Submission:
Senate Community Affairs Reference Committee
19 June 2015
Inquiry into Violence, Abuse and Neglect
against People with Disabilities in
Institutional and Residential Settings
Communication Rights
Australia
Inquiries to:
Ms Jan Ashford
Chief Executive Officer
Communication Rights Australia
Email: [email protected]
Ph:9555-8552
Web: www.communicationrights.com.au
Ms Julie Phillips
Manager
Disability Discrimination Legal Service
247-251 Flinders Lane
Melbourne VIC 3000
Ph: 9654-8644
Email: [email protected]
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INDEX
Introduction…………………………………………………………………………..4
Executive Summary…………………………………………………………………6
Responses to Terms of Reference…………………………………………….….8
The Impact of Violence, Abuse and Neglect on People with Disability, Their
Families, Advocates, Support Persons, Current and Former Staff and
Australian Society As a Whole …………………………………………………….8
Victorian Department of Health and Human Services………………….. 8
Department of Education and Training …………………………………...9
Families of People with Disabilities……………………………………….10
Advocates/Support Persons……………………………………………….10
People with a Disability…………………………………………………….11
Australia's Failure to Comply with Its International Obligations As They
Apply to People with Disabilities…………………………………………………. 11
Barriers to Reporting Violence and Abuse………………………………………. 13
A means to communicate complaints of abuse…………………………..13
Lack of appropriate supports available to people with communication
or speech difficulties when they want to make a complaint………….15
Access to independent support……………………………………………16
Lack of research available and data collection on vulnerable and
marginalised members…………………………………………………… 17
The Role of Advocates – non legal………………………………………..18
The Role of Advocates – legal……………………………………………. 19
Identifying the Systemic Workforce Issues Contributing to the Violence,
Abuse and Neglect of People with Disability and How These Can Be
Addressed……………………………………………………………………………19
General Workforce Issues…………………………………………………..19
Opportunities/Challenges arising under the NDIS………………………. 21
The Different Legal, Regulatory, Policy, Governance and Data Collection
Frameworks and Practices across the Commonwealth, States and
Territories to Address and Prevent Violence, Abuse and Neglect against
People with Disability……………………………………………………………… 21
Department of Health And Human Services……………………………. 21
Legal System……………………………………………………………….22
Office of the Disability Services Commissioner………………………...23
2
Office of the Public Advocate …………………………………………….24
Recommendations…………………………………………………………….. …25
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INTRODUCTION
Communication Rights Australia (“Communication Rights”) is a specialist human
rights advocacy and information organisation funded to provide advice, support and
information to people with disabilities giving priority to those who experience
communication or speech difficulties.
There are 1.1 million Australians1 who have a communication disability.
Communication Rights Australia is the only advocacy information agency funded to
work within this community supporting individuals to access their rights, including the
right to communicate.
Communication Rights works in all institutional and residential contexts that have
been defined broadly within the Senate Inquiry including group homes, workplaces,
respite and day services, recreation programs, mental health facilities, hostels,
supported accommodation, prisons and juvenile justice centres, schools (including
school buses), out-of-home-care, hospitals, age care facilities and disability services.
The Disability Discrimination Legal Service (“DDLS”) is a community legal centre
that specialises in disability discrimination legal matters. DDLS provides free legal
assistance through information, referral, advice, casework assistance, community
legal education, and policy and law reform. The long term goals of the DDLS include
the elimination of discrimination on the basis of disability, equal treatment before the
law for people with a disability, and to generally promote equality for those with a
disability.
Violence, abuse and neglect (”abuse”) of people with disabilities has been occurring
in a wide range of settings for decades without sufficient attention from State and
Commonwealth governments, and with inadequate responses from those charged
with ensuring that reports of such abuse are handled efficiently, effectively, and with
competence.
This inquiry is the most significant attempt made by government to elicit information
from people with disabilities and those that work with and around them around
issues of abuse.
Communication Rights Australia and the Disability Discrimination Legal Service have
concerns, however, that the Senate have not had the resources to ensure that the
people with disabilities who are the most vulnerable, are enabled to provide
information to the Community Affairs Reference Committee (“the Committee”).
1
Speech Pathology Australia n. d., Communication impairment in Australia, viewed 10 October
2013,http://www.speechpathologyaustralia.org.au/library/2013Factsheets/Factsheet_Communication_
Impairment_in_Australia.pdf
4
While there are those people with disabilities who are able to easily access and
information about the inquiry, and are capable of independently contacting the
Committee and making their views known, many will not have received information
on the inquiry by the due date, and will not have received the support required to
provide information.
The very reasons that people with disabilities are subjected to abuse are the same
reasons that people with disabilities may miss out on contributing to this inquiry.
Those reasons include isolation, the inability to communicate without significant
assistance, fear of retribution and the control of information being provided to them.
We believe that ultimately, a Royal Commission is the only vehicle that would
receive the resources to ensure that those who are most marginalised and
vulnerable are supported to provide their views.
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EXECUTIVE SUMMARY
The abuse of people with disabilities is widespread. Of most concern is the fact that
much abuse is received from staff working for government departments, and that the
organisations failing to fulfil their statutory or moral obligations to vigorously pursue
reports of abuse facilitate that abuse as a consequence of those failures.
Many of the institutions that are set out in the Terms of Reference, such as
accommodation facilities, disability service providers, schools and special schools,
are either government itself, or are contractors to government.
It is clear that the Senate accept that the abuse of people with disabilities across
Australia is an issue of such significance that it warrants an Inquiry. This submission
supports this conclusion, but also looks at why this abuse exists, and then what
prevents its exposure. In summary, some of the contributing factors include:
a) Australia’s failure to comply with its international obligations as they apply to
people with disabilities
b) The lack of appropriate supports available to people with communication or
speech difficulties, and cognitive disabilities, when they want to make a
complaint.
c) The difficulty people with disabilities who are isolated, marginalised or
vulnerable pad in accessing independent advocacy to assist them in
reporting.
d) No literal means to communicate a complaint (no functional communication
device or method that people within their environment can use and support).
e) Access to independent supports to enable people to report abuse.
f) A lack of counselling and victim support.
g) A lack of research on how to best support vulnerable, isolated and
marginalised individuals.
h) The failed practices of, and conflicts of interest present demonstrated by,
bodies established to investigate and prevent abuse. In
i) The insufficient numbers of independent disability advocacy organisations and
the inadequate funding of such organisations.
j) The failure by government to address systemic issues linked with abuse.
k) The failure by government to require best practice approaches to working with
people with disabilities.
l) Workforce issues contributing to abuse.
m) Absence of a National Framework that covers all institutions as set out in the
Terms of Reference (although this may be addressed under the National
disability insurance scheme ("NDIS") Quality and Safeguard Framework).
n) Police and lawyers involved in the reporting of abuse not being prepared to
use a person’s method of communication;
o) refusal by schools and service providers to acknowledge the importance of
using evidence-based interventions to respond to challenging behaviours;
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p) and ignorance by schools and service providers to acknowledge that research
reflects that an inability to communicate will often results in challenging
behaviours.
Currently, work on the NDIS Capacity Building and Quality and Safeguard
Framework is being completed, ostensibly to ensure there are environmental
supports for people who are isolated, marginalised and vulnerable. It is unclear at
present how successful that Framework will be.
It is clear that nothing other than significant change across a number of
environments will even begin to address the issues of abuse against people with
disabilities. It is our view that government must lead that change.
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RESPONSE TO TERMS OF REFERENCE
DDLS and Communication Rights believe the following actions or omissions
constitute abuse, violence and/or neglect:
Physical restraint unless in an unplanned emergency;
Seclusion;
Sexual/physical/indecent assault;
Physical force to move people with disabilities from one place to
another;
Failure to ensure person with a disability can communicate;
Failure to ensure person with a disability has a full and active life;
Preventing a person with a wheelchair from moving that wheelchair;
Failure to ensure person with a disability has access to regular meals;
Failure to obtain the necessary professional services to effectively
address challenging behaviours;
Failure to teach independent living skills;
Failure to allow people with a disability to have choices about their life,
simply because they have a cognitive or communication disability.
This list is not exhaustive.
B.
THE IMPACT OF VIOLENCE, ABUSE AND NEGLECT ON PEOPLE WITH
DISABILITY, THEIR FAMILIES, ADVOCATES, SUPPORT PERSONS,
CURRENT AND FORMER STAFF AND AUSTRALIAN SOCIETY AS A
WHOLE
1.
Victorian Department of Health and Human Services ("DHHS").
In the absence of parents of people with disabilities receiving sufficient
assistance from DHHS and their contractors to support families living together
successfully, many families are forced to separate and "hand over" their
child/adult child to the State.
Many families without members who are people with disabilities live together
for a number of years after children reach adult good because they choose to
do so. We believe that families with members who are people with disabilities
should have the same choices.
Parents report that after their family member is placed in a DHHS/contractor
home, they almost immediately lose their rights to influence the care and
service provision of that family member.
Abuse occurs when there are few safeguards and little oversight. Many
parents are marginalised or even banned from disability accommodation on
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the pretence of Occupational Health and Safety simply because they had the
temerity to make complaints about the quality of care. Issues reported to our
organisations include:
a) staff unable and/or unwilling to communicate with the residents;
b) DHHS/contract staff failing to ensure a formal language
assessments and communication methods are supported; and then
c) DHHS/contract staff regarding the accommodation as their
workplace, rather than the home of the person with a disability;
d) staff refusing to put in place activity programs when a person with a
disability does not have a day program externally, leaving that
person unoccupied and frustrated on a daily basis;
e) staff having minimal qualifications to deal with challenging
behaviours and refusing to engage professional support to address
such challenging behaviours, resulting in self injurious and
challenging behaviours;
f) staff ignoring residents in preference to doing as little as possible
while they are on shift (such as office work, watching television and
so on);
g) refusal by DHHS/contract staff to allow a person with a disability or
their family to have any input into where they will live, no matter
how inappropriate;
h) refusal to provide Incident Reports forcing family members to apply
through Freedom of Information.
When parents are faced with such neglect they are placed in an invidious
position. If they complain, not only might they have to deal with accusations of
causing "stress" to staff, or "bullying", but if they do not demonstrate placid
agreement with whatever choices DHHS/contractors make, a common mode
of response is often a guardianship application made for the individual in an
attempt to bypass parents and appoint someone who is more amenable to
DHHS/contractors and their decision-making. Regrettably, this might often be
the Office of the Public Advocate Guardianship Program.
The reporting of injury and neglect, the requesting of supports that are
constructively refused, the observations of families who can see through their
family members’ behaviour that something is wrong, are rendered impotent by
appointed Guardians and DHHS/contractor staff who can simply refuse to
agree to all requests and are in reality, accountable to no one.
2.
Department of Education and Training ("DET")
Similarly as to that described above, parents have very few rights in
controlling the quality and level of education provision in schools. While DET
9
goes to some effort in various publications to state the importance of parents
and their input into a child with a disability’s education, in fact parents have
little influence on many aspects of their child's education. Parents do not have
the right to:
a)
b)
c)
d)
e)
f)
g)
h)
i)
j)
k)
3.
refuse restrictive practices;
be told about restrictive practices used on their child in schools;
attend Student Support Group meetings;
agree with or have input into Individual Education Plans;
agree with or have input into a Behaviour Plan;
request the intervention of psychologists or other experts who
have the ability to address challenging behaviours;
insist that their child has a formal language assessments;
insist that their child has a formal communication method and
that staff must be trained in that method;
insist that staffing levels must be adequate to support their child;
in some schools, enter the school buildings;
insist that their child has assistance from anyone with a
particular qualification or training (for example integration aides
are commonly hired in response to individual funding received,
and such aides require no qualifications regardless of how
complex the child’s disabilities are).
Families of People with Disabilities
In the above circumstances, parents and family members can experience mental
health issues, knowing that they have no or little influence or control into the
treatment being meted out, or withheld from, their child/family member.
Some family members have simply withdrawn from contact with their adult family
member as observing the quality of their care is too distressing. Family members
have reported breakdowns through endless advocacy over years with service
providers/schools yielding little result.
4.
Advocates/Support Persons
While advocates and support persons are often contacted by families and people
with a disability to assist, there are times when those professionals face the same
lack of respect experienced by those they are representing.
Given the lack of funding for the disability advocacy sector in general and the longterm nature of some individual casework due to the intransigence of service
providers/schools, people with disabilities are often placed on a waiting list or
referred on due to a lack of capacity to assist.
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Not only is this distressing for the person with a disability, but advocates experience
helplessness and frustration knowing that they simply cannot meet the need of the
disability community due to a lack of support for the sector. "Burnout", depression
and stress are anecdotally obvious in a sector that is charged with attempting to
negotiate the protection of its clients, but not financially and physically supported to
do so.
5.
People with a Disability
It goes without saying that the effect of abuse on people with a disability is
substantial. As a result of the sorts of violence, abuse and neglect that people with
disabilities are subjected to from schools and service providers, those people suffer
physical injury, psychological injury, mental illness and long-term trauma. We note
that a particular concern is for people with disabilities who are non-verbal. Not only
are such people unable to report to families, friends and advocates what is
happening to them at schools and in service provision, but it is anticipated they
would experience a heightened fear and trauma knowing that they are unable to
influence their treatment simply because they cannot communicate.
AUSTRALIA’S FAILURE TO COMPLY WITH ITS INTERNATIONAL
OBLIGATIONS AS THEY APPLY TO PEOPLE WITH DISABILITIES
F.
Since 1st July, 2014 Communication Rights, through its representation of people with
disabilities, has recorded 198 incidents of human rights infringements occurring
within the Victorian community. These include infringements regarding:








the right to freedom of expression, opinion and access to information;
the right to live independently and be included in the community;
the right to respect for physical and mental integrity;
the right to be protected from torture and cruel, inhuman or degrading
treatment;
the right to be trained in, and use, augmentative and assistive
communication;
the right to be provided with communication support workers/sign language
interpreters;
the right to live a life free of discrimination;
the right of access to justice, education and health services.
These infringements reflect the major areas of human rights breaches, causing
significant distress to people with disabilities.
DDLS receives, in addition to complaints of discrimination, complaints of abuse,
neglect and restrictive practices from people with disabilities and their families. Many
of these complaints do not fall under discrimination legislation, and people are
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referred to statutory authorities such as the ombudsman, or disability advocacy
agencies.
Such complaints fall under numerous international human rights conventions to
which Australia is a signatory, and for which shadow reports are regularly prepared,
articulating numerous failures to comply.
By failing to comply with international conventions, the Australian Government:
role models an attitude towards people with disabilities which suggests
that they are not equal members of the community; and
continues to fail in his obligations to establish an infrastructure and
systemic framework that will ameliorate risk for people with disabilities.
State governments, through the Commonwealth, have clear obligations under such
international conventions, however in the Victorian context, it is the State
Government itself that is responsible for most human rights breaches. Below are
listed only a few examples of how the State of Victoria is breaching its obligations.
The Department of Health and Human Services is the largest direct service
provider/contractor in relation to services for people with disabilities.
In 2012, the Victorian Equal Opportunity in Human Rights Commission (“VEOHRC”)
released a report entitled Desperate Measures: Relinquishment of Children with a
Disability in the State Care.2 The report highlighted, amongst other things, that one
of the reasons children and young adults are relinquished into state care, is due to a
lack of support from the state itself. This support comes through DHHS as set out
above in our response to “B”. The relinquishment of children and young adults
places them in state care (either contracted or directly provided). It has become very
clear that the levels of abuse in state care present a risk to all people with
disabilities.
Three years later, very little has changed in terms of the levels of support provided to
families caring for people disabilities, and in fact there has been an increase in
complaints in relation to the amount of Individual Support Packages provided
through DHHS.
In the same year, VEOHRC released a report entitled Held Back: the experiences of
students with disabilities in Victorian schools.3 Chapter 10 highlights abuses of
students with disabilities in schools through restraint and seclusion, and clearly sets
out the breaches of domestic and international law that are raised by such abuses.
Despite recommendations by VEOHRC on what is required in their view to protect
2
http://www.humanrightscommission.vic.gov.au/index.php/2012-10-18-01-21-18/our-projects-ainitiatives/children-with-disability-a-relinquishment
3
http://www.humanrightscommission.vic.gov.au/index.php/our-resources-andpublications/reports/item/184-held-back-the-experiences-of-students-with-disabilities-in-victorian-schoolssep-2012
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children in schools from these practices, the Department of Education and Training
have not acted. Both VEOHRC and the Office of the Public Advocate have
recommended that the Department of Education and Training prohibit the seclusion
of students with disabilities – VEOHRC in the aforementioned report4 and the Office
of the Public Advocate through a position paper5. The Department Of Education and
Training have not prohibited seclusion.
The Department of Education and Training continue not to alter its Restraint Policy in
response to recommendations from VEOHRC6. These are simply a few of the many
examples of Australia through it States not complying with its international
obligations.
H. BARRIERS TO REPORTING VIOLENCE AND ABUSE.
1.
A means to communicate complaints of abuse
One of the major barriers to an individual being able to report abuse is not
having a functional means to communicate.
Communication Rights receives many of our referrals from concerned citizens (staff,
family, and friends) who witness the abuse of individuals and are concerned that the
individuals are unable to either communicate their concerns or take action against
the offending person. Many of these individuals are already vulnerable and
marginalised as they have no functional means to communicate or have regular
contact with people able to support them to take action.
The ability to communicate affects the most fundamental aspects of a person's life.
Education, socialisation, decision-making, safety, employment and personal
relationships are unattainable at worst or exceedingly difficult at best if one cannot
communicate. The most basic human rights as set out in legislation such as the
Convention on the Rights of the Child, Convention on the Rights of Persons with
Disabilities, and International Covenant on Civil and Political Rights uphold a
person’s rights to communicate.
The right of an individual in to communicate through augmentative and alternative
communication is not a priority for many services including DHHS, or in schools.
When Communication Rights have requested communication assessments for
individuals they have been advised that there is a 6 month waiting list or there is no
funding for such an assessment. DHHS demonstrates no obligation to provide this
basic right to people under their care.
4
‘Held Back’ p 124
‘Restrictive Interventions in School Settings’ March 2013
6
‘Held Back’ p 124
5
13
One would assume that all students would be given a means to communicate as part
of ensuring they can participate and have access to their education, but both
Communication Rights and DDLS have received reports that particularly for children
with moderate to severe disabilities, and those who are deaf, this is not the case.
Many students within Special Schools and Special Development Schools have no
functional means to communicate and hence no means to communicate a complaint.
While this also occurs in mainstream schools, special schools are less likely to
provide individualised programs as they have staff ratios of approximately 2 staff to 8
children, and therefore there is less opportunity for individual assistance. Special
Schools pride themselves on their "group learning" approach, where occupational
therapy and speech pathology is provided assistance through working with groups
(occasionally), regardless of individual needs. There is a dearth of best practice
communication plans in place for students with communication needs, and it is not
uncommon for a child with complex communication needs to not have received even
a language assessment.
There seems to be no base line requirement within the education sector for those
who attend schools or day programs to have a formal communication assessment, a
means to communicate, or a professional speech pathology/language plan. Further
if a child does have a means to communicate, there are no obligations for schools to
ensure the appropriate equipment is provided, staff are trained in the use of that
equipment, and the equipment is consistently used, other than that student’ s rights
under discrimination legislation.
People with disabilities should not have to litigate to communicate.
In the human service sector, most residential care is provided to adults with
intellectual disability and it is assumed that their communication has been solidified
at the school level. Neither accommodation nor adult day programs prioritise
communication and no longer have therapy on site.
Overall there is a nominal right to communicate but seemingly no obligation on any
school service provider to ensure that there is a means to communicate for many
people who have communication or speech difficulties within Australia. As a result
their capacity to complain about mistreatment, abuse and neglect is restricted.
Case Study 1:
A man who has severe cerebral palsy with no speech was physically assaulted by
his 1:1 support worker whilst out in the community. The support worker put the
wheelchair brakes on and hit the man on the head on multiple occasions, then
shunted the man’s chair backwards afterwards.
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Reports were made by the witness to transport police, and the support workers’
agency was notified of the incident. The agency asked the man’s aged parents if
they wanted anything done about what had occurred, or if they wanted an advocate.
The parents said they didn’t want anything done as they didn’t want to lose the
support hours as those hours provided respite for them. Due to a fear of losing that
respite, they did not want any action to be taken, despite what was clearly an
assault.
The man was not asked by the agency or his parents if he wanted an advocate or to
make a statement to the police, nor was he consulted about any of the decisions
made on his behalf, or given any opportunity to choose what he wanted to do about
the matter.
2.
Lack of appropriate supports available to people with communication or
speech difficulties when they want to make a complaint
Every quality service has a complaint process, but if an individual has no means to
communicate or access to the support required to make a complaint then the
process is redundant.
Too often family members are fearful of making a complaint on behalf of their child or
adult son/daughter because they fear retribution. For those who contacted advocacy
agency or disability legal service, they often relate stories of being bullied, labelled
as trouble makers and their access to the service in question restricted. These are
common experiences, related by parents of children with disabilities attending
kindergartens, through to primary and secondary schools, and later in day programs.
Case Study 2:
A young girl, ‘Judy’, who has Autism and ADHD, is attending a mainstream primary
school but spends her time isolated in an office setting with a teacher’s aide who has
no formal training. Judy is only allowed to attend school until lunch because of her
‘behaviour’. If Judy attempts to return to school after lunch, her parents are called to
collect her. There are times Judy becomes overwhelmed while at school and
attempts to leave the school grounds without permission. On these occasions the
school calls the police, without the agreement of the family. No ongoing evidencebased intensive psychological interventions have been provided in an effort to
15
address the preventative issues as to why Judy becomes overwhelmed in the school
situation.
The level of discrimination and lack of inclusion has caused diagnosed long term and
permanent psychological/medical illnesses to both Judy and her mother.
Judy's parents have attempted to negotiate with the school but have been labelled
as ‘trouble makers’, while staff have been told not to communicate directly with them
and all communication must go through the school Principal.
School Staff refuse to follow Judy’s Behaviour Management Plan and there has been
no training in her method of communication, resulting in a communication breakdown
between the student, parents and the school.
The above Case Study illustrates a foregone conclusion that by the time Judy leaves
school, she will have no competent communication method stop
3.
Access to independent support
There are 270,000 people within Victoria who have a communication or speech
difficulty7. Communication Rights conservatively estimate that 25% of those need to
access independent advocacy at some stage in their life. Communication Rights is
funded for 2.5 EFT staff which includes 1 advocate across Victoria and there is no
other similar service anywhere else in Australia. Research and experience confirms
the generalist advocacy sector do not have the skills or training to support individuals
with communication or speech difficulties and regularly refer clients to
Communication Rights for assistance.
The Disabilities Discrimination Legal Service is funded for 2.6 EFT staff covering the
state of Victoria to assist people with disabilities who wish to make complaints of
discrimination on the basis of disability.
It is the most empowered individual who seek support to exercise their rights. For
those who are not mobile within the community or are reliant on a staff member or
family to make contact with an advocate/lawyer when they are subjected to abuse,
they often are forced to remain in abusive and potentially unlawful situations.
7
Communication Rights Australia extrapolated from Speech Pathology Australia figures and
Australian Bureau of Statistics
http://www.abs.gov.au/ausstats/[email protected]/Lookup/by%20Subject/4429.0~2009~Main%20Features~Rates%20of%20Disability%20in%20A
ustralia~10023#End1
16
Case Study 3:
‘Karen’, a person with a disability who is non-verbal, lives in a DHHS Community
Residential Unit and had expressed to her friend that she was unhappy and afraid in
her home. She had been denied the right to speech/language therapy and the trial of
a functional communication device, along with the necessary equipment to enable
the trial to take place.
Communication Rights advocated on behalf of Karen, lodging a complaint to the
Office of the Disability Service Commissioner (ODSC) in regard to the denial of
access to therapy and the opportunity to explore a functional means to
communicate. After 8 months of advocating on Karen's behalf, working with the
ODSC and liaising with DHHS, ODSC closed the case despite Karen's concerns
being only partially resolved. As a result she became further isolated when she
didn’t receive the speech/language therapy she requested which resulted in
depression and a deterioration in her health as a result.
The ODSC were once again approached by our advocate to ensure DHHS adhered
to the ‘partial agreement’. The ODSC were unsuccessful negotiating with DHHS.
ODSC closed the case because it could not be conciliated. As OSDC have no
powers, the matter ended there.
4.
Lack of research available and data collection on vulnerable and marginalised
members
Speech Pathology Australia believes their research underestimates the exact
number of individuals in Australian with communication or speech. Communication
and speech difficulties are frequently cited as being secondary to other impairments/
disabilities. For example, an individual with a progressive neurological condition may
be considered as having a “long term health condition” as their primary disability.
However, it is likely that individual will also experience communication or speech
difficulties which impact on their daily living experiences. An individual with
movement and mobility difficulties may also be considered to have “restriction in
physical activities, etc.” as their primary disability. They, too, may have
communication or speech difficulties which greatly impact on their activities and
lifestyle.
Speech Pathology Australia has completed some research in the area of
demographics but as yet there is a limited understanding as to how speech loss
impacts on an individual exercising their rights and the required supports they need
for effective inclusion. Further we need a greater appreciation on how having no
functional means to communicate impacts on the individual’s socialisation, isolation,
marginalisation and vulnerability in a range of settings.
17
Communication Rights has collected data on the human rights infringements
experienced by people since 2008 but those figures are limited to representing only
those who are most empowered to contact the service. It is therefore essential for
more research on how to plan, support and include people with communication or
speech difficulties into the mainstream community, particularly under the NDIS.
5.
The Role of Advocates – non legal
The role of an advocate at Communication Rights Australia is to facilitate and
remove barriers within the community so that the individual requesting advocacy can
exercise their rights. This may involve advocating for an individual to have a method
of communication so they can make a complaint. The role of the advocate is to
ensure the system respects the right of the individual despite any challenges posed
through communication disability.
Areas covered are extensive - from funding, access to justice, education, health,
housing and being included within the community. There are a range of tools
advocates use to ensure the individual’s voice is heard in situations, tools developed
over the 30 years the service has existed.
There are a limited number of independent disability advocacy agencies in Victoria,
each with a limited number of staff.
Advocacy is most successful when dealing with a "benign" school/service provider,
which demonstrates an equal interest in upholding a person's human rights.
However when abuse is raised, many schools/service providers have a primary
interest in protecting their staff, and therefore advocacy is more difficult. It is clear
that comfort is gained from organisations knowing that there are no statutory
authorities that have the power to direct them
Case Study 5:
Two men with profound disabilities, including physical, vision and hearing
impairments and no speech (extremely marginalised and extremely vulnerable), had
been living together in State care all of their lives and were currently in a DHHS
community residential unit where they had been long standing victims of violence
and abuse by a co-resident. The co-resident was attacking the men physically,
scratching them until they bled, intimidating them verbally and punching. The men
were left to try to protect themselves.
Despite the family members and friends of the residents reporting the abuse to
DHHS accommodation staff, (DHHS staff and management already being aware),
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Office of the Public Advocate Community Visitors frequenting the house, the actions
of the co-resident and the house dynamics were considered normal by all staff. The
violence and abuse was not reported, very minimal notes were taken, and incident
reports made were not actioned upon.
The advocate took out an Intervention Order to protect the two clients and
immediately DHHS moved the offending client to another residence. Of note is that
this was a proper response prior to advocacy, however DHHS were not interested in
protecting the two residents.
6.
The Role of Advocates – legal
Community Legal Centres whose expertise lies in working with people with
disabilities are few and far between. In addition, those Centres are funded by
Government to undertake very specific activities.
For example, the DDLS is only funded to assist people with disabilities make claims
of discrimination through the Equal Opportunity Act 2010 or the Disability
Discrimination Act 1992. Discrimination legislation is rigid in its application and
cannot assist people with disabilities who generally have complaints of violence,
abuse or neglect.
It is the Victoria Police which is the appropriate body to be dealing with crimes
against the person. However reports reflect that people with disabilities are not
receiving the assistance they need through Victoria Police in the reporting of crime.8
Therefore, there is a substantial gap and in the ability of the legal system to respond
adequately to crimes against people with disabilities.
J.
IDENTIFYING THE SYSTEMIC WORKFORCE ISSUES CONTRIBUTING TO
THE VIOLENCE, ABUSE AND NEGLECT OF PEOPLE WITH DISABILITY
AND HOW THESE CAN BE ADDRESSED
1.
General Workforce Issues
A lack of understanding of human rights impacts on the ability of the workforce to
understand that all individuals have rights regardless of disability. The pressures of
resource constraints impacts on the ability of staff to think outside the box as to how
to support an individual to access their rights.
8
Beyond Doubt-Experiences of People with Disabilities Reporting Crime 2014 in an
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Attitudes of staff still remains a huge barrier for people who have no functional
means to communicate accessing their rights.
It is the lack of a basic understanding of human rights that leads service
providers/teachers/aides to believe it is appropriate to, for example, lock people with
disabilities in indoor or outdoor areas, and treat them with violence.
Service providers, no matter how complex the disabilities are of their clients, rarely
require any qualification to work with such clients.
There are no tests for aptitude, attitude, or skill. "On the job training" is the most
common form of training provided to care workers. When the expectations of skill are
set so low, it is no surprise that as a consequence, people such as backpackers can
obtain work with people with disabilities and formal positions.
There are no consistent national checks for working with vulnerable people.
Most teachers who work in Special Schools are not Special Education Teachers.
Integration Aides who work with children with disabilities in schools require no
qualifications in disability or even a minimum level of an education. Given the very
public criticisms over the last decade made of teachers and the training and skills
they have to teach basic subjects such as English and Mathematics, it is completely
unrealistic and to also spec them to have expertise (as opposed to "experience") in
the successful inclusion of children with disabilities. This is relevant to the abuse of
students with disabilities in schools as most nonsexual abuse is in the form of
physical restraint and seclusion.
Considering the variety of disabilities that exist, the co morbidities of disabilities in a
student with a disability, the complex nature of cognitive disabilities, it is unsurprising
firstly that challenging behaviours become an issue, and secondly that they are dealt
with through violent means.
Until schools and service providers require a higher level of skill and qualification in
their staff, incompetent handling of people with disabilities will continue to lead to
situations where abuse and neglect thrive.
These issues are not only resource issues, as funding is required to ensure
appropriate wages are paid to those who have the requisite skills, but it is also an
issue for senior management, who need to readjust their own attitudes and come to
the realisation that people with disabilities deserve skilled care.
2.
Opportunities/Challenges arising under the NDIS
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One of the major challenges arising under the NDIS is the lack of understanding
currently demonstrated of the needs of people with communication or speech
difficulties. Processes have been designed for those who have speech or have the
skills to access online services. There has been little recognition that for many
people with disabilities who are marginalised and vulnerable, these processes are
not accessible. When
Access to information should be accessible and available where the person
operates. People do not seek out information they are not aware exists. There is no
street access to NDIS for those people who require face-to-face contact to gain
information. People with communication or speech difficulties do not necessarily in
have a means to access online services.
A requirement for capacity building of the individual under the NDIA should have
targeted response to an ensure equity of access to the required information and
supports so all people who are eligible can access the process.
It is by building the capacity of people with disabilities that we are able to provide
them opportunities and confidence to report abuse and access support services.
Complaints services under the NDIS must be established, learning from current
inadequate complaints authorities.
E.
THE DIFFERENT LEGAL, REGULATORY, POLICY, GOVERNANCE AND
DATA COLLECTION FRAMEWORKS AND PRACTICES ACROSS THE
COMMONWEALTH, STATES AND TERRITORIES TO ADDRESS AND
PREVENT VIOLENCE, ABUSE AND NEGLECT AGAINST PEOPLE WITH
DISABILITY
Within Victoria there are a number of bodies established to accept complaints from
people with disabilities, yet their adequacy, response rate, competence, and powers
appear to be random and inconsistent.
1.
Department of Health And Human Services
DHHS has initial responsibility to support individuals to make complaints about their
own services, yet from our experiences it is DHHS staff themselves who regularly
block access to providing a means of communication for an individual to complain
either due to incompetent service provision, and alleged lack of funding, or refusal to
allow training of staff in a person’s method of communication. Such omissions
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should be seen as a failure of DHHS obligations both under their own policies and
human rights legislation.
Incident reporting (IR) of abuse to DHHS is not actioned or responded to urgently
unless there is an external body lobbying for action. Despite DHHS having a fully
documented process for such incidents, advocates have found that their response is
extremely slow, leaving individuals who have been a victim of a crime fearful as to
their future and safety. Their conflict of interest in investigating complaints is evident.
Client to client abuse is another problem area complicated by the shortage of
available housing, leaving services loath to move or separate clients. For people
who have no functional means to communicate, those people are left fearful in situ
my complaint is being investigated. Advocates in these situations will attempt to take
out a Personal Safety Invention Order to pressure DHHS to respond to safety needs
of the individual. This is not a satisfactory method of response. Courts may not
approve such an Order which then leaves the individual in the unsafe environment.
DHHS staff themselves often see no issue with such an unsatisfactory and at times
dangerous, situation.
2. Legal System
Without the ability to speak on their own behalf, people with disabilities cannot give
direction to legal representatives who are then loath to take on their case.
Magistrates and Judges are unwilling to hear directly from advocates when they
believe that an individual cannot communicate independently.
Therefore, all the "system" needs to do is to ensure a person receives no
communication training through school and adult service provision, and the
limitations on the rest of their life are permanent. More concerning, schools and
service providers who are subjecting children and adults with disabilities to abuse
are also those charged with ensuring they can report such abuse. It may be seen by
some individuals as a benefit that people with disabilities are unable to
communicate.
Communication Rights Australia has set up a scheme of Independent
Communication Support Workers for people with communication or speech
difficulties similar to that enjoyed by people who are Deaf through the provision of
Auslan interpreters. Unfortunately independent communication support is not a
recognised funded service and is reliant on the goodwill of individuals to work in this
role.
The United Kingdom has developed a scheme of ‘Intermediaries’ in the criminal
justice system to support the communication of vulnerable witnesses and
defendants. South Australia acknowledges this need through their Justice Action
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Plan and ‘Supporting Vulnerable Witnesses in the Giving of Evidence’9 however
there is no consistent rights to those supports across all jurisdictions in each state.
Equal Before the Law: Towards Disability Justice Strategies was published by the
Australian Human Rights Commission in 2014. The report acknowledges the
inequity present when people with disabilities are dealing with the justice system.
Access to justice in the criminal justice system for people with disabilities who need
communication supports or who have complex and multiple support needs is a
significant problem in every jurisdiction in Australia. Whether a person with a
disability is the victim of a crime, accused of a crime, or a witness, they are at an
increased risk of being disrespected, disbelieved and of not enjoying equality before
the law’.10
3. Office of the Disability Services Commission ("ODSC")
The Office of the Disability Services Commission was established to respond to
complaints about Victorian disability services, including disability services provided
by the Department of Health and Human Services. It is a statutory body that
provides a free and confidential service. Feedback from the advocacy sector, people
with disabilities and our own experience suggests that the ODSC is not effective.
Complaints need to be made online, in certain formats, or enquires made by
telephone. This is problematic for people who have communication or speech
difficulties, who often do not use the phone system and often (60%) have no online
access11. In our experience there is limited opportunity for face-to-face contact and
a process which leaves the service inaccessible for some people. The criteria the
ODSC use to decide whether to investigate is unclear, except the knowledge that
there have been no investigations for approximately 4 years. Given the level of
abuse from service providers, this is unacceptable. The disability advocacy sector
has generally reported difficulties when relying on the ODSC to solve complaints,
with some choosing not to rely upon them at all.
Case Study 4:
‘Sean’ is a 25 year old man who has no speech and was physically abused by his
primary carer in his residence. The day following the abuse, Sean reported the
abuse to his day centre staff, however when the staff lodged an incident report to
DHHS his primary carer stopped him accessing the Community Centre that he
9
Attorney-General Department, An Initiative of the Disability Justice Plan 2014 -2016
Equal before the law - TOWARDS DISABILITY JUSTICE STRATEGIES FEBRUARY 2014,
Australian Human Rights Commission 2014
11 Owen, J; Lamb, K; Smith, G; Telecommunication Needs of People with Communication/Speech
Difficulties, Deakin University (1998).
10
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normally attends 5 days a week. When the advocate contacted Sean at home, she
was told that Sean had been instructed by his carer to avoid all contact with the day
centre and was told he had to stay at home alone.
Despite the Community Centre lodging a Category 1 incident report to DHHS and
reporting the abuse to the police, DHHS made no contact with the Centre and took
no action to support Sean in any way. The advocate and Centre attempted to
negotiate with his carer, but contacted DHHS when Sean failed to return to his
placement the following day and weeks. DHHS took no action.
The advocate lodged two complaints with the ODSC regarding the lack of response
by DHHS to the abuse, and a second complaint that Sean had no functional means
to communicate to make a complaint to the police.
- The second complaint was open for over 1 year and the ODSC closed it when an
Action Plan was developed by DHHS to complete an assessment. DHHS did not
abide by the agreement and Sean did not receive a communication assessment.
- The ODSC were informed the agreement was not adhered to and there was no
further action taken to resolve the breaches of Sean’s right to communicate and to
receive services.
After 2.5 years ODSC has taken no action to support Sean to have access to a
functional communication so that he can access the justice system. The case
continues.
As all parties are aware that ODSC have no powers, it is unlikely it will resolve.
4.
Office of the Public Advocate
It should be acknowledged that despite admitted substantial knowledge of the
systemic abuse of people with disabilities in state care, that are the Office of the
Public Advocate have been unable to significantly impact on that abuse.
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RECOMMENDATIONS
Recommendation1:
A commitment by government to compulsory formal speech pathology/language
assessments every two years for people with disabilities who have complex
communication needs throughout their schooling. Such assessments should be
accompanied by speech pathology/language programs which have measurable
outcomes and are monitored and evaluated every term.
Recommendation 2:
A commitment by government to fund all communication devices necessary
throughout the life of a person with a disability who has complex communication
needs, and ongoing training for staff to work with that person.
Recommendation 3:
The funding of Communication Support Workers to enable people with complex
communication needs to use such workers to communicate to independent bodies,
modelled on the funding for Auslan Interpreters available to the Deaf Community.
Intermediary services available to people with disabilities in the United Kingdom for
legal matters could inform this model.
Recommendation 4:
Counselling services for victims of crime receive training to work with people who
have complex disabilities, communication or speech difficulties.
Recommendation 5:
Resources allocated to research best practice strategies to protect the rights of
people who are vulnerable, marginalised and isolated.
Recommendation 6:
Governments to commit to upholding the rights of people with disabilities by ensuring
complaints handling processes are independent of service provision and government
influence.
Recommendation 7:
Governments commit to the adequate funding of independent advocacy
organisations and community capacity building programs to assist individuals who
are isolated, marginalised and vulnerable.
Recommendation 8:
A national registration to be established to register and monitor staff who have
undertaken the highest level of scrutiny, and as a consequence are permitted to
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work with vulnerable and marginalised people. Such a system should also include
international criminal checks when necessary.
Recommendation 9:
In Victoria, the dismantling of the Office of the Disability Services Commissioner and
replacement with an independent statutory authority that has powers to investigate
and direct.
Recommendation 10:
The widespread adoption of the South Australian Attorney-General’s Department
Guidelines of ‘Supporting vulnerable witnesses in the giving of evidence’ throughout
Australia as best practice.
Recommendation 11:
Increased funding (as per the recommendations of the Productivity Commission) for
specialised disability Community Legal Centres.
Recommendation 12:
Minimum qualifications required for those working with people with disabilities across
all areas of education and service provision.
Recommendation 13:
Independent Schools Commissioner established with powers to investigate and
direct.
Recommendation 14:
All government schools require to prohibit the seclusion of students with disabilities.
Recommendation 15:
Regulation of all restrictive practices in schools (Victoria only) through the Office of
Professional Practice.
Recommendation 16:
Office of Professional Practice given statutory independence and removed from the
Department Of Health and Human Services.
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