Office of the Public AdvocateSeptember 2024
Disclaimer: This discussion paper represents the current thinking and preliminary views of the Office of the Public Advocate. It is designed to promote discussion and accordingly the views of the Office of the Public Advocate may change in the future.
Contents
Preface by Dr Colleen Pearce, AM.
Manipulation, personal autonomy and vulnerability.
Targeted manipulation: by families, by disability service systems
Targeted manipulation for financial gain
Work the system, control the package
Financial gain, sharp practices and fraud.
Preface by Dr Colleen Pearce, AM
‘Will and preferences’ is a phrase lifted from the Convention on the Rights of Persons with Disabilities (‘the Convention’) into the Victorian Guardianship and Administration Act 2019 (‘the Act’). Neither the Convention nor the Act define this phrase, and better philosophers, ethicists and human rights practitioners than me continue to disagree on its precise scope. However, most would concur that giving effect to a person’s freely expressed will and preferences should promote their autonomy and unique personhood.
I recognise and support the benefits of this paradigm shift away from the paternalistic lens of ‘best interests’ decision-making to one which seeks to promote the person’s autonomy.
For more than four years my office has been doing ‘guardianship of last resort’ work under this new paradigm. We have developed a solid working definition of will and preference and tools to assist guardians to unpack the complexities arising within this paradigm, for example, when expressed wishes change from week to week, or when a person’s long-established values or preferences have shifted dramatically following a brain-injury or onset of severe dementia symptoms.
The complexities of people’s lives, alongside communication challenges and the protective nature of our jurisdiction – which requires consideration of the full range of human rights impacts for any decision – means coming to an informed view of a person’s will and preferences is rarely without complications. This does not mean we do not try – just that decision-making is often more art than science.
What about the relatively infrequent situation where a person is communicating their wishes so consistently and clearly that all a guardian need do is consider, in accord with the Act, whether making this decision would result in serious harm? Yes, sometimes it is that simple. Yet on other occasions, where a manipulative person has become involved, a clearly expressed wish may not be a straightforward expression of personal autonomy.
I note here that the presence of disability is not a requirement in other legal frameworks for recognition and protections from the negative impacts of manipulation, often referred to as undue influence. Family violence and contract law provide such protections. These laws recognise that choices made under the influence of a manipulator are not freely-made choices for which one should suffer the consequences, and that any person may fall prey to manipulation.
Closer to our jurisdiction, VCAT has grounds to make protective rulings on matters involving undue influence and powers of attorney.1 In addition, while the Act has no such explicit reference to manipulation or undue influence, a VCAT member in the guardianship list recently gave written reasons for their decision which included their justification to give ‘reduced weight’ to the person’s expressed wishes in the light of clear evidence that someone was manipulating them.2 Whether the Act suggests that guardians should similarly give reduced weight to expressed wishes that have been manipulated has not yet been tested at law.
Even so the potential detrimental impacts of manipulation are well recognised by OPA guardians, who have seen the consequences when tactics such as coercion, indoctrination, and bribery have been against the people they work with. It is fair to say that OPA guardians show great interest in understanding the extent to which a person’s expressed wishes are unduly influenced. Note that I use the term ‘expressed wishes’ in this context to avoid confusion about what I am referring to, and to emphasise that the wishes expressed in the statements a person utters is not always one and the same as their will and preferences.
In the following sections, I will share some common contexts where my office sees manipulation in action using the same vulnerability framework as a recent paper by researchers associated with the Council for Intellectual Disability. This framework was used insightfully to discuss the current weaknesses and potential improvements to the NDIS Commission’s safeguarding approach. Drawing on this work, our paper demonstrates the multiple ways situational vulnerabilities can impact the lives of people subject to guardianship (who are just a tiny subset of people marginalised by disabling social structures).
The social model of disability is compatible with this vulnerability framework. The excessive rates of violence and abuse experienced by people with disability are largely attributable to disabling systems and environments. Identifying and addressing these issues is a form of preventative safeguarding.
While a key benefit of this approach is its potential for more effective and impactful safeguarding systems, I also appreciate that it explicitly recognises the role of dysfunctional and abusive relationships in creating situational vulnerabilities.
This gels with OPA’s experience – that unquestioningly accepting and acting on a person’s expressed wishes may actually be detrimental to their wellbeing if they are being manipulated.
I do not say this to undermine the vision of people with disability as capable of self-determination – but to highlight that all humans deserve to be supported to get free from the influence of manipulative people. If subjected to manipulation, indoctrination, coercion and bribery, most people, disabled or not, will need support from others to escape the effects of these tactics.
Introduction
This discussion paper draws on a vulnerability framework developed by Mackenzie, Rogers and Dodds (2014) to think about the types of manipulation OPA guardians and investigators regularly see their clients experiencing. This paper aims to begin to develop a framework for thinking about the manipulation tactics people with disability might experience and to show how a situational vulnerability perspective can be used to strengthen both preventative and responsive safeguarding efforts.
OPA’s safeguarding work can provide insights into the types of circumstances where manipulation is negatively affecting people with disability, identifying potential patterns at the individual and systemic levels. It can also provide insights into how to approach situations where a person’s expressed wishes have been, or are suspected of having been, manipulated. OPA notes, as have others, that the roll out of the NDIS has created a new set of situational vulnerabilities for NDIS participants.
This paper will first introduce the vulnerability framework and terminology around different manipulation tactics. With this shared understanding, the paper will demonstrate:
- the role manipulation can play in increasing a person’s vulnerability to violence, abuse, neglect and exploitation
- the difficulties targeted manipulation creates for safeguarding agencies and others seeking to promote personal autonomy
- the NDIS policies and legislative frameworks that have incentivised the use of manipulation tactics among service providers.
By sharing these insights, OPA seeks to contribute to efforts to:
- strengthen systemic, preventative safeguarding efforts (through policy and practice changes) and
- deepen knowledge about how to best support people subject to manipulation to become more autonomous actors.
Theory and terminology
Vulnerability framework
OPA acknowledges that vulnerability is part of the human condition. This paper draws on the vulnerability framework proposed by Mackenzie et al (2014). The goal of this framework is to demonstrate the relationship between vulnerability and personal context, moving away from the usual assumption that disability is the key driver of vulnerability.
- ‘Inherent vulnerability’ is experienced by every person due to their fragile bodies and finite lifespans.
- ‘Situational vulnerability’ is context specific: ‘exacerbated by the personal, social, political, economic or environmental situations of individuals or social groups.’3
- ‘Pathogenic vulnerability’ is the aspect of situational vulnerability that attends people in dysfunctional or abusive relationships and people who are exposed to disabling systems, policies and procedures.4
This framework aligns with the Convention and the social model of disability. It recognises the many detrimental impacts a society built for able people has on a disabled person’s pathogenic vulnerability. Beyond this, it recognises that all human beings are interdependent: that dysfunctional and abusive relationships will impact everyone’s access to autonomy and self-determination.
There are aspects of some disabilities that can increase a person’s vulnerability to manipulation; the ability to retain and consider relevant information is one example. However, this framework shows that it’s not the person’s disability that generates the vulnerability, but the presence of the manipulator.
Manipulation terminology
Manipulation is often thought about as a form of influence. While a person can be influenced by social norms or the behaviour or life choices of people they look up to, manipulation usually requires the presence of someone actively trying to influence a person to behave or make choices that align with their interests. This paper will focus on manipulation scenarios that fit this model or targeted manipulation.
Targeted Manipulation
To discern between instances of influence which are fleeting or one-off and a pattern of concerted influence directed at a particular person this paper uses the term ‘targeted manipulation’. Specifically, this paper recognises bribery (or incentives), indoctrination and coercion as forms of targeted manipulation.
Manipulator
A manipulator is defined as ‘a person who controls or influences others in a clever or unscrupulous way’ and ‘a person who controls people to their own advantage, often unfairly or dishonestly.’5 For ease of reading we have used manipulator throughout this paper to mean the person employing manipulative tactics. In the NDIS context, a worker may be using manipulative tactics such as bribery or facilitating the delivery of incentives as directed by their employer.
Bribery
Bribery can be explained as ‘try[ing] to make someone do something for you by giving them money, presents, or something else that they want’.6
In the situations OPA regularly sees, the manipulator offering the bribe or incentive seeks to influence the targeted person to switch NDIS service providers for the financial benefit of the person or organisation offering the incentive. Some of the incentives OPA has been made aware of include cash, laptops, clothes, fast-food and illegal drugs.
Indoctrination
Indoctrination is defined as ‘the process of repeating an idea or belief to someone until they accept it without criticism or question.’7
In guardianship matters, indoctrination is often seen in interpersonal relationships where the person with disability is dependent on a particular family member or paid carer for their care and support. Common examples of this messaging include ‘I’m the only one who cares about you’ and other family members are ‘bad news’. In both examples, the indoctrination serves to entrench the person’s isolation and promote their dependence on the manipulator.
Coercion
Coercion is defined as ‘the use of force to persuade someone to do something that they are unwilling to do.’ 8 Coercive control is defined by the Australian Institute for Health and Wellbeing as ‘a pattern of controlling behaviour, used by a perpetrator to establish and maintain control over another person… [and] deprive another person of liberty, autonomy and agency.’9
Manipulation, personal autonomy and vulnerability
Some forms of manipulation can themselves constitute violence and abuse. For example, coercive control is a well-recognised form of family violence. OPA often suspects coercive control is experienced by clients in family violence circumstances.
Other forms of manipulation are not usually forms of abuse in themselves but are commonly seen in circumstances of heightened vulnerability – including where people are experiencing financial abuse or exploitation. This fits with the vulnerability framework which identifies dysfunctional or abusive relationships as contributing to situational vulnerability. OPA interprets this to mean that people subject to targeted manipulation are more likely to experience abuse, neglect or exploitation.
Where targeted manipulation is successful, it undermines a person’s personal autonomy (including their will, preferences, choices). The targeted person’s expressed preferences may reflect those that benefit the manipulator rather than their own uninfluenced preferences.
Safeguarding agencies, including OPA and all other parties concerned with promoting the human rights of people with disability, need strategies to identify the presence of targeted manipulation in a person’s life because:
- targeted manipulation increases the likelihood of violence, abuse, neglect and exploitation and
- promoting human rights in practice relies heavily on understanding the person’s goals and preferences – which the targeted manipulation may have impacted.
The following example about Chang illustrates the complexities involved in promoting the will and preferences of a person subject to guardianship AND targeted manipulation. For Chang, the targeted manipulation is arguably limiting his ability to pursue his broader life goals (by keeping him more contained at his mother’s house). However, his mother is not considered to pose a threat of serious harm to him so the guardian cannot compel him to move out against his expressed wish.
Chang
Chang moved in with his mother after a health setback and a stay in hospital. He had previously led an active and engaged life – including girlfriends and club memberships – from his own disability-specific housing arrangement. An OPA guardian was appointed after concerns were raised about Chang’s mother’s controlling behaviours which included blocking his access to allied health supports.
While a trusted support worker reported that Chang had said ‘I want to get out [of mum’s place], I want to go home’, he never expressed those views to the guardian. Instead, he reported the opposite, using phrases that his mother regularly used: ‘I don’t want to go back to that wheelchair house’ and highlighting amenities his mother’s place had that his old home did not.
The guardian strongly suspected this view was more representative of Chang’s mother’s position than his own but did not have grounds to override this clearly expressed wish (as no serious harm would result if they upheld this wish).
The guardian continues to seek opportunities to better understand Chang’s wishes and uses her authority to facilitate Chang’s access to allied health services and promote his access to social opportunities he enjoys.
In another OPA guardianship example, a young woman is unquestionably at risk of serious harm because she is in a physically violent relationship and subject to coercive control by her intimate partner. The guardian made decisions to prevent contact with the violent partner. But these decisions had no practical effect as the couple both ignored them. As part of the guardian’s concerted efforts to find other pathways to mitigate the harms experienced by the woman, input and assistance was sought from Sexual Assault Services Victoria. The following section of private correspondence elucidates the tensions that present when people are under the influence of targeted manipulation (in this case by a controlling partner):
This young woman you are guardian for is in such a destructive relationship which is in no doubt placing her at ongoing risk.
In the current circumstances the aim is to keep her as safe as possible while building her capacity to identify her self-worth and her right to respectful relationships.
At this point in her journey, while she is seeing the problem as everyone other than the man she is in a relationship with, the best option available to minimize her risk is to build a solid support team around her who work to positively engage her while monitoring her risk.
(Private correspondence from Sexual Assault Services Victoria to OPA guardian)
Summary
In guardianship matters where targeted manipulation is identified or suspected, people express preferences about their lives which OPA suspects do not reflect their true (uninfluenced) preferences.
OPA guardians find that implementing the person’s expressed wishes without considering the impacts of manipulation will not ultimately promote their personal autonomy, and neither will dismissing their expressed wishes. And, as we saw above, the safeguarding benefits of overriding a person’s expressed wishes is contingent on the practical ability to enforce said decision.
Targeted manipulation: by families, by disability service systems
The Public Advocate has been Victorian’s guardian of last resort for almost 40 years. Dysfunctional family members using targeted manipulation to control partners or children, or seeking to benefit from an older person’s finances or possible future inheritance, have been typical subjects in OPA’s work. Often familial dynamics are so entrenched and intractable that safeguarding can only address the worst abuses that occur, with little chance of winding back the fields of influence undermining the person’s autonomy.
What is new to OPA’s practice landscape is the use of incentives for targeted manipulation of people with disability, and the impacts of this manipulation tactic. This emerged with the roll-out of the National Disability Insurance Scheme (NDIS). Of course, we are not alone in the observation that some NDIS-funded disability service providers are financially exploiting people with disabilities. As one OPA guardian put it: ‘The bigger the [NDIS] plan, the bigger a target they become.’
Building on work by Sally Robinson and colleagues which used the vulnerability framework to consider current NDIS safeguarding practices,10 this paper seeks to prompt consideration of the ways in which the NDIS creates incentives for NDIS-funded providers to use targeted manipulation for financial gain. Unlike entrenched dysfunctional family systems, NDIS policy, law and regulatory systems are open to amendment.
Of course, not all providers are exploitative and not all people accessing the NDIS require the same level of safeguarding. The situational and pathogenic vulnerability framework may help safeguarding bodies to decide what level of oversight or supportive intervention is appropriate.
Targeted manipulation for financial gain
OPA has many examples of different types of manipulation being used on the pathway to financially exploiting or otherwise abusing people we work with. It is not necessarily the manipulation itself that constitutes the abuse; instead, the manipulation enables the context in which the exploitation or abuse occurs.
Indoctrination
Indoctrination is often suspected by OPA guardians and investigators in situations involving older people and family disputes. It may appear that the main support person has turned the older person against other relatives, setting themselves up for financial gain and isolating the person from their broader networks in the process.
NDIS-funded workers have been seen to engage in similar indoctrinating behaviours – often presenting themselves as the only person who cares about the person with disability and forming unprofessional relationships with them. From OPA’s perspective their goal seems to be to control the spending of (and potentially exploit) the person’s NDIS package.
Guardians have advised us of multiple situations where manipulative workers befriend and then isolate people who are vulnerable to influence and lack an informal support network. The manipulative workers seek to convince the person that their emotional and physical wellbeing depends on them. Once this dynamic is established, the person’s expressed wishes are seen to be strongly influenced by the manipulator and not likely to be autonomous. Examples include the person using similar words or phrases to those of the manipulator or bringing up topics relevant to the manipulator’s financial interests – for example, saying they did not want a ‘[service] deed’ when they did not understand what they were.
Hugo
When Hugo became alienated from his family, his support worker stepped in. Now Hugo says: ‘I only have one friend and it’s him [the support worker]’. An OPA guardian was appointed following an application for guardianship by the support worker – perhaps seeking his own appointment and a means of control over Hugo’s NDIS package. The guardian identified examples of the support worker engaging in overbilling and controlling behaviours. Hugo’s expressed wishes are to continue to have this worker in his life. The support worker is using this to their own advantage, questioning all the guardian’s plans to build a broader support network for Hugo on the grounds that they are not consistent with what Hugo wants. The guardian is very concerned about the likely negative emotional impact on Hugo of taking his ‘one friend’ out of the picture – even with the knowledge that the relationship is coercive and exploitative – and so has not made this decision.
This example shows the very difficult questions guardians, and other safeguarding bodies, face when seeking to mitigate harm when targeted manipulation is occurring.
It also highlights the weaponisation of the language of ‘choice’. In this and other matters, OPA’s frontline staff are regularly asked to demonstrate how their decisions align with the person’s expressed wishes. While OPA guardians must promote the person’s will and preference wherever possible, the irony of a manipulative worker using our own legislation to push the guardian to implement coerced preferences is not lost on us.
Bribery (incentives)
Another common NDIS-related example of targeted manipulation is the use of bribery. These targeted incentives are used to lure an NDIS participant to switch supported accommodation service providers and, potentially, to remain with that service. OPA is aware of targeted incentives which have included access to fast-food, cash or illegal drugs. Again, OPA assumes that the goal of these targeted incentives is gaining control of the person’s NDIS package.
Where this is achieved, the provider may simply rely on the person’s invisibility to safeguarding agencies or mainstream services in order to continue spending their NDIS funds. Sometimes coercive control behaviours are also employed to maintain the foothold.
In OPA’s experience, once a provider has gained influence or effective control over a person’s NDIS package, they are likely to use this power to engage in ‘sharp’ practices – including overservicing or ensuring that other elements of the package go to businesses in which they have a financial interest – and even fraud (such as overbilling) to promote their own financial position. While sharp practices are usually not illegal, they do contravene the NDIS Code of Conduct11 and could be subject to investigation by the NDIS Quality and Safeguards Commission.
In practice, this safeguard is rarely effective. Once the NDIS provider has control of the package, the person being targeted is largely isolated from independent oversight and alternative support networks.
On occasion, OPA sees examples of other organisations acting unquestioningly on a person’s expressed preferences, inadvertently cementing the negative effects of the targeted manipulation.
Work the system, control the package
OPA has observed that manipulation is not always required to bring about financial benefit from an NDIS participant’s package, because in some circumstances, the power to exploit a person’s package has been acquired by an unscrupulous NDIS provider working the system as opposed to the person.
In the previous examples targeted manipulation was used to achieve the relationship necessary to benefit from the person’s NDIS funds. In those types of scenarios, ongoing targeted manipulation may or may not be required to maintain that position of power. Whereas in the following example, the provider was able to exploit the systems and policies of the NDIS to gain control of the person’s NDIS package without manipulating the person in any of the standard ways. It is an example of how NDIA policy and systems can create pathogenic vulnerability.
Vinny
Vinny is a young man who used to choose his own NDIS-funded support workers. He had stable accommodation and enjoyed his independence while making the most of the 1:1 support provided to him for 6 hours per day.
One year later, Vinny’s life looked very different. Following concerns that Vinny was being exploited and manipulated by his support workers, the Public Advocate was appointed guardian. His support coordinator had removed Vinny’s chosen support workers and replaced them with workers from their own organisation. The support coordinator also tripled the amount of support Vinny was receiving- tripling the rate at which his funding was depleted, while also reducing his capacity to exercise independence, autonomy and use his skills.
The support coordinator applied for an increase in Vinny’s NDIS package, which was ultimately refused.
Vinny’s guardian held a number of concerns about Vinny’s wellbeing. They found evidence that Vinny was being over-billed and that his support preferences were not being respected. They also heard allegations that his support workers mocked him. His package was being spent at an unsustainable rate, putting him at risk of homelessness. Further, Vinny presented as flat, and was disengaging with his care team and sleeping a lot. His expressed wish in relation to his NDIS supports was 'I don't want anyone [supporting me]'.
The guardian was not able to implement Vinny’s expressed wishes, as this would have left him completely unable to complete tasks required for daily living. Instead, the guardian sought to diversify his support network by allocating some of his support hours to another provider, and to promote Vinny’s opportunity to exercise self-determination by respecting his preferences for particular support workers.
As Vinny’s situation demonstrates, once a provider gains full control of a person’s NDIS package the person can become very dependent on that provider and has little access to independent advocacy or oversight. Without strong informal supports, or– as in Vinny’s case– a guardianship order, people are at risk of remaining enmeshed with unscrupulous providers who are more interested in making money than abiding by the NDIS Code of Conduct. Policies to prevent the single provider circumstances arising, or to trigger additional monitoring safeguards where it already has, would help prevent these types of troubling scenarios.
OPA sees this a form of manipulation which operates on a systemic level. Unlike other examples explored in this piece, the support coordinator is less likely to be trying to indoctrinate or coerce someone like Vinny to change their expressed preferences. Rather, once enmeshed in their business, they are relying on Vinny becoming largely invisible to anyone who might be able to free him. Further, his level of dependence on the one provider may act to reduce the likelihood he would speak out against them. Vinny hasn’t necessarily been manipulated, but his circumstances have been.
Financial gain, sharp practices and fraud
Just as there is a wide scope in the use of targeted manipulation by NDIS-funded workers and providers seeking financial benefit – from incentives to indoctrination to coercion – there is also the opportunity to directly exploit the person using the current system (as described in Vinny’s situation above).
OPA also sees a wide scope in the type of financial benefit the worker or unscrupulous provider is receiving. In some cases, the motivation is simply that they remain the preferred support worker for the person, and the financial benefit is that they keep their regular income. Even when this is the case, OPA may hold concerns about the quality of the service provided, and the lack of opportunities for the person to make real choices about their life. In other cases, sharp practices, including overbilling, underservicing, or ensuring that other elements of the package go to businesses in which they have a financial interest, may be present.
OPA does not have a lot of direct knowledge of fraud (apart from multiple examples of overbilling clients) in relation to unscrupulous NDIS providers, but regularly holds suspicions and understands that criminal conspiracy does occur.
Conclusion
One goal of sharing these examples is to draw attention to the difficult questions they generate for safeguarding bodies and mainstream services attempting to uphold human rights including dignity and autonomy.
This difficulty goes beyond the standard, already tricky, safeguarding question of how to balance a person’s right to autonomy with their right to protection from harm. This is because targeted manipulation calls into question the relationship between the person’s expressed wishes and their autonomy.
The second goal is to highlight the way NDIS systems have encouraged and continue to facilitate the use of manipulation as a path to financial exploitation of people with disability.
1 Powers of Attorney Act 2014 (Vic), ss 117-118.
2 SXZ (Guardianship) [2022] VCAT 703 (24 June 2022)
3 MacKenzie, C., Rogers W. & Dodds, S. (2014) “Introduction.” In Vulnerability: New Essays in Ethics and Feminist Philosophy, edited by C. MacKenzie, W. Rogers and S. Dodds, 1–29. New York: Oxford University Press.
4 Ibid.
5 MANIPULATOR | definition in the Cambridge English Dictionary
6 BRIBE | English meaning - Cambridge Dictionary
7 INDOCTRINATION | English meaning - Cambridge Dictionary
8 COERCION | English meaning - Cambridge Dictionary
9 https://www.aihw.gov.au/family-domestic-and-sexual-violence/understanding-fdsv/coercive-control#coercive-control> accessed 29 May 2024.
10 Davy, L., Robinson, S., Idle, J., & Valentine, K. (2024). Regulating vulnerability: policy approaches for preventing violence and abuse of people with disability in Australian service provision settings. Disability & Society, 1–22. Full article: Regulating vulnerability: policy approaches for preventing violence and abuse of people with disability in Australian service provision settings (tandfonline.com) https://doi.org/10.1080/09687599.2024.2323456
