Public hearing 20 - Preventing and responding to violence, abuse, neglect and exploitation in disability services (2 case studies), Virtual - Day 3
CHAIR: Good morning, everyone. Welcome to the third day of Public Hearing 20 on preventing and responding to violence, abuse, neglect and exploitation in disability services, with reference to two case studies.
We begin, as always, with an acknowledgement of country. We acknowledge the Gadigal people of the Eora Nation, the traditional custodians of the land upon 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 this hearing. We pay our respects to their Elders, past, present and emerging. We also pay our respects to all First Nations people attending this the hearing and those who are following the hearing on the livestream.
Yes, Mr Fogarty.
MR FOGARTY: Thank you, Chair, Commissioners. Ms Samantha Taylor returns today, Acting Commissioner of the NDIS Quality and Safeguards Commission and Registrar.
EXAMINATION BY MR FOGARTY
MR FOGARTY: Ms Taylor, I understand you have a copy of your statement with you?
MS TAYLOR: I do, thank you.
MR FOGARTY: For reference, that is hearing bundle F, tab 5. Can I start by asking you what, if any, role the Quality and Safeguards Commission has to play in addressing, reducing and ideally eliminating resident on resident violence in group home settings?
MS TAYLOR: So, our role is to uphold the rights of all people with disability in the course of their participation in supports and services within the NDIS. Resident on resident violence and our role in that is through our regulation of providers who deliver those supports and services. The evidence I set out yesterday and that I understand Mr Head has given, that sets out the roles and responsibilities of the Commission, describes the mechanisms through which we would become aware of those kinds of situations. And particularly I would add to that what we do in then working with providers to understand the extent to which they are supporting participants where violence might exist between them or between them and others, to create a safe environment.
MR FOGARTY: The key role of compliance and enforcement, in the main, the priority is to work with and educate NDIS registered providers; is that right?
MS TAYLOR: That's right. The compliance is on providers and, of course, workers
and people they otherwise employ or engage to adhere to both the
Code of Conduct and, if registered, conditions of registration that apply, of course, to the provider. The Code applies to all workers and, of course, those obligations under the Code apply to any provider or any worker delivering NDIS supports or services, even those that might not be registered.
MR FOGARTY: Registered or unregistered?
MS TAYLOR: Yes.
Mr Fogarty: There is a code for workers and a code for providers; is that right?
MS TAYLOR: No, the Code applies across all regulated persons. There is guidance which the Commission produces that assists both workers and providers in understanding how the Code would apply in the context of their roles. So, for example, in the context of a provider's role to make sure that practices of their workers are meeting the Code, and then of course in the context of a worker, for example, their personal obligations around adhering to the Code in the course of their duties.
MR FOGARTY: What powers or functions and I know Mr Head has provided evidence in respect of that, but given you are now the Acting Commissioner, what powers or functions can so what exists within your powers, as Acting Commissioner in the Commission, that can be deployed to reduce resident on resident violence? You gave some evidence yesterday about the supported accommodation inquiry. I assume that inquiry power is one of those powers?
MS TAYLOR: It's a power to inquire, yes, that's true, and it's an important inquiry. I think Mr Head gave evidence about how the Commission and I share, as Acting Commissioner, his views about this matter how those powers in the complaints and reportable incidents rules would be applied in the context of an inquiry, in looking and exploring trends and systemic issues that might apply in the context of an individual provider or, you know, a group of providers around for example, in the context of the inquiry I have initiated, a particular setting being supported accommodation.
That will allow us to get a sense of the various circumstances that we have accumulated through evidence that has come to us through reportable incidents or complaints about a range of things, including incidents that might have occurred because a participant is subject to violence and that relates, perhaps, to the behaviour of a fellow participant.
MR FOGARTY: I see.
MS TAYLOR: We will look at the extent and circumstances of those kinds of issues. I'd say the most significant power in this space is in the behaviour support
space. Generally, the term that's used in this sector most commonly is "behaviours of concern" and violence on violence violence between residents can occur where residents, either one or both, have behaviours of concern. Of course, our role in behaviour support and improving the capability of the sector to respond to behaviours of concern, to minimise the risk of violence, is well within that function.
Of course, the behaviour support compliance obligations on providers relate to the situations where there are the use of restrictive practices on people to mitigate either harm to themselves or harm to others, coming from arising from violence or other situations. That's the primary kind of regulation space. But it is good practice, and we are doing some work on supporting implementing providers and workers around broader behaviour support activities which might not be subject to the obligations to have a behaviour support plan, because they don't include a restrictive practice, but which would be designed to reduce the impact of those behaviours on a person.
MR FOGARTY: Where there is violence or abuse from one resident to another, even though it may be a manifestation of a behaviour of concern, do you agree it is still an incident that should be recorded?
MS TAYLOR: To the extent that it's an incident that occurs in the course of an NDIS support or service and involves
MR FOGARTY: In a group home setting, let's say
MS TAYLOR: Yes, yes.
MR FOGARTY: where support is being provided?
MS TAYLOR: Yes
MR FOGARTY: Do you agree that even though it may be manifestation of a behaviour of concern, it could still, depending on context, amount to a reportable incident?
MS TAYLOR: Yes, if it affects another resident and that incident fits the definitions that are set out around
MR FOGARTY: That we discussed yesterday?
MS TAYLOR: Yes, because and it's important that it is, because it helps us understand the extent to which a provider is managing and supporting participants who might be exposed to violence of whatever kind.
MR FOGARTY: Might it show deficiencies in behaviour support or need for support or education around BSPs, if you see that data?
MS TAYLOR: It could. Well, yes, general BSPs to the extent that they don't
provide for a restrictive practice. But if they do, then in that context, also, how effectively a BSP has been designed. So there's not only an issue in this space for providers who are implementing, in our context of regulation, behaviour supports where there are restrictive practices involved, but providers more broadly who may be supporting people who don't require restrictive practices but do require some assistance with behaviour management.
MR FOGARTY: Let's say you have provided education and support with a particular SIL provider, you have been monitoring their incidents and you see that more and more incidents are occurring and it may be that a reportable incident has occurred, or more reportable incidents have been notified. Is there a point in the support or educational persuasion, as you might call it, in terms of assisting that service provider, where you might draw a line and you might need to step towards sanctions? There are sanction powers, correct?
MS TAYLOR: Yes, there are, yes, and we do regularly use our the intelligence that we build up through reportable incidents or complaints that might be separate to an incident or might be related to an incident that has already been reported, to get a picture of what's happening in a particular provider or a particular location, to the extent that we can draw I have given some evidence about some limitations on being able to really hone in on a location, but we certainly can do that.
But there has been a number of instances where we have observed, through individual matters, patterns that indicate a provider may not be supporting their staff sufficiently to understand and engage with the issues and the supports a person needs around those types of behaviours. And we have issued compliance notices, for example, requiring providers to do certain things like undertake reviews, to report to us on the outcome of those reviews, to engage independent experts to assist and train their staff in building their capability to work with those participants to reduce any risk to others.
MR FOGARTY: We saw one of those yesterday, the September 2021 in respect of LWB? That's an example of a compliance notice?
MS TAYLOR: That's an example which was focused mostly on their reporting, but also dealt with the broader quality and compliance of their incident management. There are others that are on our register that relate to these kinds of matters, quite specific matters, where we've been quite specific about things like reviewing particular medications or bringing in experts to look at particular behaviours or particular events.
MR FOGARTY: That register is online, correct?
MS TAYLOR: That's right, you are required to publish a register and include compliance activities in the second part of that published register.
MR FOGARTY: Other sanctions include enforceable undertakings, infringement
notices, injunctions, suspensions, revocations of registration, banning orders and even civil penalties, if it gets to that. Are you aware of whether any of those sanctions or powers have been used by the Commission to date?
MS TAYLOR: Of course, yes, I am well aware. We have not yet, to my recollection, used the powers around enforceable undertakings or injunctions, but we have used now every other power.
MR FOGARTY: Yes. As I looked in your register, there are banning notices, quite a number of them?
MS TAYLOR: There are quite a number of banning orders. Sometimes they are
MR FOGARTY: In respect of providers and workers?
MS TAYLOR: A significant number relate to workers, yes, so individual matters. Just to explain, we can use those powers jointly, so if there is an individual matter that raises particular concerns that relate to a particular participant, it could be that we might we may, and will have, put in place a banning order around a worker who might have been the subject of an allegation and shown to have contravened their responsibilities under the Code. But we could also put in place a compliance notice for the provider, generally, to remedy any issues that we uncovered in the course of looking at a particular issue about a systemic problem with how a provider is dealing with a set of circumstances that are driving harms, or so forth, to participants.
MR FOGARTY: I would like to ask you a couple of questions around obligations under the Incident Management Rules, as I will call them, the Complaint Management Rules, with respect to LWB, in terms of, and you talked about this yesterday, recording incidents on that incident management system and complaint management system, and also, obviously, if those incidents are reportable incidents, notifying the Commission.
The obligations are, essentially, that each registered provider must have and maintain and, I guess, keep up-to-date an incident management system and a complaint management system. Is that something that the Commission sees, as such? Is it on a portal? Or is it only reportable incidents that a provider is obliged to notify or show to the Commission?
MS TAYLOR: Yes, that's right. So the obligation is for if you wouldn't mind, I just want to answer that question with a slight bit of context here?
MR FOGARTY: Yes.
MS TAYLOR: In thinking about our powers and how we deploy them and how, indeed, they are positioned within the NDIS Act, the powers of the Commission and the principles around quality and safety sit alongside the other principles and objects
of the Act. Our role and the way in which the powers under the Act and then the rules are constructed is very focused on building and educating the capability of people with disability to have a strong voice and to have choice and control, not only over what they receive and how they receive it, but to respond to issues they are not satisfied about, in terms of the issues that are covered in the Code and, where relevant, the practice standards about their experience.
So the complaint system and the way of putting that obligation through providers around broader incident management and about broader complaints management is to place the onus on the people who are directly right there supporting that person with disability, any person with disability, and making sure that provider has the tools that enable that person to be able to make a complaint directly to them in the moment or whenever it might suit them, and to be confident and satisfied they will be heard. So our job is to educate and the core functions of the Commission go to that issue.
The rules, then, requiring providers to have complaints and incident management systems are about that right of a person with disability to be able to remedy things and to be empowered to do so, without any fear directly with the providers they have chosen to deliver their supports.
I know, in saying all that, that is the aspiration and there is a significant way to go in attaining that, but it is really important that that obligation is seen and understood to be with the provider and the people are satisfied that their providers have their best interests at heart and have ways of addressing their concerns, whenever they have them.
MR FOGARTY: Do you accept in that model that some of the gaps, as I will put them, might be that there are vulnerable persons who don't have a voice, don't have sufficient advocacy? Do you accept that, particularly in group home settings?
MS TAYLOR: Yes, I do and we have done a considerable amount of work in the Commission looking at this very matter. In fact, a very significant amount of our time and our thinking has gone into issues that arose from the death of Ms Smith in South Australia and developing our own approach to responding to risks for those participants who are at more risk of harm than others from others. Because they may have circumstances or because of the nature of their particular disability, their reliance on supports might not make what I have just described the most conducive system for them, and how we then work with the NDIA around making sure that together, as partners under the Act with those joint obligations under the objects and principles for quality and safety for participants, we are identifying those people who might be more vulnerable and responding, through outreach and other things, to their particular circumstances.
That is one of the very significant reasons I have commenced that supported accommodation inquiry, because all our data and information coming from other parties, including bodies representing the interests of people with disability, tells us
that is an area where more attention is needed. I think Mr Head and, indeed, in my own evidence my sense is that inquiry will result in adjustments to how we approach the regulation of those settings.
MR FOGARTY: Do you accept another gap in that model, a second gap, is what the community, what the person, what the participant, what the support people, what the family, what the advocates know about the Commission and the NDIA as a department? Do you accept that without their knowledge of what they can and can't do or what rights they have, again, the reliance on them coming to the Commission or the NDIA is fraught?
MS TAYLOR: I think there's I absolutely accept that. If you don't know where to come, you don't come. I also think, or I know, that people across Australia and, indeed, within their States or, indeed, their local communities over many, many years of participating in the disability sector, have had not the best experience with raising issues, either with their providers or with other bodies. Sometimes there have been no bodies to raise issues with.
Often those bodies have been able to observe complaints, to compile those complaints and make observations about what should be done in the system, but do not have any powers to do anything in the system. So there is an extra complexity to our establishment. As I said yesterday, we just ticked over the first year of being national, but three years into South Australia and New South Wales, to build that understanding of participants and their support networks about what it is we can do, which is very different to what they would have experienced in the past.
MR FOGARTY: So it remains a work in progress. You have your website. What other resources does the Commission provide to that community? Even support coordinators in the community, what they know or don't know?
MS TAYLOR: We provide extensive in fact, we get criticised constantly for providing too much information to people, so it's sometimes difficult to get a balance. We have been running a number of social media is a very well utilised platform in this sector, which is terrific. People use it for all sorts of things and use it very effectively. So we use social media to promote ourselves.
We are doing further work to grow participant awareness about what we can do. We have done and, indeed, are in the midst of one thing which I will give as an example of the kind of participant outreach we have been doing. In our first year we initiated a grant with the Council for Intellectual Disability in New South Wales and South Australia, which is incredibly successful, around direct engagement with people with disability by those bodies who are trusted bodies. I will get to that in a second. But to build people's understanding in the context of the Code and the Practice Standards, what their rights are, and that the Commission is there to respond to those. That's got a similar we've now nationalised that, so Inclusion Australia is building that across the country to build that rights understanding.
I said I'd come to the issue of trusted voices. We have very strong relationships with advocacy organisations across the country and we've done three extensive forums with advocacy organisations to equip them, and we use their networks constantly to promote our information, because people will want to go to advocacy organisations where they feel comfortable with the people who are employed in advocacy organisations. So it's no mistake that one of the Commission's functions is to assist people to engage with advocacy organisations. That's really critical.
Of course, we've done a number of accessible pieces of work. The one that, just by sheer demand, has been quite successful is the worker orientation module on the Code of Conduct. Everything we do has been developed with people with disability and stars people with disability who are articulating what it means for them. We've had almost half a million people complete that worker orientation module, and it's not only workers.
So we encourage people with disability to engage with all those materials, and often we put all our materials into Easyread or into other formats, where they might be targeted at workers, because it's incredibly important that people understand and are empowered to engage with the things we are telling the people who work with them every day to do, so they can demand it too. It's incredibly important.
MR FOGARTY: So it is building the knowledge of the network around the person as much as the person?
MS TAYLOR: Yes, it is, and giving people with disability that understanding. I've worked in the sector, as I said yesterday, a long time and success is when you do a consultation and people are coming to it, people with disability are coming to it with the Code in their hand or the Standards in their hand and saying, "This is mine", because it is. These are tools that are about their experience.
MR FOGARTY: Indeed.
COMMISSIONER McEWIN: Ms Taylor, could I just ask you on that note about your observation, what is your observation, generally, about service providers, perhaps using South Australia and New South Wales as examples? Are they becoming more proactive and receptive to what you are trying to achieve with supporting disabled people to become empowered to make their complaints or give feedback?
MS TAYLOR: I would like to say yes definitively, but I don't think I can, because the
COMMISSIONER McEWIN: It's a general observation.
MS TAYLOR: Yes, I think it's too general. I think there are certainly parts of the NDIS system where that is happening. I think a good example, if we can take something contemporary, is the vaccination program for people with disability in
COVID, where we have seen some of the larger providers taking very proactive steps to build hubs, to really engage the people they are supporting to be able to have accessible access that suits their needs to the vaccination. I don't think I would have seen that maybe five years ago.
So to answer your question, I think there has been a shift. I don't think it's a universal shift. The fact that we have as many matters as we have tells me that it's not a universal shift and that even within organisations where those broad strategies might be a feature, really, the cultural change that's needed in this sector to really shift the attitudes of everyone in it to rights is an ongoing piece of work.
COMMISSIONER McEWIN: Thank you.
MR FOGARTY: Ms Taylor, I would like to ask you some questions now that arise from Claire Robbs' statement. You understand she is the CEO of LWB?
MS TAYLOR: Yes.
MR FOGARTY: I will have a copy of her statement provided to you. For reference, that's hearing bundle D, tab 1. The first part I would like to take you to is on page 58, paragraph 159. I will read it, for the benefit of those listening:
In November 2019, Janine .....
That's the sister of Amanda, one of the Melbourne house residents:
..... expressed an intention to print out all emails that raised concerns which had been "disregarded". She raised particular concern about the standard of communication, Amanda's dental hygiene, staff training and qualifications, quality of food and frequent changes in management.
Ms Taylor, my question for you is: do you agree that those concerns about dental hygiene, staff training and qualifications, quality of food and frequent changes in management, combined, could constitute neglect as that term is understood under the Act and the Rules?
MS TAYLOR: In total?
MR FOGARTY: Yes, combined.
MS TAYLOR: They could. I don't know that I could make a definitive assessment, reading a sentence like that.
MR FOGARTY: No, no. What I'm trying to understand, or assist the Royal Commission to understand, is what work does that subsection (c), abuse and neglect, have to do in terms of reportable incidents?
I will take a step back. Isn't your toil in being definitive about this the same one that a service provider would toil with, in whether it needs to report this as neglect as a reportable incident? Isn't it up to their discretion as to what they report?
MS TAYLOR: Well, no, because it's an incident. So in the plain English terms of the word, the reportable incidents relate to incidents. If these things happened together as part of an incident, then they would certainly need to be reported, if they were occurring within the course of a support or service. But I just want to make the point that the architecture we have within the NDIS Act does not funnel every particular concern through the incident channel. The framework within which we operate would allow us to identify a number of these things through complaints, quite appropriately, or through the monitoring of a provider and the assessment of their activities through standards, for example.
There are other mechanisms that apply, for example, frequent changes in management. Depending on what Amanda's experience is with that, providers are required as a condition of registration to notify the Commission of other events and circumstances which might impact on their ability to deliver supports and services in line with their obligations as registered providers. That's under section 13 and 13(a) of the NDIS (Provider Registration and Practice Standards) Rules. So frequent changes in management that have the consequence of limiting their compliance with standards would be a notifiable event, potentially, under that particular condition, for example.
MR FOGARTY: But if this came as a complaint from, in this case, Janine, would you expect a complaints officer or those who that person reports to, to consider and it's a list of things here, I accept that, and I accept there's not a timeframe here, it doesn't say his dental hygiene was an issue every day of the week for the last few weeks. But would you expect a compliance officer or those who they report to, to at least consider whether what they are looking at might amount to neglect?
MS TAYLOR: What we would look at would be whether or not it amounted to a contravention, be it under the Code or other conditions of registration. That might be neglect or it might be, for example, under the Code, a failure to provide supports and services with care and skill, for example. So there are a range of potential areas that this could point to, if they were seen together, a series of complaints that we might pick up that might have come from Janine about Amanda's experience, to raise concerns about whether or not a provider was meeting their obligations in one location or, indeed, a series of workers in a location around those matters.
MR FOGARTY: Again trying to drill down on what the work of "neglect" has to do in that definition, clearly and tragically, Ms Smith's situation not only triggered (a), the death of a person with disability, but you would agree neglect was front and square? An example of neglect was her death in that case, as you understand it? An extreme example of neglect?
MS TAYLOR: Well, of course.
MR FOGARTY: What I am trying to understand is what level of incidents or number of incidents, or is it totally at the discretion of the provider, has to occur before they say, "Hang on a minute, this could be neglect, this could be a reportable incident. We know the definitions, now we need to report it". That's what I'm getting at.
MS TAYLOR: I think we have provided or, indeed, Mr Head provided all our documentation, many, many documents that provide quite detailed information to providers about how to determine whether an incident is a reportable incident. So there is extensive material, in fact, available to providers and it's available to our website. I couldn't take you to any particular part of that documentation, except to say it is quite thorough and the Royal Commission will have that available to them.
I don't think I can I don't feel comfortable in commenting based on a sentence in a submission I haven't seen before, about
MR FOGARTY: Whether it amounts to something?
MS TAYLOR: Whether it amounts to something of that nature or not.
MR FOGARTY: Are you satisfied, to the extent you would understand this, that providers do understand what neglect means?
MS TAYLOR: Yes, I do, yes.
MR FOGARTY: Can I ask you to look at pages 104 and 105 of Ms Robbs' statement, it should be paragraph 297. It reads:
Common behaviours exhibited by a client which are identified in that person's Behaviour Support Plan, were not ordinarily required be reported in accordance with the procedures I refer to in ..... question 29 above. If the behaviour did not result in a person sustaining an injury (or being at risk of injury) and there was no significant risk of significant harm involved.
Can I ask you then to look at paragraph 298. I think that's at page 105, where it reads:
Similar to the operation of the previous policy before i Sight was introduced .....
As I understand it, that is the reportable incident management system of LWB:
..... staff are not required to report a known client behaviour recorded on that person's behavioural support plan on i Sight where:
(a) the behaviour did not result in a person sustaining an injury or being at
risk of injury;
(b) there was no risk of significant harm involved;
(c) the behaviour requires no further remediation other than those outlined in the person's Behaviour Support Plan; and
(d) the behaviour has been actively and effectively managed.
In terms of recording and reporting or notifying of reportable incidents, again referring back to the definition and what's required under the rules, do you consider again, I have taken this in isolation, but do you consider what you have read there in terms of a reporting policy to be best practice?
MS TAYLOR: I can't answer that question. I've only just seen this and I couldn't tell you whether it was best practice or not, because in determining whether it was best practice, I would need to think about how it compared with practice of other providers and I'm not in a position to make that comment.
MR FOGARTY: On the face of it, could you tell the Royal Commission, do you feel you are able to tell the Royal Commission, whether it appears to be compliant with the Incident Management Rules?
MS TAYLOR: It does appear to be. It does appear, from what you've just read which is the first I've heard of it and seen of it, as I've said that it is endeavouring to strike a balance between what is needing to be overseen by the provider with other records that the provider has that might assist them in managing and responding to issues related to a person's support needs.
MR FOGARTY: Isn't there a risk in this situation, just taking and I accept you've only just read it and it's only part of a statement from Ms Robbs, but isn't there a risk that a resident being exposed to, say, weeks or months or even years of sustained behaviours of concern from another resident, even if those behaviours of concern or the manifestations of those behaviours are sought to be managed and referred to in a Positive Behaviour Support Plan, none of which might cause physical harm or injury, or individually amount to risk of significant harm, which is the wording in that paragraph, couldn't that still constitute, again looking at it globally over weeks, months or even years, abuse or neglect as that term is understood under the Act?
MS TAYLOR: I have to be honest and say I need to think about that. I haven't thought about that in those terms. So, if that's okay?
MR FOGARTY: Yes.
MS TAYLOR: Having just read this, and you've put it to me in a way that I haven't actually thought about, I just want a little bit of time to think about how that would work across the functions. Because it's not only the incident reporting, as I said, that we receive this information; where there are behaviour support plans that are lodged with the Commission, we monitor their implementation. We are able to see, across all ou
r information, what's happening for an individual, if that's needed.
We are using, as I said, other powers about broadly understanding what's going on in the sector. The inquiry, for example, would capture, a lot of these. The own motion inquiry, as I said, would capture a lot of these trends and issues to give us a sense, in undertaking that inquiry, how over an extended period of time a provider might have managed particular incidents like you're referring to over an extended period of time. Because that inquiry will look at not only incidents and complaints that have been reported to us, but those which have not. So, really, that power and that inquiry is significant, because it would enable us to surface the kinds of things I think you're referring to and determine whether or not there needed to be some adjustment, either within our own practice, but in provider practice at an individual provider level or at a system level, to address those kinds of trends.
MR FOGARTY: Can I ask you to turn to page 106, paragraph 300 of that statement. I will just read this part:
Staff are, however, required to escalate, record and report recurring or "cumulative harm" or patterns of abuse that, when viewed together, suggest a pattern of significant harm.
Firstly, can you comment on cumulative harm or patterns of abuse? In some circumstances, and obviously it relies on the individual circumstances, but those could constitute abuse or neglect?
MS TAYLOR: They could over time, yes; absolutely they could. I think that comment, read in isolation, is what I'm referring to. I will use another example, if that's okay, to illustrate what, as a regulator, we do around this issue of cumulative harm and assessment of cumulative harm.
We did a scoping review in 2019 around preventible deaths and Professor Julian Trollor of the University of New South Wales did that scoping review for us, because we didn't have a baseline when we started. What I mean by that is that, well, none of the information and records that had been accumulated by the regulators or other bodies that came before us were transmitted to us. However, those other bodies did undertake various reviews and published various findings about things that impacted on the safety and wellbeing, and factors driving harm to people with disability.
So in undertaking that scoping review, it was to look at the previous evidence and then to use that so our evidence was stronger and able to be layered on top of it and for us to be able to act and really start to identify risk triggers that would help us, as a regulator, identify where a sequence of events might constitute a cumulative harm, to coin Ms Robbs' phrase.
So it is an important part of the model that cumulative harm is identified by us as the regulator, but also a key reason why providers are required to have incident management systems that they can use to identify, learn from and remediate issues
that are driving harm for people with disability who they support, either in the moment or for a particular individual, but across their practice more broadly.
MR FOGARTY: So it is crucial then, isn't it, that, let's say, disability support workers in a group home are recording those incidents, whether
MS TAYLOR: No matter how minor there are.
MR FOGARTY: There's a range of critical, significant and minor. Over time, if those are recorded as incidents, one, that is LWB, may look at that and see a trend which may then suggest to LWB, for example, that there are some real issues here, maybe neglect, maybe some form of abuse; not intentional but, in a sense, inadvertent?
MS TAYLOR: That is correct, and if we were to go back to that paragraph you took me to earlier about Janine's observations about the experience of Amanda, a number of those matters, dental hygiene, poor quality food, are things that were identified in the scoping review we did in 2019 about precursors to serious harm for people.
That scoping review has, for example, resulted in us already amending the Practice Standards. In fact, next week a new practice standard around mealtime supports, which came into effect earlier this year, will become an obligation on providers around mealtime supports, as well as separate standard on dysphasia, because those things drive real risk, as does, as I mentioned yesterday, communication.
We have recently released a training tool for providers to use with their workers around which is similar to the worker orientation module I described earlier, which is designed to help workers engage with communication factors that drive issues for people. We have a range of other things to do with the health interface between the NDIS and health systems that is related to the recent release of the roadmap for health supports. I can't recall the exact title of the document.
But we are very engaged in that work because the absence of supports around those things for people, the absence of supports to assist people in engaging, for example, in dental hygiene, in general healthcare, can have a cumulative effect that can drive other things, including behaviours of concern, which is a well known issue in poor dental hygiene and also
CHAIR: Do you have another question?
MR FOGARTY: I do. I'm sorry to pause you there, Ms Taylor, but I note the time. I would like to ask you one question arising from Mr Stephen Doley's statement. That's at hearing bundle C, tab 1. It's at paragraph 317 on page 104. That paragraph reads:
Incidents that must be reported to the NDIS Quality and Safeguards Commission, known as reportable incidents, are serious incidents or
allegations which result in harm to an NDIS participant and occur in connection with NDIS supports and service.
Do you agree with that?
MS TAYLOR: Yes.
MR FOGARTY: So is it the case that you agree that an incident must be serious? Is that a gloss that's required before it's a reportable incident?
MS TAYLOR: Are you able to draw the rules up for me, so I can just see the framing
CHAIR: I'm not sure, Mr Fogarty, how helpful this is. The provisions of the Rules and of the Act, chapter 4, part 3A, division 8, and the Rules speak for themselves.
MR FOGARTY: Indeed.
CHAIR: I am not sure that Ms Taylor's interpretation and I'm not criticising it, but I'm not sure it advances matters very far.
MR FOGARTY: May it please the Commission. The last question I have for you, Ms Taylor, before I hand over to the Commissioners, is in respect of the national NDIS workforce capability framework. In short circumference, if you can, what is that?
MS TAYLOR: It's a tool for providers and for workers around the kinds of behaviours, attitudes, culture that would enable workers to be delivering supports and services that met things like their obligations under the code and intent of the Act and the Standards. It's also a tool for providers to assist them in focusing on training recruitment, so how they design jobs and the kinds of attitudinal issues they'd like to see within the workforce they employ working with NDIS participants. It's really focused on what you would expect workers to be doing and the attitudes they would bring to a job to assist them in delivering supports in the way that we aspire to under the NDIS.
MR FOGARTY: When you say it's a tool, what output is expected from that framework? What things, what resources will the Commission provide to providers specifically?
MS TAYLOR: Oh, any number of things. So the framework itself has been developed over the past 18 months to two years, with an extensive consultation with people with disability, representative bodies and providers. The tool itself is there as a resource and is available now in an interactive web form. There is an 18 month program of developing a range of tools, both for participants, workers and providers, about how to utilise and apply that framework. It's a resource that assists compliance, if you like, in the most basic terms.
MR FOGARTY: So that resource is now
MS TAYLOR: It's available, yes.
MR FOGARTY: Can one see it on a website?
MS TAYLOR: Yes, it has a dedicated website that is able to be navigated from our own.
MR FOGARTY: Thank you. Commissioners, those are my questions. I will hand over to the Commission.
CHAIR: Thank you.
QUESTIONS BY THE COMMISSION
CHAIR: Ms Taylor, under the Act and the Rules, the Commissioner has very formidable powers, do you not, to investigate, to cause investigations to be made, to require service providers to do all sorts of things.
Can you please articulate, briefly, the philosophy that you consider should be adopted by the Commissioner I appreciate you are in an acting position to utilise those powers? How proactive should the Commissioner be in investigating, monitoring, requiring service providers to act in particular ways? What's the philosophy?
MS TAYLOR: The philosophy is set out we have a compliance and enforcement policy, Chair, that sets out the philosophy for the Commission in deploying those various tools and others that are precursors to using those tools.
CHAIR: What is that philosophy?
MS TAYLOR: Proportionate, appropriate and responsive. What that really means is deploying the right tool for the right circumstance, being fair in when to deploy those tools and being responsive when we need to be very swift, for example, in a particular situation or in response to a particular situation.
CHAIR: It is about being proactive?
MS TAYLOR: Proactive, yes.
CHAIR: How are you proactive?
MS TAYLOR: How are we proactive? We have, since our second year of
operation, developed national compliance programs which are initiated because of things we have observed, not only on an individual matter but on a system level, or things we are aware of. I mentioned the scoping review.
I also mentioned Ms Smith. That event resulted in extensive proactive compliance action around sole carers and arrangements for providers to make sure they were meeting their obligations under the code and practice standards around people who were receiving supports in their own homes.
We have done extensive proactive compliance strategies around unauthorised use of restrictive practices, and that is ongoing and adjusting constantly.
So we have captured, through our compliance activities which have been proactive as opposed to reactive, thousands of providers and initiated hundreds of actions, either through show causes or our compliance takes us, in a traditional pyramid of compliance and enforcement practice, through the educative, through to banning in the most serious matters, of which we have done quite a number of banning orders.
CHAIR: Thank you. Commissioner Galbally, do you have any questions for Ms Taylor?
COMMISSIONER GALBALLY: My question is about guidelines and forgive me if I have misunderstood this. Would you be considering issuing a guideline about choosing who you live with, to ensure compatibility or to promote the likelihood of compatibility?
MS TAYLOR: I need to think about that question in the context of the functions. I'm not sure that we would provide particular guidance. We don't have a role, for example, in supporting people to make those decisions. Our regulatory functions relate to providers that are chosen by people and the delivery of a support and service, once chosen and delivered.
Issues around how a person with disability might think about what quality looks like for them and what good experience looks like for them might be a piece of work that we might consider doing in the future with the National Disability Insurance Agency, for example, as a tool for participants, our particular focus being on the kinds of obligations we would have on providers. For example, obligations that rest with Specialist Disability Accommodation providers around their obligations under tenancy management, if I recall that correctly, around those practice standards for working with all participants to make sure their living situation meets their needs, their collective needs. I hope that answers your question.
COMMISSIONER GALBALLY: Yes, it does. In terms of behavioural support, would that be considered to be an important question, compatibility and choice about who you live with?
MS TAYLOR: It is an important consideration from the perspective of, I think,
information available to people about the people they might be living with or contemplating living with. I don't know that in and of itself it's a particular issue, but, of course, what you're asking is a really complex and deep question about what each person involved in a decision about who they might reside with and where they might reside would need to take into account. I think that any guidance we might provide, together with the NDIA, on this in the future would need to be very carefully crafted around the rights of all people who might be living in a particular place and all their rights equally.
COMMISSIONER GALBALLY: Thank you.
CHAIR: Commissioner McEwin?
COMMISSIONER McEWIN: No, thank you.
CHAIR: The question asked by Commissioner Galbally would fall directly within the Commissioner's core functions, wouldn't it, under section 181E of the Act, to develop a nationally consistent approach to managing quality and safeguards for people with disability?
MS TAYLOR: It could do. I didn't discount her suggestion. I think, Chair, I would need to think about how that was framed within the rest of the functions of the Commissioner and how we made sure, in providing that guidance, we took account of how other decisions within the NDIS and around any particular person's choices and support for their choices were enabled.
CHAIR: Thank you. I will ask whether any legal representative wishes to seek leave to ask Ms Taylor any questions. I will take silence as being no. There being silence, that will be taken as no.
Thank you very much, Ms Taylor, for coming to the Commission and for giving evidence and for your detailed statement. We appreciate your attendance. We apologise for the inconvenience of detaining you for an extra day. Now you are free to leave.
MS TAYLOR: Not at all. Thank you so much.
THE WITNESS WITHDREW
CHAIR: Mr Fogarty, I think you propose to take a short break?
MR FOGARTY: A short break, yes, thanks.
CHAIR: It is now 10.30. We will resume at 10.40.
ADJOURNED [10.30 AM]
RESUMED [10.44 AM]
CHAIR: Yes, Mr Fogarty.
MR FOGARTY: The next witness we will hear from is Catherine, who has provided a witness statement to the Royal Commission about her daughter, Rebecca, a former resident of the Melbourne house. That statement is at hearing bundle B, tab 2.
Commissioners, Catherine is unable to provide live oral evidence during this hearing, due to her responsibilities caring for a seriously unwell family member. However, we have an audio prerecording of her reading her witness statement which she asked to be played during this public hearing. Those following the public webcast, as I said, will hear the audio of the recording but will not be able to see Catherine's face.
Before we commence Catherine's recording, I would like to provide a warning. Today's proceedings will include allegations of violence, abuse and neglect of people with disability. The Royal Commission encourages people who may be distressed to seek support. A slide will now appear on the webcast with relevant contact numbers, if assistance is required. If any part of today's evidence raises any concerns for any person, the relevant referral numbers are the National Counselling and Referral Service, 1800 421 468; Lifeline, 13 11 14; 1800 Respect, 1800 737 732; Beyond Blue, 1300 224 636.
In the recording about to be played, Catherine will talk about her daughter, Rebecca, who is 44 years old and grew up in her family home in Melbourne. She will tell you Rebecca loves movies, classical music, and how close she is to her family, particularly her niece with whom she has a very strong bond.
Rebecca is autistic and also lives with intellectual disability. It helps Rebecca when she has a daily routine and when those supporting her are familiar to her and are gentle, calm and patient with her. If Rebecca feels frightened, anxious or overwhelmed, she can sometimes exhibit behaviours of concern.
Catherine will tell the Royal Commission that in 2011, aged 34, Rebecca moved into the Melbourne house. She will talk about Rebecca's exposure to and experiences of resident on resident violence and abuse in the house. Catherine will describe how Rebecca is physically very small and was, and is, vulnerable to aggression and conflict in her home.
Catherine will share with you the impact of these experiences on Rebecca, as well as her own experiences in advocating for her daughter to be safe in her own home.
Catherine will also tell the Royal Commission of the very difficult and complex process of finding somewhere else for Rebecca to live, somewhere where she is now safe and happy, including her experiences of navigating the NDIS.
Lastly, Commissioners, Catherine has provided some photos of Rebecca to you that are in your bundle. Catherine has provided them to you not only so you can see Rebecca doing the things she enjoys, like walking in the park, but also she wants you to appreciate Rebecca's small stature, particularly in the context of the resident on resident violence she was exposed to. Catherine will now read her witness statement.
CATHERINE: This statement made by me accurately sets out the evidence that 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 refer to as "Rebecca", although that is not her real name. Rebecca lived in a supported accommodation residence provided by Life Without Barriers, "LWB", in Victoria, which I will refer to as the "Melbourne house".
In particular, I wish to share the concerns I had about her safety, which led to Rebecca leaving the Melbourne house in 2019 and my observations concerning some systemic issues about Rebecca.
Rebecca, who is 44 years of age, grew up in our family home in Victoria with my husband, my other daughter and myself. Rebecca loves watching movies, enjoys listening to classical music and is very fond of baked goods. She likes outings to the park, going out for a cup of tea or coffee with me, or going to the zoo and looking at the animals, especially at the owls and rabbits. Rebecca is fairly physically fit and energetic and as well as walking in the park, she loves being around water.
Rebecca was an active and noisy baby. When she turned two, she suddenly stopped speaking and no longer responded to her name. I felt that Rebecca might need an assessment and I took her to a paediatrician, who said to me words to the effect of, "Let's wait and see what happens and we can check again when she's 5 years old".
I knew that something wasn't right and had a feeling that Rebecca needed more than this, certainly before she turned 5. I did everything I could and took Rebecca to occupational therapy, speech therapy and a psychiatrist. The psychiatrist told me that she might be autistic. Rebecca was subsequently diagnosed with autism spectrum disorder and intellectual disability.
I was able to get her into an early intervention pre school for autistic children. After that, Rebecca went to a special developmental school. At around 7 years of age, Rebecca began to remove her clothes at the school, which I learned was a sign that she was upset and anxious. At around 11 years old, Rebecca's behaviours continued to escalate. She was screaming often and would bang her head when distressed. After school, Rebecca started going to a day placement for people with disability. Rebecca never attended a mainstream school.
All her life, Rebecca has required help with personal care, as well as all her daily living activities. She is not able to live by herself. She also needs help making decisions and I am her guardian in respect of all decision making.
She is physically very small, with small hands and limbs. For more than 20 years, Rebecca has attended a day program run by Araluen five days a week, which is very important to her. Rebecca is always happy to go to a day placement, where she creates artwork and assists with gardening. She also goes to a disco and participates in a travel program. She loves the leisure support that Araluen provides, known as RecScape, especially visits to farms.
Rebecca has limited speech and will often speak in single words or short phrases, but she usually gets her point across if people take the time to listen to her carefully.
Most of the time, she has great listening and receptive skills. The use of photos can help her to understand her daily routine and what to expect in her day. Rebecca can understand simple two step instructions and requests. It helps her if those supporting her are gentle, calm and patient. She thrives when she is acknowledged and engaged. Rebecca is intelligent and generally patient with those helping her. She often has a laugh, observing and listening to others. She loves her family, especially her niece with whom she has an especially strong bond, and enjoys visits with us all.
Rebecca shows she is upset by her behaviour. Sometimes she can get frustrated or overwhelmed in loud environments. She doesn't respond well if people are in her personal space when she is anxious. If she is upset or distressed, Rebecca can start to pace and if she is very anxious, she will remove her clothes. This can happen if she is supported by unfamiliar people or there are changes in her routine.
Rebecca's behaviour can sometimes escalate further to things like grabbing other people. She is very influenced by the behaviour of those around her, particularly if there is conflict. Rebecca prefers quiet and comfortable spaces and she is at her best when her day follows a predictable and structured routine.
Rebecca's move to the Melbourne house. Rebecca lived at home with my husband and me until she was 35 years old. She then moved into full time care because we were no longer able to support her fully at home. It was an awful decision for us to have to make, but we had to relinquish her. At the time, I was working full time and becoming increasingly overwhelmed. The available respite service could only take her once a month. I recalled Rebecca's psychiatrist telling me that I would be gone
one day and Rebecca would need support from someone other than myself and my husband.
At first, Rebecca lived in temporary accommodation where other people with disability would attend on weekends for respite. After this, she stayed for six months with one other resident in another temporary accommodation. Then in 2011, she moved into the Melbourne house, which is about half an hour from where we live. I understand that at the time Rebecca moved in, the Melbourne house was newly purpose built for people with disability by the then Victorian Department of Health and Human Services, DHHS.
Life Without Barriers was engaged in some way to provide support, staff and services to the residents within the home, but I am not aware of the formal arrangements between LWB and DHHS. I believe there was also a community housing organisation called Active that was involved in some way, although that arrangement is not entirely clear to me and we had no direct contract or agreement with Active.
I do not recall having a formal contract or agreement with LWB at first, but I think we were provided with some kind of statement setting out the rental charges and other information in relation to Rebecca's accommodation at the house. We paid rent to them out of Rebecca's Disability Support Pension for her room, her meals and her utilities.
As far as I am aware, LWB were also responsible for providing staff, who supported the residents of the house and things like personal care, cooking and meal times, and so on.
Later, LWB did provide us with service agreements. The house was built to accommodate five residents with five bedrooms, a kitchen and a living room. Rebecca moved in first with a male resident, who I will refer to as "Marco", although that is not his real name. Soon after, they were joined by Stevie and Amanda, and then Robert, also not their real names. Later, after Stevie moved out, another resident, who I will refer to as Katie, moved in.
From the beginning, I visited Rebecca at least once per week at the Melbourne house. I developed positive relationships with the support workers there. I spoke to them in person at least once a week and I also rang twice a week. To this day, I still speak to some of them.
I told the support workers that they could always voice any concerns with me confidentially. I did this to ensure I knew what was going on where Rebecca lived, while also being mindful that the support workers may not want to do anything to jeopardise their jobs.
Prior to the introduction of the NDIS in Victoria, Rebecca received a variety of services from a range of other service providers and organisations, funded through
her Individual Support Package, ISP.
Rebecca's experience at the Melbourne house. When Rebecca moved into the Melbourne house, I do not recall there being any consultation with us about her compatibility with the other prospective residents or their willingness to live together. We were simply told the accommodation was available and that was where Rebecca could be placed.
2011 to 2014. As I was a frequent visitor in the Melbourne house and speaking with the support workers there, I began to learn there were various problems at the house, particularly with respect to Rebecca and Stevie, who appeared to have very different support needs to the other residents. The support workers told me about some incidents, but I also became aware that there may be some problems through Rebecca's deteriorating behaviour, which was her way of communicating with myself and the support workers.
Stevie would often be physically and verbally abusive to the staff and the other residents, including Rebecca. I understand that her behaviour resulted from various problems and health issues that Stevie had, and I believe the Melbourne house simply was not the right home for her.
The situation created a lot of tension, anxiety and unease in the house, which negatively impacted Rebecca's physical health and her behaviour. The situation meant that Rebecca was scared when she was in the house. While the support staff did try to take action to prevent Stevie from attacking her, it did not work.
Rebecca began to experience severe bowel issues and dystonia soon after beginning to live at the Melbourne house. Our family's doctor informed me that Rebecca's bowel problems were likely directly related to her stress over living with Stevie. This is set out in Rebecca's ISP funding plan approved on 8 April 2014, which also describes the other effects of Stevie's behaviours on Rebecca and lists among Rebecca's goals "to feel safe in my own home".
Given the impact Stevie's behaviours were having on Rebecca and the other residents, I began to advocate for another place to be found for Stevie to live. The families of the other residents were also involved.
I would like to emphasise that we did not have any personal dislike of Stevie, nor blame her for the situation. We just felt it was not in our relative's interests, nor indeed in Stevie's interests, for her to be living in that environment. I do not think Stevie had any family to advocate for her, and I felt sorry for her and wanted to help her, but Rebecca's safety was my number one priority.
The support staff working at the Melbourne house were very aware of the problems, and my recollection is that at least some of them agreed with our view that it was not the right place for Stevie to be. I could also see that Stevie appeared to be a lot happier when she was by herself.
I had many conversations with various LWB managers and DHHS staff about my concerns with Stevie living at the Melbourne house. I raised my concerns with LWB managers, who seemed to be responsible for the house but who were not always physically present. We also raised our concerns with DHHS, as we understood from LWB that it was DHHS's responsibility to find a different placement for Stevie.
We had a meeting with a representative of DHHS in August 2013. They said there was no accommodation immediately available for Stevie, but they would discuss with LWB the provision of additional staff support for the house.
Finally, Stevie was moved out of the Melbourne house in December 2013. I do not recall exactly where she moved to, but have heard since that she was living by herself with support and is much happier.
2014 to 2019. After Stevie left the Melbourne house, a new resident arrived in early 2014, namely Katie. I do not recall being consulted or Rebecca having any say or involvement in who moved into her house.
It is my understanding that Katie was already receiving support by LWB at her previous accommodation. I therefore believe that LWB was already aware of her history of behaviours of concern, which could include verbal and physical abuse towards her peers. It is difficult for me to understand why LWB moved Katie into the house when they were aware of her capacity to be aggressive towards others, especially after what had already taken place at the Melbourne house with Stevie and the impact it had on Rebecca and the others.
Soon after Katie moved in, she began to exhibit aggressive and sometimes violent behaviour towards others, including Rebecca. I got the impression that Katie didn't pick on Robert, who was often in his own space in the Melbourne house. If Katie picked on Marco, he would often fight back. Rebecca, however, is a gentle person with a small frame, and while she would sometimes scream if physically assaulted, she would not say "Stop" or ask someone to go away if they were bothering her.
I do not believe I was always told about each and every incident, and cannot recall all the details of every incident I was informed about. But I do remember it was very distressing and I was constantly worried about Rebecca.
I do remember that sometimes in early 2015, Katie hit Rebecca on her upper back. I believe police were informed of this and an officer spoke to Katie, but there was no formal investigation.
I got the impression that the support workers were not sure how to respond to Katie's behaviour or what the best course of action was, but I do believe they tried their best. It also seemed to me that support workers may have been scared or intimidated by some of Katie's behaviour, particularly as she could lash out at support workers themselves. In addition, I felt that casual support staff were not always aware of the
situation and what to do.
Around this time, I asked staff not to allow Katie to be alone with Rebecca. I also became aware that support workers were regularly locking Rebecca in the staff room with them, in an effort to protect her from Katie.
Along with the families of some other residents, I also had some concerns about the general cleanliness and upkeep of the house from time to time. We raised these matters with LWB managers who we had contact with and it always seemed very drawn out and complicated to get things resolved quickly.
I firmly believe that many of the problems at the house and the inability of the support workers to deal with Katie's behaviours stem from the fact that there was a constant stream of different LWB managers with various titles and roles, who seemed to be involved for a while and then leave. These managers were responsible for more than one LWB house and so were not present at the Melbourne house all the time, to get to know the residents and the families, and to fully understand the complexities of the residents' needs.
There were some good managers who did their best, but it always took them a while to get up to speed and to try to put things in place to assist. Then they would be gone and we'd have to start again.
In addition, it seemed to me that having support staff who knew Katie and Rebecca and the others was crucial to making sure that conflicts didn't arise between the residents and behaviours didn't escalate into violence. While even permanent support workers who knew the residents could not always prevent things from happening or find ways to deescalate situations, it was even more difficult for temporary or agency staff who did not know all the history and strategies required.
A report from Rebecca's occupational therapist in December 2016 highlighted that she can find it difficult to cope if her environment changes, which includes different staff. If Rebecca is supported by unfamiliar staff or her routine or environment changes, then her anxiety can increase, leading to self harming behaviour, yelling, taking her clothes off, pacing or smearing her faeces.
I was, therefore, always particularly worried when I found out that only agency staff were working at the house, and I sent a lot of emails to LWB asking that every effort be made to avoid this.
It also seemed to me that while LWB may have documented incidents that resulted in injury that might require to be reported elsewhere, they did not make efforts to track the level of conflict in the house more generally or to question why it was like that and what needed to be done to prevent it.
Again, I am not criticising the support workers, who did an amazing job in the circumstances. But the managers and those higher up in the organisation just did not
seem, to me, to understand the gravity of the situation.
I was aware that from time to time Katie would make allegations that support staff or other residents had done inappropriate things to her. I was not provided with all the details, but understood this was an aspect of her behaviours that LWB had to manage and that it could be very disruptive if staff had to be stood down pending necessary investigations. I did feel, from time to time, that these types of allegations may have influenced how Katie's more aggressive behaviours were responded to.
The situation deteriorated in 2018 and into 2019. I remember a terrible incident in September 2018 where Katie apparently dragged Rebecca along the carpet and pulled out her hair. I remember Rebecca had a large clump of her hair pulled out and carpet burns on her knees.
Through a complaint I later made to Victoria's Disability Services Commissioner, the DSC, discussed further below, I learnt that the report for this incident stated staff did not witness the incident, but did hear Rebecca scream and then saw Rebecca on the floor with a bruised and skinned knee and some of her hair pulled out.
To my knowledge, LWB did not contact a doctor to examine Rebecca. Over a week later, I took Rebecca to the doctor myself, and the carpet burn on her knee had become infected. I was told by someone from LWB that doctors were not contacted because Rebecca did not have an open wound, yet Rebecca developed a scab on her knee shortly after the incident.
Later, LWB acknowledged that not seeking medical attention for Rebecca was an oversight. I felt that the decision not to call a doctor for Rebecca on this occasion was irresponsible. I also questioned LWB about why police were not called. I was told that those procedures could not be discussed with me, but that it was not LWB's responsibility to contact the police in these types of situations, although I could do so myself if I wanted to.
LWB did arrange for some additional staffing for the house following the incident, but the program manager told me it could not be sustained long term and we needed to advocate for more support for Rebecca to be included in her NDIS plan.
Not long after this, I learnt that Katie had pushed Rebecca over and she fell on her hip. This occurred despite there having been additional staff on following the previous incident. Once again, I was really upset and worried and contacted the Office of the Public Advocate to ask if action could be taken.
LWB may have been taking measures to try to protect Rebecca, but they just were not working and it was really affecting Rebecca badly.
I also made a complaint to the DSC in October 2018.
Rebecca's own behaviour changed. I was made aware that she spent a lot of time in
her bedroom and she avoided the lounge room, kitchen and common areas. She would also spend time pacing the hallway and exhibited signs of anxiety, including gritting her teeth.
When I visited her and Katie was not there, Rebecca seem happier, which I felt was significant. I was also told by support workers that she sometimes did not want to return to the Melbourne house from her day program.
A November 2018 occupational therapy report for Rebecca noted that it was difficult to engage her in activities she had once enjoyed, like cooking, due to the dynamics of the Melbourne house, including bullying.
Another report, by Rebecca's Positive Behaviour Support Practitioner in December 2018, noted that her anxiety and antisocial behaviour had increased. It referred to Rebecca limiting her participation in the house, becoming more aggressive and smearing her faeces. It also said there had been a decrease in staff support for implementation of Rebecca's Positive Behaviour Support Plan at the Melbourne house, but that she was settled and calm at her day placement.
I would sometimes see bruises on Rebecca's body and was not sure how she had got them. Rebecca would also communicate to me when she was hurt by her behaviour. For example, one day when she came home for a visit, she walked through the door and repeatedly said "ow" and took off her top to show me some bruises.
I also recall an occasion in late 2018 when I was suspicious about some serious bruises on Rebecca, which I was told were the result of a fall when she was getting out of the van. I asked the community visitors to look into it, as it seemed strange that bruises were both to the back and the front of Rebecca's body. That further increased my fears about what might be going on in the house.
After the September 2018 incidents, a discussion with one of the LWB managers and my complaint to the DSC, I understand that LWB developed some kind of safety plan for Rebecca. I do not recall whether I was provided with a copy of the plan, but I was pleased that LWB appeared to be taking some more proactive measures. I told the DSC that they could close their investigation of my complaint.
The DSC did help me to get a response from LWB on this occasion, including an acknowledgement that their failure to seek medical treatment for the wound on Rebecca's knee was an oversight. I also recall that DSC was helpful in arranging meetings with LWB, which provided some improvements, but they were short term and didn't seem to last.
I also told the DSC that after the September incidents, I had not received an apology from LWB, and at a meeting a few days later I did receive an apology.
On 4 January 2019 I received a letter from DSC setting out its findings. While the safety plan put in place some steps to ensure Rebecca had more support over the
2018 2019 holiday period, I do not think it really worked. I understand there was an incident in January 2019 when Katie hit Rebecca in the face, and Rebecca's own behaviours worsened.
At this stage, I was totally overwhelmed and exhausted. My husband was very unwell and was in and out of hospital.
Not long after, I remember there was an incident when Rebecca was accidentally given all of Robert's morning medications, one of which she was highly allergic to. This was very concerning to me because she had previously been taking that particular medication and had become very unwell and experienced dystonia as a result.
Support workers at the Melbourne house told me about the incident, but when I asked if Rebecca had been taken to the doctor, they said no. I asked them to take her to the doctor.
In early April 2019, severe bruising was found on Rebecca's back. Rebecca was taken to the doctor, who was concerned there was blunt force trauma, but no internal injuries were found from a scan.
Initially, I was not given an explanation for what could have caused the bruising. I spoke to the program manager about it and was told LWB were looking into the matter. I contacted the Office of the Public Advocate and the DSC again, because I was worried about what could have happened. Later, LWB told me the bruising was a result of Rebecca having fallen over in her room.
By this stage, I was so distressed and worried that I had had enough. The severe bruising found on Rebecca's body in April 2019 made my decision for me. Along with Rebecca's support coordinator, I began looking for somewhere else for her to live. I was, of course, worried about the potential impact of such a big disruption on Rebecca, but her Positive Behaviour Support Practitioner also said in a 2019 report that she needed a new support environment.
I remember my husband telling me just to bring her home, but I knew this was not the answer. The process was not easy and we had to talk to DHHS to identify housing alternatives, which was complicated by Rebecca's NDIS funding category. In April 2019, we had heard from DHHS that there was a place for her in another house, but that a reassessment of her SDA eligibility was required and she could not move until that was completed.
When Rebecca finally left the Melbourne house in November 2019, I made sure to emphasise that I had been generally happy with the care provided by her support workers at the house. She had some wonderful relationships with several of the staff who supported her over the years at the Melbourne house. I spoke often with these staff at the house about my concerns, but I felt they could only do so much and they were not being well supported by their team leaders and managers, who were
I also felt that conflict and even violence in the Melbourne house had somehow become normal and had been accepted as a fact of life, rather than being something that should be addressed in a concerted, long term and consultative manner, involving the residents and those who loved them and wanted the best for them.
In addition, when there was a problem at the Melbourne house, I didn't always know the best person within LWB to direct my query to because it always seemed to be changing, so I often copied in more senior people on emails. I tried to speak to regional managers, but it seemed that the people in that role were changing often.
Move from the Melbourne house to new accommodation. Eventually, in November 2019, Rebecca was able to move into new shared accommodation run by Araluen. The transition from the Melbourne house was not an easy one for her. She was a lot younger than her co residents in her new Araluen home, who were all over 60. However, once she settled in, she did seem a lot happier.
Then, in June 2021, she was able to leave the group home and move into a place by herself. She still has 24/7 support from Araluen, both in her home and at day placement, and it seems to me this new arrangement suits her extremely well.
I strongly believe that Rebecca's behaviours at the Melbourne house were an effort to tell everyone she was upset and scared. Since leaving the Melbourne house, Rebecca has not had any major problems. She has not been assaulted by anyone and has not had any injuries. I feel like I don't need to constantly check up on her and support staff and the management team responsible for her care, like I needed to when she was at the Melbourne house.
NDIS funding issues. I would also like to share my views in relation to trying to navigate the National Disability Insurance Scheme, the NDIS, funding system on behalf of Rebecca. I am Rebecca's planning nominee and I attend all planning meetings on behalf of Rebecca. I was hopeful when the NDIS was rolled out that it would really assist her in getting all the supports and services she needed, but without me constantly advocating for her and obtaining legal help to write letters and seek reviews, I do not think she would have had all the funding she required. Even with that considerable work, it was a long and difficult process.
Rebecca's first NDIS plan in October 2016 specified her funding for improved daily living, support coordination, transport and core supports. Prior to this, her ISP had included funding for her to attend her Araluen day program for five days a week. This was one of the biggest problems from the outset with Rebecca's early NDIS plans. Rebecca's transport costs to and from the day program were only partially funded through the NDIS. $2,472 was allocated for transport in her NDIS plan, but Araluen provided a quote of $3,431.04 per annum.
Rebecca cannot travel independently and needs a support worker to help her, as she
often removes her seatbelt. Prior to the introduction of the NDIS, there was no out of pocket expenses associated with Rebecca's transport under her ISP.
The second issue was the funding that Rebecca required for one to one individual assistance while at her day program, which was also previously funded in her ISP. The National Disability Insurance Agency, the NDIA, classified Rebecca at the standard level of support needs. Araluen considered Rebecca to require a high intensity level of support, which included one to one assistance. Araluen stated this would ensure Rebecca's positive engagement, increase her wellbeing and confidence and give her choice and control over her life, all of which I considered essential.
Without additional funding for one to one support, Rebecca could not participate in group activities at her day placement. It was very frustrating to have Rebecca's funding for these supports reduced. This meant that Rebecca could not participate in group activities at Araluen unless she used the funding that was needed for other social and recreational activities.
It was essential that Rebecca both be able to attend her day placement at Araluen and be supported appropriately while she was there. This became increasingly important, as tensions at the Melbourne house escalated and I viewed Araluen as an essential daily respite for her.
I sought legal assistance for Rebecca. In May 2018, her legal representative wrote to the NDIS, seeking a review of Rebecca's plan. In March and August 2019, conciliations between the NDIA and myself on behalf of Rebecca took place.
Eventually, on 16 August 2019, the Administrative Appeals Tribunal made a partial decision which increased the funding for Rebecca's transport and provided an additional 24 hours of funding for support coordination.
Then, on 16 December 2019, the NDIA's decision of 21 August 2018 was set aside. In addition to increased funding for transport and additional hours of support coordination, Rebecca was allocated 75 hours of behavioural support, 30 hours of occupational therapy, 20 hours of one to one support from when she came home from her day program, 12 hours of speech therapy, $85,106.90 for her day program, and 31 hours per week for six weeks of the year for one to one day program support during the holidays.
The amount of funding Rebecca received in the January 2021 plan has increased significantly from her first plan in 2016. I believe the funding Rebecca receives now is what she should have been receiving from the beginning. The review process remains lengthy and time consuming, but I have become savvier over them.
The process I have described with the Administrative Appeals Tribunal above took almost three years. It was a long and difficult process, but it was worth it. Rebecca can now safely live by herself and she has a better quality of life, particularly due to the full time one to one support.
Conclusion. Making sure Rebecca is happy, safe and can achieve whatever she wishes to do has always been my priority. I am so glad she finally is in a place where she has her independence, but also has the support she needs and is comfortable. It was a real challenge to get to that place. I remain concerned that other people with intellectual disability who may have behaviours of concern might not be as well supported as Rebecca now is.
Fundamentally, I think we all have a right to choose the people with whom we live. I have friends who I love dearly, but that does not mean I would choose to live with them. It seems wrong to me that people with intellectual disability have to share their homes with people they may not know or with people who have complex behaviours of concern that cannot be fully addressed and which causes them distress and harm.
Disability service providers that offer accommodation and support services must be able to find a way to ensure that everyone's individual personalities, ages and needs are fully taken into account and their preferences and choices are respected in all aspects of their lives.
CHAIR: I'm sure on behalf of the Commissioners we wish to thank Catherine for making that statement and for providing it in that form. We are sorry that she was unable to give evidence directly to the Commission, but we, of course, have heard and, in our case seen, Catherine give that statement.
MR FOGARTY: Can I ask for a short adjournment, after which Paul, one of the other parents of Robert in the Melbourne house, will appear and give his evidence.
CHAIR: We will resume at 11.40 Australian Eastern Daylight Time, thank you.
ADJOURNED [11.28 AM]
RESUMED [11.42 AM]
CHAIR: Yes, Mr Fogarty.
MR FOGARTY: The next witness is Paul, foster father of Robert, a resident of the Melbourne house, and the husband of Tania, foster mother of Robert. Paul has provided a statement for this public hearing, dated 17 November 2021. For reference, it is in hearing bundle B, tab 1, and attachments are at hearing bundle B, tabs 8 to 76.
CHAIR: Paul, thank you very much for coming to the Royal Commission to give evidence. We appreciate your attendance and the statement you have provided.
Just so you know where everybody is located, Commissioner Galbally is participating in the hearing from Melbourne, Commissioner McEwin is with me, on my right in the Sydney hearing room, as of course I am, and Mr Fogarty, who I will shortly ask to ask you some questions, is also in the Sydney hearing room.
If you would be good enough to follow the instructions of my associate, he will administer the affirmation to you.
CHAIR: I will now ask Mr Fogarty to ask you some questions.
EXAMINATION BY MR FOGARTY
MR FOGARTY: Paul, can I check you have a copy of your statement with you?
MR FOGARTY: Can I ask also check there are no changes you want to make to your statement?
PAUL: No, there's none.
MR FOGARTY: You can confirm, can you, that the contents of your statement you are true and correct to the best of your knowledge and belief?
MS TAYLOR: I can confirm that, yes.
MR FOGARTY: Thank you. Paul, I propose to work through your statement, starting firstly by asking you some questions that will help the Royal Commission and those listening and watching the livestream to understand better who Robert is, who his family is and clearly, when one comes to the end of your statement, through your statement how much he is loved and supported by his family and those around him. Robert is now 37 years of age?
MR FOGARTY: He still lives in the Melbourne House?
PAUL: He does, yes.
MR FOGARTY: What things or pastimes does Robert like doing?
PAUL: He mainly likes going out with his day program workers, going out they normally go out and walk around a park, go and have coffee. They used to, before COVID, go into the city and listen to the buskers. He loves having a spa bath. He would have a spa bath every day of the week, and that's probably his greatest pleasure in life.
He likes food and he has a he likes a wide range of styles of food. He knows various kinds of breads from Castellina to Pane di Casa. So he has excellent tastes. He used to listen to a lot of music, but not so much now.
MR FOGARTY: I understand he doesn't mind a beer as well?
PAUL: Yes, he likes to have a beer. He has one particular kind that he likes. I won't give away any free advertisements today.
MR FOGARTY: Thanks, Paul. You have provided some photos to the Royal Commission that the Commissioners have seen or have access to. There are three that I will refer to. One, just so the Commissioners understand, is in his favourite chair at the Melbourne house?
PAUL: That's right.
MR FOGARTY: Another is with mum and dad on one of his birthdays at home?
PAUL: That's correct, yes.
MR FOGARTY: Another one is him preparing some food at the Melbourne house with his then key worker. That was a couple of years ago; is that right?
PAUL: That's correct, yes.
MR FOGARTY: Can I ask you to tell the Royal Commission a little bit about his birth and early years, very briefly.
PAUL: He was the fifth child of my wife's cousin. They were on a farm somewhere. Well, he wasn't wanted from the start, was my understanding of it. He was born very prematurely, had to have oxygen for his lungs, but that destroyed the retinas of his eyes. He was in hospital for a long time after birth and possibly that also contributed to his autistic issues and intellectual disability. We don't know about that.
We then realised the family were in difficulty and we saw that he wasn't being looked after properly, or as we thought. We offered to take him for a while to give the mother a break. He came to us when he was 2 something. They didn't want him back and we kept him.
MR FOGARTY: You formally adopted him, yourself and Tania?
PAUL: No, we didn't adopt him. We got guardianship and something else. We got a court order, but it wasn't adoption.
MR FOGARTY: You mentioned some of the diagnoses of his disabilities. One is he is blind; is that correct?
MR FOGARTY: Another is he lives with he is autistic?
PAUL: We think so, yes.
MR FOGARTY: He also, in his 20s, developed epilepsy or had fits and seizures?
PAUL: That's correct, yes.
MR FOGARTY: I note, too, is it right, that there was a diagnosis or a label given of developmental disability?
MR FOGARTY: Some of his strengths I understand. You have talked about his love of music, which I think was more prominent when he was younger, but he has a very impressive memory as well; is that right?
PAUL: Yes, he has. Music was important when he lived with us, basically because of two boring elderly people. When we went to the house, I think because there's a lot more different people there, he likes to listen to what's going on at the house, so he doesn't listen to music as much.
Before he learnt to talk at 8, or before he started talking at 8, he had an incredible memory for music and he'd hum great slabs of classical music, including Jesu, Joy of Man's Desiring, and right through. But as soon as he learnt to talk, it stopped.
MR FOGARTY: He communicates in what way now?
PAUL: He can talk, and he understands much better than he can express his feelings. He doesn't express feelings very well. He talks in statements, like "Ring up mum", "Ring up dad", "More beer", or whatever, but he doesn't kind of engage in much long conversation.
MR FOGARTY: Milparinka is his day program service provider; is that right?
PAUL: That's correct, yes.
MR FOGARTY: How long has he been engaged with them?
PAUL: I can't remember. A long time. When he left school, he went to a couple of other service providers. It wasn't very successful. That was probably for about three or four years, and then he went to Milparinka.
MR FOGARTY: If I suggested 2004, I will help you on this one, does that sound about right?
PAUL: That would be correct, yes.
MR FOGARTY: Are they also these days involved in his NDIS support coordination?
PAUL: They are, yes. They are the support coordinator.
MR FOGARTY: Again for the benefit of understanding more about Robert, what support and assistance do you say he needs from day to day, particularly in his accommodation?
PAUL: Well, he needs assistance with showering and washing. He needs prompting for that. He needs assistance with meal preparation or he needs people to prepare his meals. He needs assistance with dressing, insomuch as someone needs to get the clothes out and the shoes out for him. He can put those things on. He needs assistance in going out of the house. He needs one to one assistance because he's totally blind. Yes, that's probably it.
MR FOGARTY: Prior to his move and his move was in 2011, is that right, to the Melbourne house?
MR FOGARTY: Prior to that, there was some in home support services; is that the case?
PAUL: That's correct, yes.
MR FOGARTY: But, as a summary from me, was that becoming more difficult, the interactions at home were becoming more difficult and you and Tania decided that it would be good for all of you that he perhaps have his own separate accommodation? Is that the backdrop?
PAUL: That's correct. Both of us were on medication for depression. We were not coping, we were struggling. We got assistance from DHS after we said we might have to relinquish him. That meant that all these people kept coming into our house, coming in to shower him in the morning, to give him breakfast, to work with him during the day, so we really never had a house to ourselves. You felt obliged to talk to them and make them cups of tea and things like that. Yes, we were just really
struggling at that stage.
MR FOGARTY: That was the Department of Health and Human Services, the Victorian department?
PAUL: Victoria, yes.
MR FOGARTY: Did Robert or the family pick the Melbourne House, in terms of where he went to?
PAUL: We had a choice of two and the other was a lot further away. It was basically in the country.
MR FOGARTY: How far away is the Melbourne house from where you live now?
PAUL: It's half an hour's drive.
MR FOGARTY: When you say the offer was made, was that made by the department or someone else?
PAUL: By the department. That's my recollection of it.
MR FOGARTY: When Robert moved in, LWB was the service provider who managed the house in August 2011?
PAUL: That's correct, yes.
MR FOGARTY: Do you recall, and I will take you to a document, whether there were contracts or agreements in place between Robert or yourself and Tania and LWB at that time?
PAUL: When he actually moved into the house, I don't think there was. Some time later I believe we signed a document.
MR FOGARTY: At the time, it was your understanding that the support services in the house were being paid through was it through Robert's Disability Support Pension, or how was that paid for at the time, or through funding of the Victorian department?
PAUL: Well, money was taken out of his Disability Support Pension, yes, for his rent and for his board.
MR FOGARTY: What were your impressions of the Melbourne House when you first went there?
PAUL: We were very happy with it. We were happy with the fact that he was going to somewhere that was his, and we were quite impressed with the people who were
running it and we thought this was going to be good.
MR FOGARTY: How did Robert appear to you? How did he seem with the transition?
PAUL: Oh, it took some time for him to be successfully transitioned in, yes. He wasn't totally happy with the move.
MR FOGARTY: Robert moved in and was living with four other residents; that's the case?
PAUL: That's the case, yes.
MR FOGARTY: They were and these aren't their real names Stevie, Amanda, Rebecca and Marco?
PAUL: That's correct, yes.
MR FOGARTY: So the house comprised, in total, two men and three women?
PAUL: That's correct, yes.
MR FOGARTY: Before Robert moved in, did he or you or the family have any say about who he would be living with?
MR FOGARTY: Do you say you had a choice between two places, but the other place was further away in the country?
PAUL: Well, we rejected it on the fact that it was too far away for us to visit.
MR FOGARTY: In either case, were you aware of any of the other residents in either of those two places before Robert moved in?
MR FOGARTY: Just very briefly, in your statement you refer to an organisation called Active. Who did you understand Active were, either then or as the years passed by?
PAUL: Then, we didn't really understand who they were. The only reason we knew of Active was because the workers, the staff would say, "That's broken, we've called Active to get it done". We thought Active were probably the had some kind of a lease for the house and they were a some kind of disability support housing provider, and that rent was paid to Active and that Active were responsible for the maintenance of the house. But we never had any communication, I don't I can't
recall any from Life Without Barriers or DHS, informing us of who this mythical Active were.
MR FOGARTY: But you understood LWB was providing the daily supports to Robert and the other residents, not Active?
PAUL: Not Active, no.
MR FOGARTY: I will ask that you be provided with a document. For reference, it's hearing bundle B, tab 11. I asked you a moment ago about a contract. Do you have that in front of you?
MS TAYLOR: I do, yes.
MR FOGARTY: You agree it's a residential statement from May 2011?
MR FOGARTY: It's signed, if you turn to page 3, by an Operations Manager of Life Without Barriers. Do you see that?
PAUL: Yes, I do.
MR FOGARTY: Do you recall receiving and reading this document in 2011?
PAUL: It's very vague.
MR FOGARTY: All right.
PAUL: I think we did, yes.
MR FOGARTY: Did you have a concern about the document? If you need to have a look at it now to refresh your memory, there are a few pages there and there is a bit of detail in the pages after. Did you have a concern, generally, about what this document said or didn't say at the time?
PAUL: No, we didn't have any concerns. We were very pleased that Robert was in a house and we would basically have signed anything.
MR FOGARTY: Can I fast forward you to 2019, in terms of agreements or contracts, and ask you to look at another document. It's hearing bundle B, tab 12. Let me know, Paul, when you have that in front of you.
PAUL: I have.
MR FOGARTY: Do you see on the front it says:
Life Without Barriers. Our agreement with you.
It has client name "Robert", et cetera. Do you recall this more recent agreement?
PAUL: I do, yes.
MR FOGARTY: By this stage, the NDIS funding was happening, a couple of years in, correct?
MR FOGARTY: In looking at this document, did you have any concerns about this document and what it said or didn't say?
PAUL: Well, we were concerned that it didn't actually spell out what the services that Life Without Barriers were going to provide to us were. It was pretty vague. We signed it, just so that we didn't have the angst with it, but it really didn't spell out what services we could expect from Life Without Barriers.
MR FOGARTY: Is it fair to say by this time you'd been one of the concerns, I will call them, that you had with Life Without Barriers was, essentially, what was being provided or not being provided?
PAUL: That was. That's correct, yes.
MR FOGARTY: Sorry to keep doing this to you, but I will take you to another document. It's hearing bundle B, tab 13. You wrote, didn't you, to the State Director of LWB and this is the letter, isn't it, of 5 August 2019, about service agreements?
PAUL: That's correct, yes.
MR FOGARTY: I won't read right through it but, essentially, in subheadings there you set out your concerns to that State Director, don't you?
PAUL: I do, yes.
MR FOGARTY: Your concerns are in respect of transport. I'm just capturing a couple of parts. There is no indication in the agreement as to what transport is being referred to or what are the charges:
Below accommodation agreement, the document refers to an accommodation in agreement with LWB attached to the service agreement. This was not provided in the documentation given to us.
Do you see that?
: That's correct, yes.
MR FOGARTY: "LWB charges" is another heading of concern:
The document does not specify your contribution to household expenses.
Another concern, and this is one you were just giving some evidence about, is "Services to be provided":
As this is a service agreement, the document should list the services to be provided. There is a list of LWB responsibilities which seem appropriate, but the services should also be listed.
Then underneath you list, with some subheadings, the sorts of services that you understood at the time were being provided, or ought to have been provided; is that right?
PAUL: Ought to have been provided, yes.
MR FOGARTY: Did you ever after that, from your recollection, August 2019, receive those details in an agreement that met those concerns from LWB?
PAUL: My recollection is there was no response to that letter at all.
MR FOGARTY: I see.
PAUL: I don't recall receiving a reply to that letter.
MR FOGARTY: Would you say that service agreement is in worse shape in 2019 than the agreement you were provided with in 2011?
PAUL: Well, it's
CHAIR: I'm not sure I understand that question.
MR FOGARTY: I withdraw that.
Do you say that the details in the earlier 2011 residential statement are more fulsome? There is more detail in that earlier 2011 document than the 2019 document; do you agree?
PAUL: I think that's correct, yes.
MR FOGARTY: I would like, Paul, to move to another topic. You can put that document to the side.
CHAIR: Before we leave that, Paul, what prompted you to write that letter,
PAUL: Well, we were not happy with the services provided by Life Without Barriers at the house and we'd been asking for a long time for improvements. Maybe naively, I thought a service agreement ought to actually spell out what the services to be provided were, in broad terms, because I felt that the document we signed was pretty worthless in terms of spelling out what expectations were on them, as far as the services they were to provide.
CHAIR: Did you get any advice before sending that letter or was that something you simply did on your own initiative?
PAUL: I did it on my own initiative. I may have circulated it to the other guardians and parents at the house, I'd have to check on that, but I didn't get advice from anyone else.
CHAIR: Thank you.
MR FOGARTY: The topic I want to move to, and you set it out on page 6 of your statement, if you need to refer to it, is the topic where you talk about conflict and violence between residents in the Melbourne house.
MR FOGARTY: How did you come to know there was conflict and resident on resident violence in the house at the time?
PAUL: Sorry, which time was that again?
MR FOGARTY: Well, at any time. When did you become aware that there was, I'm using the term "conflict or violence between residents" in the house, in the 2011 to 2019 span?
PAUL: We were aware that Stevie was very difficult, although Robert was okay. Him and Marco are out the back of the house and she didn't go out there very much. Other guardians at the house, and I'm trying to
MR FOGARTY: For example, Paul, Catherine?
PAUL: Catherine and Janine, we talked to them, and they outlined some of the things that were happening to their children and sibling.
MR FOGARTY: You were visiting the house during that period of time, 2011 to 2019?
PAUL: Yes. We visited almost every week.
MR FOGARTY: Did you observe any conflict or violence whenever you were at any time you were there; do you recall?
PAUL: I observed Stevie in a very agitated state, in the face of workers and us, visitors, and I observed her using pretty bad language to the other residents.
MR FOGARTY: This is at page 7. I appreciate it's a long time ago but in July 2013, this is paragraph 35, there was a family meeting with the program manager of the house about Stevie's compatibility; do you recall that?
PAUL: I do, yes, vaguely. It's a long time ago.
MR FOGARTY: Do you recall also writing to the department about that as a problem?
PAUL: I recall writing to the department, yes.
MR FOGARTY: Again at the time, was it your understanding it was the department who had the final say about who would be a resident or who might be transitioned?
PAUL: It was my understanding it was the department's responsibility, yes, and I never thought that the residents had any say in it at all. I was wrong on that.
MR FOGARTY: On page 8, paragraph 39, there's reference to a letter you sent to the CEO of LWB, Ms Claire Robbs, on 12 August 2013.
MR FOGARTY: Part of what you said in that letter, as your opinion I think you wrote, was that LWB had breached its duty of care to the residents as well as to the support workers at the house by failing to eliminate the risks to their health and safety?
MR FOGARTY: Was part of your concern in respect of that around the violence and conflict?
PAUL: It certainly was, yes. Violence between residents and violence towards the workers.
MR FOGARTY: Do you recall whether the CEO, Ms Robbs, responded to your letter directly?
PAUL: I can't recall, no.
MR FOGARTY: We are now towards the second half of 2013. It's the case, isn't it,
that in December that year, the end of that year, Stevie moved out?
MR FOGARTY: When she moved out, again you wrote to the department. I will ask for another document to be shown to you to assist you, because it is some time ago. It's hearing bundle B, tab 21. Do you have that, Paul?
PAUL: I have, yes.
MR FOGARTY: That's a letter you wrote to the Department of Human Services, as you have said there, to the executive director. In this you ask, don't you, for the families and other residents to have a say in the placement or the person who will replace Stevie; is that right?
PAUL: That's correct, yes.
MR FOGARTY: You talk in this letter, and I will quote:
Given the degree of trauma experienced by some of the people connected with the Melbourne house, I imagine it will take some time for residents, guardians and staff to regain confidence and feel at ease in their own home.
MR FOGARTY: Your statement there is about it sounds as though it was quite a a very difficult time for all of the people in that house, from your observations, and even the families; is that so?
PAUL: It certainly was, yes. It was traumatic.
MR FOGARTY: One other thing I note, at the bottom and you made some reference to that you copied in some of the other families or other family members?
MR FOGARTY: It's the case on this occasion that you were speaking not just for Robert but for the other remaining residents?
PAUL: Yes. I guess more for the other residents because I saw that it was the females who were the ones who were in the firing line, so to speak. I don't think Robert and Marco were on the receiving end as much. Well, we had no evidence that Robert was.
CHAIR: A little while ago you referred to the experience as traumatic. Could you just elaborate on that a little? In what way was it traumatic? Are you talking about
from Robert's perspective, your perspective, both?
PAUL: Mainly from the perspective of the other residents, the female residents, because I spoke to their parents and sibling and they were very distressed by it all. And the fact that when you went to the house, Stevie was in your face and yelling at you.
I know Robert was traumatised. He started ripping his clothes, which is a sign that he's very anxious and wants something you know, wants to express this anxiety in some way. So, yes, we were very upset by it. Going to visit the house was not the most pleasant experience at the time.
CHAIR: Thank you.
MR FOGARTY: Katie moved in in early 2014; is that the case?
PAUL: I believe that's the case, yes.
MR FOGARTY: Did you or the other families, to your knowledge, have any say in her being placed there?
MR FOGARTY: Katie still lives at the Melbourne house?
PAUL: She does, yes.
MR FOGARTY: From your observations when she moved in, how did you see her as fitting in with the other residents? How was the atmosphere amongst all the residents with Katie moving in?
PAUL: Well, we only visited once a week and I didn't observe any incidents involving Katie and it seemed okay. But from what Catherine and Janine communicated to us, there were serious issues that we hadn't observed, but they were there.
MR FOGARTY: When you say what they passed on to you, was it more resident on resident conflict?
MR FOGARTY: In your statement, and I won't take you through it specifically, except for one example, you give examples I'm moving to a new topic now from page 10 about the management of the house, particularly maintenance and upkeep. You give examples of an oven that was broken for some time, of requests for carpets to be cleaned, and the cleanliness of the house. I'm going to be very general here. The spa bath having been broken. I'll come back to that.
But in general terms, again over the span, and you may remember better more into the 2019s than the 2011s, what would you say about your requests or the other families' requests about maintenance, cleanliness and upkeep?
PAUL: Well, they took a long time to be actioned. We had to keep pressing them to take action and we seemed to get a lot of excuses for inaction. Things didn't get fixed as they should have.
MR FOGARTY: When you say "they", who did you raise your requests or issues with?
PAUL: I raised them with the more senior management of Life Without Barriers.
MR FOGARTY: The spa bath too, as you have explained, is something that Robert enjoys. As I understand, it has a calming effect on him?
PAUL: That's correct, yes.
MR FOGARTY: So
PAUL: He's obsessed with baths.
MR FOGARTY: For the period of time that was broken, and I understand there was a break in 2015 and 2017, he went without that experience for that period of time; correct?
PAUL: That's correct, yes.
MR FOGARTY: I'd like to continue to explore the I will use the word "relationship", it may not be the right one, but how well or poorly the communication lines were between you and the other families that you observed and LWB. I am moving closer to the present here, to 2017.
At that time, firstly, how would you describe your relationship or how you engaged with the disability support workers when you attended the house? How did you find that interaction?
PAUL: It was good, yes. We had a lot of faith and we thought that they were supportive and they did the best that they could do, given the situation. There would have been one or two who we were not totally satisfied with but, in the main, the support workers in the house tried very hard to deliver a good service to the residents.
MR FOGARTY: Do you think they were supported, from your observations, by LWB management, or is that not something you could comment on?
PAUL: I couldn't really comment on it, but I don't think they were.
MR FOGARTY: What about your communication or contact or relationship with program managers, house leaders and working up to operations managers? We are talking 2017 through to 2019/2020. How did you find that? Was it fruitful, did things get done? Was it not fruitful? How would you describe it to the Royal Commission?
PAUL: We had a civil relationship with them. There was no, kind of, animosity or anger between us and the program managers. We put to them what we thought were our concerns and usually they would agree, but things didn't get addressed.
MR FOGARTY: Was there variation between the different managers who came through, did you find?
PAUL: Yes, there was. These are the program managers, yes.
MR FOGARTY: Yes, talking about program managers.
PAUL: Yes. One of them only lasted a very short time. Another one, who we thought was doing a really good job, disappeared off the face of the earth. Yes, there was a wide range of skills and abilities and interpersonal skills with the program managers.
MR FOGARTY: Were you and the families given any notice about obviously you can't give notice in all cases because employees might just leave very suddenly, but was there any communication from people higher up the chain to the families about that?
PAUL: There was communication mostly, I think, when a new program manager was appointed. On a number of occasions I emailed the Victorian manager, asking what had happened to this particular person.
CHAIR: What happened when you emailed, asking that question?
PAUL: I got replies to the effect that he or she I think it was mainly shes had moved on to bigger things and they had great interest in this and there was great career opportunities somewhere else for them and, you know, Life Without Barriers supports this, et cetera, et cetera. We only employ the best people, and they go on to all these other things. It was excuses.
MR FOGARTY: Focusing still on the latter stages, 2017 through to 2019, were there family meetings that were convened with LWB?
PAUL: It wasn't so much LWB convening them, the guardians and parents asked for the family meetings.
MR FOGARTY: So it wasn't prompted, you say, regularly by LWB or at all?
PAUL: It may have been on occasions but, from my recollection, in the main it was the parents who said they wanted to have a family meeting.
MR FOGARTY: In July 2019 this is at page 15 of your statement, paragraph 70. It's about a communication protocol. You provided a two page proposed procedure document for communication and consultations with families to LWB?
PAUL: Yes, I did.
MR FOGARTY: And here might be the time what's your background and career, Paul, if it can assist the Royal Commission?
PAUL: Well, I started off as an engineer, I was a teacher, I had a reasonably senior position in WorkSafe, then I had a consultancy business in occupational health and safety, where a lot of it involved writing occupational health and safety management systems for large organisations, so setting out the kind of processes they needed to have to assist them to comply with the legislation.
MR FOGARTY: Do you recall this protocol? Were you following those sorts of structures that you had learnt in this protocol, or applied?
PAUL: Yes, yes.
MR FOGARTY: Do you recall whether it was taken up, that protocol, by LWB?
PAUL: I recall that it wasn't.
MR FOGARTY: Was there any other protocol you recall that LWB provided?
CHAIR: You say in paragraph 70, Paul, that you had become more frustrated with LWB's communication approach by July 2019. What were the sources of the frustration you expressed in that paragraph?
PAUL: I'll just have to read the paragraph again.
CHAIR: Just the beginning of the paragraph.
PAUL: Well, around that time, we had a house supervisor who kept making excuses about not attending any family meetings. She never attended one family meeting. It seemed to be just haphazard. It seemed to be that the families had to keep asking for them. We'd quite often arrange a time for it and that time would be changed.
I recall one instance where the time was changed so we could meet and greet the new
Victorian manager, I think it was, and when we went to the meeting, the program manager started the meeting off and we said, "We thought the regional manager was going to be here". She said, "Oh, do you want her?" She went and got her and she sat in the meeting and didn't say anything. That was a kind of example of the interest they had in meeting with the families.
MR FOGARTY: Can I move to the commencement of the NDIS. It is covered at the bottom of your page 15 and goes on to page 18. June 2016 was when the NDIS was coming in to being in Victoria. Who was Robert's very first support coordinator for the planning; do you recall?
PAUL: I'm confused about the name. It was a woman from Life Without Barriers.
MR FOGARTY: Sorry, which organisation? I'm sorry, I should have said. It was Life Without Barriers, was it?
PAUL: Yes. Well, I mean, we didn't know what a support coordinator was at that time, and we found out that Life Without Barriers was the support coordinator.
MR FOGARTY: Did you have a say in that, do you recall, at the time?
PAUL: No, I don't think we did, no. It's just one of those things that happened at that time.
MR FOGARTY: At the time, in 2016 or the latter half, what did you understand about the NDIS? It might be difficult now, given you are almost an encyclopedia, it would seem, but taking yourself back to then, what did you know and how much did you know?
CHAIR: About what?
MR FOGARTY: About the NDIS and the funding process?
PAUL: I must say, I knew the principles of it. The details of the funding process I was not aware of. But Robert's day program at Milparinka seconded a worker to assist families with the preparation for the NDIS. We were one of the first, I think, because we were in the first tranche of municipalities. So we went through a detailed NDIS work book and got a lot of information together. We knew about that, and we knew there would be a planning meeting to discuss the plan and
MR FOGARTY: That's what you understood.
MR FOGARTY: The work booklet, you filled that out. Were you able to submit that to anyone?
MR FOGARTY: And the planning meeting I'm still talking about the initial first plan, as we'll call it, which I think was approved in October 2016. Did you have a planning meeting?
MR FOGARTY: What information did you pass on, advertently or inadvertently?
PAUL: It was inadvertently. My wife had a phone call in which they asked her a number of questions. She thought it was just NDIA collecting background information, which she willingly gave them. And that was it, the sum total of it.
MR FOGARTY: Is it fair to say, lo and behold, in early October 2016 you received or Robert received his first NDIS plan?
PAUL: That's correct, yes.
MR FOGARTY: I will show you a document, and it's the plan I think it's two documents, certainly the references I have. It's hearing bundle B, tab 31 and hearing bundle B, tab 32. Together they comprise, I think, the correspondence of the first plan. Do you have that in front of you, Paul?
PAUL: I do.
MR FOGARTY: Can you go to page 2 of 5, in the bottom right hand corner, this is the "About Me" part?
MR FOGARTY: You will see about half a page worth covering:
Where I live and the people who support me in my daily life.
MR FOGARTY: I won't go through that. I will come to the November 2016 plan and ask you to reflect on what's in this, and then what's in the next plan. The next page is "My Goals". Do you see that?
MR FOGARTY: I will read through those. The first one is "My First Goal":
During this plan: to receive the ongoing supports that I need to enable me to participate in activities during the week and on the weekend that interest me.
Do you have any comment about that?
CHAIR: In what sense are you asking Paul to comment?
MR FOGARTY: I understand you were present when Tania took the call, but do you recall being asked
PAUL: No, I wasn't.
MR FOGARTY: I'm sorry. Do you recall, either afterwards speaking to Tania or any contact you had with the NDIS, or NDIA, I should say, about these specified goals in this first plan?
PAUL: I don't recall it, no.
MR FOGARTY: The second goal:
During this plan: to receive ongoing support from allied health professionals for assessment and recommendation in relation to equipment, aides or "apps" that may assist me.
You don't recall whether that was something specific put to the NDIA by you or Tania?
PAUL: I don't recall, no.
MR FOGARTY: And then:
My longer term goals and aspirations are:
Goal: ongoing maintenance, servicing and replacement of Robert's vehicle when required.
Is it the case that you and Tania have provided a van or a vehicle for Robert at the Melbourne house?
PAUL: That's correct, yes.
MR FOGARTY: The next page is "Part 3: My supports", and there are a number of support areas. This is the second document in the hearing bundle. Assisted technology, improved daily living, home modifications, support coordination, transport, core supports.
When the family, you or Robert received the documents, were there concerns you had about the funding that had been approved?
PAUL: Well, we just didn't know what the funding was going to run to, in terms of what services he could get from that amount of funding. We were a bit totally confused, really. We just wanted to continue on as things were. There was a clause they kept saying in some of the information sessions we went to about "No disadvantage", "No disadvantage", so we thought maybe that's what it is.
It was only when we sent the plan to the CEO at Milparinka and he started to go through the sums and started to have serious concerns about whether they could provide a service.
MR FOGARTY: There was an issue around transport fees, wasn't there, or payment?
MR FOGARTY: Did that result in Robert not being able to attend Milparinka?
PAUL: That's correct, yes. Milparinka had been subsidising to some extent, previously before NDIS, the fact that workers had to now go out to his northern metropolitan house, which was a half hour's journey or so. They'd been subsidising that, but they couldn't continue doing that forever.
The amount that was included in the plan for his day program was just not enough, and they were going to go broke. In the end they had to say, "Look, we're sorry but we are going to have to withdraw our services because we just can't pay the workers".
MR FOGARTY: He didn't attend for a couple of months, is that right, that is Robert?
PAUL: That's correct, yes. It was an extremely traumatic time for us and for a lot of other people, including his Milparinka workers, one of whom went out to say goodbye to him and was apparently in tears.
MR FOGARTY: You then complained or took it up with the NDIA?
PAUL: I tried to, yes.
MR FOGARTY: Then in November 2016, a second plan came along after you had been contacted by an NDIA or NDIS planner; is that right?
PAUL: That's correct, yes.
MR FOGARTY: Chair, I note the time. Perhaps a short break might assist Paul?
CHAIR: Yes. I think it perhaps might assist, also, if we move on a bit chronologically. This is dealing, is it not, with the time just after the NDIS comes
MR FOGARTY: Yes.
CHAIR: I think we understand, from both the statement and the documents, the difficulties that were experienced with the initial plan. It might be helpful if we move on a little bit towards the current circumstances.
MR FOGARTY: All right. Thank you, Chair.
CHAIR: How long do you want to have a break for?
MR FOGARTY: Paul, is five minutes enough, just to give you a breather?
PAUL: Yes, fine.
CHAIR: It's nearly 25 to 1. We will resume at 20 to 1.
ADJOURNED [12.32 PM]
RESUMED [12.40 PM]
CHAIR: Yes, Mr Fogarty.
MR FOGARTY: Thank you, Chair. Paul, I don't want to spend too long on it but, as I understand it, the SIL quote process in 2019 was quite an epic drama for yourself and Robert. Is it the case and qualify this if I haven't captured it correctly that in early 2019, January 2019, you, I think with Milparinka by this stage, were needing a SIL quote to assist in the planning process, and that SIL quote coming from LWB, to ensure that Robert's next plan for the year ahead could be finalised; is that right?
PAUL: That's correct, yes.
MR FOGARTY: Is it the case that sorry, Paul.
PAUL: The SIL quote has to be included in the plan, is my understanding of it.
MR FOGARTY: Initially about when was that due in that year, 2019? Quite early on?
PAUL: Yes. Well, it was due in I think we went to a meeting with the NDIA in January, and they typed into the computer and said they hadn't received a SIL quote from Life Without Barriers.
MR FOGARTY: You then followed up with Life Without Barriers for many months, didn't you?
PAUL: I did, yes.
MR FOGARTY: To your recollection, was it not until November 2019 that you became aware the NDIA had the right document in terms of a SIL quote?
PAUL: Yes, that's correct. Yes.
MR FOGARTY: 11 months later. Then do you recall in January 2020, the NDIA approved the next plan, including the SIL quote?
PAUL: That's correct, yes.
CHAIR: Sorry, is that intended to convey there was a delay due to LWB?
MR FOGARTY: That is so.
CHAIR: I think it may help if you explain that specifically to Paul.
MR FOGARTY: Paul, the SIL quote process is a process that relies on information and, these days, a roster of care that is put together by the supported independent living provider, in this case LWB; is that right?
MR FOGARTY: This is in a group context setting, particularly?
PAUL: That's correct, yes, and that SIL quote then goes into the individual's plan.
MR FOGARTY: The NDIA reviewed that with the proposed plan and information that has been inputted; is that right?
PAUL: I assume so, yes.
MR FOGARTY: It's the case, isn't it, that the NDIA cannot do its job, finish its job with the plan until it has the right SIL quote and, these days, roster of care that goes into that process; is that what you understand?
PAUL: That's correct, yes, that's my understanding of it.
MR FOGARTY: Long story short, the NDIA in this case couldn't do their job and finalise Robert's plan for approximately 11 months after what had been the original due date, because of LWB; correct?
PAUL: That's my understanding, yes.
CHAIR: What were you asking LWB to do that they didn't do?
PAUL: We were asking them to put in a SIL quote and they put it in and then it would be rejected by NDIA. They didn't consult with us and the NDIA were not happy with that because one of the requirements is, in preparation of a SIL quote, that the provider must consult with the participant, and we didn't have that. It just went backwards and forwards between Life Without Barriers and NDIA.
CHAIR: Did NDIA tell you why they had rejected the SIL quotes provided by LWB?
PAUL: I don't believe they actually told us, they just said, "We are waiting for Life Without Barriers to submit an updated SIL quote", or something like that, but we never actually had the reason for it.
CHAIR: What was LWB's explanation when you contacted them?
PAUL: I don't think they really had an explanation. It was that this particular person had gone off on leave, or something like that. The SIL quote was being prepared in Newcastle. Robert is in Victoria. It was being prepared by someone in Newcastle, who really didn't know what Robert required in terms of his level of care. So there was a lot of backwards and forwards internally, I imagine, with Life Without Barriers, and between the NDIA and Life Without Barriers. But we were sitting on the outside.
CHAIR: Thank you.
MR FOGARTY: Paul, as well, just in that process, wasn't it the case in April that the program manager emailed you and said they had finalised the quote and if you needed to put any more input in, you could. In fact, you later found out that by the time you had sent that email, they had already submitted it to the NDIA?
PAUL: Yes, that's correct, yes.
MR FOGARTY: In November 2019, Rebecca moved out of the Melbourne house?
MR FOGARTY: You again raised with LWB a request for the families to be involved in choosing the next resident; is that right?
PAUL: I did, yes.
MR FOGARTY: You also spoke with the department and the then Minister For Disability? You corresponded with them about that choice?
PAUL: I did, yes.
MR FOGARTY: What did you find out when you spoke with the department on this occasion?
CHAIR: Do you mean the Victorian department?
MR FOGARTY: The Victorian department, yes?
PAUL: DHHS as it was then, I think.
MR FOGARTY: Yes.
PAUL: I eventually found the person in the department who was responsible for placements. I explained the situation to him and he said to me, "I've been waiting for this phone call. When I was in shared accommodation, it was the people who live in the house that made the choice about new residents and I don't see what's different with people with disabilities".
I then asked that the placement be put on hold until the new provider took over, and they informally agreed to that. I think the person in the department was a bit reluctant to put it on an email, but he agreed to it.
MR FOGARTY: At this stage, November 2019, you and the other families had been and were still talking about and you tell me if the decision had already been made changing supported independent living provider, so replacing LWB; is that right?
PAUL: Yes. I believe at that stage we'd made the decision, yes.
MR FOGARTY: Very quickly, how did you come to know that was something you could ask for or demand; do you recall?
PAUL: What, that we could get a new SIL provider?
MR FOGARTY: Yes.
PAUL: I just read through the policies, et cetera, of the NDIA and read through the Act and tried to find out.
MR FOGARTY: Self education?
MR FOGARTY: Nowadays, Araluen is the SIL provider, correct?
MR FOGARTY: They formally took over on 1 November 2020?
MR FOGARTY: Do you agree, and I will come to it, in December 2019 you met with them, didn't you, so virtually a year before?
MR FOGARTY: You provided to them and it's probably the last document I want to ask you to be shown a copy of. You provided a statement of concerns regarding the management of the SDA house at the Melbourne address. It's document hearing bundle B, tab 63. Let me know, do you have that in front of you, Paul?
PAUL: I have it in front of me.
MR FOGARTY: That document was prepared by you?
PAUL: It was, yes.
MR FOGARTY: Was it in consultation with the other families at the time; do you recall?
PAUL: I believe it was, yes. I tried as hard as I could to involve all the other families in making the decision and in what we were communicating to Araluen and to Life Without Barriers.
MR FOGARTY: You provided this to Araluen and, essentially, wanted to know what their responses would be to those concerns; is that right?
PAUL: That's correct.
MR FOGARTY: Can I take you to some of these concerns, and I won't just read through them, but would you agree this is a fairly important document in the scheme of a summary of the experience, certainly of Robert and you, with LWB in the Melbourne house over the years 2011 to 2019?
PAUL: I would agree with that.
MR FOGARTY: Could you turn to the second page, which has bullet points. The third page, 3 of 5 down in the bottom right, has more bullet points. I count 46 concerns or issues in those bullet points, but maths was never my strongest suit. Some of the topics or concerns, do you agree, the second bullet point:
Failure to adequately address and prevent physical and verbal abuse of two
residents by another resident.
Do you see that?
MR FOGARTY: Two down:
Medication being given to the wrong person.
MR FOGARTY: Then:
Inadequate house cleaning routines and poor house cleanliness.
Broken equipment is not replaced.
PAUL: I can't find it, but
MR FOGARTY: Sorry, I'm jumping around a bit. Halfway down?
MR FOGARTY: Underneath that:
Apparent failures of the incident reporting system?
MR FOGARTY: Underneath that:
Responsible persons not being informed of incidents.
MR FOGARTY: About five down, and I'm not taking you to your NDIS or NDIA complaint that ended up going to the Commission, but there is one there which says:
Residents' money used inappropriately for purchases of fast food.
Do you see that, et cetera?
MR FOGARTY: That was a topic you took up, wasn't it, by way of complaint to the NDIA later on, November 2020?
PAUL: Yes, I took it up with the NDIA Quality and Safeguards Commission.
MR FOGARTY: That went to the Commission?
MR FOGARTY: All right.
PAUL: But this issue had been raised by the sibling of another resident and, I believe, by Catherine quite some time before this.
MR FOGARTY: Then over the page, the top bullet point:
Excessive use of agency staff .....
Do you see that?
MR FOGARTY: Underneath that:
High turnover of management and house supervisors.
MR FOGARTY: Then:
Assurances from management regarding future improvements, in services etc, never eventuate?
CHAIR: Do you have a question for Paul on these?
MR FOGARTY: I'm taking him there in terms of saying my question is: that list that you have written in December 2019, are those concerns that are listed concerns that span 2011 to 2019; and, secondly, if you can't answer that or you say it's too generic, did you see an improvement, significant improvement, between 2011 and 2019 in respect of any of these concerns with LWB?
PAUL: No, not really. No.
COMMISSIONER GALBALLY: Excuse me, could I ask a question. I am interested in the one about families not feeling welcome in the house. I ask that because of the role families play in observing what is going on and advocating when things aren't going well, a la what you have been doing. Can you describe that a bit more, that you weren't made to feel welcome?
PAUL: This related to a recent house supervisor who, when we visited, never came out of the office. She'd maybe send a few emails, but that was the major communication we had with her. We'd go there on a Sunday afternoon and she'd be sitting in the office and she never came out, she never said, "How are things going?"
One time, Robert had to go to the dentist and his day program worker and myself took him. When you're blind and you have intellectual disabilities and you're asked to open your mouth in a dentist's chair, it's a bit of a daunting situation. Anyhow, he got through it, fine. We got back and she was we drove up and we were getting Robert out of the car and she was there, and I said, "Hi, how's it going?" She said, "Good", and just walked into the office, sat down and that was it. Never came out again. We didn't feel that we were welcomed by that person.
COMMISSIONER GALBALLY: But you weren't discouraged?
PAUL: Discouraged? I was disappointed but, no, it takes a bit more to discourage me.
COMMISSIONER GALBALLY: Thank you.
MR FOGARTY: Paul, as you have given evidence, Araluen has been the SIL provider since November 2020. How would you describe the last year and a bit? How has it been for Robert?
PAUL: Well, the COVID situation intervened and that made things difficult, because Robert had to stay in the house because there was no day program. But he managed pretty well. And the food standard/quality has improved. There's a program each week with what food is going to be had for the week. We take a photo of it so we can talk to him on the phone about it when he rings up. The cleanliness has improved, although there are still issues that have to be done by specialist repair people, but they're on the go.
There are still some issues that probably need to be addressed. The staffing situation unfortunately, there were some issues with the staff who came across from Life Without Barriers and there were some issues with bullying. Araluen had to stand three people down and that meant that some of the staff who knew the clients were no longer there, but that's now been sorted out.
MR FOGARTY: What about communication between you and the family and Araluen management, is that better than it used to be with LWB?
PAUL: Yes, it's fine. We just ring up the I'm not too sure what her position is, she's in charge of accommodation there, if there's an issue. We haven't had many. I guess we've been trying to give them a bit of a go because of the issues with COVID and the fact that has put a lot of stress on the operations. But no, the communication is fine, yes.
MR FOGARTY: Paul, the last topic I want to take you to, before I hand to the Commissioners for any additional questions, is you list towards the end of your statement some systemic issues of concern and, I think, some suggestions for change. The first one is external monitoring and the importance of advocacy. You say in your statement, and this is a short quote, so I don't think you need to read it:
There needs to be more proactive monitoring of the standard of disability service delivery and management by SIL providers.
Do you feel that the NDIS Quality and Safeguards Commission fulfils that role, in your experience?
PAUL: I have no evidence of that at all.
MR FOGARTY: Do you have any suggestions around how this situation might be improved?
PAUL: I have a lot of suggestions.
MR FOGARTY: Do we have a couple of hours?
PAUL: Yes. Well, I think the NDIS Quality and Safeguards Commission needs to have a much stronger enforcement role. They need to revise their practice standards so that they actually define what the provider has to do, in terms of managing their responsibilities. At the moment, the practice standards really talk about the outcomes that are expected for the participants, but they don't actually say what the providers have to do, in terms of having a system to manage the organisation and deliver those services. So yes, I think, as an ex manager of WorkSafe, I would like to see a more robust enforcement capability.
MR FOGARTY: Yes.
PAUL: Where they can issue improvement notices or cease operation notices. But at the moment, it seems to me very wishy washy.
MR FOGARTY: Thank you. The second topic you talk about is choice and control or, probably better put, absence of choice and control. You say for a long time it didn't feel like Robert had any choice or any control, even after the introduction of the NDIS. Do you think that has improved, maybe, with the new SIL provider or do you still see gaps or problems, in terms of Robert's choice and control?
PAUL: No. I think to the ability of choice that he has, I think that's working now, yes. I think they make efforts to try and deliver what he's asking. Sometimes it's hard to work out what it is that he's asking for, but I think they are making those efforts, yes.
MR FOGARTY: When you say "they", you mean his SIL provider?
PAUL: Yes, Araluen.
MR FOGARTY: What about NDIA and the funding it provides, do you think the funding now for Robert empowers him, in a sense, to have choice and control around the various areas that are funded?
PAUL: I believe it does now, yes.
MR FOGARTY: The last topic you refer to in terms of systemic concerns is disadvantages of large multi state service providers. You say, it's at page 31, paragraph 55:
Our experience working with a large organisation with its headquarters in another state raises a question for me about whether SIL services can be effectively delivered in this manner.
It speaks for itself, I suppose, but is Araluen, to your knowledge, a smaller model, or is it still a big organisation? It sounds, to a degree, at least communication is better with that organisation.
PAUL: I'm too sure, I think Araluen has about 120 employees, something like that. I think they've probably got six houses at the very most, as opposed to Life Without Barriers who had thousands of employees and they are headquartered in New South Wales, Newcastle. It's much easier to go out and talk to them.
MR FOGARTY: In a sense, is it really that you are saying I think you gave an example earlier about the SIL quote being done by a person in Newcastle, I think from your statement you say, who had never met Robert. Did that disconnect mean not to put words in your mouth, but tell me if I'm wrong the services being provided either relies on a chain of communication to the head office that's accurate, or relies on assumptions by someone who hasn't met the person, so the services may in that situation not be as catered or as tailored; do you agree with that?
PAUL: That's correct, and when Araluen took over they asked for the SIL quotes to be revised, and that took some time with NDIA, unfortunately. That was also a part of the hold up. Robert got I think an additional hour in the morning, one to one, for someone to help him get up, get dressed and have his breakfast. That wasn't on the SIL quote previously. The rest of his SIL quote was pretty good.
MR FOGARTY: This is the most recent, or the one that passed across from LWB to
PAUL: The one that passed across from LWB to Araluen didn't have any provision for someone to help him in the morning, so in the morning it might have been two workers for five people. Araluen wanted one to one for Robert, for I think it's one hour in the morning, so that someone could get him up, help him shower, get his breakfast, et cetera.
MR FOGARTY: Those are the questions I wanted to put to you. I will ask you this: is there anything in addition that you wanted to say to the Royal Commission before I hand to the Commissioners?
PAUL: No, except thank you. Thank you for the opportunity to tell Robert's and the other residents' stories. I look forward to a good report from the Commission.
CHAIR: Thank you, Paul. I will ask first Commissioner McEwin if he has any questions.
QUESTIONS BY THE COMMISSION
COMMISSIONER McEWIN: Just one question from me, Paul, thank you. I want to understand just a little bit better, but briefly from you, when you responded to a question from Mr Fogarty about the current situation, you say on the last page of your statement that you and Tania won't be around to look after Robert into the future. Just tell me briefly how confident are you right now that Robert will continue to get the support that you want to see him get?
PAUL: Well, I'm more confident than I was previously. There are still things that I would like to see Araluen do, but I'm much more confident. You know, there seems to be stable staffing and stable management at the organisation, and that's a good sign.
COMMISSIONER McEWIN: Thank you.
CHAIR: Commissioner Galbally?
COMMISSIONER GALBALLY: Yes. Your story of changing SIL providers and you are savvy in going out and finding another one and getting the families together, you say in your statement that you don't think that happens very often, yet that's a really important freedom now to have. What do you think might improve that so that families could change their SIL providers right across Australia? What needs to be done, do you think?
PAUL: I really haven't given that a lot of thought. I guess more education about the fact that you can do this, that this is your right.
COMMISSIONER GALBALLY: My second question is in your statement, paragraph 150, you talk about support coordination and you sort of imply that you didn't think it was independent when it was provided by LWB, at least. Did you arrange to change the support coordinator?
PAUL: We did.
COMMISSIONER GALBALLY: You did?
PAUL: We did. When Robert got his first plan, we were, as I say, shattered, totally shattered by the plan. We were distraught. This person called a support coordinator came to talk to us and we naively thought that maybe they would support us, and she told us to accept the plan. Then we started finding out about what a support coordinator was supposed to do and we realised that it was our choice of who the support coordinator was, so we immediately asked that Milparinka, who we had faith in although there are some potential conflicts of interest there we had faith that they at least had given Robert a lot of support previously, and in this situation they would do it.
COMMISSIONER GALBALLY: In terms of the LWB support coordinator, you felt the conflict of interest was telling you to accept the plan, that was the problem, that it was a conflict of interest?
PAUL: I don't know that it was a conflict of interest; it was just "Don't cause any fuss, just accept it and let's get on with life". The other issue in relation to support coordination is that Life Without Barriers were the support coordinators for a couple of the other residents of the house. I attended one of the NDIS planning meetings that Life Without Barriers were the support coordinator for and the planner started to go through last year's plan asking what had been achieved, what had been done, and the answer was nothing, not one thing. That organisation is getting paid an amount of money for support coordination, which they didn't provide.
COMMISSIONER GALBALLY: Yes. My third question was about advocacy, where you talk about how hard it would be for people in group homes who have no families or other loved ones to advocate. Did Life Without Barriers encourage independent advocacy services to come in and assist people, assist families? Did you ever see them in there or hear about them?
PAUL: Not in relation to us and Robert. I can't speak for the other residents.
COMMISSIONER GALBALLY: Thank you. Thank you very much.
CHAIR: Paul, in your statement there's a document that relates to the meeting that was held on 11 December 2019 with Araluen and I think with some of the parents.
MR FOGARTY: That document includes a response by Araluen to a number of points that you raised. How significant was that for you as you moved from Life Without Barriers to Araluen? Was that something that you regarded as important and has it played a part in your being able to monitor what Araluen is doing?
PAUL: The responses?
PAUL: Yes, that was very important. We not only looked at that, we also rang around and asked amongst the sector, you know, what kind of a reputation the organisation had. We didn't just go on that, but that was very important.
CHAIR: Have you been able to use that as a kind of checklist with the Araluen services?
PAUL: I must admit I haven't done that yet, no.
CHAIR: It might be a good idea.
PAUL: It would be, yes. The COVID situation kind of intervened and some of the staffing issues at the house intervened, so I think probably now we can hopefully get back to some kind of normalcy.
CHAIR: It's been a difficult time, I think, for everyone.
Paul, I will just ask the legal representatives who are present whether they would wish to seek leave to ask you any questions. Again, if nobody says anything, I will assume the answer is no. Since nobody has said anything, the answer is no.
Paul, thank you very much for your evidence, for your detailed statement and your very helpful analysis of what has happened and your ideas for what might be done to improve things for the future. We are very grateful to you for having come to the Commission to give your evidence. Thank you.
PAUL: Thank you.
THE WITNESS WITHDREW
CHAIR: Shall we now adjourn, and this time I think we'll give ourselves 58 minutes for lunch, so we will resume at 2.10pm.
RESUMED [2.10 PM]
CHAIR: Yes, Mr Griffin.
MR GRIFFIN: Chair, Commissioners, I intend to call four witnesses this afternoon, who will give concurrent evidence. Those witnesses will be known collectively as the OPA, Office of the Public Advocate, witnesses and they are as follows: Dr Colleen Pearce, the Public Advocate for Victoria, Leonie Swift, the Community Visitor Program Coordinator in the Office of the Public Advocate; Susan Rewell, a community visitor; and Christine Barbuto, another community visitor.
Can I indicate that Dr Pearce has not provided a new statement for this public hearing. However, she did provide two statements to Public Hearing 3, the first dated 15 November 2019, exhibit 3.13 in that hearing, which has the identifier STAT.0013.0001.0001 and appears in hearing bundle B, tab 6. Dr Pearce then provided a corrected statement, dated 2 December 2019, identified as STAT.0013.0002.0001 and appears in hearing bundle B at tab 7.
There is also an exhibit from that earlier public hearing, exhibit 3.13.5, which is a document entitled, "I'm too scared to come out of my room preventing and responding to violence and abuse between co residents in group homes". That document, dated November 2019, is also in the bundle. These three documents I have now referred to, as I mentioned, are at tabs 6, 7 and 7A respectively, of volume 1 of hearing bundle B.
The second witness, Leonie Swift, has provided a statement to this public hearing, dated 19 November 2021, identifier STAT.0489.0001.0001, appearing in hearing bundle B, volume 1, at tab 5. The annexures to her statement appear in hearing bundle B, volume 2, tabs 129 to 155.
The third witness, Susan Rewell, has provided a statement for this public hearing, dated 18 November 2021, identifier STAT.0488.0001.0001, to be found at hearing bundle B, tab 4. The annexures to her statement appear in hearing bundle B at tabs 123 to 128.
Finally, Christine Barbuto has provided a statement for this public hearing, dated 17 November 2021, identifier STAT.0483.0001.0001, appearing at hearing bundle B, tab 3. The annexures to her statement are in bundle B, volume 1, tabs 100 to 122.
Chair, as you are aware, all witnesses have been affirmed pursuant to an authorisation you gave Mr Hugh Pearce to undertake that task.
DR COLLEEN PEARCE, AFFIRMED
CHRISTINE BARBUTO, AFFIRMED
SUSAN REWELL, AFFIRMED
LEONIE SWIFT, AFFIRMED
CHAIR: Yes, thank you very much. Dr Pearce, Ms Barbuto, Ms Rewell and Ms Swift, thank you very much for coming to the Royal Commission to give evidence. We appreciate your attendance and we appreciate the statements that have been provided, either in 2019 or more recently.
Just to explain where everybody is, Commissioner Galbally is joining this hearing from Melbourne, Commissioner McEwin is with me in the Sydney hearing room on my right, and Mr Griffin is also in the Sydney hearing room. I will now ask Mr Griffin to ask you some questions.
MR GRIFFIN: Before I do that, Chair, can I take all concerned to the statement of Leonie Swift, which appears in hearing bundle B, tab 5, in particular to paragraph 118 of that statement. The last two sentences of paragraph 118 are to be deleted.
CHAIR: The sentence beginning "I believe" and the next sentence?
MR GRIFFIN: Yes, so from "I believe" to the end of the paragraph. That is as a result of discussions we have had with the Commonwealth which I need not go into in further detail at this stage.
CHAIR: I note the last two sentences of paragraph 118 of Ms Swift's statement are to be deleted. Thank you.
EXAMINATION BY MR GRIFFIN
MR GRIFFIN: Can I ask the three witnesses who have provided contemporary statements, respectively, Leonie Swift, Suzanne Rewell and Christine Barbuto, to indicate whether the contents of those statements are true and correct to the best of their ability, and if they could do that one by one, starting with Ms Swift.
MS SWIFT: Yes, they are correct.
MR GRIFFIN: Ms Rewell.
MS REWELL: Yes, they are correct.
MR GRIFFIN: And Ms Barbuto?
MS BARBUTO: Yes, they are correct.
MR GRIFFIN: Dr Pearce, could I commence by asking you to outline briefly what is the role of the Public Advocate in the State of Victoria.
DR PEARCE: The Public Advocate is an independent statutory officer with legislative powers to promote and safeguard the rights and interests of people with disability. Under the Victorian Guardianship and Administration Act, I have several functions, all of which relate to promoting the independence and human rights of people with disability, and protecting people with a disability from abuse, neglect and exploitation.
I have been the Victorian Public Advocate since 2007. The Office of the Public Advocate provides a range of critical services for people with a disability and people with a mental illness, including guardianship, advocacy, investigation, an advice service, and two volunteer programs, including the coordination of the Community Visitors Program. The office has around 100 staff and around 650 volunteers.
MR GRIFFIN: Dr Pearce, for the benefit of those following this hearing, can you indicate what is the role of a community visitor?
DR PEARCE: Community Visitors play a vital role in safeguarding the rights and wellbeing of people with a disability. I would describe them as being the eyes and ears of the community. They go into settings where often the only other people to enter into those settings are paid workers. Community Visitors visit eligible Victorian accommodation facilities for people with a disability or mental illness in their local area. They monitor and report on the adequacy of the services provided and, where possible, communicate with residents or patients to ensure they are being treated with dignity and respect. They visit to ensure that people are free from violence, abuse, neglect and exploitation, and have the opportunity to lead a meaningful and flourishing life.
MR GRIFFIN: How are Community Visitors selected and appointed in the State of Victoria?
DR PEARCE: So, the first step in recruiting a Community Visitor is the advertisement process. We advertise quite widely. Once we receive an application, we conduct an interview, reference checks are undertaken, and an applicant must meet and be assessed against the competencies set out for the role.
On the basis of the person being successful in interview and that they can provide appropriate documentation for identification and a national police check, they are invited to an induction and allocated to a regional convenor, who is a volunteer team leader in the stream they have selected. New Community Visitors are required to do at least 10 hours of visiting as a trainee, in addition to their streamed specific
On successfully completing their traineeship, the trainee is recommended to the Public Advocate and then, in turn, I recommend them to the relevant minister for a Governor in Council appointment. So that means they are independent appointees.
MR GRIFFIN: They are appointed initially for a three year period?
DR PEARCE: Yes.
MR GRIFFIN: And they are eligible for reappointment?
DR PEARCE: Yes.
MR GRIFFIN: Ms Swift, can I ask you, as the coordinator for the North division of Victoria within the OPA, how Community Visitors are organised to do their work and how are they supervised.
MS SWIFT: As Dr Pearce mentioned, there are regional convenors who are lead volunteers for an area and they usually cover about 30 to 40 houses in the disability stream. We have three streams of the program under the Disability Act, Mental Health Act and supported residential services. I will just talk about the disability stream.
We have regional conveners and they are responsible for 30 to 40 houses in the metropolitan area. Within that, there are panels which cover about 5 to 10 houses. There's a panel secretary who's a volunteer that heads up that panel, who is responsible for writing the report and ensuring that it reaches the Office of the Public Advocate, and also that they organise the visits and advocate if there is any or escalate any matters that need follow up.
Each panel usually has two to three people. Community Visitors visit in pairs and they can do unannounced or announced visits together.
MR GRIFFIN: Are you familiar with how many of the visits are preplanned as opposed to the unannounced visits?
MS SWIFT: Most visits are unannounced. During the last two years, because of COVID, a lot of the visits have had to be done either by telephone or video link, so they have been preplanned and organised with the houses. But generally visits would be unannounced. The only time you might do an announced visit is if you want to make sure that a particular resident is home or you want to talk to the house supervisor who heads up the staff in that house, to clarify some matters.
MR GRIFFIN: Can I go back to Dr Pearce. Section 30 of the Disability Act 2006 in Victoria sets out eight matters that can be inquired into in relation to the work that Community Visitors in your office do. Then, section 130 sets out five entitlements
of a Community Visitor when they are visiting a service provider. Subsection (1)(d) of section 130 says:
A Community Visitor may inspect any document relating to any resident, which is not a medical record, and any records required to be kept by or under this Act.
Dr Pearce, have you always understood that provision to say that a Community Visitor is entitled to inspect incident reports in a service provider's facility?
DR PEARCE: I have.
MR GRIFFIN: Have you ever had a service provider in Victoria, including LWB, dispute that entitlement under the Act?
DR PEARCE: Yes, and it's really very common that community visitors are unable to access incident reports at the time of the visit. There is a litany of excuses as to why that might be the case, anything from, "We keep our incident reports at head office", "They're on the computer and you can see them, but I'm sorry, I don't know the password", or "You can use the computer and spend all of your time hunting through our records and not speaking to the residents", "Oh, we've printed them off, they're in a folder but unfortunately we can't find them", or "I'm a casual and actually I don't know if there've been any incident reports either". So there is a litany of excuses. I think it's around 50 per cent of cases of visits where we would not be able to access incident reports, so 50 per cent of all visits.
MR GRIFFIN: Dr Pearce, you are moving a little ahead of me at this moment. My specific question was: has any provider, including LWB, ever disputed the legal interpretation that a Community Visitor is entitled to see the incident reports?
DR PEARCE: Yes.
MR GRIFFIN: We may be at cross purposes. Let me be more direct, as I am entitled to lead a witnesses.
DR PEARCE: Sorry.
MR GRIFFIN: Do I take it no one has ever said to your office, "You are not allowed to see these because you've got no legal right to see them"?
DR PEARCE: Yes, that is right. I couldn't tell you specifically at this point in time whether LWB was one of those, but there have been some providers that have disputed the fact that we are entitled to see incident reports.
MR GRIFFIN: On what basis do you recall they asserted they didn't have to show your visitors those reports?
DR PEARCE: Generally, they might say that they form part of their one of them would be when a staff member is involved in an incident, and they would cite privacy concerns. So they would say, "We can't show you the incident report because there's privacy concerns that would prohibit us from showing you that because staff are entitled to privacy". So that's probably the most common reason.
MR GRIFFIN: Let me move on with you, Dr Pearce
CHAIR: Sorry. Has anybody said the reason is that these don't records have to be kept under the Victorian Disability Act, as distinct from the NDIS Act?
DR PEARCE: I would need to take that as a question on notice. I am not sure.
MR GRIFFIN: Can I have put up a snapshot of the 2019, 2020 and the 2021 annual reports of the Community Visitors. Dr Pearce, can you see on screen those documents?
DR PEARCE: Yes, I can.
MR GRIFFIN: They seek to summarise what is contained in the annual reports, insofar as it refers to Community Visitors; is that correct?
DR PEARCE: Yes.
MR GRIFFIN: Can I take you to those briefly. It seems, when one compares 2019/2020 with 2021, the number of community visitors in Victoria has declined from 443 to 394; do you agree?
DR PEARCE: Yes.
MR GRIFFIN: The Active community visitors has declined from 400 to 337, and the total visits has declined over those two years from 4,142 to 3,718. Let me pause there. Are those decreases in figures largely referable to the circumstances of lockdown and COVID in Victoria?
DR PEARCE: Yes, they are. There would be some community visitors who took the opportunity to retire and perhaps even between lockdowns, others felt very reticent about visiting houses because of their age and their concerns about contracting COVID. It's also that many community visitors found that they had a preference for face to face visits rather than the announced telephone visits. They didn't find that as satisfactory or as rewarding. So there's a range of reasons, almost entirely directly attributable to issues related to the pandemic.
MR GRIFFIN: There's also a snapshot that indicates that in 2019/2020, abuse related issues are listed as 669, with a note "36 per cent increase on last year". Is that because you have categorised issues differently or was there, in fact, a jump in what I might call substantive abuse issues recorded.
DR PEARCE: I think it's both. Community visitors over recent years have had extensive training provided by an external provider in identification of abuse and in improvement in recording. So community visitors are better prepared now to look for abuse and to record it and so we have been able to see more abuse and to record it and report on it.
MR GRIFFIN: Very briefly, can you tell the Commissioners what sort of matters would come under the heading of "abuse" in those reports?
DR PEARCE: A significant amount of the abuse relates to resident to resident violence. That is really the most common of all of the abuse that we see. We see a very small proportion of staff to resident violence. It's not anywhere near as common. But the majority of it is resident to resident violence.
MR GRIFFIN: Can I finish up dealing with the snapshots by taking you to the abuse referrals. Firstly, to the Disability Services Commissioner, which are respectively 63 in the first year and 51 in the next; and, secondly, referrals to the NDIS Quality and Safeguards Commission, which were respectively 52 and 36.
Can I ask you to comment briefly, is the experience of your office different with the referral to the Disability Services Commissioner, as opposed to the referrals that are being made to the QSC?
DR PEARCE: Yes, but I should preface my remarks by saying it has taken us quite a while to train the DSC. By the time we were transferring responsibility to the NDIS Quality and Safeguards Commission, we had quite a lot of experience with the DSC, so we worked very well together and they understood how we worked.
The experience with the Quality and Safeguards Commission was new and a different level of experience. With the DSC, we would send in referrals as low, medium and high risk, but with the Quality and Safeguards Commission, we only send in the high risk referrals and we now refer medium and low risk directly to service providers.
MR GRIFFIN: Those figures I have just taken you to in the snapshot are, in a sense, crude figures because there are slightly different considerations which have applied in respect of referrals?
DR PEARCE: Yes.
MR GRIFFIN: Might I move on to Sue Rewell and Christine Barbuto. You have undertaken numerous visits to the LWB house called the Melbourne house in this hearing, haven't you?
MS BARBUTO: Yes.
MS REWELL: Yes.
MR GRIFFIN: Can I indicate to the Commission that I asked you to undertake a task of going through your reports to see if you could draw out some recurring issues. When I say "recurring issues", issues that might have been present in 2013 and might still be present today. Do you recall doing that exercise?
MS BARBUTO: Yes.
MS REWELL: Yes.
MR GRIFFIN: Can you confirm that the primary issues you identified were as follows: firstly, the high frequency and intensity of resident to resident violence and conflict at the Melbourne house?
MS REWELL: Yes.
MS BARBUTO: Yes.
MR GRIFFIN: Would either of you or both care to comment by way of elaboration as to the frequency and intensity of resident to resident violence in that house, based on your visits and reports?
MS BARBUTO: I have been visiting that house since 2013. I haven't visited since it changed providers, so all of my visits were done when the house was under the auspices of LWB. That house has had frequent and intense resident on resident violence for the whole of that period, with some periods where it was less evident than others. At times, we were satisfied that it was being managed relatively well, but the majority of the time we were surprised and unpleasantly surprised about the frequency and intensity of the violence between residents.
That was despite the fact that one of the initial residents in the early period I visited was moved to a different house because of her propensity for violence towards a number of the other residents. The person who was moved in, there was a honeymoon period, as I would term it, before there was violence again in that house that escalated from minor concerns again to major concerns.
I would suggest that the majority of my reports I think I visited over 20 times in that period. In the majority of my reports I would have commented on the level of violence that was occurring in that house.
MR GRIFFIN: Can I ask you to pause there. Do I take from your answer that two significant factors are who is living in the house and how compatible they are with the other residents, as a first factor, and, secondly, the quality of management and leadership in the house at a particular time?
MS BARBUTO: I would confirm that to be the case.
MR GRIFFIN: Did you find, to a certain extent, there was sometimes a correlation between who was in the house and the quality of leadership of the house with the extent of resident to resident violence?
MS BARBUTO: The leadership was very important and, yes, I would suggest that when the leadership was lacking or inadequate, the support staff didn't feel they had either the knowledge or the support to effectively manage what was happening in the house.
MR GRIFFIN: Can I explore that answer a little further. Did you on occasions feel that the frontline staff in the house didn't feel like they had sufficient support or backing from the management of LWB?
MS BARBUTO: Yes. We were told by the staff, and in fact some of our reports we wrote that staff said to us they didn't feel supported. There were times when staff needed to access records or reports from psychologists and clinicians and people like that, which may have assisted them with managing the behaviour, and they were not able to access it, possibly because
MR GRIFFIN: Pausing there, if I can. Were staff saying to you that this information was within the records of LWB but they couldn't get access to it?
MS BARBUTO: Well, we don't really know they didn't say it in so many words, but we knew, as community visitors, that the reports had been or we were told by LWB that clinicians had been involved and, therefore, there would have been and sometimes we were told that there had been final reports or the final report would be in in a couple of weeks, but when we visited the house, staff had no knowledge of these reports.
MR GRIFFIN: I will come back to that in more detail later.
Sue, the second identifier that you drew out of looking at all the reports was the quality of care and support provided to staff themselves. Can you tell us a little bit about what you observed and why you came to that view?
MS REWELL: I think I would say that all staff who worked in the house had the best interests of the residents at heart, but they were not given access they were not given the support and sometimes they were not given techniques to deal with the resident to resident abuse.
Very often, the only resolution that staff could do was to take one of the residents out, to put them in the car and take them out for a drive, and often not come back until after the evening meal, when most of the others were in bed.
There were times when we, as community visitors, saw lists of suggested activities, which possibly would have helped some of the behaviour, because it would have
kept residents busy, but staff did not seem to be aware of this. Yes, I think I would say that staff were not supported in their ability to deal with most of the time, in their ability to deal with resident to resident abuse.
MR GRIFFIN: The third issue which you drew out for us was the level of expertise and the formal and informal training of the support staff. Can I ask you to comment on that, Sue?
MS REWELL: Yes. I think support workers have to have a minimum amount of training and then usually you find that the organisation that manages the houses will have ongoing training available to them. There are two issues. One was LWB employed a lot of casual or agency staff, who would have had very minimal I think it's fair to say, very minimal training.
The other issue was that LWB, it appears, did not allow staff extra time to go to training sessions. So most of the time, staff needed to do it in their own time.
MR GRIFFIN: Can I address this question to all of the panel, if you are in a position to comment. What do you believe the basic level of qualification for a support worker in a house such as the Melbourne house, which had a number of residents with very significant behaviours of concern, should be?
MS BARBUTO: I would like to see them having the Certificate IV in Disability, and then I would like to see, if it's not part of that curriculum, that there be a focus on in service training that definitely addressed managing behaviours of concern and understanding triggers for behaviours of concern.
My experience with LWB is that few of the staff, as far as I am aware, had that Certificate IV when they commenced and some of them, I believe, had no qualifications at all, which is very concerning. My preference would be for that Certificate IV in Disability.
MR GRIFFIN: Does anyone else wish to comment on that?
MS SWIFT: I might add that, I guess, early in the 2000s, the department ran over half the houses in Victoria and they did require that staff had any ongoing staff had to either have that Certificate IV or they had to agree to undertake that training to that level. Also, some of the other big organisations required that.
That has now changed, of course. Under the NDIS, that's not a minimum requirement.
I used to work in managing the disability training unit within the department and I know that the Certificate IV level has a lot more about teaching people skills and encouraging the empowerment of people with disabilities, rather than a Certificate III level is more orientated to doing the minding of people, personal hygiene, basic manual handling, things like that, rather than actually equipping people, perhaps, to
deal with and support people effectively who have very complex needs.
MR GRIFFIN: Am I correct in assuming we have moved from a position where at least department controlled houses in Victoria had a mandatory educational requirement, to a situation now where it is at the discretion of the providers?
DR PEARCE: That is my understanding. If I could just add, what we are seeing here in Victoria is an explosion in the number of providers and many of those are not the big organisations like Life Without Barriers, and that possibly is a good thing. But when we do come in contact with many of these other providers, many of them have no experience at all in the disability sector prior to setting up some of these NDIS related businesses. So it's not just that staff are unqualified, it's also that they have no experience or understanding of issues related to people with disability.
MR GRIFFIN: Dr Pearce, when you say an explosion of providers, are you able to quantify to what degree there has been a change in the Victorian environment?
DR PEARCE: I couldn't give you numbers, that's something you would have to ask NDIA, but certainly the number of providers that are coming to the attention of my office, either because we have had anonymous calls to our advice line with allegations of abuse, or stories of inadequate service provision, we will ask around the office, "Has anybody heard of these organisations?" "No". None of us know who they are.
MR GRIFFIN: Dr Pearce, I don't want to stray too much from the scope of this public hearing, but based on your personal experience, what is the nature of the complaints coming in in relation to new providers in 2021?
DR PEARCE: Well, many of them set up what they call private rental accommodation, and I do dispute whether or not it's private rental accommodation, so it does mean that community visitors cannot visit. There have been serious allegations about people being lured out of either supported residential services or SDAs into accommodation, where the substantial allegation is that the NDIS package has been the expenditure has gone up very, very quickly over a short period of time. When the package is exhausted, often in a very short period of time, then they are returned either to supported residential services or are threatened with eviction. Because they are described as private rental accommodation, it is unclear what their tenancy rights are.
MR GRIFFIN: Just to finish on this topic, Dr Pearce, is it your suspicion that some providers may be, to use my term, gaming the system and when it no longer suits them, returning the resident to some other form of accommodation?
DR PEARCE: Yes, and just two very quick examples. One person with a package of around $600,000, prior to going into private rental accommodation they had 24/7 care, but the provider said they were too difficult to manage, so they put in two people 24/7. Their package was finished, used up, within seven months and they are
now being threatened with eviction. That is one very recent example.
The second example has just slipped my mind, so I might have to come back to you on that.
MR GRIFFIN: Sue and Christine, can I return to the factors you drew out of your reports about the Melbourne house. The fourth factor identified was the frequency of staff turnover of both support workers and management. Describe to us what you observed about staff turnover and management turnover at different times.
MS BARBUTO: There were times when the house was completely staffed by casual and agency staff, with no core worker present and no house supervisor present. There were periods of time when the program manager position was vacant. There was an amount of staff turnover. Not terribly unusual in the sector but at this house it seemed to be that it was more than most other houses. I can recall an occasion when I visited the house, there was no house supervisor, there was one to come on in a month's time and three experienced staff had left and there were three new staff who were described to me as good but not experienced.
That was not uncommon, especially throughout the first perhaps four or five years that I was visiting that house. It is still the fact that there are quite a lot of casualisation and agency staff used. But I would say it is not only LWB who has that as part of the way they deliver services. It is not uncommon in some of the other houses I visited as well.
MR GRIFFIN: On the occasion you went to the house and there were no full time permanent staff there, the only staff were casual or agency, did you raise that issue with LWB?
MS BARBUTO: I believe it was in my report that we were disappointed to see the number of agency staff and the fact that all of the residents from the house, except for one resident who had been temporarily relocated, were being supported by people they did not know.
MR GRIFFIN: How important, in your observation, is it for residents to know and be familiar with the support workers who are helping to take care of them?
MS BARBUTO: I think it's crucial to good management of the house. The residents are faced with people coming and going a lot when they are in that kind of accommodation, and they need to be familiar with people, with the staff, and the staff need to be familiar with them to provide appropriate support.
When you have agency staff coming in, they very often will not even have time to read a behaviour support plan, let alone appropriately support a resident. It is upsetting for the resident and they often will find that their heightened behaviours increase and the number of incidents of resident on resident violence increase.
We have had instances where residents have been sent off to their day placement on the wrong day and where residents have turned up at their day placement not in their own clothes but in somebody else's. Those kind of things, to me, are violating the client's right. It is very undignified to be put into someone else's clothing.
So I think it is to the detriment of the service when we don't have consistency of the staffing.
MS REWELL: Can I just add as well that
MR GRIFFIN: Yes. Just take a moment and have a drink, we are all subject to that, as the Commissioners have observed with me over the last few days.
MS REWELL: Can I just add that LWB had a very complicated structure of house supervisors and team leaders in the time that I visited. The names changed very often. They were practice leaders, there were house supervisors, there were team leaders, there were program managers. They probably all did similar jobs, but the names kept changing.
The other practice that LWB, and some other houses some other agencies have, is to have a practice leader or a supervisor over three houses. So that person actually doesn't work on a day to day basis or a week to week basis in the house. They manage three different houses, so they have to keep tabs on all sorts of things. I don't believe that's a good way for them to be able to either support staff or supervise staff, or to keep tabs on whether the residents are being cared for in an appropriate way and having their best quality of life.
MR GRIFFIN: Did the management you just described of LWB and its structure differ from the houses of other providers that you regularly visited?
MS REWELL: It varied. Different agencies have different ways of structuring things. I do think that LWB, particularly in the beginning, had many, many changes which were probably more than other agencies, and that applied to all LWB houses in the Northern Metropolitan region.
Sometimes support workers in the houses will change but the management doesn't necessarily, and I think it is really important that the upper management know what they are doing, they know about disability, they know about the people who live in the houses and they know the needs of each particular house.
CHAIR: I'm sorry to interrupt but Paul, in his evidence earlier, suggested that one problem with LWB was that it was run, in effect, centrally from Newcastle and the Melbourne house, obviously, is in Victoria. Are you able to make any comment on that organisational element of LWB, compared with other service providers?
MS REWELL: I would definitely agree with that. The other service providers that I had dealings with are all based in Victoria. One example of LWB being based in
another State and not necessarily knowing Victorian regulations, or not knowing what's happening on the ground, was that LWB in the beginning the household budget for each house was managed centrally and there was a policy that staff support workers in the house were not able to access cash.
So, there were times when we visited the Melbourne house and possibly other LWB houses, where staff would say to us that they were taking residents out for dinner because they had run out of money to buy supplies. There were times I think Christine would agree with me when we visited the house and there was very little in the fridge. Staff would say to us support workers would say to us, "Oh, it's almost the end of the week" or "the end of the budget, we need to go and collect money".
MR GRIFFIN: Just pausing there for a moment, am I correct in recollecting that on occasions staff would say they had to physically go from the house to the LWB office to get cash to go and buy things?
MS REWELL: Yes.
MR GRIFFIN: This was in the period from 2013 onwards?
MS REWELL: Yes. And I believe that was because the management was centralised in New South Wales and the policy was that support workers or people in the houses were not able to access cash. That was their policy, that only the management could deal with the cash.
So in Victoria, it was a ridiculous situation where one support worker had to leave the house and drive across Melbourne to collect the money for the household for the following, I think probably fortnight. I'm not sure. I can't quite remember.
MR GRIFFIN: Picking up something you said a little earlier, you were describing how one management person might be responsible for three houses. Did that person visit each house each day?
MS REWELL: No. I think they were expected to visit once a week, but from what staff told us, that didn't necessarily happen. Would you agree?
MS BARBUTO: Yes, we queried how frequently a program manager should visit the house, and we were given a we were told that they should be there one to two days a week. When we spoke with staff, they told us that most of the communication was via email. We queried that with LWB and we were told that, "Oh, that was the best way to get information to all of the support workers". We were not we didn't think that was the best model of support.
MR GRIFFIN: Did you find there was a discrepancy between what LWB said they were going to do and what the staff were telling you they actually did, in terms of management?
MS BARBUTO: Yes, yes.
MR GRIFFIN: The fifth and sixth matters you identified, from looking through your reports, I think we have touched on sufficiently, but I will indicate them for the purposes of the Commissioners. The fifth was the frequent reliance on casual and agency staff, and the sixth was the apparent lack of leadership and support provided to workers at the Melbourne house by management.
The final matter you identified was missing, inadequate and/or inaccessible documentation and records. Can you describe to the Commissioners what a typical visit would look like when you had difficulty accessing records?
MS BARBUTO: So we would attend the house and ask to look at the documentation, as we are allowed to do under the Act. We were not denied access to the physical documentation that was held there, but often there would be pieces of information that should have been there that weren't, or information that was out of date, or documents that were out of date.
It was very confusing because in the earlier period, LWB had two to three folders per resident for different parts of the system and different documentation, and there was no consistency. We could look at one set of one particular folder for one resident would have something different in the same folder for another resident, so that was confusing.
But the thing that was most hampering for us was our inability to access Critical Incident Reports, because this is fundamental to us actually looking at the frequency and the severity of incidents in the houses. We very often were not able to access the Critical Incident Reports at all, despite the protocol suggesting that they should be held in the house so that we could see them.
There would often be individual support plans that were out of date or behavioural support plans which hadn't been looked at or staff weren't actually aware of them and how to actually utilise them. So, yes, it was confusing to us because there was no consistency in the record keeping. It was too much in terms of documentation, there was not enough cross referencing and there were missing documents, and I'm particularly referring to the Critical Incident Reports.
MR GRIFFIN: Let me unpick that answer a little. What was your expectation when you went to the house as to what categories of documentation would be there, if you needed to see it? You would expect to see Critical Incident Reports?
MS BARBUTO: Yes.
MR GRIFFIN: Would you expect to see any response to those reports kept at the house?
MS REWELL: The Critical Incident Report should not only describe the incident, but it should also describe management's response to that and an outcome from the Critical Incident Report. Very often at that house, if we saw a Critical Incident Report at all, it may be just one line that describes an incident, or the incident we may find out there had been an incident by looking at other documentation, go looking for a Critical Incident Report and it would be missing. But they were meant to be held at the house for us to be able to view them, or we should have been able to have access to them online.
MR GRIFFIN: Under the Act, you are entitled to look at a resident's medical records with the consent of the resident?
MS BARBUTO: Correct.
MR GRIFFIN: Did you ever have cause to do that?
MS BARBUTO: I can only recall one occasion and it was not at that house.
MS REWELL: No, I don't think I ever did.
MR GRIFFIN: If you wanted to get some information about a resident's behaviours of concern and, indeed, the range of their disabilities, was that information available at the Melbourne house when you visited?
MS BARBUTO: Yes, there would have been a client profile. It has different names, but there would be a client profile that gave a bit of background information about the person and what their disabilities were. I would expect to see that and I believe I did see that at that house.
MR GRIFFIN: Would you also see some documentation about what their supports were and what activities they were meant to be involved in?
MS BARBUTO: That was variable, but in the main yes.
MR GRIFFIN: Later on, I think LWB went to an electronic form of record keeping, to some extent, and that was during this time, wasn't it?
MS BARBUTO: Yes.
MR GRIFFIN: I think the program was called i Sight; is that right?
MS BARBUTO: Yes.
MR GRIFFIN: You smile. Did that improve your access to records so you could do your job when they became electronically recorded?
MS BARBUTO: No.
CHAIR: Why not?
MS BARBUTO: Once the LWB moved to i Sight, we had no ability to look at the Critical Incident Report at the house because when a Critical Incident Report they were no longer recording them on paper or leaving paper copies in the house. So once it went on to i Sight, we were not given access to the computer to be able to look at the reports at all. And that persisted for years.
MR GRIFFIN: When you say you were not given access to the computer, what do you mean by that? Did the house not have
MS BARBUTO: The house had computers. However, when it came to Critical Incident Reports, the Program Leader could see them, the house whatever they were called at the time, the House Supervisor or Team Leader there could access them, but casual staff and agency staff could not access them once they were on the computer at all. And once the matter had been dealt with, even the person who had entered the data couldn't actually access the Critical Incident Report at the house.
MR GRIFFIN: Would you just repeat that last sentence? The person who inputted the data couldn't then access it?
MS BARBUTO: No. Once it had been dealt with and the matter was deemed to be finalised, they had no more access to them. That's my understanding.
CHAIR: Did the Office of the Public Advocate, one way or another, seek access to the electronic material and, if so, what happened?
MS SWIFT: We certainly did. I think through liaison meetings, also through the Community Visitor reports, of course, these issues were raised. There was a meeting in May 2019 which Dr Pearce chaired and we met with senior people from the agency. At that meeting, I minuted that Chris said that they hadn't been able to get access for 18 months through i Sight. So that was something we really pushed with them. We did get through a summary of incidents after that time.
But it has still been quite frustrating, right up until today. There have been particular managers who have sent us things, upon request, but as an ongoing thing, it's not possible for Community Visitors still to access incident reports.
During the COVID time, of course, they have mainly been doing remote visits. Some agencies have given us electronic summaries of incidents, but we haven't been able to obtain those from Life Without Barriers.
MR GRIFFIN: The Chair has jumped a little ahead of where I was going, but let me deal with this issue now. You are referring to a meeting between the OPA and LWB management on 24 May 2019?
MS SWIFT: Yes, that's correct.
MR GRIFFIN: For the Commissioners and those involved in the hearing, the minutes of that meeting are identified as OPA.9999.0004.0378. They appear in hearing bundle B, at tab 122. Before we have a break for the afternoon, I will just go through some of the details in that meeting.
Firstly, it was attended by Ashley Creighton, the national Client Services Manager of LWB; is that correct? You were present, Dr Pearce, I will perhaps ask you.
DR PEARCE: I'm sorry, I didn't hear that.
MR GRIFFIN: You were present at the meeting on 24 May 2019?
DR PEARCE: Yes.
MR GRIFFIN: It's correct that Ashley Creighton, the National Client Services Manager of LWB, was present?
DR PEARCE: Yes.
MR GRIFFIN: You understood that he had actually flown down for the meeting?
DR PEARCE: Yes.
MR GRIFFIN: It is outlined in the minutes the sorts of things that were discussed, but was that meeting convened, Dr Pearce, because the OPA was concerned about a whole range of issues involving LWB?
DR PEARCE: Yes, that's correct.
MR GRIFFIN: The broad concerns were discussed as outlined in the minutes, and it was indicated that those concerns about LWB were not confined to the Melbourne house; that's correct, isn't it?
DR PEARCE: Yes.
MR GRIFFIN: During that meeting, Christine Barbuto outlined the experiences she had had of visiting the Melbourne house and other houses, the inability to view incident reports for a period of about 18 months; is that your recollection?
DR PEARCE: Yes.
MR GRIFFIN: That 18 month period had been since LWB introduced the i Sight electronic system?
DR PEARCE: Yes.
MR GRIFFIN: That complaint was outlined to Mr Creighton and others, as outlined in Christine Barbuto's statement at paragraphs 128 to 129. Was there also a complaint raised at that meeting about LWB's response to issues of resident to resident violence and abuse?
DR PEARCE: Yes.
MR GRIFFIN: What was the nature of that complaint that was made to the senior management of LWB?
MS SWIFT: I guess there was a number of issues, and Chris can talk about this because she had written a statement that was tabled at the meeting. But some of the issues were because there had been some assaults in the house, that there hadn't they hadn't been reported to the police and there hadn't also, medical support wasn't sought immediately.
There was a resident who had a chair broken over her head by another resident. She actually sustained a fractured finger when she was shielding her head. Chris, I guess, noted that brought that to the attention of the managers who were present, that there hadn't been you know, she wasn't checked for concussion or any other sort of injuries after that.
MR GRIFFIN: You were told that resident had been hit over the head three times with a plastic chair and the chair broke, and
MS SWIFT: Correct.
MR GRIFFIN: despite that, there was no immediate X ray of the victim and there was no concussion test, as far as you were aware; is that right?
MS BARBUTO: As it was reported to us by staff and from what we saw, yes, that's correct. The incident, I believe, happened on a Saturday. A locum was not sought until the following day. Then it wasn't until the following Thursday that an X ray was taken of her hand to determine that that finger had actually been fractured. As far as I'm aware, there was no check of her for concussion, despite the chair having been broken over her head.
MR GRIFFIN: You understood she had put her hand up to try and fend off the assault?
MS BARBUTO: She had been trying to shield her head, I believe, like so, was described to me, and the chair hit her on the hand. I don't have further detail but, to me, anything where there has been trauma around the head, I would have thought perhaps concussion should have been assessed.
MR GRIFFIN: Can I ask you, Dr Pearce, broadly, what was the response of LWB
at that meeting to these concerns?
DR PEARCE: There was a lot of I thought the meeting was very positive, broadly. But in terms of response to those specific issues, I'm going to go back to Leonie or Sue just to say what was your view about that?
MS SWIFT: I remember we had to chase up afterwards about the incident report still. So there were actions agreed in the meeting that weren't necessarily immediately followed through. There was a State Manager at the time or a State Director, I'm not sure, who left the position shortly afterwards. I don't know the circumstances of that.
But, yes, I think there was some improvement or at least I felt there was a greater understanding that perhaps some of the people at the senior management level, like the quality assurance person, the National Client Manager hadn't been aware of some of the issues. It was discussed in a number of their houses and there were issues related to staff training, for instance, that were discussed, and a follow up of some other residents. So I think yes, I felt it did help move things along.
DR PEARCE: The meeting itself I thought was positive, but it's really what occurs afterwards. You can have all kinds of very positive meetings, but it's what occurs afterwards. Leonie has just described having to chase up and follow up things afterwards, and not necessarily being significant change, particularly in relation to access to incident records.
MS SWIFT: This was when LWB only had five or six houses in the State. Shortly after that, they were allocated another over 100 houses from the department. So I guess we were a bit surprised about that, because of the context.
MR GRIFFIN: That is something that no doubt we will take up with other witnesses, but it does seem a trifle mind boggling that you could have this level of concern about both the Melbourne house and other LWB houses, and shortly after they are entrusted with, you say, 100 houses?
MS SWIFT: Well, over 100.
MR GRIFFIN: Before we break, Dr Pearce, in the minutes when referring to incident reports, under tab 122, the response given under the heading "Action" is:
Ashley to produce incident summary report with fields required by the community visitors.
That was a positive outcome, I take it?
DR PEARCE: Mmm hmm.
MR GRIFFIN: But then:
LWB to explore how community visitors can also access information at the house.
Those of us with my background become a little concerned about the word "explore". It doesn't seem to commit anyone to doing anything. What happened in relation to access to information at the house post the 24 May meeting?
DR PEARCE: I am again going to defer to the people who actually visited the house for that.
MS BARBUTO: Not very much. We still are not were not able to visit to look at records at the houses, in the main. A new Program Manager was appointed during that period and she gave me an undertaking that she would provide me with Critical Incident Reports. However, they weren't provided to the house, they were emailed to me. They did give significant information about incidents and also about how management would follow up, but they were not unless I distributed them to Community Visitors, they were not made available to us at the houses.
MR GRIFFIN: Was it explained to you why what you were being given was not being given to the relevant house?
MS BARBUTO: No, I don't remember there being an explanation for that. I think that part of it was that the relevant people at the house, the support workers at the house, the house Team Leader, would be able to look at the records online. I personally think that when there has been a critical incident, all of the support staff need to be aware of the nature and the detail, because if they come in at the end of a shift, they want to know and one of the residents is heightened, it would be very useful for them to know what the aetiology of that was. I think they should be held there not just for Community Visitors but also for the support workers to be able to have a look at the entirety of the incident and the response.
MS REWELL: I would agree with that.
MR GRIFFIN: I might ask the Chair whether we want to take a short break and we will be back
CHAIR: Yes. I am wondering whether the panel would like to have a short break or whether you would prefer to continue. If you would like a short break, we certainly can do that, or we can continue and perhaps that would allow a slightly earlier finish. Whichever you prefer. You might have to make a majority decision, or else Dr Pearce will have a casting vote.
DR PEARCE: I think there is an agreement that they would like a break.
CHAIR: Let's have a break of 10 minutes and we will resume at 3.30 Australian Eastern Daylight Time.
ADJOURNED [3.20 PM]
RESUMED [3.30 PM]
MR GRIFFIN: In the minutes of meeting I have been referring to, under point 5, there is a reference to reporting against resident goals. Do I take it that one of the roles of the Community Visitor is to see whether the resident is receiving the support that they require and might be nominated in their plans?
MS BARBUTO: Yes.
MR GRIFFIN: When was that discussed at the meeting, LWB undertook to provide information sessions on goals to Community Visitors. What did that mean when they said that?
MS BARBUTO: I can't remember that. I think the training that was needed was for their support staff to understand how to write goals and how to account for progress against goals in their monthly reporting. I think that may have not been minuted as it was intended.
MR GRIFFIN: When you looked at the records at the Melbourne house, did you find it difficult to find any record of what the goal was and what progress had been made towards it?
MS BARBUTO: The support staff, I don't believe, were given sufficient training in how to create an action plan, how to put measurable goals in it, how to measure those goals and how frequently to report against them. I think it was an inadequacy of the training on how a plan is to be written and reported against.
So they would have a very generic goal that you couldn't measure. It might be something like Briony wishes to learn how to cook. Now, that's pretty difficult to measure. Whereas if you say Briony will learn one recipe per month for three months because she wants to learn how to cook, that's a measurable goal. They didn't know how to write plans and how to write measurable goals. It is hard to report against a generic goal.
I think that was the thrust of that particular item at that meeting. Rather than LWB providing training to us, they needed to provide it to their staff.
MR GRIFFIN: Had more detail been included by identifying a goal and then identifying what, if any, progress was made towards it, that would have assisted your role?
MS BARBUTO: Absolutely, because one of the aims is to provide us with support to residents. Active support consists of helping people to develop their skills to their optimum. So that's why you have goals. You say, well, this is a skill that this person wishes to enhance and here is how we're actually going to do it. They needed to know how to do that, so that you could see they were being actively supported and not just passively managed and cared for. The care is really important, but so is maximising people's potential, and that was the point of having those kinds of plans and goals.
MS SWIFT: I think, when I have a look at the minutes now, that action was in relation to a new quarterly format that had been introduced into the Life Without Barriers houses. I think Chris was reporting, as a CV, that staff weren't clear about that format and how to use it. So I think it was in that, there was some discussion about how that format was going to be used. There was something for us to learn, too, about what was proposed, but I don't know that there was any information session.
MR GRIFFIN: Do I understand from that that the new format may have been a good idea, but unless the staff knew what it was and how to use it, it was rather pointless?
MS SWIFT: Yes. I think there were times when there was a lot of documentation that staff had to fill out. I'm just taking this from the reports that I read, but it varied. New things would get introduced and staff sometimes had to fill out a lot of things, but maybe didn't have the time to do that or didn't really understand how to do that.
MR GRIFFIN: Go ahead.
MS REWELL: I think that's very true. There were times in our reports when we mentioned that staff had a huge amount of paperwork to be filled out, some of which seemed to be important, such as mapping body you know, people who are prone to bruising and that sort of thing, that's really important that those sort of things are documented.
But, on the other hand, there were lots of checklists that seemed to us to not really mean anything very much, and staff didn't have weren't given time to do that at the end of a shift. So often it was taken as part of the shift, which took them away from the care and interacting with the residents. But it also meant that other staff who came in just didn't have time to look over those sorts of things, to find out what had happened the day before, what activities were provided.
MR GRIFFIN: You have raised an issue I was coming to next. Did you ever have any discussion with the staff about whether they had a system of handover between one shift and the next?
MS BARBUTO: I don't recall there being a formal protocol for handover. I believe it was there would be things written in the communication book. They would
mostly be around a person needs to go to the GP, or this is happening tomorrow, can you make sure they have money, rather than a handover of events that might have transpired through the day. The other handover was verbal, support worker to support worker.
MR GRIFFIN: I assume most of you are familiar with the handover process in a hospital between nursing staff. In short, it involves two components; documentation about what has happened on the previous shift, and a verbal explanation of any concerns that might be relevant to incoming shifts. Is that the sort of thing you would expect to see, ideally, in a handover in a group home?
MS BARBUTO: That's ideal. On the other hand, the support workers don't really have an opportunity to read very much, so there would need to be a succinct document, not pages and pages. This is one of the issues with some of the behaviour support plans. They can be quite expansive, but a dot point would be much more useful for staff coming in with a handover of several minutes, not half an hour.
MR GRIFFIN: Did either of you understand what LWB's policy was about calling the police in the event of violence between residents?
MS REWELL: I didn't ever see a written policy. There were times that we were again, because we were not able to access documentation, we often would hear staff say that an incident had occurred, and presumably had been documented, but we didn't see it. And they would say the police were called but, again, I don't ever remember reading in a document or a Critical Incident Report that police had been called.
MR GRIFFIN: You are not aware what, if any, threshold there may have been?
MS REWELL: No, I don't think so.
MR GRIFFIN: I'm sorry to talk over you.
MS SWIFT: I was just going to say I know there was an instance where police were called when a staff member was injured. That was early on in 2013, and an ambulance was also called in that instance.
MR GRIFFIN: But you are not familiar whether LWB had a policy where an assault might occur as between residents?
MS SWIFT: No.
MS BARBUTO: I recall asking that question at the meeting and I believe it was Ashley who said the policy was for police to be called if there was a serious incident. I am aware that police had been called to the Melbourne house for one of the male residents who was aggressive. I recall writing that in a report, that they had been called at least twice with respect to him.
At a much later period, it was confirmed that the protocol was to call police and it had been an oversight not to call them when the incident of one resident hitting the other one with the chair had occurred, that that was an oversight. So I believe that that policy was to call police, but I didn't ever see it written down.
MR GRIFFIN: There is also a reference in one of the reports from 3 October 2019, which says, in summary, that the community visitors were alarmed because they counted eight incidents of missed medication in approximately two and a half months, which included the double dose meds for both of two residents, and somebody continuing on a medication treatment for some considerable number of weeks after they should have been ceased on it.
As a community visitor, and given the fact that you had only access to medical records with consent, did you have access to records about medications that residents might be required to take?
MS BARBUTO: No.
MS REWELL: No.
MS SWIFT: Medical records are defined under the Disability Act and it's referring to doctor's notes. So community visitors can view a number of other things related to matters like health checks and medication.
MR GRIFFIN: If a resident had a list of medications they were supposed to be taking, could a community visitor know what the medications were and what the frequency of taking them were and what the dosage was? Was that information available?
MS BARBUTO: If we wanted to seek that out, we could have.
MR GRIFFIN: Would you normally have to have some particular reason to make that request or would you do it routinely, as part of an informal audit?
MS BARBUTO: That would be dependent on the circumstances. The medication would be listed in the residents' profiles and we certainly had access to residents' profiles, so we would know what medication they were on. If I wanted to know dosage levels, I would ask a support worker. However, I'm not a medical person, so dosage level is probably not something that was terribly meaningful to me. I might have been familiar with what the medication was and what it would be administered for, but the dosage level I perhaps would not have even inquired about because it's not meaningful to me.
MR GRIFFIN: Would that be a matter normally between the management of the house and the general practitioner or other clinician that had prescribed the medication?
MS BARBUTO: Yes.
MS SWIFT: Yes.
MR GRIFFIN: I would like to move on to some final systemic issues and see if you have any observations you can assist the Commissioners with.
Firstly to you, Dr Pearce, the rollout of the NDIS has affected issues we have been looking at at this hearing. Have you formed any views from your position as the Public Advocate as to how the NDIS rollout differs from pre NDIS in relation to the matters we have been discussing?
DR PEARCE: Yes. Firstly, I think the NDIS has made a significant improvement in the lives of many Australians with a disability, and I don't think we can forget that. But for people with complex presentations, particularly those with cognitive impairment, there hasn't always been the same outcomes for them. There are a number of reasons for that.
Firstly, we have seen the move from block funding to a market driven insurance model, which has left some of the most vulnerable people at risk. There is no longer a service provider of last resort. In the past, that would have been the State Government, but in a market driven insurance model, we don't have that same provider of last resort.
MR GRIFFIN: Can I ask you to pause there, Doctor. When one had a State system and perhaps a private system alongside it, did that enable each to learn from each other because they were different models often?
DR PEARCE: Yes. I think the State played a very strong leadership role and had a very strong oversight role related to matters. We certainly didn't see the same number of this diversity of new service providers in the system. As I said earlier, that is not necessarily a bad thing, but they would have been known to the department, they would have been registered by the department, they would have been brought in to that system.
I think the other thing is, of course, when there were issues where we had a person who was significantly at risk of homelessness or perhaps incarceration, there's an adage, "Never go to a minister with a problem when you don't have the solution." So the State would often find a solution and had the ability to draw in access to housing, or could perhaps find additional funding that might not otherwise have been available. And that is not the case anymore.
CHAIR: I should indicate that this was one of the themes of Public hearing 14 that was held in Adelaide, which addressed the differences between the State system that predated the introduction of the NDIS in that State. So we did hear some evidence about the comparison between what occurs under the NDIS and under previous State
systems. So it is something we have heard about before.
DR PEARCE: Perhaps just then adding to that, we have seen the issue of a shortage of skilled behavioural support practitioners in Victoria. This can contribute to long delays in obtaining NDIS funding, and even if there are appropriate services available, there can often be a lack of funding in the individual's package. We see delays in either getting alternative accommodation or funding, and that means participants can remain in situations of violence and abuse for very long periods of time.
I just want to raise one other NDIS related matter and that is the role of the support coordinator, because they are quite pivotal. We are getting increasing numbers of calls from support coordinators to our advice line. Many of them raise issues of abuse of people with a disability, and they are really critical in the system. They will say things to us like, "Can I report this matter? There's privacy considerations and I'm not sure whether I can tell anybody". They'll say, "I'm not funded to follow up this role. Perhaps if I tell your advice line, you could do something about it, it's not my role". Or some people will say, "I have a very good relationship with the parents or the service providers and I don't want to jeopardise that because I'm the only person that does".
Concerningly, when you have this market driven insurance model where people are dependent for their incomes, people will say, "I don't want to lose my job as a support coordinator because that's my income". So we see a pivotal role of the support coordinator, who is in a position to report many issues and they are simply not well, not always, but I'm really surprised by the number of calls we are getting in relation to the role of support coordinators.
MR GRIFFIN: Members of the panel, I want to leave time for the Commissioners to ask questions, so I will cease my questioning now and invite the Chair to take over.
CHAIR: Thank you, Mr Griffin. I shall ask Commissioner Galbally first if you have any questions of the panel.
QUESTIONS BY THE COMMISSION
COMMISSIONER GALBALLY: Thank you very much, that was really interesting. In terms of your visits, did you always I'm sure you did, but I would just like to hear more about your discussions, your extensive and deep discussions with residents themselves and what you heard from them from the Melbourne house?
MS REWELL: I think when I did my visits, and most community visitors would do the same thing, we always greeted people. It was their home that we were going into and I think we tried to be respectful of that. So as much as possible, we spent time
with the residents. That's one of the frustrating things sometimes, when we have to be in the office looking at documents or searching for documents, when we could be sitting out in a common area, talking to residents or observing what's going on. Some of the residents have limited verbal communication, so it takes longer to interact with them.
But as far as I'm concerned, it was always very important to spend time, probably more time with the residents than with support workers. But again, particularly with LWB houses, because of the lack of documentation, or the ease of being able to get to documents that we needed to look at, yes, our time was limited.
As I said, I think we were always respectful that it's someone's home, so you don't sort of go in and expect to spend three hours there. We were interrupting their normal flow of routine and I suppose in a way we were interrupting support workers with their work, so we try and limit the visits, but always we speak to the residents, we interact with the residents, I think.
COMMISSIONER GALBALLY: Did you specifically speak to Katie and Stevie, the two who were accused, anyway, of being violent? Did you ask them about that, and what was frustrating them, and what they didn't enjoy in the house?
MS BARBUTO: Stevie would not have been able to articulate that particularly well. Her communication is limited and she won't necessarily respond to what you ask. She will generate something herself rather than necessarily answer the question. So it would be difficult to ask her.
On the occasions when she was heightened, it would be impossible to interact with her. When she was heightened, I would have retreated to the office in that house. It has what I would term to be a barn door, in other words, a half door that you could close half of it or you could close the whole of it. I certainly would close the bottom half of that door, because when Stevie's heightened, Stevie is quite confronting and likely to strike out, and it's not possible to engage with her when she was in that state. So asking Stevie about that was potentially not really going to add anything to what we learned.
Katie is different. Katie is much more verbally proficient and would be able to tell you what she likes and what she dislikes. On occasions, when she was there, I would ask her, "What's it like living in this house?", and she would be able to provide an answer to that. I haven't seen Katie in a heightened state, so I am not sure how possible it is to engage with her when she is heightened.
COMMISSIONER GALBALLY: Just to add to the question, I was very struck by your comment, Ms Rewell, about developing skills to the maximum. I understand that community visitors have to look at violence and abuse and those issues as a priority, but developing skills to the maximum seemed to you to be very important. Is there a reporting on that and whether these environments do have a way, a really systemised approach to developing skills to the maximum? You sort of indicated
MS REWELL: I think some agencies do it really well and we do, in our community visitor reports, occasionally write a good practice just a paragraph on good practice. Very often it is encouraging people to make their own breakfast if they are able to, things like that. I think it's important that the people that we visit are not just cared for, but they do and their activity programs and their activities in general and their interests as well, are very often followed through. We don't always unfortunately, probably because of the brevity of our visits and also the constraints of our report writing, we can't always report on everything. But if there is something that's outstandingly you know, that is great at developing people's skills in a particular way, we do report on it, yes.
COMMISSIONER McEWIN: My thanks to the four of you. My one question is perhaps directed to Ms Barbuto and Ms Rewell. It is an extension of the first question that Commissioner Galbally asked you. I'm specifically interested to know what did the residents tell you, if ever, about the opportunities they had for meaningful participation and inclusion in the wider community? Did you ever have them tell you that perhaps they weren't getting the opportunities they wanted? Thank you.
MS BARBUTO: I don't recall having that conversation with the residents. We would be able to see what activities they were engaged in, and sometimes there would be something written in their plans that would indicate that they wanted to, for example, go to three AFL matches in a year, and I do recall noting that that was one of the goals and that the person hadn't been to any. So I guess there were times when things that were written on plans of activities were not actually followed through.
But I'm not hypercritical of that at that house. There were opportunities for people to participate in the community outside of their day placements. They would go bowling, for example, or go to the park for a picnic. I wouldn't be critical of the opportunities that they had for community participation in the main.
MS REWELL: I would agree with that.
COMMISSIONER McEWIN: I might just say, generally perhaps meaningful inclusions means different things, but generally did you get the feeling that maybe meaningful participation wasn't occurring?
MS BARBUTO: In community activities?
COMMISSIONER McEWIN: Like wider, the local community festivals, the local shopping centres, that kind of thing.
MS BARBUTO: No, I think they did have access to things that were going on locally.
COMMISSIONER McEWIN: Thank you, all of you. Thank you, Chair.
CHAIR: Thank you. The work that you do, the very valuable work that you do, seems to be very closely related to the functions of the NDIS Quality and Safeguards Commission. What is the relationship between the Office of the Public Advocate and community visitors specifically, and the NDIS QSC?
DR PEARCE: Of course, we have a relationship and I have to say that we both work hard to maintain a meaningful productive and cooperative relationship, so my comments are really systemic issues and they relate to structure, and mostly to information sharing provisions. I do note there have been some recent amendments that we do hope will mean that there will be better and more extensive ability for the Commission to share information with us. But if you look at currently what it means, and in particular you look at our agreements on information sharing, you will see that it's very one way. We are welcome to provide as much information as possible to the Commission, and there is very little guarantee that we will get a response.
Now, we are working hard to adjust that, but it is within a system. So it does mean framing what community visitors do in the form of a complaint. The kinds of things you've heard today don't readily --- can't readily be described as a complaint, so it's forcing it into that frame, but I am hopeful that the recent amendments, and we are yet to meet with the Commission, we do have a scheduled meeting, I am hopeful that will lead to better information sharing. Currently when a community visitor raises an issue, and it ends up in the Safeguarding Commission and we don't get a response and we don't know what they do, community visitors go back to the house and a participant or resident might say, "What happened?" We have to say, "We didn't know". We did raise the issue, we talked to the service provider, we raised with the commission but we don't always know what they did other than we are told it was referred to the incident reporting team, or it was referred somewhere else.
As I said, that's not the Commission being uncooperative, it is a function of the current information sharing provisions.
CHAIR: Yes. I wasn't intending to be critical either of the community visitors scheme or of the Commission, but you're pointing to what might be regarded as structural issues, the structure of the NDIS, the arrangements whereby service providers get paid, a kind of private enterprise model to some extent. There is also the issue, I think, that you've identified, or at least emerges from the evidence, that a complaints based system is maybe not terribly well adapted to deal with the systemic issues that you've identified by reason of your fairly intimate association with a particular service provider, so there seems to be something of a gap between a complaints based system and a system that is capable of identifying systemic issues, but then where do you go with those systemic issues. That seems to be something that's coming out. I would like you to comment on that, you may disagree with that as an analysis.
DR PEARCE: No, that's right, and it's the same issue we have at the State level with the Disability Services Commissioner. But I did want to say something really about the importance of the community visitor's role and it does go in part to the question that you raised.
Aren't they impressive? I mean, they are completely impressive, the community visitor team that we have here today, and you can see how vital and critical they are for the promotion and protection of the human rights, of people with disability, particularly in what I describe as closed environments. They do see a lot of things. With the change from the State to the Commonwealth, you see functions are under State legislation but really it's the Commonwealth now that has through the safeguarding commission, that has responsibility. So you already start to see gaps that emerge, particularly over issues like access to incident reports. It's set out in State legislation that community visitors don't have any function, they are not part of the framework of the quality and safeguarding they are not part of the quality and safeguarding framework, and they absolutely should be.
There was a 2018 WestWood Spice review of community visitors and they argued that community visitors should be formally recognised in the safeguarding framework, but nothing has happened since then. It is important, in my view, that community visitors retain their independence from those government and service providers, because you can see they are fearless human rights champions, and that independence gives them that ability to raise a raft of issues.
One other point, as I raised earlier when I talked about the explosion of service delivery and service providers and the move to what they are calling private accommodation and the inability of community visitors to visit those houses, and I have significant concerns about the financial exploitation of people living in those houses, I haven't had any reports of physical abuse, but we just simply didn't know and we don't know whether people are receiving the services that they are entitled to receive, and access to those houses by community visitors would give us insight into what's happening in those services.
Increasingly, there are many, many houses that we do not have access to. That means that there is no ability, there is no independent monitoring of what happens, and you rely on a complaints based system where people in those houses are unsupported to raise complaints and may not be aware of the kinds of campaigns that the DSC ran which were, "It's okay to complain". So there's no insight into what's happening into many, many services.
I guess my final comment is that not all jurisdictions have community visitor programs. Some States have mental health community visitors, not all States have disability community visitor systems, and I would think there would be enormous benefit for there to for community visitors in all jurisdictions. But you have to look at this mismatch between State legislation, which is setting up and empowering the community visitors, and a Commonwealth framework that doesn't recognise community visitors and operates on a complaints based system.
CHAIR: We have, as I think I mentioned before heard evidence about these issues at other hearings and I think it's a general issue that we will need to have a look at. Yes, I can readily understand why you say such complimentary things about your colleagues. They do very important and very good work, but not in a way, through no fault of their own, that is integrated into the Commonwealth system, at least as far as I can tell at the moment.
So I understand that there are relationships between the community visitor schemes, the office of public advocate, in this case, and the NDIS QSC, but they are perhaps not uniform throughout the country and there are barriers to the communication of information and, in particular, the identification and addressing of systemic issues.
Thank you very much. I'm sorry, Mr Griffin has been prompted into asking you another question?
MR GRIFFIN: I'm wondering if you might inquire of people with leave, whether they have any questions.
CHAIR: I will do that. I'm not going to ask you questions, I'm just going to note that it does seem on the basis of some of the things that had been said in this session, and other evidence that we have heard, that there are issues relating to the pay conditions of support workers who have a very onerous job. It cannot be easy to operate in an environment such as the particular house that we are talking about and I know there's been evidence at other hearings about pay conditions and how people are to be appropriately remunerated and to be rewarded for additional training. These are issues we will have to have a look at and they are all interconnected, fairly obviously, and that's part of what we have to do.
Having delivered myself of that soliloquy, does anybody seek leave to ask any members of the panel any questions?
Well, thank you very much, that has been a very, very interesting and helpful session. We are very grateful for the statement and the very meticulous work that's been done in documenting your experience with the house. That has been very helpful to us, so thank you for coming and giving evidence and for those statements. Thank you.
THE WITNESSES WITHDREW
MR GRIFFIN: Can I indicate for those following the hearing tomorrow we will commence at 10am with evidence from Anne Congleton, who is from the Victorian department relevant to this issue. After the morning break, one of my colleagues, Mr Fogarty, will examine Mr Scott McNaughton from the NDIA. It is anticipated that will run through until about 3 tomorrow afternoon and that will conclude the
evidence for this week.
CHAIR: Thank you very much. In that case, we will adjourn until 10am tomorrow.
HEARING ADJOURNED AT 4.11PM TO FRIDAY, 10 DECEMBER 2021 AT 10AM