Public hearing 6: Psychotropic medication, Sydney - Day 4
CHAIR: Good morning, everybody. We commence by acknowledging and paying our respects to traditional custodians of the lands on which we are holding this public hearing. We pay our respects to First Nations elders past, present and emerging as well as to all First Nations people following this public hearing. Yes, Ms Eastman.
MS EASTMAN: Commissioners, we have a large number of witnesses to get through today so there will be a number of short breaks during the course of the day. But our first witness this morning is Professor Karen Nankervis. She's joining us from Brisbane.
CHAIR: Good morning, Professor Nankervis, thank you for joining us today. I will ask you, please, to follow the instructions of my associate who will administer the affirmation to you.
PROFESSOR KAREN NANKERVIS, AFFIRMED
CHAIR: Thank you. Ms Eastman will now ask you some questions, Professor Nankervis.
EXAMINATION IN CHIEF BY MS EASTMAN
MS EASTMAN: Your name is Karen Louise Nankervis?
PROF NANKERVIS: That's correct.
MS EASTMAN: You are a university professor with the School of Education at the University of Queensland, is that right?
PROF NANKERVIS: That's right.
MS EASTMAN: You've prepared a statement for the Royal Commission dated 10 September. Have you got a copy of the statement with you?
PROF NANKERVIS: I do.
MS EASTMAN: Can you tell the Royal Commission that the contents of the statement are true?
PROF NANKERVIS: They are true.
MS EASTMAN: Commissioners, a copy of the statement can be found in Tender Bundle A behind Tab 62 and Professor Nankervis' CV is in the document reproduced at Tab 63, and then there are some articles that Professor Nankervis has kindly
provided the Royal Commission at Tabs 64 to 67. Could I ask you to mark the statement Exhibit 6-19 and the various annexures 6-19.1 through to 6-19.5.
CHAIR: Yes, thank you.
EXHIBIT# 6-19 STATEMENT OF PROFESSOR KAREN LOUISE NANKERVIS
EXHIBITS# 6-19.1 THROUGH TO 6-19.5 ANNEXURES TO STATEMENT OF KAREN LOUISE NANKERVIS
MS EASTMAN: Professor Nankervis, can we start with a little bit about your background. You have been employed by the University of Queensland since 2009 and your professorial role involves teaching and research on disability issues focusing on matters such as interventions for challenging behaviour, service models, and supports for people with high and complex disability support needs, families, positive support behaviour, and eliminating the use of restrictive practices.
PROF NANKERVIS: That's right.
MS EASTMAN: And you teach this as part of the Behaviour Management major in the Master of Educational Studies program. Sorry, that's a bit of a mouthful. But what can you tell us about the particular research that you've been involved in and also the teaching that you do in terms of this particular area?
PROF NANKERVIS: So, in terms of the research that I've been involved in, there's a number of areas of research that I've been active. Primarily, the sort of research that I do is translational research and making sure that whatever we find in research is able to be translated into some sort of practice or training or whatever it is, and that for that reason, there's been a strong link between the research and training and practices that I'm involved in.
One of the areas of research has been the issue of parents that relinquish the care of their children with disabilities because they can no longer they're no longer in a position to be able to continue caring, and recognising and finding from that work that significant levels of challenging behaviour or severe challenging behaviour with those kids is a major factor in the reason why parents can't continue in that caring role, and then using that research to identify what are the potential risks for those families, what are the triggers so that what we can then do is put in place, identify those families earlier than when they go into crisis and put into place supports and services and responses, particularly early responses to challenging behaviour, to be able to support those families and they don't slide into crisis.
So that's one area of research.
There has been the research that we've been doing through centre of Excellence around the quality of positive behaviour support plans and also the effects of training on the quality of positive behaviour support plans and my one of the former colleagues from the Centre of Excellence, Simon Wardale, was talking yesterday about the audit research that was conducted and he was the lead author for the issue of quality both quality of these behaviour support plans in terms of the BSP QE II which is a tool that can be used, but also what was a significant issue in that was the readability and comprehensibility of these plans where they were being written in language that was highly technical, was more suited to people who had a tertiary level training, whereas the people who really needed to understand these plans were people who probably had much lower levels of training, if they had training. So they might be people who have Certificate III if they have a qualification at all. But also, the fact that families and informal supports weren't in a position to be able to understand those plans, and then using that as a way of then incorporating that into our training about making sure that the people who are writing these plans are aware of the need to be able to make plans accessible to people.
Also, research around support and stress and burnout for disability support workers. Again, finding that challenging behaviour is a significant issue, however, what is a further need for these support workers who are working with people with challenging behaviours is the need to have in place supports and supervision within an organisational structure to be able to work with those people, again, getting that information out there, and that has these pieces of research really shaped the training agenda that the Centre of Excellence had in place.
MS EASTMAN: Right, so you've mentioned the Centre of Excellence a few times and you've provided to the Royal Commission a very detailed and lengthy statement and what I want to focus on today from the matters in your statement is the work of the Centre of Excellence to understand what's happened in Queensland and the Queensland experience before the NDIS.
So you became the director and chair of the Centre of Excellence in August 2009, and it's the case that you were lured from Victoria to take on the role, is that right?
PROF NANKERVIS: That is. That is the case.
MS EASTMAN: And the Centre of Excellence was funded by external training providers to deliver courses in behaviour supports to workers in the disability services sector, but it was also to take an evidence based approach to developing training and it also undertook applied research and there was an applied research agenda as part of the work of the Centre of Excellence.
So can I ask you, what was your particular role at the Centre of Excellence as both Director and Chair? What were your responsibilities?
PROF NANKERVIS: So the Centre of Excellence had been established in 2008 as a
result of the Carter report by Justice Bill Carter, and the role of the Centre of Excellence was to provide the sector with best practice leadership and support so that the sector would be able to engage in best practice around supporting people with challenging behaviours.
When I came to Queensland to take up the Executive Director role for the Centre of Excellence, as you say, it has been in establishment, it had been running some programs around training for the sector, and that was one of its roles and when I looked at that training, it was clear to me that at that point in time the training was talking about positive behaviour support but it wasn't focused on teaching the skills and knowledge about positive behaviour support in ways that were going to actually make a difference on the ground.
So my role in that was to come into that from a particular perspective and coming into it from the background that I had, which was not just a research background, so it wasn't just about setting up a research centre that then could conduct research and disseminate those results and then you hope that, you know, the people understand what those results are and how you can translate that into some sort of practice. I came from a clinical background, an academic background, as well as a strong practice leadership background. I had actually established the Disability Studies Program at RMIT University in Melbourne some many years earlier to provide a qualification in the disability sector.
So my role in the Centre of Excellence was to lead those activities of the Centre of Excellence where the Centre of Excellence was sitting as an adjunct to service delivery in Queensland but providing the what, in Justice Carter's words, he talked about centre of best practice. I think that that was a very ambitious way of looking at it and it needed to be in place but it was to be able to support the sector in improving the practices but also harnessing the research that is available and translating that into things like practice guides and information and resources and advice to the sector but also conducting research that would then also have some impact into the way that the sector would be supported to improve practices around behaviour supports.
MS EASTMAN: Was it intended that the Centre of Excellence operate as a multi disciplinary centre?
PROF NANKERVIS: I don't think that it was as explicitly said in the early days. It was multi disciplinary. So the various positions that were appointed were multi disciplinary. As the Centre evolved, over the years, then it was more explicitly multi disciplinary to the point where we actually had practice lead people in the various disciplines of social work, occupational therapy, speech therapy, psychology, and physiotherapy. And that really was about having those discipline leads, essentially, to be able to be working with their various professional bodies and groups of clinicians to be able to support their practices as well.
MS EASTMAN: I just want to step back. You've mentioned the Carter Report and the Royal Commission has heard over the course of the evidence this week, a number
of references to the Carter Report. So the Carter is the former, now late, Justice William Carter, a former Judge of the Supreme Court of Queensland, and he was asked to undertake an inquiry in 2006 to investigate appropriate actions for targeted responses to people with intellectual and cognitive disabilities who exhibited severely challenging behaviour who were at serious risk of harm to themselves and/or others. And that review, and Commissioners, you have a copy of the report in the tender bundle. But it led to a publication of his report called Challenging Behaviours and Disability: A Targeted Response. And some of the things that Mr Carter found in his inquiry were that families were burnt out or could no longer care for their family member with disability due to challenging behaviour. But challenging behaviour could be beyond a service provider's capability to manage. There was a lack of perceived interdepartmental cooperation. There was a lack of early intervention responses for challenging behaviour. There was a need for the whole of Government approach. There was a lack of suitable accommodation and there was a serious shortage of suitably experienced and well trained professional and frontline personnel.
So he identified, did he not, that the lack of a collaborative best practice response to challenging behaviour was raising some serious concerns about the rights, welfare, and lives of people with intellectual and cognitive disability in Queensland. So this report was a jolt, wasn't it, in ---
PROF NANKERVIS: It was.
MS EASTMAN: --- terms of saying something needed to be done. And I think our witness shortly will tell us that the Queensland Government accepted all of the recommendations. And you've set out at paragraph 40 of your statement a number of the recommendations and you note at paragraph 41 that:
[One] major recommendation in the Carter Report was the implementation of a new legislative regime. It was recommended that the Disability Services Act be amended to allow for lawful authorisation for the use of restrictive practices, but under very tight conditions in terms of how and when they could be used. It also recommended .... [a legislative] requirement that there be a positive behaviour support plan developed and implemented for any person subject to restrictive practices and that restrictive practices only be authorised where it can be demonstrated to be the least restrictive alternative for protecting [persons] from harm [to themselves or harm to others].
If we go back and look at what Mr Carter recommended, he wasn't recommending a sort of development of a whole industry around working around restrictive practices, his recommendations were very clear, were they not, that this is to be last resort, with safeguards and oversight in law, and that the people engaged in making decisions around restrictive practices be people with particular expertise. Can I take that as a summary of what the Carter what Mr Carter recommended?
PROF NANKERVIS: Yes, you can. Yes.
MS EASTMAN: And in terms of being able to meet some of those objectives, you say at paragraph 108 of your statement that your opinion is that Queensland now has one of the most robust safeguarding frameworks in relation to the authorisation of the use of restrictive practices and for monitoring their use. And so is it the case, and if we look back to 2006, and up to the present point in time, that over that period of time, Queensland has had experience in developing systems and practices and applying the law to achieve what you describe as one of the most robust safeguarding frameworks in the country?
PROF NANKERVIS: That's right.
MS EASTMAN: And the Centre of Excellence ended up having responsibility for overseeing the legislative requirements in relation to when restrictive practices could be authorised but also an oversight role in relation to behaviour support plans and behaviour support practitioners, is that right?
PROF NANKERVIS: Not completely. So there was under the Disability Services Act, the delegations for the development of positive behaviour support plans for containment and seclusion, the short term approvals for the use of restrictive practices sat with the various clinical teams that were without in the regions that weren't, at that point in time, weren't sitting under the Centre of Excellence. The Centre of Excellence had the oversight role for the mandatory reporting of the use of restrictive practices, so the monitoring and reporting system that had been put in place with the amendment to the Act in 2014.
MS EASTMAN: So can I ask you then about the reporting system. When the Centre of Excellence had this responsibility, can you outline to the Royal Commissioners what that responsibility was in terms of the nature of the reports that were received and what happened with the reports in terms of any follow up to achieve what you call the robust safeguarding framework?
PROF NANKERVIS: So, the reporting was the reporting came in later than the introduction of the legislative and regulatory framework around the authorisation of the use of restrictive practices. And before I go further down there, I really want to make it very, very clear about Justice Carter's view on this. He was actually of the view that the while the legislative arrangements were necessary, they were not they should not have been the focus and should never be the focus of the reform that he regarded needed to be in place. That regulation was necessary but best practice should be the focus of everything that was done.
So when mandatory reporting was brought into the legislation, as I say, in 2014, the Centre of Excellence then had the responsibility around the development of that reporting system and the information, IT platform that that would be put onto and that was then setting it up that every instance of the use of a restrictive practice would have to be recorded or reported on a monthly basis by service providers for every person who was subject to restrictive practices.
We collated that information. It took a while to have full rollout of the reporting system because it was something that the sector hadn't done before. There did need to be the IT development, we did need to pilot it and make sure it worked, but we were also very mindful that we needed to have a system that was going to be of use to the sector, and reporting in and of itself is not a useful activity unless it is being used to improve or identify where effectiveness is being achieved.
So the reporting system that we set up was the organisations or service providers were able to track the use of restrictive practices and any changes in the use of restrictive practices at an individual level, also at a, you know, a house level or a regional level, or at an organisational level for their organisation. The Centre of Excellence was then able to also do the analysis across the entire sector and also dive into any particular issues that we might have been seeing at a sector or an organisational level and be able to follow up on any of those discussions that might need to be had.
What we would then do is we would hold a six monthly what we called a CEO forum, and that was where we got we invited all the chief executive officers of the service providers who were reporting on the use of restrictive practices, and anybody else who wanted to be involved, and we provided them with that overall data and what the patterns were, what it was telling us, what some of the difficulties may well have been in terms of, you know, where there was some inaccuracies in the reporting, where there were issues around compliance, those sorts of things, so that we could work in a collaborative way.
And it was quite useful. It had never been provided before in that format and, for instance, in the last forum that I held with the CEOs, we were able to show them two year data from the sector that demonstrated that the use of restrictive practices peaked around Christmastime and then went down again. And that was for two years in a row. And we were able to then have a discussion with the, you know, within that forum about as organisations what would be contributing to that and it was things like people's normal daily activities that they went out for weren't necessarily running because of the break the shutdown period over Christmas, that there was a higher reliance on casual staff and not the normal stable staffing things in place. So you were able to use that data for those CEOs to be back and be able to look at the way they were organising their staffing patterns, their, you know, what was happening in people's day to day lives over that period so that they could address those spikes in the use of restrictive practices.
MS EASTMAN: You talk about the six monthly meeting in paragraph 63 of the statement, but just above where you mention the six monthly meeting, you say that reporting and monitoring of the use of restrictive practices was done with the aim of reducing and eliminating their use through the development of knowledge and skills. From your work at the Centre of Excellence, over the period of time that you were there, did the data tell you that there was a reduction or, indeed, an elimination of the use of restrictive practices, and so far we've focused on restrictive practices at large,
but if I can draw your attention into the use of restrictive practices in the form of chemical restraint or the use of psychotropic medication. Did you achieve a reduction or an elimination?
PROF NANKERVIS: So we had the data, the data took a little bit of time to be get some level of accuracy. We did see changes in the use of restrictive practices. They were, in terms of the types of sorry, we saw that there were larger numbers of people who were subject to restrictive practices and that was because of the NDIS participants coming in so you had more participants in the system than we had before.
But what we did see was some definite changes, or starting to see some trends about the use of those restrictive practices in terms of there were while there might have been people still subject to things like containment, the levels of containment were decreasing that where there were people who were subject to seclusion, the times that people were being secluded was decreasing.
I don't have the because once I was no longer in that position, I no longer have any access to that data. So I'm not too sure what the changes were around the use of chemical restraint, but certainly from my speaking to people, there was anecdotal information that was around the fact that chemical restraint had reduced as a result of having regular medication reviews as a result of the restrictive practices regime in Queensland, but also what I did see on some of those was that we had people who were larger numbers of people who were subject to multiple forms of medication and we were seeing decreases in that as well.
MS EASTMAN: You won't be aware of this, but we're soon to hear evidence from Dr Jeffrey Chan, Senior Practitioners for the NDIS Quality and Safeguards Commission, and he will tell the Royal Commission that for the period from 1 July 2019 through to 30 June 2020, there were 39,312 reports of unauthorised use of all restrictive practices including regulated restrictive practices in Queensland, and he will say, for the same period, there's 16,977 reports of unauthorised use of chemical restraint in Queensland. And just pausing there, I'm not going to go into that relevant regulatory scheme about what authorised or unauthorised is for the NDIS Rules and I understand you're familiar with that. But if you look at those numbers in terms of reports to the Quality and Safeguard Commission, do those sorts of numbers reflect the types of numbers you were seeing when you were the director of the Centre of Excellence?
PROF NANKERVIS: So we didn't have I'm just I imagine that I mean, you know, in terms of the authorised use of restrictive practices, obviously there were many thousands of instances of the use of chemical restraint. We weren't we didn't have the mechanism to be counting unauthorised use of restrictive practices. That is something that was incorporated into the NDIS Rules.
We were I certainly we were able to work with organisations to identify where it became known that they had unauthorised use of restrictive practices, usually
because they weren't aware of what the regulations were and we were able to work on that. Because we also had the process for short term approvals, or Queensland had the process of short term approvals in place, that meant that there was somebody that the service providers could go to to say, "We've got a situation here, we need to start using, you know, some medication in an emergency situation or in a short term situation, to deal with this while we go through the process of doing a functional behavioural assessment and development of a positive behaviour support plan," and therefore the person who was providing the short term approval was able to provide that, and therefore the use of that, in that instance, wasn't an unauthorised use of restrictive practices.
So I think there's some difference in the way that the Queensland system was operating and what the NDIS Commission's system operates as.
MS EASTMAN: It's hard, would you say, from your experience, it's hard to compare what the data is from the NDIS because of the particular regime around reporting, and when reports have to be made compared to Queensland, which had slightly different mechanisms for both reporting but also that short term or prior approval, or that emergency approval or the respite issues had a bearing on what would be captured as far as the Queensland data, is that right?
PROF NANKERVIS: Yes, yes. Certainly I have to acknowledge that there would have been unauthorised use of the chemical restraint or medication for the purpose of controlling people's behaviour that we didn't know about.
MS EASTMAN: Can I ask you about, so it did --- you did have a function in relation to auditing, and you say in paragraph 64 of your statement that the Centre of Excellence and regional departmental clinicians were engaged in what you call corrective actions, where requirements for authorisation use or reporting were not being adhered to by service providers. And then you talk in this part of your statement also about undertaking some audits.
So if the data that you'd collected and analysed showed that there was a particular trend, either by occurrence, as you said, around Christmas, but what if there was a particular trend in a particular area of Queensland or for a particular cohort of people, how did you use that data to engage in any corrective actions, and what were the outcomes of any of the corrective actions that you can remember?
PROF NANKERVIS: So, mostly the where we would be working in those sort of situations would be with service providers. So it might be in an organisations. So sometimes it would be identified that there was a service provider that largely was not compliant with the legislation. The corrective actions that we would take would also start with a developmental approach, and that would be working with that service provider to find out what's going on, and what did they need to be able to be supported to be able to do things in the way that it's intended. Again, not from I'm always very particular to say not from a compliance approach but from a best practice approach.
So we may well have the Centre of Excellence may well have gone in there with the regional clinical staff to provide training, or the regional clinical staff themselves would have been providing some training or advice. We often went into organisations, the Centre of Excellence staff, went into organisations to provide them with training around monitoring and reporting and what the legislative requirements are. So we would always be taking that from the perspective of we need people to not only understand it, but know how to operate within that legislative requirement also, but how they can use that to improve their practices.
And it wasn't resolved at that level, there was always the ability to be working with the complaints and investigations area and, you know, sometimes it was going through that process and what the complaints and investigations area would do would be make recommendations for improvement for the service, that the service would need to comply with as part of their contractual obligations to the Department, and, you know, and often that would involve making sure that they engaged with the Centre of Excellence so that they could get some support from the Centre of Excellence.
MS EASTMAN: Can I turn to a slightly different topic now, and that's the behaviour support plans and the role of behaviour support practitioners. So dealing with practitioners first. Following the Carter Review and the changes to the legislation and the establishment of the Centre of Excellence, did you see any change in Queensland in relation to the development of a cohort of behaviour support practitioners with particular skills or qualifications and what was the role of the Centre of Excellence in relation to any type of regulation of behaviour support practitioners?
PROF NANKERVIS: So first of all, the very strong finding that Justice Carter made in 2006 was the lack of available expertise in positive behaviour support and behaviour support practitioners. And that wasn't surprising given that there is there is very little training that is available outside of the sorts of training that's provided by people like the Centre of Excellence or entities like the Centre of Excellence.
There are very few qualifications and certainly in 2006 there were very few qualifications, from my experience at RMIT, I think we were one of the few programs that extensively taught positive behaviour support as well as skills teaching for people with intellectual disability, cognitive impairments, those sorts of things. That was not a typical program around the country.
In terms of the professional organisation, or professional training, allied health training, disability alone is rarely taught extensively in those programs, let alone challenging behaviour and intellectual disability. So you have very few qualified professionals who have had training and experience in positive behaviour supports and, you know, evidence based ways of working with people with challenging behaviour.
So when and as we go into 2020, I would suggest that that hasn't changed dramatically. That was one of the reasons why the Centre of Excellence was working quite closely with the professional associations to get them to understand and be quite aware of what this was and why it was so necessary as a professional area of training for people who are going to be working in this sector, as well as, and I would suggest mental health, aged care, youth, children's services, all the rest of it. It's absolutely a skill set that is needed not just in the disability sector, yet is a very thin market in terms of the training that is available and qualified training that's available.
MS EASTMAN: So what are the consequences if this is still, as you say, in 2020, an area where the skills are still developing and, as you say, a thin market. What's the consequence then for the development of a behaviour support plan, and the extent to which a behaviour support plan will actually do what its aim is? Isn't there a risk that without having skilled people undertaking this task that behaviour support plans could be, really, very of little worth in actually making a change if they're not drafted and prepared by people with relevant skills and experience?
PROF NANKERVIS: Very much a risk. Very much. And it's not just about the quality of the positive behaviour support plan; it also is the funding issue, that if a person, particularly an NDIS participant, has received funding in their package for the development or, you know, for behaviour supports, if those supports and if that plan is not is put together by somebody who doesn't have the right knowledge and skills, then actually that's going to be a waste of their money as well. So it's not just a safeguarding issue, it's their ability to be able to, you know, yes, they've got the money to pay for this, but they need to be able to purchase it from somebody who has the appropriate training and skills to actually implement and, you know, assess and plan, for positive behaviour supports.
What the Centre of Excellence the position that we took from the Centre of Excellence was that we didn't have a qualification that we could provide and, you know, and it is more than what --- the training that is required for properly skilled professionals in this area is more than what the Centre of Excellence was able to provide. So what we were we concentrated on was it was a four to five day training program, it was person centred. We got teams together wherever we possibly could to come into the training. Sometimes it was individuals but, you know, often we were trying to get teams who were working with somebody who was engaging in challenging behaviours. And then we would step them through the entire process of the, you know, going back to the fundamental values of human rights, person centredness, you know, the choice and control, all of those aspects of, you know, these are the setting events of what you have to have in place if you're going to be working with somebody with challenging behaviour, understanding that actually the behaviour can often be a what we call a behaviour of protest in terms of the circumstances they find themselves in. Do something about that and you probably will deal with the person's behaviours of concern because it is a behaviour of protest, it is a communication mechanism for them.
MS EASTMAN: Okay. Can I just sort of bring you to the other part of it is you've got behaviour support practitioners developing plans and depending on their skill and expertise that will affect the quality of the plan but the other part to it is the practitioners are not implementing the plans in situ. That often falls for the support workers. So can I put this to you: you can have the best plan in the world or you could have the worst plan in the world, but regardless of whether it's good or bad, how do the plans then translate to ensure that they're going to be implemented, and what support has been provided to disability support workers in terms of training around implementation and for the support workers to understand, is this a good plan, not a good plan, what room do we have to be flexible in how we implement the plan.
I think the Centre of Excellence had a role also in training disability support workers. So putting those three elements together, on that frontline aspect, what support was there for the disability support workers to be able to effectively implement a good plan, for example?
PROF NANKERVIS: So there were a number of strategies for that. First of all, one of them was that the and this was before my time when this was set up but a number of the very large organisations in Queensland were provided with funding to establish some positive behaviour support roles within their organisation to provide that support for the implementation of positive behaviour support to the organisations.
The second one was that the Queensland Government also made a budget available which we administered through the Centre of Excellence for backfill, for disability support workers to attend the training that the Centre of Excellence provided, and that goes back to what I was saying before about, you know, this applied training where, you know, we would try to get the teams or, you know, asking to get the teams together, that included support workers. So we were not just training clinicians, we were training all of the people who would be responsible for working with this particular individual. They were all involved in doing the functional and, you know, learning about and conducting the functional behavioural assessment. They are all involved in the planned development, they are all involved in the implementation.
And then what we also had was a scaffolding in our training where we had an online introduction to positive behaviour support. We had available to the sector that and we had many, many, many people go through that particular piece of training because it was self paced, they could do it whenever they wanted, and we were encouraging the service providers to use that as one of their induction modules, that it should be an induction module for all staff.
We also had other levels of training around, you know, managers and bits and pieces.
But I think that an important, and I'm not too sure about the answer to this, one of the things that hit me when I first started operating in this area with was that in the early
days, there was a lot of work in getting behaviour support practitioners who were external to organisations or external to the person, to develop up a positive behaviour support plan and then deliver it to the organisation or the team or the person, and then they were to implement it. Now that's not going to work. It's never going to work. Unless you have, and under the Disability Services Act, the Disability Services Act is very clear about you must include the person themselves as well as their support network in the development of a positive behaviour support plan. It's that whole process. Yes, you may need to use somebody outside of your organisation but that person needs to be essentially embedded with the team and the person themselves to both do the assessment and do it properly, but also support the implementation of that positive behaviour support plan once it's developed.
Under the funding model for the NDIS, I'm not too sure what the implications are necessarily now that, you know, you've got the individualised funding packages. I'm thinking that it's going to make that way of operating more difficult.
MS EASTMAN: The Centre of Excellence work came to an end with the transition to the NDIS, and what happened to all of the experience and expertise of the Centre of Excellence? Did that transition with the process to the NDIS, do you know?
PROF NANKERVIS: We certainly made sure that the resources that we had developed would be preserved as legacy documents that obviously that the Commission is able to use. We had also set up legacy documents for the sector so, you know, practice guides and bits and pieces that we had developed. Obviously we had also developed a model plan that could be used under the Disability Services Act.
We also, and, you know, in terms of the work that I had done and my colleagues who had been in this space for a considerable period of time, was, you know, looking at things like the practice standards, service standards, competency framework, worked through that from our expertise and provided that back to the, you know, the Federal Government for, you know, in terms of consideration about the ways that things could be operating post the transition to the Quality and Safeguard Commission.
CHAIR: I see the time.
MS EASTMAN: Yes.
CHAIR: I'm quite keen that we don't fall behind in our schedule today because we have a very crowded program, so perhaps we might bear that in mind.
MS EASTMAN: Well, Commissioner, I was just about to say that you have, Professor Nankervis, made a number of suggestions for change in your statement from paragraphs 112 to 125 and I was going to invite the Commissioners to read those suggestions for change and the rest of your statement, and that concluded the questions that I wanted to ask you.
CHAIR: Thank you, and we accept the invitation.
Professor Nankervis, thank you very much for coming and giving your evidence and for the very detailed statement that you have provided to the Royal Commission. We appreciate your assistance. Thank you.
THE WITNESS WITHDREW
MS EASTMAN: Commissioners, we had scheduled a break for 15 minutes now.
CHAIR: According to my schedule, 10, but do you want 15?
MS EASTMAN: Ten's fine.
CHAIR: Thank you.
ADJOURNED [10.18 AM]
RESUMED [10.27 AM]
CHAIR: Yes, Ms Eastman.
MS EASTMAN: The next witness is Shayna Smith.
CHAIR: We're waiting for Ms Smith to be brought up on the screen --- which has now happened.
Thank you very much, Ms Smith, for joining us and for giving evidence today. If you wouldn't mind, I will ask you to follow the instructions of my associate who will administer the affirmation to you. Thank you.
MS SHAYNA SMITH, AFFIRMED
CHAIR: Thank you, Ms Smith. Ms Eastman will now ask you some questions.
EXAMINATION IN CHIEF BY MS EASTMAN
MS EASTMAN: Good morning. So your name is Shayna Smith?
MS SMITH: Yes.
MS EASTMAN: And you're currently the Acting Public Guardian, is that right?
MS SMITH: I am.
MS EASTMAN: And you've prepared a statement in response to a notice requesting the Public Guardian give a statement to the Royal Commission. That notice is dated 13 August, and you've provided a statement in a letter format on 4 September 2020, is that right?
MS SMITH: That is correct.
CHAIR: I think we should indicate that Ms Smith is the Public Guardian for Queensland because we are a National Inquiry.
MS EASTMAN: Yes. Bear with me, I will get there, Commissioner.
With respect to the statement, have you got a copy with you?
MS SMITH: I do.
MS EASTMAN: And have you read over the statement in recent days?
MS SMITH: Yes, I have.
MS EASTMAN: Are there any changes that you wish to make to the statement?
MS SMITH: No.
MS EASTMAN: And are its contents true?
MS SMITH: Yes, they are.
MS EASTMAN: I want to start by asking you about the Public Guardian's role in Queensland, and in paragraph 1 of the statement on page 1, you tell the Royal Commission that the Queensland Public Guardian is an independent statutory role whose purpose is defined by the Public Guardian Act. Is that right?
MS SMITH: That is correct.
MS EASTMAN: And the role of the Public Guardian in Queensland in relation to adults is for adults who have impaired capacity to make sorry, impaired capacity for a matter and the Guardian will step in to protect their rights and interests. Is that right?
MS SMITH: That is correct. Where we are appointed by the Queensland Civil and
MS EASTMAN: You also have a role in relation to children, is that right?
MS SMITH: That's correct.
MS EASTMAN: And in terms of the Public Guardian's functions with respect to adults with impaired capacity, section 12 of the Public Guardian Act sets out the key functions with respect to restrictive practices, is that right?
MS SMITH: Yes.
MS EASTMAN: And if I can take you to those points that you set out at page 2 of the statement, the functions relevant to restrictive practices are, to protect the adult from neglect, exploitation, or abuse by providing a community visitor program called Community Visiting and Advocacy; to protect the rights and interests of the adult if the adult resides at a visitable site --- and I might ask you about what that means in a moment.
MS SMITH: Sure.
MS EASTMAN: And then acting as a guardian, including a guardian for restrictive practices, if the guardian is appointed, as you said, by QCAT, the Queensland Civil and Administrative Tribunal. And there's a range of functions in relation to approving the use of restrictive practices for adults, is that right?
MS SMITH: Yes.
MS EASTMAN: And you also have a role in educating and advising people about and conducting research into the operation of various laws touching on the use of restrictive practices in Queensland.
MS SMITH: Yes.
CHAIR: Ms Smith, would you mind giving us an answer that we can hear because we need to transcribe the responses. I'm not sure if it's the absence of you saying anything or a problem with the audio, but if you wouldn't mind responding in that way and we will work out whether it's an audio issue. Thank you.
MS SMITH: Sure.
MS EASTMAN: In terms of the functions in terms of restrictive practices set out in the legislation, has the Human Rights Act in Queensland made any difference to either the nature of these functions or the way in which the Public Guardian goes about discharging these functions?
MS SMITH: I believe that the commencement of the Human Rights Act in January
this year further answers what was already existing under the Guardianship & Administration Act which was prefaced as a rights based piece of legislation and actually incorporates a number of principles under the UN Convention. So it really, I think, serves in Queensland to further what was already in existence, but adds to it in terms of in part of our decision making and undertaking the functions and roles under the Guardianship & Administration Act, we have to consider human rights principles under the Human Rights Act.
So I would say that the Guardianship & Administration Act was already well placed to further human rights of Queenslanders, and this piece of legislation just builds upon those building blocks to, I think, you know, provide that additional framework to operate within.
MS EASTMAN: What do you mean "building upon building blocks"? Did anything change?
MS SMITH: It's only been in operation since January this year but I know that in terms of our administrative decision making responsibilities when we are appointed as a guardian under the Guardianship and Administration Act, we do make sure that we apply the Human Rights Act in our decision making to look at
MS EASTMAN: How do you do that?
MS SMITH: We look at the principles in the human rights principles, and we --- in making a decision we look at whether we are upholding the principles in our decision making or, if we are limiting any of those principles, we consider how they are being limited to ensure that they are justified and appropriate in that limitation, and we document that. So we can outline how that process has been followed and considered.
MS EASTMAN: And doing that by reference to the Queensland Human Rights Act, what has changed, if anything, in the way in which you go about that process?
MS SMITH: Well, I think it just provides another layer of accountability to ensure that human rights are being actively considered and I think justified where they are limited. And we also, in advocating on behalf of our clients, whether it's a guardian or through our community visiting program, we also use that Human Rights Act as another tool in our tool kit to advocate on behalf of people.
So if we, so if, for example, a community visitor during a visit raises an issue on behalf of someone that they visit, and they believe that there is an implication against their human rights, they will use that Act in raising that issue with the service provider as another, I guess, justification or a way of advocating on behalf of that person to ensure that their human rights are respected and maintained.
MS EASTMAN: All right. In the time I've got this morning I want to ask you about two areas arising in this statement. The first is the Public Guardian's role in relation
to restrictive practices and particularly chemical restraints, and then the second part that I want to deal with is the community visitor scheme. So those are the two issues in your statement. The Commissioners will have the opportunity to read the entirety of the statement and will take into account all matters in the statement, but I want to focus on these issues.
So just in terms of understanding the current situation with the Queensland Public Guardian, in the statement you say at page 25 that during the period 1 July 2019 to 30 June this year, the Public Guardian was appointed as a guardian for 3,438 adults with impaired decision making capacity, and many of these appointments were for short periods only while some of the appointments included reappointments for longer term clients.
You tell the Royal Commission that the total number of people with disability who have been subject to a chemical restraint in that period constitutes 113 clients. Do you see that?
MS SMITH: Yes.
MS EASTMAN: And then you have identified, of the 113 clients, 89 with fixed dose, 7 with PRN, and 17 with a combination. And do we understand, just looking at the numbers here, jumping down to the next paragraph that OPG declined five requests to consent to the use of chemical restraint in the same period of time. So against that background, can you tell the Royal Commission what is the Public Guardian's role in either providing consent or making decisions to decline consent for the use of a chemical restraint, and if there's a particular example that you can assist the Royal Commission with in relation to the circumstances of the declining a request, that would be of assistance.
MS SMITH: Yes, no problem. So our role in that you refer to with the 113 clients in approving chemical restraint, that relates to our guardianship role. So where the QCAT has appointed the Public Guardian to make restrictive practices decisions, either generally or for respite, and the process is that a service provider would apply make an application to the Public Guardian for consent of restrictive practices that would not include containment or seclusion, so therefore chemical restraint would be one of those. And based on the information that we request that they provide to us, which is the positive behaviour support plan and a range of other documents as part of that application, we would consider that and make a decision on whether or not to consent to the requested use of the restrictive practices, and part of that consent would include the timeframe for the consent and also whether any conditions are placed upon that consent.
So in that time in the last financial year we did make 113 decisions to consent to the use of chemical restraint, and I must say that in part of our decision making we have a publicly available Restricted Practices Policy Decision Making Framework that is on our website and that really outlines the framework of how we approach our decision making, why we require the documents that we ask for as part of that
application, and how we make our decisions.
MS EASTMAN: Is that the policy that you refer to on page 5 of the statement, the restrictive practices policy?
MS SMITH: Yes, and accompanying that is a Restrictive Practices Decision Making Framework which gives which is a detailed document that steps out how we make our decisions and why we request the information that we do. And the purpose of that really is to educate service providers and so that they understand the types and the level of documentation and justifying materials to support their applications. They understand why we're requesting that and how we use that in our decision making, and that serves a few purposes. It shows that we require a thorough application, and it also shows that it also serves as an education tool to say "This is what we're requiring for you to make that decision," because there are circumstances where applications are made with very little supporting documentation and therefore the process to consent or to consider that application can be quite lengthy which service providers then well, we can face some criticism for, but that means that we are then in the process of going backwards and forwards constantly seeking the additional information. So the Decision Making Framework sets an expectation of what we require with that application.
As you say, we declined five consents requests for consent over that same financial year period, and largely, as you will see in my statement, that really relates primarily to a range of factors. Sometimes the evidence that is given with the application of, for example, incidents of behaviours of harm and where that's occurred, we do not feel that within that preceding period that the behaviours have been at a level of significant harm or perhaps there haven't really been any incidents at all or the positive behaviour ---
MS EASTMAN: How do you make that decision that the behaviours are not behaviours of harm or not at a particular level of significance or severity? How is that decision made?
MS SMITH: The legislation does define the behaviours of harm as significant physical harm or threat of harm to self or others. So, for example, if there are behaviours of low level incidents to property damage, for example, and if it has been once in the past 12 months, we may feel that the threshold has not been reached where that is justifying the requested restrictive practices, the positive behaviour support plan.
In other instances there may not be adequate assessments that we feel have been undertaken, such as communication assessments or sensory assessments, for us to understand what might be triggering certain challenging behaviours, or there may be a lack of there may be a lack of documentation from prescribing medical or treating doctors around the purpose of the medication, the applications for chemical restraint. There are a range of factors why we would refuse those consents.
I do think, though, that from publishing our Decision Making Framework, the standard of applications we have received since that time have become better, which means that there's, I think, the amount of consents we have declined has reduced because they don't approach us to submit that application unless all of the supporting evidence and documentation is with that.
MS EASTMAN: So with the 113 consents and the five non consents, does the Public Guardian prepare written reasons for those decisions?
MS SMITH: Yes, yes, we do.
MS EASTMAN: Are those written reasons publicly available so that any member of the public or service provider or family could look at the written reasons?
MS SMITH: They're not made publicly available as a matter of course. They obviously go back to the service provider who made the application and anybody can make a request for information from us if the family was interested in receiving those witness statements, and we have, of course we'd have to comply with the provisions under the Public Guardian Act and Guardianship & Administration Act for release of confidential information and obviously we would need the consent of our clients.
MS EASTMAN: One of your functions, as you say, is education and increasing awareness and would you agree it's one thing to set out a set of principles and guidelines, but it's quite another thing to see how those guidelines apply in practice in terms of decision making. Would you agree that if people were able to read why consents were made or why consents were declined, and see the practical application of the policy and the decision making framework that you've discussed, that that would be beneficial in both achieving education but also a transparency in the process?
MS SMITH: It could do as long as there wasn't confidential information that was released to be able to identify any of the parties involved. Our written statements or written reasons usually relate back to the Disability Services Act and the requirements under that Act. So, for example, if the Disability Services Act outlines a range of requirements for positive behaviour support plans, and if we do not feel that the plan meets those legislative requirements, we would refer back to the section and give our view of why we do not think that it met that particular legislative requirement.
So I do see that there could be an element of education that could be gained through that, but if it doesn't give enough context, and I guess particulars, which leads me to some concern about then identifying the parties involved because we would need to outline the circumstances in their surrounding their particular matter, then, you know, there would be just some tension, I think, between that providing enough information to be able to educate other people in the public.
MS EASTMAN: Now, Ms Smith, I want to turn to a different topic on the question
of restrictive practices and the part of your statement which is page 18, in answer to question 9, which is we asked you for a description of common challenges and issues with regard to the OPG as guardian for restrictive practices for a person with a disability, in terms of the above issues, including those with service providers or prescribers of medication used for chemical restraint. So I think that was our long winded question by saying what concerns do you have about chemical restraints for people with intellectual disability. I think you identify six particular concerns, so can I just take you through each of them.
The first is that:
The primary purpose of medication is often unclear. Some prescribing doctors may indicate that a medication's primary purpose is to treat a physical or mental health condition, but that condition is listed in a very generalised term such as "anger" or "behaviour due to intellectual disability".
The Royal Commission's heard over the past few days that there's a form in Queensland that has to be completed by the medical practitioner to indicate what the purpose of the medication is. Do you have any experience of those forms and does that inform your concerns that you've identified in this first dot point?
MS SMITH: Are you referring to the Clarification of Purpose of Medication Form? The COPM?
MS EASTMAN: Yes. Is that the basis for the concern you have that the primary purpose of medication is unclear because there isn't adherence to completing these forms, and when they are completed they might not indicate what the true purpose for prescribing the medication is? Is that right?
MS SMITH: Yes, yes, that's correct. And the form is the primary way of obtaining that information, but we also accept receiving that information through other means such as a letter from the treating doctor and so on. But yes, service providers, my understanding is service providers have faced some difficulties in some instances in having the treating doctor fill out the form in a thorough way, and sometimes that is the treating doctor not understanding the restrictive practices regime under the Disability Services Act and the legislative requirements that service providers need to meet in obtaining consent for restrictive practices.
So there can be a difficulty in having the form even completed. There can be a difficulty in it being completed in a thorough way, and there can be a difficulty in it being clear enough for us as a decision maker to understand the purpose of prescribing particular medication.
MS EASTMAN: Does that link in with the second point that the positive behaviour support team is not always satisfied that a service provider has provided all relevant data and information to the prescribing doctor? So the first two points work together in a way?
MS SMITH: They do, and some of that is around understanding awareness and training. So if a service provider presents to a prescribing doctor and describes, I guess, what they might consider to be the challenging behaviours or behaviours of harm, sometimes how they might describe that and the circumstances might lead to a particular prescribing of medication. But, for example, it might be that they don't know how to fulsomely depict what is happening, what might be the trigger for certain behaviours, what environment it's happening in, exploring the previous diagnosis or, you know, of the person to understand whether it could be something that is attributable to mental illness or whether it's attributable to, for example, their disability.
So there are situations where we have seen where sometimes a prescribing doctor had prescribed something based on the information given to them and the information hasn't been as fulsome as it could be, which has led to us trying to seek further purpose and clarification around prescribing that medication.
MS EASTMAN: Then the next point is the quality of the positive behaviour support practitioners is not always at an adequate standard in relation to legislative compliance. Does the OPG have any particular oversight in terms of either qualifying a person as a behaviour support practitioner, or monitoring whether adequate standards are met?
MS SMITH: No. No. So we don't we have no involvement in the qualifications of those authors of the plans. And in terms of oversight, our community visitors do provide oversight by visiting certain sites but they wouldn't look at whether they are the author who has authored a plan is appropriately qualified.
MS EASTMAN: And so do you have regard to the particular behaviour support practitioner who might be working with a service provider to make an application, if you have a view that on past history the practitioner hasn't been up to the adequate standard. Does that is that a factor that is taken into account at all?
MS SMITH: Well, we look at every application based on the merits of the one before us, and if we do not think that it is sufficient or in compliance with the Disability Services Act, we will liaise back and forth with the service provider, and that can include the plan author in terms of explaining to them where it might be deficient or what further documentation they need to provide to us or where we have our concerns in how they've authored that plan.
So we wouldn't have an ongoing monitoring role about all plans authored by a particular author to look at their quality. Is that answering?
MS EASTMAN: Yes, it does, thank you. So the final three points are really around the content of plans and what might be provided to the OPG, and those three concerns are a lack of data reporting on frequency, intensity, and duration of behaviours of the harm, and then whether the client has been involved --- I assume
client means the person with the disability displaying perceived behaviours of harm --- that person has been involved in the development of the plan and then you have a concern often about the timing and the impact that that may have on the person with intellectual disability being able to have his or her views heard or taken into account, is that right?
MS SMITH: Yes.
MS EASTMAN: Can I turn now to the community visitor scheme and you tell the Royal Commission at page 4 of the statement that:
A component of the community visitor role is to conduct oversight at visitable sites where restrictive practices may be implemented. Community visitors conduct both regular and requested visits to .... sites, make inquiries into the implementation of restrictive practices, raise issues and conduct advocacy .... and prepare reports for the Public Guardian and also for QCAT.
So in terms of the community visitor scheme as it operates in Queensland, can I ask you to turn to page 23, and the community visitors who are undertaking the role of visiting visitable sites, first of all, what is a visitable site?
MS SMITH: We have a range of visitable sites under the legislation, and they include disability accommodation sites where some funded NDIS participants live, and the definition refers to a range of funded supports that are brought within that definition, and typically that can include your supported independent living arrangements or your specialist disability accommodation.
Visitable sites also include what we call here Level Three residential accommodation services. So they are typically your boarding housing or hostels. And Level Three means they have an accreditation to provide a higher level of support to the people that live there. Visitable sites also include authorised mental health services and a range of other, if there are other disability accommodation sites funded by our State Department of Disability Services.
MS EASTMAN: And I will come to who is a community visitor and their appointments, but just dealing with what you tell the Royal Commission on page 23, would we be right in understanding that the community visitors and the preparation of their reports contribute in a very important way to the collection of relevant data to enable your office and also QCAT to have a better understanding about the environmental concerns and the human rights of people with intellectual disability who may be subjected to a restrictive practice?
MS SMITH: Yes, I agree with that statement. I believe our community visitors play an important role in the safeguarding framework of people who are subject to restrictive practices in Queensland, as they can actually oversight and monitor the services provided at those visitable sites. So it allows them to actually enter those sites, either announced or unannounced visit, and speak to the people residing at
those sites but it also allows them to be the eyes and ears at looking out at what services are being delivered and how they're being delivered at that site.
They have quite extensive powers. They're able to inspect a range of documents and make particular inquiries and if they have any issues of concern, they include that in their report and that's provided to myself and also the service provider. But there's a range of entities that we can provide that report to.
MS EASTMAN: So just looking at what's expected of a community visitor when visiting a site and checking and reporting. With respect to the use of psychotropic medication or medications generally, the community visitors are required to check and report on whether there has been a recent medication review and also to check and report on whether the current dose of a chemical restraint is being administered is more than the consent allows for. So those are the two specific items that deal with medication and chemical restraint.
But there's also provision, is there not, to just review documents such as the behaviour support plans, and just to make observations about the particular environments that a person might be residing in and interactions that may occur at that site. Is that a sort of fair summary of all of the points on page 23?
MS SMITH: That is correct.
MS EASTMAN: So for the community visitors to be able to undertake that particular role in relation to recent medication review and current doses of chemical restraint being administered and above, it's the case, isn't it, that the community visitors would have to have particular skills to be able to undertake that task so that if they are to prepare a report or to provide advice about those matters they know what they're doing?
MS SMITH: Our community visitors come from a range of backgrounds. They are a real mix of professionals or, you know, skills from their careers predominantly, I think, in human services. But whilst some might have skills and particularly qualifications that do lend themselves to have a better understanding of that, we don't require them to have a clinical background or to be a clinician to undertake that role because primarily it's an oversight role. Primarily it's going and visiting sites to look at those sites and the services delivered holistically.
So while one part of their role might be to look at those aspects you explained in terms of chemical restraint, that's not their sole purpose. So the skill set they have really sets them up to be able to look at those sites holistically across a range of matters. But they do definitely sorry, they do develop definitely skills, you know, as they visit and develop those relationships with the particular clients and they understand, you know, the ongoing circumstances for those clients residing at sites, and also we have, of course, supporting practice directions and so on that they use in carrying out those functions.
MS EASTMAN: I am looking at page 39 of your statement where you give a brief description of how the community visitor program is currently administered, and with respect to the appointment of community visitors, they are people who demonstrate they meet the merit for the role and they're appointed through a merit selection process, and if they're successful they're appointed for a term up to three years.
You say community visitors are not public servants, but when you talk about who is appointed as a community visitor, this is the third paragraph under the heading a, is:
.... the Public Guardian must take into account the desirability of community visitors to have a range of knowledge, experience or skills relevant to the exercise of the functions .... and reflecting the social and cultural diversity of the general community.
That's fairly sort of high level. It doesn't require any specific skill set including any particular skills or experience in terms of being able to identify, for example, side effects of particular psychotropic medication. I'll just narrow in on that one tiny factor. Would you agree with that?
MS SMITH: That is correct. I would say that the skills that are required for a community visitor primarily relate to being able to build relationships with clients, understand the types of questioning to ask, to understand situations, to be able to observe what may be occurring at a particular site, and those decision making and judgment skills around being able to understand the information gathered and relate that to the legislative requirements as part of their roles and functions.
So that is probably more broadly the skills and experience we look for when recruiting our community visitors, because our community visitors not only visit adults in visitable sites but mainly are dually appointed to visit children in the child protection system or at visitable locations.
MS EASTMAN: We asked you at question 31 which appears at the bottom of 41 for a summary of the types of concerns that have been raised in the past two years by community visitors regarding the use of psychotropic medication or chemical restraints, and you've provided us with some dot points in response to that request at page 42, and you've told us there that some of the concerns raised were unauthorised use of chemical restraint, lack of evidence for the purpose of prescribed psychotropic medications, lack of PRN plans, timeliness and regularity of medication reviews, timeliness and regularity of comprehensive health assessments, development, review and implementation of positive behaviour support plans, and then other concerns surrounding restrictive practices and human rights or where services are not considered to be delivered appropriately and generally wellbeing.
Can I ask you, in terms of these concerns, what did the OPG do on receipt of these concerns over the two year period that we asked you about?
MS SMITH: It was remiss of me not to mention that our community visitors are great advocates, and that is also a really important skill. So when they identify the issues and sometimes it is just a lack of documentation being kept at the site, and therefore or an issue can raise something a lot more significant or concerns of safety and harm. So depending on what the issue is, the lower level issues would be provided back to the service provider at the first instance and attempt to resolve it at the local level, and that could be just a request for further information or further documents that may not have been available during the visit, ranging to the more serious incidents where community visitors would report that to the appropriate agencies such as the NDIS Quality and Safeguard Commission or our State Disability Services Department or even the police if it was a significant risk of harm.
MS EASTMAN: Do you know if there was any compliance action taken as a result of any of these reports by community visitors?
MS SMITH: I'm not sure of the details of the compliance action that may be or may not be undertaken from the Quality and Safeguard Commission when we raise a matter with them, we're not always aware of the outcome, and I think for confidentiality reasons we're not kept abreast of the details of their compliance action. But we do work closely with our colleagues at the Department of Disability Services and we are aware that some clients' actions have been taken before the Quality and Safeguard Commission commenced, but we have an information sharing arrangement between the three entities to ensure that if any concerns are raised, that they're being brought to the attention as quickly as possible to those agencies.
MS EASTMAN: But you can't tell the Royal Commission that there's been any particular compliance action as a direct result of any of these concerns reported by community visitors, is that right?
MS SMITH: I am aware of at least two that the Quality and Safeguard Commission has taken an investigation about. I'm not aware of the specific particulars of those right now but I can obtain them for you. And because we have worked in collaboration to share information and visit reports, and those agencies do often request our community visitor reports if they are investigating a matter just to obtain further information and to provide them with more context in terms of a historical account of what might have been raised previously at those sites.
MS EASTMAN: Thank you, Ms Smith. Commissioners.
CHAIR: Thank you. Any question?
COMMISSIONER McEWIN: Thank you, Chair.
Ms Smith, of any of the appointed community visitors, do any have a disability? Thank you.
MS SMITH: Yes, yes, they do, but we do, we do need to do better in employing
more community visitors with disability.
CHAIR: Commissioner Atkinson, do you have any questions?
COMMISSIONER ATKINSON: No, thank you.
CHAIR: Ms Smith, thank you very much for your very detailed statement which we have read and we will read again, and thank you for your evidence today.
MS SMITH: Thank you.
MS EASTMAN: Commissioners, can I just deal with the tender of Ms Smith's documents.
MS EASTMAN: This material is found in Tender Bundle Part C. A copy of Ms Smith's statement is behind Tab 56, and could I ask you to mark that Exhibit 6-28. There are a number of documents annexed to Ms Smith's statement, and they include some of the documents she talked about this morning. They're behind Tabs 57 through to Tab 60 of Tender Bundle C and could they be marked as Exhibits 6-28.1 through to 6-28.4.
CHAIR: Yes, thank you.
EXHIBIT# 6-28 STATEMENT OF MS SHAYNA SMITH
EXHIBITS# 6-28.1 THROUGH TO 6-28.4 ANNEXURES TO STATEMENT OF SHAYNA SMITH
THE WITNESS WITHDREW
MS EASTMAN: And, Commissioners, I'm ahead of time by four minutes so if we could have a short adjournment of ten minutes.
CHAIR: You have my congratulations.
MS EASTMAN: Thank you.
CHAIR: We shall adjourn. How long are we allowed to adjourn for?
MS EASTMAN: Ten minutes.
CHAIR: Very well, we shall adjourn for ten minutes.
ADJOURNED [11.12 AM]
RESUMED [11.25 AM]
CHAIR: Yes, Ms Eastman.
MS EASTMAN: The next witness, also from Queensland, is Janice Rushworth.
CHAIR: Thank you. Is there only one?
MS EASTMAN: One at a time. Commissioners, while that's happening
CHAIR: I think Ms Rushworth has now appeared.
MS EASTMAN: I was just going to deal with the tenders of documents.
CHAIR: Ms Rushworth, you've just come up on the screen. Thank you for attending this morning to give evidence. If you would not mind, if you can follow the instructions of my associate who will administer the oath to you. Thank you.
MS RUSHWORTH: Yes.
MS JANICE RUSHWORTH, SWORN
CHAIR: Thank you, Ms Rushworth. Ms Eastman will now ask you some questions.
EXAMINATION IN CHIEF BY MS EASTMAN
MS EASTMAN: Good morning, Ms Rushworth. Can I ask you to confirm you are Janice Rushworth?
MS RUSHWORTH: Yes, I am.
MS EASTMAN: You are the Director, Specialist Services, Children and Family Operations with the Department of Children, Youth and Women, is that the right name?
MS RUSHWORTH: Child Safety.
MS EASTMAN: In Queensland.
MS RUSHWORTH: Yes, that's right.
MS EASTMAN: Commissioners, I can hear some feedback coming from Ms Rushworth's audio. Can I perhaps just ask Law in Order to double check what the cause of the feedback is before I continue?
Ms Rushworth, do you have the, on your screen or in the room that you're in, somebody who is watching the live feed for the Royal Commission hearing?
MS RUSHWORTH: No.
MS EASTMAN: Could you turn your volume down, please, but not so much that we can't hear you. Can we test this again?
I'm sorry, Commissioners, but I'm getting a feedback and you may be receiving the same feedback.
Ms Rushworth, can I ask you to say something, let's test this.
MS RUSHWORTH: Good morning, everybody.
MS EASTMAN: That sounds better. Let's see how we go. All right, so you've prepared a statement for the Royal Commission dated 26 August and it has a number of annexures. Do you have a copy with you?
MS RUSHWORTH: I do, yes.
MS EASTMAN: Have you read through the statement recently?
MS RUSHWORTH: I have, yes.
MS EASTMAN: Are there any changes or amendments of any type that you wish to make to the statement?
MS RUSHWORTH: No.
MS EASTMAN: Are the contents of the statement true to the best of your knowledge and belief?
MS RUSHWORTH: Yes, they are.
MS EASTMAN: Commissioners, you will find a copy of Ms Rushworth's statement in Tender Bundle C. The statement is behind Tab 61 and there are a number of annexures at Tab 63 to 66.
Commissioners, could you mark the statement Exhibit 6-29 and the annexures 6-29.1 to 6-29.4?
CHAIR: Yes, thank you. That can be done.
EXHIBIT# 6-29 STATEMENT OF MS JANICE RUSHWORTH
EXHIBITS# 6-29.1 THROUGH TO 6-29.4 ANNEXURES TO STATEMENT OF JANICE RUSHWORTH
MS EASTMAN: Ms Rushworth, you commenced your current role in February last year, is that right?
MS RUSHWORTH: Yes, that's right.
MS EASTMAN: And you are responsible for overseeing the embedding of a disability practice in child protection ensuring high quality service delivery and outcomes for children and young people in care who present with a range of disabilities?
MS RUSHWORTH: That's correct. Yes, that's right.
MS EASTMAN: And in terms of the Department's responsibility for protecting children and young people who have been harmed or who are at risk, those functions are set out in the Child Protection Act of 1999 in Queensland, is that right?
MS RUSHWORTH: Yes, that's correct.
MS EASTMAN: And there will be circumstances where children may be taken into care, is that right?
MS RUSHWORTH: Yes, that's correct.
MS EASTMAN: And in paragraph 7 of your statement, you set out some the phases that child protection regime in Queensland follows. So Phase One being an intake phase, Phase Two being investigation and assessment and Phase Three being ongoing intervention?
MS RUSHWORTH: Yes.
MS EASTMAN: Now, I wanted to ask you about the observation you make at paragraph 8 when you say:
In undertaking child protection work, in addition to the requirements of the [Child Protection Act], the Department must also have regard to the requirements of the Work Health and Safety Act .... and Criminal Code .... and make decisions that give proper consideration to the Human Rights Act 2019 ....
Now when we read through the balance of your statement, you don't return to the requirements for the Work Health and Safety Act or the Criminal Code or in any detail to the Queensland Human Rights Act. So can I start by asking you what are the requirements of work health and safety that are relevant to the child protection role?
MS RUSHWORTH: When we were writing this statement, this was actually to do with to do with restricted practices, that's why this was here. But if you're looking more generally at the work health and safety role I'm afraid I'm going to have to take that one on notice. The Criminal Code also was in relation to restrictive practices as well.
MS EASTMAN: And the Human Rights Act?
MS RUSHWORTH: That was also in relation to the work that we're talking about here today.
MS EASTMAN: Now, can I turn to children and young people in care in Queensland, and you provide in your statement at paragraph 13 a table, which I will ask to come up now.
Commissioners, this is page 5 of the statement, so it's statement, and the number is STAT.0143.0001.0001, have you got that? Yes, all right.
Did you prepare this table when you made your statement, or did somebody else prepare this for you?
MS RUSHWORTH: I have a data analyst who prepared the table for me.
MS EASTMAN: All right. And this table sets out the children who are subject to child protection orders granting custody or guardianship to the Chief Executive of the Department as at 15 August, and you say that this data is only inclusive of children and young people with approved NDIS plans and does not capture individuals who are yet to have plans approved, and nor does it capture individuals who are ineligible for NDIS funding?
MS RUSHWORTH: That's correct.
MS EASTMAN: So in terms of those groups, do you know just generally the number of individuals who are yet to have NDIS plans approved and the number of
individuals who are not eligible for NDIS funding who might be otherwise caught by this table?
MS RUSHWORTH: No, I don't.
MS EASTMAN: So focusing on these children and young people who are people with approved NDIS plans, the table sets out a range of primary disability. Does identification of the disability come from the NDIS requirements or does this come from part of the data in the way in which Queensland collects data?
MS RUSHWORTH: It will come from the diagnoses that are within the child's plan.
MS EASTMAN: So the plan will tell us how the plan would identify the child's disability?
MS RUSHWORTH: It would have been part of the diagnostic material and the planning material that will have gone to the planners at NDIS.
MS EASTMAN: And in terms of the data available to you, what information do you have as to the nature of the primary disability identified in that first column?
MS RUSHWORTH: We will have information that's contained within a child's file. We will have background information about the child's disability requirements, you know, through the diagnostic work that will have occurred through the work of the child safety officer, often alongside our specialist services clinicians who are now working with children with disability.
So there will be a great deal of information about what are the disability support needs of the young person, and that will be related, obviously, to the way in which the funding that's contained within the child's plan will be spent.
CHAIR: Ms Rushworth, we're still getting some feedback and we've had a team of investigators looking at this, and we think you've got a fan on in your room that is blowing into your microphone.
MS RUSHWORTH: We'll turn that off, Commissioner.
CHAIR: Thank you. Thank you very much.
MS EASTMAN: One of the primary disabilities is identified as developmental delay, and this is the third highest group of children and young people with disability who are subject to guardianship of the Chief Executive. Do you know what developmental delay is intended to cover?
MS RUSHWORTH: We were talking here about neurodevelopmental issues for children, so any number of things that would affect the child's neurodevelopment. So, for example
MS EASTMAN: Yes, sorry, go ahead.
MS RUSHWORTH: So developmental delays where a child is not following their usual pathway through development. So in terms of their physicality and their speech and language development, their ability to take part in activities, socially --- there's a number of things that that would include in terms of developmental delay. It can also
MS EASTMAN: The Royal Commission sorry, go ahead.
MS RUSHWORTH: No, it's fine.
MS EASTMAN: The Royal Commission's heard over the course of the past week that a number of children and young people have a number of disabilities, for example, both autism and intellectual disability. How are the disability identified where there's a combination or a number of disabilities? Does that have a bearing on whether the child might be identified as autism primarily or intellectual disability? Is there a system to that? I'm asking you that because autism and intellectual disability are the two highest categories for guardianship to the Chief Executive?
MS RUSHWORTH: Yeah, that's right. Within the child protection system we have children with multiple difficulties. This, in a way, is a little bit of a false picture, perhaps, of actually what's occurring on the ground. And I really need you to know that the careful work that we do on the ground through particularly specialist services, and working with our child protection colleague, is that we do have a fulsome picture of the complexities of the child's presentation. So, actually
MS EASTMAN: If you just pause there, I'm not being critical.
MS RUSHWORTH: That's all right.
MS EASTMAN: I'm trying to understand what you're telling the Royal Commission here so that we have a picture of how we can understand this table and what it means.
So it's the case, isn't it, that or are you telling the Royal Commission that this identifies primary disability, and is that because somebody in the child's file has identified the primary disability as autism or intellectual disability, and this table is not seeking to go further about looking at where a child might have a range of different disabilities?
MS RUSHWORTH: Yes, that's correct.
MS EASTMAN: Now, in addition to identifying disability for the 1,107 children in the guardianship of the chief executive, are you able to tell us --- and if you don't know let me know --- the gender of the children? Can you give a breakdown?
MS RUSHWORTH: No, I'm not able to do that, no.
MS EASTMAN: Are you able to give any breakdown of whether a child identifies as First Nations?
MS RUSHWORTH: Yes, I am able to do that. That is data that we do segregate on a regular basis, and I do actually have some information here that I can give you if required, and I can send that to you after the hearing is finished.
MS EASTMAN: Have you got that data in front of you?
MS RUSHWORTH: Yes, I do have it in front of me.
MS EASTMAN: Of the 1,107 children in guardianship, or the 214 in the custody of the chief executive, how many of those children and young people identify as First Nations?
MS RUSHWORTH: So, those in guardianship to the chief executive we have 474 children and in custody to the chief executive we have 90, with a grand total of 564.
MS EASTMAN: Would you agree that's a fairly significant proportion if one considers the overall proportion of First Nations people in the population generally?
MS RUSHWORTH: Yes, and we're aware first of all that we have a very high number of children within the child protection system from First Nations backgrounds. But also that we need to be very aware of the disability issues for these children, which have often not been particularly well addressed.
MS EASTMAN: And what about children from culturally and linguistically diverse backgrounds, is there any data that you have in relation to children from those backgrounds?
MS RUSHWORTH: No.
MS EASTMAN: And what about the age of the child or the young person? Do you have any data there that might help us understand age, whether you've got a preponderance of teenagers or a preponderance of children in early childhood phase? Is there any data of that kind?
MS RUSHWORTH: I think it's something that we could get for you, but I don't have it in front of me now.
MS EASTMAN: I want to turn to the Department's approach to addressing behaviours of concern and in particular, the extent to which, in Queensland, if at all, children and young people are subject to any form of chemical restraint.
Before I start, Ms Smith, who has just given evidence, has said in her statement that the use of chemical restraint in Queensland is a prohibited practice for children in care. Is that your understanding?
MS RUSHWORTH: Yes, it is.
MS EASTMAN: And so the starting point should be that there should be no use of chemical restraint for any child in the chief executive's guardianship or care, there should be no chemical restraint for those children, is that right?
MS RUSHWORTH: That's the theoretical basis, yes.
MS EASTMAN: And so even though it's a prohibited practice, it's the case that children in Queensland are subjected to chemical restraints?
MS RUSHWORTH: When we find that this is the case, we take that matter very seriously. You know, within the Child Safety Practice Manual we have a very clear methodology for making sure the use of psychotropic medication is only for its intended purpose, and for a diagnosed medical condition. So we're very clear about that process and understanding the difference between that and when a child is subject to medication that is not for a diagnosed medical condition. So we're very careful with the way we manage that within the child protection system and that process has been in place for some time.
Once a doctor prescribes a medication, we go through a very clear process to ensure that what the doctor is prescribing is specifically around the child's medical issues. We look carefully at the dosage, the way the medication is managed, what might the side effects be for that medication, prior to any consent being made. We obviously
MS EASTMAN: You say in paragraph 30 of your statement that:
The Department does not retain a centralised database with respect to the prescription of psychotropic medication for children with disability in the care of the Department.
If there is no centralised database, then how does the Department keep a relevant record in relation to when psychotropic medication is prescribed for children and whether the prescription of psychotropic medication for children is being used for a therapeutic purpose or is being used as a chemical restraint? If there's no database, how can you track these matters?
MS RUSHWORTH: The information about a child's the use of psychotropic medication and the consent for that is saved in the child's file. But it's not something that's retained centrally that occurs in the regional services, regional delivery of services, so in the child safety service centres.
CHAIR: Ms Rushworth, what is the source of the prohibition on the administration
of psychotropic drugs as a chemical restraint for children in care in Queensland?
MS RUSHWORTH: Yes, that's a really important question, and I would take you back to where we started our discussion this morning, which is about the legislative environment which we work within in the child protection system. So we have a number of competing legislations that we need to be mindful of, one of which is the Criminal Code, another of which is, of course, the Child Protection Act itself, now the Human Rights Act, now that it's here with us in Queensland, the Work Health and Safety Act.
If you look because we don't have authorisation for the use of these practices, this means that we have to be very careful in working within the remit of that legislative context. And, in fact, you know, particularly the Criminal Code, we have to be very careful that we are not at risk of deprivation of liberty or of physical assault of a child because we don't have authorisation to use any of those practices outside of a diagnosed medical condition.
CHAIR: So the source of the prohibition, as you understand it, is the Criminal Code which imposes sanctions for assault and in the absence of affirmative authority to administer psychotropic drugs as a chemical restraint it could constitute an assault of the child, is that what you're saying?
MS RUSHWORTH: Yes, that's correct. There are other yes, that's correct, yes.
CHAIR: Yes, thank you.
MS EASTMAN: So of the just over 1,300 children who are either in guardianship or custody of the Chief Executive, how many of those children are currently subject to a prescription for psychotropic medication for any purpose, be it health or managing behaviour?
MS RUSHWORTH: I don't have that information.
MS EASTMAN: Do you know how many are prescribed a psychotropic medication for a health a diagnosed health condition?
MS RUSHWORTH: No, I don't have that information either.
MS EASTMAN: Do you know, with respect to a psychotropic medication being used for the purpose of a chemical restraint of a child or young person, do you know the number?
MS RUSHWORTH: No, I don't have that number either.
MS EASTMAN: Do you know if anyone has those numbers or that data in Queensland?
MS RUSHWORTH: I would need to take that question on notice because I couldn't answer that definitively.
MS EASTMAN: To take it on notice, do I take it that the answer is no, you don't know now and that you'd have to make some inquiries?
MS RUSHWORTH: Yes.
MS EASTMAN: Do you accept that the absence of a centralised database in relation to the prescribing of psychotropic medications that you acknowledge in paragraph 30 creates a limitation on the Department having relevant information and readily available information?
MS RUSHWORTH: Yes, I do accept that, that that's a shortcoming, yes.
MS EASTMAN: If, in your role, you're not able to know at any moment in time, and you don't know how, the number of children who may be prescribed psychotropic medication when they're in the guardianship or the custody of the chief executive, how then can there be any effective oversight of the use of that medication for a proper purpose?
MS RUSHWORTH: I think that makes it very difficult. I agree with you.
MS EASTMAN: How does the absence of that data help a child or his or her family have any confidence that the child in the custody or guardianship of the Chief Executive Officer will have that child's interests with respect to the administration of psychotropic medication being monitored properly?
MS RUSHWORTH: I think we go back, then, to the Child Safety Practice Manual, which does actually make a very excellent process for us to follow and all staff are expected to follow that. So in terms of process, that is very, very clear.
CHAIR: Is that manual the same as the Child Safety Policy that is annexed to your statement?
MS RUSHWORTH: No, no, it isn't. The policy is policies about positive behaviour support and the management of high risk behaviour. The Child Safety Practice Manual is a manual used by all people who work within the child protection system, and it's a manual that I also refer to in the work that I do, in embedding disability work into the system. So it describes all the different processes and the methodology and the activities that occur. It also includes practice kits which assist in the practical work that they need to do. So, for example, we'd recently been working on the intake process to ensure that when a child is brought into the child protection system, if there is recognition that the child has a disability, that that's recognised and if necessary we can assist our intake colleagues, you know, if there are issues that need to be assisted to a family as they come into intake.
So the Child Safety Practice Manual is a very live document. It's online so it can be changed as required, and I've been doing a great deal of work with my colleagues who work to create
CHAIR: Ms Rushworth, can I interrupt you? The point of my question is the policy statement on the first page restricts the use of restrictive practices on children, does it not? It says:
Restrictive practices are any interventions that impacts on the rights or freedom of movement of a person with the primary purpose of protecting the person or other people from harm.
It goes on to say:
Restrictive practices do not facilitate long term behaviour change and must not be the sole method used to manage a child or young person's behaviour. For any restrictive practice must be a strategy to reduce and minimise its ongoing use.
So that contemplates, doesn't it, that the chemical restraints can be used?
MS RUSHWORTH: Not that they can be used, but we need to be very aware of the fact that they are not used inappropriately with our children. It's awareness. That's about awareness.
CHAIR: Yeah, well it still contemplates that restrictive practices including chemical restraints, by definition a chemical restraint includes the administration of a psychotropic drug for the purpose of managing behaviour and not for the purpose of treating a mental illness, so it does contemplate, does it not, that chemical restraints in that sense may be used?
MS RUSHWORTH: Yes, it does, as a fact, yes. It does.
CHAIR: That means that your statement that there is no lawful basis for administering a chemical restraint, as I understood it that's what you said earlier, may not be quite right.
MS RUSHWORTH: I accept that.
CHAIR: Thank you.
MS EASTMAN: Just if you've still got a copy of that policy with you, if you, and my copy's not paginated but if you go to using the document reference at the top of the page, the last four digits are 0025 [QLD.0003.0024.0025]. Have you got that? And it has the use of psychotropic medication for mental health.
MS RUSHWORTH: Yes. I've got it.
MS EASTMAN: So in this policy that Commissioner Sackville's taken you to, it's the Child Safety Policy. There is a recognition for "The use of psychotropic medication for mental health".
MS RUSHWORTH: Yes.
MS EASTMAN: It says:
The use of any medication to manage the behaviour of a child or young person in the absence of a diagnosed health or mental health condition is not supported by the Department.
And this is considered a chemical restraint, and we're referred to prohibitive practices in the managing high risk behaviour policy, and I will come to that in a moment. But if you turn to the next page, there's a heading called "Prohibited practices".
MS RUSHWORTH: Yes.
MS EASTMAN: And the prohibited practices that are unlawful and unethical practices, which present a high risk of causing high level of discomfort and trauma, and in terms of the prohibited practices there's a list with the dot points there from corporal punishment to mechanical restraints, aversive strategies, seclusion, et cetera. But chemical restraint is not one of the prohibited practices, you'd agree with that?
MS RUSHWORTH: Yes. But it is included in the sorry.
MS EASTMAN: I'm sorry?
MS RUSHWORTH: It is included in the managing high risk behaviour.
MS EASTMAN: But in terms of a prohibited practice, that it's coming back to the question the Chair asked to find what the legal or policy basis is, that it's not a prohibited practice, so you say we have to go to the next policy which is the policy in relation to high risk, is that right? Managing high risk behaviour?
MS RUSHWORTH: Yes.
MS EASTMAN: All right. Have you got that with you?
MS RUSHWORTH: I do have.
MS EASTMAN: So this policy deals with restrictive practices generally, and there's a list of particular restrictive practices, including the use of restrictive practices in emergency situations.
MS RUSHWORTH: Yes.
MS EASTMAN: If I can ask you to turn a few pages in and the number at the top of the page is 0033. We come back to that heading "Prohibited practices", which takes us back to section 122 of the Act, and then there's a list of particular practices there, so physical it starts with physical restraint.
MS RUSHWORTH: Yes.
MS EASTMAN: And you will recall I asked you a moment ago about the absence of chemical restraint in the other policy, but if you turn to the page ending 0034 at the top of the page, chemical restraint is included.
MS RUSHWORTH: Yes, it is.
MS EASTMAN: So are we to understand that from the Department's perspective, while a prohibited practice for the purpose of legislation doesn't include chemical restraint, from a policy perspective, the Department includes chemical restraint and presumably as part of an unethical practice, would that be does that accord with your understanding?
MS RUSHWORTH: Yes, it does.
MS EASTMAN: And in terms of the use of chemical the use of medication as a chemical restraint to manage a person's behaviour, the definition used here is the same definition used in relation to a chemical restraint for an adult, is that right?
MS RUSHWORTH: Yes. We have used some of the NDIS definitions to assist. So we have some alignment with them.
MS EASTMAN: Okay. And in terms of explaining the policy on chemical restraint, can I and I'm not being disparaging in saying this, can I suggest that that paragraph under the heading "chemical restraint" is very difficult to understand what the Department's actual policy is? Would you agree with that? Let me put it this way. How would I know what's in and what's out? How would I know that?
MS RUSHWORTH: So you're referring to where we've written:
Chemical restraint is the use of medication to manage a person's behaviour where they are prescribed for the primary purpose of controlling the child or young person's behaviour, and not in response to a mental health or medical condition.
It comes under the heading of "Prohibited practices", so that's our position.
MS EASTMAN: Alright. Okay. The final thing I want to ask you about is just the interaction of the NDIS Rules with the functions that apply to Queensland in relation to child protection, and you've dealt with this in your statement from paragraph 36
and following. And at paragraph 36 you say:
.... the current legislative frameworks with respect to restrictive practices can result in carers failing to adhere to their obligations [under a range of legislation, both] State and Federal ....
And then there may be confusion in terms of what laws will apply.
And then in paragraph 37 you say:
The Department considers it has a duty of care to act in a certain way to ensure the safety wellbeing and best interests of the child are met but this is not always consistent with the NDIS definitions with respect to the use of restrictive practices.
And you give some examples about seatbelts and locking doors. Can I ask you, from a practical perspective, what have been the difficulties for the Department exercising its duty of care but not seeing its ability to do so consistently with the NDIS definitions?
MS RUSHWORTH: Yes, there is most definitely a rub that we find in working under federal law as well as our own laws which we've talked about previously and, you know, we understand, for example, that practitioners, so people who are who write positive behaviour support plans, NDIS positive behaviour support plans, they have obligations to their registration in relation to the NDIS, and some of that some of the things that they're obliged to do is about writing in restrictive practices if they find that they're necessary.
Now, there has been some difficulties with this obviously because what the NDIS consider to be regulated restrictive practices are actually prohibited practices under our policies and because of the legislative environment that we need to work within. And so clearly there is there are difficulties there in ensuring that we have an understanding.
But I need you to know that in recent weeks I've been working with the NDIS Quality and Safeguard Commission at a local level and also the Positive Behaviour Support Adviser at their national office to see in a practical way what we can manage to do in collaboratively working together, not that we I think there will be points at which it will be difficult, but at least so that we can begin to understand each other's environments. So we understand the NDIS and their rules, and the obligations of their practitioners, but also that there is an understanding of the current environment that we need also to work within.
I know that there was one of your previous witnesses who made mention of the fact that, you know, she just wrote the plan and wrote restrictive practices in and hoped that the NDIS and child safety would work those issues out. Well, indeed, that is what we're attempting to do, is to work collaboratively to look at both our
environments so that we can reduce some of the confusion for people.
The other issue we have
MS EASTMAN: Sorry, can I just come back to the question that I asked you.
MS RUSHWORTH: Sorry, am I rambling?
MS EASTMAN: No, it's fine. We have your statement, there's a lot of information in your statement, I really want to focus on where you identify these difficult issues in discharging duty of care and I asked you from a practical perspective. I'm happy to narrow it down.
MS RUSHWORTH: Alright.
MS EASTMAN: In your statement the practical issues seem to be containment and physical type restraints from locking doors and seatbelts, but what about chemical restraints? Where have the difficulties of dealing with the Queensland regime and the NDIS regime raised difficulties in discharging duty of care in chemical restraints?
MS RUSHWORTH: So you're talking specifically about NDIS here. So what we have found is that
MS EASTMAN: I just want a practical sorry to interrupt you.
MS RUSHWORTH: You want a practical example.
MS EASTMAN: And I'm sorry if I haven't explained this. You've told us there are difficulties between the two systems and you're concerned Queensland discharges its duty of care.
MS RUSHWORTH: Yes.
MS EASTMAN: It's helpful for us to know, how does that actually work in practice? Has there been a particular example, a particular situation, and if there is a situation that you can speak about in relation to chemical restraint, that would be of assistance to the Royal Commission.
MS RUSHWORTH: Okay, I will do that for you.
MS EASTMAN: Thank you.
MS RUSHWORTH: I have an example here and if you don't mind, I will read from the information that I have as a practical example.
So we have a young woman with a diagnosis of autism, intellectual disability and
self injurious behaviour. She's an NDIS participant and has core funding supports, capacity and building supports. I'm sure you don't need to hear about that.
When our specialist services clinician commenced working with this young woman, they identified that they were there had been a recent commencement of the use of risperidone, and it was not clear to the clinician why that was the case, so why had that medication been prescribed. So this is good, because we are finding where these issues are. This is great. That's what my clinicians do.
The clinician recently approached the paediatrician to complete a draft version of the Clarification of Medication form. I say "draft" because although we have a clarification of medication in the Child Practice Safety Manual, there's a recognition that we need to look more broadly at medication, and so we'd be looking at all medications that this young person was under. I've actually, with my colleagues, have drafted something that will go in the Child Safety Practice Manual
MS EASTMAN: Can I just bring you back to the practical example, please.
MS RUSHWORTH: The form is completed, it indicates that the medication is prescribed for the purpose of managing her behaviour, and that there had been recent increase of the medication to half a tablet, to twice a day. So with that new information then, the clinician will now work with the Child Safety Officers to follow the procedure that's in that Child Safety Practice Manual that we have recently talked about.
The clarification of the purpose of medication will be important to assist the relevant delegate, so that's our Child Safety Service Centre Manager, to make the decision about whether that person will give consent to use of that medication or not.
We then go to working with the PBS plan author. So once we've looked at that clarification of medication --- do you need to know any more or is that sufficient? It was very interesting to me in the writing of the PBS ---
MS EASTMAN: That doesn't sound like there's actually a difficulty in discharging a duty of care in both working with the policies and practices in Queensland and also meeting the NDIS requirements.
MS RUSHWORTH: But there would come a role when the PBS author believes that it is chemical restraint. And it was interesting that the clarification that was obtained actually by the specialist services clinician rather than PBS plan author, who intends to write chemical restraint into the plan. We haven't yet decided yet whether we will accept the whether we will give consent to the use of that medication.
CHAIR: Ms Rushworth, are you familiar with the NDIS Rules that apply to chemical restraints, the Restrictive Practices of Behaviour Support Rules?
MS RUSHWORTH: Yes, sufficiently, yes, I am, Commissioner.
CHAIR: They are not altogether easy to understand, but as I would read Regulation 13 which is the one that applies to the use of a regulated restrictive practice when not covered by a behaviour support plan or by a State and Territory authorisation is not required. As I understand it, a State or Territory Queensland authorisation is not required for the administration of a psychotropic drug as a chemical restraint to a person under 18. There's nothing said about it in Queensland. Is that right?
MS RUSHWORTH: Yes, I hope that I have understood the question properly. I think the important thing to note here is that ---
CHAIR: No, I don't want to know what the important thing is, I just want to know whether you share my understanding of ---
MS RUSHWORTH: I think you might need to repeat would you mind repeating that again for me, please?
CHAIR: What I'm suggesting, on my reading of Rule 13, and I may be wrong, is that it applies to a child under the age of 18 in Queensland with a disability who is in care because that is a situation where an authorisation, however described, is not required by Queensland law. There simply is no procedure for an authorisation.
MS RUSHWORTH: No, that's correct. That's absolutely correct.
CHAIR: If it's correct, it follows, doesn't it, that the NDIS may allow the administration of a psychotropic drug as a chemical restraint to a child under 18 in Queensland who is in care, without your Department necessarily knowing about it?
MS RUSHWORTH: I would rather hope not. I think because these are our children, we are the corporate parent and we need to work ---
CHAIR: I'm sure I share your hope. My question is, can it occur?
MS RUSHWORTH: No.
CHAIR: Why not?
MS RUSHWORTH: Well, you know this is, we were talking about children here, Commissioner. You know that there surely must be work that we need to do together. Why would the NDIS create a plan without working collaboratively with the people who need to be working with the child? So in terms of child safety ---
CHAIR: I don't know, Ms Rushworth, and that's why I'm asking you. Thank you.
MS RUSHWORTH: Okay. Part of the conditions, part of the part of the conditions of the practitioners’ registration is that they observe certain capabilities, and one of those is openness and transparency, and also collaboratively working with
whoever is the guardian or the parent or the carer of a person and that would, of course, include a child. So there's an obligation on them in terms of their practice.
MS EASTMAN: Commissioner, I'm conscious of the time and Ms Lockyer is waiting, but can I thank Ms Rushworth for her evidence.
We have your statement and the documents attached to it, and we will take all of that material into account. But thank you for your time in explaining some of these difficult and challenging issues this morning.
MS RUSHWORTH: That's no problem.
CHAIR: Thank you very much, Ms Rushworth, for your statement and for giving evidence this morning. Thank you.
THE WITNESS WITHDREW
MS EASTMAN: Commissioners, Donna Lockyer is the next witness and I'm not sure whether she's in the same place as Ms Rushworth and whether there just needs to be any short break to just change seats.
MS McMILLAN: Commissioner, it's Kathryn McMillan speaking. Could you just give us a couple of minutes? She's in the building. We just need two or three minutes to do the transition.
MS EASTMAN: Commissioners, if we just adjourn for a couple of minutes to allow the transition to occur.
CHAIR: Certainly, we'll just adjourn for a couple of minutes.
ADJOURNED [12.12 PM]
RESUMED [12.15 PM]
CHAIR: Yes, thank you. Ms Eastman.
MS EASTMAN: The next witness is Donna Lockyer, also from Brisbane.
CHAIR: Ms Lockyer, thank you very much for coming today to give evidence and for your statement. Would you mind following the instructions, please, of my associate who will administer the oath to you.
MS DONNA LOCKYER, SWORN
CHAIR: Thank you, Ms Lockyer. Ms Eastman will now ask you some questions.
EXAMINATION IN CHIEF MS EASTMAN
MS EASTMAN: Good afternoon, Ms Lockyer. Can I confirm that you are Donna Lockyer?
MS LOCKYER: Yes, Donna Gillian Lockyer.
MS EASTMAN: You are the Executive Director, Restrictive Practices and Specialist Disability Programs with the Department of Communities, Disability Services and Seniors in Queensland?
MS LOCKYER: That's correct.
MS EASTMAN: You've prepared a statement dated 3 September this year. Do you have a copy of the statement with you?
MS LOCKYER: I do.
MS EASTMAN: Have you had a chance to read over the statement recently?
MS LOCKYER: Yes, I have.
MS EASTMAN: Are there any corrections or amendments that you wish to make to any part of the statement?
MS LOCKYER: No.
MS EASTMAN: And is the statement true?
MS LOCKYER: Yes.
MS EASTMAN: Commissioners, you will find a copy of Ms Lockyer's statement in Tender Bundle C behind Tab 38 and there are a number of annexures at Tabs 40 through to 52. Could I ask you to mark the statement as Exhibit 6-26 and the annexures Exhibits 6-26-1 through to 6-26-13.
CHAIR: Yes, thank you.
EXHIBIT# 6-28 STATEMENT OF MS DONNA LOCKYER
EXHIBITS# 6-28-1 THROUGH TO 6-28-13 ANNEXURES TO STATEMENT OF DONNA LOCKYER
MS EASTMAN: Ms Lockyer, in the time that we've got available, I want to ask you about the short term approval processes, and by asking you only about that one matter, that's not to diminish anything in your very comprehensive statement setting out the history, the Carter Report, regulations, data, and the like. But I'm interested in asking you about the short term approval process as to how it operates in Queensland, and then what it means for NDIS participants in Queensland.
So can I start by asking you to look at the policy on chemical restraint. Now that might be the document marked 16 to your statement but for the Tender Bundle purposes it's Tab 52. And it's a document headed "Chemical restraint" and it has a date of August 2020 on that. Have you got a copy of that?
MS LOCKYER: Yes, I'm just bringing it up now.
MS EASTMAN: Were you responsible for the drafting of this document?
MS LOCKYER: No, I wasn't.
MS EASTMAN: Was this done by somebody in the Department?
MS LOCKYER: Yes, it was. The original document was drafted when the Centre of Excellence was active, and we updated it recently as part of a review of some of our policies and procedures.
MS EASTMAN: That's what I wanted to ask you. This bears the date August 2020. What are the changes or new features of this policy in terms of chemical restraint in Queensland, and can I preface this that this is a policy that applies only to adults, not to children and young people, is that right?
MS LOCKYER: That's correct, yes.
MS EASTMAN: What were the changes or new features of this policy?
MS LOCKYER: So I'm just having difficulties trying to locate the specific policy. I understand, my recollection is that we updated this policy in relation to my recollection is the addition of regular assessments, in particular actually, sorry, I'm unsure of the specifics. I do know we undertook a review of a number of our policies I'm sorry, I don't recall the specifics.
MS EASTMAN: Do you know if part of the review was to take into account any
particular practices or guidelines developed by the NDIS?
MS LOCKYER: That's a possibility, yes.
MS EASTMAN: And do you know whether the revision of this policy included any consultation with pharmacists?
MS LOCKYER: I don't believe so, no.
MS EASTMAN: Do you know if there was any consultation with general practitioners and/or psychiatrists?
MS LOCKYER: At the review recently I don't believe so, no.
MS EASTMAN: Can I ask you about short term approval applications. At paragraph 40 of the statement you set out the short term approval application figures for the period 1 July 2019 to 30 June 2020 and the Department received 250 short term approval applications and then looking at those applications, 184 were authorised, 22 were withdrawn and 36 were not approved. So I wanted to ask you, can you assist the Royal Commission in explaining what the Department's role is in receiving short term approval applications and the way in which the Department approaches making a decision as to whether to approve or, as your recent data indicates, also to reject an application? What's the process?
MS LOCKYER: Absolutely. So the Department's responsible for administering our legislation in relation to short term approval for restrictive practices that don't include containment or seclusion. So as the Public Guardian mentioned earlier today, they are responsible for short term applications that involve containment, seclusion and also may involve chemical restraint.
So we receive a short term approval for chemical restraint, and with that comes a large body of evidence that is outlined in our legislation that the provider needs to document for us which includes things such as ensuring that it is the least restrictive alternative, ensuring that the Clarification of Purpose Form has been completed by the doctor, and also that all relevant parties, including loved ones, family members, and in particular the treating practitioner has been consulted in the application for that short term approval.
MS EASTMAN: Can I ask you to stop there. In terms of the way in which approvals are done, you've included in your statement, and it might be behind Tab 9 of your exhibit, which I think, Commissioners, you will find at Tab 45, there's an actual application form and I don't need the form to come up on the screen.
But the matters you've just identified, Ms Lockyer, they're the questions and the prompts that appear in this form, is that right?
MS LOCKYER: Yes, that's correct.
MS EASTMAN: And this is a form used for a short term approval regardless of the restrictive practice, so it can include a chemical restraint by reference to a fixed dose or chemical restraint by PRN, so as required, is that right?
MS LOCKYER: Correct, yes.
MS EASTMAN: If this would help you to continue to answer the question, and we can put this up on the screen. Behind Tab 10 in your statement, and, Commissioners, this will be behind Tab 46 in part C, there is a diagram setting out the process for short term approval.
Ms Lockyer, are you familiar with this document?
MS LOCKYER: Yes, I am.
MS EASTMAN: If we keep that up on the screen, would it be helpful and we can zoom in on particular parts, to just help us understand what, may I say, looks like quite a complex process to obtain a short term approval. So walk us through this, if you can.
MS LOCKYER: Okay, no problem. So the short term approval comes in now to a central email where we sorry, the short term approval depending on the location of where that participant is residing, we have an email established for all short term approvals that go to the regional delegates in the event that a provider is unsure. They do also have a central email box where those short term approvals are triaged. Those STA forms are opened by the principal clinician, and if it's in the appropriate region, then it stays there and if not then it's reallocated to the appropriate delegate that has ownership over those regions.
The STA form is then allocated to an appropriate clinician and then we do all of our management of documentation to ensure that it's saved appropriately and confidentially in our systems that we have available.
And then we go into the clinical integrity of the information provided where the clinician, the lead clinician will review all information and documentation to ensure that what we have received is sufficient in order for us to progress an application, and that's clearly articulated in our legislation. And then we will start the assessment process from there if all information is obtained.
So those elements there in the red are ---we obviously check that the person fulfilled our legislative requirement in terms of being over 18, they do not have --- or are deemed at this point in time not to have capacity to make decisions in relation to restrictive practices.
MS EASTMAN: Just pausing there. How is that checked? Is that based solely on the information contained in the application or is there a separate inquiry or
investigation that's undertaken?
MS LOCKYER: Yes. So capacity is first ticked in that STA form by the provider. However, as part of the STA process, the delegate does need to be somewhat confident in terms of the person's capacity and the information provided around that in terms of their confirmation that the person has an intellectual or cognitive disability. In addition to that, it is more formally checked through the guardianship process. So although we do absolutely need to be, at that point in time, assured that the person doesn't have capacity, and we do that also through consulting with family members, the person with a disability, if that's possible, and their loved ones, and I think you may have seen, too, that there have been occasions where we've not approved a short term application because it's been clear that the person actually has been deemed to have capacity.
And then all of the other information that is reviewed, so in terms of ensuring that the provider has consulted with all relevant parties, again, as outlined in our legislation.
MS EASTMAN: There's a box there that says "Is a legal opinion required?" And depending on the answer to "yes" or "no" on that, various things happen. In what circumstances would a legal opinion be required? Is that to satisfy one of the elements about capacity or age or something of that kind?
MS LOCKYER: That's correct, yes.
MS EASTMAN: And why is that a legal function as opposed to a function performed by a clinician, a medical practitioner or information of a family member?
MS LOCKYER: We certainly wouldn't be consulting with our legal services around a psychotropic medication. We would be consulting with a treating practitioner but we would definitely consult with legal services if we were concerned about an ambiguous issue that had been provided in the application form and whether or not it satisfied our legislative requirements as outlined in the Act. That's when we would consult with our internal legal services.
MS EASTMAN: All right, and then depending on which way it goes, it ends up in the ongoing contact with the stakeholders, and then a written decision notice is prepared. Is that right?
MS LOCKYER: That's correct. And that decision notice is very comprehensive, and it includes all of the actions taken by the delegate in terms of who they have consulted with, and the views of those people who they've consulted with, and the outcome of the decision in relation to whether or not a particular restrictive practices has been approved.
MS EASTMAN: In terms of the notice of decision, does it set out the reasons why a short term approval is made?
MS LOCKYER: Absolutely, yes, it does.
MS EASTMAN: And is there any capacity for any person, be it the person who may be subjected to the restraint or an advocate on their behalf, challenging the decision at all?
MS LOCKYER: There is an opportunity --- if they don't agree with the decision that we have made, there is an opportunity for them to appeal that decision to QCAT.
MS EASTMAN: And then would that be a review that looks at the merits of the case and QCAT steps into the shoes of the Department to make the decision again, is that the process?
MS LOCKYER: In the time that I've been in this role, we haven't actually had an appeal of a decision.
MS EASTMAN: That was my next question I was going to ask you, has anybody appealed the decision?
MS LOCKYER: No. And to be honest, the STA process with our delegates is very much a collaborative approach, and where there is disagreement, we will work with the relevant parties to try and come to the best outcome for the client at that particular time, noting that the short term application is actually an interim application. The purpose of that application is to give the provider a short term legal authority, if you like, to actually implement that restrictive whilst the fulsome positive behaviour support, the assessments and the much more, I suppose, rigorous assessment and clinical assessment is put into that positive behaviour support plan, and then that plan needs to be authorised by the appropriate authorising body.
MS EASTMAN: Then looking through each of those steps, what's the average time it takes from the application landing in the email box at the start through to the decision being finalised?
MS LOCKYER: In our legislation, it's clear that providers actually have 30 days whilst the STA decision is being considered. So, operationally, we obviously like to act within that time frame to ensure that that legal authority does not expire before we make the decision. Some of the decisions we make are relatively easy in terms of it might be a new provider into the individual's support space. So restrictive practices are already have already been authorised through the OPG for two providers, but a third provider has come in and even though they need to evidence the same evidence, that would be a quicker decision, if you like, than say, for example, a child that's transitioning into adulthood and/or, say, a person that has resided their entire life with their family, and the family have now decided to support their loved one moving into supported, independent accommodation. So those situations we would take considerably more time to make that decision.
MS EASTMAN: Now I want to ask you, just in terms of another document you've
provided to the Royal Commission which you will find behind Tab 11, and, Commissioners, this is Tab 47 of part C of the Tender Bundle. It's a coloured table that sets out the restrictive practices requirements. Have you got a copy of that?
MS LOCKYER: I do. Yes, I do.
MS EASTMAN: And it deals with the, as I understand it, this is a table that brings together the relevant regulatory arrangements for approvals, consents and monitoring, with respect to a range of different restrictive practices, but I just want to ask you to come up on the screen about the chemical restraint in the context of the short term approval. So if you've got the document there, you will see that there's "General", "Respite (fixed dose) Only", "Community access services (fixed dose) Only", "Respite or community access (PRN)" or "Short Term Approval".
And the description that you've just given us from the flowchart on the tab before, how does that fit into this table where you can see for short term approval, there's no requirement for assessment, for a plan, and the approvals made by the Chief Executive delegate, and then plan implementation and monitoring all go back to the service provider.
So looking at that, where are the safeguards for a person with intellectual disability who may be the person about whom a short term approval application is made?
MS LOCKYER: So the purpose of this form is for providers and for the sector to understand, as you mentioned before, that there is some level and layers of complexity in our legislative framework. So the purpose of this form is for providers to understand who do what at which stage. The reason that the short term approval has no assessment or plan identified is because that's our responsibility and not the responsibility of the provider. So this is a --- it's a tool that we share with the sector around understanding what their requirements are.
MS EASTMAN: And finally, how does the arrangement set out in that table interact with the requirements of the NDIS? Is that something that you're familiar with?
MS LOCKYER: Yes, very familiar, yes.
MS EASTMAN: So is this table something that would assist a service provider to understand both obligations under Queensland law and also obligations under the NDIS Rules? Is that the intention of this table?
MS LOCKYER: No. The intention of this table was developed under the regime prior to July 1 and remains in play for our providers that don't actually fall within the purview of the NDIS Quality and Safeguards Commission, so that's our accommodation support and respite services, and other services such as continuity of services where these provisions remain because they fall outside the jurisdiction of the NDIS Quality and Safeguards Commission.
So the services now provided to NDIS participants, they are, after the short term approval process, their plans need to adhere to the interim plan, as designed and outlined in the NDIS Act and the NDIS Behaviour Support Rules, and also the comprehensive plan for which the NDIS also specifies.
MS EASTMAN: And in your experience, how are service providers navigating both the approval system, including the short term approval in the Queensland regime with their obligations to report unauthorised restrictive practices under the NDIS? Have you seen that system work smoothly or have there been some challenges?
MS LOCKYER: I think it's fair to say that our providers in Queensland have undergone a significant amount of change over the years, actually commencing with Carter, and with the recent amendments to the introduction of the Quality and Safeguards Commission, I think our providers were very well placed because they had already been reporting usage through to the State Government and the Centre of Excellence. So they were well placed in understanding what a reporting requirement looks like but I do think that there's been some challenges there where, for example, we've had instances where the Commission has informed us that a provider has reported to them that that provider's reporting usage on our database, and they had thought that they didn't need to report it to the Commission if they were reporting it to us.
So the Commission locally and us work incredibly collaboratively and obviously that involved us going out there and supporting that provider to understand that the needs system ---
MS EASTMAN: Ms Lockyer, I know that was sort of quite a race through one part of your evidence, but thank you very much for explaining the short term approval process.
CHAIR: Yes. Ms Lockyer, of the 250 STA applications received in 2019 2020, how many of those involved the administration of psychotropic drugs as a chemical restraint at the time the application was received?
MS LOCKYER: Sorry, Commissioner, are you asking how many --- all of the STAs that were applied for when they were received, the provider was under the belief at that point in time that it was chemical restraint? Normally that would have been because a doctor has indicated that it is for a behaviour of concern. However ---
CHAIR: Sorry, my question is how many of these, in these cases, would the person have been having administered the chemical restraint prior to the application for STA being received?
MS LOCKYER: Sorry, I didn't understand. Yes. In actual fact, we looked into that in preparation for today, and there was only two examples where the actual NDIS
participant wasn't being administered the medication, and that was for those situations it was because medication was Androcur, and the doctor did not want to write that prescription without the lawful authority of the STA because of the significant impact of that medication for the participant.
CHAIR: If I understand that correctly, most or nearly all were actually cases where the medication was being administered prior to approval being sought?
MS LOCKYER: That is correct, yes.
CHAIR: And your desire, or your Department's desire to formalise the process within 30 days is, in effect, to provide a kind of retrospective approval for what's been going on in any event?
MS LOCKYER: No. Absolutely not. The analysis of those STAs, which does result, and as you can see in the data, resulted in 36 applications not being approved even though the participant would have been taking that medication at that point in time.
CHAIR: Sorry, I understand that 36 were not approved. My question is, the desire to formalise or complete the process within 30 days is to ensure that the usage which had already taken place was legitimised?
MS LOCKYER: Yes, yes. Yes. Or lawfully administered.
CHAIR: What happened in the 36 cases where approval was rejected or refused?
MS LOCKYER: There's a number of reasons outlined in the statement around why they weren't, but in terms of what happens, in our decision notice we make it very clear to the provider and also to the major stakeholders that we've consulted with. So that will be the treating doctor, Mum, Dad and anyone else, that as a result of the authorisation being declined, they need to work with that treating doctor at titrating or reducing that medication with the doctor's support, because obviously we can't have people ceasing medication at a point in time and we will also then work with the provider to ensure that whilst they are continuing to administer that medication they are reporting what we call an unauthorised use of restrictive practices to the Commission.
CHAIR: Are there any consequences for the provider who has, by hypothesis, administered psychotropic medication as a chemical restraint without authority and without there being a basis for authority?
MS LOCKYER: I believe the authority at that point in time, prior to them making an STA, is that the provider is following the direction of a treating medical specialist who has prescribed that medication for that particular person, acknowledging that they still need the State based authorisation to come into play. So it is made somewhat difficult sometimes when our doctors and specialists aren't part of our
regulatory framework and providers, and loved ones, with all best of intent, administer medication as prescribed by that treating practitioner.
CHAIR: Yes, thank you. Do you have a question?
COMMISSIONER McEWIN: No, I don't. Thank you.
CHAIR: Commissioner Atkinson?
Thank you very much, Ms Lockyer, for coming and giving evidence today and for your detailed statement. Thank you.
MS LOCKYER: Thank you.
THE WITNESS WITHDREW
MS EASTMAN: Commissioners, there is also a further statement provided by the Queensland Government's Elizabeth Denny's statement and, Commissioners, could I ask you to receive that statement into evidence. You will find it behind Tab 53 and there's an annexure at Tab 55, and that would be marked Exhibits 6-27 and 6-27.1. We've not required Ms Denny for the purpose of any oral evidence for the purpose of this Inquiry.
CHAIR: Yes, thank you.
EXHIBIT# 6-27 STATEMENT OF MS ELIZABETH DENNY
EXHIBIT# 6-27.1 ANNEXURE TO STATEMENT OF ELIZABETH DENNY
MS EASTMAN: Commissioners, the next witness is Professor Julian Trollor. I'm mindful of the time, and I've found in the Homebush hearing that Professor Trollor was succinct and to the point, and so I hope that we will be able to complete his evidence in 20 to 25 minutes, which might take us just over 1.00 pm.
CHAIR: Okay, that's fine. Thank you.
MS EASTMAN: Professor Trollor is on the screen.
CHAIR: Professor Trollor, welcome back to the Royal Commission. I will ask you to take the oath which my associate will administer to you. Thank you.
PROFESSOR JULIAN TROLLOR, SWORN
CHAIR: Thank you, Professor Trollor. Ms Eastman will now ask you some questions.
EXAMINATION IN CHIEF BY MS EASTMAN
MS EASTMAN: You are Julian Trollor?
PROF TROLLOR: I am.
MS EASTMAN: And you are a Professor with the School of Psychiatry at the University of NSW Medicine at the University of NSW in Sydney?
PROF TROLLOR: That's correct.
MS EASTMAN: You're also a clinical academic and part of the Mental Health Program at South Eastern Sydney Local Health District?
PROF TROLLOR: I am.
MS EASTMAN: You provided the Royal Commission a very detailed and extensive statement to its Public Hearing Number 4 in February this year, and you make reference to that in a shorter statement that you've provided for the Commission dated 8 September?
PROF TROLLOR: That's correct.
MS EASTMAN: And so we are to read the short statement with the evidence that you provided to the Royal Commission which, Commissioners, is marked as Exhibit 4.09 from Public Hearing 4.
Professor Trollor, are the contents of your 8 September statement true?
PROF TROLLOR: Yes, they are.
MS EASTMAN: Now, you very kindly, and imposed by us, come to give some evidence to the Royal Commission, and there's four particular topics I want to focus on.
The first is, your evidence in February raised communication for people with intellectual disability and autism and it wasn't a topic we explored in any detail back at Public Hearing 4, but I want to just revisit your evidence from that public hearing where you told the Royal Commission that up to 80% of people with severe
intellectual disability do not develop effective speech, you told the Royal Commission over 50% of autistic people with disability experience severe or profound communication impairments, impacting on their understanding or their ability to be understood by others, and you'd told the Royal Commission that some people with intellectual disability or autism may struggle to identify or communicate their internal experiences of mental distress or physical discomfort to clinicians, and I think you observed on that occasion this can lead to diagnostic overshadowing.
So can I ask in relation to the observations that you made about communication, how does this impact on decisions that are made to administer a psychotropic medication to a person with intellectual disability or autism, who are displaying behaviours of concern?
PROF TROLLOR: It impacts both on the assessment of the person and on the ability of the clinician to engage the person in a decision about the appropriateness of psychotropic medication in terms of the assessment aspects, clearly most clinicians are familiar with a verbal interaction with a person that they're treating or assessing, and where that's not possible, if a clinician is not appropriately trained in methods other than verbal exchanges, this may present a barrier to effective assessment of the person and understanding of the nature of their problem, and if the clinician is also not aware of the need to involve carers and family members at the request of and to the extent determined by the person with disability, then alternate sources of information about the person and how they express themselves may remain obscure.
And then in the management aspects, of course, engaging the person in treatment decisions is paramount. The person with disability already experiences difficulty in that area and if the clinician does not know how to overcome that, there may be real limitations in the process of determining, together in partnership with the patient and their family and carers, the necessity of treatment, the appropriate risks that need to be monitored and how to do that sensibly.
MS EASTMAN: Earlier this week, Dr Jane Law, a general practitioner, gave evidence to the Royal Commission and Commissioner Sackville asked Dr Law about her training and experience, and she said she, in effect, has learnt on the job. Are you aware of any Australian training programs or aspects of the training of medical students or practitioners in terms of addressing these communication gaps?
PROF TROLLOR: Nothing systematic. I think in my previous evidence I referred to curriculum audits of both nursing and medical schools nationally, and more recently we've looked at progress in medical school teaching over 20 years, because a colleague, Nick Lennox and previous colleagues had done a survey 20 years earlier, and we found there was no substantial difference in training 20 years ago and now, suggesting no incremental progress has been made at a universal level to include the needs of people with intellectual and development disability in teaching for medical students.
At a professional level, there are different groups within the college related to
psychiatrists, general practitioners and physicians who have interest in this area, and there are small training programs that are rather bespoke. So if a trainee can get funding in psychiatry to do a specialty fellowship from a particular body, they may undertake a one or two year training program, but this is not something formally approved under the College. We're working towards that certainly within the College of Psychiatrists, and I know other colleges are considering the same.
MS EASTMAN: And the Commission has heard some evidence from Dr David Branford who was involved in the STOMP Program in the UK and from also from Paula McGowan, the mother of Oliver McGowan, about mandatory training programs that have been developed in the UK, and Ms McGowan said these are starting to be rolled out. Are you familiar with those training programs at all and if so, would they have any relevance to the Australian setting?
PROF TROLLOR: I am familiar with these programs. I think there are two aspects to them. One is that all health services in the UK, to my understanding, are required to make reasonable adjustments for a person with disability, and that has been the case under law for some time. And the other is a program of reducing the harms associated or the potential harms associated with psychotropic medication use in people with disability, and there have been some real positive impacts.
MS EASTMAN: Would it be worth the relevant Australian trainers and relevant Australian colleges and universities to have regard to some of the programs developed in the UK such as the Oliver McGowan Training Program?
PROF TROLLOR: Yes, I think it would be important that we design and implement minimum training tool kits across all universities who are teaching future doctors and nurses. It's important that they're developed in close consultation with people with disability and their families and that that teaching has an inclusive teaching framework.
MS EASTMAN: Now, one of the points that you raise in your statement of 8 September is that you say there are two fundamental problems that present major barriers to addressing restrictive practices including psychotropic prescribing, and the first problem, you say, is the laws, policies, codes and guidelines governing restrictive practices in Australia differ between States and Territories. And we've just heard some evidence about the regime in Queensland and this afternoon we'll hear about the regime that operates under the NDIS and the supervision of the Quality and Safeguards Commission. Why is the lack of consistency in laws, policies, codes and guidelines a barrier to addressing restrictive practices including psychotropic prescribing?
PROF TROLLOR: I think at a fundamental level, the impact is that a person with disability might be experiencing different approaches to restrictive practices and its regulation, monitoring, reporting, depending on a number of factors, whether that's their care context, whether or not they have an additional mental health diagnosis, whether they have the capacity or not to consent and whether they qualify for NDIS
support. So that those there's therefore some inconsistency that arises.
MS EASTMAN: Does the inconsistency mean there may be uncertainty in the medical profession, be it psychiatrists, and then GPs who may be involved in having to make a decision about whether a psychotropic medication can properly be prescribed for a therapeutic purpose, and when a medication may be prescribed for a non therapeutic purpose and be treated as a chemical restraint? Is that the reason why we need some consistency?
PROF TROLLOR: I don't think the laws, policies and codes are necessarily driving clinician differences in practice. Most clinicians practice generally within one State or Territory and should be aware of the requirements within their own jurisdiction.
I do think, though, there's disagreement about what constitutes restrictive practice particularly in regard to chemical restraint. Clinicians have various views, some of which are driven by a medical model, for example, if I'm a clinician who believes a diagnosis of autism is a medical and mental health condition, then I may not view chemical restraint occurs if I am prescribing a psychotropic medication. So, at a fundamental level, if we differ on our conceptualisation of disorders rather than viewing autism as a development difference. Viewing it as a medical condition, I may have a different opinion to the regulations and the requirements, and so I may struggle to understand why I should comply.
MS EASTMAN: How do you then build in safeguards at what has been described as the gateway as to whether a psychotropic medication will be prescribed for a therapeutic or nontherapeutic purpose? How do you get consistency at the gateway level?
PROF TROLLOR: I think consistency at the gateway level is difficult. The additional complexity, I think, arises when, as we've heard this week, the situations where there's been a difficult distinction between mental ill health and behaviours of concern and where the person has had a very complex presentation, indeed, that may be a very difficult, if not impossible task. So we must remember clinicians are doing their best in what are often very difficult situations.
Fundamentally, there are various options, I guess, to take out these uncertainties from the equation, one of which would be universally, regardless of whether we think the person has a mental illness or a behavioural problem, we view the use of psychotropic medication in the context as something that is warranting a certain process of scrutiny reporting associated with it. That's one solution. I think some colleagues would support that, others wouldn't.
I think we need to have a rich discussion around the table to harmonise definitions, conceptualisations, and approaches and the beginning of that discussion obviously needs to engage key agencies involved.
MS EASTMAN: I think that's your second point in terms of the second problem is
to address the issue at a national level involving all relevant stakeholders on a shared definition, and do you mean by that all relevant stakeholders being from both disability sector, from medical sector, from pharmacists and from those who have both the responsibility to prescribe and those with the responsibility to support a person who may be using psychotropic medication. Is that right?
PROF TROLLOR: Your list is almost complete. I think it's important to remember that people with disability and those that support them need to be absolutely central to that process. Some people, and families, for example, find the labelling of chemical restraint a really difficult term and quite distressing.
MS EASTMAN: And Dr Jennifer Torr gave some evidence yesterday and I understand her proposition is that making these distinctions as to what might be medical and what might be disability really leaves the person with disability floating between two systems and I think her view was that regardless of whether it's therapeutic or non therapeutic, regardless of whether there's substituted decision or supported decision making, that there should be some way of recording and keeping data of prescription of psychotropic medication regardless of its purpose and take us away from moving into a model that goes one way or the other depending on the clinician gateway. Would you have a view about that approach?
PROF TROLLOR: I would agree that that's a sensible and practical approach and the flow on benefit is that we no longer have disputes over whether someone should receive a publicly funded mental health service, for example. Typically a person presenting with behavioural escalation or challenging behaviours may or may not be afforded the benefit of a thorough mental health assessment by mental health services and this has traditionally been one of those huge issues created by the siloing between disability and mental health service systems.
MS EASTMAN: One reflection on the evidence this week is that it's not uncommon to see in written guidelines and policy expressions such as "person-centred" and references to human rights. But how do you genuinely make people with disability at the centre as opposed to being talked about, talked around, and the regulation to be done without their involvement? How do you achieve that? It might be quite a simple thing by simply asking how, from a systems based approach, do you achieve that?
PROF TROLLOR: I think what we need is, and we are beginning to see, a fundamental shift in our society in the way we think and include people with disability in all aspects. Some areas such as, perhaps, medicine are slower to see that change partly because of the process of de institutionalisation in which medicine was very much relegated to a secondary role in the support of people with disability and so we now need to make sure that culturally, within our professional training, within our health services systems, this view is embedded and without, I think, further efforts to do that, and without mandated requirement, we probably won't see much change.
MS EASTMAN: The final matter I wanted to ask you about is paragraph 10 of your 8 September statement, and that is that you identify a lack of population health data in Australia on the relationships between prescribing psychotropic medication and health outcomes for people with intellectual disability and autism and do I take what you say there that the lack of data has two important consequences: One, the data is needed to ensure safeguards and monitoring can operate effectively but in your area the data's also critical for ongoing research to identify systemic issues and look at innovation and ways to address issues into the future. Do you want to comment on the lack of population data in relation to those two issues but also what would be any recommendation that you would make to the Royal Commission about further inquiries that we should make in relation to data?
PROF TROLLOR: I think in our national data collation we must have a mechanism to identify all people with disability, not just people who are receiving certain types or funded services and this will give us a clearer picture at a population level, particularly for those with intellectual disability or developmental disabilities what the outcomes are, by linking such data sets and looking at prescribing in relation to physical health outcomes. We'd be able to have much more clear ideas about the risks and benefits of psychotropic medication prescribing and that information is just critical to inform the next wave of clinical practice. If we don't understand the risks and benefits to the person, how can we possibly inform them during choices that people are making about future treatments?
MS EASTMAN: Professor Trollor, thank you very much for your evidence and agreeing to join us at relatively short notice and also for your statements prepared for this public hearing and the earlier public hearing. Commissioners.
CHAIR: Commissioner Atkinson?
COMMISSIONER McEWIN: No, thank you.
CHAIR: Professor Trollor, thank you again. I heartily endorse the comments of Ms Eastman and thank you, of course, for your continuing contributions to the Royal Commission which have been and will continue to be of inestimable assistance. Thank you so much.
PROF TROLLOR: Thank you for the opportunity.
THE WITNESS WITHDREW
MS EASTMAN: Commissioners, just before we adjourn, could you receive Professor Trollor's statement into evidence, I think I overlooked doing that. You will find it behind Tab 72 in Tender Bundle A, and if you could mark the Exhibit as 6-20.
If we could then adjourn.
CHAIR: Yes, thank you.
EXHIBIT# 6-20 STATEMENT OF PROFESSOR JULIAN TROLLOR
We will adjourn in a special concession to 2.00.
MS EASTMAN: Thank you.
ADJOURNED [1.06 PM]
RESUMED [2.03 PM]
CHAIR: Yes, Ms Eastman.
MS EASTMAN: Commissioners, our final two witnesses for this afternoon and this hearing are from the NDIS Quality and Safeguards Commission. Mr Head has come back for a third time. This time he's in person in the hearing room here in Sydney.
CHAIR: Thank you, Mr Head, for joining us yet again. I will ask my associate to administer the affirmation to you, please.
COMMISSIONER GRAEME HEAD, AFFIRMED
CHAIR: Thank you, Mr Head. Ms Eastman will ask you some questions.
EXAMINATION IN CHIEF BY MS EASTMAN
MS EASTMAN: You are Graeme Head?
COMMISSIONER HEAD: I am.
MS EASTMAN: You are the Commissioner for the National Disability Insurance Scheme Quality and Safeguards Commission?
COMMISSIONER HEAD: Yes.
MS EASTMAN: You have prepared previous statements for the Royal Commission
in February this year, and also for a more recent hearing that we had in relation to the impact of COVID 19?
COMMISSIONER HEAD: That's correct.
MS EASTMAN: You've prepared a statement for this case study and it's dated 4 September 2020. Do you have a copy of the statement with you?
COMMISSIONER HEAD: Yes, I do.
MS EASTMAN: Have you had an opportunity to read the statement?
COMMISSIONER HEAD: Yes.
MS EASTMAN: Are there any corrections or amendments that you wish to make to any part of the statement?
COMMISSIONER HEAD: No.
MS EASTMAN: Are the contents of the statement true?
COMMISSIONER HEAD: Yes.
MS EASTMAN: Commissioners, can I ask you to find Mr Head's statement in Tender Bundle Part C behind Tab 13, and then there are a number of annexures to the statement which I won't take Mr Head to now, and they can be found at Tabs 14 through to 37. And Commissioners, could you mark the statement as Exhibit 6-25 and the annexures 6-25.1 through to 6-25.24.
CHAIR: Yes, thank you.
EXHIBIT# 6-25 STATEMENT OF COMMISSIONER GRAEME HEAD
EXHIBITS# 6-25.1 THROUGH TO 6-25.24 ANNEXURES TO STATEMENT OF GRAEME HEAD
MS EASTMAN: Mr Head, you regard the effectiveness of the Quality and Safeguards Commission oversight of restrictive practices as critical to the performance of the Commission's core function to uphold the rights of and promote the health, safety and wellbeing of people with disability, that's right, isn't it?
COMMISSIONER HEAD: That is right.
MS EASTMAN: And your statement that you provided to the Royal Commission
for this hearing addresses the regulation of restrictive practices and some of the initiatives taken by the Commission over the past year, is that right?
COMMISSIONER HEAD: That's correct.
MS EASTMAN: In your previous statement for the hearing conducted by the Royal Commission in February, you provided a statement that set out in some detail the relevant regulatory arrangements in relation to restrictive practices, is that right?
COMMISSIONER HEAD: That is right.
MS EASTMAN: And in paragraph 9 of your statement for this hearing, you provided a summary of the functions of the Commission in relation to the regulation of restrictive practices. Can I ask you to have a look at paragraph 9.
COMMISSIONER HEAD: I have it in front of me.
MS EASTMAN: Are we right in saying there are four major parts. The first part is the registration requirements.
COMMISSIONER HEAD: Yes.
MS EASTMAN: That is registration of providers who use a restrictive practice?
COMMISSIONER HEAD: There is registration of yes, in the first part of paragraph (a) that is about what we call implementing providers, providers who use a restrictive practice.
MS EASTMAN: And a provider who uses a restrictive practice will need to comply, and I will use the shorthand, NDIS (Provider Registration and Practice Standards Rules)?
COMMISSIONER HEAD: Yes.
MS EASTMAN: And then the second part under registration requirements is specialist behaviour support providers and do you tell the Royal Commission that under the Provider Registration and Practice Standards Rules, providers who provide specialist behaviour support services to participants by undertaking behaviour support assessments and developing behaviour support plans must be registered under the NDIS Act, is that right?
COMMISSIONER HEAD: That is correct.
MS EASTMAN: Have you been following any of the proceedings of the Royal Commission over the past few days?
COMMISSIONER HEAD: Yes, most of it, with the exception of a handful of
MS EASTMAN: And one of the issues that has arisen, with a number of witnesses, is the specialist behaviour support practitioners. When you talk about specialist behaviour support providers, can we substitute that interchangeably with providers and practitioners, are they the same thing?
COMMISSIONER HEAD: A provider might be a practitioner or a provider might be an organisation that provides specialist supports and engages practitioners to work in their organisation.
MS EASTMAN: So is it the organisation provider that must be registered or the individual practitioner who must be registered?
COMMISSIONER HEAD: So it's the organisation that must be registered, and elsewhere in my witness statement I deal with the arrangements in place and emerging for the approval of the suitability of practitioners.
MS EASTMAN: Dr Chan is going to give some evidence shortly, and I will ask him about the arrangements and capability framework for practitioners.
All right, coming back to your paragraph 9, the second area is behaviour support. And so the Commissioner has a function in relation to behaviour support, and you say there that is to provide leadership in relation to behaviour support, and in the reduction and elimination of the use of restrictive practices by NDIS providers.
So what specifically does the Commissioner do in relation to providing leadership in relation to behaviour support?
COMMISSIONER HEAD: We do a range of things that are touched upon in various parts of my witness statement. We obviously provide leadership in dealing with the States and Territories on both, well, moving forward on the important point of national consistency. We provide leadership through the research activities that Dr Chan leads, through the provision of a wide range of educational materials, some of which target specialist behaviour support providers, some of which target disability support workers, et cetera. We provide leadership, I think, through making transparent through our activity reporting, the fact that there has been an extensive use of restrictive practices in Australia, much of which before the Commission's existence was not known or reported. So an important part of how I see this function is making transparent what has been happening in this country.
MS EASTMAN: Is part of leadership working towards developing national consistent standards?
COMMISSIONER HEAD: Yes. In fact, there's an explicit reference to the Commission, I think the verb used in the Act is assisting the States and Territories
MS EASTMAN: Yes.
COMMISSIONER HEAD: --- but with a focus on consistency in the arrangements given that both the Commonwealth, through the NDIS Commission, and States and Territories play a role in the authorisation of the use of restrictive practices.
MS EASTMAN: And you deal with some particular initiatives you are undertaking at the present time at the end of your statement, I might come back to that towards the end.
Back to paragraph 9, the third area is reportable incidents, and that is:
.... restrictive practices are regulated in two ways through the reportable incidents function ....
The unauthorised use of restrictive practices, and other categories of reportable incidents. And we might come back to some of the reporting obligations in a moment.
And then, finally, there's a complaint function. So a person may make a complaint to the Commission in relation to an issue arising out of or in connection with the provision of supports or services by an NDIS provider, and a complaint can include a complaint about the use of restrictive practices. Is that right?
COMMISSIONER HEAD: Yes, that is correct.
MS EASTMAN: Turning to paragraph 11, you take the view that looking at these four functions together, they're intended to work together to ensure the rights of participants in relation to whom restrictive practices are used and you say in paragraph 11 that you also are looking to the reduction of restrictive practices and ultimately their elimination, I'm paraphrasing there. Do you agree with that?
COMMISSIONER HEAD: Yes.
MS EASTMAN: Now I want to ask you about what steps have been taken in relation to the reduction of restrictive practices and, indeed, if you've achieved any elimination so far, particularly in the area of chemical restraints. So that might require us to jump to some data that you've provided to the Royal Commission, and if I can draw your attention to page 10, and Commissioners, this is paragraph 42. Mr Head has very helpfully provided us with a table in his evidence at paragraph 48 which I might put up on the screen as I ask a few questions about some of the data.
So, Mr Head, you say in paragraph 42 that:
Data for the 12 months to 30 June 2020 identifies a further significant increase in the unauthorised use of restrictive practices since January 2020.
When I'm just trying to understand. You're talking about a 12 month period and you're identifying since January 2020; should that be going back to 1 July 2019 if you're talking about a 12 month period or is this reflecting that you report in six month intervals?
COMMISSIONER HEAD: So the headline figure there of 302,690 is the figure for the whole year. What's referred to in that comparison period is that we released a six month report which I talked to in the Royal Commission's hearing on health of people with cognitive disability, and what that says, possibly in a less elegant way than it should, is that since the numbers we reported in January there's been a significant further increase in the report of those reportable incidents.
MS EASTMAN: All right, and so you recall that in February you provided to the Commission a form that gave us some numbers, and I asked you some questions about what seemed to be a significant increase, and was I right in understanding that you explained last time the reason for that increase was some transitional arrangements being in place as particular States came on-board and that the unauthorised use reflected that the provider might not have in place a particular behaviour support plan?
COMMISSIONER HEAD: Yes, I recollect that that's what I said and I probably also made reference, I don't have my previous witness statement with me, but I would imagine I made reference to the difference for some providers in some jurisdictions about the requirement to report and what may have been a compliance issue with those requirements.
MS EASTMAN: So if there has been are we right in understanding a significant increase in the six months that would cover the period since we last spoke in February, so that covered up to January, but from January up to the present time there's been a significant increase?
COMMISSIONER HEAD: Yes.
MS EASTMAN: What's the reason for that?
COMMISSIONER HEAD: My view is that the Commission has been, I guess, making a very consolidated effort with the sector to make sure that providers are aware of their reporting obligations. We have always been of the view that even though the numbers that were reported in January were large numbers and attracted attention, that there has probably been long standing under reporting of the use of restrictive practices. We have been doing significant work with providers to make them aware of their obligations.
It is also correct, though, that some transitional requirements on providers that would have, for a period of time, not required them to have a behaviour support plan in place, have expired during that period and would account for some proportion in the increase.
MS EASTMAN: Have you seen in terms of the increase, there are particular increases by jurisdiction? Is there one particular jurisdiction where there's a stand out in terms of the numbers? Have you got that data?
COMMISSIONER HEAD: I'm not sure if I have the State breakdown. I would observe, though, without looking at that, that when you're transitioning from multiple different sets of arrangements where some of this was regulated and some not, my expectation was that in the six months from January to June, we should see probably a levelling out in the two States that had been transitioned the longest, New South Wales and South Australia, and that that was not observed in the data.
MS EASTMAN: It wasn't.
COMMISSIONER HEAD: No. So there were increases in all jurisdictions.
MS EASTMAN: Now looking at the table that's up on the screen, and this is reproduced at paragraph 48 of your statement, it remains the case, as last time, that the largest category of regulated restrictive practices reported involved chemical restraint, is that right?
COMMISSIONER HEAD: That's correct.
MS EASTMAN: And you have given us a breakdown of some of the circumstances in relation to the unauthorised uses in paragraph 49?
COMMISSIONER HEAD: Yes.
MS EASTMAN: So the number of participants subject to one or more of the unauthorised uses of chemical restraint in the 2019 2020 period was 2,284. That's 2,284 NDIS participants.
COMMISSIONER HEAD: Yes.
MS EASTMAN: And then breaking those numbers down further, for some participants there might be a recording of one use of an unauthorised chemical restraint, but there's one participant here who was subject to 2,112 unauthorised uses of chemical restraints over that one year period. And that would amount to an average of 5.9 unauthorised chemical restraints per day. What do you know about this NDIS participant, and I assume he or she is right at the outlier edge of the most examples of unauthorised use of chemical restraint for a person?
COMMISSIONER HEAD: That's right. That's the highest use we saw in a year. What I know about that participant is that there are a range of medications prescribed by that person's physician. That person had had a behaviour support plan in place. The prescribed medication included regular medication, and I think there were either 12 or 13 different medications and two of those prescribed PRN and the rest on
regular administration of those medications.
MS EASTMAN: That's still a lot of days, isn't it?
COMMISSIONER HEAD: It is.
MS EASTMAN: On average. Do you know whether these were averaged on a daily basis or there were acute situations where the numbers might have been higher at a given time?
COMMISSIONER HEAD: Dr Chan would be able to give you more precise information. What I can say is that we have a red flag system when a behaviour support plan is lodged or where a large number of we also review the URPs. So between those two things, one of the things that can happen is obviously it prompts a response to have these matters reviewed. What, of course, allowed us to know about this is that this person had had a behaviour support plan previously. That plan had lapsed, and it was the lapsing of that plan that triggered the obligation on the provider to notify us of unauthorised use of restrictive practices. That then allows a response and Dr Chan would be able to give you other examples of where what the clinicians call polypharmacy, so somebody being on multiple medications, have been observed through those processes that we now have, that have triggered a response from the Commission that aims to, in the first instance, understand why that is the case, and seeks to influence change where that's appropriate.
MS EASTMAN: Did this particular case cause a sufficient red flag to require you to exercise any of your compliance powers? Was there any request for an investigation to be undertaken, an expert review, a home medications review? We've heard some evidence from a pharmacist earlier this week in terms of being asked to come in and review medications if there were concerns. Was there anything any particular action that you took in relation to this particular case?
COMMISSIONER HEAD: Not every report like this would trigger a compliance action straight away because the compliance issue in terms of the Commission's regulations is whether or not in this instance whether or not there is a behaviour support plan in place. My understanding is the previous behaviour support plan dealt with these medications. So it may be the case that in an instance like this, or similar instances, that the first thing would be why is this happening? Is this being reviewed by an appropriate medical practitioner?
There may be occasions, and, again, Dr Chan can give you examples of where we've seen a significant reduction in the number of medications that were being used in respect of a person, the number of chemical restraints. There may be issues around the provider's compliance. Of course, what's important to understand is we don't regulate the medical practitioner. We have no power to override a medical practitioner's lawful prescription. The vehicle that we do have to reduce and ultimately seek to eliminate these practices is through the use of behaviour support plans and through what that triggers in terms of the Commission's interaction with
MS EASTMAN: For this particular NDIS participant, if a medical practitioner had prescribed the medication to treat or to to treat a person because of a diagnosed mental health condition or other conditions, then it wouldn't have even got on the radar for you, is that right?
COMMISSIONER HEAD: That's correct.
MS EASTMAN: Sorry, can I so in terms of coming back to your answer about review by medical practitioner, as soon as you bring in the medical practitioner for review, you're bringing a medical practitioner outside prescribing for a therapeutic process and into prescribing for a chemical restraint. And so while you say you don't regulate a medical practitioner, don't you necessarily have to have some mechanism of oversight of prescribing by medical practitioners for this scheme to work effectively?
COMMISSIONER HEAD: Well, I think, if you will indulge me for a minute I think there are a number of ---
MS EASTMAN: I will only give you a minute to do that!
COMMISSIONER HEAD: --- there are a number of elements that we do that I think go to that point. My view here is that the Commission has to work comprehensively and quickly to bed down these very new arrangements about how providers are regulated, and that takes you a certain distance in terms of achieving these outcomes. On the other hand you've got a whole raft of issues which are to do with prescribing practice, the level of awareness that clinicians have about, in particular, intellectual disability and the interaction between other players and clinicians such as providers themselves, families, et cetera.
So part of what the Commission is doing relates to pushing out its own functions as well as some work I refer to in my witness statement around formally interacting with the Australian Commission on Safety and Quality in Health Care and the Aged Care Commissioner because all three Commonwealth organisations have an interest in seeing a strong response to this, including clinicians.
So while our regulation is regulation of providers, in the way we're rolling that out we recognise that in influencing the practice of clinicians is important, and that should involve us bringing in expert bodies rather than expecting clinicians to rely on the Commission's view about these things.
MS EASTMAN: Can I take you to paragraph 50 of your statement, and you say that the data for 2019/2020 indicates that the Commission's highest priority for restrictive practices is ensuring that the ongoing use of regulated restrictive practices is authorised and occurs in accordance with behaviour support plans, and you say that's not yet achieved.
Now, reading that sentence and stepping back, that doesn't sound like the highest priority is reduction and elimination. It reads that it's the ongoing use of restrictive practices that you are seeking to regulate. So I just want to reconcile that with what you said at the beginning. If the primary objective is reduction and elimination but the highest priority is ensuring that the practices are regulated and support plans are developed, there seems to be a tension in those two priorities. Do you agree with that?
COMMISSIONER HEAD: I wouldn't describe it as a tension. I think that what I am seeking to say there, really, is that behaviour support plans, and I think this has been covered in a lot of the evidence that's been given this week, play a central role in achieving those objectives. So the fact of having the continually improving quality of them are quite central, not just to our regulation of how restrictive practices are used, but to working towards their elimination. Good behaviour support plans are about providing a context for what is happening, and considering a range of alternatives to regulated restrictive practices. So I see them as a critical vehicle in achieving that outcome, and that it would be difficult to progress towards the achievement of that outcome until we get behaviour support plans properly implemented around the country.
MS EASTMAN: Professor Dowse gave some evidence yesterday, and I'm paraphrasing her evidence, that she queried whether the Commission's approach was effectively geared to maintaining the architecture of the use of restrictive practices rather than elimination. Would you agree with that view?
COMMISSIONER HEAD: I would not agree with that view. In the discussions that I lead in the organisation, in the discussions that Dr Chan leads in the organisation, in the general focus of the Commission, we all speak about the reduction and elimination with elimination being the ultimate goal, and the focus, remembering that we're an organisation that still has one jurisdiction to transition. So this is not yet fully operating around the country. The focus is on all of the critical enablers of that outcome being in place.
The Act, itself, I think, acknowledges that not all of the kit of parts that you need to achieve that outcome were in existence when the Commission started, things like the capability framework, for example, things like national consistency. So I don't think this is the intention with that. I see it as one of the enablers of that outcome.
MS EASTMAN: Do you think the NDIS Act gives you sufficient and appropriate powers to achieve reduction or elimination of restrictive practices, specifically in the area of chemical restraint? Does it have sufficient powers?
COMMISSIONER HEAD: I do think what my I think in terms of the regulation of providers, yes, and that's how the Commission has been established, that's the role envisaged for it by the Commonwealth Government and State and Territory Governments when they develop the framework and when the NDIS Act was
amended. I do think that, and this is elaborated in my witness statement, in respect of chemical restraint, we have to be in lockstep with those who lead the interaction with clinicians on what we're doing, why we're doing it, what the implications are for clinical practice. So some of the work that we're doing with the Australian Commission on Safety and Quality in Healthcare is designed to not just describe the problems here, but also to work through them with the colleges, deans, et cetera, on what this means in terms of bringing medical professionals along.
MS EASTMAN: But that's not a power that you presently have in the Act.
COMMISSIONER HEAD: That's not a power.
MS EASTMAN: If this is a lockstep approach, then doesn't there need to be some relevant power that goes beyond just the regulation of service providers and behaviour positive behaviour support practitioners to actually also touch into the regulation of medical practitioners?
COMMISSIONER HEAD: So, there may not need to be a specific power for the Commission in that space. There may be room for things like heads of consideration around the way regulation of medical practitioners occurs and the way it might intersect with our functions in this area.
I think there are systems that deal with standards and regulation of medical practitioners. There is this system which is focused and purpose built for the NDIS and purpose built for the NDIS in a way that was envisaged by the Productivity Commission when it did its initial report. It may be that those things need to talk to each other more formally in some set of arrangements, but I haven't considered that in detail.
MS EASTMAN: So at one end there's the medical practitioners as a gateway, at the other end is, I think the expression used this week is the frontline, which are disability support workers who often have the task of administering the medication or making decisions on PRN. And do you think that the NDIS gives you sufficient powers in relation to regulating the conduct of disability support workers as the bookend of the way in which misuse of medication including psychotropic medication is used as a chemical restraint?
COMMISSIONER HEAD: I do, both in terms of the formal compliance and enforcement powers, but also in our functions clearly, it was envisaged that the Commission would play a significant role in educating providers and educating support workers. We've got some experience now through a couple of significant projects, the worker orientation module, which I think I referred to in the Hearing 3 or 4, whichever one it was, where almost a quarter of a million people have completed that, a 90 minute online program.
We are already looking at the next iteration of that to deal with mealtime management, which was an issue that came up in response to Professor Trollor's
work, and one of the things we're looking at is whether or not the issues that disability support workers face in respect of restrictive practices would be assisted through that kind of resource, which you may or may not recall is largely delivered by people with disabilities. So it's been both popular and I think quite powerful.
CHAIR: Mr Head, I'm sorry to interrupt, but I just want to try to get a better understanding for myself, and it may be to do with my deficient understanding of the systems in place. But I deduce from the figures that you have given in paragraph 49 that there were 468 cases of unauthorised uses where the person concerned was subjected to 100 or more unauthorised uses in the course of the year. I deduce that by deducting from the figure in paragraph (d), 1,816, from the total number of 2,284. So that suggests that 468 people were subject to at least 100 unauthorised uses of chemical restraint.
COMMISSIONER HEAD: That's correct.
CHAIR: What sort of cases are they, that there can be so many unauthorised uses of chemical restraints for that number of people?
COMMISSIONER HEAD: These will all usually be so in some jurisdictions, there are not processes for authorising chemical restraints and so a behaviour support plan is required. And if the behaviour support plan is not in place, this would be a reportable incident, and you will see that a significant number of people may be on a regular prescribed medication that's not in a behaviour support plan or, indeed, may be receiving fairly frequent PRN administration of those medications. So I'm sure Counsel Assisting will come to this, but the compliance action we have underway in respect of reports of these reportable incidents is designed to surface all of those issues and take action in respect of them.
CHAIR: So these are cases, you think, where there are no provision for authorisation under State law, there is a requirement, therefore, that there be a behaviour support plan in place but the psychotropic medication has been administered in a manner of a chemical restraint in the absence of a support plan?
COMMISSIONER HEAD: That's right. So when we initiated the compliance activity that's described in my witness statement, one of the things we were concerned to understand, because these are fairly new arrangements providers were saying they are impediments to us having behaviour support plans, lack of funding in plans or lack of availability of behaviour support practitioners. So in fact, the first phase of that compliance activity targets the two jurisdictions who have been transitioned longest, and required all providers who had reported the use of an unauthorised restrictive practice to give us information about the things that affected why that practice was unauthorised, that information, the preliminary results are in the witness statement and that's the first step in something that will involve formal compliance action where providers really should just have a behaviour support plan in place already that deals with these matters.
CHAIR: Under Rule 11, even if a regulated restrictive practice is conducted in accordance with a State authorisation, there's still a behaviour support plan there.
COMMISSIONER HEAD: That's correct, yes.
CHAIR: So it's not just when there's no --- the administration is not in accordance with a State or Territory authorisation, it's needed even if there is a State or Territory ---
COMMISSIONER HEAD: That's correct. I thought I had said that. I apologise if that was not clear.
CHAIR: I apologise if I misunderstood.
COMMISSIONER ATKINSON: May I also ask a question. You say there's required to be a positive behaviour support plan, and some jurisdictions it hasn't been required and that's been harder to get them. But what about the quality of the plans? Do you assess each plan to make sure it not only exists but meets the required quality to make it a legitimate and proper positive behaviour support plan?
COMMISSIONER HEAD: So there's a process I referred to before where there's --- and this is a process where when the plans are lodged in the portal they're checked for a series of red flags where there are multiple uses of restrictive practices or the example that was used before of polypharmacy, a range of matters that we would be concerned about. Dr Chan will also talk about work that he's leading on the use of something called BSP QE II, the Behaviour Support Plan Quality Evaluation Tool, which is being developed to drive the continuous improvement of quality of plans that are in place, I think that's being piloted at the moment and there's a third thing called the Restrictive Practices Self Evaluation Tool, which is for implementing providers to help them understand what they're dealing with in respect of this.
So there is a focus on flagging things that require urgent attention, focus on improving the quality of plans where they need improvement, and a focus on improving the understanding of providers, including in the use of these plans.
MS EASTMAN: Commissioner Atkinson ---
COMMISSIONER ATKINSON: My question
COMMISSIONER HEAD: Sorry, yes?
COMMISSIONER ATKINSON: Yes, Ms Eastman.
MS EASTMAN: Commissioner Atkinson, Dr Chan is going to give some evidence about the behaviour support plans, and this is an area of his responsibility and I will ask him about these matters in a little bit more detail. It's not really a matter that Mr Head's covered specifically in his statement.
CHAIR: Go ahead.
MS EASTMAN: I might just finish on these questions around elimination and I wanted to ask you what steps, if any, has the Commission taken to develop a strategy specifically focused on reduction and elimination outside what already exists.
COMMISSIONER HEAD: Well, I think in this area, I know I'm in a sense saying things that I've said before, but the focus of elimination really has to start with various bits of the system that we've got that can help us strive towards that goal being operational. So the focus at the moment, and I guess there are a number of elements to it, some of which have been touched on in evidence this week, there isn't national consistency at this stage. We need national consistency. We need States and Territories using the definitions in a consistent manner. These are all definitions that they first agreed to in 2014 and agreed to again in 2016
MS EASTMAN: Sorry to interrupt, I'm just interested in what's happening within the Commission. So what the Commission is specifically doing that identifies reduction and elimination as an object. What else is there within the Commission, and I will come back to the national issues in a moment.
COMMISSIONER HEAD: So I think this first major compliance activity that we have underway is very significant here because there is a lot of anecdote in the sector about, well, how frequently these practices are used and why it is that people are not complying. So the reason that I with my colleagues designed it in a way that it's operated is to use information gathering powers of Commission to say in the first instance we need to understand with precision what has caused these unauthorised practices to be reported.
MS EASTMAN: You've got quite an amount of data already, so you know, for example, the number of behaviour support plans that have been lodged, that include the use of chemical restraint. You know from the reports of unauthorised use of chemical restraints, surely the data that you already have will give you a picture of trends and issues which, in turn, could inform a strategy in relation to reduction and elimination from the data presently available.
COMMISSIONER HEAD: Some of the data that we saw out of that exercise was not at all aligned with the sort of prevailing orthodoxy about what was causing those issues. So if you talk to a wide range of experts and also talk to providers, they would make the observation that the issue here around behaviour support plans and playing that critical role is a lack of practitioners and a lack of funding in plans.
But with the two States and Territories that have been subject to that notice, these have turned out to be relatively small problems and, in fact, we expect, in respect of South Australia and New South Wales, to be able, I think, providers have to come back to us by 30 September with what they're doing to comply with their obligation to have those plans in place. We intend to formalise the compliance actions expected
of them within specified time frames and at the same time commence that exercise with the five jurisdictions that moved in on 1 July last year, which really means, I think, that at --- by sort of February next year, we will have a picture at a very sort of granular level of what's been happening that has driven these reports, what needs to happen in order to get these plans in place, and when you combine that with some of the work that the Commission is leading on the quality of those plans, the flagging of key issues, the work that's being done on the capability framework, et cetera, that's quite a significant body of work, all of which is focused on elimination and not just managing the status quo.
MS EASTMAN: Can I put this to you: We heard earlier this morning that the Office of the Public Guardian in Queensland has a community visitor program and that the community visitors are required to report on a range of matters, including around chemical restraint. And that the community visitors are an extra set of eyes that focus directly on the person to whom the chemical restraint may be applied. Now there's no community visitor program in relation to the structure established by the NDIS Act, is that right?
COMMISSIONER HEAD: Well, what the NDIS Quality and Safeguarding Framework and the work that's been done with States and Territories does, is set up a situation where the NDIS Commission works with the community visitors schemes that exist in each State and Territory, and that means we typically have a set of bespoke arrangements for between the Commission and each community visitors scheme because they're all set up somewhat differently.
MS EASTMAN: But you'd accept that a human assessment of a community visitor going in, having face to face contact with an NDIS participant, can often provide a quicker and more accurate result in assessing risk, including risk in relation to the use of chemical restraint?
COMMISSIONER HEAD: Yes, I've said to the Commission before that I think community visitor schemes play a valuable role.
MS EASTMAN: Would you accept there's an advantage to your Commission having such a function that allowed there to be a national and uniformly consistent community visitor program?
COMMISSIONER HEAD: Well, I haven't directly assessed the question of whether the Commission has its own community visitor program, that's ultimately a matter for Parliament, and what governments have agreed is that I should work with the existing programs. It is certainly the case that the variation between those programs could present challenges, and it's also true that those programs don't exist in two jurisdictions.
MS EASTMAN: So I put to you that section 181F(b), which provides that the Commission is to develop a nationally consistent approach for managing quality and safeguards for people with disability receiving supports and services under the NDIS,
that that provision in the Act is sufficient for the Commission to establish a national and uniformly consistent community visitor program. Would you accept that?
COMMISSIONER HEAD: I'd have to look closely at it, particularly given that community visitor programs in some States and Territories exercise powers that are not powers that I have directly under the NDIS Act. So I think, as a non lawyer, I wouldn't give a detailed response to that at the moment, but it may well do.
MS EASTMAN: Let me put it another way. If the propositions that I put to you are recommendations made by the Honourable Alan Robertson in relation to a report that he provided for your Commission in relation to the death of Ann Marie Smith, that his recommendation was that this the power in the NDIS was sufficiently broad --- you are aware of that recommendation?
COMMISSIONER HEAD: Yes.
MS EASTMAN: Do you accept that there would be a great advantage to the Commission having a function in relation to community visitors?
COMMISSIONER HEAD: I accept that there may be an advantage depending on how that function was designed, and the point I would make is that many of the community visitors schemes were designed for systems where block funded supports and the way supports were provided were organised very differently and that's typically, as I understand it, how they're characterised in their arrangements. I think community visitor schemes in an NDIS model with people having choice and control and funding for their individual plans probably requires some careful thinking in terms of its design.
MS EASTMAN: But you're not opposed to that?
COMMISSIONER HEAD: No.
MS EASTMAN: Assuming it was appropriately funded as well.
COMMISSIONER HEAD: That always helps.
CHAIR: Is it part of your function, do you think, to suggest amendments to your legislation for at least consideration if it improves the job that you can do?
COMMISSIONER HEAD: Yes, I mean any agency head, I think, sometimes that might be because you're working with something where it seems fairly clear that there was an intent that you should be able to do something and the legal machinery doesn't allow for that, and sometimes it may be related to a broadening of functions, Government has its own processes ---
CHAIR: I understand Government has its own processes
COMMISSIONER HEAD: But I can advise, yes.
CHAIR: You can advise. And you're very well placed to do that, aren't you, with the experience you have in administering this new and difficult scheme?
COMMISSIONER HEAD: Yes. Although I guess because of its newness and because what pre existed in each State and Territory, we identify a raft of issues as every State and Territory transitions, and because the arrangements are quite complex already --- and I think that's been alluded to a few times in evidence --- I'm trying to make sure that we understand what changes are really required now and what changes might be considered in a sort of medium term time frame.
MS EASTMAN: Commissioners, I'm just conscious of the time so I might move to the compliance matters that you've alluded to.
At paragraph 51 of your statement, you say to the Royal Commission that you've determined that the reporting of unauthorised uses of restrictive practices should be the subject of significant compliance action across all providers who notified such users in 2019 and 2020, and then if we move to paragraphs 107 to 116 where you set out some compliance action taken to date, and if I can draw your attention specifically to the current compliance activities, that the current compliance activities that are under way touch on information, and then compliance with a specific purpose to reset a provider's expectations away from education into something a little more pressing for them --- I can euphemistically say that. And that you're determined that compliance activity would focus initially on providers who notified of the unauthorised use of restrictive practices in New South Wales and South Australia, and you've got a range of powers in relation to your compliance powers, and that includes making banning orders and also imposing enforceable undertakings as well as issuing compliance notices.
So, can we ask you to give a scoop to New South Wales and South Australia providers: what should they expect to see by compliance action? Have you got particular targets? Have you got particular areas that you want to focus on based on the data collected to date?
COMMISSIONER HEAD: So the focus in this first part of the exercise will be to ensure that where there is no impediment to a provider having a plan in place, there's an obligation on them within a specified timeframe to have that plan in place, and that there will be monitoring of the compliance with that. A failure to achieve that, depending on a range of factors, may attract any of the available enforcement actions from the Commission with infringement notices, well, compliance notices will be the starting point in terms of specifying what must be done within a time frame. If it's not done, we will consider, based on the circumstances whether or not that should be subject to a fine, whether, if it reflects a more systemic problem, that other actions should be taken around the status of a provider's registration, or, indeed, seeking enforceable undertakings or civil penalties.
MS EASTMAN: I accept that you have a compliance and enforcement policy setting out the particular priority areas and how a discretion will be exercised in relation to commencing compliance action, and you've made a reference to this in paragraph 104 of the statement.
COMMISSIONER HEAD: Yes.
MS EASTMAN: But in terms of any compliance action taken to date beyond information or education, has the Commission issued any compliance notices to date in relation to unauthorised restrictive practices involving chemical restraint?
COMMISSIONER HEAD: I believe that one of the significant compliance notices dealt with an issue of medication management, but I would need to check to determine whether it dealt with unauthorised restrictive practices in the context in which they're talking about them today. There are a number of compliance notices in force at the moment including some relatively recent ones. I don't really have the information on each of them available to me.
MS EASTMAN: Do I take it that there's been no banning orders or any enforceable undertakings imposed at this stage of the Commission's work?
COMMISSIONER HEAD: Banning orders have been imposed for a range of matters. We have not yet sought an enforceable undertaking.
MS EASTMAN: Can I turn just to one matter about complaints and I just want to clarify some aspect of your evidence at paragraph 129. This is page 35. So you say in paragraph 128, you've previously set out the complaints function. We touched on that a little earlier as one of the sort of four areas. But at paragraph 129, you say:
The .... Commission does not characterise complaints in a manner that enables it to identify complaints regarding the use of chemical restraint.
And you say there:
Complainants do not necessarily categorise complaints in this way, and even where a complaint raises concerns in relation to a medication that could be a chemical restraint, it is not necessarily apparent from the complaint whether the medication is being used as a chemical restraint.
Is that not a problem in terms of the way in which the categorisation of complaints are made for the purpose of addressing complaints and responding to complaints? Does that not put an onus on the complainant to have a characterise a complaint in a way the complainant would have to understand what a chemical restraint is before there might be action taken to investigate that complaint?
COMMISSIONER HEAD: So I accept it is a problem, and I think it's a problem in respect of the interaction of a complainant with us, whether that's the person with
disability or somebody acting on their behalf. It's also a challenge for our staff and it's a function of the way some of the aspects of our operating system were designed before the Commission was in place. I think every month we are identifying improvements to the system. There have been multiple new releases to address issues in the system. Clearly we want to be able to capture this, we also want our staff to be able to tag things in ways that are responsive to people's needs. So, yes.
MS EASTMAN: How can you achieve reduction and elimination if one safeguard is the making of complaints but there's not presently a system for identifying complaints of using chemical restraint?
COMMISSIONER HEAD: Well, there are ways, I think quite resource intensive searches through the system can allow us to find complaints that respond to those definitions, but it's not an efficient way of doing it and it's an area that we need to improve in terms of the way we capture this information.
MS EASTMAN: Would you agree that is a weakness in relation to a safeguarding system?
COMMISSIONER HEAD: Well, I'd certainly I certainly think it's not optimal to have the arrangement we do in the way that information is categorised and I think the Commission is working very hard to identify those areas where its means of gathering information or storing that information is hampering actions.
MS EASTMAN: Finally, I want to ask you about a national approach. Obviously for the Commission your responsibilities are in relation to NDIS registered service providers and NDIS participants, and I think we touched on this a few weeks ago, that there's a large cohort of people with disability who are outside that realm of protection. But you have taken it upon yourself to say we need to have some nationally consistent standards in relation to restrictive practices. Shayna Smith, the Acting Public Guardian in Queensland, had said in her statement that the NDIS Commission is developing a protocol for information sharing between Commission and State and Territory agencies, and also that you have identified the need for nationally consistent models, not just between the Commonwealth and the State but also between Commonwealth regulatory schemes, for example, aged care.
So how do you approach this task and what do you seek to achieve, given that you've got particular responsibilities for the NDIS participants and it's likely that some of these questions are going to go well outside just the NDIS protections? So what's the way forward on this? And that is my last question. Lots of questions in one.
COMMISSIONER HEAD: I won't remember them all, maybe ---
MS EASTMAN: That's all right. I'll give you an opportunity just to help us understand this. Professor Trollor has also just said this shortly before you came.
COMMISSIONER HEAD: So a few things.
Information sharing, which you started with, is important because there are a lot of players at the Commonwealth level and the State and Territory level. It could be very easy to end up with an extremely bureaucratic approach to the way that works, so the focus we've taken is why are the information sharing arrangements as they are in the Act, what is expected of us, and how do we establish relationships with at the coalface State and Territory entities that make sense in terms of the way they do their business, so that we're not creating something that no one understands and that actually acts as an impediment to the free flow of information. So we've got, in that case, a very high level set of principles, and then we've gone through a very arduous process of working between the Commission and not a kind of central function in a State Government, but with individual agencies, Public Guardians, Police Forces, a range of other human service and law enforcement agencies so that there's a specific protocol about how we work with that agency to share information.
And I guess the focus there has been to concentrate on how it is that information sharing is intended to produce outcomes for people with disability rather than focusing on this as just an elaborate administrative process.
Similarly, in respect of the approach to restrictive practices, the starting point there has been to develop a set of principles, high level principles, acknowledge that States and Territories may take slightly different approaches in the way they operationalise those, and that might be because of the way these arrangements intersect with deeply embedded arrangements around guardianship, et cetera, that would allow us to have moved relatively quickly to things being done in a way that's underpinned by those principles, which kind of reduces some of the complexity and directs more of the effort at the outcome for the individual.
So they are, I guess, two examples of where the legislative powers talk generally about things like assisting and we've, I guess, taken it upon ourselves to hold the pen on things like moving the discussion on those principles along, working through, as is in my witness statement, structures like the Senior Officials Working Group and the Disability Reform Council of Ministers to translate some of those ideas into actions with States and Territories, assessing where they're at against those principles.
MS EASTMAN: When is that likely to happen? Is there a timeline or an expectation as to when that will occur?
COMMISSIONER HEAD: So the next major milestone is the end of this year when States and Territories should have action plans developed around what they're doing to align themselves now that they've completed the self assessment against those principles, what they're intending to do to align.
MS EASTMAN: Thank you. Commissioners, and that's Mr Head's evidence.
Mr Head, thank you very much for coming to the Royal Commission today.
CHAIR: Thank you. Commissioner Atkinson?
COMMISSIONER McEWIN: No question, thanks.
CHAIR: Mr Head, thank you very much for your attendance today and for your evidence.
COMMISSIONER HEAD: Thank you.
THE WITNESS WITHDREW
MS EASTMAN: Commissioners, can we have a brief adjournment or two to reconfigure the room here in Sydney.
CHAIR: Yes, we'll have a brief adjournment.
ADJOURNED [3.06 PM]
RESUMED [3.09 PM]
CHAIR: Yes, Ms Eastman.
MS EASTMAN: Commissioners, the final witness for this hearing is Dr Jeffrey Chan and he also joins us in the hearing room here in Sydney.
CHAIR: Thank you, Dr Chan, for coming to the hearing room to give evidence. I'll ask my associate to administer the affirmation to you.
DR CHAN: Thank you.
DR JEFFREY CHAN, AFFIRMED
CHAIR: Dr Chan, now Ms Eastman will ask you some questions.
DR CHAN: Thank you.
EXAMINATION IN CHIEF BY MS EASTMAN
MS EASTMAN: Your name is Jeffrey Chan?
DR CHAN: That's correct.
MS EASTMAN: And you hold the position of Senior Practitioner with the National Disability Insurance Scheme Quality and Safeguards Commission?
DR CHAN: That's correct.
MS EASTMAN: You've prepared a statement dated 4 September.
DR CHAN: Correct.
MS EASTMAN: And you have a few corrections.
DR CHAN: Yes, please.
MS EASTMAN: The first one is at paragraph 27, you want to amend some cross reference numbers
DR CHAN: That's correct.
MS EASTMAN: --- so let's go to 27. And at the end of paragraph 27 the last line says "paragraphs 138 to 0", and you want it to be "138 to 141".
DR CHAN: That's correct.
MS EASTMAN: And if we turn next to paragraph 35, at the end of the first line, it says describe further in "paragraphs 138 to 0". You want that also to read "138 to 141".
DR CHAN: That's correct.
MS EASTMAN: And then the next amendment is to paragraph 54, so can I ask you to turn to that. And the amendment that you want to make is to the final sentence, is that right?
DR CHAN: That's correct.
MS EASTMAN: And you want to insert --- before the words "behaviour support team members" you want to insert these words, "it is an internal guide for".
DR CHAN: That's correct.
MS EASTMAN: So the sentence will read:
It is an internal guide for behaviour support team members and other NDIS Commission staff.
DR CHAN: That is correct.
MS EASTMAN: Other than those amendments, are the contents of this statement true?
DR CHAN: Yes.
MS EASTMAN: Commissioners, will you find a copy of the statement at Tender Bundle Part C behind Tab 1, and there are a number of annexures from Tab 2 through to Tab 12.
Commissioners, could you mark the statement as Exhibit 6-24 and the annexures to be marked from 6-24.1 through to 6-24.11.
CHAIR: Yes, that can be done.
EXHIBIT# 6-24 STATEMENT OF DR JEFFREY CHAN
EXHIBITS# 6-24.1 THROUGH TO 6-24.11 ANNEXURES TO STATEMENT OF JEFFREY CHAN
MS EASTMAN: Dr Chan, I want to start with your role as the Senior Practitioner. According to the NDIS Quality and Safeguarding Framework, the Senior Practitioner will:
Oversee approved behaviour support practitioners and providers; provide best practice advice; receive, review and report on provider reports on the use of restrictive practices; and follow up on serious incidents that suggest unmet behaviour support needs. The senior practitioner will refer concerns about worker or provider non compliance to the NDIS registrar. Approvals for the use of restrictive practices will continue to be managed through current State and Territory Government processes.
So you have no role in approving whether a particular restrictive practice should or shouldn't be in place s that right?
DR CHAN: Yes.
MS EASTMAN: And your role is to oversee the activities of providers and behaviour support practitioners. Is that a fair summary of your role?
HAN: That's correct.
MS EASTMAN: And in paragraph 15, you say that you're also responsible for:
.... providing leadership in relation to behaviour support .... in the reduction and elimination of the use of restrictive practices, by .... providers in accordance with the .... Commissioner's behaviour support function under .... the Act.
And you do so by providing:
.... leadership in relation to matters that require significant clinical input and expertise in relation to positive behaviour support.
So can I ask you, in terms of clinical input, what does that mean in terms of your role and based on your qualifications and experience?
DR CHAN: In terms of clinical input, it can take different levels. So, for example, one of the --- if I can structure my response in how we would reduce and eliminate restrictive practices, so we would do a developmental approach, a preventative approach, and a corrective action approach.
MS EASTMAN: So I just wanted to understand what "clinical" means in this context.
DR CHAN: So, for example, in the clinical role we could provide education, advice and training to practitioners on certain matters that they might want to bring to our attention. Also, in terms of when it comes to corrective action, we could support them, for example, I have given some in my witness evidence, on how we might assist them to, for example, probe the query whether there's a need for a chemical restraint.
MS EASTMAN: When you use the expression "clinical" if your witness statement, you're not talking about clinical in the sense of medical ---
DR CHAN: Correct.
MS EASTMAN: --- advice, you're talking about clinical in a different context?
DR CHAN: Right.
MS EASTMAN: I wanted to ask you about the three categories of persons on the provider side in relation to regulating restrictive practices and behaviour support. This is paragraph 19 of your statement. And the three categories of person are: specialist behaviour support providers, NDIS behaviour support practitioners, and implementing providers.
Mr Head has told us a little earlier that providers might be an organisation but they might also be individual practitioners. So can I just ask you to just clarify with respect to each of these three areas who or what is a specialist behaviour support provider or a behaviour support practitioner or what's described as implementing providers?
DR CHAN: Specialist behaviour support provider, as Mr Head mentioned, can be an organisation, so they are a provider registered to deliver services in behaviour support. A specialist behaviour support provider can also be a practitioner because if you're a solo provider, you're registered as a specialist behaviour support provider, and you also might be delivering the service.
Behaviour support practitioners are practitioners that might be employed or engaged by a specialist behaviour support provider to deliver the services.
MS EASTMAN: Now, you've provided a very detailed statement and we won't be able to cover everything this afternoon, but I do want to ask you about your role in relation to behaviour support specialists or behaviour support practitioners.
Now, in terms of the regulatory functions, in paragraph 25 you reproduce the definition of NDIS behaviour support practitioner under the Restrictive Practices and Behaviour Support Rules. So a practitioner is:
a person the Commissioner considers is suitable to undertake behaviour support assessments (including functional behaviour assessments) and to develop behaviour support plans that may contain the use of restrictive practices.
So looking at that definition, that conifers a power in the Commissioner to determine suitability, and the suitability has to be with respect to undertaking assessments but also developing behaviour support plans. So that person's got to have two functions, is that right?
DR CHAN: That would be the role of the behaviour support practitioner.
MS EASTMAN: Is there anything specifically in the rules that identifies that person's suitability to make behaviour support assessments or develop behaviour support plans that have a specific focus on the use of chemical restraints as a restrictive practice?
DR CHAN: Not specifically a chemical restraint. The behaviour support practitioner would deem the suitability of the practitioner to have the capability to deliver positive behaviour support practice, and that would be arranged and also to reduce and eliminate restrictive practices as they can be all regulated restrictive practices.
MS EASTMAN: So you wouldn't have a specific capability framework looking at a
person with expertise in, say, environmental restraints or seclusion or chemical restraints; the expectation is that the practitioner would have suitability across all areas of restraint, is that right?
DR CHAN: That's correct. So a capable behaviour support practitioner would have the necessary capabilities, experience and skills to reduce and eliminate restrictive practices.
MS EASTMAN: And in terms of the way in which a person is deemed to be suitable, at the present time there's no particular process that somebody has to satisfy, is that right?
DR CHAN: That's correct.
MS EASTMAN: They have to just give their name and address and tell you that that's what they want to be, and that's enough to qualify them as a practitioner?
DR CHAN: That's correct, until we roll out the Positive Behaviour Support Capability Framework. This is not this is in the interim period where this is required so as to ensure there's business continuity and there's a continuity of delivering services.
MS EASTMAN: And there is a capability framework, and you've included this as part of the documents that you provided to the Royal Commission, and Commissioners, this is behind Tab 1 in Dr Chan's statement in the tender bundle, in Tender Bundle C, it's Tab 2. Have you got a copy of that with you?
DR CHAN: Yes.
MS EASTMAN: Were you involved in drafting this capability framework?
DR CHAN: I was the conceptual architect of this Capability Framework, and we have contracted the University of Sydney to assist us in the development of this framework.
MS EASTMAN: Looking at the document, there's a number of authors identified on page 2, but also a number of subject matter experts who appear on page 2 and page 3 including three people who have given evidence in this particular hearing. Do you agree with that?
DR CHAN: That's correct.
MS EASTMAN: And when I look at the list of subject matter experts consulted, I don't see any medical practitioners or pharmacists in that list. Is there a particular reason why the subject matter experts didn't include medical practitioners, pharmacists or people with particular health experience?
DR CHAN: So the contractor of the University of Sydney had gathered what we call national/international experts particularly in positive behaviour support, not necessarily having expertise of a medical qualification. It's about expertise in positive behaviour support and in curriculum development.
MS EASTMAN: And you also acknowledge on page 6 of this document, that additional consultations occurred with key stakeholders with subject matter expertise, peak bodies and people with lived experience of cognitive impairment, identified by the NDIS Commission in 2019. Now, who are and I don't need you to identify them by person, but can you give us a sense of the people with lived experience of cognitive impairment who contributed to the capability of framework? Were they people who have been subject to do particular restraints?
DR CHAN: To my understanding, some of them have been subjected to restrictive practices. Can I just preface my response also, the fact that one of the first things I did in instructing the contractors to develop this framework is that they actually consulted people with disabilities and people with lived experience to begin with. So that's the first cut of this framework.
The groups of people that were contacted included a range of peak bodies, advocacy groups like Inclusion Australia, People with Disability, siblings, family members or carers, peak body of carer organisations.
MS EASTMAN: When you say they were consulted, did any of the group that you identify as people with cognitive disability have an opportunity to review the final form of the capability framework, or were they just consulted along the way?
DR CHAN: My understanding, they have been.
MS EASTMAN: All right, I probably could spend the next day talking to you about the capability framework, so can I summarise it in this way, is that what the framework does is identify core practitioners as Level One, followed by proficient practitioners, and then from a proficient practitioner you may have an advanced practitioner or a specialist practitioner. So there are four levels identifying who can be a behaviour support practitioner and at what level their qualifications will satisfy. Sorry, I'm going very quickly and I apologise for that.
DR CHAN: Can I add, what's more important in this framework is it is the first national framework that exists --- prior to NDIS there's no regulation, no framework to address the need for capable behaviour support practitioners.
Secondly, this framework is based on the needs of people with disabilities articulated particularly in the principles and values, and the third important thing to reiterate about this framework is that it is also based on international best practice of what is the expectation of a capable behaviour support practitioner.
MS EASTMAN: If I look at the more advanced practitioners who were described as
advanced or specialist, and there's a brief description of the skills expected of such practitioners on page 10 and page 11, it seems to me that practitioners at these higher levels will have to have a particular skill in identifying whether somebody has a medical condition, be it a mental health condition or they've suffered trauma, and there may be other medical type skills that they have to have. Do you accept that?
DR CHAN: I accept that.
MS EASTMAN: If you have not consulted medical practitioners or pharmacists or allied health professionals in the development of these guidelines, how can you be sure that where you expect a behaviour support practitioner to meet skills that have a medical element to them, that they're going to be able to have those skills and discharge their duties?
DR CHAN: Counsel, if I make a distinction, it's that a medical practitioner would be looking at a diagnosis. A behaviour support practitioner may not necessarily do the clinical diagnosis of a medical condition, but in his or her experience might alert and refer to a medical practitioner if there was such a need. So if I look at my clinical practice --- I mean, I'm not a medical practitioner or a psychiatrist, but I would have sufficient knowledge to look at the behaviours of the person and see that perhaps there's a requirement for referral to a speech pathologist or a referral to someone with a trauma informed background, or a referral to a medical practitioner.
MS EASTMAN: But you would have to have sufficient knowledge of what might be the symptoms or diagnostic indicators that somebody has a health condition, is that right?
DR CHAN: Yes, so a capable practitioner should have those skills to identify and make appropriate referrals as such.
MS EASTMAN: You've included for the Commission a document behind Tab 2 of your statement.
Commissioners, this will be Tab 3 in part C of the Tender Bundle, a document called Compendium of Resources for Positive Behaviour Support, and that's got a whole lot of material about particular diagnostic aspects, both touching on medical and also psychological, would you agree with that?
DR CHAN: Some of them, yes.
MS EASTMAN: Now, in terms of behaviour support practitioners who may be required to develop behaviour support plans, they involve the use of chemical restraint, what guidance is available for the support practitioners to know and understand when and how a chemical restraint may be able to be used?
DR CHAN: So, if the behaviour support practitioner undertaking a function of behavioural assessment would make perhaps a determination that there is a mental
health condition, or there might be other physical conditions that would require referral to a medical practitioner. The compendium is really important in assisting the behaviour support practitioner that there are actually tools out there, and I would like to be, as I say, predominantly all the tools out there, you do not have to have a medical degree to actually use these tools. Most of these tools are actually targeted at positive behaviour support practitioners who can range from it's laid out in the way it's laid out, who can administer this tool, what's the tool for, the time it's taken, for what purpose.
MS EASTMAN: Now in terms of providing some assistance to the practitioners, you currently have some draft restrictive practice guides in preparation, and you make reference to this in your statement.
DR CHAN: That's correct.
MS EASTMAN: One of the guides that we've included in the bundle is in relation to chemical restraint. Commissioners, you will find this behind Tab 4 of your bundle. Dr Chan, I think this might be your Tab 3. Have you got that?
DR CHAN: I have, thank you.
MS EASTMAN: I'm not going to take you through it in detail. This is a draft, it hasn't been finalised, is that right?
DR CHAN: Yes.
MS EASTMAN: So it should be read in the context that it's not a final version and it hasn't been released publicly, is that right?
DR CHAN: That's correct.
MS EASTMAN: And in terms of the preparation of this particular guideline, who has been consulted in relation to this guideline on the development of chemical restraints?
DR CHAN: Okay. So counsel, if I may just add, before I talk about the consultation
MS EASTMAN: I'm just asking about the consultation, so who has been consulted ---
DR CHAN: Extensive consultation with a national group of senior practitioners and all are people who hold --- authorisation heads of restrictive practices. It's also been consulted with a range of peak bodies which I've identified, they included the allied health professionals groups. We've also extended invitation to certain medical practitioners to make comments or give feedback and we received some of them.
MS EASTMAN: Who were the medical practitioners that you've sought to consult? Did they have particular expertise in intellectual disability or do they have expertise as psychiatrists?
DR CHAN: Yes.
MS EASTMAN: practitioners?
DR CHAN: Yes, counsel, if I refer to my witness statement where I've identified them. They include Professor Julian Trollor, the Chief Medical Officer in ACT, and the Chief Psychiatrist in ACT also. We have also extended to other practitioners, medical practitioners, but these are the only ones we got feedback from.
MS EASTMAN: What's been the flavour of the feedback so far from the medical practitioners?
DR CHAN: In general the feedback has been positive. Honestly, some of the comments would include that --- a disagreement with the term "chemical restraint", some see it as a pejorative term. Nevertheless, that's not the argument that I want to play in. We want to set a guide for behaviour support practitioners and implementing providers.
MS EASTMAN: Has there been any consultation with pharmacists?
DR CHAN: We had extended to allied health practitioners group, that will include --- all allied health includes psychologists, pharmacists, so that's the peak body that we normally go to, and then they would distribute that this practice guide to their member bodies.
MS EASTMAN: As I said, I don't want to go to the detail of it, but one aspect of the guide at page 11, says what needs to be considered when using chemical restraints.
And if I look at the dot points on that guidance, that would rather suggest that the behaviour support practitioner does have to have a degree of understanding of medical conditions to be able to meet these guidelines. What I want to put to you is, do you not need to have health and the disability support practitioners coming together on this rather than them being separate?
DR CHAN: Yes.
MS EASTMAN: They have to work together?
DR CHAN: They have to work together.
MS EASTMAN: There's no requirement for them to work together in this guideline, is there?
DR CHAN: Counsel, if I go back to provide you some understanding about positive behaviour support. In positive behaviour support, there is a particular evidence based practice, for example, that talks about mediator analysis. Mediator analysis is when you would consult with a range of stakeholders and that might include a person with disability, his or her family members, and it would include also medical practitioners if required. And that is ---
MS EASTMAN: That's only if required, not as a matter of course working together in an interdisciplinary way, would you agree with that?
DR CHAN: I don't agree with that because typically in other practice you would be interdisciplinary in that sense, so even in our in my team, for example, we do have a range of multi disciplinary team including a pharmacist.
MS EASTMAN: Now, does this restrictive practice guideline on chemical restraint, is it framed in a way to assist practitioners to focus their practice on the reduction of chemical restraint and indeed the eliminate chemical restraint, is that the purpose of it?
DR CHAN: Yes.
MS EASTMAN: How do you say this draft does that?
DR CHAN: This draft does that because it points to the knowledge about the concerns, for example, of the use of chemical restraint, and the risk that might be associated with the use of chemical restraint. The practice guide is only one element. We also have a series of practice alerts that are associated, for example, like medicines associated with swallowing faculties. There's a range of resources that we might provide to providers, and you will see in my other evidence, we've also provided what are evidence summaries of the risk of psychotropic medications.
MS EASTMAN: Now, one element that appears in the NDIS legislation, and we understand is important to the work of the NDIS Quality and Safeguards Commission, is upholding the human rights of people.
DR CHAN: That's correct.
MS EASTMAN: How are the human rights of people with respect to this guideline on chemical restraints identified in this guide? How do you weave human rights into that and how do you identify a human rights approach to using a chemical restraint?
DR CHAN: So if you look at our practice standards of
MS EASTMAN: I'm just asking about this guide.
DR CHAN: On this module, what I'm trying to illustrate, counsel, is to show that this is not a standalone document. This document is interlinked to our Practice
Standards and our Capability Framework of where the most pertinent point is to uphold the dignity of the person with disability. And this Practice Guide, particularly with just chemical restraint, would actually assist in giving, for example, all the risks that might be associated with the use of chemical restraint, and how it should be used as the last all restrictive practices, regardless, should be used as a last resort, it should also be used for the shortest time possible. It should be used as the least restrictive practice, and be authorised by the relevant State or Territory.
MS EASTMAN: But how is that consistent with the CRPD in terms of the standards expected of human rights in the CRPD? Because what you've just described is it can be used as last resort for the shortest time. That might reflect on how one looks at the limitation on particular human rights, but I'm interested in how you see this guide again in its broader context is actually meeting relevant human rights standards.
DR CHAN: If I may illustrate with a case example, would that be useful?
MS EASTMAN: Of course.
DR CHAN: So, for example, you might have an individual or participant who might, for a range of reasons, suddenly develop a self harming behaviour and I can think of a case where it is about self biting and intense self biting. When undertaking a functional behaviour analysis you, at the moment, may not know why that behaviour occurs, but for the safety of the person you might, for example, do a temporary recommendation for a mechanical restraint, stop the person from biting, and/or the doctor might prescribe a sedative to calm the person.
When that is taken as a risk mitigation strategy that we might do, then the functional behaviour analysis they might say why did this self harming, self biting behaviour occur, and how might we eliminate that.
MS EASTMAN: If you look at it from a risk perspective and a protection perspective, there's nothing in what you've said that allows a person to make a mistake, to exercise risk or to engage in risky behaviours. That the model is taking away any type of risk. Is that right?
DR CHAN: No. In fact, a good and positive behaviour support practitioner would uphold the dignity of a person, including the dignity of risk, and that's the objective of a person developing a positive behaviour support plan.
So in the example that I've given, for example, this is a risk of self harming, or really intense self biting that actually is, you know, provides a risk that at the moment you might not know what's causing that behaviour. The use of a restrictive practice should be, as I say, the shortest time possible, the least restrictive, and just in terms of preventing further harm to the person.
MS EASTMAN: So is the prevention of harm the key objective here?
DR CHAN: Correct.
MS EASTMAN: Now, at the present time, as you said, this is paragraph 27, that in terms of determining suitability for behaviour support practitioners, it's just a deeming process, and over time, is it the expectation that there will be a rigorous assessment process put in place to determine who should be a suitable behaviour support practitioner?
DR CHAN: Yes.
MS EASTMAN: Will there be a national public register of behaviour support practitioners?
DR CHAN: There will be where they are registered and they are in our books, in the registration.
MS EASTMAN: But will there be a national public register?
DR CHAN: Not at the moment that I'm aware of. But you can search for who are the registered providers through the ABN number.
MS EASTMAN: But nothing that will be able to be publicly available, like, say, for medical practitioners or allied health practitioners through AHPRA, you can search up a practitioner and see the practitioner's registration, details about registration, the fact if there has been a complaint or any action taken? Will there be a similar type of public register for behaviour support practitioners?
DR CHAN: Counsel, definitely we should consider that.
MS EASTMAN: But presently that's not part of the work that you have been doing in looking at registering doing any registering of behaviour support practitioners, is that right?
DR CHAN: That's right. At the moment it's through a search button of who are the specialist providers registered with the Commission.
MS EASTMAN: Will there be any monitoring of the standards of behaviour support practitioners?
DR CHAN: That will be part of the role of our assessment.
MS EASTMAN: Will the monitoring include regulating fees and charges that NDIS participants have to pay to have behaviour support plans developed?
DR CHAN: Counsel, that's not in my remit.
MS EASTMAN: All right. Whose remit would it be for there to be any oversight of
the fees and charges levied on NDIS participants to pay for the development of behaviour support plans?
DR CHAN: I think that's a matter for NDIA.
MS EASTMAN: For the NDIA?
DR CHAN: Yes.
MS EASTMAN: But doesn't --- if there's overcharging in relation to the development of a plan, surely that's a factor that goes to quality and safeguards, isn't it?
DR CHAN: If there's a complaint lodged on this matter, then that will be taken up. But the Commission doesn't have involvement of, say, in the pricing and the funding.
MS EASTMAN: I want to move to the management of behaviour support plans that are lodged with the Commission. So you have an oversight role in relation to plans that are lodged, and there's an obligation for a plan to be lodged. Is that right?
DR CHAN: That's correct.
MS EASTMAN: And in terms of the plans that are lodged, do you know how many plans have been lodged to date?
DR CHAN: Yes. About 6,000.
MS EASTMAN: About 6,000. And that's from all of the jurisdictions that are currently participating?
DR CHAN: Correct.
MS EASTMAN: And if there's 6,000 plans being lodged, what do you know about those 6,000 plans? Have you done a full review of every plan to look at whether the plan meets particular standards?
DR CHAN: So, there are two strategies at the moment, let's talk about the preventative model and Mr Head alluded to our behaviour support intelligence, too, that's also in my witness evidence, where we put on red flags. So because when you lodge a plan you have to put in what are the types of restrictive practice, and what are --- for instance, say in terms of chemical restraint, what are the medications that have been prescribed, and that's a dropdown box. We have a red flag that is automated within the business intelligence, too, that will flag a red flag --- consider polypharmacy used or we might have concern about a particular practice for, say, a young person who are in seclusion type of physical restraint or the use of two more anti psychotics or any kind of psychotropic medication of the same class.
MS EASTMAN: Did you hear Commissioner Atkinson's question to Mr Head a little earlier this afternoon about the behaviour support plans and what arrangements were in place?
DR CHAN: Yes, but happy for you to give me ---
MS EASTMAN: I might check with Commissioner Atkinson whether we can come back to your question.
Commissioner, I think you had a few follow up questions if that's appropriate to deal with that now.
COMMISSIONER ATKINSON: Yes, thank you, Ms Eastman.
Dr Chan, my question was, and I think Ms Eastman has already asked this question, and your last answer was a long answer to it but I think there's a fairly simple yes/no answer. Is each of the plans that are lodged checked to ensure that they are a quality behaviour support plan?
DR CHAN: Commissioner, we have just recently launched a Behaviour Support Quality Evaluation Tool. We have done a pilot project, a trial sample of 100 participants, and it is the view that in future we would assess the quality behaviour support plans moving forward.
COMMISSIONER ATKINSON: See, I used to be a judge and I like my questions answered.
DR CHAN: Yes.
COMMISSIONER ATKINSON: Do I take it from that that the answer to my question is no?
DR CHAN: Yes, sorry. My apologies if that's not clear.
COMMISSIONER ATKINSON: Thank you.
MS EASTMAN: In your statement, if I can take you to paragraph 152 on page 34, this is where you deal with the reviewing and monitoring of the implementation of behaviour support plans, and are we right in understanding that in terms of the way in which you're approaching the implementation sorry, the review and monitoring of implementation is using this project called BSP QE II.
DR CHAN: That's correct.
MS EASTMAN: What is that? Is that a particular audit function?
DR CHAN: The BSP QE II is a quality assessment tool. It's a well researched,
validated tool that has been well researched in Australia. It assesses on 12 domains of best practice of what a good quality plan would look like. Some of the initial research done in Australia actually show that a good quality plan for a whole range of reasons might lead to the reduction of a restricted practice. So some of the studies that are done in Victoria, for example, have shown that it has led to a reduction, albeit small, in chemical restraint or seclusion.
MS EASTMAN: This BSP QE II tool was a plan developed in the United States to evaluate behaviour support plans developed for children with disability in an educational setting. That's right, isn't it?
DR CHAN: That's the origin.
MS EASTMAN: And it's evolved from the United States model and it's been used both in Victoria and in Queensland, is that right, as a tool for reviewing the behaviour support plans developed both under the Victorian model and the Queensland model, and you had a particular role in relation to Victoria, is that right?
DR CHAN: That's correct. I was the one who brought the tool out.
MS EASTMAN: And in terms of it being a model to determine the quality of a behaviour support plan, the Commission has done an exercise in taking a sample of 100 support plans lodged after 1 July to do a random quality assessment process, is that right?
DR CHAN: That's correct.
MS EASTMAN: Now, you've given the results of that process, which you've called an audit, at paragraph 162, can I suggest to you reading through the results of the audit at paragraphs (a) through to paragraph (k) on the following page, can I summarise it this way: the results were very poor in terms of the plans that you reviewed. Would you agree with that?
DR CHAN: Yes.
MS EASTMAN: And what have you done in relation to that audit and discovering that for 100 random support plans that the results are very poor? What have you sought to do to look at the balance, the 5,900 other plans? Do you have any concerns about the plans that have been lodged that haven't been the subject of any review?
DR CHAN: Counsel, in any sort of research methodology, a sample of 100 would be sufficient to determine that is the representative of the sample of the other remaining plans. So what we've ascertained is a national baseline that the majority of plans are underdeveloped, and there's lots of improvement that's required. This is recently completed, this random audit, and we look to assist how providers can improve on their plans, through a grant is one strategy, and another strategy is an education engagement strategy with providers and a range of people that we can equip them as
part of the continuous quality improvement to use this plan for themselves.
MS EASTMAN: Does this audit require you to go back and look at the capability framework again, and that's a framework developed in July last year, to ask whether or not the people who were involved in developing these plans actually have the skills to be able to develop a behaviour support program that will meet high standards?
DR CHAN: That’s right. So the capability framework is actually itself based on international best practice. This tool has a similar best practice standard within it. They are all typical of a good positive behaviour support plan.
MS EASTMAN: Now my final question is --
COMMISSIONER McEWIN: Ms Eastman, sorry, I have a follow up question precisely in relation to the audit.
Dr Chan, at paragraph 162(d) where it says that only 10% of the plans reviewed had evidence that the participant had been consulted in the development of the plan. To me, that's a large concern. Why do you think that such a low number of NDIS plans --- where the NDIS itself is centred on the person --- could you give me your views on why that is so?
DR CHAN: I'm very concerned too, Commissioner, of that low involvement of people with disabilities in the development of the plan. That's actually a standard --- practice standard required in specialist behaviour support providers, that they need to consult with people with disability. In my witness statement, to answer the question that had been posed to me, we are looking at developing also a strategy on which we can empower people with disabilities to a supported decision making process, and how they can actively be involved in the development of these plans.
COMMISSIONER McEWIN: Okay, maybe then more broadly, is there a behaviour support plan model that's based on the social model of disability rather than a medical model?
DR CHAN: Commissioner, the positive behaviour support plan in all its elements is actually very consistent with the CRPD. I actually did a paper and an analysis looking at the positive behaviour support plan against the lens of the CRPD.
MS EASTMAN: I've got a copy of that article. Would you like me to refer to it?
DR CHAN: Terrific, thank you.
MS EASTMAN: We can provide that to you, Commissioner.
COMMISSIONER McEWIN: Thank you.
MS EASTMAN: I don't want to spend time on it.
My final question is, when can we expect to see the behaviour support practitioner scheme working effectively in terms of the Commissioner being satisfied that a particular person has the relevant qualifications or skill to take on that role of assessments and making plans, and then when can we expect to see that there will be improvements in the standards of behaviour support plans that meet the good results identified in the BSP QE II audit tool? When can we expect to see much better outcomes?
DR CHAN: One of the strategies we have put in place is that there will be, once it's rolled out, we will have an evaluation framework -- evaluation strategy to see whether the practitioners actually meet those capabilities. The rollout of the pilot project in three States will be completed by the end of this month or early October, and it will be intended to roll out across the different jurisdictions.
MS EASTMAN: So when can we expect to see, if the Commission came back and asked you in a year's time, what would we expect to see in terms of both practitioners and also the quality of behaviour support plans?
DR CHAN: In how I've dealt with this matter and my other experience, I would say by the end of the second year, we should be able to see a lifting of the standards and capabilities of practitioners.
MS EASTMAN: If you accept that for people who are subjected to restrictive practices, that's still a long time to wait for the standards to be high enough, and even a longer time to wait before there is a reduction or indeed an elimination of restrictive practices, including chemical restraint. Would you agree with that?
DR CHAN: Yes, I would agree with that.
MS EASTMAN: Thank you, Commissioners. That's the end of Dr Chan's evidence.
CHAIR: Thank you.
Commissioner Atkinson, any further questions?
COMMISSIONER McEWIN: No.
CHAIR: Dr Chan, thank you for your attendance and your detailed statement. We appreciate your assistance.
DR CHAN: Thank you.
MS EASTMAN: Thank you, Dr Chan.
THE WITNESS WITHDREW
MS EASTMAN: Commissioners, we need to attend to some administrative matters in terms of submissions and any directions that Commissioners wish to make about submissions. Can I suggest we have a short adjournment just to allow us to catch ourselves --- it's probably more me than anybody else in the room --- and then come back at 4.00 or just after?
CHAIR: Let's come back at 4.10 just to make sure there's enough time.
MS EASTMAN: Thank you.
CHAIR: We'll adjourn until 4.10 pm.
ADJOURNED [3.55 PM]
RESUMED [4.08 PM]
CHAIR: Yes, Ms Eastman.
MS EASTMAN: Commissioners, there were a few additional documents and some witness statements provided where we did not require the deponents to come and give evidence in this hearing. So can I deal with the formal tender into evidence of the remaining documents that we have used or referred to in the course of the hearing.
In Tender Bundle A, on Wednesday the Royal Commission heard the pre recorded evidence of Ms Toohey and Ms Kendell. Ms Toohey and Ms Kendell also provided a joint submission to the Royal Commission and you will find a copy of the joint submission behind Tab 30 in part A of the Tender Bundle and may I ask that document be marked as Exhibit 6-9?
EXHIBIT# 6-9 JOINT SUBMISSION BY MS DIANNE TOOHEY AND MS KATHY KENDELL
MS EASTMAN: The Royal Commission has received a number of statements in relation to this hearing from witnesses who have not appeared. Three of the
statements are located in Tender Bundle Part A, first of all behind Tab 73 and that is the statement of Maya Luks, a general practitioner and director at the Adelaide Disability Medical Service. At Tab 74, the statement of Associate Professor John Allan on behalf of the Royal Australian and New Zealand College of Psychiatrists, provided to the Royal Commission in response to a notice to give a statement. And behind Tab 75, the statement of Dr Ayman Shenouda on behalf of the Royal Australian College of General Practitioners provided in response to a notice to give a statement issued by the Royal Commission.
Could I tender these statements and ask that they be marked Exhibits 6-21, 6-22 and 6-23?
CHAIR. Yes, those statements will be marked respectively as Ms Eastman has indicated.
EXHIBIT# 6-21 STATEMENT OF DR MAYA LUKS
EXHIBITS# 6-22 STATEMENT OF ASSOCIATE PROFESSOR JOHN ALLAN
EXHIBIT# 6-23 STATEMENT OF DR AYMAN SHENOUDA
MS EASTMAN: And, Commissioners, you will recall that our practice in relation to Tender Bundles is to separate out some additional documents that have been referred to by witnesses.
So Tender Bundle Part B, the Commissioners will recall that there's been references to documents in Part B of the Tender Bundle, and that Tender Bundle is comprised of documents behind Tab 1 through to Tab 49. I note that some of these documents have already previously been the subject of tender at earlier Public Hearings of the Royal Commission, so I will not ask you to mark them as exhibits again, but with respect to the balance of the material in the Tender Bundle, could I ask you to mark them Exhibits 6-31 to 6-79.
CHAIR: Yes, that can be done.
EXHIBITS# 6-31 THROUGH TO 6-79 EXHIBITS IN TENDER BUNDLE B
MS EASTMAN: Commissioners, we'll provide an index and make sure an index is available clarifying which of the documents are already marked as Exhibits and which will be new markings of Exhibits for the purpose of Public Hearing 6.
And then Tender Bundle C contained the statements of Government witnesses and there is one final statement this had not been tendered as part of this bundle and that is a statement by Ms Debora Picone, the Chief Executive Officer of the Australian Commission on Safety and Quality in Health Care, and there are three annexures to the statement. You will recall Mr Graeme Head made reference to the statement earlier today. So can I ask you to receive that statement and the annexures into evidence and to be marked as Exhibit 6-30, and then the annexures 6-30.1 to 6-30.3.
Commissioners, I think that completes then the tender of all of the evidence relevant to this public hearing. If the Commissioners please.
CHAIR: Yes, those exhibits will be marked as you indicated.
EXHIBIT# 6-30 STATEMENT OF MS DEBORA PICONE
EXHIBITS# 6-30.1 THROUGH TO 6-30.3 ANNEXURES TO STATEMENT OF DEBORA PICONE
MS EASTMAN: Thank you.
CHAIR: Thank you, Ms Eastman.
I want, in closing, to thank all of the witnesses who have given evidence during these four days.
Once again, it has been a quite crowded agenda but we have been examining some extremely important issues and we are very grateful to the witnesses who have given their time and their expertise in order to prepare statements and to give evidence.
I particularly wanted to thank the witnesses who spoke of their own experiences, or the experiences of their family members, or people with disability for who they advocated, particularly Ms Paula McGowan who spoke about her son Oliver; Ms Raylene Griffiths who gave evidence of her own experiences; ABF who gave evidence about her brother ABG; Ms Rosemary Atherton who gave evidence about her brother Glen; Ms Joanna Mullins who spoke about her client ABK, a First Nations man who has been prescribed psychotropic from an extremely young age; and Ms Dariane McLean who gave evidence about her son and his experiences from a very young age into adulthood.
This hearing, as will be readily apparent to all those who have followed it, has raised particularly complex and difficult issues.
One of the achievements of the Disability Rights Movement is to have brought about a move away from a medical model which sees disability as a condition to be treated, and to be cured, if possible, by medical intervention. Instead, there has been much greater acceptance in legislation and in policy of the social model, which sees disability as the societal and environmental responses to physical or intellectual impairment.
The provisions of the Convention on the Rights of Persons with Disabilities have been strongly influenced by the social model, as we have heard at other hearings. Those provisions in the CRPD symbolise in international law the shift away from the earlier dominance of the medical model.
This hearing has been concerned with people with intellectual disability and autism and the point where the two models, medical and social, clash. That point is where psychotropic drugs are administered as having been prescribed by doctors for the purposes of addressing so called behaviours of concern by people with intellectual disability.
One of the themes of this hearing has been the overuse and inappropriate administration of psychotropic drugs to people with disability and people with autism. There is a surprising lack of data to demonstrate that this is the case, that everybody who has given evidence appears to agree that it is a major problem. One reason, but only one, that it is a major problem, is that the administration of psychotropic drugs can have serious adverse effects on the person taking them, in some cases, as we heard, even leading to death.
The gateway to the administration of psychotropic drugs in Australia is a prescription given by medical practitioners such as a general practitioner, or in the case of certain drugs by a psychiatrist. The basic principle that has been adopted by regulatory regimes in force in Australia is that the use of psychotropic drugs to treat mental illness is legitimate but the administration of psychotropic drugs for the purpose of addressing so called behaviours of concern, is a form of chemical restraint and therefore a form of abuse.
Chemical restraint is to occur, according to the regulatory regimes, if at all, only as a last resort and it must comply with a regime designed to ensure that the underlying causes of the behaviour are addressed, most often in practice, as we have heard, through positive behaviour support plans.
We saw, and have heard, that in practice the line between prescribing and using drugs to treat mental illness and prescribing and using drugs as chemical restraints is a very difficult line to draw. We have heard that sometimes what is presented as a prescription for the purpose of treating mental illness turns out to be an authority or authorisation to administer psychotropic drugs as a means of modifying so called
behaviours of concern.
The administration of psychotropic drugs to people with intellectual disability occurs within a framework that reflects the medical model, since model practitioners have a central role to play. It is that model to which disability advocates often so strongly object. Much of the evidence this week has been dedicated to explaining how we might be able to move away from the medical model that attempts to modify behaviour towards a social model that focuses attention on the social, environmental, and physical factors that influence the behaviours of people with intellectual disability and people with autism.
In the course of this hearing, the language that is commonly used by health professionals, as we saw, but not only by them, was often used by the witnesses. Professor Dowse, in her evidence, explained the sensitivity of language in this area and suggested that perhaps it might be more appropriate to refer to the complex needs of people with intellectual disability rather than use expressions such as "challenging behaviours" or "behaviours of concern".
The use of more traditional and widely used language such as those terms, as was pointed out at the very beginning of this hearing, does not imply acceptance of the assumptions that underlie the medical model of disability. On the contrary. The very purpose of this hearing is to demonstrate that so called behaviours of concern are not to be regarded as the fault of the person engaging in that behaviour and that it is essential to understand why the behaviour occurs. Many of the witnesses explained that behaviour is a form of communication for all of us and that for people with intellectual disability or autism, their principal, and sometimes their only means of communication, is through behaviour. We, therefore, need to understand what the person is communicating and how the concerns or feelings they are communicating can best be addressed.
In particular, we need to develop more effective mechanisms to address the physical, emotional, and environmental factors that influence the person's behaviour and not resort to the use of psychotropic drugs as an instrument for controlling the behaviour of people with disability or people with autism. This is obviously an important issue to which the Royal Commission will give further consideration and, in due course, make recommendations.
Today, we have heard evidence from Professor Trollor, who has been of great assistance to this Royal Commission, suggesting some of the reforms that might be introduced.
Let me make a final point. We retain our commitment to hear the voices of people with disability and to understand their experiences. For the most part, in this particular hearing, that has been done through family members or advocates. In determining how to present the experiences of people with disability, there is one overriding consideration which must guide the Royal Commission, ensuring that people who engage with the Royal Commission feel safe and are not at risk of being
re traumatised, for example, by giving evidence at a public hearing. This will continue to be the overriding consideration for the Royal Commission.
Our next hearing will address further issues on inclusive education and will be held as a remote hearing from 12 16 October 2020.
There are, in inclusion, some directions to be made. These relate to a number of matters. First, by 2 October 2020, any witnesses who took questions on notice during this hearing should provide their answers in writing to the Office of the Solicitor Assisting the Royal Commission. These answers should be targeted and concise and not address extraneous matters.
Secondly, in addition, in the lead up to this hearing the Office of the Solicitor Assisting the Royal Commission sent a number of letters to individuals and institutions in order to comply with the requirements of procedural fairness. By 2 October 2020, those individuals should provide any submissions in response along with any additional material. Reasons for the provision of additional material should also be given and these should also be concise. All correspondence in this regard should be directed to the Office of the Solicitor Assisting.
Thirdly, Counsel Assisting the Royal Commission will consider any additional material produced and determine if any additional steps need to be taken. By 9 October 2020, Counsel Assisting will tender into evidence whatever additional material she considers appropriate.
Fourthly, Counsel Assisting will then prepare written submissions to the Royal Commission setting out a number of key themes and issues that have emerged from the evidence during this week. The submissions may also include suggestions about further lines of inquiry that could be pursued by the Royal Commission before recommendations might be formulated in relation to those issues. The material might also include proposed recommendations that may be made by the Royal Commission.
Fifthly, by 2 November 2020, the Counsel Assisting submissions will be made available on a confidential basis to those parties with leave to appear at the hearing.
Sixthly, those parties who wish to make submissions in response to Counsel Assisting's submissions should do so in writing by 16 November 2020. The submissions in response should be concise and should not include any additional proposed evidence.
Finally, following consideration of Counsel Assisting's submissions, along with any submissions received in response, the three Royal Commissioners who have sat at this hearing will prepare a short report on that hearing. That report will be made public in due course.
It remains only for me to thank all of the staff within the Royal Commission who
have assisted in the conduct of this hearing, including, of course, the Office of Solicitor Assisting and Counsel but also other members of the staff of the Royal Commission who have ensured that this hearing has been conducted in an efficient and orderly manner. We owe them a great debt of gratitude. Thank you.
The Commission will now adjourn.
ADJOURNED AT 4.24 PM UNTIL MONDAY, 12 OCTOBER 2020