Why NSW needs a new public advocate to protect vulnerable adults from their families

By Stephen Easton

November 9, 2018

New South Wales needs a new public advocate for vulnerable adults in place by next July, ombudsman Michael Barnes has warned, after compiling over 200 cases of neglect and abuse committed mainly by family members over the past few years.

Barnes’ team has been handling these reports on a temporary basis for two years while also calling for a new permanent authority to handle these cases, which fall below “a criminal threshold” although they often involve severe abuse of human rights, as illustrated in a new special report from the ombudsman’s office.

Its advocacy on the issue has contributed to several national and state bodies that have agreed there is a clear gap in the system: a NSW upper house committee in June 2016, the Australian Law Reform Commission a year later, and the NSW Law Reform Commission in August this year.

The government’s initial response to last week’s report was the Minister for Disability Services Ray Williams asking the Department of Family and Community Services to provide advice on the matter as soon as possible.

Steve Kinmond, a deputy ombudsman and the NSW community and disability services commissioner, has been advocating for the change for years. The key point is this is not about more oversight of aged care or disability service providers, which is covered by federal and state bodies.

“What we’re talking about is just poor treatment of human beings by other human beings, and sadly, by their family members,” he told The Mandarin.

It’s a pretty well established model that exists in several other states, and Kinmond says he can’t see any impediment to the government getting on with catching up. “The actual expense would be relatively modest, and the return in terms of human rights would be very, very good.”

In the report, Barnes notes that NSW “led the way” with its notifiable incidents scheme that began overseeing formal disability service providers in late 2014. He argues it is “unacceptable” for NSW not to have a specific authority to respond to the “horrendous abuse occurring in family homes and other community settings” as well.

Barnes’ office, and Kinmond’s team in particular, had a permanent role handling “reportable incidents” like assaults, abuse and neglect of people with disabilities under the notifiable incidents scheme, but only if they occurred in group accommodation. The National Disability Insurance Scheme Quality and Safeguards Commission now has that role.

By August 2015, it started to become clear there was a gap in the system. Disability service providers were also providing disturbing reports of serious mistreatment in family homes and other community settings, even though they did not count as reportable incidents under the scheme.

The number of these reports kept growing along with the seriousness of the allegations and in mid-2016, the ombudsman’s office began a standing inquiry to coordinate responses from government agencies. But this is only a temporary stop-gap measure that ends on July 1, 2019, hence the deadline for a permanent solution.

One pivotal moment was a public forum two years ago for people with disability and their supporters, service providers, government agencies and others, which is recorded in a series of videos.

Over $400 million in federal funding for the Royal Commission into institutional child abuse was “money well spent” in Kinmond’s view, but he points out it is well known that most child abuse takes place outside of institutional settings, in private residences behind closed doors, and this is recognised in the child protection system, and its oversight mechanisms.

“In the same way, some of the most horrendous forms of abuse of vulnerable adults, takes place outside of the context of service providers,” he adds.

Community services see the signs of abuse

The shift from the old-fashioned institutional model of care for adults that need assistance to more socially inclusive community-based care began decades ago, related to the emergence of more enlightened ideas like the social model of disability, but there are typically gaps remaining. The NDIS and the continual move to community-based aged care are both influenced by this positive trend.

But there’s also a pattern of governments around the world disengaging too much, or rethinking their role too little, leaving gaps in service provision as well as in safeguards for vulnerable people.

The NDIS Quality and Safeguards Commission won’t fill the gap in NSW as it is another body that only looks at abuse by service providers. There is a connection to the community services sector, however. Kinmond points out it is mostly service providers who witness the signs of abuse and ill-treatment by family members. Like other forms of domestic abuse, it is difficult in practice for police to investigate.

“They’ll still continue to see this abuse and they need a port of call to bring their concerns to,” the deputy ombudsman says.”They need advice within the state, because it’s the state that’s got responsibility for these issues, and who’s going to be able to respond to these serious abuse and ill-treatment matters.”

Informal carers spent 1.9 billion hours looking after people across Australia in 2015, according to an estimate by Deloitte Access Economics. There is no question this can be a near-impossible role to play, especially if one is caring for someone with high care needs or challenging behaviour.

There are also a smaller group who are difficult to describe as carers, as they abuse, neglect and take advantage of vulnerable relatives in appalling ways, or allow others to do so. The ombudsman’s report details over 200 examples ranging from financial abuse to utterly inhuman abuse and neglect.

“And the tragedy is that sometimes in these cases, by the time you actually… end up with a brief, in relation to the person who’s abusing another person, you may well have a situation where the person has died,” says Kinmond.

Most of the reports were about mistreatement of people with some form of cognitive impairment, and over half were people with intellectual disabilities. Most of the offenders were family members, but some were from outside the family including a few former service-provider employees.

The ombudsman strongly supports the NSWLRC’s proposed model, from a recent review of the Guardianship Act, for a public advocate with range of powers to investigate incidents in response to complaints or on its own motion.

It would be able to:

  • apply for and execute search warrants;
  • intervene in court cases and administrative tribunal hearings;
  • require people and organisations to produce documents, answer questions, and attend compulsory conferences; and
  • refer allegations to similar agencies is other jurisdictions. It would have information sharing powers and “read-only access” to police and child protection databases.

Along with this are recommendations for other related legislative changes that might be needed to make sure the new public advocate fits into the system effectively, and that the government should consider establishing “a single independent community services oversight body” at some point. If there is any doubt about the need for such strong investigative powers, the report provides three horrific examples of the 206 cases:

“A young woman with intellectual and physical disability who is unable to verbally communicate and relies on a feeding tube for nutrition lives at home with her mother and her mother’s partner. The mother uses cable ties, a dog leash and sheets to tie the young woman to her wheelchair and bed. The mother terminated the services of a previous disability in-home support provider who made a report to police about her restraining the young woman and leaving her alone in the house for the evening while she went out.

“A man in his 20s with psychosocial disability is living with his father in accommodation that is filthy and infested with cockroaches to the extent that housing officers say is the worst they have seen. The man has not left the residence in over three years, and his father controls his medication and money, and blocks his access to services. The man is an NDIS participant, but his father only temporarily links him in with NDIS supports when external parties ask questions.

“A young man with intellectual disability lives at home with his parent. He shows signs of neglect, including poor hygiene, weight loss, and limited access to food. He has unexplained bruising, does not have access to medical treatment for his health issues, his parent has stopped him from seeing his psychiatrist, and he turns up to his day program in a sedated state. The young man does not have any access to his own money, and it is suspected he is exposed to domestic violence and drug use in the home.”

Top image by Vidhyaa Chandramohan.

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