Independent Oversight - Volume 11

Adult safeguarding

The DRC recommendation

States and territories should each:

a) introduce legislation to establish nationally consistent adult safeguarding functions, including:

• definitions of ‘adult with disability’, ‘violence’, ‘abuse’, ‘neglect’, and ‘exploitation’
• at a minimum, the principles, functions and powers outlined in Table 11.1.1
• data collection and public reporting, including demographic data (for example, relating to First Nations, culturally and linguistically diverse, and LGBTIQA+ people with disability)
• a mechanism to review the legislation after a reasonable period to examine its efficacy.

b) ensure adult safeguarding functions are operated by adequately resourced independent statutory bodies

c) develop a National Adult Safeguarding Framework led by the appointed adult safeguarding bodies

d) consider whether to co-locate the adult safeguarding function with the ‘one-stop shop’ independent complaint reporting, referral and support mechanism (see Recommendation 11.3).

Why we support pending design of arrangements

Regarding (d), if the ‘one-stop-shop’ independent complaint mechanism is co-located with the statutory adult safeguarding body, a separate oversight arrangement should be created to ensure the statutory adult safeguarding body can be subject to independent scrutiny, for example through an Ombudsman-type arrangement. 

Additionally, the National Adult Safeguarding Framework should include recognition of the importance of natural and informal safeguards and provide the foundation for investments in initiatives to support their development.

The DRC recommendation

The Australian Government should incorporate the National Adult Safeguarding Framework proposed in Recommendation 11.1 into the Safety Targeted Action Plan within Australia’s Disability Strategy or another suitable authorising document.

Complaints

The DRC recommendation

States and territories should each establish or maintain an independent ‘one-stop shop’ complaint reporting, referral and support mechanism to receive reports of violence, abuse, neglect and exploitation of people with disability. This mechanism should perform the following functions:

a) receive complaints or reports from anyone concerned about violence, abuse, neglect and exploitation involving a person with disability in any setting

b) provide advice and information to people with disability, representative organisations and other interested parties about appropriate reporting options

c) with a person’s consent:

• make warm referrals to appropriate complaints bodies
• make warm referrals to advocacy and other services who can support them in the complaint process

d) refer ‘third party’ reports to police, including anonymous reports

e) collect, analyse and publicly report annual data on complaints and reports received and on referrals.

The mechanism should be co-designed with people with disability to ensure entry points are accessible to and effective for people with a range of abilities, language and communication needs.

The mechanism should be placed, if possible, within an existing independent organisation which has appropriate expertise and relationships with services to perform its functions.

The DRC recommendation

The Australian Government should work with states and territories to establish a national 1800 number, website and other accessible reporting tools to direct people to the independent complaint and referral mechanism in their state or territory.

The DRC recommendation

The Commonwealth Ombudsman should lead a co-design process with the NDIS Quality and Safeguards Commission, state and territory ombudsmen and other bodies with complaint handling and investigation expertise, to develop guidelines for organisations on implementing complaint handling systems that are accessible and responsive to people with disability. The guidelines should reflect the ten core components:

• creating a rights-focused complaints culture
• encouraging people with disability and others to speak up
• making adjustments to enable participation
• supporting the person with disability, their family and others in complaint processes
• respecting complexity, diversity and cultural difference
• providing clear information about how to complain and multiple pathways to complain
• working respectfully and effectively alongside police
• conducting safe and inclusive investigations that are trauma-informed
• providing tailored outcomes and redress
• using complaints data to drive continuous improvement in service provision and complaint handling.

Why we are concerned about this recommendation

The proposed co-design process should also include people with diverse disabilities.

The DRC recommendation

The Australian Government should revisit the Australian Human Rights Commission’s recommendation and introduce legislation enshrining the key provisions of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) and facilitate the national coordination of Australia's OPCAT response.

The DRC recommendation

The Australian Government and state and territory governments should:

a) agree to provide resources to enable National Preventive Mechanism bodies in all jurisdictions to fulfil the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’s core functions, including the ‘preventive package’

b) enact legislation incorporating a broader definition of ‘places of detention’ to enable all places where people with disability may be deprived of their liberty to be monitored by National Preventive Mechanism bodies.

The DRC recommendation

All state and territory governments should introduce legislation to establish the functions of their National Preventive Mechanism bodies and facilitate inspections by the United Nations Subcommittee on the Prevention of Torture.

The DRC recommendation

The governments of New South Wales, Victoria and Queensland should designate National Preventive Mechanism bodies in their jurisdictions.

The DRC recommendation

The Commonwealth Ombudsman should:

a) ensure the OPCAT Advisory Group includes people with disability

b) lead work with the National Preventive Mechanism Network to:

• develop a consistent methodology for determining National Preventive Mechanism inspection priorities
• implement a coordinated approach to prioritising inspections of places of detention that pose a high risk to people with disability, focusing on particular practices affecting people with disability across detention settings
• develop and adopt common disability inspection standards for use in all jurisdictions
• commit to nationally consistent collection and reporting of data about monitoring places of detention.

The DRC recommendation

National Preventive Mechanism (NPM) bodies in all Australian jurisdictions should implement their functions in a disability-inclusive way by:

• enabling people with disability in places of detention to share information and experiences with the NPM using a variety of communication forms
• ensuring staff participate in ongoing education and training about the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, human rights and issues affecting people with disability in places of detention
• ensuring staff conducting NPM inspections have the skills and experience to provide reasonable adjustments, communication supports and supported decision-making to people with disability when required
• involving people with disability in the inspection of places of detention
• collecting and publishing data about people with disability in places of detention, aligned with disability inspection standards.

Community visitor schemes

The DRC recommendation

States and territories should:

a) urgently implement community visitor schemes (CVS) for people with disability, if they have not done so already

b) ensure CVS are resourced to conduct frequent visits to individuals who may be at elevated risk of abuse or harm

c) agree to make CVS nationally consistent regarding people with disability, including in relation to:

• the scope of schemes (who community visitors should visit)
• powers to visit people with disability, inspect records and provide information to other relevant bodies
• common monitoring standards
• the type of data that CVS should capture and report on

d) as a priority, define the scope of CVS with reference to:

• ‘visitable services’
• mechanisms for identifying factors that may place a person with disability at increased risk of violence, abuse, neglect or exploitation

e) ensure CVS legislation enables relevant information to be shared between CVS, the NDIS

The DRC recommendation

a) The Commonwealth should amend the National Disability Insurance Scheme Act 2013 (Cth) to formally recognise community visitor schemes (CVS) as a safeguard for people with disability and provide the authorising environment for information-sharing between the NDIS Quality and Safeguards Commission (NDIS Commission) and CVS.

b) The Australian Government should:

• enter into a national agreement with states and territories that commits CVS and the NDIS Commission to:
  • sharing relevant information to effectively exercise their respective functions
  • developing common standards for guiding the work of CVS relating to people with disability.
• update the NDIS Quality and Safeguarding Framework to formally recognise the important safeguarding role played by CVS.

Death review schemes

The DRC recommendation

States and territories should establish and appropriately resource disability death review schemes. These schemes should include:

a) functions to:

• receive, assess and record ‘reviewable deaths’ of people with disability, as defined in recommendation 11.15
• monitor and review reviewable deaths
• formulate recommendations about policies and practices to prevent or reduce reviewable deaths
• maintain a register of reviewable deaths
• formulate strategies to reduce or remove potentially avoidable risk factors for reviewable deaths
• establish and support the work of an expert advisory committee

b) powers to:

• scrutinise systems for reporting reviewable deaths
• undertake detailed reviews of information relating to reviewable deaths
• conduct own motion investigations into individual or groups of deaths
• analyse data on the causes of reviewable deaths to identify patterns and trends
• consult with, and obtain information from, any person or body with relevant information or appropriate expertise
• invite and consider information from the deceased person’s family or guardian or advocate when reviewing and/or investigating a death
• notify the NDIS Quality and Safeguards Commission of matters relevant to the exercise of its functions
• refer identified concerns about conduct or service provision to relevant regulatory bodies for their consideration and appropriate action
• publish reports periodically on systemic findings and recommendations arising from all reviewable deaths
• make a special report to the relevant state or territory parliament about any matter that the scheme operator considers to be in the public interest.

The DRC recommendation

States and territories should ensure legislation establishing disability death review schemes:

a) defines ‘reviewable deaths’ to include:

• deaths subject to mandatory notification
• deaths that a person or body with legitimate interest requests a scheme to review

b) requires deaths that are subject to a mandatory notification requirement include the death of a person with disability:

• living in supported accommodation at the time of their death
• residing in a licensed boarding house (or equivalent) at the time of their death
• residing in custody or in an acute health facility at the time of their death (after the disability death review scheme has operated for a period).

The DRC recommendation

The Australian Government and state and territory governments should enter into a national agreement that:

a) reflects the functions, powers and definitions outlined in recommendations 11.14 and 11.15

b) defines the respective roles of state and territory death review schemes and the NDIS Quality and Safeguards Commission (NDIS Commission) in relation to the deaths of people with disability

c) articulates the relationship between the functions of the disability death review schemes and the NDIS Commission and ensures the appropriate operational processes are in place to facilitate this

d) provides for information sharing between the death review schemes and the NDIS Commission

e) commits to nationally consistent disability death data collection and reporting requirements, and the inclusion of disability death data within the proposed National Disability Data Asset.

Reportable conduct

The DRC recommendation

States and territories should:

a) establish reportable conduct schemes, where not already in place, in accordance with Recommendation 7.9 of the Royal Commission into Institutional Responses to Child Sexual Abuse and make public their intended timeframe for doing so

b) take action to harmonise their reportable conduct schemes

c) introduce or amend existing legislation to:

• ensure disability service providers that deliver supports or services to children with disability, including NDIS providers, are included in their reportable conduct scheme
• include ‘ill-treatment’ in the definition of reportable conduct
• enable reportable conduct scheme operators to adopt a common definition of disability
• require reportable conduct scheme operators to collect and publicly report consistent data about reportable conduct notifications and outcomes relating to children with disability.

The DRC recommendation

State and territory reportable conduct scheme operators and the NDIS Quality and Safeguards Commission should:

a) jointly develop guiding principles to support the efficient and effective handling of reportable incidents that are also allegations of reportable conduct

b) develop broadly consistent guidance material to assist organisations to better understand key issues relevant to notifying, managing and investigating allegations of reportable conduct and incidents involving children with disability.