Health & Community Law Alert: highlights from the Disability Royal Commission’s interim report

By Alison Choy Flannigan

The interim report of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, released on 30 October, covers the Commission’s work to 31 July 2020, including the evidence presented at three public hearings on education, group homes and healthcare for people with a cognitive disability.

The report says people with disability experience attitudinal, environmental, institutional and communication barriers to achieving inclusion within Australian society. It shows that a great deal needs to be done to ensure that the human rights of people with disability are respected and that Australia becomes a truly inclusive society.

To this end, Chair Ronald Sackville AO QC is expected to request a 17-month extension of time to present the Royal Commission’s final report, to 29 September 2023.

The Royal Commission has identified several emerging themes and issues that warrant further inquiry, including:

• choice and control – people with disability have the right to control their own lives, to make their own decisions and to exercise choice;
• attitudes towards disability – people with disability face negative and harmful attitudes, as well as assumptions about their quality of life and value to society;
• segregation and exclusion – historically people with disability have experienced segregation and social exclusion which produces stigma and discrimination;
• restrictive practices – restrictive practices have been used in educational, residential, health and detention settings;
• access to services and supports – people with disability have experienced barriers to services and supports;
• advocacy and representation – advocacy and representation enable people with disability to have their voices heard at all levels of society. There is a lack of advocacy services, including for First Nations people with disability and complex needs, and existing advocacy services are underfunded;
• oversight and complaints – people with disability have experienced difficulties in reporting and making complaints and, in some cases, have been punished for making complaints; and
• funding – inappropriate funding can cause disincentives, conflicts of interest and potentially poorer outcomes for people with disability.

Key issues include:

• education and training
• homes and living
• health care
• relationships
• community participation
• economic participation
• the NDIS; and
• the justice system.

The Royal Commission is interested in the divide between Supported Independent Living (SIL) and Specialist Disability Accommodation (SDA) in ensuring that people with disability have more choice and control over where and with whom they live. Further, the role of group homes in perpetuating violence, abuse, neglect and the exploitation of people with disability has been an area of ‘particular concern’.

The Royal Commission will continue to explore the experiences of people with disability in the workplace, including in open and segregated employment such as Australian Disability Enterprises (ADEs).

Education for people with disability

The Royal Commission selected the Queensland system, which had been the subject of a previous independent review – The Review of education for students with disability in Queensland state schools, commissioned by the Queensland Department of Education and Training and published in 2017. Following this review, the Queensland Department of Education implemented an inclusive education policy but allowing choice of enrolling their child, if they meet certain criteria, in individualised programs including special schools and academies.

There are several key drivers of abuse in education, including gatekeeping (schools refusing to enrol a child with disability), mistreatment by school staff and other students, insufficient training of the education workforce, insufficient time and resources available for education staff and insufficient support for teachers.

The role of group homes

The Royal Commission has explored whether group home models heighten the risk of violence, abuse, neglect or exploitation for people with disability.

A major issue that has emerged is the lack of choice for people with disability seeking accommodation or already residing in group homes, including choice of service providers. The Royal Commission heard evidence on the ‘one-size-fits-all’ model of service delivery that is frequently adopted by some group homes. This model is characterised by working practices that are ‘staff-centred’ rather than resident-centred.

The Royal Commission also heard evidence on the ‘punitive culture’ that is prevalent among staff and the casualisation of disability support workers and poor training of support workers.

The expert evidence at public hearings identified three factors that contribute to a poor culture in group homes. They include staff:

• regarding residents as ‘other’ and using derogatory terms to describe the people for whom they care;
• not accepting that their role extends beyond providing physical care to supporting people to live comfortably in their own home and participate in the community; and
• resisting new ideas and the influence of ‘outsiders’ in the conduct of the group home.

For example, rosters and activities are organised around the needs of support staff rather than those of the residents.

The result is often that residents have little or no choice about the food they can eat, when and where they eat, when they can go to the bathroom and when they have to go to or get out of bed.

Group homes appear to create a ‘closed environment’, whereby residents’ interactions are confined to service providers, other staff and co-residents. Evidence presented to the Royal Commission emphasised the importance of people with disability developing relationships with the wider community.

The interim report has listed several factors that will guide the Royal Commission’s future work in this area, including:

• Autonomy: Potential reforms of laws, policies and practices that will enable people with disability who reside in group homes to exercise their right to autonomy.
• Culture: Examining measures to improve the culture of accommodation providers and disability services.
• The qualifications and experience of support staff and incentives to reduce casualisation.
• Possible alternatives to the group home model.

Overall, the Royal Commission has found some correlation between group home models and the risk of abuse, neglect, violence or exploitation of people with disability:

‘The evidence indicates that some and perhaps many group homes do not provide the quality of life and protection from abuse residents have a right to expect.’^[1]

The Royal Commission will investigate how the safety of people with disability living in group homes or other supported accommodation can be enhanced.

The Royal Commission will examine whether there are alternatives to group homes for people with disability.

The Royal Commission proposes to investigate redress for people with disability who are subjected to violence, abuse, neglect or exploitation.

Employment and Day Services

The Commission heard evidence on the experiences of people with disability in both open and segregated workplaces, such as Australian Disability Enterprises (ADEs). ADEs are not for profit organisations providing supported employment opportunities to people with disability.

Activities undertaken by the Royal Commission to date have revealed several issues with ADEs.

‘We have … heard about the lack of meaningful work in ADEs and of poor workplace conditions, as well as of difficulties in transitioning to open employment.’^[2]

The Royal Commission also considered the provision of Day Services.

‘While some submissions have described the benefits of day programs, we have also heard that some people with disability do not have a meaningful say over how they access them.’^[3]

The experience of people with disability in the workplace has been identified as an area that requires further examination.

Healthcare and services for people with cognitive disability

The Royal Commission considered the question of whether there is systemic neglect of people with cognitive disability in the Australian health system.

The Royal Commission explored several key themes, including how communication, information sharing, attitudes, assumptions and culture are essential for quality health care.

It also heard evidence about the importance of preventative health care, dental health care, the transition from paediatric to adult health care and mental health care for people with cognitive disability.

Based on the evidence, the Royal Commission found there has been, and continues to be, systemic neglect of people with cognitive disability in the health system.

The Royal Commission will:

• examine the impact of attitudes, assumptions and culture, and how that impact can be reduced or eliminated.
• ask the Australian, state and territory government health departments to conduct reviews on several issues including:
  • investigate barriers to adequate health care for people with cognitive disability; and
  • consider how training and educating health professionals could result in better outcomes for people with disability, and request information from state and territory governments on health care initiatives directed towards people with cognitive disability.

Future directions

The Royal Commission will continue to examine the themes and issues that have emerged from its public hearings.

Other areas that warrant further inquiry include the experience of people with disability in the workplace and the provision and accessibility of support services.

The Royal Commission aims to enhance community engagement with the inquiry through community forums, which were suspended due to COVID-19. It is anticipated that community forums will resume in states and territories where the Royal Commission has not yet held face-to-face engagement activities. The Royal Commission also intends to hold more engagement activities in ‘closed environments’ such as group homes.

People with disability will be encouraged to participate in developing policies and practices through discussion papers. These discussion papers will explore the themes and issues identified in the public hearings conducted thus far.

The Royal Commission has announced the following future hearings on its website:

There have been several Royal Commission issue papers published, which are available on their website here.

This article was written with the assistance of Lauren Krejci, Paralegal.

[1] Interim Report | Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, p 247.

[2] p 29.

[3] p 374.