Chapter 10

Chapter 10

Recommendations

10.1      The committee has received evidence of the failure of current systems to deliver safe services to people with disability in the first instance, and a failure to appropriately respond to occurrences of violence, abuse or neglect of people with disability as a secondary measure.

10.2      The committee received evidence of some excellent initiatives and programs which seek to improve both service delivery and protective mechanisms. Some of these programs are having significant positive impacts. However, when viewed as a national sector response, these programs and initiatives are ad hoc, localised, and often underfunded.

10.3      It is clear to the committee that a coordinated, well-resourced national response is required to address the issue of widespread violence, abuse and neglect of people with disability.

Headline recommendations

10.4      The committee has received hundreds of individual recommendations from expert organisations, advocates, supporters and most importantly from people with disability themselves. In analysing these recommendations, a very consistent message was heard about the need for four headline approaches to tackle violence, abuse and neglect:

10.5      Recommendations  to address these and further issues will be outlined in this chapter, with a view to giving full effect to the wealth of experience and expertise embodied in the evidence provided to the inquiry.

A Royal Commission

10.6      It has been a challenging task for this inquiry to adequately capture the full scale of violence, abuse and neglect of people with disability and the toll this has had on individuals and their families.

10.7      Evidence to the inquiry clearly demonstrates that this is happening around Australia and that the cases reported to the Committee are not isolated instances. However, given the lack of reliable data, the committee considers this issue is likely to be far greater in prevalence that this inquiry has been able to determine.

10.8      Many submitters to the inquiry have called for a Royal Commission to address these issues. The committee is aware that calls for a Royal Commission are often made when people feel strongly and seek greater recognition for a particular issue. The committee recognises the full import of such a step and believes in this instance such calls are justified.

10.9      In the case of violence, abuse and neglect of people with disability, the committee notes that nature of disability (requiring communications or transport support to present evidence) combined with the closed nature of institutions, means that the most vulnerable people and those most likely to have been abused, may not have been able to contact the inquiry. Advocates expressed concern that many potential witnesses were not able to access the support they required to be able to participate in the inquiry. The committee is also highly conscious of the criminal nature of many of the allegations brought before it, through both confidential and public evidence. The committee is therefore of the view that only a Royal Commission with investigative powers, funded and empowered to visit institutions, could properly conduct an inquiry, and give full weight to the seriousness of this issue.

Recommendation 1

10.10         The committee recommends that a Royal Commission into violence, abuse and neglect of people with disability be called, with terms of reference to be determined in consultation with people with disability, their families and supporters, and disability organisations.

National disability complaints mechanism

10.11         Much of the lived experience evidence presented to this inquiry focused on the responses to reports on violence, abuse and neglect, more so than the instances of abuse themselves. From the range of evidence received, it is clear to the committee from the range of evidence, that the reporting and investigating frameworks across all jurisdictions fail to adequately respond to individual cases, and through this failure, do not provide an appropriate secondary protection measure to reduce future acts of violence, abuse or neglect.

10.12         The two key problems with the existing system raised by most submitters, is that the lack of an enforceable complaints resolution body exacerbates an environment of abuse, and the lack of consistency across jurisdictions creates confusion and reduces overall numbers of reporting of individual instances of violence, abuse or neglect.

10.13         Evidence to this inquiry indicated that a key problem with the current state and territory based complaints reporting and investigation systems, is that they generally approach their complaints handling functions as a dispute resolution process. While this is an appropriate mechanism to address low-level service complaints, it is an inadequate and inappropriate response to complaints of violence and abuse, many of which are crimes. Many submitters saw an ongoing need to retain the existing state and territory level complaints handling mechanisms to handle service level dispute resolution, but wanted a new national watchdog with increased powers.

10.14          Submitters provided a wealth of ideas to create a national system for reporting and investigating instances of violence, abuse and neglect. The key recommendations for such a system include:

10.15         From the range of evidence presented to this inquiry, the committee believes there is an urgent need to take action to establish a national protective mechanism to respond to individual cases, but also to address systemic issues that contribute to increasing the prevalence of violence, abuse and neglect of people with disability.

Recommendation 2

10.16         The committee recommends the Australian Government consider the establishment of a national system for reporting and investigating and eliminating violence, abuse and neglect of people with a disability, which should, at a minimum:

10.17         These elements are best implemented through the establishment of a national, independent, statutory protection watchdog that has broad functions and powers to protect, investigate and enforce findings related to situations of violence, abuse and neglect of people with disability.

National workforce and workplace regulation

10.18         Much of the evidence presented to this inquiry discussed the need to establish a watchdog to address the issue of individual predatory workers. However, a significant body of evidence discussed broader workforce issues that contribute to the prevalence of violence, abuse or neglect caused through issues such as poor training, workplace cultures, workplace frustration and inappropriate staffing levels.

10.19         The range of evidence put to the committee indicated a need to address issues to do with individual workers, but also to address workforce and workplace issues that can contribute to instances of violence, abuse and neglect.

10.20         A key recommendation put forward by multiple submitters was around the need for improved training and accreditation for individual workers. There was a uniform view from witnesses that the approach to training should be nationally consistent, and must contain mandatory rights-based training to ensure all workers have the core competency skills to recognise and report abuse and violence, and understand their obligation to report. The committee also recognises the need for increased funding to ensure this training is delivered not only to incoming disability workers, but also to be rolled out as a mandatory requirement for existing workers.

10.21         A national approach to training could include the establishment of a central agency or body with a function to ensure national consistency in training through a training program accreditation scheme. The committee believes this could work much like the functions performed by bodies such as the Australian Medical Council or the Australian Psychology Accreditation Council.

10.22         A recommendation of great interest to the committee, was to take an approach to 'professionalise' the workforce through a national disability worker registration scheme, with requirements for ongoing professional development. Such a registration scheme could accommodate another recommendation made by multiple witnesses, which is the need for a tiered approach to training and registration, which recognises the need for increased training to provide services to people with increased needs or vulnerabilities.

10.23         Analysis of the body of individual lived experience evidence has enabled the committee to form a clear picture of the compelling need for stricter regulation of workplaces as a mechanism to address violence, abuse and neglect.

10.24         The committee supports the view that existing service delivery accreditation schemes should be strengthened to impose stricter requirements for facility and client specific induction for new carers as well as a mandatory reporting requirement tied to ongoing accreditation.

10.25         A recommendation made to the inquiry which the committee believes is an area worthy of further thought, is the consideration of a scheme that imposes service standard requirements on management and board members, similar to the obligations imposed by various occupational health and safety schemes.

Recommendation 3

10.26         The committee recommends the Australian Government establish a scheme to ensure national consistency in disability worker training, to include the elements of:

Recommendation 4

10.27          The committee recommends the Australian Government consider establishing a disability worker registration scheme, to include the elements of:

10.28         The registration worker scheme will be best overseen by the national disability watchdog.

Recommendation 5

10.29         The committee recommends the Australian Government consider establishing a national approach to modify state and territory and Commonwealth service delivery accreditation programs, to:

10.30         The changes to accreditation schemes will be best overseen by the national disability watchdog.

Access to justice

10.31         The committee is disturbed at the evidence presented which highlights the lack of progress to improve access to justice for people with disability. Previous expert inquiries by the Law Reform Commission, the Human Rights Commission and the Productivity Commission have made detailed recommendations on how to address this issue.

Recommendation 6

10.32         The committee recommends the Australian Government work with state and territory governments on the implementation of initiatives to improve access to justice for people with disability contained in the reports by the Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws,  the  Human Rights Commission, Equal Before the Law and Productivity Commission, Access to Justice Arrangements, with particular focus on:

Recommendation 7

10.33         The committee also recommends that each state and territory implement a Disability Justice Plan.

Recommendation 8

10.34         The committee believes that there is a need for further investigation of access to justice issues, with a focus on:

Other recommendations

State and Territory reporting and investigating

10.35         As discussed in the recommendation for a national disability watchdog, a key problem in the existing systems of disability sector oversight is the conflation of investigation mechanisms with dispute resolution processes. Evidence presented to the inquiry showed that many such complaints processes are not enforceable, and are more appropriate for service delivery dispute resolution rather than reporting and investigation of alleged criminal behaviour.

10.36         Evidence to this inquiry indicated that agencies which engage in dispute resolution tend to have an ongoing working relationship with service delivery organisations, which is appropriate to the mediation and resolution of low-level service faults, but is a clear conflict of interest in the investigations of serious misconduct, service contract breaches or allegations of violence or abuse.

10.37         Evidence also suggested a 'siloed' approach to complaints handling, which made it confusing for individuals to know where to lodge complaints.

Recommendation 9

10.38         The committee recommends the Australian Government work with state and territory governments on a nationally consistent approach to existing state and territory disability oversight mechanisms, to include;

10.39         A nationally consistent approach to disability oversight mechanisms is best overseen by the national disability watchdog.

The right to self-determination

10.40         Evidence presented to this inquiry has led the committee to believe that a change in culture needs to occur from the top down, including funding bodies, oversight mechanisms, service delivery organisations and advocates, to acknowledge that people with disability have a fundamental right to self-determination. This right encompasses a wide range of decision-making, from the right to individual legal capacity, the right to make day to day living decisions and the right to take risks when seeking positive life experiences.

Recommendation 10

10.41         The committee recommends that the Australian Government consider driving a nationally consistent move away from substitute decision-making towards supported decision-making models.

10.42         The issue of where determining what constitutes legal incapacity, as well as the flow-on effect of loss of legal capacity, has been the subject of recent expert inquiries and reports. There is no need for this inquiry to re-tread over well-travelled ground. There is simply a need for the recommendations of those expert reports to be implemented as a matter of priority.

10.43         The committee agrees with the premise that the concept of legal incapacity is more subtle and complex than the current absolutist approach.  Legislative reform may be required to ensure that where a person requires support to make certain decisions, such as substantial financial decisions, they do not lose the right to make all decisions, such as where they live or who may visit them.

Recommendation 11

10.44         The committee recommends that the Australian Government work with state and territory governments to consider implementing the recommendations of the Australian Law Reform Commission report Equality, Capacity and Disability in Commonwealth Laws, in relation to legal capacity and supported decision-making.[2]

Recommendation 12

10.45         The committee recommends the Australian Government work with state and territory governments to create national consistency in the administration of guardianship laws to ensure:

10.46         The committee further acknowledges the issues raised around enforced 'therapeutic' treatment of people with disability, and recognises that in many instances these are cases of 'disability specific lawful violence'. The committee believes that policy and practice in the disability sector must remain cognizant of the deprivation of fundamental rights that many disability interventions entail, to ensure this is done to the minimum necessary.

The right to risk

10.47         Evidence to this inquiry has shown that another overarching problem with the approach to disability service delivery is the culture of risk management being based on avoiding risk, rather than appropriately managing risk. The committee agrees with the proposition put forward by witnesses that the tendency of service delivery organisations to disregard the requirement to seek positive outcomes and life experiences for people with disability, is itself a form of abuse or neglect. The committee notes that evidence shows this is often caused by service delivery organisations being overly focused on avoiding negative outcomes, often at the cost to individual people with disability being able to live fulfilling lives.

Recommendation 13

10.48         The committee recommends state and territory and Commonwealth service delivery accreditation programs should be modified to impose additional requirements for positive life outcomes for individual people with disability, rather than a singular focus on the avoidance of negative outcomes. The committee recommends this work is best overseen by the national disability watchdog.

Counselling and support services

10.49         The committee received a great deal of lived experience evidence from witnesses. As part of this evidence, a clear picture emerged of the lack of appropriate recovery support and counselling services available to people with disability. In cases presented to this inquiry, people with disability were denied the services of mainstream counselling services, purely on the basis of service providers being unable to meet the needs of people with disability.

Recommendation 14

10.50         The committee recommends all levels of government provide increased funding for support and counselling services. This should be to create specialist disability counselling services where required, as well as to mainstream organisations so they may meet the needs of people with disability.

Advocacy

10.51         The committee acknowledges the vital role that formal and informal advocacy plays in addressing violence, abuse and neglect of people with disability. However, the advocacy sector urgently needs greater assistance from all levels of government to continue in this role.

Recommendation 15

10.52         The committee recommends all levels of government acknowledge the vital role that formal and informal advocacy plays in addressing violence, abuse and neglect of people with disability, by considering:

Recommendation 16

10.53         The committee recommends the National Disability Advocacy Program implement the following recommendations:

National Disability Insurance Scheme

10.54         The committee acknowledges that with the roll out of the NDIS, there will be a significant shift to individualised funding arrangements, which could have some inadvertent negative consequences. There is a need for a watchful eye during implementation, and an approach that will embrace the need for change should unforeseen problems arise.

Recommendation 17

10.55         The committee recommends of the Government consider the following when rolling out the National Disability Insurance Scheme (NDIS):

Restrictive practice

10.56         Evidence presented to this inquiry has raised serious concerns that restrictive practices are often imposed as a means of coercion, discipline, convenience, or retaliation by staff, family members or others providing support. In some jurisdictions there is minimal regulation of practice in government run facilities, with only self-regulation in the non-government sector.

10.57         The committee is greatly concerned with what appears to be systemic problems within the education system that are leading to many of the inappropriate practices described in this section. Many of the systemic problems that lead to the use of restrictive practices actually reinforces an attitude that facilitates the mistreatment of children with disability because they are viewed as different.

Recommendation 18

10.58         The committee recommends the Australian Government work with state and territory governments to implement a national zero-tolerance approach to eliminate restrictive practice in all service delivery contexts. This would entail:

Recommendation 19

10.59         The committee believes that the use of restrictive practice against children must be eliminated as a national priority. The committee recommends the Australian Government work with state and territory governments to implement a zero-tolerance approach to restrictive practice in a schools context, which should include:

Housing options

10.60         A consistent message was presented to the inquiry, that broad systemic and cultural issues are key causes of violence, abuse and neglect of people with disability.

10.61         Evidence to the inquiry indicated that where people with disabilities live and the cultures of the organisations which provide services, in particular residential services, are significant factors that impact on risk of violence, abuse and neglect.

Recommendation 20

10.62         The committee recommends the Australian Government work with state and territory governments to consider the principle that there should be no enforced shared accommodation for people with disability.

Recommendation 21

10.63         The committee encourages increased resources for public and social housing for people with disability, including models where people with disability may choose to cohabitate with other people with a disability or abled people. The goal being to achieve a move away from institutions and forced congregate housing models.

Recommendation 22

10.64         The committee recommends all accommodation and service delivery funding agreements should have a mandatory gender-sensitivity requirement, particularly that people with disability must have a choice as to the gender of who provides intimate forms of care.

Schools

10.65         The committee was deeply concerned with the range of evidence presented on the treatment of children with disability in schools. While this is primarily a state and territory based issue, there is a clear need for Commonwealth involvement due to the serious breaches of children's rights under the Convention on the Rights on the Child and the Convention on the Rights of Persons with Disabilities.

Recommendation 23

10.66         The committee recommends the Australian Government work in collaboration with the states and territories to address the needs of children and young people with disability in schools to:

Recognition of disability in protective policy

10.67         The committee heard a range of evidence that the specific needs of people with disability are often missing from mainstream protective policy and mechanisms, or the needs of specific cohorts are missing from disability-specific policy.

Recommendation 24

10.68         The committee recommends that the Australian Government consider amending the following protective policies to include the specific needs of people with disability, to ensure that people with disability are afforded the full range of rights protections that are available to people without disability:

Data

10.69         Evidence given to this inquiry shows that there is a paucity of reliable statistical data around the prevalence of violence, abuse and neglect of people with disability, and the success of existing reporting and investigating frameworks.

10.70         There is overwhelming anecdotal evidence of violence, abuse and neglect of people with disability, which indicates a need to formally recognise and quantify this problem. Nationally consistent data on this issue is an essential element to guide policy development that will help eliminate violence, abuse and neglect against people with disabilities.

10.71         There also appears to be definitional issues around how incidents are categorised which impacts how incidents of abuse are reported. A project to set national guidelines to define violence, abuse and neglect would give clarity to reporters and investigators of abuse.

10.72         It is the committee's position that where data exists, it should be made available, albeit in a way that takes into consideration any personal identifiers. It is also the committee's position that where there is an absence of data, that it should be a priority for that data to be collected so that the quantum of violence, abuse and neglect against people with disability can be fully understood.

10.73         The committee also considers that further thought be given to the Human Rights Commission's recommendation for further research to validate a link between institutional and residential settings and intentional self‑harm and suicidal behaviour.

Recommendation 25

10.74         The committee recommends that the Australian Bureau of Statistics ensures all of its surveys are inclusive of people with disability. The committee further recommends that the Australian Government commits additional funding to ensure the triennial survey of Disability, Ageing and Carers and the Personal Safety Survey include the collection of data on the prevalence of violence, abuse and neglect against people with disability. This data should include the following information:

10.75         The committee further recommends this data to be used to address violence and abuse in future National Disability Strategy implementation plans.

Recommendation 26

10.76         The committee recommends that the National Disability Strategy Progress Report should include specific data on Aboriginal and Torres Strait Islander peoples with disability.

Recommendation 27

10.77         The committee recommends that the Department of Social Services publish data relating to the National Disability Abuse and Neglect Hotline on its website every six months. This data should include the following information:

Recommendation 28

10.78         The committee recommends that the Australian Institute of Health and Welfare's annual report Child Protection in Australia should disaggregate data on the basis of disability.

Recommendation 29

10.79         The committee recommends that finalisation of the Child Protection National Minimum Data Sets should be prioritised as this additional data will be a useful addition to policy makers and service providers in this area.

International Human Rights

Recommendation 30

10.80         The committee recommends the Commonwealth review the reports of the United Nations Committee on the Rights of Persons with Disabilities, with a view to giving effect to recommendations that would improve Australia's adherence to the human rights obligations that have been voluntarily undertaken.

Senator Rachel Siewert
Chair

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