18 September 2019

Royal Commission into Disability Abuse – First Public Sitting

Health and community - Law Alert

Some important issues have been clarified at the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability’s first public sitting held in Brisbane on 16 September 2019. The Commissioners confirmed the scope, the key themes likely to direct the Commission’s initial inquiries, the next steps for the Commission in progressing its work, and how it will ensure people with disability can engage with the Commission.

First public sitting

The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Commission) held its first public sitting in Brisbane on Monday 16 September 2019.

The key information provided was:

  1. the Commission has defined the terms ‘violence and abuse’, ‘neglect’ and ‘exploitation’;
  2. the majority of submissions received so far were made by people with disability and their family members to raise concerns about housing, justice and health;
  3. the Commission’s first domains of inquiry are the experiences of people with disability in education and learning and homes and living; and
  4. most large disability services providers have received correspondence that Notices to Produce and/or Notices to Give Information will be issued shortly.

Scope and key themes of the Commission

The scope of the Commission is very broad. The Commission has provisionally defined the following key terms to focus their inquiry:

  • Violence and abuse include assault, sexual assault, constraints, restrictive practices (physical and chemical), forced treatments, forced interventions, humiliation and harassment, financial and economic abuse and significant violations of privacy and dignity on a systemic or individual basis.
  • Neglect includes physical and emotional neglect, passive neglect and wilful deprivation. Neglect can be a single significant incident or a systemic issue that involves depriving a person with disability of the basic necessities of life such as food, drink, shelter, access, mobility, clothing, education, medical care and treatment.
  • Exploitation means the improper use of another person or the improper use of or withholding of another person’s assets, labour, employment or resources including taking physical, sexual, financial or economic advantage.

Following discussions in community forums, First Nations workshops and legal consultation workshops, the Commission has developed a list of themes or domains of inquiry to guide its work being:

  • Homes and living
  • Relationships
  • Education and learning
  • Economic participation
  • Health
  • Justice
  • Individual autonomy
  • Self-determination and the dignity of risk
  • Community participation
  • Geographical challenges

These themes will continue to be refined as the inquiry progresses.

The Commission will first turn to the themes of education and learning and homes and living and seeks submissions on the use of restrictive practices, the exclusion of students with disability from education system, and issues arising from the types of housing available to people with disability, whether in an institutional setting, in the community, or otherwise.

The Commission expects to hold one or two public hearings on these two themes before the end of 2019.

Notices to Produce and Notices to Give Information

Last week the Commission wrote to the largest NDIS providers to confirm that it will begin issuing Notices to Produce and/or Notices to Give Information shortly. The Commission is likely to seek information dating back to mid-2012 including:

  • information about the types of services provided, the circumstances in which they are provided, and the number of people they are provided to;
  • complaints and/or notifications concerning violence, abuse, neglect or exploitation of people with disability;
  • documents recording the internal and/or external reporting of violence, abuse, neglect or exploitation of people with disability;
  • documents recording internal or external investigations and the results of any investigations; and
  • policies, processes and/or procedures, including those relating to the recruitment and training of staff, handling of complaints, and risk reporting.

Practice Guidelines on general guidance (including document production), legal professional privilege, witnesses and conduct of hearings have been published on the Commission’s website. A dedicated Practice Guideline on document production is being prepared.

If you receive a notice, you should seek legal advice and attend to it within the required timeframe, or if necessary, seek an extension. Failure to comply could result in two years’ imprisonment. Production should be limited to the scope of the notice, otherwise there could be a breach of privacy and confidentiality obligations.

In addition to the above penalties, a failure to comply with a notice may result in reputational damage to the organisation.

Implications for organisations providing disability services

With further notices likely to be issued, we recommend that NDIS providers (both registered and unregistered) begin gathering information on incidences of substandard care, complaints and claims in relation to violence, abuse, neglect and exploitation.

The Commission is interested in receiving information on the changes made by organisations in response to instances of and/or complaints of violence, abuse, neglect or exploitation of people with disability and the measures organisations have implemented to reduce their future incidence.

We suggest that disability services providers give serious consideration to how they can improve the quality of their services and examples of best practice and innovation. The Commission will look favourably on providers who are focused on improving the supports provided to people with disability.

Hall & Wilcox has deep and substantial experience working with clients in Royal Commissions and other Commissions of Inquiry. We have recently assisted a number of clients involved in the Aged Care Royal Commission, and have previously acted for clients in the Financial Services Royal Commission, Trade Union Royal Commission and Victorian Bushfires Royal Commission (among others).

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