Public hearing: Homes and living, Melbourne - Day 2
COMMISSIONER SACKVILLE: Good morning, everybody. I commence by acknowledging the traditional custodians of the lands on which we meet today, the Wurundjeri people of the Kulin Nation. I pay my respects to the Elders past and present. I honour the young people who one day will take their place as custodians. Before we commence the hearing proper, I wish to acknowledge that today is the 2019 International Day of People with Disability. The International Day of People with Disability is celebrated each year on the 3rd of December. The aim is to increase public awareness and understanding of the rights of people with disability and to celebrate their achievements and contributions.
The celebration also seeks to increase awareness of the benefits to be derived from including people with disability in every aspect of political, social, economic and cultural life. Part of this awareness is the recognition that Australian society must strive for inclusion by removing the physical, social and attitudinal barriers that confront people with disability in their daily lives. The focus on inclusion is particularly significant for the work of this Commission. As we’ve heard, the United Nations Convention on the Rights of Persons with Disabilities states that full participation and inclusion are fundamental aspects of the human rights of people with disability.
The Commission’s Terms of Reference explicitly recognise that promoting a more inclusive society is necessary to support the independence of people with disability and their right to live free from violence, abuse, neglect and exploitation. There are many events taking place around Australia to mark International Day of People with Disability. One such event is the National Awards for Disability Leadership which will be broadcast via the internet, so I’m told, from 1 o’clock to 2.30 pm today. The National Awards for Disability Leadership recognise and celebrate the extraordinary contribution and leadership shown by people with disability and their organisations in this country.
We will take the lunch break today in time to allow people to be free between 1 pm until 2.30 pm so that anyone who wishes to follow the national awards can do so. I want to congratulate all the finalists for their achievements, and I am sure I convey to them the good wishes of everyone who is in this room or who is following this hearing. I shall now invite Commissioner McEwin to say a few words.
COMMISSIONER McEWIN: Thank you, Chair. As the Chair has noted today is International Day of People with Disability. The theme for this year’s day is ‘promoting the participation of persons with disabilities and their leadership’. The International Day of People with Disability is a day of global celebration and reflection. Our disabled brothers and sisters around the world are marking this day with us. This is a day to be proud, to acknowledge our achievements as a community and as individual leaders in all spheres of life. As disabled people, we are the experts in our lives. We are the ones who have experienced segregation. We are the ones who have experienced social barriers. And we are the ones who continue to experience violence, abuse, neglect and exploitation in Australia.
As experts in our lives, we will lead the change to ensure an inclusive society. Disabled leaders are everywhere. Disabled people lead community organisations, academic pursuits, businesses, artistic endeavours and scientific innovation. Sadly, however, disabled leaders are often not recognised nor given the same opportunities as their non-disabled peers to achieve their full potential. And they are significantly underrepresented at the highest levels of public office and organisations, and in private enterprise. An inclusive society is one where disabled people are represented at all levels of leadership. It is important that our younger members of the disability community have a wide range of disabled role models to learn from as they develop and emerge as leaders themselves as empowered leaders with a strong sense of autonomy, independence and commitment to equality.
Disabled people must be able to participate in environments that are universally designed, inclusive and fully embrace their disability. These aspects are outlined in the Convention on the Rights of Persons with Disabilities. The importance of leadership by and participation of disabled people in all aspects of our society cannot be emphasised enough. It is imperative for true inclusion. In closing, I pay tribute to all those disabled people who have gone before me, who through their determined and committed leadership have paved the path towards realising our human rights. I thank them for their tireless efforts and I say to them that I will do all I can to build on their achievements into the future.
My congratulations to all the finalists for the National Awards for Disability Leadership and I wish all involved in the awards the very best. Happy International Day of People with Disability. Thank you.
COMMISSIONER SACKVILLE: Ms Eastman.
MS EASTMAN SC: Good morning, Commissioners. And good morning everyone in the room today and also watching. On behalf of the Commission staff, that includes the counsel, solicitors, our very large Research, Policy and Strategy teams, we also acknowledge the International Day of People with Disability. We all feel honoured and privileged to be able to work with the Royal Commission to address these issues. And so I hope I speak on behalf of all of my colleagues, many of whom you don’t see in this room, but are working very hard in our offices behind the scenes and around the country. So we also acknowledge our colleagues in the Royal Commission with disability and we wish them a happy day as well. May I turn to the business of today.
Today we change our approach a little bit. Some people may be disappointed that there will be few people with visible disability appearing in the Royal Commission today. And that’s certainly not intended. But what we want to do today is to start to ask the questions of why violence, abuse occur. What do we need to be asking in terms of developing policies and practices? And to that end we thought that we would be assisted by talking to some of the academics with expertise in this area to help us set a framework in which we can understand the evidence that we heard
yesterday, but also, more importantly, the evidence that we’re going to hear for the rest of the week.
We will, throughout this week, have witnesses who have lived experience of disability coming to share their experiences with the Royal Commission, and assisting us understand how we can better work to develop policies and practices to eliminate violence and abuse. So our three witnesses this morning; we start with Ilan Wiesel who will deal with issues of history and deinstitutionalisation. Then we have Claire Spivakovsky who will speak to us about some of the practices in group homes, often described as practices to assist and care for people with disability but in fact operate to perpetrate violence and abuse. And Sally Robinson will speak about her research on developing safe strategies.
The afternoon session, we turn our attention to the way in which the sector is regulated in Victoria, and in particular, the experience of the Office of the Public Advocate, Colleen Pearce, and the work that she does in assisting people with disability in decision-making in relation to their homes. Her evidence will examine her role and powers, and provide us with an overview of some important research and reports that she has undertaken recently. And our final session of the day will be a panel of two Community Visitors who will give us a very direct and personal insight into the role and the importance of community visitors in working with people with disability in group homes. So I will now hand to Mr Andrew Fraser who will take our first witness this morning.
COMMISSIONER SACKVILLE: Thank you, Ms Eastman. Mr Fraser.
MR FRASER: The first witness is Ilan Wiesel.
COMMISSIONER SACKVILLE: Dr Wiesel – is that how you pronounce your name?
DR WIESEL: Wiesel, thanks.
COMMISSIONER SACKVILLE: Sorry?
DR WIESEL: Ilan Wiesel.
COMMISSIONER SACKVILLE: Wiesel, yes. There is someone else’s name who is spelt the same as yours that’s pronounced a little differently. Yes, well, you may take the oath or affirmation as you wish and if you just follow the instructions, thank you.
<ILAN WIESEL, AFFIRMED [10.11 am]
<EXAMINATION BY MR FRASER
COMMISSIONER SACKVILLE: Thank you, Dr Wiesel. Please sit down and Mr Fraser will now ask you some questions.
MR FRASER: Thank you. Can you please tell the Commission your full name?
DR WIESEL: Ilan Wiesel.
MR FRASER: You’re a Senior Lecturer in Urban Geography at the School of Geography, University of Melbourne.
DR WIESEL: Yes.
MR FRASER: You’ve held that role since 2016.
DR WIESEL: Yes.
MR FRASER: Prior to that you were a senior research fellow at the University of New South Wales at the City Futures Research Centre.
DR WIESEL: Yes.
MR FRASER: You held that role between 2009 to 2016.
DR WIESEL: Yes.
MR FRASER: What is your primary area of research?
DR WIESEL: My primary area of research is in understanding the social geography of cities and I’m particularly interested in social inequalities in cities, and I’ve looked at aspects that create disadvantage in urban areas. A particular focus in my research is people with disability and questions that surround housing, institutionalisation of people with disabilities and how it also relates to urban policy and housing policy.
MR FRASER: And in fact you are currently leading a three-year study titled The Disability Inclusive City: examining adjustments made by mainstream housing, health, transport and community services to becoming more inclusive of people with intellectual disability.
DR WIESEL: That’s correct.
MR FRASER: And you have provided a statement to this Commission dated 28 November 2019.
DR WIESEL: Yes.
MR FRASER: You have a copy of that with you now.
DR WIESEL: I do.
MR FRASER: And the contents of that statement are true?
DR WIESEL: Correct, yes.
MR FRASER: And you included in that statement your CV and what you’ve described as a short list of your publications at paragraphs 9 and 10.
DR WIESEL: Yes.
MR FRASER: Commissioners, that statement is at tab 66 of the tender bundle and includes annexures from tab 67 to 76.
COMMISSIONER SACKVILLE: Thank you.
MR FRASER: I’d like to start by asking you some questions about the process of deinstitutionalisation that commenced in around the 1960s. Implicit in that concept of deinstitutionalisation is an institution. Can you please describe the concept of an institution as related to persons with disability prior to the 1960s?
DR WIESEL: So since about the 17th Century people with intellectual disability and psychosocial disabilities amongst others have been institutionalised or housed in – in large facilities, large scale facilities from hundreds and sometimes thousands of people under the same roof. Those – those institutions are in many parts of the world. Institutions are more places where all aspects of the lives of the residents took place; they slept there, they had their – that’s where they spent most hours of the day, all hours of the day. There were quite a strict hierarchy between staff and residents and quite a tight rigid schedule of activities that’s determined by the institution.
MR FRASER: So how would you describe in that context the process or the concept of deinstitutionalisation?
DR WIESEL: Deinstitutionalisation is a movement and it started internationally around the 1960s, that involved the closure and downsizing or redevelopment of institutions and shifts toward community-based housing and support for people with disability.
MR FRASER: And the process first commenced in the 1960s in Europe and North America?
DR WIESEL: That’s right. In Europe, North America and then many others – many other countries have followed, including Australia.
MR FRASER: And what were the factors that drove deinstitutionalisation as an international movement?
DR WIESEL: There have been a few different factors. So the institutionalisation started in the 1960s and was, in a way, part of a broader civil rights movement. So the rise of the disability rights movement as part of the broader civil rights movements in the 1960s was part of the – derived from the deinstitutionalisation. There was mounting evidence of the abuse and, I guess, the neglect – restriction of individual freedoms that was taking place in institutions, various places. There were dozens of reports, inquiries, academic studies and media reports on those conditions in institutions and that led to the movement of the institutionalisation.
There was a new ideology of normalisation, a view that people with disability, including people with intellectual disability, should experience the same standard of living and should have the same opportunities as other members of the community. And community-based housing, as opposed to institution, was seen as the pathway to normalisation. There was – I think the institutionalisation was also part of broader reforms in the public sector towards, I guess, community-based provision of human services in many other fields such as aged care, vocational services.
MR FRASER: And how did this movement towards deinstitutionalisation manifest itself in Australia?
DR WIESEL: So in Australia there was a first wave of deinstitutionalisation in the 1960s and 70s but that did not involve full closures of institutions, rather more downsizing and quite kind of piecemeal relocation of residents. That was the first wave. Then the second wave of deinstitutionalisation in the 1980s, it would start to see closures and more significant redevelopments of institutions. That was driven by the Disability Services Act in 1986, a piece of federal legislation which recognised people with disabilities’ right for community-based living and support. Also, I guess, national policies such as the National Disability Agreement, then known as the Commonwealth State and Territory Disability Agreement. And that articulated a broad policy framework for deinstitutionalisation at a national level.
MR FRASER: Now, you referred to some initiatives at the national level. What about at the state level?
DR WIESEL: So the national level policies were quite broad but there wasn’t really – they were not really attached to significant funding. So it really left states and territories to their own devices in developing their own deinstitutionalisation policies. So I guess each state followed a different trajectory and timeline of the deinstitutionalisation.
MR FRASER: In terms of that process here, what were some of the historical barriers to implementing the process in Australia?
DR WIESEL: It’s been a very slow and haphazard movement in Australia. So I’ve talked about it starting in the 1960s and there are still institutions out there. Some of the barriers include, I guess, first, political barriers. The institutionalisation policies were supported both by Liberal and Labor governments in different states but we’ve seen different governments, I guess, overturning decisions to close institutions by previous governments or not really prolonging their own commitments to close institutions.
Other barriers included labour relations. Worker unions would often voice concerns about potentially negative implications of closing on staffing institutions and issues around redeployment of staff. Then another issue was particularly families of some residents in institutions who opposed the closure of the institutions where their relative had lived. Primarily driven by concerns about the adequacy of community-based housing and support for their relative. So those were the issues that were being negotiated by different governments in different states and have significantly, I think, slowed down the progress.
COMMISSIONER SACKVILLE: Could we just go back one step. Can I just ask you, how important was the Richmond Report?
DR WIESEL: It was quite important in New South Wales. It has been, I think, quite a significant driver of deinstitutionalisation in New South Wales.
COMMISSIONER SACKVILLE: That was 1983.
DR WIESEL: That was in 1983. And it led to quite significant, I guess, policies that followed on off the report, but I can’t tell you off the top of my head the exact timeline in that period.
COMMISSIONER SACKVILLE: Right. Thank you.
MR FRASER: In terms of the process or the progress in Australia, how would you describe that, perhaps starting with New South Wales?
DR WIESEL: Sorry, could you repeat the question?
MR FRASER: The progress of the deinstitutionalisation. So here I’m looking at paragraph 25 of your statement.
DR WIESEL: Yes, so the – most of the large scale state-run institutions in Australia have been closed by now. But in New South Wales, despite commitments by the government to close all the institutions we still have institutions, Kanangra, Stockton centre and Tomaree Lodge, which are still operating. They’re much smaller than they used to be. There are fewer residents there. They’re expected to be closed by next year.
MR FRASER: At paragraph 26 of your statement you refer to some statistics from the AIHW. What is the AIHW?
DR WIESEL: The Australian Institute of Health and Welfare.
MR FRASER: And what’s the statistic that you’ve stated there at paragraph 26?
DR WIESEL: So the statistic refers to 5000 people who live in supported accommodation facilities. The AIHW records the data on different disability services, including the accommodation services. They don’t currently – they used to have a measure of the number of people living in institutions but they’ve changed their terminology, which in fact makes it harder to follow the numbers of people living. So they have one criteria for people living in domestic size facilities, which I understand as being group homes, and they have larger supported accommodation facilities, which, I guess, is a broader category. So it’s hard to tell how many of these people live in institutions or other types of facilities that are bigger than group homes but not necessarily large scale institutions.
MR FRASER: Now, at paragraph 27 of your statement you refer to one of the most controversial aspects of deinstitutionalisation. Can you tell the Commission what your research has shown to be the various, if you like, controversial aspects of the process?
DR WIESEL: So, I mean, one of the first things was the closure of institutions, and as I mentioned there was opposition from some – from different directions. But another question was where institutions were closed or redeveloped, the question was what would be the type of housing that would replace them. So in those cases, people were rehoused in group homes. But in some cases, other facilities were built that were larger than group homes. In some cases for 10 people rather than – and usually in the group home you’ll have five or six people but they built facilities for 10, sometimes 20 people. Or in some cases you’d have something like a cluster of group homes. So a few different group homes on the same site or in very close proximity.
MR FRASER: And can you give an example of that occurring? I’m referring to paragraph 28 of your statement.
DR WIESEL: So Kew Cottages was the largest institution in Victoria. It was really – they were closed down in 2008. All the residents were rehoused in group homes. The majority of them were rehoused in group homes that were dispersed all over the State, but about 100 residents were rehoused in about 20 group homes within Kew on the site where the institution used to be. They built a new residential neighbourhood. And initially those group homes were meant to be dispersed within the neighbourhood but I understand that they were very much clustered together in the same area within the neighbourhood.
And there was quite a substantial debate around the planning of the closure and about the planning of the rehousing of residents, where carer groups very much wanted to – just to have as many residents stay in Kew, for very good reason. Some of them to keep the connection to the area where they lived for a long time, to keep those networks between residents and between carer groups and staff. But many disability rights organisations have objected the development of such a cluster, on the basis that this will reproduce some of the same problems that existed in the institution.
MR FRASER: What were some of the other consequences of deinstitutionalisation? I’m referring here to paragraph 30 of your statement.
DR WIESEL: What we were seeing is parallel to the deinstitutionalisation there was an increase, quite a dramatic increase in the number of people with disability who are homeless or incarcerated in prisons. Now, it is hard to draw a direct line between deinstitutionalisation and that. It’s not the same people who have left institutions and are now in prison or homeless, but the point is that we’ve not seen sufficient provision of community-based housing to meet the needs of all people with disability.
COMMISSIONER SACKVILLE: Dr Wiesel, it’s readily, I think, understandable as to why there was a move away from institutions, having regard to the kinds of abuse and so forth in the large institutions. What was the rationale for the movement towards group homes, as distinct from some other alternative to institutions? Or was there any other alternative to institutions?
DR WIESEL: The main rationale for group homes, I would describe as economies of scale. So it was very expensive to provide one on one support for every resident to live on their own. So grouping five or six residents in a group home provided some economies of scale in providing support. So you would have a roster of staff providing care for five people. So you would only need one or two staff members at every time, rather than five.
COMMISSIONER SACKVILLE: And at this stage, group homes were financed by state governments, for the most part.
DR WIESEL: For the most part, yes, that’s right.
COMMISSIONER SACKVILLE: Is it implicit in what you say that the ideal would be one to one, one patient accommodation for one person? Is that implicit or is that just a comparison for cost purposes?
DR WIESEL: I think the ideal is where people have a choice about where they are housed and with who they live – and I don’t believe most people would have chosen to live in group homes but I think that they should have been asked and they hadn’t. There was no choice for people about where they are going to be rehoused. There was no choice for people about who they lived with in a group home. So, yes.
COMMISSIONER SACKVILLE: Okay.
MR FRASER: Now, you’ve mentioned that governments were the original funders or providers. Has that changed over time?
DR WIESEL: Over time, government stayed the funders but over time there has been a shift where quite a substantial number of group homes were delivered by non-government organisation, by disability services providers which are non-government. But it was still funded by state governments.
MR FRASER: Now, in your statement – just to locate you, I’m at paragraph 36 – you refer to some of the advantages and disadvantages with the group home model. Can you explain to the Commission what your research has shown to be some of the key advantages and disadvantages?
DR WIESEL: So overall I think the evidence internationally and in Australia suggests the quality in group homes is better than the institutions they replaced. So it’s not necessarily a move for the worse, but there’s some serious problems and issues with the group home system. For the first – and the first point is that outcomes for residents were quite inconsistent across different group homes. So it depends on a whole lot of factors and variables from the quality of support staff, their training, the mix of residents, the compatibility between residents and other factors related to the location of the – of the group home. As I just mentioned earlier, I think the question of choice had been a real significant issue. Group home residents have very little if any choice about where they live, with whom they live, and that goes against the Convention on the Rights of People with Disability that specifies explicitly that people with disability should have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others. An issue with the group homes, there was not enough of it. There was unmet demand for – for accommodation and support. So that resulted in a quite long waiting list to enter group homes. And that was the only option available. So even if people did not want group homes that would have been the only option to receive some kind of accommodation and support.
But to be offered a placement you would have to demonstrate extreme level of urgency, high levels of need for a group home. So many – very often people would only be offered a placement after the death or illness of – of a carer or when carers have relinquished care for a person with a disability. That created a crisis-driven approach to how vacancies were allocated, and – and created problems including the incompatibility between residents who just did not choose to live with one another and really did not get along together.
MR FRASER: You’ve referred to incompatibility between residents. What about incompatibility or issues with service providers? And I’m referring you here to paragraph 39 of your statement.
DR WIESEL: There’s – so just like in the same way that residents had no choice about co-residents they had no choice about their support staff. They basically had to take it or leave it if they were offered a placement. And once they enter a group home, they’re – the support provider is both their landlord, they run the home in which they live but also their support provider; they’re supposed to provide support services for people living in group homes. And that creates a power dynamic that is – is very much against the residents. So imagine if you live in your own home and you bring in someone to – to provide you with support services, it gives you some control over the situation. But if you live in a house that’s owned or managed by the support provider, and they’re also your support providers, they have quite significant control over your life.
So that was a major issue. If you wanted to leave, you lose both your home and your support. So, again, it disempowers people with disability living in group homes.
COMMISSIONER SACKVILLE: Are you speaking of a situation where instead of the state running the group homes, it’s now private service providers? Is that what you’re directing your comments to?
DR WIESEL: Not necessarily. Not necessarily. It could be provided by the state or by a non-government organisation, but from a resident’s perspective the house they live in is owned by their service provider. They would not necessarily see distinction in terms of who owns the house and who runs, manages the house, and who provides the support services. So housing and support were linked together, and that, I think, created a disempowering situation for residents, and empowers support services.
COMMISSIONER SACKVILLE: Do we know what proportion of group homes are owned or run by the state – or one of the states compared with private service providers?
DR WIESEL: I do not have that data.
MR FRASER: You’ve referred in your statement to some of the consequences for persons with intellectual disability with challenging behaviours in the group home environment, and just to locate you I’m looking at paragraph 42, 43 of your statement. Are you able to expand upon some of the consequences that can arise for such people?
DR WIESEL: Yes. So challenging behaviours are where people with an intellectual disability primarily, I guess, express – present behaviours that are considered disruptive or even violent towards staff or other co-residents. The literature understands challenging behaviour – the academic literature understands it as an expression of frustration where people have very little control over their lives, and no other ways of communicating their frustration, their needs are not being met. In group homes people with challenging behaviours would live with other residents, and that might create issues for those other residents in terms of having to live with such behaviours that can be quite disruptive and violent.
Some organisations have tried to avoid that by moving people with – I guess, clustering or taking a few different people with – considered to have challenging behaviours and putting them in the same group home, and that would create a group home where practices of support staff would be quite restrictive because they will have a house with three or four or five people with quite high needs, and they will often use quite restrictive practices to try to control that.
MR FRASER: The final thing I will ask you, given your expertise in research in this – in this area is what would you like to see come out of the Royal Commission in terms of access to housing for people with disability?
DR WIESEL: I guess my – my interest – my research interest is also about housing and affordable housing. We know that with the NDIS there is anticipated unmet need in affordable housing for about 100,000 people with disability who will be NDIS participants. And I think that there is no national or state level policy to address that scale of unmet need. So what I would like to see from the Royal Commission is a – is a very strong push to – for governments to come up with plans to address unmet need, and – and to provide a supply of housing that is affordable for people with disability that gives them choice about where they live, that is suitable for people in terms of the design, the management of their homes, that is well located, that is not segregated.
If some people choose to live in group homes I mean that should be an option that is provided but other people should have many other housing options – housing and support options. I think the NDIS went a long way in addressing some of the unmet need in support services, and – and, you know, doubling the funding for support services, but we have not gone much further in addressing housing unmet need, and I’d like to see that area being developed.
MR FRASER: Thank you. Commissioners, I have no further questions for Dr Wiesel.
COMMISSIONER SACKVILLE: Yes. Commissioner McEwin has a question.
COMMISSIONER McEWIN: Thank you. You talked earlier about the disempowering of residents in group homes. What do you think needs to be done for people with disability to be able to exercise their rights as tenants?
DR WIESEL: Thank you. I think the NDIS will change some aspects of the group home system. So the group home system will be regulated under the specialist disability accommodation also known as SDA framework. And one of the things that will change is that a – a person would have the SDA funding in their NDIS plan so that funding will not be attached to the group home. It would be attached to the person in their plan, which at least in theory it means that people will have more choice about moving out of a group home where they’re unhappy, and using the funding to enter another group home. Of course, that will depend on availability of
sufficient supply of SDA accommodation. If there’s not supply, if there’s nothing to choose from, having the funding is not going to be particularly helpful.
COMMISSIONER McEWIN: Thank you.
COMMISSIONER SACKVILLE: Thank you. Can I ask a variation on the questions that have been asked? You’re obviously familiar with the United Nations convention and in particular Article 19. What would the system look like if Article 19 were to be fully implemented? What would have to be done? I know you’ve expressed views about meeting unmet need but then that requires translation into workable practices and policies. So what would it look like?
DR WIESEL: We would need ‑ ‑ ‑
COMMISSIONER SACKVILLE: You’re now the dictator. So you can determine the allocation of resources.
DR WIESEL: We would need a program, a national program to build a supply of affordable housing, and I’m talking at the scale of 100,000 new homes. This is just for NDIS participants, excluding many other people with disability who are not NDIS participants and live in substandard housing or live in private rental experiencing affordability stress which means paying half their income on – on – on the rent. So a national plan to build 100,000, at least, new homes that are affordable where people pay no more than 25 per cent of their income on the rent is – is the first step. And I don’t see any such policy being proposed.
COMMISSIONER SACKVILLE: And have you done a costing of that policy?
DR WIESEL: I have not. I am not an economist. But the NDIS is an expensive policy and we’ve managed to get it through.
COMMISSIONER SACKVILLE: Okay. Yes. Thank you very much. Mr Fraser, is there anything else that you would like to ask Dr Wiesel?
MR FRASER: No, no. Thank you, Dr Wiesel.
COMMISSIONER SACKVILLE: Dr Wiesel, thank you very much for your attendance. And thank you for the work that you’ve done and that has gone into your statement. Thank you.
DR WIESEL: Thank you very much.
<THE WITNESS WITHDREW [10.40 am]
COMMISSIONER SACKVILLE: Ms Eastman, yes.
MS EASTMAN SC: If the Commission pleases, the next witness is Dr Claire Spivakovsky.
COMMISSIONER SACKVILLE: Ms Spivakovsky, I’m sure it has been explained; you may take the oath or affirmation as you wish. Thank you.
<CLAIRE SPIVAKOVSKY, AFFIRMED [10.40 am]
<EXAMINATION BY MS EASTMAN SC
COMMISSIONER SACKVILLE: Thank you very much. Please sit down. Thank you for your attendance today and for your statement. Who will be taking ‑ ‑ ‑
MS EASTMAN SC: I will.
COMMISSIONER SACKVILLE: You will.
MS EASTMAN SC: Commissioners, a copy of the statement is at tab 41 in the bundle. And Dr Spivakovsky has also provided the Royal Commission with a copy of her CV and her publications. And so those are the documents from tab 42 to tab 53.
Right, Dr Spivakovsky, you are Claire Spivakovsky.
DR SPIVAKOVSKY: I am, indeed.
MS EASTMAN SC: You currently hold the position of Senior Lecturer in Criminology at the University of Melbourne.
DR SPIVAKOVSKY: That is correct.
MS EASTMAN SC: You’ve prepared a statement for the Royal Commission dated 26 November 2019.
DR SPIVAKOVSKY: That is correct.
MS EASTMAN SC: Do you have a copy with you in the ‑ ‑ ‑
DR SPIVAKOVSKY: I do, indeed.
MS EASTMAN SC: And you’ve had a chance to read over the statement?
DR SPIVAKOVSKY: I have, yes.
MS EASTMAN SC: No corrections or changes to any part?
DR SPIVAKOVSKY: No.
MS EASTMAN SC: And the contents are true and correct?
DR SPIVAKOVSKY: That is true.
MS EASTMAN SC: What I want to start with is if you could start right at the beginning because the work that you do in looking at violence and abuse for people with disability, and we’re going to talk about group homes, is something that you want to explain in a way that we can understand it. And I think there’s an example that you’ve got.
DR SPIVAKOVSKY: Sure.
MS EASTMAN SC: Which is a good example to sort of help start off the discussion that we’re about to have.
DR SPIVAKOVSKY: Sure. So my research, broadly speaking, is around the governance of the lives of people with disability, particularly as that relates to law. So I’m interested in what are the sort of social and cultural and institutional processes that, in essence, dictate the sorts of lives that people with disability can have under law and what sort of problems are within that. And so a lot of my work has actually been around what are termed restrictive practices, that Ilan started to mention in his evidence before. And restrictive practices, if you’re not familiar with them, particularly in Victoria, they – they sort of sit under four main categories. So we have what’s called chemical restraints that can be used in terms of – this is medication that is not – often we think of medication and we think okay someone has a cold, we get them some Sudafed, we treat them in these ways.
This is medication that is used for the purposes of controlling someone’s behaviour or controlling other elements of their lives. So you might want to think instead about medication that is used to make people a little bit more docile, so antipsychotic medication, or medication that might be used to, in essence, chemically castrate someone, lower their libido. Make them have lack of choice in that way. There’s mechanical restraint so being restrained with straps and other sorts of mechanisms to chairs, for example, to beds, there’s physical restraint using someone’s body against someone else’s body and there is seclusion as well. So not very nice stuff at all.
MS EASTMAN SC: Can I just pause you there?
DR SPIVAKOVSKY: Of course you can.
MS EASTMAN SC: I think one of the issues that you’ve looked at in your research is – and we will come and talk about restraint in a little bit more detail in a moment –
is that if we compare how we might look at the use of restraints for persons who are not identified as people with disability, I think you’ve – you use that to ‑ ‑ ‑
DR SPIVAKOVSKY: Yes.
MS EASTMAN SC: ‑ ‑ ‑ help understand the impact of the way in which restraints might have an impact on people with disability. So, sorry, it’s a little bit of longwinded way but the example I think you gave was an example from a different Royal Commission.
DR SPIVAKOVSKY: Correct, yes.
MS EASTMAN SC: And the way you put it is very helpful. So rather than me say that, can you help the Royal Commissioners to ‑ ‑ ‑
DR SPIVAKOVSKY: Sure.
MS EASTMAN SC: ‑ ‑ ‑ just have an understanding about how you’ve looked at – so the example in the other Royal Commission ‑ ‑ ‑
DR SPIVAKOVSKY: Sure.
MS EASTMAN: ‑ ‑ ‑ to the issues we’re going to talk about in a moment.
DR SPIVAKOVSKY: Yes. So I guess the reason I was giving the context of restrictive practices is these are things that many disability advocates and activists, scholars including myself would call disability-specific lawful violence. They are forms of violence and abuse. And if they happened in any other context or in relation to any other population, we would be outraged and we would be doing something about this. And the example that I often speak about with students, for example, to help them understand this, because I think we often look at these things and we think, “Oh, okay, but they’re happening in a group home or they’re happening and the law says this is part of what happens to people with disability so it must be okay, it must be treatment”.
But if we think about the example of Dylan Voller in the Northern Territory and we think about the Don Dale Juvenile Justice Centre and the terrible footage that was shown of him strapped in a chair with a spit hood over his head, and the outrage that that sparked within the general public, and the instant Royal Commission we got and call for Royal Commission the next day. If we could have that kind of outrage about that which can occur in group homes and which the law says is okay to occur in group homes, it can occur on regular bases, why is it that we can’t see this in the same way? Why do we not ask the same questions? And for me, I can’t answer that for you. So to me, when we give someone medication against their will, forcefully against their will and we strap them down and we hold them down, when we lock them in rooms, that is violence and abuse, and that’s what I’m interested in
understanding why we persist on doing that and why we can’t call it out for what it is.
MS EASTMAN SC: And part of this is that the use of those restraints you’ve examined in your research are lawful ‑ ‑ ‑
DR SPIVAKOVSKY: Correct.
MS EASTMAN SC: ‑ ‑ ‑ in the sense that they’re practices that might be permissible because there may be a relevant court order or tribunal order that permits a person to be treated in that way.
DR SPIVAKOVSKY: That is correct, yes. And they sit within our Victorian Disability Act. You can do these things. You can get more extreme versions of them too. If you think about – one of the things that I study is supervised treatment orders – or, sorry, supervised treatment orders that we have here in Victoria which are, I would say, is a more extreme version of this. But in essence, a supervised treatment order, if you’re not familiar with them, are orders that only apply to people with intellectual disability, only apply to people with intellectual disability who reside within residential services, so group homes.
Only apply to people with intellectual disability who are said to have a pattern of violent or dangerous behaviour but there’s no specific explanation for that. And if that can be proven before the Victorian Civil and Administrative Tribunal, with its lesser burden of proof, if you can prove this is the case you can ask for one of these orders to be made for up to 12 months. That means that a person can have, in essence, a version of chemical castration. So giving people quite significant amount of chemical to change their behaviour. They can be locked within either their room or within the service provider’s premises. And if they are to go out, they require two to one supervision. And we do these things and we say it is okay because it sits in law, but it is – it is not okay. This is what I find very troubling.
COMMISSIONER SACKVILLE: Can you give an example of the – of a case where such an order was made, the behaviour or circumstances that were said to justify such an order.
DR SPIVAKOVSKY: Sure. So I can give you a – I don’t know what you want to call it – an amalgamation of general sort of cases as opposed to a specific case. And these are publicly accessible. If you go to the Victorian Civil and Administrative Tribunal’s website, you will be able to download some of the cases that are heard before that. So usually the ways that these supervised treatment orders or STOs end up being applied is if a person has come out of prison, and we – service providers decide that that constitutes a pattern of violent or dangerous behaviour and that they have concerns that that pattern will be continued within the group home setting and so they seek one of these orders.
And what I would say to that is we have a range of post-sentence supervision orders in Victoria that have incredibly high burdens of proof because we understand that in any other context to be a breach of someone’s human rights, that someone has served their time in prison and are now in the community and should not be held under any further regard. But we don’t seem to apply that same standard to people with disability. This instead access and opportunity, if you like, or another way that they can be held under this law because this sits in our Disability Act, not under our criminal law. I don’t know if that answered your question.
COMMISSIONER SACKVILLE: Yes, I think so. But does that mean that as – in effect, as a condition for admission to some kind of residential facility, the person coming out of jail, for example, might be subject to an order of the kind that you’ve described?
DR SPIVAKOVSKY: It’s not clear if it would be a direct condition, but it is – all of the cases that I have reviewed – sorry, not all of the cases. The majority of the cases that I have reviewed, the evidence that is given before or presented before the Victorian Civil and Administrative Tribunal, when they have to make the case around violence – pattern of violent or dangerous behaviour, where they try to make that case, they refer to the person coming out of prison within the last 12 months. So my understanding would be the person is released from prison. They enter into a residential service or a group home, and then at that point I believe they would still need to demonstrate some level of agitation, then they – one of the supervised treatment orders are sought and the grounds often in which they are permitted is that they have previously come out of prison and that that demonstrates a pattern of violent or dangerous behaviour.
COMMISSIONER SACKVILLE: Thank you.
MS EASTMAN SC: All right. So I just want to take you to paragraph 11 of your statement, where ‑ ‑ ‑
DR SPIVAKOVSKY: Of course.
MS EASTMAN SC: ‑ ‑ ‑ you describe four forms of restraint.
DR SPIVAKOVSKY: Yes.
MS EASTMAN: And this is part of the subject of your research. So the first is the chemical restraint.
DR SPIVAKOVSKY: Yes.
MS EASTMAN SC: And I think you were describing that earlier. So that’s the use of tranquillisers and other psychotropic medication that is used for the purpose of subduing a person and, you say here, “controlling unwanted behaviour”.
DR SPIVAKOVSKY: Yes.
MS EASTMAN SC: Is that a euphemism? What’s that referring to?
DR SPIVAKOVSKY: So that primarily refers to – well, what gets called also euphemistically as “challenging behaviour” or “behaviours of concern”. And that can include a wide range of things. Often chemical restraints are used in relation to more violent behaviour or any form of sexual behaviour. Not necessarily, I would add, as some interview participants have explained to me, not necessarily problematic sexual behaviour but whether or not people want to have – people and service providers would want residents to be sexually active, to have their own choices in how they engage in sexual activity. It can also be used in that context, to limit that, but that relates to forms of abuse in relation to this.
MS EASTMAN SC: So in terms of the use of chemical restraints, would the Royal Commission be right in understanding that that requires the intervention of medical practitioner?
DR SPIVAKOVSKY: What do you mean by intervention?
MS EASTMAN SC: So if there was to be the use of a chemical restraints in a group home, it wouldn’t just be that somebody in the group home, a support worker said, “Look, this is not good. We might administer some medication”. Wouldn’t it be the case that there has to be the intervention or involvement of a medical practitioner, both in terms of prescribing and making a decision about whether it’s for therapeutic or other use?
DR SPIVAKOVSKY: So an authorised program officer is usually the person who makes some of the decisions around this. They take it – they make a case for which the – what was previously called the Office of the Senior Practitioner would oversee whether or not this is to be done. There can be instances where what’s called PRN medication, where a form of chemical restraint can be used at an immediate moment of time if there is a suggestion that it needs to be used at that time and it cannot be waited for. Usually, though, it’s based on an understanding of, I guess, a persistent pattern of behaviour that they are seeking some form of response to.
MS EASTMAN SC: Okay. The second area that you identify is what you describe as mechanical restraint. So that’s the use of mechanical devices such as wrist or leg restraints that prevent, restrict or subdue a person’s movement. Can you give us an example about how that would work in practice, and the context in which a mechanical restraint would be used?
DR SPIVAKOVSKY: So mechanical restraints, my understanding is that they are less frequently used than many of our other forms of restrictive practices and because they are, in my opinion, quite barbaric, as are many of the other ones as well. But they are less frequently used. The context in which they might be used – not in the context of group homes but actually in the context of education, where I’ve also done
research. You may recall different instances that have been spoken about in the inquiry into violence, abuse and neglect around young people being strapped to chairs, for example, if you’re fidgety or agitated or perceived to be likely to injure yourself or others or to damage property. That’s the context in which it might be used.
MS EASTMAN SC: Right. The next one was physical restraint. And you’ve said in your statement that’s using a staff member’s body to physically restrict the movement of a person with disability.
DR SPIVAKOVSKY: Mmm.
MS EASTMAN SC: So is that a type of restraint that might be used to deal with a particular situation as it arises, or is this ‑ ‑ ‑
DR SPIVAKOVSKY: Correct.
MS EASTMAN SC: ‑ ‑ ‑ something that is more common in terms of the way in which a staff member might interact with a resident with disability?
DR SPIVAKOVSKY: So based on my research and what has been said to me in the interviews that I have conducted, my understanding of it is more that it is at – to do with particular incidents as they arise. And incidents is too strong a language. The example that I can think of is an interviewee relaying to me a resident of a group home who didn’t want to be put on a bus to be taken to the day service and was loudly exclaiming that they did not want to go and was physically restrained and physically carried, dragged down the hallway to be put on to the bus to go to this. So it’s in those immediate circumstances, usually.
MS EASTMAN SC: Right. Now, final example that you describe is seclusion. So that’s a form of sole confinement of a person within a locked room or part of the premises.
DR SPIVAKOVSKY: Yes. Yes ‑ ‑ ‑
MS EASTMAN SC: So is that used as a restraint or is that something that intersects with punishment? Have you researched that relationship between restraint and punishment?
DR SPIVAKOVSKY: Yes. So seclusion is a funny one. It’s a very slippery slope is what I would say around seclusion. I think most places would say that they will not seclude residents but I’m not sure what you call it when someone is locked in their room against their will. And I’m not sure what you call it when someone says they want to go outside and they are not allowed to. So it has a very strict technical legal purpose and I suspect most people will be able to say that they adhere to that. But this comes back to this point about I think we need to appreciate what are the actions and interventions that are taking place and look at them in their actual state
rather than – and understand them for being locking someone back, holding someone back, restraining them, doing these things, as opposed to just simply understanding the pure technical has it breached a specific element of law as well.
MS EASTMAN SC: All right. So now I want to turn to the research that you’ve undertaken in restrictive practices and the everyday practice and regulation of disability group homes. And at paragraph 13 of your statement you talk about your research focusing on three relationships, three areas. So the first, which you’ve described in paragraph 14, is exploring underlying assumptions about risk, disability and normality. Can you assist us a little bit more in explaining what the nature of this research involves and what your research has discovered?
DR SPIVAKOVSKY: So this, I guess, comes back to the point that I was making before about what we understand things like restrictive practices and other forms of intervention with people with disability in group homes, what we understand them to be. Because often they are based on assumptions about what are seen as so-called risky behaviour, risk to others, risk to selves, dangerous behaviour and also assumptions about how everyone, supposedly, should be behaving in a rather uniform way within a home environment. And so these are the sorts of assumptions that allow us to have things like supervised treatment orders being created, allow us to have restrictive practices sit in our Disability Act because we believe that some people with disability will require this form of intervention, and that belief rests on an assumption of risk or of dangerousness or some inherent thing to disability that makes it uncontrollable in some way. And that’s, I think, what often stops us from seeing these things as actually being incredibly problematic.
MS EASTMAN SC: The second area of your research has considered the relationship between the use of restrictive practices and other forms of violence against people with disability. And reviewing your publications and your work, this seems to be a very central feature of looking at the intersection between our criminal law framework and the way in which restrictive practices operate in group homes. So can you tell us a little bit more about this area of your research? And, again, what you’ve found in the work that you’ve undertaken?
DR SPIVAKOVSKY: Sure. So, as you said, there’s – sort of looking at this intersection between the use of restrictive practices and these other forms of violence. And I guess there’s a range of different examples I can give for you there. The first thing that I would say is that there are multiple problems with restrictive practices but one of the things that I find very problematic about them is that they, I guess, sit on this broader continuum of control and containment, and what is allowed to be done to people with disability that then, I guess, blurs the line between when violence is permissible more broadly. So if you think, I guess, about a person with disability where restrictive practices is allowed to be used against them, and on – every morning of the week someone is allowed to give them medication against their will, but also on maybe, let’s say, every afternoon of the week a staff member is supposed to help them go to the toilet or help them dress themselves or help them clean themselves.
And these are all things that we have regulations and laws and governance procedures that say it is okay that someone is doing this to you, it is okay that someone is touching your body. It is okay that you can be undressed or someone might be present in the room while you are doing this or someone may physically pick you up. That these are then the same circumstances where somehow three hours later if someone does that to you and there weren’t these sorts of guidelines around, that we want to say that’s abuse and violence because it is.
But what I’m trying to come around to in a very roundabout way, and not necessarily clearly, is that if these – how do you tell the difference – how, if you are being told on a daily basis that it is okay that this staff member is in a room with you while you’re getting undressed or it’s okay for the staff member to help you get dressed, or it’s okay for the staff member to put you on the toilet, and it’s okay for the staff member to hang around in the toilet while you’re there, and it’s okay for the staff member to hold you back if you’re aggravated, and it’s okay for the staff member to give you medication against your will, how do you – how do we, I guess ‑ ‑ ‑
MS EASTMAN SC: So it’s sort of how do you know that ‑ ‑ ‑
DR SPIVAKOVSKY: Yes, what is the line.
MS EASTMAN SC: ‑ ‑ ‑ what is happening in day-to-day life ‑ ‑ ‑
DR SPIVAKOVSKY: Yes.
MS EASTMAN SC: ‑ ‑ ‑ crosses the line ‑ ‑ ‑
DR SPIVAKOVSKY: Yes, into something that’s not okay.
MS EASTMAN SC: ‑ ‑ ‑ and to be conduct that’s not okay?
DR SPIVAKOVSKY: Yes. And how do you bring it forward.
MS EASTMAN SC: How has your research examined that and where are the challenges for people with disability to know and understand that concept of crossing the line?
DR SPIVAKOVSKY: Yes. So one of the projects where this was the most apparent is a project that I conducted in partnership with People with Disability Australia who are representing disabled people’s organisations in Australia. This was when I was based at Monash University with colleagues at Monash University as well. And this was looking at violence against women with disability. And it was looking both in and outside of group home settings as well. And I guess part of it is this problem of where is that line, how do people get to say it?
But the other part of it is, I guess, that there isn’t any opportunities for it to be said. So I think about the sort of research that I have conducted over the years, and it is –
as academics we often get frustrated with how little data there is around violence against people with disability.
MS EASTMAN SC: Why – sorry to interrupt you.
DR SPIVAKOVSKY: Of course.
MS EASTMAN SC: Why is there so little data around recording violence and abuse of people with disability?
DR SPIVAKOVSKY: So there’s a range of reasons for that. Part of it is to do with what our Government collects. So the Australian Bureau of Statistics, and where it sort of draws the line in terms of collecting data. So as Ilan was talking about before, about whether or not people within group homes are actually able to speak. Sometimes there is a decision that a person is unable to speak for themselves, and so someone else will stand in for them. But then it seems that the questions around violence are not asked because it’s not coming directly from the person. So we lack a lot of quantitative data. I’m a qualitative researcher which means I go in and do interviews. There’s more to qualitative research than that but I think that’s the easiest way of saying it.
So with qualitative research, the particular sorts of barriers that I usually face is that – so I speak to service providers, I speak to people in government positions, I speak to a lot of very generous disability advocates and activists, and I speak with people with disability as well, obviously. And particularly around these issues to do with violence and abuse, people don’t want to speak, and when I say “people”, what I’m talking about, actually, is – is service providers often do not want to give access to speak with people residing within their residence to speak to them about violence and abuse. And often the reason that is given is that there is concern that this will be retraumatising, and too difficult, or that the person will not understand the questions that are being asked or the circumstances in which the violence occurred.
And I will say that there is good reason to have some of these concerns. It is incredibly traumatic to speak about some of these things, and we should respect and understand that and I think this Commission does. And we should appreciate that we need to give people full informed consent before we ask them difficult questions. But at the same time when we have a range of protocols around how to do that when we appreciate how to provide people with support, often it seems that the barriers for actually gaining access are about concerns to do with other things, in part about, I would say, protection of the service themselves, but also coming back to the thing that I’m often interested in, assumptions about people with disability, and assumptions that the person with disability will not know what happened to them, will not be able to speak, will not be able to understand, these very limiting assumptions about the actual capabilities of people with disability.
COMMISSIONER SACKVILLE: These are difficulties you’re describing with qualitative research.
DR SPIVAKOVSKY: Correct, yes.
COMMISSIONER SACKVILLE: Quantitative research is a rather different sort of undertaking.
DR SPIVAKOVSKY: Yes.
COMMISSIONER SACKVILLE: And I imagine that there are very substantial methodological difficulties in a body like the Australian Bureau of Statistics ‑ ‑ ‑
DR SPIVAKOVSKY: Yes.
COMMISSIONER SACKVILLE: ‑ ‑ ‑ getting accurate information on the extent of abuse and violence within, say, group homes or other forms of accommodation. Is that a fair observation?
DR SPIVAKOVSKY: Yes.
COMMISSIONER SACKVILLE: What can this Commission do to overcome that problem? But if you’re not a quantitative researcher perhaps I’m asking the wrong person.
DR SPIVAKOVSKY: Thank you for saying that; I was trying to find a nice way to say. As a non-quantitative researcher I’m not sure that I’m the best placed to answer that particular question!
COMMISSIONER SACKVILLE: Okay. Well, that’s fair enough. Yes. Okay.
MS EASTMAN SC: The third area of your area of research you’ve set out in paragraph 16, and that concerns the relationship between the use of restrictive practices and broader organisational concerns. So can you help us a little bit on this issue ‑ ‑ ‑
DR SPIVAKOVSKY: Sure.
MS EASTMAN SC: ‑ ‑ ‑ and what your research has found. This is the interface with occupational health and safety, workplace rules, the way in which organisations are structured. Is that ‑ ‑ ‑
DR SPIVAKOVSKY: Yes.
MS EASTMAN SC: ‑ ‑ ‑ the focus of the research?
DR SPIVAKOVSKY: Yes.
MS EASTMAN SC: What has your research found in this area?
DR SPIVAKOVSKY: Sure. So again, this is research based on qualitative interviews with service providers, with disability advocates, with, I guess, other stakeholders in the space including government organisations and other representative bodies. So what some of my research has shown is, you know, when I ask people about restrictive practices and why they exist and why sort of control might occur in group home settings, the answers that I often get and what the research suggests is that an element of this has to do with organisational concerns about their own reputational risk. So as a interviewee sort of put it to me, this kind of concern of, “Well, what will happen to us if someone gets out and does something terrible? How will that reflect on us? What sort of funding will the organisation continue to receive?”
And so it seems that there is then this kind of implicit and potentially explicit pressure that is then placed on staff to manage these situations in which potentially something could go awry within the community and it could be seen that the organisation was not – well, not living up to expectations, if you want to say it that way. So that there is then this pressure as staff have reported to me as well, that to sort of manage these situations, because it’s not just the organisational risk then that’s of concern, but that it becomes staff’s jobs that are of concern. That there is a feeling that if something was to go wrong, that then it would be who was responsible on that day for that person and that their job might cease.
And so this then creates this kind of situation where if you’re kind of, I guess, being very controlling around the environments in which people can have access to the broader community, what they do in that broader community and you’re then bringing it closer and closer inside of the home, or you’re restricting the amount of time that might be spent out, you then have situations where people, quite rightly, are very frustrated with that, people with disability are quite rightly frustrated. And what then seems to happen is this, I guess, complicated deferral to workers’ occupational health and safety concerns. So I appreciate the concerns that workers have about their occupational health and safety but it seems to be a one versus the other.
That if workers are concerned about their occupational health and safety because they are being told that they are now staying in a place with someone who is so risky they can’t be let outside, supposedly, that they then use that as reason to control other behaviours, either through application for restrictive practices, through using medication that they shouldn’t necessarily be using in that context, or through other forms of controlling where people go, so that they then are not feeling like they are in threat. And there seems to be a justification that this very blurred line around the edges of when restrictive practices can be used is more palatable because it is said to be about protecting the occupational health and safety concerns of the workers. And I find that very problematic. It shouldn’t be one versus the other. You should be able to have environments where people can work safely and where people can actually enjoy their lives.
MS EASTMAN SC: Commissioners, they’re the questions that I wanted to ask Dr Spivakovsky. You could appreciate that we’re really just opening up these
questions, and she has provided all of her articles and research papers which explore some of these issues in some detail. So unless the Commissioners have any further questions, that completes all the matters that I wanted to explore, but I do preface that as this is only the start of an investigation which we may need to explore further into the future.
COMMISSIONER McEWIN: Thank you. In your view, how would you describe the use of restrictive practices particularly in Victoria; do you think it’s epidemic or do you think it is – it needs to be addressed and how serious would you describe it?
DR SPIVAKOVSKY: I think a lot of the literature is saying at the moment that it is being used at a concerning rate, that it is something that has to be addressed particularly in this State as well, that we tend to be potentially a little bit more risk management minded and that that’s where it seems to come into place. How we address it, I think, is in part, by addressing group homes. To me these things go hand in hand, in part because that’s the nature of the legislation. The restrictive practices are only meant to be used in particular contexts or, sorry, they do get used in other contexts but they’re only legislated to be used in particular contexts, including group homes.
But restrictive practices are not necessary when you don’t have behaviours of concern. Behaviours of concern, as we’ve heard before and as also people spoke about yesterday, I think, about the man who gave evidence in the morning who spoke about his – that, you know, maybe some people think that he is difficult. We are all difficult – or at least I am anyway – we can all be difficult. And when we live in circumstances with other people, we can be frustrated and we can sometimes be aggressive and we can say things that we may not mean. We can do all sorts of different stuff. But no one watches us all the time and decides that that’s an indication that our behaviour is somehow uncontrollable or risky. And no one looks at that as evidence that that is something bigger to do, supposedly, with a disability.
So I think if you want to get rid of restrictive practices, which I wish we would, that it is also about getting rid of group homes and the nature in which they both create circumstances that are so incredibly frustrating that this is the kind of behaviour anyone, I suspect, would live up to in those places. But also that they are – the nature of those homes that those behaviours are documented and watched and used to build cases of evidence that they are somehow something more than just frustration with an unpalatable situation.
COMMISSIONER SACKVILLE: I take it that you would accept that you cannot get rid of group homes overnight. So on any view whatever you replace group homes with would be a reasonably long process.
DR SPIVAKOVSKY: Mmm.
COMMISSIONER SACKVILLE: While they exist, would you accept that there will be cases of violent behaviour and so forth, and how are they to be addressed in
the absence of some capacity to impose restraint? I think everybody would agree that restraints are not a good thing.
DR SPIVAKOVSKY: Mmm.
COMMISSIONER SACKVILLE: But what do you do to cope with a problem of that kind?
DR SPIVAKOVSKY: I think that’s a very difficult question.
COMMISSIONER SACKVILLE: That’s why I asked it.
DR SPIVAKOVSKY: As an academic, I’m much better at identifying problems than I am at coming up with solutions, I’d say.
COMMISSIONER SACKVILLE: I used to be an academic.
DR SPIVAKOVSKY: So I think that it’s really about the investment then in the environment, in understanding how to change that environment so that people actually have proper choice and control while it persists, and that the time period in which it persists should be shortened so significantly, like that it actually has to be a priority to disestablish group homes, to disestablish restrictive practices, not just say that it is something we are aiming for, that we have created frameworks for, that we need to move quickly on these things, but that if we have to have something in the interim, then it should be based on the understanding of where these things come from, and if they are about quite understandable frustration with environment and with circumstances, then it’s about addressing those environments and those circumstances as they are, and then continuing to just remove them entirely.
COMMISSIONER ATKINSON: It seemed to me that one of the factors you were saying was responsible for this was the disempowerment of – in fact that also relates to Dr Wiesel’s evidence, that disempowerment of residents leads to frustration, leads to acting out, leads to restrictive practices, more disempowerment. Is that an accurate ‑ ‑ ‑
DR SPIVAKOVSKY: Yes.
COMMISSIONER ATKINSON: ‑ ‑ ‑ analysis of how it seems your research goes?
DR SPIVAKOVSKY: Yes. That it almost becomes a self-fulfilling cycle, often, and that the disempowerment, as you say, sort of leads to – the frustration leads to restrictive practices, and then the frustration that restrictive practices are in place then acts as a justification that those practices should be there because there’s an idea then that the person doesn’t know what they’re talking about, or wouldn’t be in control of their behaviour if they say that they don’t want to be forcibly dealt with in the way that they are. Absolutely, this is sort of self-fulfilling, which is why I would say chop it in half and get rid of it altogether because I’m not sure that you can just fix
components of it. It’s too tight a circle. But I – I appreciate that you can’t change the world overnight. I would just say can we not change it faster than we are at the moment.
COMMISSIONER SACKVILLE: Thank you very much, Dr Spivakovsky, for coming ‑ ‑ ‑
DR SPIVAKOVSKY: Thank you.
COMMISSIONER SACKVILLE: ‑ ‑ ‑ and giving evidence and for your research which we shall look at very closely. In fact, Commissioner Atkinson, I’m sure is going to read all of your publications.
DR SPIVAKOVSKY: Thank you very much.
COMMISSIONER SACKVILLE: Thank you very much. Should we now have a short adjournment?
MS EASTMAN SC: Yes, thank you.
COMMISSIONER SACKVILLE: Thank you. Let us make it – it’s now 20 past 11. Perhaps 20 minutes.
MS EASTMAN: Thank you.
COMMISSIONER SACKVILLE: Okay. We’ll come back in 20 minutes.
<THE WITNESS WITHDREW [11.20 am]
ADJOURNED [11.20 am]
RESUMED [11.46 am]
COMMISSIONER SACKVILLE: Yes, Ms Eastman.
MS EASTMAN SC: Yes. Thank you, Commissioners. The next witness is Professor Sally Robinson. And Mr Harding is taking Professor Robinson.
COMMISSIONER SACKVILLE: Yes. Professor Robinson, if you wouldn’t mind take an oath or an affirmation, as you wish.
<SALLY ANTOINETTE ROBINSON, AFFIRMED [11.46 am]
<EXAMINATION BY MR HARDING
COMMISSIONER SACKVILLE: Thank you very much. Please sit down. Mr Harding will ask you some questions.
MR HARDING SC: Commissioners, the statement of Professor Robinson is at tab 126 of the tender bundle, together with a number of papers that she has prepared and wishes the Commission to have regard to. In addition, Professor Robinson has provided the Commission with a book entitled Preventing the Emotional Abuse and Neglect of People with Intellectual Disability, which is not yet in the tender bundle but will find its way there.
COMMISSIONER SACKVILLE: I think we each have copies of that.
MR HARDING SC: Thank you. Professor Robinson, is your name Sally Antoinette Robinson?
PROF ROBINSON: Yes, it is.
MR HARDING SC: And you are a Professor of Disability and CommunityInclusion.
PROF ROBINSON: That’s right.
MR HARDING SC: And you’re based at Flinders University, yes?
PROF ROBINSON: Yes, I am.
MR HARDING SC: And before then you were – you worked for the Centre for Children and Young People at Southern Cross University as an Associate Professor.
PROF ROBINSON: That’s right.
MR HARDING SC: And leader of the Disability Research Program there.
PROF ROBINSON: I did.
MR HARDING SC: And Professor Robinson, have you prepared a statement for this Commission?
PROF ROBINSON: Yes, I have.
MR HARDING SC: Have you read it recently?
PROF ROBINSON: Yes, I have. Several times.
MR HARDING SC: So on that basis you feel confident that it’s true and correct?
PROF ROBINSON: Yes.
MR HARDING SC: Thank you. Professor Robinson, you describe the research that you undertake in paragraph 9 of your statement. Perhaps if you could elaborate further for the Commission about that research.
PROF ROBINSON: Thank you. The research that I do is really about privileging the perspectives of people with disability, particularly people with intellectual disability. I’m really interested in understanding what matters to people who are the kind of people who aren’t going to appear here before you. And I particularly want to know what is important to them about living a good and flourishing life and what gets in the way of that. I’m interested in preventing abuse, but more than that, I’m interested in promoting personal safety and how we can have high expectations for people with disability to have the same sorts of productive, positive, flourishing lives that people without disability have. And, really, what gets in the way of that for people at an individual level but also in terms of the systems and the wider structures that impact on that.
MR HARDING SC: And from paragraphs 12 on in your statement you describe the experience of abuse from a variety – that people with disabilities experience abuse from a variety of sources. And you describe that as the multidimensional nature of abuse. Perhaps if you can tell the Commission what that means.
PROF ROBINSON: Thanks. Across multiple projects I’ve found it very helpful to draw on this multidimensional framework, which really is a series of concentric circles. And what’s important is the person at the centre. And that’s the person and how they understand themselves and their relationships, so about people’s own identity. And then moving outward, the relationships between the people who are closely involved. So in the context we’re interested in today, the working relationships that are between staff, staff and families, managers, that the people who are involved in the group home or the service context that people are part of.
But then more broadly, the role of organisations and systems and what that has to play. And then the influence of wider social and cultural factors. So thinking about abuse and neglect in this way I think is really helpful because it highlights that group homes themselves are important. They’re critically important. But they’re not the only factor that’s coming into play. There’s a whole lot of things that are moving in and out and affecting people with disability in particular, but also the people who are a part of their lives.
MR HARDING SC: So there’s three aspects, if you like, the personal, the relational, the systemic, and you say, do you, the group home is part of that dynamic but there are other elements to it?
PROF ROBINSON: That’s right.
MR HARDING SC: Now, you give an example in your paper about a person you know, Jan, which you say highlights these aspects. Can you perhaps tell the Commission about that example further?
PROF ROBINSON: Yes. Thank you. I’m really glad to have the opportunity to speak about Jan’s life because Jan was really important to me. And I think that if she were still alive, Jan would be front and centre at the Royal Commission. Jan and two other people, Kim and Robert, were really important in leading my work and directing my work and today, on the International Day, I think their leadership really should be acknowledged. I first met Jan Daisley when I was her lecturer at uni. And over time we grew to know each other very well and I was her friend and colleague and I was also her advocate for a long time, until her recent death.
Jan had two uni degrees. She had an undergraduate degree and then a Masters degree. And she wrote a three volume autobiography as well about her life. She had an extraordinary life. She was the President of a national advocacy organisation and she had a wide circle of friends. She was a very well loved woman. She had a very loving family as well. She was a very brave and resilient and exceptionally strong-willed person. She was also a person who had very high and complex support needs. She was blind. She had quadriplegia. She had a speech impairment. She was reliant on other people for all of her physical support needs.
When she acquired her disability in her 20s, Jan went into a large institution and she lived there for quite a long time. She then moved to a group home and then finally, in the last year of her life, she moved into her own home, which was always her goal. She said herself – I will just read her words that she contributed to Shut In, which was a web campaign about the deinstitutionalisation. She said:
It’s well known and documented that large residential facilities housing people with disability are breeding grounds for abuse. And much of this abuse is caused by archaic rules introduced by bureaucracy and the biophysical and medical models of disability which prevail in institutions. It is time government stopped passing the buck and injected adequate resources and expertise into fulfilling their promise to close institutions.
Let’s be real about change and give people with disability, the shut ins, the chance of living a quality life in the community. While group homes are not perfect, they’re an enormous improvement on what people with disability both young and old have had to put up with in institutions. I moved out of an institution over 17 years ago and have no regrets. Sometimes things can be difficult but that’s life no matter where you are.
The whole 20 years that I knew Jan, though, she made continued complaints about the quality of care that she received. When she lived in the group home she had bones broken, skin torn, money stolen, multiple physical abuses. So when she said life wasn’t perfect, she was gilding the lily a bit there. And when she complained, she was told she was difficult and that she was demanding by managers of the group
home. The needs of preferences of workers were prioritised over her needs. She was expected to be patient, to wait, to work with a steady stream of new staff and agency staff who didn’t understand her communication, to wait for more resources to trickle down.
Eventually, Jan moved into her own unit and that alleviated some of the worst problems in the last year of her life. And I think Jan’s story speaks to some really important things. Her situation shares many of the features that are common to people who have participated in several of our research projects. And that’s about that multidimensional nature of abuse that I was talking about. It’s also about the normalisation of violence, abuse and neglect over time and the lack of authority that people with disability have over their own lives in services. The opportunities and the barriers that people with disability have to develop a new safety strategies when they don’t feel safe in their home environments. And the systemic origin of practices that are experienced in very personal ways.
MR HARDING SC: Now, you mentioned safety strategies, which is an aspect of the research that you report upon in your statement, and you deal with that subject in paragraph – or from paragraph 25, by reference to a graphical image. Can you tell the Commission what that image depicts about those safety strategies that you’re speaking about?
PROF ROBINSON: We have done some research where we worked with people with disability across two projects, one was with children with disability, one was with adults with disability, about what they do to be safe and what they do when they don’t feel safe. The graphic there is a model that was developed by people with disability about how they understand safety. And there are four elements to the model, for people who can’t see it, that are about being physically safe, being emotionally safe, feeling capable – thank you – and having their access needs met. So the thing that I think that is really important that comes out of this work is this idea that people don’t have ideas about what to do to keep themselves safe is wrong.
People have some really good strategies, some great ideas about what helps them to be safe. You can see there that around being physically safe people had some ideas that what they needed to be safe was to have a safe place to be, to be out of danger, to stick together, to not be mistreated. Around being emotionally safe, that people – this was very important to people, that it was about being known, being – having trusted relationships, people you could count on, having a feeling of comfort, being known and understood, being respected, feeling protected. In terms of feeling capable, it wasn’t so much that people wanted to be independent and feel that they could stand alone but they wanted to feel that they were supported, that they were listened to, that they were able to influence, that they had influence over what happened in their lives.
And in terms of having access needs, it was very important to people that access needs were thought about more broadly, that it wasn’t just about having a ramp or having a hearing loop, although those things were important, but it was about feeling
well met and welcome, that you were wanted, you were expected. Somebody in the research put this very nicely when he said:
Social perceptions bleed into accessibility. If people perceive a wheelchair or crutches as an inconvenience, then you’re not going to feel like you want to be there and therefore the place becomes inaccessible to you.
MR HARDING SC: Well, Professor, were there ways, based on the research, that people gave effect to these strategies in their lives?
PROF ROBINSON: Yes, there were. There were also a lot of tensions. I don’t want to present this as it was a straightforward thing because it wasn’t.
MR HARDING SC: Yes.
PROF ROBINSON: And people are really diverse. I really don’t want to sort of put this out as like it was a really straightforward thing. People had strategies, they implemented their strategies and it happened. There were heaps of tensions and difficulties around this. It’s also really important, I think, to acknowledge that people come with their histories. So people who had safe backgrounds, people who didn’t have abuse histories, had different strategies and different levels of confidence in being able to use their safety strategies, but lots of people who have been involved in our research didn’t have that experience. They already had experienced abuse including, sadly, young people. And that affected their capacity to put – to identify things that would help them to be safe and to implement them. So one of the things that I found the saddest about this research that we’ve done was that some of the strategies that people talked about were things like keeping a low profile, dressing in nondescript ways, crossing the road when somebody was coming towards you, being hyper vigilant about keeping the door locked all the time, a set of strategies that effectively make you less visible in the world. And for young people to do that is really sad because it’s about diminishing who you are in the world and making yourself less visible. Young people shouldn’t be feeling that.
MR HARDING SC: Yes.
PROF ROBINSON: And what it does, it keeps you safe from some levels of harassment but it also makes you more vulnerable to predatory abuse as well at the same time.
MR HARDING SC: You say in paragraph 28 that the management strategies, presumably the strategies utilised by the people you were speaking to, those with disabilities, for keeping safe, were subtle and often involved negotiation and compromise. Now, can you explain to the Commission what you mean by “negotiation and compromise” in that context?
PROF ROBINSON: Because a lot of people were involved quite heavily with service systems, they weren’t on a level playing field. And so the sort of negotiation
and compromise that – that people had to make was those sorts of things that I just talked about. So the kinds of things that they had to negotiate around were about giving away some of their own capacity to be in the world, I guess, as I just talked about, and doing things that made them less likely to attract the attention of staff who they thought about as cranky or – I’m not expressing it very well.
COMMISSIONER ATKINSON: So these are about strategies not only when out in the community but actually when at home.
PROF ROBINSON: Yes, that’s right. Yes. Yes.
MR HARDING SC: In that sense, just picking up on the Commissioner’s question, when you talk about negotiation and compromise you’re talking about actions the person themselves took to control their situation in the group home or outside the group home; is that right?
PROF ROBINSON: Yes, that’s right.
MR HARDING SC: Based on what they perceived to be risks that they might evade if they took these ‑ ‑ ‑
PROF ROBINSON: Yes.
MR HARDING SC: This course of action.
PROF ROBINSON: Yes.
COMMISSIONER SACKVILLE: Are what you’re describing are strategies that people within group homes, for example, have had to develop in order to cope with perceptions of danger?
PROF ROBINSON: Yes, that’s right.
COMMISSIONER SACKVILLE: Perceptions that shouldn’t exist in the first place because the danger shouldn’t exist.
PROF ROBINSON: Yes.
COMMISSIONER SACKVILLE: I’m trying to understand whether these strategies you’re describing are universal or were they strategies that people who had been subjected to abuse previously or were part of a particular kind of accommodation developed? How widespread were these strategies?
PROF ROBINSON: They weren’t universal. So the – perhaps I wasn’t very clear earlier when I said that people who had more trauma backgrounds were more likely to use those kinds of strategies and people who had safer, more family-focused
backgrounds were less likely to use those sorts of strategies. So, you know, people were bringing their own backgrounds with them.
COMMISSIONER SACKVILLE: Sorry, I might have interrupted. I’m sorry.
MR HARDING SC: No, no. Not at all, Commissioner. Just on that subject, I think you say in your statement that trauma can be cumulative.
PROF ROBINSON: Mmm.
MR HARDING SC: Is that what you’re referring to when you’re speaking about those who come from more traumatic backgrounds and how they deal – how they apply these strategies?
PROF ROBINSON: The – the concept of accumulating abuse has featured very strongly in – in my research across multiple projects. It first of all came up very strongly in my PhD work which was about emotional and psychological abuse of people who live in residential services. A lot of those people had experience of living in group homes. What was really striking about this was that the – the service systems in which people lived seemed to have no capacity to recognise the accumulating chronic abuses that people experienced. They were very live in the minds of people who I interviewed. In the PhD work I spent an extended period of time with nine people, and there were over 300 incidents of abuse across those nine people but there were – the service system had really no capacity to recognise the accumulating nature of those abuses in the lives of those people.
The system is designed to recognise and respond to abuse that’s already happened on an incident-by-incident basis, based on the – the recognition of sort of more high-level harms that have to reach a benchmark of – of injury. And – but when you talk to people with disability themselves, the things that really stick with them – and we know this from our own lives, you know what it’s like if someone gives you the stink eye on the train, it sticks with you. And so if that’s part of your everyday life those things stick and they accumulate and they grow and they stay with you, those sort of micro-aggressions and chronic abuses that we think of as small scale but they’re actually not small scale. Those things really matter.
COMMISSIONER SACKVILLE: Can you tell us a little bit more about the PhD research?
PROF ROBINSON: Yes, sure.
COMMISSIONER SACKVILLE: The nine people you mentioned, were they all in one institution or were they scattered?
PROF ROBINSON: No.
COMMISSIONER SACKVILLE: What sort of institutions ‑ ‑ ‑
PROF ROBINSON: No.
COMMISSIONER SACKVILLE: ‑ ‑ ‑ and when you say 300 instances of abuse, can you tell us how you defined abuse for that purpose?
PROF ROBINSON: Yes. I can talk about this work all day. So ‑ ‑ ‑
COMMISSIONER SACKVILLE: A shorter period will be fine.
PROF ROBINSON: The – the nine people had pathways in and out of all different kinds of services. They had lived in private boarding houses, group homes, large institutions, family homes, innovative small-scale individualised service environments, and they had experienced emotional and psychological abuse and neglect across all of those settings. The way that I defined abuse was consistent with the – the policy definitions at – at the time. The abuses that people had experienced – there were a range of abuses that – a set of other benchmarks for physical and sexual abuses and other kinds of abuse as well. The 300 abuses were around psychological and emotional abuse but there was – there’s another catalogue of abuses that are tabled in there as well that – that aren’t part of that – that number.
The – the kinds of harms that people found particularly distressing were around the things that – around being ignored, around their – their needs for care diminished or marginalised by care workers, around having their – their needs dismissed, particularly when they complained. The sorts of – there were some standout memories that people had about things like a time when one person had been accidentally left behind at a – this was a person with high support needs. And she’d been left behind at a – they’d been out for the day, and the workers had left her behind and not realised until the police brought her back to the facility where she was living. The – it was a large institution. And the doctor refused to come to see her until the next day because they’d knocked off for the day. So the sort of disregard of care. So those sorts of high-level incidents.
But others as well that were equally felt by – by people to be just as emotionally damaging to them around things like somebody had bought meat for their Christmas dinner. And they’d gone without in order to buy the meat. And a worker took it home without their permission to cook it and then didn’t bring it back and said, “It went slimy and I threw it out for my dogs.” And he went without his Christmas dinner that year because of the actions of that worker. Other things that I observed when I was interviewing people, somebody who had what was meant to be a – an innovative consumer-led accommodation set-up who was at great pains to tell me that he was in charge of the hiring and firing of staff, and I was there for three hours and that staff member didn’t get off the phone that whole time.
And if that was what he was doing in front of me, I really wondered what he was doing when there was nobody there. So those sorts of, you know, those things that constitute a fabric of disregard for people.
MR HARDING SC: In your statement you say in paragraph – well, maybe if I withdraw that. In paragraph 33 of your statement you speak about the importance of alliances and in paragraph 44 you also use the phrase “residents are different to citizens”. How does that relate to what you’ve just told the Commission about the importance of the relationships between people with disability in group homes and staff?
PROF ROBINSON: Well, again, I would emphasise that there’s a great range of people who were involved in our studies. But the – the concept of alliance, I think, is really interesting because it’s a bit more subtle than the idea of people either being in control or needing support. The idea of alliance is that people might need assistance for something but they still – that what they wanted was to maximise the level of control that they had, and for support workers to – to join them in a spirit of providing assistance that was collaborative, not controlling. So some of the strategies that young people – the strategies that young people talked about that were really – it was interesting the way that they – they differentiated them, I think.
They talked about things that they could do themselves, which were about building connections and some skill development things, and help seeking things. But then things that they wanted other people to do and I think that builds this concept of alliance quite nicely, where young people particularly talked about wanting people to take action when something goes wrong, and lots of people talked about that, actually, just do something. The idea of doing something. But not taking over as well. So be consultative about it, and understanding and responding to people’s specific context and realising that what is safe for one person is not necessarily safe for another person, and changing the environment so that people feel welcome and included and so they’re less personally responsible for keeping themselves safe, setting up cultures that are – that are safer, for example.
In terms of how residents are different from citizens, I think this goes to the question of identity and what happens to the identity of people who are dominated by services. The – the way that systems respond to the experience of chronic abuse and neglect that I’ve just been talking about in ways that – that lack adequate concern or that are overly – overly procedural, or system-oriented, sets up expectations about the ways that people who are in accommodation services are expected to behave, what they can know and what can be demanded of them, and who they’re answerable to. And so the – the concept of being a – a – there’s damage that’s done to people’s identity by that. People have been categorised as somehow fit for treatment.
I think Claire talked about this in a very articulate way, that people are categorised as somehow fit for treatment, that’s not acceptable for other people. And in service environments, carers can modify it, and this objectifies people as people who – as residents who’ve got a set of needs that need to be met. And that’s, to a certain level, dehumanising of people. And when people are dehumanised that way, then the usual constraints on abuse and violence are weakened. And I think in the case of being a resident, then residents are expected to be compliant. They’re expected to not know very much about their right to complain or to know very much about violence and
abuse and neglect, or to understand it. And, indeed, I think a lot of staff don’t recognise it themselves either in terms of its more subtle forms or its systemic forms. They’re expected to endure it, as – as routine parts of service provision. And they’re answerable to any staff member who might walk through the door, anybody who they don’t know.
We heard yesterday from one of the parents who gave evidence about the number of casual staff who their daughter had – had worked with, and her daughter was answerable to any one of those people, benign or not. And so residents are subject to policies and procedures that govern their lives in ways that citizens are not.
MR HARDING SC: And then is the contrast to that what you then go on to describe from paragraph 47 as the rights-based approach – a human rights-based approach, and is it the remedy for what you’re describing as the systemic problems that your research has identified?
PROF ROBINSON: Well, I’m a bit wary about finding a remedy. I think we’ve got a very complex, very wicked problem here. We wouldn’t have a whole Royal Commission if there was a simple answer. And I think – I – I was – I was absolutely delighted to be asked to speak to you and to prepare a statement for you, but I was also worried about preparing a statement about group homes, because I think we’ve been so quick to – to build a model and then to dismiss a model, and add another model and dismiss one and add another one and to sort of bolt on a solution and think, “This is the next one, this will fix it.” So I – I don’t think group homes are the solution but I don’t think throwing them all out is going to fix it either.
COMMISSIONER ATKINSON: Can I say to you I worry about if people are living by themselves with carers coming in that they might be extremely vulnerable to abuse because there would be no one to observe it.
PROF ROBINSON: I agree.
COMMISSIONER ATKINSON: No one to report on it. So that’s one of the concerns that has been growing in me.
PROF ROBINSON: I agree with you.
COMMISSIONER ATKINSON: So really the problem is about dignity, respect and attitudinal change, partly, isn’t it?
PROF ROBINSON: Yes. I – yes, I agree. Yes. And I think that’s one of the things that makes it such a wicked problem. We can’t force people to live together. That’s not right. But we can’t isolate people either. So we can’t force people to live separately either. So the – I think we need to come from a new vantage point. We’ve got lots of evidence about what constitutes a good life for people, and we’ve got an increasing body of evidence now about what constitutes a terrible quality of life. So to come from the evidence about the things that help people to have a
flourishing life seems to me to be a really good place to start. The idea that removing abuse is going to create a good life, that’s only half of the story. We need to create something in the space that’s left by removing the conditions that are going to be abusive.
So I – and I think those things – certainly from the perspective of the people with disability who we’ve talked with in our research, those things are very relationally driven. And there’s a tension there because relationships are also a risk. But there are safeguards that you can put around the quality of relationships, but – but solid, continuing, purposeful relationships come up again and again and again from the perspective of people with disability as protective.
COMMISSIONER SACKVILLE: One of the lessons of law reform at least that I had learned from law reform is that if you ask the wrong questions you’re bound to get the wrong answers, but if you ask the right questions you’ve got a fighting chance of getting the right answer. There is a natural human tendency to look towards relatively simple solutions to very complex problems. Sometimes that’s known in the political sphere as populism. But sometimes problems that are very complex require multifaceted and complex solutions that may only be feasible over a period of time. What I rather get from your analysis is that you reject the notion of a simple solution by, for example, we have moved from institutions to group homes. Now let’s find another solution that substitutes for group home.
And what is required is a multidimensional approach that allows the transformation to recognition of dignity, respect, autonomy. And that is something that’s going to be fairly difficult and complex to achieve but it has to be – if that’s the right question, how you achieve that, and that question has to be answered. Have I got it sort of semi-right?
PROF ROBINSON: I would love that.
COMMISSIONER ATKINSON: That’s the question.
PROF ROBINSON: Yes. That is, I think, the question that we need to wrestle with.
COMMISSIONER SACKVILLE: And some of the elements of that multidimensional approach, one might have thought – and this is not criticism – one might have thought are fairly obvious. One of the things that bedevils our education system is the under-valuation of teachers. The teachers aren’t sufficiently valued for the extraordinarily important work that they do. My impression – and it’s only impression thus far – is that people who work in this sector may be under-valued as well, and maybe there are issues relating to training and pay and experience and so forth that need to be developed. Because what you’re describing are people who have a responsibility for involvement with people with disability that are very demanding, very difficult and very challenging.
PROF ROBINSON: I think that’s absolutely right, yes. But I think that’s also sitting in a cultural position at the moment or a systemic position at the moment where the kind of training that we’re providing to people who work with people with disability is moving increasingly online; it’s moving increasingly to short sort of sessions where people try to complete those as quickly as they can. So light-touch training that people are rushing through as quickly as possible; that’s not transformative education. So we need to think about how we can frame education in ways that it’s going to result in cultural change as well as skill development for people.
And so when – and so – and how people can be educated in ways that they’re – they’re learning together so that people with disability are developing the skills that they need but at the same time, because the sphere of influence of people with disability is very small. So they can – they can develop their skills, but if their skills are not well received, their strategies are not well received, then they’re – they’re not going to work very well for them. So at the same time as people with disability are being skilled, then the people who work with them need to be skilled as well and not through those – those light-touch skimpy resource sorts of education.
The NDIS has not done well for us in terms of training and development of the workforce. It’s an area where we’re seeing lots of cuts around workforce training, and I think that’s an issue for the Commission to explore.
MR HARDING SC: Just picking up on a question that was put to you by Commissioner Sackville and Commissioner Atkinson, is – at least, in terms of achieving a real life, is at least a predicate of that choice in the way that you refer to it in paragraph 47, or is that still too simplistic?
PROF ROBINSON: Without a doubt, yes.
MR HARDING SC: Without a doubt it’s too simplistic or without a doubt that’s real?
PROF ROBINSON: No. Without a doubt I think people having meaningful choice and the opportunity to express choice but to have choice taken up and received and made meaningful is a fundamental issue.
COMMISSIONER ATKINSON: And to have choices that really mean something.
PROF ROBINSON: Yes, yes.
COMMISSIONER ATKINSON: Not just a choice between two bad options.
PROF ROBINSON: Yes. Yes. And the opportunity to practise choice, and develop skill in making choices, to develop confidence that they’re not going to be punished for making the wrong choice. All of those things around skill – around choice and decision-making are fundamental, yes.
MR HARDING SC: Perhaps you may well have already covered this to some extent but did you have anything to say to the Commission about what you had hoped might come out of the Commission’s ‑ ‑ ‑
PROF ROBINSON: Yes, I do.
MR HARDING SC: ‑ ‑ ‑ deliberations?
PROF ROBINSON: Thank you, I do. I very much hope that the Commission will take particular account of people who are not going to appear in a hearing room and speak the way that I’m speaking with you today. I think that their experiences are of critical importance to your work. So I think that their stories are ethically and practically difficult and fragile to capture. So I hope that there will be either specialist staff or specialist processes that you will use to capture the stories of people with complex needs due to cognitive disability or circumstance. I think – I just really want to emphasise how important it is that those people have a place in the stories of the Commission.
I would like to also talk about the – it sits outside of the group home focus but it relates to it, and it’s about family violence and the place of the – the experience of people with disability who experience family violence. I think that that is another difficult and delicate task but one that’s incredibly important for the Commission to explore. I think there’s a terrible silence in research and policy about the family violence that people with disability experience, and shedding light here and identifying new ways to improve the safety of people with disability in their homes, particularly children, but also adults ‑ ‑ ‑
COMMISSIONER ATKINSON: But when you talk about family violence, what are you talking about? What’s the range that you’re talking about?
PROF ROBINSON: I’m talking about a broad range. I think there are the experiences of women who are subjected – and men – who are subject to domestic violence but I’m also talking about children who experience – and children who experience violence from their family members, but adults who experience violence and abuse from their care-giving family members as well. So a broad range of violence in the family home. There’s – there is some research around domestic and family violence that adults experience. A very little bit about children but I think there is very little about the experience of – of adults with disability who experience violence from their family care-givers. So I would really urge the Commission to – to explore that in depth.
I haven’t really had a chance to explore the part of my statement around compliance mechanisms and the limits of compliance and complaints-driven approaches, but I really hope that the Commission is going to interrogate the limits of complaints for people with disability who use services and the fact that it is incredibly difficult for people with disability to instigate complaints because of the way that power works in services and because of the – the issues of having cognitive disability. And the limits
of compliance systems, and the difference between audit and evaluation, and I sincerely hope ‑ ‑ ‑
COMMISSIONER ATKINSON: Sorry, the difference between audit and evaluation.
PROF ROBINSON: Audit and evaluation.
COMMISSIONER ATKINSON: By which you mean?
PROF ROBINSON: That audit checks whether services have complied with their obligations, and evaluation explores quality with – with people, and there’s an opportunity to turn up things that you might not expect.
COMMISSIONER ATKINSON: So it’s different from tick-a-box.
PROF ROBINSON: Yes. Yes.
COMMISSIONER ATKINSON: Okay.
PROF ROBINSON: I think there’s a really interesting question for you that’s different from the other Royal Commissions about quality standards because in the disability field we’ve had the Disability Services Standards for a long time which have included a standard about abuse and neglect. And so while the Aged Care and the Child Sexual Abuse Commissions have added standards, I – I think there’s a really interesting question for you about whether there’s any merit in adding further practice standards, and a question about why the standards that we’ve got haven’t changed the level of abuse that people – or seemingly haven’t changed the level of abuse that people experience and so what is it about practice standards that is really not leading to any changing practice in our field. And then I think there’s also something that I would like to just recognise, that the responses to harm in services have really been professionally designed and controlled, and the importance of the grassroots involvement of people with disability, including people with intellectual disability, in defining and recognising and designing responses to abuse and neglect that work for them. And I’m conscious of the irony of me sitting here as an egghead saying that but I think it’s very important.
And, finally, I guess my last point is that we’re really good at talking to ourselves about this problem. And this is a community problem. And I think the reach of the Royal Commission is very important in raising the place of the broader community in understanding what they can do to, first of all, care about this as an issue but, secondly, to know what to do when they see something, when people see something that they feel uncomfortable about, because I don’t think that the wider community is completely uncaring about the fact that people experience violence and abuse but I think people don’t know what to do. So I think that there is an important role for the Commission in practically building awareness and practically building skill in the
wider community about what kind of action that people can take when they see things that they’re concerned about.
COMMISSIONER SACKVILLE: That last point is fundamental. You can’t achieve transformational change unless you can achieve attitudinal change within the broader community that in turn drives political change. And that’s what Royal Commissions can do. They don’t always do it but they can sometimes.
PROF ROBINSON: Mmm.
COMMISSIONER ATKINSON: So you’re talking about practical things that people can do. Can you give some examples?
PROF ROBINSON: Maybe I could just tell a personal story.
COMMISSIONER ATKINSON: Yes.
PROF ROBINSON: I was standing at the doughnut shop. This is going to tell you about my bad habits. And I was rewarding myself for doing my groceries. And there was a lady and her son standing next to me. And he was in his wheelchair and we’re both standing there waiting for our doughnuts. And he was making his excited doughnut noise. And mine was just internal, my excited doughnut noise. His was external. And he was patting the glass and making his noise. And I turned to her and said “What a lovely little boy you’ve got”. You know like you say with a kid.
COMMISSIONER ATKINSON: Yes.
PROF ROBINSON: And she said, “That’s the first time anyone has ever said something nice about my son to me”. And he was eight. You think how hard is it, really, to just treat people like people? And it ‑ ‑ ‑
COMMISSIONER ATKINSON: Yes. Okay. Thank you.
COMMISSIONER SACKVILLE: Thank you.
COMMISSIONER McEWIN: Just picking up on what Commissioner Atkinson was asking about, when we know that people with disability feel safe in their own home, subjectively – that’s a subjective feeling – how can we make people with disability feel safe in the same way? You’ve articulated some of the practical steps but what fundamentally needs to change, if under the convention, people with disability can achieve the right to feel safe? Again, noting it’s subjective, on the same basis as a person without a disability would expect to feel safe in their own home? I know that might be a very broad question here. Are there some high-level suggestions you can give on how you can change that?
PROF ROBINSON: I think some of the things about making some really fundamental commitments to not do things, like it’s not okay to have 30 people go
through someone’s house in a week. It’s very difficult to feel safe when you don’t know who’s coming through the door. So some of those practices – like the benchmarking against what is actually okay in an ordinary life, where we’re not benchmarking against what’s okay for a person in an ordinary house in an ordinary street in an ordinary family.
Our benchmarking against what’s all right is so skewiff that we’ve really lost sight of what’s acceptable, because the system has been so crisis-driven for so long. And I think that the system is full of good people trying to do good things. So I don’t want to demonise at all the disability services system. I think there are heaps of good people doing their very best. But it’s been crisis-driven for so long and it’s so resource constrained, people just keep working within the system that they’ve got. There needs to be some fundamental system reform.
COMMISSIONER McEWIN: Thank you.
COMMISSIONER SACKVILLE: Thank you very much ‑ ‑ ‑
PROF ROBINSON: Thank you.
COMMISSIONER SACKVILLE: ‑ ‑ ‑ for coming. Thank you for your evidence.
PROF ROBINSON: My pleasure. Thank you.
MS EASTMAN SC: Commissioners, it’s ‑ ‑ ‑
COMMISSIONER SACKVILLE: You can now go and have a doughnut if you want.
<THE WITNESS WITHDREW [12.35 pm]
COMMISSIONER ATKINSON: I should tell you that yesterday after the end of the hearing ‑ ‑ ‑
MS EASTMAN: I don’t know whether you should actually say this but ‑ ‑ ‑
COMMISSIONER ATKINSON: ‑ ‑ ‑ a whole bunch of doughnuts were brought back for the staff. So I think this is a common reward for hard work.
MS EASTMAN: Well, I must explain the reason for that, Commissioner, and that is that at the Convention Centre during the course of the day the wafts of the doughnuts made their way to the Commission hearing room and I think all of us followed the scent. So that may explain why the doughnuts came. All right. May I turn to important matters?
COMMISSIONER ATKINSON: Fortunately we’re not doing a Royal Commission into the causes of obesity in the general population.
MS EASTMAN SC: Not yet. I’m just noting the time. And we are to adjourn just before 1 pm. The Public Advocate, Colleen Pearce, is here, and I was hoping to start her evidence before lunch. So if we could just perhaps commence ‑ ‑ ‑
COMMISSIONER SACKVILLE: Sure.
MS EASTMAN SC: ‑ ‑ ‑ and we may complete 15 to 20 minutes and then we’ll continue.
COMMISSIONER SACKVILLE: Well, we should adjourn no later than 12.55 to give people a chance to look at whatever is happening at 1 o’clock with the awards. So by all means let’s start and we will adjourn at 12.55 or a little before.
MS EASTMAN SC: So we may just need a minute or so just to reconstitute the bar table and for Colleen Pearce to come to the room.
COMMISSIONER SACKVILLE: All right. So shall we take a very short adjournment and come back?
MS EASTMAN SC: If that’s convenient. Thank you.
ADJOURNED [12.37 pm]
RESUMED [12.40 pm]
COMMISSIONER SACKVILLE: Yes.
MS EASTMAN SC: Commissioner, there is one additional appearance.
MR GRANO: If the Commission pleases, my name is Phillip Grano. I appear on behalf of the Public Advocate.
COMMISSIONER SACKVILLE: Thank you very much, Mr Grano.
MR GRANO: Thank you.
MS EASTMAN SC: The Commissioners will have the Public Advocate’s statement and some documents behind tab 16 and the additional documents up to tab 21. And the Commissioners may also have a further statement of Dr Pearce, with an
additional report and that was a statement made on 22 December. And I’m not sure whether that has got a tab number yet. Tab 68. 16A.
COMMISSIONER SACKVILLE: 16A.
MS EASTMAN SC: Yes.
COMMISSIONER SACKVILLE: I am not sure I have a 16A but that may be because I don’t know where to look.
MS EASTMAN SC: That’s all right, we can – Dr Pearce’s evidence will cover this immediate period before lunch and then after lunch. So we can make sure 16A is available to you over the adjournment.
COMMISSIONER SACKVILLE: Dr Pearce, this is the usual confusion that attaches to hearings but if you wouldn’t mind taking the oath or affirmation, as you wish.
<COLLEEN PEARCE, AFFIRMED [12.41 pm]
<EXAMINATION BY MS EASTMAN SC
COMMISSIONER SACKVILLE: Thank you, Dr Pearce. Please sit down. Ms Eastman will ask you some questions.
MS EASTMAN SC: Thank you. So you are Dr Colleen Pearce?
DR PEARCE: Yes.
MS EASTMAN SC: And you are the Public Advocate in Victoria?
DR PEARCE: Yes.
MS EASTMAN SC: And you’ve prepared the statements for the Royal Commission, and can we take the statements as true and correct?
DR PEARCE: You can.
MS EASTMAN SC: Thank you. Can I start with just helping us understand a little bit about the role of the Public Advocate? You were appointed to the role initially on the 7th of September 2007. And then you have been reappointed in that role from September 2014 and your term ends on 6 September 2021.
DR PEARCE: That’s correct.
MS EASTMAN SC: And the appointment is made under Victorian legislation, the Guardianship and Administration Act of 1986.
DR PEARCE: Yes.
MS EASTMAN SC: So can you tell us a little bit about what the role involves and what your particular responsibilities are?
DR PEARCE: Well, the primary function under the Guardianship and Administration Act is to act as guardian of last resort for Victorians with a disability in Victoria who are in need of assistance in making decisions.
MS EASTMAN SC: And in terms of how you came to this role, can you tell the Commission a little bit about your background qualifications and experience that brought you to the role of Public Advocate?
DR PEARCE: Yes. I’ve worked in social care and health settings for all of my life. Perhaps some of the more recent appointments were the CEO of the North Richmond Community Health Centre. That might be familiar to some of you as the place with the safe injecting room in Victoria that’s causing some controversy. I’ve also run a very large drug treatment centre, one of the largest in the State. I’ve worked for the Uniting Church as director of their community services across Victoria and Tasmania, and in the Department of Justice as the Director of the Victims of Crime Unit in the Department of Justice. I have – my qualifications are an Arts degree, a Diploma of Education, a Graduate Diploma in Health Services Management, a Masters in Health Services Management, and an honorary Doctorate from RMIT.
MS EASTMAN SC: So I might just start now by taking you to the statement, so if the Commissioners wish to follow. At paragraph 9, you set out the powers and duties and functions.
DR PEARCE: Yes.
MS EASTMAN SC: And looking at the list there, it’s a very extensive list of both functions and powers. They include such matters as to act as a guardian where appointed by the Victorian Civil and Administrative Tribunal. Your role includes seeking assistance in the best interests of any person with disability from any government department, institution, welfare organisation or service provider. Your functions include making representations but also investigating complaints and investigating matters that may be referred to you by the tribunal. Your role also seems to have a function of promotion, education and developing an understanding around the rights and needs of people with disability in Victoria. So it seems to be an enormous role that you have.
DR PEARCE: It is a very big role but I do have around 100 staff working in the office with me. So I’m able to fulfil those functions with the resources that I have.
MS EASTMAN SC: So in terms of the way in which the office operates, have you divided these functions, in a way, because some of your functions also involve the care and concern of older people; is that right?
DR PEARCE: Yes. Well, when I’m appointed as guardian of last resort, there is an advocate guardian team that is responsible for – who is delegated the responsibility for making those decisions and the decisions will depend on the powers given to me by VCAT. It could be an accommodation decision, access to services, access to persons are probably the more common ones, but there are others that I might be given from time to time. The investigations team last year undertook around 400 investigations on behalf of VCAT. I should point out that the investigations are driven by requests from VCAT. It’s not an independent complaints function and I don’t have independent own motion investigative powers, notwithstanding I have asked for them on many occasions.
MS EASTMAN SC: So just in the time available, I wanted to start a little bit by understanding about the scope and function of your responsibilities as a guardian of last resort for people whose accommodation may involve group homes. So reading your statement, I think you’re currently the guardian for 938 people in Victoria and in relation to that cohort, you make decisions about the accommodation for 812 of those people. Of that group, how many within that 812 are people with disability in the context of decisions around group homes as an accommodation option?
DR PEARCE: The majority of the accommodation decisions relate to people over the age of 65 and whether or not they can remain in their own home. We do have a growing number of people with disability for whom we are making accommodation decisions. For many years we were very pleased to see that the number of people with intellectual disabilities or other cognitive impairments was a declining number, but with the impact of NDIS and the complexities there, we are certainly seeing a rise in the number of people for whom I make decisions in relation to accommodation who would have an intellectual disability. Many of those would be very complex people, some of whom may be in hospital settings or in prisons, and the question is whether or not a group home, which is one of the alternatives, would be suitable for them.
MS EASTMAN SC: Right. And in your statement you refer to a document described as a guide about decision-making for accommodation.
DR PEARCE: Mmm.
MS EASTMAN SC: Have you got the copy of the ‑ ‑ ‑
DR PEARCE: Yes.
MS EASTMAN SC: ‑ ‑ ‑ annexures with you?
DR PEARCE: Yes.
MS EASTMAN: It’s described as attachment 5. And I will just check if it’s got a separate tab number. Behind tab 21. And can you just tell us a little bit about the development of this document and the methodology in terms of the approach to decision-making, because when we come back after lunch I want to talk to you about the human rights framework and your evidence touching on a human rights framework. But just perhaps before the lunch adjournment, can we deal with this one document, so the Commission has got – it should be described as accommodation decisions. But just to give us an introduction to the approach ‑ ‑ ‑
DR PEARCE: Yes.
MS EASTMAN SC: ‑ ‑ ‑ or the methodology around decision-making ‑ ‑ ‑
DR PEARCE: Yes.
MS EASTMAN SC: ‑ ‑ ‑ of this kind.
DR PEARCE: Yes. Well, the office has a range of practice guidelines. I think there’s around 20-odd practice guidelines to give people – to give advocate guardians guidance on how they might make decisions. So the practice guideline which is number 1, which relates to accommodation decisions, that’s because accommodation is by far the most numerous decisions that we have to make. So the guideline covers a range of matters, mostly around the relevance of the Guardianship and Administration Act, the relevance of the human rights charter and then goes on to provide a range of guidance material for guardians in making decisions in relation to accommodation.
MS EASTMAN SC: And this is a document that’s publicly available?
DR PEARCE: Generally. They were on our – all our guidelines were on our website. Some of them – this one is due for review this month. So some of them aren’t – may not be on our website but they’re certainly available on request.
MS EASTMAN SC: All right. And at paragraph 102 of your statement, if you can turn to that. It’s page 25.
DR PEARCE: Yes.
MS EASTMAN SC: You describe there that you’ve asked your staff for some practice wisdom that informs their decision-making, especially in relation to group homes. And you say you are advised that guardians also consider a range of issues. So can I just ask you to touch on the matters that are set out in paragraph 102?
DR PEARCE: Sure.
MS EASTMAN SC: At paragraph (a) to (h). So these are things such as the age of the represented person, the age of others in the home, behaviours, geographical location and the like.
DR PEARCE: So in making a decision we carefully consider – we start with the individual and their unique set of circumstances. As guardian of last resort, I’m required to make the least restrictive decision and, wherever possible, give effect to a person’s wishes, but also predominantly to act in their best interests. So in looking at the unique circumstances of each individual, we would need to consider a range of factors: where they live, do they want to be close to their family, do they have family that’s nearby, so geographic location, what their age is, so are we looking at an aged care facility, whether they can live at home with supports, their local ties in the community, can they live in their neighbourhood or do they need to move somewhere else to get access to the supports and services that they need, do they have a forensic background and that requires that they live, perhaps, in a particular set of arrangements. So there’s a range of matters that we consider but because accommodation is such a difficulty for my office in finding suitable accommodation, often there’s very limited choices in where we can place a person.
MS EASTMAN SC: And that’s what I wanted to ask you, these ‑ ‑ ‑
COMMISSIONER SACKVILLE: Ms Eastman, I’m sorry.
MS EASTMAN SC: Yes.
COMMISSIONER SACKVILLE: Could we perhaps finish here because it’s just before 5 to 1.00.
MS EASTMAN SC: I have one question to finish on this topic and then we will adjourn. So just completing on this topic.
COMMISSIONER SACKVILLE: Very good.
MS EASTMAN SC: Having regard to the range of factors that are taken into account, is it the case that there’s always choice available that can accommodate all those factors, or is it often the case that, notwithstanding all of these factors, there might only be one accommodation option available?
DR PEARCE: Or in many cases none. So there are very limited choices and options, particularly for people with complex presentations.
MS EASTMAN SC: Yes. Thank you. That completes just that issue. When we come back, we will return to a human rights framework and then start to investigate some of the other elements. If the Commission pleases.
COMMISSIONER SACKVILLE: Well, we will adjourn till about 2.35 to make sure that people have an opportunity to view the awards.
MS EASTMAN SC: Thank you.
ADJOURNED [12.54 pm]
RESUMED [2.35 pm]
COMMISSIONER SACKVILLE: Yes, Ms Eastman.
MS EASTMAN SC: Thank you, Commissioners. So we’re returning to Dr Pearce’s evidence. And Dr Pearce, I want to start with some changes that are going to take place in March next year. So as at the 1st of March, the amendments to the Guardianship and Administration Act will commence and that will increase your functions in addition to the functions that we talked about this morning. And the additional functions include a function to promote the human rights of persons with disability, to protect persons with disability from abuse, neglect and exploitation, to undertake advocacy for people with disability on a systemic basis, and to manage and coordinate programs that will promote the human rights of persons with disability. So these will be part of the new powers and duties; is that right?
DR PEARCE: Yes.
MS EASTMAN SC: And reading your statement and the reports, the annual reports, it’s clear from your 2017-2018 annual report that you advocate strongly for what you describe as a human rights approach, and I want to ask you a little bit about that. In your statement you say that what was uppermost in your mind was respect for the dignity of people with disability, and that was a reason for why you wanted to really promote a human rights-based approach; is that right?
DR PEARCE: Yes. But I think it’s a little bit more than that as well. The mission of the office is to uphold and promote the rights of people with disability and people with a mental illness. So it’s viewed in everything that the office does. And we are also bound by the Victorian Human Rights Charter as well.
MS EASTMAN SC: I wanted to ask you about that because a human rights approach in Victoria is not new, and I assume that your office is a public authority ‑ ‑ ‑
DR PEARCE: Yes.
MS EASTMAN SC: ‑ ‑ ‑ to the extent that is a specific definition in the Charter of Rights applying to government agencies, government departments, and those performing public functions. So you’ve had a human rights function for a period of time; is that right?
DR PEARCE: Yes.
MS EASTMAN SC: And in terms of the Charter, though, the Charter of Rights and responsibilities in Victoria is a fairly generic human rights statement; do you agree with that?
DR PEARCE: Yes, I do.
MS EASTMAN SC: And so it reflects the international human rights that may be found in the International Covenant on Civil and Political Rights. It’s not a disability-specific focus.
DR PEARCE: That’s right.
MS EASTMAN SC: And in terms of how the charter deals with disability at the present time, is it right to understand that it’s essentially how those more generic human rights, say section 8, the right to equality, or rights concerning privacy and the like might also touch upon the interests of people with disability rather than being specific for people with disability?
DR PEARCE: Yes.
MS EASTMAN SC: And what has your experience of working with the Charter been in terms of a human rights approach?
DR PEARCE: Well, I think it’s been very important, very significant, and it is part of that alongside the UN Convention on the Rights of People with Disabilities have helped move the paradigm – shift the paradigm, shift the discussion from a situation where people were – people with disabilities were managed and were to be protected to one where we see people as holders of rights. Now, the Guardianship and Administration Act, and particularly where I’m appointed as guardian of last resort, that is a limitation on a person’s rights. So what the Charter does is – ensures that in making decisions that limit a person’s rights, that they are reasonable, justified and proportionate. So it has a very significant impact on the way we make our decisions and for our accountability.
So, for example, if we – if someone requests a statement of reasons for decisions, then we will outline that in terms of the charter rights.
MS EASTMAN SC: So the way that the charter operates on your office as a public authority is that, in effect, you have to act consistently in your decision-making, and in the work that you do in a manner that reflects those charter rights.
DR PEARCE: That’s right.
MS EASTMAN SC: And has this been enhanced by taking the Convention on the Rights of Persons with Disabilities, how has that convention added to the responsibilities that you already have under the Charter?
DR PEARCE: Look, I’ll probably start with the Guardianship and Administration Act of 1986 – that’s the current Guardianship and Administration Act. And I said earlier that we make decisions that give effect to a person’s wishes wherever possible, are least restrictive but in a person’s best interests. And I often say to people if I was making a decision for you, would you like me to make it according to what I thought was in your best interests or according to your will and preference. And I think most people say that they would like it made in accordance with their will and preference rather than in what may be considered a more paternalistic approach of best interests.
So we still have that legislation but with the advent of the Human Rights Charter and just immediately preceding that the UN Convention on the Rights of People with Disabilities, we were – we now have to take that into account in the work that we do. And as I said, that’s reflected in not just the way we make decisions but in all of the work that we do in the office is really very much a rights – I describe my office as a rights-focused office, and we have to consider that in everything that we do.
MS EASTMAN SC: And so ‑ ‑ ‑
COMMISSIONER SACKVILLE: Sorry, can I interrupt. Is there anything in the Victorian legislation that requires you to take into account the terms of the UN Convention?
DR PEARCE: The new Guardianship and Administration Act which comes into effect on the 1st of March next year is designed to be consistent with the UN Convention on the Rights of People with a Disability, so that will be the first guardianship legislation in Australia that is really compliant with the UN Convention. And that’s ‑ ‑ ‑
COMMISSIONER SACKVILLE: Up to now there has been nothing in Victorian domestic law that implements the Convention, as such?
DR PEARCE: Well, I think the – the Disability Act does try to give effect to the charter as far as possible, and you just look at the principles contained within the Disability Act and they are – were designed with the charter – with the convention in mind. So you can see that in the Disability Act but there are few – well, actually, I think the new Mental Health Act as well would take into account some of the Convention on the Rights of People with Disability as well.
MS EASTMAN SC: What I wanted to ask you then – and I think you’ve just touched on this in terms of the place of Victoria, given Victoria’s experience with the Charter, and comparing the way in which guardianship models operate in States and Territory that doesn’t have a Charter of Rights, do you see any particular difference,
and you may not know from a comparative perspective but just do you see any difference in a jurisdiction that has a rights-based focus compared to those jurisdictions that don’t have a Charter of Rights?
DR PEARCE: I – it’s hard for me to answer that but I can say what it does is really sharpen our focus on rights. And that is a little bit different to my colleagues in other jurisdictions but their legislation is also slightly different. So it is hard to say. But we are very much a rights-focused organisation.
MS EASTMAN SC: So often when we talk about human rights we can talk about the nature of a right in a fairly abstract concept and the challenge can often be translating rights in a convention or on a piece of paper into practical reality for people.
DR PEARCE: Yes.
MS EASTMAN SC: Can you help us with some examples about where this focus on a rights-based approach has had a practical implementation – in implementation, it’s actually made a change or difference for a person with a disability?
DR PEARCE: Well, if you will indulge me, I think one of – one of the matters that I always think about is Eleanor Roosevelt and her quote on human rights and she talked about where do we find universal human rights in small places close to home. So when I’m thinking about the work of the office, we often work in very small places close to people’s homes, making very fundamental decisions about an individual’s life, and that in making those decisions we have to think about them as both an individual and their inherent worth as an individual, the dignity that goes – that sits alongside of that. And so our decisions sometimes do seem to be very small. But giving effect to some of those rights, which is, I think, where you said where can I think it makes a difference; I think it makes a difference in the way we approach our work, and how we make our decisions, how we involve people with disability in the work of the office, and I think it’s in those very small intangible ways that we see the differences in the office and the work that we do.
MS EASTMAN SC: Well, when we take an instrument like the Victorian Charter of Rights and Responsibilities, that whole model is described in the sort of human rights parlance as a dialogue model where each arm of government has a particular responsibility. And the theory behind the dialogue model is that it helps change culture within government in terms of developing a human rights culture. And is this something that you’ve seen operate in Victoria in the areas that you’re responsible for; has that dialogue model changed the culture?
DR PEARCE: Yes. And every year the Victorian Equal Opportunity Human Rights Commission does a report on the charter, and we would be one of the organisations that would contribute to that. And we can see the evolution over a number of years of how the charter has had an impact on organisations. And we see that in the conversations that they have with people, how they involve people with disabilities,
or other sections of the community in the work that they do, how they’re engaged, how it’s reflected in their policies and procedures, how it’s reflected in their processes, and how it’s reflected in – more broadly in the work that we do. So the charter has, in my view, made a very significant impact on the culture – the human rights culture and landscape in Victoria.
MS EASTMAN SC: So given that the focus of the culture – of the Charter and culture has been within government, taking it to the next step have you seen any of that cultural change occur for private sector bodies, or the private providers which might not be public authorities for the purpose of the Charter, but very much the work they do is engaged – is engaging with Victorian legislation. Is that something you’re able to comment on? It’s just ‑ ‑ ‑
DR PEARCE: Yes.
MS EASTMAN SC: ‑ ‑ ‑ taking those Charter rights and the culture into a private sector setting.
DR PEARCE: Look, I think that most of the organisations you are talking about would be certainly cognisant of the UNCRPD, and that would be reflected at least in theory in the work that they do. The charter is less relevant to them; they’re not bound by the Charter in the same way. But has it drifted down into the actual culture of the organisation? I don’t know that it has, because one of the issues about human rights is the ability to live a life that is – that respects the human dignity of every individual, but the right of people to live free from violence, abuse and neglect. And when we see such numerous examples around violence, abuse and neglect in this State that does have a Charter, you have to say those organisations have some responsibility in that, and I don’t think we see it as reflected as well as it might be in those organisations.
MS EASTMAN SC: So the ‑ ‑ ‑
DR PEARCE: I think that’s one of the gaps.
MS EASTMAN SC: So the changes that you’ve seen in the public sector and organisations subject to the charter haven’t necessarily been reflected the extent to which those obligations ‑ ‑ ‑
DR PEARCE: No, I don’t believe so.
MS EASTMAN SC: ‑ ‑ ‑ might also stretch to the private sector. All right, I want to change course a little bit. One of the issues, as you know, for this hearing is group homes. And I think you’re aware that some of the evidence that the Commission will hear in the course of this week will be that the group home model can be replaced and that there must be better alternatives. So I just want to explore with you your views on where the group home model fits. And this morning the Royal Commission has heard evidence about the move to deinstitutionalisation from the
large institution into a group home model. And we’ve also heard some evidence today about the use of restraints and whether the use of restraints creates the environment of violence and is this a symptom of a group home or a cause. So I’m just interested to explore with you, did you have a view about the utility of a group home model for Victoria?
DR PEARCE: Look, I – I think that’s the wrong place to start. The place – the place to start is should people with disability, the same as everyone else in the community, have a right to choose where they live and who they live with, and that is the starting point. And we all live in very different circumstances. Some of us live on our own. Some of us live with our family. Some of us live with our friends. So the question is do people have the right to have a choice about where they live. And if they have a choice to live where they live, how can we ensure that that environment that they live in is one that protects their human rights and creates opportunities for human flourishing. And so in my view, it’s not the group home model per se, but it’s what created that environment.
So as guardian of last resort I’m in and out of – well, not me but my delegates are in and out of a whole range of residential settings, and I can tell you the abuse of people with disabilities is widespread and it’s not confined to group homes. So unless you tackle the very fundamental issues that go to the heart of why people with disabilities are subject to such high levels of abuse, then any model will just turn out to be the same as the next.
MS EASTMAN SC: So are there particular features then of group homes that you think need to be addressed if the group home model was to be consistent with that right to live independently or the right in relation to choice, or the right in terms of living a life with dignity. How – I think there’s a few things you wanted to focus on how we might approach that group home model from that perspective.
DR PEARCE: Yes. So I think if we start with the one size fits all and that’s where we start. One size fits all is the wrong paradigm. And often if I’m in a group of people, I will number you off 1, 2, 3, 4, 5. Now, the five of you are going to live together. You’re going to share the one bathroom. You’ve going to have meals at the same time. You’re going to go to bed at the same time. You’re going to eat the same kinds of food. Well, I mean, how is that reflective of human dignity and choice? So it’s the one size fits all model that is one of the contributing factors to violence and abuse in group homes. I mean, wouldn’t you be frustrated? I would really struggle with that, not to have choice about what kinds of food I ate, who I lived with, when I could use the bathroom, when I could go to bed.
MS EASTMAN SC: So do those issues of choice arise because of the culture of a group home, or governance issues, workforce issues; what sort of comes into play?
DR PEARCE: Well, it’s all – it’s all of the above. And we have a workforce that is poorly paid who tries – I think the majority of disability workers try very hard to do a good job. They have limited resources. We have a highly casualised workforce with
little training. So that’s part of the problem. So we have a whole range of workplace issues.
COMMISSIONER SACKVILLE: Why do we have a casualised workforce?
DR PEARCE: Well, I think it’s the same as in aged care. We’ve got some of the lowest paid people, and in some particular homes – I mean, we know that where we have a stable workforce, fully employed, where they know the residents, where we have a relationship, we are likely to see less abuse. But in situations where we have a casualised workforce, this is often in homes where there may be high levels of violence, then the workforce is – it’s very hard to retain staff. It’s very hard in that environment. So they’re the houses where you have high turnover and you do not have a familiarity with the staff and their particular needs. You also have with the workforce the balancing the tension between is it a home or is it a workplace.
MS EASTMAN SC: So what are the issues that arise there? The Royal Commission has heard evidence, for example, that the house might be organised around the people coming into the house to provide services rather than the other way around. Is that the issue?
DR PEARCE: And that – that is the challenge. That is the tension that I think disability service providers have to find the balance. When they find the balance we find a good group home. But that same tension between is it a home or is it a workplace will be inherent in other models where people require support.
MS EASTMAN SC: One of the witnesses told the Royal Commission yesterday that his concern was the lack of individualised care, the standardisation of care and routine took away his dignity. And I think he said just moving into that environment that he felt that he lost control of his life. Is that a sentiment that you’ve seen?
DR PEARCE: Indeed. We certainly say there should be genuine person-centred planning. We have to start with the individual but community visitors will tell me that they also go into houses and they look at plans, and they could be NDIS plans, and you see the same thing replicated for each of the residents. Well, how is that individualised planning if they all have the same plan when we’re all different. But the other thing I want to say about group homes – and it will apply for others – is that they are closed environments.
So the only people that often enter into those environments – occasionally you might have family members or friends – that’s less likely – it’s more likely that you’re only going to have paid employees in that environment.
MS EASTMAN SC: So what are the consequences of that type of arrangement?
DR PEARCE: Well, I think it’s the closed environment that – that is a breeding ground for human rights abuses. And we see the OPCAT, the Optional Protocol on the Convention against Torture, requires active monitoring. And that is one of the
roles that community visitors do, the active monitoring of a closed environment. Now, in terms of restrictive practices, although people aren’t necessarily civilly detained in those environments, try and leave. Try and go out on your own. Try and, you know, go somewhere without the group in a bus. So it’s this removal of your capacity to actually leave unsupervised that makes them places that could be considered in some circumstances as places of detention.
MS EASTMAN SC: Well ‑ ‑ ‑
COMMISSIONER ATKINSON: Could I go back to the point you made about the NDIS plans, apparently individualised but all exactly the same.
DR PEARCE: Yes.
COMMISSIONER ATKINSON: Who does those plans?
DR PEARCE: Planners.
COMMISSIONER ATKINSON: And who are the planners?
DR PEARCE: They’re NDIS planners. I believe they’re contract workers. Some of them may be employees.
COMMISSIONER ATKINSON: Employees of the place where the person is living?
DR PEARCE: No.
COMMISSIONER ATKINSON: No.
DR PEARCE: No.
COMMISSIONER ATKINSON: Okay.
DR PEARCE: It’s the NDIS plans.
COMMISSIONER ATKINSON: And so would they not see a problem in developing exactly the same plan for each individual in a group home?
DR PEARCE: Apparently not. But I think – I think in part that was – I often say what’s – what is an issue for transition and what is an issue for full scheme and during transition we needed a large number of people to be put on plans very quickly, so there was a lot of pressure. At the time of plan review, I – I am hoping that we do see more individualised plans but certainly in the transition it was not uncommon for community visitors to report to me that they did see plans that were exactly the same.
COMMISSIONER ATKINSON: Thanks. Sorry to interrupt.
MS EASTMAN SC: No, not at all. I think the next area was governance or systems and processes. Did you want to speak about that topic in the context of the group home model?
DR PEARCE: Just given my role, I’m also engaged with aged care and I’m aware of the Aged Care Royal Commission and, indeed, the events that led to that with Oakden. But one of the changes to the Aged Care Standards is the introduction of a new standard on organisational governance. And that is that the board or the governing body of an organisation is absolutely now to be held accountable for a range of issues that occur within their facilities. And so whether that’s the monitoring of complaints, medication errors, restrictive practices. It’s absolutely clear that the board is responsible for that. And I think one of the missing pieces here is what do boards of disability organisations actually know about what is going on in their organisations? To me, that’s where the buck stops. These are large multi-million dollar organisations. Some of them are private for-profit corporations. And what is the requirement for the boards to absolutely be held to account for what occurs in their facilities, and are they even aware of what goes on?
MS EASTMAN SC: Well, just dealing with boards and the human rights standards and culture that you’ve talked about, how do we instil a human rights culture into a board and a governance process of the providers in this sector?
DR PEARCE: Well, I think holding the boards responsible. I can tell you that aged care providers have absolutely been riveted by standard 8, which says that the board is responsible, and quality assurance or clinical governance committees are springing up in every aged care facility as a consequence of that. And they’re being monitored and held to account for it. But when community visitors tell me that they report multiple issues to agencies who don’t even have the courtesy of responding to community visitor reports or we have issues that go on for years and years and years, how is it that the board is not aware of these matters? Now, some of these are – when I talk about the small issues close to home, but all of those are the environments in which we live that contribute to the abuse and neglect of the residents. And the other principle, I think, in terms of governance, is how are people with disability engaged with their service? So ‑ ‑ ‑
MS EASTMAN SC: So what do you mean ‑ ‑ ‑
DR PEARCE: Well ‑ ‑ ‑
MS EASTMAN SC: ‑ ‑ ‑ by that? Engagement in government or a governance sense or representative sense?
DR PEARCE: No, are they engaged with the service in terms of advisory committees, do they have a seat on a board of governance? Do they contribute to co-design of services? The Victorian Mental Health Royal Commission, in its report,
the first thing it started with was the person with the mental illness, so the consumer. So I say it has to be the person with the disability that really leads some of these changes and has to be at front and centre, at the forefront of that.
MS EASTMAN SC: Have you seen any practice to that effect in Victoria?
DR PEARCE: Look, we’re starting to see – we’re starting to see some of it. I think it would be fair to say that Yooralla has had some very significant issues that it’s had to deal with and, as a consequence, they have really looked at how they might turn around their organisation. So they’ve got a number of committees. I’m sure other organisations do as well that spring to mind. But it’s more than just being on an advisory committee. It’s being part of the actual organisation, the governance of the organisation, involved in co-design, involved in evaluation. And so what it requires is an empowerment model of people with a disability.
So culture is set from the top down. So the board has to be responsible for setting that culture in its policies, procedures, in its vision, in its statement. But it won’t ever work unless you have an empowered group of residents who are able, feel comfortable and safe to talk about what is happening to them. And when they live in an environment where they can speak up, where they are encouraged to speak up, where they’re encouraged to be part of making the house rules, to being an individual in the place where they live, we won’t see changes till we see that top-down, bottom-up, if I could put it that way.
MS EASTMAN SC: Does that touch into the area of systems and processes, is developing effective pathways for people to make inquiries, make complaints, know that complaints might be acted on within their own environment, not just to external agencies?
DR PEARCE: Yes. So one is, you know, the culture of complaint and actually the Victorian Disability Services Commissioner had a campaign of it’s okay to complain. So we have to change our thinking to say yes, it’s okay to complain because a complaint is actually just another form of feedback.
MS EASTMAN SC: Does the word “complaint” perhaps a little impediment, that the concept of complaint carries with it ‑ ‑ ‑
DR PEARCE: It does.
MS EASTMAN SC: ‑ ‑ ‑ some overlay? Is there better language in this area that we could use?
DR PEARCE: I’m not sure if there’s better language but, for example, community visitors, when they make a referral to the Disability Services Commissioner, we sometimes have to think of it in terms of complaint when it’s not actually a complaint. And sometimes it’s very hard to think about what a person wants to
frame that in terms of a complaint. So we need – the complaints model is extremely useful and extremely helpful but doesn’t cover all circumstances.
MS EASTMAN SC: Right. Another issue that you wanted to speak about was the area of inappropriate placements as a cause, possibly, of violence, abuse, neglect, exploitation in group homes in the group home model. Is that essentially that question of choice about who you live with, or is that question really around who determines where someone lives and the circumstances in which they will move?
DR PEARCE: It’s all of those things. I mean, if you don’t have a choice where you live, that means – or who you live with, and I ask people here to imagine what it would be like if I told you that I was moving in with you. You don’t know me, you don’t know anything about me. And you don’t have any choice about who your co-residents are. Sometimes you’re not even given a choice when they move out. So there’s no involvement. There’s no engagement of people who are living in these houses around who their co-residents might be.
And there’s often a lack of choice for alternative accommodation and accommodation is so limited that you often don’t have a choice. And what that means is in a circumstance where you may have a person who is a perpetrator of violence living in a house and a person who’s a victim, if I could simplify it like that, you have a victim and a perpetrator living together in a house and under what other circumstances would anyone here in this room think that was appropriate? You wouldn’t. And so why is it that we leave people in very vulnerable circumstances without choice and without options?
MS EASTMAN SC: Well ‑ ‑ ‑
COMMISSIONER SACKVILLE: What are the practical steps one we could take to allow the realisation of choice in the way in which you’re contemplating? What has to happen?
DR PEARCE: Well, I think we have to start with the individual and think about person-centred planning, so we understand really what those – that person needs and wants, what their wishes are, who they would like to live with. You start with that. So a genuine person-centred approach. We have to look at how we manage vacancies in houses, how – if it is your home, why can’t you have a choice over who you live with or where you might move to?
But that requires greater accommodation options to be available and at the moment there just simply aren’t those accommodation options. And where we are starting to see them emerge, my concern is that we’re seeing a reduction in the safeguards in the new models that we have and that’s rather complicated but the – with the introduction of the NDIS and SDA, we now in Victoria have different kinds of leases. So an SDA residential agreement means that a person has the same rights that were in the Disability Act, otherwise you have just an ordinary lease that doesn’t have the same rights protections in it.
So there’s issues about how is it going to be determined what kind of lease that you get. Generally, I think most providers will opt for an SDA residential lease but we are certainly seeing what we call SIL houses where there are no SDA agreements. So you get less rights there. And community – in the brave new world, Community Visitors visit SDA houses. So the new models that are coming online, you won’t have community visitors visiting if they’re not designated as SDA. And that means, in my view, there will be a reduction in the rights protection for some people.
COMMISSIONER SACKVILLE: The Victorian Charter won’t apply, will it ‑ ‑ ‑
DR PEARCE: No.
COMMISSIONER SACKVILLE: ‑ ‑ ‑ to any of those arrangements?
DR PEARCE: No.
COMMISSIONER SACKVILLE: Because they’re under the Commonwealth legislation and administrative arrangements.
DR PEARCE: Yes. So that’s entirely – in my view it’s entirely problematic because, as I’ve said earlier, it doesn’t matter what model of housing you have, if you don’t solve the fundamental issues, then you will have this rights abuse. But what people in closed environments do have currently is visits from community visitors. They will not be available and they will not have the SDA rights – tenancy rights.
COMMISSIONER McEWIN: Could you clarify what you mean by SIL houses that you mentioned just earlier in response. SIL, S-I-L, houses. What do you mean by that? Describe that.
DR PEARCE: SIL houses. Well, they’re just a model that’s emerging and they’re houses that do not get any SDA funding. So in my office we describe those as SIL houses. So they’re new models. So they will have NDIS participants in them but it’s not – they’re not eligible for SDA funding. So ‑ ‑ ‑
COMMISSIONER McEWIN: Could you perhaps also just – I’m trying to understand. I mean there might be a group of people ‑ ‑ ‑
DR PEARCE: Well, perhaps if I – so perhaps if I ‑ ‑ ‑
COMMISSIONER McEWIN: ‑ ‑ ‑ living in a house and they’re all getting SIL, supported independent living.
DR PEARCE: Yes.
COMMISSIONER McEWIN: And how does that work?
DR PEARCE: Perhaps if I give you an example. We’re starting to see – in Victoria we have Supported Residential Services. If you think of a group housing where people live and they get some support to live in that accommodation, some of them may be aged, some may have disabilities, the majority will have some form of mental health issue. We’re starting to see some of these providers now just lease houses in the community attached to the SRS, and they are perhaps moving people from the SRS. They will be people with disabilities. They may be people who are in receipt of an NDIS and get some support. So they’re moving them into houses in the community that community visitors can’t visit. It probably – it’s hard for us to understand – because I have no jurisdiction – what the lease arrangements are for those individuals that are moving into this accommodation but certainly community visitors can’t visit. So in these new models, we’re starting to really worry about what are the rights protections that are available in those new models.
COMMISSIONER SACKVILLE: They’re essentially privatised arrangements, aren’t they?
DR PEARCE: Yes.
COMMISSIONER SACKVILLE: So that the lease entered into will reflect a private sector arrangement between a private sector landlord and the tenant?
DR PEARCE: Yes. And that may or may not be a good arrangement for those individuals. I don’t know because we don’t have a window into that. But we do know, as I keep saying, that where people live in environments where the only other visitors are paid workers, it is an opportunity for abuse to occur unchecked because there is no human rights monitoring.
MS EASTMAN SC: I might ask you then a little bit about Community Visitors in Victoria. So a Community Visitor is somebody who is appointed to that particular role but they perform it in a volunteer capacity; is that right?
DR PEARCE: Yes.
MS EASTMAN SC: And if they’re a Community Visitor, there are certain functions they have to discharge and they – just dealing with the group homes, that generally involves undertaking inspections of the group homes and preparing a report.
DR PEARCE: Yes.
MS EASTMAN SC: That’s a simplified version.
DR PEARCE: Yes, that’s correct.
MS EASTMAN SC: And the Community Visitors can visit a home with or without notice; is that right?
DR PEARCE: Generally all of our visits are unannounced and we have a schedule of visits but we can also visit in response to a request. So our advice line, we would get a large number of calls every year from people in some form of mental health facility, disability facility, and SRS are requesting a visit from Community Visitors because they have an issue that they would like resolved. We also have staff who ring anonymously. I liken them to whistle-blowers who might say something like, “I told my manager about this but they haven’t done anything about it”. Sometimes it’s really a vexatious call, but more often than not it’s a staff member who’s genuinely concerned about what’s happening in their house.
MS EASTMAN SC: And would it be fair to say a Community Visitor is a little bit like the eyes and ears on the ground?
DR PEARCE: That’s certainly how we describe them. They are an ordinary person who enters into a closed environment and applies the standard of an ordinary person to the places that they visit. And different states have different models of community visitors. In Victoria we have a volunteer model, and I’m pretty passionate about our volunteer model. The reason for that is that at any one time we have around 800 volunteers. We provide them with a range of training. And regardless of how long they stay with us I see it as an investment in the social capital of the community that people – often they visit in their local area, will know somebody with a disability or understand what it means to live with a disability or understand what it means to live in a closed environment.
MS EASTMAN SC: And the Community Visitors, they’ve got certain powers, if I can describe it that way. They can enter and look at parts of premises, they can speak with the residents, they can ask questions of the employees and the people working in a group home but they can also look at records that are maintained in the group home?
DR PEARCE: If they’re available. I think in – if you go back practically every community visitor annual report will talk about the lack of access to incident reports. So unless they see an incident report or somebody tells them about an incident, they may not be aware of what’s happened in a group home. And I’d have to describe disability services – service providers as recalcitrant. And for a great variety of reasons Community Visitors are unable to see the primary documentation around what happens in a group home. The Disability Services Commissioner and the Department of Human Services sees category 1 or reportable incidents and now the Safeguarding Commissioner will see those but Community Visitors who visit who are there to inquire and to observe and monitor do not have access to those documents.
MS EASTMAN SC: And can Community Visitors also examine whether or not there’s the use of any restraints in a home? We heard some evidence this morning about different types of restraints. Is that part of what the Community Visitors do?
DR PEARCE: Yes, they will – they will look at restraints. They will just see in their behavioural – whether there’s a behavioural support plan, whether the restraints are documented and whether or not there has been involvement of, as is required, the senior practitioner in Victoria. But what Community Visitors do report is other forms of restraint, locked doors, locked fridges, the inability of people to leave unsupervised. So more environmental restraints. I think for – in most cases there will be some form of authorisation for restraint.
MS EASTMAN SC: Right. Do the Community Visitors have any obligation to consult with the families or guardians of residents as part of their monitoring role?
DR PEARCE: No. And remember we’re a volunteer organisation. I tell you we live on a shoestring and the fact that Community Visitors do the fabulous job that they do with the very limited resources they have is always amazing to me, but it’s not possible for volunteers then to find out who the person’s relation is and to ring them – I mean, there’s all kinds of privacy issues involved in that, let alone there just is absolutely no capacity for us to do that.
COMMISSIONER SACKVILLE: Are you passionate about the Community Visitors scheme because it’s the best model for monitoring or because there are no resources for paid community volunteers to be engaged?
DR PEARCE: No, I’m passionate about it because it is about social inclusion. In other states, a volunteer model may not work. Victoria does have a very long history of volunteer organisations and social capital, but I think in states where you have vast geographic areas to cover, it may not be possible but it works very well here. But there are always tensions between our ability to do the work we – how we support our Community Visitors, and we do have a small paid workforce but it is very small. And it might surprise you to learn that Community Visitors operate on books that have carbon copies, and when was the last time you saw a carbon copy. And then they post it into us. We don’t have the funding for electronic reporting. So that – that is an issue. But nonetheless, the Community Visitors are really good folk who give ‑ ‑ ‑
COMMISSIONER SACKVILLE: It’s enough to warm the heart of a Luddite.
DR PEARCE: Indeed.
MS EASTMAN SC: I think one of the questions that has arisen is whether the reports made by Community Visitors are made immediately available to the residents themselves or their families. And if not, why not and ‑ ‑ ‑
DR PEARCE: No, they’re made available to the house supervisor because the report is to the house supervisor. So they’re not made – generally made available to the family and their visitors – sorry, family and their friends, partly because community visitors wouldn’t know, necessarily, who the family members are of the individuals in those places.
COMMISSIONER SACKVILLE: Who are the Community Visitors? Are they mostly retired people?
DR PEARCE: Some – in fact, yes, that’s true. Some are parents who have a child with a disability. They’re not allowed to – if that child is in a group home they’re not allowed to visit in that particular area. Some of them may have lived experience of disability themselves. Some are students, thinking that it looks good on their CV when they’re wanting to get a job. So there is a great variety but you’re right, by and large they are retired folk.
MS EASTMAN SC: In the year 2018-2019 there were 5527 community visits, and you’ve said in your recent statement, which is tab 16A, that this is a five per cent increase on the previous year. Do you think that’s enough visits? Is there some suggestion that the community visitors aren’t getting out there frequently enough? What’s your view about the frequency ‑ ‑ ‑
DR PEARCE: This has always been a dispute we’ve had with the Department of Human Services. They – I think their view is that two visits a year is sufficient and we’d say once a quarter is really – so four times a year as opposed to two. That’s always been a sticking point. But we are in the process of developing a new – a new Community Visitor model, visiting model, and that is to take into account the significant changes that have arisen because of the introduction of NDIS and all those complications about where Community Visitors can visit. And we are now looking at a risk model and visit houses that we designate to be most at risk. And that’s based on past performance and the problem with that, of course, is that the situation in houses can change very rapidly.
MS EASTMAN SC: I think we’re about to hear from two of the community visitors shortly. So Dr Pearce, can I ask you now about some very recent work of your office. I think only in the last week or so you’ve published a new report called I’m Too Scared to Come Out of My Room. And you say in this report that the primary focus of the report is your office’s ongoing concerns with the group home model, and community visitors do see good examples of very good group homes, and the availability of high quality group homes, and that’s essential to ensure that people with disability are able to realise their right to choice and control. However, for many people the group home model is not working.
And we at the Royal Commission have had an opportunity to read your report but albeit fairly quickly because we’ve only recently received it. Is this something that you would like to talk to the Royal Commission about in terms of the findings that form the basis for this report? And also just its title, I’m Too Scared to Come Out of My Room, rather suggests that there might be some systemic issues here about that sense of safety in group homes.
DR PEARCE: Sure. Well, it is recently published on the weekend; I was photocopying it and binding it so you had a copy. But the report takes us through what are some of the issues with – with group homes in quite a bit of detail and
makes numerous recommendations. But – and I think I’ve touched on a number of the issues already. But I think in order to change violence in group homes, as I’ve said, there’s a number of issues but I really have to go to the culture of the organisations; the – and the fact that boards need to take greater responsibility; the raft of workforce issues that I have mentioned; and the issue of choice and control. Some of those are just so fundamental to the problems in group homes.
MS EASTMAN SC: What then, looking at the work done in this recent report and thinking forward, what do you say the priorities are for the future?
DR PEARCE: Well, one of the – one of the issues I would really like to see is Community Visitors. They are part of the NDIS safeguarding framework but they’re not in part of the legislation. So it’s – it remains very unclear what the role of Community Visitors will be going forward. So one of the fundamental changes I’d like to see is the right to – for Community Visitors to monitor what happens in closed environments, whatever form that is, to be enshrined in legislation. I think that is really critical as we move forward, that we don’t lose that fundamental safeguard.
MS EASTMAN SC: If the Commission please, they are the questions that I wanted to ask unless the Commissioners have got any questions but there may be a few additional questions with the Chair’s leave.
COMMISSIONER SACKVILLE: Yes. Commissioner McEwin has a question.
COMMISSIONER McEWIN: Thank you. You’ve talked a lot about culture. How would you describe, just very broadly in your observation, what is the culture like for people with disability living in the sort of accommodation and home situation that you’ve described?
DR PEARCE: I think – I know you won’t have had a chance to read my report from top to bottom but the thing that I found so astounding in that report was the level of disempowerment. People are really disempowered in that environment around the ability to – they think “well, management decides where I live. I’m too scared to come out of my room”, so this incredible disempowerment. So part of the solution to the culture is – is, as I said, the boards recognising the role of people with a disability in services that they provide but we have to go back to looking at peer support, peer education, and advocacy as the fundamental building blocks to addressing that disempowerment. It’s just so pervasive; in all of the comments that we read is this disempowerment, and sometimes, I think, a sense of hopelessness.
COMMISSIONER SACKVILLE: One of the points you’ve made in your report and in your evidence is that there are everyday events that from the service providers’ perspective might not be terribly important but yet from the perspective of the person with disability, the resident, are reflective of this lack of empowerment. And I noticed in paragraph 62 you gave some examples of that. Would you like just to comment on those examples, because, in a way, they seem to be emblematic of the point you’ve been making.
DR PEARCE: Yes. Well, you see, for community visitors, it’s what gets into a category 1 or reportable incidents. And many of these issues, which we would not tolerate ‑ ‑ ‑
COMMISSIONER SACKVILLE: Can you just – because I don’t think we’ve mentioned them specifically.
DR PEARCE: Okay.
COMMISSIONER SACKVILLE: Would you like to mention them?
DR PEARCE: So the examples I give at paragraph 62, a person has to use a bucket instead of a toilet because there’s no chair to go over the toilet. This goes on for many months. A person needs two staff to get her out of bed at night. Because of the house staff roster is managed this must happen before 8 pm when the evening shift begins when there’s only one staff member on duty. A person wears the same clothes for two weeks, lacks clean clothes and is not well supported in regard to their continence. The television set of a resident who loves TV and DVDs broke down but was not replaced for many months. These are these human rights I talked about that are close to home in very small spaces, that you’ve got to address those issues if you’re going to give effect to human rights on a larger scale.
COMMISSIONER SACKVILLE: Yes. Thank you. Yes, did you have some questions you wished to ask?
MR GRANO: Yes, just two questions, Commissioner.
COMMISSIONER SACKVILLE: Yes. Please go ahead.
MR GRANO: Dr Pearce, just going back to that issue of advocacy, you haven’t talked about supported decision-making. Is there anything you’d like to say about the significance of supported decision-making in relation to empowerment?
DR PEARCE: Yes. Well, the UN Convention on the Rights of People with a Disability, Article 12, equality before the law, says that people have the right to make their own decisions, and they should be supported to do so. So we must start with the presumption of capacity. And I’m sorry if I’m rambling a little bit here but I think what we see in the group homes is that people aren’t supported to make decisions. They’re not – capacity isn’t – isn’t being built in them. And that’s part of the very fundamental issue. And, of course, the new Guardianship and Administration Act at the very heart of that is the presumption of capacity, and the need where I am appointed as a guardian to assist people to make decisions to give effect to their wishes, and to be involved in implementing those decisions.
MR GRANO: Are you aware of any organisations that currently provide supported decision-making for people with disability?
DR PEARCE: Look, I think a number of the advocacy organisations do try and support people with disability to make their own decisions. VALID has a supported decision-making trial. I think Disability Justice Australia also has a model of advocacy that supports decision-making.
MR GRANO: Is supported decision-making something that could be built into the way an organisation operates; is that one of the ways it could be spread out?
DR PEARCE: Most certainly, and that goes to the heart of the cultural issues that I keep coming back to, and the empowerment of the individual. And I think that would be very easy for boards of governance to look at how they do support residents to make their own decisions in matters that are relevant to themselves.
MR GRANO: In relation to the culture issues, you said that culture was the responsibility – or comes from the board. How does a board get that to actually flow through an organisation?
DR PEARCE: Well, that can be difficult but it is about, firstly, ensuring that their culture is – or their vision which sets out what the culture will be, is in all of their documents and all of their practice guidelines and all of their policies and all of their procedures, in the way they approach their work and how they treat their workforce, how they treat their residents. So – but you can put all of that material, as we’ve heard earlier in the day, into documents and still have a culture that is very poor. And that’s why I keep coming back to it’s this empowerment issue, the empowerment of people with a disability, supporting them to make their own decisions, and that bottom-up approach that I keep talking about. They have to be front and centre to any reform, and while they’re not, I don’t think you can change the culture.
Sorry, Phil, and one last thing is that it’s the monitoring, it’s the reporting back to the board. The board being aware of what actually happens in their organisation, and that they have mechanisms in place that attest to the quality of the organisation that is – and can be verified.
MR GRANO: I have no further questions.
COMMISSIONER SACKVILLE: Your last question is a question that a lot of people in this country are asking, not necessarily in relation just to people with disability. All right. Thank you very much. Yes, thank you, Dr Pearce, for your evidence.
DR PEARCE: Thank you.
COMMISSIONER SACKVILLE: And for the clear way in which you have put it forward. Thank you very much.
<THE WITNESS WITHDREW [3.33 pm]
COMMISSIONER SACKVILLE: Ms Eastman, what happens now?
MS EASTMAN SC: Yes. What happens now is we have a small panel, so we have two community visitors. If it would be convenient to the Commission to have – again, I will use a tiny break just so we can assemble the panel and for everyone’s comfort.
COMMISSIONER SACKVILLE: Once we have our tiny panel in place, how long will it take, do you think?
MS EASTMAN SC: I think we might be about half an hour or so this afternoon.
COMMISSIONER SACKVILLE: Okay. So if we take our little break now. We will come back and we should then expect to finish for today between 4 and 4.15.
MS EASTMAN SC: Yes. Thank you.
COMMISSIONER SACKVILLE: Thank you very much.
ADJOURNED [3.33 pm]
RESUMED [3.37 pm]
COMMISSIONER SACKVILLE: Ms Eastman.
MS EASTMAN SC: Commissioner, we have two witnesses, Cindy Masterson and David Roche. You will find Ms Masterson’s statement behind tab 25 in the bundle, and Mr Roche’s statement is behind tab 22 with some accompanying material at 23 and 24.
COMMISSIONER SACKVILLE: Thank you. Thank you very much for coming today. We will ask you to take either the oath or the affirmation as appropriate. Thank you very much.
<DAVID ROCHE, AFFIRMED [3.37 pm]
COMMISSIONER SACKVILLE: Thank you, Mr Roche. Ms Masterson.
<CINDY MASTERSON, SWORN [3.38 pm]
COMMISSIONER SACKVILLE: Thank you, Ms Masterson. Please sit down. And now Ms Eastman will ask you some questions.
MS EASTMAN SC: Mr Roche, I will start with you. Your name is David Roche.
MR ROCHE: Correct.
MS EASTMAN SC: And you’re a Community Visitor.
MR ROCHE: Correct.
MS EASTMAN SC: You have prepared a statement for the Royal Commission.
MR ROCHE: I have.
MS EASTMAN SC: And the contents are true and correct. There is one matter you wanted to clarify.
MR ROCHE: There is just one matter that I would like to clarify ‑ ‑ ‑
COMMISSIONER SACKVILLE: Certainly.
MR ROCHE: ‑ ‑ ‑ and if I could make a statement. Although I may not have witnessed firsthand some of the matters in my statement, information about these occurring are included in the Victorian Parliamentary Inquiry into Abuse in Disability, Ombudsman Victoria investigation reports into both abuse and incident reporting, the Office of the Public Advocate’s Community Visitors Program Annual Reports that include comprehensive information about what is actually happening on the ground including case studies, and discussions with and information from other CVs some of which is contained in the CVP Annual Report.
COMMISSIONER SACKVILLE: Thank you.
MS EASTMAN SC: And you have been a Community Visitor for 15 years?
MR ROCHE: Correct.
MS EASTMAN SC: And what are the areas of Victoria that you cover?
MR ROCHE: Mainly Gippsland and South Gippsland but that includes places like Leongatha, Warragul, Moe, Wonthaggi, Yarram – what have I left out, but they are some of the places.
MS EASTMAN SC: Right. Now, Ms Masterson, you’re Cindy Masterson.
MS MASTERSON: Yes.
MS EASTMAN SC: You are also a Community Visitor. You have prepared a statement for the Royal Commission?
MS MASTERSON: I have.
MS EASTMAN SC: And its contents are true and correct.
MS MASTERSON: That’s correct.
MS EASTMAN SC: You’ve been a Community Visitor for three years. What areas of Victoria do you cover?
MS MASTERSON: I look after the western metro which is inner sort of city western area, so out as far as Werribee, Melton but in Williamstown, Yarraville, Footscray, around that area so that district in there.
MS EASTMAN SC: All right. So the first thing I wanted to ask both of you – and you can take turns, if you wish, in answering, is just to help the Royal Commission have a little understanding about the nature of your role. And I think you’ve been present at the hearing this afternoon when Dr Pearce has given some evidence. So she has spoken about part of your role. But for each of you can you tell the Royal Commission a little bit about what your particular role is and then how that sort of operates in a practical setting. So who would like to go first?
MR ROCHE: Basically, as the Public Advocate has indicated, we’re independent volunteers and we do go into group homes to inquire and observe what’s happening in the group homes. Part of that includes accessing information that the homes may have in respect of the residents. I like to approach it from a personal viewpoint of – in making those inquiries and observing, asking the question would I like to actually live in that – in that home.
MS EASTMAN SC: So that’s the approach that you take when you go into the home.
MR ROCHE: That’s the approach I would take – I take.
MS MASTERSON: Yes, just in addition, we’re members of the local community. So we go in there as members of the local community and with our own life experience ourselves and community experience and we sort of monitor the group homes and look at the group homes from that perspective. As someone in the general community, what I see, is that reasonable, and have those people in the group home got the same rights, access, choices that I would have as a member of the general community. So I look at it from that perspective.
MS EASTMAN SC: And for both of you, what training did you have to become a Community Visitor?
MR ROCHE: In my instance, it was making an application to the Community Visitors program, being interviewed. That takes it back to its very – very basis. There is introductory training before you go out into – into the field. There’s also 10 hours – now 10 hours of visiting with a trained – a trained visitor. There’s also refresher training before one is reappointed every three years, and there’s also an ongoing program of – in a training program that the – the – that the program has but there has been specific training such as training that’s currently running, and that’s about detecting abuse and violence in group homes.
MS EASTMAN SC: Cindy.
MS MASTERSON: Yes, in my induction training, the 10 hours of visiting. Part of that now is we have a trainee booklet that each trainee gets given when they finish the induction training and they take that on each of their visits. It’s more of a reflective tool as to what they’re seeing and what they’re doing, and the more senior CV that they’re going – Community Visitor that they’re going out with gets to give them some feedback in that and look at something, maybe things they might want to look at more maybe next visit if they haven’t seen things. So there’s a bit more of a structure to that pathway of the trainee community visitor now. And then you do your stream specifics as in your disability training, and you go out then as your CV.
There’s other – OPA offers a lot of other training as they come along, like a couple of years ago there was Scope had communication aids, how do you use communication aids and things with residents, and we were certainly encouraged as community visitors to take up that training if we possibly could get there. There’s different training that goes – there’s good group homes training looking at best practice that we should be looking for in group homes so CVs are encouraged to attend those kind of extra training courses as well.
MS EASTMAN SC: So the training with the communication aids are some training about communication techniques with people with intellectual disability or people who are non-verbal; is that right?
MS MASTERSON: Yes. People who are non-verbal. So whether it be using boards or pictures and how we can communicate better with them as a Community Visitor when we go into the houses and visit.
MS EASTMAN SC: All right. When we asked you to prepare some statements for the Royal Commission, we asked you to focus on particular issues and trends that you’ve observed in your roles respectively over 15 and three years. So I want to just run through a few of them. And the first one that you both identified was the reporting of incidents and getting access to information around incidents when you undertake your home visits. So I think these are for Ms Masterson in paragraph 21, and for Mr Roche in 7.2. Do you want to talk about what your experience has been
when you’ve undertaken a visit and part of your role is to look at the group home records or incident reports? What’s been your experience of being able to access documents of that kind?
MR ROCHE: In some instances it’s been very difficult. There are occasions when incident reports are not available, or staff are unable to locate them. The – there’s also to me a trend that some of the incidents that we think might be – should be included as incident reports such as pushing and yelling and punching and stuff like that, may be recorded in a day book but it isn’t recorded necessarily in a – as an incident report.
COMMISSIONER SACKVILLE: What does have to be included in an incident report and to whom does the incident report go?
MR ROCHE: Well, the incident report would go to management.
COMMISSIONER SACKVILLE: But what has to be included, on your understanding, in an incident report?
MR ROCHE: Well, I think anything that caused or – I’m just trying to think, really. It – it’s anything that would harm the resident, not necessarily a high level incident such as an assault or – or hospitalisation.
MS MASTERSON: Yes. So for me, it’s anything that could harm or could cause harm to somebody. And often that – yes, you really have to be a bit of a detective when you go there, and you talk to staff, you talk to residents and someone might vaguely mention something and then you will go back and try and find it in the incident reports and you often don’t find it or you don’t have access to even getting into the incident reports. Sometimes you’ll find it in the daily notes that someone has mentioned something. You know, I had one incident where, you know, one of the residents had banged his head against a window to the extent he’d smashed the window with his head, and yet that wasn’t reported – that wasn’t considered an incident because that was kind of normal behaviour for him. So it wasn’t documented anywhere, other than I found it in the daily note way back. So things like that is very difficult.
Every – because we have so many service providers now as well with the group homes, they all – a lot of them all operate different systems, incident reporting systems so it’s not a standardised system across the board either. Most – they’re all moving towards a computerised system rather than a paper-based system as well. Quite often Community Visitors don’t have access to the computer system. And they – some places certainly will give us a login things but often, too, what I find is the staff themselves don’t have access to the computerised system, which begs to wonder where – how they actually access them anyway.
But often, too, a lot of the system – the risk man system, for instance, they can only – the staff member can only access one – the incidents that they’ve submitted. Any
other incident that has occurred in that house, they can’t actually see. So my – my thinking to that is the system is a little bit flawed because the whole purpose of seeing an incident is to try and do something about it, make sure it doesn’t happen again, so if staff aren’t even aware, how is that helping? So ‑ ‑ ‑
MS EASTMAN SC: And how have you both found ‑ ‑ ‑
COMMISSIONER McEWIN: Sorry, can I ask how seriously do you think management takes the approach and culture of incident reporting to – with the view of making sure if something has happened that has caused – or potentially caused harm to a resident, in your observation how would you describe how seriously management takes it?
MS MASTERSON: In my view, definitely not seriously enough because quite often in the incident reports that I do get to see, the outcome or the management of the incident, that that part of the incident report isn’t even filled in. So the incident might be documented but there’s no “what have we done about that,” even filled in in the report. So it suggests that it’s not, to me.
MR ROCHE: Can I just add there, too, that my understanding is that even the classification of what – what is a major or a non-major, or a critical or non-critical incident is not well understood by the staff either. And if you – I think it was comments made by the Victorian Ombudsman that the resident is not at the centre of the process. The process is the prime driver of doing it to get the process right, rather than focusing on the care of the resident in the house who may have been affected by – by the incident. The other part of that, I think the Ombudsman had also commented on the fact that the – the whole incident reporting was fragmented, confused, and not understood well.
MS EASTMAN SC: So I want to ask you about the reporting of incidents. So have you had occasion on your visits where the residents in the group homes have told you about an incident that you haven’t been able to find in any report or the like? Have you had occasions like that?
MR ROCHE: Yes. In – in one case a resident expressed a view that he’d like to move, because of – he was being bullied, and the staff were favouring the – the other residents. And that wasn’t recorded in an incident report.
MS EASTMAN SC: All right. Have you had any ‑ ‑ ‑
MS MASTERSON: I’ve definitely had – in just the broken window, that was a resident who had told me about that, so ‑ ‑ ‑
MS EASTMAN SC: And when you’re undertaking the visit, do you engage with the staff about those sorts of matters while you’re on the visit, or is it something that you write in your report and it comes back later on? How do you manage that?
MR ROCHE: Well, actually, I rely on the staff to provide, yes, a certain level of information on the basis that there is a trusting relationship between the CVs and staff. However, it must remain independent because the staff are the ones that know the residents best. And they’re really the primary carers of the – the residents. And they – the logical first – yes, the first people to go – to go to if you observe something that you might think is a little bit out of the ordinary, somebody may have suffered an injury, may have had a broken arm, which – may have had a broken arm. Well, you’d inquire into that and you’d ask the staff, “Well, okay, what’s happened? Now what’s being done about it?” And it may be that the – the resident has been taken to hospital. You’ll form a view that the resident is being cared for, and you may not report that. But you’d report that a resident did have a broken arm.
MS EASTMAN SC: And in terms of your engagement with the staff, have they, in your experience, generally been cooperative with you? Have they been open and transparent in the issues that arise in the home?
MR ROCHE: Over the – this is the benefit, I suppose, of visiting over a number of years. In some cases, yes, because the staff have been there for a number of – a number of years and there has been a relationship built up between the CVs and the staff, and they’re quite open about what is happening in the house, what the guys are doing, what’s happened, whether – whether or not there have been incidents. And they’re quite open about doing that. On other occasions you might walk into a house and you will feel as though – I’m not sure whether the staff are being quite as open as we’d like them to be about what’s happening in the house.
MS MASTERSON: Yes. I find a lot of the houses, too, more and more, so it seems, there might be casual staff on as well who, you know, they don’t know what’s occurred or they don’t know the residents; it might be their first time in the house ever. So getting any information out of them is almost impossible. But, yes, I guess that makes – it makes it more difficult if that’s the case.
MS EASTMAN SC: You both referred in your respective statements to the staffing issues, and you’ve both raised that question of consistency of staff and also there’s a high level of casual staff working in group homes. Can you help us understand why that’s a matter of concern to you; what is it about a high number of casual staff versus more permanent staff that makes a difference from the – from your perspective and the visits that you’ve undertaken?
MR ROCHE: Well, from a – being a casual, I don’t think that you know the resident well, because if you were permanent and you’ve been there for a number of years you’ve got a better idea of what the needs are of the – of the resident.
MS MASTERSON: Yes. And often the casuals are quite transient. So they don’t have a lot of training, they don’t even sometimes have much of an induction. So it’s very – very difficult. And like – and as a person, you know, these people are doing some very personal cares with a lot of these people in these homes, so, you know, doing showering and toileting and, you know, it can’t possibly be comforting for
them to have some stranger coming into their house. It would be much easier having someone who they’re familiar with and who knows them and knows their routine. So it kind of, you know, it’s obviously a lot better.
My understanding is, yes, there’s more and more casuals. It’s become – the DHHS are putting out a whole heap of redundancies, they’re telling me. So a lot of the houses at the moment are quite worried. A lot of permanent staff that have been around for quite a few years within the group home system are about to take – there’s about 500 of them taking redundancies out the door. So there’s going to be a lot of casual staff coming in, it would seem.
MS EASTMAN SC: What about the higher level of manager in a group home, so there might be the support workers, they might be casual but what about the house manager, the person responsible for the management of the house? What’s been your experience in terms of a person in that position?
MR ROCHE: That’s probably best illustrated by the time it takes to receive responses to incident reports.
MS EASTMAN: Why is that?
MR ROCHE: Because they – the incident reports or the responses to the incident reports will usually be done by management. They won’t be done by the staff that – that you are talking to or – yes, talking to at a – at a visit. Now, there is a requirement that the CVs reports are responded to, I think it’s within 21 days. And it’s my understanding that that doesn’t – that doesn’t happen. So that’s probably – gives an indication that in some instances the regard for the CVs and the processes surrounding those are not held in terribly high regard by some of the managers.
MS MASTERSON: Yes, I find certainly in a lot of my houses there’s quite a high turnover of house managers in – in some – in some of the houses. In other houses, you know, where you have the more stable house manager that – a house manager that’s more present in the house as well, I often find they’re my better houses that I go to, that things seem to be running better. You’ve a house manager that’s present and the staff are seeing them actively supporting the residents, so they seem to do the same and it all seems to work a lot better. There’s a lot of houses now that have one house manager that might be responsible for at least two or three group homes and so there’s limited time, obviously, that they’re spending at the individual houses and in those houses you tend to get less responses or the responses to our issues that we bring up are quite generic, as in, you know, you don’t really get a very proper answer.
MS EASTMAN SC: So I want to turn now to ‑ ‑ ‑
COMMISSIONER SACKVILLE: Sorry, can I – there does seem to be something, if I may say so, of a potential contradiction between trusting the staff and the kind of responses you’re suggesting you actually get which are anything but deserving of
trust. So how far can you actually trust the people that you’re supposed to be supervising in a way?
MS MASTERSON: That’s a very good point. My – my take on that is so whenever – every issue we raise gets put into our database, into the OPA database. And then when we go back next time – next time to the visit we need to check that off as well. So we raise all the issues, they respond within 21 days. Often they will say, “Yes, that’s definitely been done and that has been fixed”, whatever. As the – the team leader who then is meant to close off that issue, I would never close that off – that issue off from the response. I will wait till my Community Visitors go back into the house next time and confirm for me that that issue has been confirmed, and then I will close off that issue, for that reason. Like, there is sometimes – often the house manager or the person responding, they might have a good intention but it hasn’t actually happened.
COMMISSIONER ATKINSON: Can I ask about this casualisation of the workforce. I was thinking as you were saying it what would it be like if in schools children got a new teacher every day.
MS MASTERSON: Yes.
COMMISSIONER ATKINSON: How would a teacher ever get to know a child and what the child needs and what the educational needs are? What’s the driver of this casualisation? Is it happening more? Is there something that’s driving it? What’s the model that is causing the casualisation of the workforce?
MR ROCHE: I suppose – and I don’t know much about business models but I suppose that the crux of it is that there is a limited amount of resources and whatever needs to be done has to be fitted into that limited amount of resources. Now, going into the NDIS, where there is choice and I think there is a certain amount of private enterprise and more private enterprise involvement in that, the profit motive will probably become greater. And I think that if there can be cost savings through casualisation of the staff, well, that may very well be the case.
MS EASTMAN SC: In the time remaining I want to see if we can get a picture of what it’s like inside a group home through your eyes. So Ms Masterson, in your statement you talk about the condition of the houses and your statement focuses on issues such as the maintenance of houses, the lack of renovation, some of the repairs. And Mr Roche, you haven’t focused on that as much. And so I want to ask you whether, is this a country/city issue or what’s been your experience, both in terms of the state and the quality of housing?
MR ROCHE: The state and quality of the houses varies. There are some new homes that have been constructed – built that I visit. There are also some older homes that I’ve visited over a number of years as well. And some of those homes I’d consider to be a less desirable residence and probably in a less desirable location,
even though it’s in a rural area. There is still an element of isolation and perhaps a degree of stigma about the houses.
MS MASTERSON: Yes. In my homes there’s certainly, yes, some that have been purpose-built. A lot of them are just a house in the suburbs. Some are very old, some are a lot newer. My – one of the things I bring up, though, is the maintenance and the issue of maintenance and how timely that maintenance is and how the workmanship that we seem to find acceptable a lot of the times. Like, very basic things in a lot of these houses, like a light fitting. You know, a CV will report it and six months later that light fitting is still being reported as not being fixed. A really noisy heater, for instance, I put in my statement that, you know, we’re keeping residents awake at night. So it’s been two winters now and, you know, more than 12 months and the really noisy heater is still happening, even though it’s being reported.
And they’re things to me that just go to the overall neglect of – like, I wouldn’t accept that in my house if I was losing sleep over a noisy heater or a light switch that didn’t work, that was unsafe, you know, left for more than six months. You know, it’s not acceptable and we just – it just seems to be it’s all too hard, like the noisy heater, it’s come back from housing that it’s quite a big job. That has been the only response so far. Renovations that have occurred at houses. I have one house that they put in a second sink so that the residents – there’s four out of the five residents are in wheelchairs.
They put in a second sink so the residents in the wheelchairs could access the sink and help with meal preparation and clean up and things. That was fantastic but when they put the sink they put a big fascia board across the front, so there’s no access for wheelchairs to that second sink. But somehow, somebody has signed off on that and when I keep asking what’s happening, what’s happening, it’s like there is – it has come back there will be no more work done on this house, the money has been spent, that’s the end of it. And, like, well, it’s completely useless and it’s a blatant misuse of funds as well, if nothing else. So yes, none of those residents get to actually help with meals in their own home.
COMMISSIONER SACKVILLE: And what happened? Did you report on this?
MS MASTERSON: I still keep reporting. It’s still ongoing. It has a ‑ ‑ ‑
COMMISSIONER ATKINSON: Do you want us to make it the first recommendation of the Commission?
MS MASTERSON: To fix the sink in that house. I will give you the address.
COMMISSIONER ATKINSON: Fascia board be taken off the sink.
MS MASTERSON: That’s right. Yes, but even to that, the house manager there, that’s had multiple house managers through that house. So things have just got
missed and the latest response from that house manager was, “I wasn’t even aware of the sink”. He only has to walk into the house and talk to – have a look.
COMMISSIONER SACKVILLE: But really, I am interested in what you can do about it. Is it just a matter of you ‑ ‑ ‑
MS MASTERSON: I can ‑ ‑ ‑
COMMISSIONER SACKVILLE: ‑ ‑ ‑ agitating with whoever happens to be the manager at any given time?
MS MASTERSON: That’s really – and I can put it into my reports, it goes into the reports, it hopefully goes into the OPA Annual Report. Hopefully somebody with some nous will read it and hopefully something might get done. But it goes towards the trends that go with the OPA, the Annual Report we report on each year.
COMMISSIONER SACKVILLE: Maybe someone could buy them a screwdriver and they could unscrew it.
MS MASTERSON: Maybe. I’ve thought about it myself but ‑ ‑ ‑
MR ROCHE: Can I just – to me, there is an issue around the escalation processes and how you actually move something – I will say down here up to there to actually get anything done about it. The best that we as community visit – we’re not really the solvers of the problem. We’re the identifiers of the problems and the reporters of the problems. We can report that in the annual report to Parliament. The response to that is sometimes very problematic. There is a Community Visitors board that has a power under legislation to virtually refer any matter onto anyone that it wishes to refer it onto, including the Disability Services Commissioner as a result of a Parliamentary inquiry.
But it seems to me that to have an issue escalated to a point where it might be satisfactorily resolved requires the building of a case that the Office of the Public Advocate is probably not resourced to be able to do. And the Public Advocate herself has no investigation powers or punitive powers to bring people to heel. So as a Community Visitor, you might see something there that is really – well, it concerns you. It’s about the care and dignity of an individual. You will try to escalate it on, but you will come to a point where, I would say nobody, is accepting responsibility for producing a result or getting something done. We can get it to a particular point and that is one of the most frustrating parts of being a Community Visitor. You know what should be done – I mean, person in the street like myself knows what should be done. But to get it done is a completely different – it becomes very, very complex.
Now, I understood that the Disability Services Commissioner, as a result of the Parliamentary Inquiry, was to be sort of the last – or the organisation that could make a decision and get some things done. I think, as Community Visitors, there may have
been 133 cases that the program thought should have been escalated and I think they were escalated. I think 13 were investigated. Now, that, to me, yes, builds the frustration in you know things are wrong but how do you change it? And we should have the systems in place to be able to change it. And the person that misses out is the person that we go and visit.
MS EASTMAN SC: Yes. In the time that’s available ‑ ‑ ‑
MR ROCHE: Sorry.
MS EASTMAN SC: No, thank you.
COMMISSIONER SACKVILLE: No, no.
MS EASTMAN SC: You provided so much information that we haven’t had time to explore with both of you this afternoon but can I just ask you to end on this: what’s the one or two things that you think are absolutely key to improving the quality of life and the choices for people with disability living in group homes?
MR ROCHE: You have a Community Visitors program to the standard of Victoria’s across Australia because that’s the primary safeguard for people with a disability. If the Royal Commission – as the Public Advocate mentioned, it’s sort of absent in the NDIS. And in Victoria, if the CV program is lost, one of the fundamental protections for people with disability will also be lost and I just think that’s wrong.
MS MASTERSON: Yes. Independent oversight. It doesn’t matter what you call it, whether it’s a Community Visitor program, but having some sort of independent oversight going into – they’re quite closed environments. So having someone go in there and check on what’s – do some checks and balances in there. But the other thing I would think is the incident reporting system. The whole – it is so flawed at the moment. It needs to be somehow standardised and mandated and that includes training staff to recognise what an incident actually is and understanding that and being able to report it. To me, having that is one of the most important things.
COMMISSIONER SACKVILLE: I think Commissioner McEwin had a question.
COMMISSIONER McEWIN: I have just one question. With the people with disabilities you’ve met over the years that you’ve been with this program, what level or what understanding and knowledge do they demonstrate of their human rights and how to enforce those human rights?
MS MASTERSON: For a lot of the people I see, they are quite complex needs, people with intellectual disabilities. And so I don’t really believe that their understanding of their – they don’t have a very good understanding of their human rights. So all the more reason that we need to look after that.
COMMISSIONER McEWIN: Do you talk to them about their human rights?
MS MASTERSON: Yes, definitely. Yes, we talk to them about what they – just the basics of what they want, are they happy where they are, how we, you know, could – what could we do to make an improvement. Be on a holiday. You know, when was the last time you went on a holiday? Just basic things we take for granted and we try and talk to them about those kind of things.
COMMISSIONER McEWIN: Thank you.
COMMISSIONER SACKVILLE: Nothing more?
MS EASTMAN SC: So that concludes the evidence of our two Community Visitors and we thank them very much for their contribution.
COMMISSIONER SACKVILLE: Mr Roche, Ms Masterson, thank you very much for coming and giving evidence and giving us the benefits of your insights. We do appreciate that. Thank you.
<THE WITNESSES WITHDREW
MS EASTMAN SC: There’s one final matter before we conclude.
COMMISSIONER SACKVILLE: Yes.
MS EASTMAN: That is that the Commonwealth has very kindly provided us a report from the Australian Bureau of Statistics today. I’m just going to ask Ms Munro to explain the document which we will provide to the Commissioners now.
COMMISSIONER SACKVILLE: Yes. Thank you.
MS MUNRO: Thank you, Commissioners. We heard evidence today in relation to the personal safety survey and there was a question asked by counsel assisting around the lack of data, and then an exchange between yourself, Chair, and the witness about some questions around gaps and how those gaps can be filled.
COMMISSIONER SACKVILLE: Yes.
MS MUNRO: This is a document that has only been today finalised by the Australian Bureau of Statistics. It’s titled Disability and Violence in Australia, Personal Safety Survey. What this report does is identify how people with disabilities’ data is captured in that survey. It also recognises that there are potentially some gaps in the way in which that data is collected but explains what is done in an attempt to capture that data and also usefully identifies whether there are learnings from international statistical offices. It’s a six-page document we’d seek to tender today.
COMMISSIONER SACKVILLE: Thank you.
MS MUNRO: Thank you.
MS EASTMAN SC: Commissioners, we have copies, which we will make available to you and we will include in the tender bundle, if that’s convenient, overnight.
COMMISSIONER SACKVILLE: Thank you, Ms Munro, for that.
MS EASTMAN SC: Otherwise that concludes the proceedings today.
COMMISSIONER SACKVILLE: All right. Thank you. We will then adjourn until 10 am ‑ ‑ ‑
MS EASTMAN SC: Yes.
COMMISSIONER SACKVILLE: ‑ ‑ ‑ tomorrow, when we will resume with evidence. Again, thank you for coming and giving evidence. We will now adjourn.
MS EASTMAN SC: Thank you.
MATTER ADJOURNED at 4.12 pm UNTIL WEDNESDAY, 4 DECEMBER 2019