From the Public Advocate, Dr Colleen Pearce AM
The purpose of the Office of the Public Advocate (OPA) is to promote and protect the rights and interests of people with disability and to work to eliminate abuse, neglect, and exploitation.
The COVID-19 pandemic has presented significant and unique challenges to the Victorian community. Those challenges have disproportionately impacted people with disability, highlighting the importance of the safeguarding role that OPA continues to play. OPA was pleased to see, and made submissions to, both the Disability and Aged Care Royal Commissions’ inquiries into the impact of the pandemic on people with a disability. The slow rollout of COVID-19 vaccination for people with disability has left some of the most clinically vulnerable people in our community unvaccinated. At the time of writing, many remain unvaccinated and there is a lack of information about the vaccine in accessible formats.
Impact of COVID-19 pandemic
The COVID-19 pandemic continued to impact on virtually all aspects of OPA’s work this year. Despite the operational challenges associated with the shift to remote working, my staff were able to meet this challenge. For much of the year, most staff worked from home with a small number of skeleton staff attending the office to enable OPA to continue its vital safeguarding role. They included IT staff, who provided the technological support required to enable others to work from home, and Advice Service staff, who received many calls relating to vulnerable people who were at the risk of neglect due to reduced or closed services.
Some 17 per cent of all requests for a medical treatment decision this year related to the COVID-19 vaccine. OPA developed a vaccine guideline and filmed an information session for health practitioners. These were publicised via the monthly newsletter, OPA Updates, and on the OPA website. In addition, a special form was developed for health practitioners requesting the Public Advocate to make a medical treatment decisions relating to administration of the COVID-19 vaccine.
The Guardianship and Administration Act 2019 requires guardians and investigators to have regard to a person’s will and preferences, so far as they can be ascertained. This represents a significant paradigm shift from the previous requirement to make decisions based on the ‘best interests’ of the represented person. Lockdown has presented guardians and investigators with considerable difficulties in ascertaining a person’s will and preferences.
Of particular concern has been the impact of the pandemic on prisoners with a diagnosed intellectual disability being able to access Corrections Independent Support Officers (CISOs) during Governors’ Disciplinary Hearings. This year CISOs attended 74 hearings for 106 charges supporting 63 clients at four prisons in Victoria – the lowest number of hearings attended since 2009 when the program started. COVID-19 was a contributing factor as Corrections Victoria needed to develop an IT system that allowed remote prison attendance for anyone requiring it, including CISOs.
Restrictions on face-to-face visiting for much of the year again provided significant challenges for OPA staff and volunteers seeking to safeguard vulnerable Victorians. While the technology and processes for remote visiting are now embedded in OPA’s day-to-day work and have proven to be more effective than initially expected, they cannot replicate the value of face-to-face interactions.
Some people with disability find it very difficult or impossible to communicate without being physically present with the person. Staff and volunteers also found it difficult to fully assess the environment the person was in and their interactions with co-residents and those looking after them.
With the rollout of the COVID-19 vaccine, I can only hope that, by next year, I will be able to report on how OPA is blending the benefits of the technological advances brought forward due to the pandemic with the necessary – and safe – human interactions that are so valuable to all of us.
The National Disability Insurance Scheme (NDIS) is a groundbreaking social reform and issues pertaining to it continue to have a significant impact on the work of the office and it is a key area of OPA’s systemic advocacy.
This year, there was a 23 per cent increase in NDIS-related enquiries to OPA’s Advice Service, including a 67 per cent increase in calls from support coordinators, who were often new to the role and regularly raised concerns about suspected or substantiated abuse, misuse of funds or fraud. Similarly, the NDIS has created a considerable administrative burden for guardians and for OPA’s legal team as many NDIS providers require a signed service deed. During the year, 2743 service deeds were completed, an increase of 86 per cent on last year.
Concerningly, some 15 per cent of all new guardianship orders this year were the result of there being no other less-restrictive option to make NDIS decisions for a person with disability. A consequence of this has been a change in the demographic profile of OPA guardianship clients, leading to an increase in the proportion of people with a mental illness or intellectual disability. This administrative use of guardianship is extremely concerning, and OPA is investigating less- restrictive ways in which people with a disability may be able to interact with the scheme, for example, by the use of a statement of support rather than a formal contract.
In addition to this, guardians are required to interact with many more people for each represented person who is eligible for the NDIS and are making more than twice as many decisions for NDIS matters (an average of 5.63) compared with non-NDIS matters (2.7). OPA has not been funded for this additional work.
Of particular concern is that OPA guardians are increasingly undertaking the role of case managers for NDIS clients, trying to source appropriate accommodation and services for people with complex needs in a market-based system when a provider advises they will no longer provide services – often because the represented person has exhausted their available NDIS funding. This has created an unsustainable workload for staff as OPA has not been funded to provide this level of intensive support.
Contributing to reform
The proposed introduction of independent assessments by the National Disability Insurance Agency (NDIA) was one of considerable concern.
OPA stood with the disability sector, publishing a position statement that the NDIA should reconsider. This proposal that was entirely at odds with the scheme’s promise of ‘choice and control’. OPA’s submission to the Joint Standing Committee on the NDIS voiced concerns that the assessments would discriminate against prospective participants with cognitive impairment and complex needs. As Public Advocate, I was very pleased when the agency announced that the policy would not be pursued.
Existing safeguarding agencies such as the NDIS Quality and Safeguards Commission are largely complaints-based. I appeared before the NDIS Inquiry into the commission, calling for it to be more assertive in its outreach and monitoring of issues rather than solely relying on a complaints- based system. OPA’s submission to the inquiry highlighted, among other things, the important safeguarding role played by Community Visitors.
Safeguarding the rights and interests of people with disability has been at the forefront of OPA's systemic advocacy work this year.
The transition of funding and regulation of most disability services to the Commonwealth with the introduction of the NDIS has made it increasingly difficult for the Victorian Government and agencies such as OPA to safeguard the rights of at-risk adults in Victoria. An increasingly complex web of regulatory agencies at state and federal level have responsibility for the regulation of disability and aged care services, with a growing number of people with a disability are falling between the gaps.
In 2020, OPA was tasked by the Victorian Government to undertake a review of Victoria’s current safeguarding laws and systems and provide options to address any gaps as part of its commitments under the National Plan to Respond to the Abuse of Older Australians. OPA’s confidential advice was provided to government in January. Following this, OPA hosted two national adult-safeguarding roundtables to promote work towards implementation of the plan in other Australian jurisdictions.
My office called for the adult safeguarding gaps to be addressed, among other things including advocacy funding, in submissions to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability.
The lack of suitable, stable and secure accommodation for people with a disability remains a concern. OPA’s submission to, and my appearance before, the Victorian Parliamentary Inquiry into Homelessness, raised the issue of the absence of a provider of last result resulting from the introduction of the NDIS. In the past, the state government filled this role for people with complex needs but now this cohort is at risk of homelessness (and potentially criminalisation) because of their disability.
OPA’s Independent Third Person Program plays a critical role supporting people with a disability during their earliest contact with the criminal justice system, providing a rare opportunity for early support and intervention. My office made a submission to the Victorian Law Reform Commission’s inquiry, Improving the Response of the Justice System to Sexual Offences, recommending legislating, expanding and adequately resourcing the program.
I was pleased to release a landmark report, Decision Time: Activating the rights of adults with cognitive disability, articulating, among other things, opportunities and challenges for law reform as a result of expanding use of supported decision-making. OPA has called for funding to develop supported decision-making practice in a number of submissions and has employed a Supported Decision-making Coordinator for a 12-month pilot period.
In line with a rights approach, OPA’s new website was launched this year. It meets the Victorian Government’s digital guidelines for AA accessibility under the international standard, WCAG 2.0. This includes minimal use of PDFs, a mobile-friendly design, and an accessible font.
My office has long held concerns about the lack of, or inadequate regulation of the use of, restrictive practices. The OPA submission to the Disability Royal Commission proposed an overarching framework for the regulation and monitoring of restrictive practices in the disability sector that could be extended to other social care settings such as health, in which the use of restrictive practices is common and, yet, there is currently no applicable framework. I was fortunate to be able to raise this topic at the launch of the Use of Force report by the Castan Centre for Human Rights Law, Monash University.
Given the disproportionate impact of the COVID-19 pandemic on people with a disability, OPA was pleased that the Disability Royal Commission undertook a public consultation to examine lessons for improving Australia’s emergency planning to better accommodate the needs of people with disability. OPA submitted to the consultation and recommended embedding participation and establishing communication pathways, as well as the creation of Scarce Allocation Resource Teams in preparation for a health system resource crisis.
OPA also made a submission to the Royal Commission into Aged Care Quality and Safety on the impact of the pandemic on the aged care sector. The submission focussed on the impact on OPA’s performance of its statutory roles, the impact on residents and their families and the ability to access services.
As I reflect on what has, by any measure, been an extraordinary and challenging year, I am reminded of the importance of humanity, and building community. The work of OPA is guided our values, particularly respect, compassion, and inclusiveness. Now, more than ever, we need to work together to foster connections and inclusion to promote belonging, purpose, and wellbeing.
I feel privileged to continue to work with our volunteers and staff and I thank them for their unwavering passion and commitment to make a positive difference to the lives of people with disability. Their willingness to go that extra mile to champion the rights and dignity of the most vulnerable in our community is both commendable and impressive.
I also wish to thank those that have worked with and supported the work of OPA throughout the year. I value your willingness to collaborate on key reform issues. With your assistance, OPA continues to be a powerful voice for a just and inclusive society that respects and promotes the dignity and human rights of all people including those with cognitive impairment or mental illness.