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:
Ph:9555-8552
Web:
Ms Julie Phillips
Manager
Disability Discrimination Legal Service
247-251 Flinders Lane
Melbourne VIC 3000
Ph: 9654-8644
Email: /
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
Office of the Public Advocate …………………………………………….24
Recommendations…………………………………………………………….. …25
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 Australians[1]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 Servicehave 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”).
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.
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 practicesof, and conflicts of interestpresent demonstrated by, bodies established to investigate and prevent abuse. In
i)The insufficient numbers of independent disability advocacy organisations andthe 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;
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.
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 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 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)refuse restrictive practices;
b)be told about restrictive practices used on their child in schools;
c)attend Student Support Group meetings;
d)agree with or have input into Individual Education Plans;
e)agree with or have input into a Behaviour Plan;
f)request the intervention of psychologists or other experts who have the ability to address challenging behaviours;
g)insist that their child has a formal language assessments;
h)insist that their child has a formal communication method and that staff must be trained in that method;
i)insist that staffing levels must be adequate to support their child;
j)in some schools, enter the school buildings;
k)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).
3.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 long-term 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.
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.
F.Australia’s failure to comply with its international obligations as they apply to people with disabilities
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 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.