTY: Yes, in supported accommodation, where someone has funding, and let's say there are four residents there at the time and one staff member. In and of itself, could that itself amount to neglect as defined by reportable incident?
MS TAYLOR: It depends on what people's needs are, and what was available through the support what was established by way of support for people based on those needs. I think that a failure to provide a support, if a support wasn't needed or part of a service arrangement, would not be. However, by example, a failure, for example, if you applied understaffing in a failure for anyone to show up on a shift and for there to be no staff available to manage people who were expecting staff to be available to provide support needs might indeed be an incident that was reportable.
MR FOGARTY: From what you understand of this incident, from this document I have read to you and you reading the final investigation report, do you not hold the view that on this occasion, having only LWB Worker 1 was deficient in terms of the needs at least of Sophie? Do you agree?
MS TAYLOR: No, I think I'd need to think about that in terms of all the information that's here, because these things are interoperable. You know, the issues about the behaviour and whether or not Worker 1 was aware of Sophie's triggers and what that then exacerbated in terms of the events that happened when she might have been in the house by herself, you know, these things are joined together and it's almost impossible to say which one would have been a contributor, the primary contributor.
MR FOGARTY: Could a disability support worker not being familiar with a behav
iour support plan added to one less rostered disability support worker at the same time could those things lead you to the view that that might amount to neglect? So the worker who is on board on the day has no idea about the behaviour support plan, plus they are down one person, would that concern you as neglect?
MS TAYLOR: I don't think I could say it was neglect to the extent that without knowing about the circumstances or needs of that person.
MR FOGARTY: Right.
MS TAYLOR: I couldn't make the conclusion of neglect on that information, no.
MR FOGARTY: All right. Can I just be clear, I suppose I'm giving you hypotheticals, but on what you know about this incident with Sophie, do you hold a view that it could be characterised as neglect on this occasion?
MS TAYLOR: I will give you my opinion based on my experience, which is I am more concerned about the issues around the triggers for Sophie's behaviours and the knowledge of those triggers and the pretence of the worker, which she may well have understood to have driven things that would have exacerbated the behaviour. I am more concerned about that in this description, looking at this now, than whether or not there was more than one worker. Because I think we could all surmise whether or not that might have made a difference. I couldn't say, but certainly I am more concerned about the behaviour of a worker who where someone was seeking their attention and knowing that the failure to give that attention could cause that person to be unhappy, I must say, I did hear through the public webcast some of Sophie's evidence and how she felt about that, as most people would feel, pretty maligned and upset about that kind of behaviour. You know, that's my primary concern in this matter.
CHAIR: Well, that primary concern would lead you to conclude that the actions of the carer constituted neglect or something worse, if she deliberately ignored Sophie knowing that that was a trigger for Sophie's behaviour, wouldn't it?
MS TAYLOR: Could be.
CHAIR: Could be, yes.
MR FOGARTY: Are you aware, and I assume you only have incidental knowledge of this and you may not be aware, in terms of the closure of this reportable incident, are you aware of whether these particular concerns you've just raised, about what the LWB Worker may or may not have done, are you satisfied that those were taken into account when this reportable incident was closed off?
MS TAYLOR: Well, I've said in my evidence that if the Commission had have identified the discrepancy in the FIR [final investigation report], then there might have been other things that we would have sought from the organisation, and indeed
from the worker themselves, and that would have been, you know, a very significant acknowledgement to Sophie, an apology to her as well as putting, as we have done in the past and do regularly, the worker on notice about our concerns about her particular well, her contribution to the incident.
MR FOGARTY: In this case Sophie herself wasn't approached by the Commission to seek her view?
MS TAYLOR: I'm not aware that that's the case, no.
MR FOGARTY: In hindsight, would that have been something that may have assisted, to get to the bottom of what had happened in this incident?
MS TAYLOR: It may have. It may have. We have got a lot more guidance to staff about the situations in which they should engage with a person who is subject to an incident. At this point in time, again referring to the evidence I gave about the complaints timing, we had quite a number of incidents and were not able to always engage. I think at the time there was a view that potentially engaging with people who might have been the subject of incidents, if all things in our assessment had been addressed, as we concluded here, aside from the things that could have been done, had been done in accordance with the provider's obligations, to contact the participant and ask them about an event where they had already been interviewed and put their view forward and we were satisfied that that was an authentic view, might not be entirely helpful to that person retraumatising, for example. In this situation it may well have been beneficial to do that and we've now got some policies that we have got in place for encouraging and making sure our staff understand that they should be taking every opportunity to engage with NDIS participants where incidents affect them.
CHAIR: I notice that in paragraph 83 you've made the comment to which I have already referred about the first of the allegations of matters that occurred actually on 26 March. Paragraph 27 which lists them has the wrong date. I'm just wondering why you didn't make the same observations about the other allegations. Allegation 1.2 was that one of the workers dragged Sophie along the floor by her feet into the laundry, "finding not sustained, lack of evidence of weight" anyway, I'm not sure what that means. Allegation 2.1 that the worker locked Sophie in the laundry room. That's replicated in allegation 4, that another worker did the same thing, and then allegation 3.1 that one of the workers dragged Sophie along the floor by her feet. Why didn't you form the same view that it's difficult to understand why the allegations weren't sustained, or were rejected on the basis of "lack of evidence of weight". Sophie was very clear about what happened in her evidence, wasn't she?
MS TAYLOR: She was.
CHAIR: Why would they reject Sophie's evidence, do you think?
MS TAYLOR: Well, that's a good question.
CHAIR: Was it lacking weight?
MS TAYLOR: That is a good question.
CHAIR: That is a good question, isn't it.
MR FOGARTY: Ms Taylor, just concluding on this reportable incident, do you agree that the monitoring of compliance in respect of Sophie's reportable incident, as I will call it, relied entirely on LWB self-reporting and choosing what documents and information it provided to the Commission, in this case?
MS TAYLOR: Yes, noting that they contained evidence from participants themselves.
MR FOGARTY: All right. And also, and I think I asked you earlier about this, correct me, at the time there was no, and there hasn't been as you understand it, any independent checking of what was provided, but I think your evidence earlier was in terms of when requested, that that may come within a quality auditing review because it was a reportable incident; is that right? It might be checked down the track?
MS TAYLOR: Can you clarify what you are asking me, I'm sorry?
MR FOGARTY: In terms of checking whether the Commission had been provided with all the relevant information and documents by LWB, there's been no independent checking of whether they provided everything that was relevant, has there, so far?
MS TAYLOR: Well, except that our officers looked at the information they requested certain information and they would have been quite precise about the information that they sought. If they felt they needed to ask for more information they would have gone back again. So the independent assessment of information would have been done by Commission officers themselves. Auditors will look at the way in which an organisation undertakes its incident management and meets its obligations to comply with those conditions. It wouldn't necessarily have looked at every single RI [reportable incident]. It would have looked at a sampling, to look at the broad compliance against the standard. That independent view of what was provided and whether it was adequate for us to form a view about the management of the issue would have been done by the Commission officers.
MR FOGARTY: Again, you agree it relies on whatever LWB provides, and you being satisfied that's enough?
MS TAYLOR: Yes, that's right, but it's I think it's important that the arrangements around reportable incidents that we oversight relies not only on a cursory report, it's not only a simple report, our officers will ask for extensive
additional supporting information, if it's not provided at the time that a five day report is provided. That information will be, what they think in their assessment and against their standard operating procedures, that we have in place for our officers, is the information they need in order to understand that the provider has managed and responded to the incident appropriately.
MR FOGARTY: For instance, though, you can't be sure whether the Commission received the document I just showed you entitled "Operational and Systemic Issues Identified During the Investigation", can you?
MS TAYLOR: I can't. Having looked at the files from my perspective, and sought files that relate to this matter, I can't, but I can't speak for the officer that was dealing with this matter at the time.
MR FOGARTY: I see. Chair, I note the time. There are more topics and I think Commissioner Galbally has a topic, at least one herself, that she wanted to ask of Ms Taylor.
There are topics I would still like to ask of Ms Taylor.
THE CHAIRMAN: No doubt there will be discussions about the arrangements that will enable you to do that.
In the meantime, Commissioner Galbally, do you have a question you wish to ask Ms Taylor?
COMMISSIONER GALBALLY: I would rather hold my question until the topic comes up at a further stage.
CHAIR: Yes, certainly. Commissioner McEwin, is there anything you wish to ask at this stage?
COMMISSIONER McEWIN: Not at this point, thank you.
CHAIR: I think there ought to obviously be discussions between the counsel or the solicitors as to appropriate arrangements in order for Ms Taylor to complete her evidence. Subject to that, I take it we are finished for today?
MR FOGARTY: Yes.
CHAIR: We will resume then tomorrow at 10am.
MR FOGARTY: Yes.
CHAIR: All right. Ms Taylor, it may be necessary for you to come back and there will be arrangements discussed between the legal representatives to facilitate that. Thank you very much.
THE WITNESS STOOD DOWN
HEARING ADJOURNED AT 4.10PM UNTIL THURSDAY, 9 DECEMBER 2021 AT 10AM