Inquiry Into Violence, Abuse and Neglect Against People with Disability in Institutional and Residential Settings Tasmanian Government Submission

Inquiry into violence, abuse and neglect against people with disability in institutional and residential settings Tasmanian Government Submission

May 2015

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INTRODUCTION

THE INQUIRY

On 11 February 2015, the Senate referred the following matter to the Senate Community Affairs References Committee for inquiry and report: Violence, abuse and neglect against people with disability in institutional and residential settings, including the gender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people with disability, and culturally and linguistically diverse people with disability.

The terms of reference are: a) the experiences of people directly or indirectly affected by violence, abuse and neglect perpetrated against people with disability in institutional and residential contexts; b) the impact of violence, abuse and neglect on people with disability, their families, advocates, support persons, current and former staff and Australian society as a whole; c) the incidence and prevalence of all forms of violence, abuse and neglect perpetrated against people with disability in institutional and residential settings; d) the responses to violence, abuse and neglect against people with disability, as well as to whistleblowers, by every organisational level of institutions and residential settings, including governance, risk management and reporting practices; e) the different legal, regulatory, policy, governance and data collection frameworks and practices across the Commonwealth, states and territories to address and prevent violence, abuse and neglect against people with disability; f) Australia’s compliance with its international obligations as they apply to the rights of people with disability; g) role and challenges of formal and informal disability advocacy in preventing and responding to violence, abuse and neglect against people with disability; h) what should be done to eliminate barriers for responding to violence, abuse and neglect perpetrated against people with disability in institutional and residential settings, including addressing failures in, and barriers to, reporting, investigating and responding to allegations and incidents of violence and abuse; i) what needs to be done to protect people with disability from violence, abuse and neglect in institutional and residential settings in the future, including best practice in regards to prevention, effective reporting and responses; j) identifying the systemic workforce issues contributing to the violence, abuse and neglect of people with disability and how these can be addressed; k) the role of the Commonwealth, states and territories in preventing violence and abuse against people with disability; l) the challenges that arise from moving towards an individualised funding arrangement, like the National Disability Insurance Scheme, including the capacity of service providers to identify, respond to and prevent instances of violence, abuse and neglect against people with disability; and m) what elements are required in a national quality framework that can safeguard people with disability from violence, abuse and neglect in institutional and residential settings.

Tasmanian Government Submission 2 Senate Community Affairs Reference Committee

2. That for this inquiry: a) ‘institutional and residential settings’ is broadly defined to include the types of institutions that people with disability often experience, including, but not restricted to: residential institutions; boarding houses; group homes; workplaces; respite care services; day centres; recreation programs; mental health facilities; hostels; supported accommodation; prisons; schools; out-of-home care; special schools; boarding schools; school buses; hospitals; juvenile justice facilities; disability services; and aged care facilities; and b) ‘violence, abuse and neglect’ is broadly understood to include, but is not limited to: domestic, family and interpersonal violence; physical and sexual violence and abuse; psychological or emotional harm and abuse; constraints and restrictive practices; forced treatments and interventions; humiliation and harassment; financial abuse; violations of privacy; systemic abuse; physical and emotional neglect; passive neglect; and wilful deprivation.

TASMANIAN GOVERNMENT SUBMISSION

Governments of all levels play a crucial role in establishing and monitoring systems and responses that address and prevent violence, abuse and neglect against people with disability. The Tasmanian Government has strong legislative and policy frameworks that address and prevent violence, abuse and neglect in institutional and residential settings in Tasmania. The Government is committed to achieve its vision of a Tasmanian society that recognises the rights of people with disability and enables their full participation in the social and economic opportunities provided in this State. The Government thanks the Senate Committee for their invitation to submit to the Inquiry and welcomes the opportunity to provide comment on this important issue.

The Tasmanian Government’s submission is organised thematically and does not address each individual term of reference. The submission addresses the following key themes of the Inquiry:  people with disability in Tasmania;  institutional and residential settings in Tasmania;  dimensions of violence, abuse and neglect, including gender and age, noting the particular situation of Aboriginal and Torres Strait Islander people with disability, and culturally and linguistically diverse people with disability;  the Tasmanian1 legal, regulatory, policy and governance frameworks and practices that address and prevent violence, abuse and neglect against people with disability in Tasmania; and  the roles and responsibilities of governments in preventing violence, abuse and neglect against people with disability.

This submission was developed by the Department of Premier and Cabinet, in collaboration with the Department of Health and Human Services, the Department of Education and the Department of Justice through the Guardianship and Administration Board, which is an independent statutory authority. The Tasmanian Office of the Anti-Discrimination Commissioner is providing a separate submission to the Inquiry. Therefore this submission does not include discussion on the role of the Anti-Discrimination Commissioner.

1 The submission focuses on Tasmanian frameworks and practices, noting where the Australian Government is responsible.

Tasmanian Government Submission Senate Community Affairs Reference Committee 3

ADDRESSING KEY THEMES OF THE INQUIRY

1. PEOPLE WITH DISABILITY IN TASMANIA

There are approximately 113 000 Tasmanians, almost one in five, who live with disability2. These figures refer to people who reported a limitation, restriction or impairment, which has lasted, or is likely to last, for at least six months and restricts everyday activities. However, people with disability do not always recognise or report that they have a disability so figures are likely to be slightly higher than those reported.

When the Tasmanian Government refers to people with disability, it refers to people who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others. This definition of disability is based on Article 1 of the United Nations Convention on the Rights of Persons with Disabilities (UN Convention) 3.

Tasmania has a higher proportion of people with disability than other states. This is partly due to the proportionately larger population of older people who have acquired disability as they age. While disability is not primarily associated with older people - over 60 per cent of Tasmanians with disability are under the age of 654 - a higher incidence of disability can be expected among older people.

Of the population of Tasmanians with disability, around 23 000 Tasmanians require significant daily assistance with self-care, mobility or communication because of a long-term health condition, disability or old age5. This assistance is provided by Australian and State Government funded services and many of the more than 40 000 Tasmanians who provide unpaid assistance to people with disability6.

2. INSTITUTIONAL AND RESIDENTIAL SETTINGS IN TASMANIA

The Tasmanian Department of Health and Human Services (DHHS) is responsible for providing a range of services to people with disability in Tasmania. These services are delivered directly by DHHS or are commissioned and funded by DHHS for delivery by community sector organisations (CSOs).

DISABILITY SERVICES

DHHS funds CSOs to deliver a range of supported accommodation services including small and large residential services, hostel accommodation and group homes. Group homes predominantly cater for four people with disability in community settings, but may be one, two and three bedroom homes. A small number of group homes cater for five and six people with disability.

2 Around 23 per cent of the Tasmanian population; Disability, Ageing and Carers, 2009, Cat No 4430.0, Australian Bureau of Statistics. Available at http://www.abs.gov.au/AUSSTATS/[email protected]/Lookup/4430.0Main+Features12009?OpenDocument. 3 In 2008, the Australian Government ratified the United Nations Convention on the Rights of Persons with Disabilities. The Convention is available at http://www.un.org/disabilities/convention/conventionfull.shtml. 4 Disability, Ageing and Carers, 2009, Cat No 4430.0, Australian Bureau of Statistics. Available at http://www.abs.gov.au/AUSSTATS/[email protected]/Lookup/4430.0Main+Features12009?OpenDocument. 5 Disability, Ageing and Carers, 2009, Cat No 4430.0, Australian Bureau of Statistics. Available at http://www.abs.gov.au/AUSSTATS/[email protected]/Lookup/4430.0Main+Features12009?OpenDocument. 6 Disability, Ageing and Carers, 2009, Cat No 4430.0, Australian Bureau of Statistics. Available at http://www.abs.gov.au/AUSSTATS/[email protected]/Lookup/4430.0Main+Features12009?OpenDocument.

Tasmanian Government Submission 4 Senate Community Affairs Reference Committee

Table 1 (below) provides a profile of Tasmanian Government funded disability support services in 2013-14, ranging from residential institutions, to group homes and respite services. It also indicates the number of users of each service type in that financial year. Data in Table 1 is taken from the Disability Services National Minimum Data Set (DSNMDS) and are, as yet, unpublished. Data from the DSNMDS is used for a variety of purposes, including the Report on Government Services and to assess progress against performance indicators for the National Disability Agreement.

Table 1: Tasmanian Government-funded disability support services 2013–147

Service type Outlets Users Large residential/institution 3 118 Small residential/institution 1 19 Hostels 3 54 Group homes 368 520 Attendant care/personal care 10 25 In-home accommodation support 56 624 Alternative family placement — — Other accommodation support 1 1 Total accommodation support 110 1,338 Therapy support for individuals 3 136 Early childhood intervention — — Behaviour/specialist intervention — — Counselling (individual/family/group) — — Regional resource and support teams 5 3,260 Case management, local coordination and development 9 1,873 Other community support 4 216 Total community support 21 4,973 Learning and life skills development 53 1,166 Recreation/holiday programs 6 334 Other community access — — Total community access 59 1,399 Own home respite 4 39 Centre-based respite/respite homes 10 265 Host family/peer support respite 1 2 Flexible respite 24 183 Other respite — — Total respite 39 452 Advocacy 6 N/A Information/referral 11 N/A Combined information/advocacy 5 N/A Mutual support/self-help groups 1 N/A

7 Data gathered from Disability Services National Minimum Data Set (DSNMDS) provided to Australian Institute of Health and Welfare (unpublished). 8 This number indicates ‘outlets’ rather than individual homes. Tasmania has 140 group homes registered, which incorporate multiple units of accommodation on one title.

Tasmanian Government Submission Senate Community Affairs Reference Committee 5

Service type Outlets Users Alternative formats of communication 2 N/A Total advocacy, information and alternative communication9 25 N/A Research and evaluation — N/A Training and development 1 N/A Peak bodies 3 N/A Other support services — N/A Total other support 4 N/A Supported employment N/A 505 Total supported employment10 N/A 505 Total 258 6738

Additional notes 1. Service user data are estimates after use of a statistical linkage key to account for individuals who received services from more than one service type outlet during the 12-month period. 2. Service group totals may not be the sum of service components because individuals may have used more than one service type within a group during the 12-month period. 3. Table excludes service users who used only open employment services.

CHILDREN AND YOUTH SERVICES

DHHS focuses on providing services for children and young people aged zero to 18 years old. Services are delivered for children, young people, their families and their carers and include early intervention, family support services and child health services. DHHS also carry out statutory responsibilities relating to vulnerable children and young people in relation to child protection and youth justice matters, in accordance with the Children, Young Persons and Their Families Act 1997 (Tas)11.

In addition to services provided directly, DHHS contract or provide funding for a wide range of services to be delivered by CSOs, including specialist out of home care (OOHC), support, counselling and information to children, young people, families and carers. Settings within DHHS relevant to this Inquiry include OOHC and the Ashley Youth Detention Centre (AYDC).

Out of Home Care

OOHC relates to the provision of accommodation for children unable to live at home as a result of concerns for their safety and wellbeing. OOHC incorporates foster care, relative or kinship care, family group homes or cottage care, and residential care. OOHC placements are established on the basis of a child’s needs and, therefore in some cases, specialist OOHC placements are required as a result of a child’s disability.

9 Data on users for the service types in the advocacy, information and alterative communication sub-section are not collected as these service types are not directed at individual users. 10 Data on the number of Tasmanian-Government funded supported employment outlets are not applicable as funding for supported employment is an Australian Government responsibility. 11 Available at http://www.thelaw.tas.gov.au/tocview/index.w3p;cond=;doc_id=28%2B%2B1997%2BAT%40EN%2BSESSIONAL;histon=;prompt =;rec=;term=.

Tasmanian Government Submission 6 Senate Community Affairs Reference Committee

OOHC options may be provided by government or non-government service providers but the responsibility for overall coordination remains with DHHS. OOHC Teams in each of Tasmania’s service delivery regions are responsible for the recruitment, assessment, training and support of Departmental carers, and overall approval of all carers (government and non-government).

Ashley Youth Detention Centre

The AYDC is the only dedicated secure facility in Tasmania exclusively for young offenders aged between 10 and 18 years. Its role and function are legislated under the Youth Justice Act 1997 (Tas)12. Young people in custody at AYDC are either remanded there by the Court pending finalisation of court matters, or sentenced by the Court to a period of detention or imprisonment.

MENTAL HEALTH

DHHS directly delivers care to Tasmanians with a severe mental health disorder in inpatient facilities and in the community. DHHS also works in partnership with the community sector to deliver support services to those who have moderate to severe mental disorders. In addition, Tasmania's Forensic Mental Health Services provides community and inpatient mental health assessment, treatment and case management for offenders (or people at risk of offending) who have a mental disorder.

The Wilfred Lopes Centre is the Tasmanian Government’s secure forensic mental health inpatient facility. Mental health assessments and management are provided to people with a mental illness in correctional facilities through the Correctional Primary Health Service, and may result in referral to the Wilfred Lopes Centre for treatment.

12 Available at http://www.thelaw.tas.gov.au/tocview/index.w3p;cond=all;doc_id=81%2B%2B1997%2BAT%40EN%2B20150506000000;histon=;p rompt=;rec=;term=Youth%20Justice%20Act.

Tasmanian Government Submission Senate Community Affairs Reference Committee 7

3. THE DIMENSIONS OF VIOLENCE, ABUSE AND NEGLECT

There is no publicly available data on the levels of abuse, neglect or violence against people with disability in institutional or residential settings in Tasmania.

The experience of the Guardianship and Administration Board anecdotally suggests that in the last decade, in Tasmania, aged care and disability resident services are protective against abuse and neglect of people with disabilities.

Consistent with national and international studies, most abuse and neglect that has been evident in applications before the Board have been perpetuated by family members in private accommodation.

However, research and statistics indicate that people with a disability are at a higher risk of violence than the rest of the community, that this violence often goes unrecognised13 and that the placement of people with disability in institutional and residential settings may increase vulnerability to violence, due to the ‘closed’ nature of these settings14.

The following section provides an overview of what is known regarding specific dimensions of violence, abuse and neglect that is relevant to people with disability in Tasmania.

GENDER

All violence is wrong, regardless of the sex of the victim or perpetrator. However, it is more likely for a person to experience violence from a male rather than a female perpetrator15. Furthermore, while violence can happen to anyone, some people are more at risk than others.

Women

Violence against women is any act of gender based violence that causes or could cause physical, sexual or psychological harm or suffering, including threats of harm or coercion, in public or in private life16.

While it is very difficult to measure the true extent of violence against women, as most incidences of family violence and sexual assault go unreported, research by the Australian National Research Organisation for Women’s Safety (ANROWS) tells us that since the age of 15, one in three Australian women have experienced physical violence and one in five sexual violence17.

13 French, P., Dardel, J., Price-Kelly, S. (2009) Rights Denied: Towards a National Policy Agenda about Abuse, Neglect and Exploitation of Persons with Cognitive Impairment. People with Disability Australia. Available at http://www.pwd.org.au/issues/preventing-violence.html. 14 French, P., Dardel, J., Price-Kelly, S. (2009) Rights Denied: Towards a National Policy Agenda about Abuse, Neglect and Exploitation of Persons with Cognitive Impairment. People with Disability Australia. Available at http://www.pwd.org.au/issues/preventing-violence.html. 15 Refer to http://www.ourwatch.org.au/MediaLibraries/OurWatch/Images/01-rates-of-violence-key-statistics.pdf. 16 United Nations Declaration on the Elimination of Violence against Women (1993). Available at http://www.un.org/documents/ga/res/48/a48r104.htm. 17 Refer to http://www.ourwatch.org.au/MediaLibraries/OurWatch/Images/02-rates-of-violence-against-women-compared-to- men.pdf.

Tasmanian Government Submission 8 Senate Community Affairs Reference Committee

Family or domestic violence is one of the most common forms of violence against women and their children in Australia. The overwhelming majority of acts of family violence and sexual assault are perpetrated by men against women and this violence is likely to have more severe impacts on female than male victims18.

Every jurisdiction in Australia has its own terminology and legislation surrounding family or domestic violence. Tasmania uses the term ‘family violence’ to acknowledge that children exposed to family violence have their safety, psychological wellbeing and interests affected by violence directed at one of their carers, and are therefore, victims in their own right19.

Women with disability The UN Convention recognises that women and girls with disabilities are often at greater risk, both within and outside the home, of violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation20. Women and girls with disability experience violence at significantly higher rates, more frequently and for longer, in more ways and by more perpetrators compared to women and girls without disability21. More than 70 per cent of women with disability have been victims of violent sexual encounters at some time in their lives22. A 2013 survey with service providers estimated that 22 per cent of women and girls with disabilities, who had made contact with service provider respondents in the previous year, had been affected by violence23.

Aboriginal and Torres Strait Islander women Aboriginal and Torres Strait Islander women are five times as likely to experience physical violence, and three times as likely to experience sexual violence, than other Australian women24.

18 Refer to http://www.ourwatch.org.au/MediaLibraries/OurWatch/Images/01-rates-of-violence-key-statistics.pdf. 19 The Family Violence Act 2004 (Tas) provides for an integrated criminal justice response to family violence and aims to promote the safety of people affected by family violence by changing the behaviour of those responsible for the violence. The Act, at section 7, defines family violence as: (a) any of the following types of conduct committed by a person, directly or indirectly, against that person's spouse or partner: (i) assault, including sexual assault;(ii) threats, coercion, intimidation or verbal abuse; (iii) abduction; (iv) stalking within the meaning of section 192 of the Criminal Code Act 1924 (Tas)(v) attempting or threatening to commit conduct referred to in subparagraph (i), (ii), (iii) or (iv); or (b) any of the following: (i) economic abuse; (ii) emotional abuse or intimidation; (iii) contravening an external family violence order, an interim FVO, an FVO or a PFVO. The Act is available at http://www.thelaw.tas.gov.au/tocview/index.w3p;cond=ALL;doc_id=67%2B%2B2004%2BAT%40EN%2B20150506170000;histon =;prompt=;rec=;term=family%20violence 20 The Convention is available at http://www.un.org/disabilities/convention/conventionfull.shtml. 21 C Frohmader, Submission to the Australian Government Consultation Paper, Family Violence – Improving Legal Frameworks (2010), page 6. Available at http://wwda.org.au/wp-content/uploads/2013/12/WWDASubFVL2010.pdf. 22 C Frohmader (2014) ‘Gender Blind, Gender Neutral: The effectiveness of the National Disability Strategy in improving the lives of women and girls with disabilities’ (May 2014). Available at http://wwda.org.au/wp- content/uploads/2013/12/WWDA_Sub_NDS_Review2014.pdf. 23 Women with Disabilities Australia, 2013, Stop the Violence: Addressing Violence Against Women and Girls with Disabilities in Australia. Background Paper, National Symposium on Violence against Women and Girls with Disabilities, Sydney, Australia, 25 October 2013. Available at http://wwda.org.au/issues/viol/viol2011. 24 Jenny Mouzos and Tony Makkai, 2004, Women’s Experiences of Male Violence: Findings from the Australian Component of the International Violence Against Women Survey (IVAWS), Research and Public Policy Series, No.56, Australian Institute of Criminology. Available at http://www.aic.gov.au/publications/current%20series/rpp/41-60/rpp56.html.

Tasmanian Government Submission Senate Community Affairs Reference Committee 9

Culturally and linguistically diverse women Women from culturally and linguistically diverse (CALD) and new and emerging communities who experience violence may face significant barriers and vulnerabilities including difficulties and challenges accessing support services and disclosing family violence situations, lack of support networks, language barriers, cultural norms and expectations around gender roles and a lack of knowledge of rights under Australian law.

AGE

Older Tasmanians

Tasmania is ageing the fastest of all Australian states and territories in terms of structural ageing - the proportion of the population aged 65 years and older - and all projections for Tasmania suggest that Tasmania’s population structure will continue to age faster than Australia as a whole25.

There are over 114 411 Tasmanians aged 60 years and over and 15.9 per cent of the Tasmanian population is aged 65 years and over26.

Older persons can have multiple issues of disability and mental health that can impede their understanding and communication. People with some form of decision-making disability are more likely to be abused27.

Abuse of older people is a single or repeated act occurring within a relationship where there is an implication of trust, which causes harm to an older person28. Abuse of older people can include physical, psychological, emotional, financial, sexual and social abuse as well as intentional or unintentional neglect.

Abuse of older people is typically carried out by someone close to an older person. For example, older Tasmanians may experience some form of abuse by people who they trust with their care and wellbeing, such as a partner, child, carer or paid support worker. Abuse or misconduct may also occur in the context of a relationship with a professional or business person. For example, abuse in a residential aged care setting.

25 Facing the Future: A Baseline Profile on Older Tasmanians, 2013, COTA Tasmania, Available at http://www.dpac.tas.gov.au/__data/assets/pdf_file/0015/214323/Facing_the_Future_- _A_Baseline_Profile_on_Older_Tasmanians.pdf. 26 Australian Bureau of Statistics. (2011b). 3101.0 - Australian Demographic Statistics, June 2011. 27 B. Black, The Human Rights of Older People and Agency Responses to Elder Abuse. Perth, Curtin University of Technology, 2008. 28 Department of Health and Human Services, Protecting Older Tasmanians from Abuse, Hobart, Tasmanian Government, 2010, page 10; available at http://www.dhhs.tas.gov.au/__data/assets/pdf_file/0010/76672/Protecting_Older_Tasmanians_from_Abuse.pdf. The definition is consistent with that adopted by the Australian Network for the Prevention of Elder Abuse and international and national agreements on what constitutes elder abuse.

Tasmanian Government Submission 10 Senate Community Affairs Reference Committee

No data indicates how widespread abuse of older people is in Tasmania29. However, large population-based studies of the United States, Canada, Britain and Europe show incidences of abuse at between three and five per cent of the population30. In much of the literature, victims tend to be frail, vulnerable and dependent; and more often female, poor and aged over 75 years. However, other studies suggest that older men are more vulnerable to abuse because they can be more dependent31.

4. TASMANIAN SYSTEMS AND RESPONSES TO ADDRESS AND PREVENT VIOLENCE, ABUSE AND NEGLECT AGAINST PEOPLE WITH DISABILITY

DISABILITY-SPECIFIC SYSTEMS AND RESPONSES

WHOLE-OF-GOVERNMENT

The Tasmanian Disability Framework for Action

In 2005 the Tasmanian Government established one of Australia’s first whole-of-government policies for people with disability. The Disability Framework for Action 2005-2010 (DFA 2005-2010) was a landmark document which embedded the rights of Tasmanians with disability into the work of all State Government agencies.

Work by Tasmanian Government agencies under DFA 2005-2010 led to significant developments for people with disability in Tasmania, including increased protection of rights within the justice system. There was also increased awareness in relation to the needs of people with disability and a willingness to respond effectively to these needs.

In December 2012, the Tasmanian Government launched the new Disability Framework for Action 2013-2017 (DFA)32, a whole-of-government policy for action to remove barriers and enable people with disability to enjoy the same rights and opportunities as all other Tasmanians. The DFA is Tasmania’s implementation plan for the National Disability Strategy 2010-202033. It is a rights-based, social model of disability that acknowledges that Australian governments are bound to recognise the rights of people with disability as set out in the UN Convention. It provides a strong direction for action to improve participation by people with disability in Tasmania’s social, economic and cultural life.

29 Department of Health and Human Services, Protecting Older Tasmanians from Abuse, Hobart, Tasmanian Government, 2010, page 10; available at http://www.dhhs.tas.gov.au/__data/assets/pdf_file/0010/76672/Protecting_Older_Tasmanians_from_Abuse.pdf. 30 Lachs and Pillemer (2004) referenced in Protecting Older Tasmanians from Abuse, available at http://www.dhhs.tas.gov.au/__data/assets/pdf_file/0010/76672/Protecting_Older_Tasmanians_from_Abuse.pdf. 31 H. Litwin & S. Zoabi. “A Multivariate Examination of Explanations for the Occurrence of Elder Abuse”. Social Work Research. 28 (3), 2004, pp. 133-143 and WHO/INPEA. Missing Voices: Views of Older Persons on Elder Abuse. Geneva: World Health Organization, 2002. 32 Available at http://www.dpac.tas.gov.au/divisions/csrt/policy/our_policies/disability_framework_for_action. 33 The National Disability Strategy 2010-2020 outlines a national approach to improving outcomes and whole-of-life opportunities for people with disability in Australia. The Strategy aims to influence the planning, design and delivery of mainstream policies, programs, services and infrastructure, as well as the specialist disability services system, so that people with disability can participate as equal citizens in all areas of Australian life. The six broad policy outcome areas under the Strategy are: Inclusive and accessible communities; Rights, protection, justice and legislation; Economic security; Personal and community support; Learning and skills; and Health and wellbeing.The development of the Strategy was the first time in Australia’s history that all governments committed to a unified, national approach to improving the lives of people with disability, their families and carers, and to providing leadership for a community-wide shift in attitudes. The Strategy is available at https://www.dss.gov.au/our-responsibilities/disability-and- carers/publications-articles/policy-research/national-disability-strategy-2010-2020.

Tasmanian Government Submission Senate Community Affairs Reference Committee 11

The DFA sets out the Government's vision for Tasmania as an inclusive and caring community, and outlines six outcomes areas for action. Action Two is focused on rights protection, justice and legislation, including statutory protections such as anti-discrimination measures, complaints mechanisms, advocacy and the electoral and justice systems. Under 2.2 Protect Rights, Action 2.2.2, the DFA requires agencies ‘to maintain and strengthen protections and supports for people with disability who experience, or are at risk of experiencing violence, sexual assault, abuse and neglect’.

The Premier's Disability Advisory Council The Premier’s Disability Advisory Council (PDAC) is a community advisory group of people with disability and / or strong community connections to people with disability, their families and carers.

The key role of PDAC is to provide advice to the Tasmanian Government in relation to achieving better outcomes for people with disability, and to monitor the Government's progress towards achieving the objectives of the DFA.

PDAC monitors the Government's progress through Agency annual reports to PDAC on implementation of the DFA and the attendance of Heads of Agencies at PDAC meetings to discuss implementation issues directly with PDAC members.

PDAC community members also prepare an annual report to Government on implementation of the Framework, which highlights examples of good practice and recommends areas for future action.

The Minister's Disability Advisory Council (MDAC) is a sub-committee of PDAC which provides advice to the Minister for Human Services in relation to specialist disability services.

DEPARTMENT OF HEALTH AND HUMAN SERVICES

In addition to whole-of-government systems and responses which address and prevent violence, abuse and neglect against people with disability, DHHS is responsible for a range of legislative and regulatory frameworks and practices that apply to the disability services sector.

The Disability Services Act 2011 (Tas)

The Disability Services Act 2011 (Tas)34 describes a safeguarding function for people with disability in relation to the use of restrictive practices through the role of the Senior Practitioner. The Senior Practitioner develops guidelines and standards, educates and informs the community sector and provides advice to the Secretary of DHHS, the Guardianship and Administration Board, disability service providers and funded private people to improve practices. The Senior Practitioner also has powers to investigate.

Under the Disability Services Act, the Secretary of DHHS is also able to appoint Authorised Officers. An Authorised Officer will only enter a property where a person with disability lives to make sure that the:  services that the government is paying for are being delivered;  person with disability is receiving the right support; and

34 Available at http://www.thelaw.tas.gov.au/tocview/index.w3p;cond=;doc_id=27%2B%2B2011%2BAT%40EN%2B20150511170000;histon=;pr ompt=;rec=;term=.

Tasmanian Government Submission 12 Senate Community Affairs Reference Committee

 person with disability is safe and well.

The Tasmanian Government has committed to implementing the National Standards for Disability Services35. The incorporation of the Standards as regulations in the Disability Services Act is expected to be approved by the Tasmanian Parliament in 2015.

Quality and Safety Standards Framework (DHHS)

DHHS’s Quality and Safety Standards Framework36 (the Standards Framework) applies to CSO funded by DHHS. The delivery of safe, high quality services to Tasmania consumers through DHHS funded CSOs is a key priority for DHHS. To achieve this priority, the Community Sector Quality and Safety Team in DHHS works in partnership with the community sector to implement the Standards Framework and to ensure that organisations develop and maintain integrated, effective and sustainable quality improvement processes.

The Standards Framework requires that CSOs:  continue to undertake quality and safety activities against recognised Standards relevant to the services DHHS is funding;  have systems and processes in place which record and monitor continuous improvement activities;  have systems and processes to ensure that feedback and learnings from incident outcomes contribute towards enhancing service delivery;  report serious consumer related incidents to the Funding Agreement Manager within 24 hours or the next working day;  can expect an annual visit from their DHHS Funding Agreement Manager to discuss/monitor performance; and  can expect a quality and safety audit, of the services that DHHS is funding via a Funding Agreement, at least once every three years.

The Standards Framework requires DHHS to:  provide support, as appropriate, to CSOs in responding to the immediate safety and wellbeing of consumers in the event of a serious consumer related incident;  support the participation of CSOs in an enquiry and/or investigation;  monitor CSOs’ compliance with the requirements of this policy;  provide de-identified, trended reporting to stakeholders on serious consumer related incidents occurring across CSOs; and

35 At the 18 December 2013 meeting of the Standing Council on Disability Reform, ministers from all jurisdictions endorsed the revised National Standards for Disability Services (NSDS). These standards are seen as a transitional reform enabling nationally consistent quality standards to apply for the disability services sector. They have a greater focus on person centred approaches and promote choice and control by people with disability. The standards are available at https://www.dss.gov.au/our-responsibilities/disability-and-carers/standards-and-quality-assurance/national-standards-for-disability- services. 36 Further information is available at https://www.dhhs.tas.gov.au/about_the_department/business/community_sector_relations_unit/quality_and_safety.

Tasmanian Government Submission Senate Community Affairs Reference Committee 13

 monitor compliance with the Consumer Related Serious Incident Reporting Policy for Tasmania's Agency Funded Community Sector Organisations (Serious Incident Policy).

Serious Incident Policy (DHHS)

The Serious Incident Policy requires DHHS funded CSOs to:  report all serious consumer related incidents to the relevant Operational Unit within 24 hours, or the next working day, after immediately addressing the health and wellbeing of those involved and securing the scene of the incident;  have localised policies and processes to support the effective implementation of the policy;  have systems to appropriately manage all serious consumer related incidents and ensure that they are progressed through open, responsive, fair and impartial processes;  take all reasonable steps to minimise the opportunity for occurrence / recurrence of all consumer related incidents;  investigate, identify and implement strategies that prevent or minimise the risk of incidents reoccurring, in a timely manner;  provide complete, comprehensive and consistent reporting to consumers on the management of all incidents, with the focus being to improve safety and quality; and  incorporate learnings from incidents, as well as trended analysis, into the systems and processes of the organisation to enhance the quality and safety of services.

Other Policies

In addition to policies outlined above, DHHS also maintains a register of related policies for CSOs including:  Preventing and Responding to Abuse in Services Policy and Procedure, which requires disability service organisations to report any allegations of abuse or neglect in their services and to actively investigate and report the actions to respond to allegations;  Compliments and Complaints Procedure, which relates to both disability and community services in DHHS and the funded community sector and details the procedure to be followed in relation to complaints of any type or seriousness; and  Restrictive Interventions in Services for People with Disability Policy and Guidelines, which details the role and intervention of the Senior Practitioner (as discussed above).

These policies, procedures and guidelines can be accessed at: http://www.dhhs.tas.gov.au/disability/publications/policies,_procedures_and_guidelines

Tasmanian Government Submission 14 Senate Community Affairs Reference Committee

GENERAL SYSTEMS AND RESPONSES (NOT DISABILITY-SPECIFIC)

The following systems and responses apply to all Tasmanians, including Tasmanians with disability, but are not disability specific.

Out of Home Care

The overarching framework for OOHC in Tasmania is the Children, Young Persons and their Families Act 1997 (Tas). The key principles of the Children, Young Persons and their Families Act, which to children with or without disability, include:  the primary responsibility for a child’s care and protection lies with the child’s family;  a high priority is to be given to supporting and assisting the family to carry out that primary responsibility;  if a family is not able to meet its responsibilities, the Secretary may accept them;  the best interests of the child must be of paramount consideration; and  serious consideration must be given to the desirability of keeping the child with their family, preserving and strengthening family relationships, maintaining familiar environments and preserving identity.

In addition, DHHS has a range of policies and procedures relating to OOHC that have a role in keeping all children safe while in OOHC.

Carer Recruitment and Registration Carer recruitment and registration is undertaken both within DHHS and by CSOs that are funded to provide OOHC. All carers undergo rigorous recruitment processes including appropriate checks and suitability assessments and training to ensure that children are placed in safe and appropriate placements and further violence, abuse or neglect is prevented. Foster and kinship carers are also subject to annual reviews to assess ongoing suitability and safety for the child.

Case and Care Planning Every child involved with child protection has a current Case and Care Plan. The Plan covers health and wellbeing, education, identity and social needs, contact and placement. Case and care planning for children entering or in OOHC is based on need identified through information collected and recorded, observations, discussions and conversations with the child and the key people in their life and other relevant assessments. The Plan identifies the child’s needs and describes how these needs will be met while they are in OOHC. In particular, the placement section would take into account any specific needs due to a disability and ensure an appropriate and safe OOHC placement. All children in OOHC have a DHHS case manager that regularly reviews and updates the Case and Care Plan.

Complaints in Care Processes The Secretary of DHHS has a legislative responsibility to ensure that children in OOHC receive a level of care consistent with the principles of the Children, Young Persons and their Families Act. To this end, all reports of concern that a child may have been abused, neglected or is not receiving an appropriate quality of care while in OOHC must be responded to in a timely, thorough manner that is child-focussed and promotes and prioritises their best interests.

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This includes concerns related to the provision of care ranging from minor quality issues through to severe and/or chronic abuse, neglect and emotional harm. Allegations of a more severe or chronic nature are responded to by the most skilled and qualified staff. The Responding to Care Concerns Impacting on a Child in Out Of Home Care Policy applies to both DHHS staff and CSOs that provide OOHC services.

Where services are purchased from CSOs, funding agreements outline the services that are to be provided, the outcomes to be achieved and any standards, policies and procedures that need to be adhered to, for example, National Out of Home Care Standards and Responding to Care Concerns Impacting on a Child in Out Of Home Care Policy. Funding agreements are managed by DHHS and include regular reporting cycles and review of performance.

The current OOHC Reform Project will strengthen processes to monitor and evaluate the delivery, quality and effectiveness of service provision. From July 2015, all funding Agreements will have significantly increased reporting requirements, including, but not limited to:  standardised and consistent carer/staff recruitment, training and qualification;  requirements regarding the visiting of children in placements by DHHS staff;  transparent processes for the sharing of information regarding children placed by DHHS with NGOs;  integration of stringent reporting and quality monitoring resulting in a significant improvement in the capacity of DHHS to be proactive in the protection of children in OOHC;  adherence to the National Out of Home Care Standards; and  all funded organisations achieving mandatory accreditation as Child Safe organisations.

Advocacy Mechanisms The Tasmanian Government also supports a range of advocacy mechanisms for children in OOHC, in particular, the Tasmanian Commissioner for Children. The Commissioner for Children is established under the Children, Young Person’s and Their Families Act, primarily to provide advice to the Minister on all matters relating to children and young people, promote the wellbeing of children and investigate matters as requested by the Minister.

A 2014 review of the role and function of the Commissioner considered a number of areas, including independence, ability to receive complaints, advocacy functions for children and the ability of the Commissioner to undertake ‘own motion’ investigations. Legislative changes are currently being progressed in response to the review recommendations and are expected to be considered by the Tasmanian Parliament during 2015.

DHHS also provides annual funding to the CREATE Foundation to deliver advocacy services to children and young people who are in OOHC placements funded by DHHS. These services include connection activities, consultation with children in OOHC and other activities designed to empower children and young people with the ability to speak out about their experiences in care.

Tasmanian Government Submission 16 Senate Community Affairs Reference Committee

Ashley Youth Detention Centre

Every action that occurs at AYDC is governed by the Youth Justice Act 1997 and is consistent with its objectives and principles. Where a young person is held in custody their health, wellbeing, education, and rehabilitation are all primary considerations in the administration of their detention at AYDC.

All young people who come to the AYDC are subject to a comprehensive assessment process. This assessment process informs the development of a case management plan. As part of their case management plan, young people participate in cognitive based therapeutic programs, programs that address specific offending and health needs, and programs that affect community integration such as education, employment, accommodation and leisure.

All young people held in AYDC are supervised at all times by staff and AYDC has a Behaviour Development System in place comprising two schemes designed to support positive behaviour and manage negative behaviour – the Incentive Scheme and the Incident Management Scheme.

The Tasmanian Commissioner for Children currently visits AYDC on a monthly basis and meets independently with young people. There is also a bi-monthly Resident Feedback Program that involves DHHS staff external to AYDC meeting with young people at the facility. Young People within AYDC have access to complaints mechanisms, including via the Tasmanian Ombudsman. In addition, there is a quality improvement process that assures the accountability and continuous improvement of programs and services provided by AYDC.

This quality improvement process is based on the Australasian Juvenile Justice Administrators National Standards. The process involves an annual self-assessment against these national standards, followed by an annual review involving DHHS staff external to AYDC.

Mental Health

The Mental Health Act 2013 (Tas)37 provides a framework for the assessment, treatment and care of people with mental illnesses both in the community and in approved facilities. The Mental Health Act reflects a capacity framework and does not allow a person with decision-making capacity to be assessed or treated against their will. It establishes decision-making capacity as a criterion that must be met before a person may be placed on a compulsory Assessment or Treatment Order and requires decisions which infringe a person’s rights to be independently oversighted and reviewed.

The Mental Health Act establishes the following oversight mechanisms:

Mental Health Tribunal The Tribunal consists of independent legal and medical experts appointed by the Governor. The Tribunal is responsible for making Treatment Orders and for reviewing other decisions such as the making of Assessment Orders and decisions to institute seclusion or restraint. The Tribunal is also required to review each Treatment Order at regular intervals while the Order is still in effect and following the patient’s admission to an approved facility. The Tribunal also has the power to review other decisions on its own motion or on the request of a patient or other person with the necessary legal standing.

37 Available at http://www.thelaw.tas.gov.au/tocview/index.w3p;cond=;doc_id=2%2B%2B2013%2BAT%40EN%2B20150511110000;histon=;pro mpt=;rec=;term=.

Tasmanian Government Submission Senate Community Affairs Reference Committee 17

Chief Civil Psychiatrist and Chief Forensic Psychiatrist The Chief Civil Psychiatrist has general overall responsibility for ensuring that the objects of the Mental Health Act are met in respect of patients other than forensic patients and people who are subject to supervision orders, and for the running of approved hospitals and approved assessment centres. The Chief Forensic Psychiatrist, in turn, has general overall responsibility for ensuring that the objects of the Act are met for forensic patients and people who are subject to supervision orders, and for the running of secure mental health units. Each of the Chief Psychiatrists has the power to issue standing orders and clinical guidelines to direct and assist clinical personnel in the performance of functions under the Act and to directly intervene with regard the assessment, treatment and care of any patient.

Principal Official Visitor and Official Visitors The Principal Official Visitor is an independent person appointed by the Governor. The Principal Official Visitor has the power to appoint Official Visitors and has functions including arranging for Official Visitors to visit approved facilities and other premises, receiving complaints from or concerning patients, assessing and conducting preliminary inquiries into complaints received, referring suspected contraventions of the Mental Health Act or of standing orders or clinical guidelines as appropriate, and referring particular matters of concern to the Minister for Health or relevant Chief Psychiatrist.

Under the Mental Health Act it is an offence:  to give a patient treatment without informed consent or authorisation under the Act; and  for a person to intentionally ill-treat or neglect a person knowing that the person has a mental illness and, is in consequence of the mental illness, unable to take proper care of him or herself.

In addition to the systems and frameworks outlined above, all clients of DHHS delivered or funded services may seek support from the Anti-Discrimination Commissioner38, the Tasmanian State Ombudsman39 and the Guardianship and Administration Board.

The Tasmanian Guardianship and Administration Board

The Guardianship and Administration Board (Tasmania) (the Board) is a specialist tribunal established under the Guardianship and Administration Act 1995 (Tas)40. The Board is funded through the Department of Justice, but is independent of Government in its decision-making functions41.

The Board conducts hearings to determine applications about adults with a decision making disability who are incapable of making their own decisions and who may require a legally appointed substitute decision maker.

38 As noted on page 4, the Office of the Anti-Discrimination Officer is providing a standalone submission to this Inquiry. Further information about the Anti-Discrimination Commissioner is available at http://www.antidiscrimination.tas.gov.au/ 39 Refer to http://www.ombudsman.tas.gov.au/. 40 Available at http://www.thelaw.tas.gov.au/tocview/index.w3p;cond=;doc_id=44%2B%2B1995%2BAT%40EN%2B20150511110000;histon=;pr ompt=;rec=;term=. 41 Further information is available at http://www.guardianship.tas.gov.au/home.

Tasmanian Government Submission 18 Senate Community Affairs Reference Committee

The Board can make substitute decisions on behalf of a person with a disability, including:  giving consent to medical or dental treatment in circumstances where there is no person responsible or for special treatments;  approving the use of a restrictive intervention;  making a statutory will for a person with a disability who has not previously made a purported will;  giving advice and direction to an administrator, a guardian, an enduring guardian or an enduring attorney; and  the Board keeps a register of enduring guardianships (ie privately appointed guardians).

The first principle in guardianship and administration (financial management) law is that a person is presumed competent unless there is a finding to the contrary. Therefore the Board’s starting point is that persons with disabilities are capable of making reasonable decisions about their personal welfare until it is proven otherwise.

Under the legislation, the Board makes substitute decisions about people with disabilities according to legislative principles, which centre upon three basic requirements: 1. adopting the means which is the least restrictive of a person's freedom of decision and action as is possible in the circumstances [least restrictive alternative]; and 2. promoting the best interests of a person with a disability [best interests]; and 3. wherever possible giving effect to the wishes of a person with a disability [wishes].

Since the ratification of the United Nations Convention on the Rights of Persons with Disabilities the Board also takes into account the rights and principles under the Convention.

Where a person with a disability is emotionally, financially or personally dependent upon a person accused of being abusive to them, these principles can be extremely hard to balance. The person’s wishes and their best interests may be diametrically and diabolically opposed. When a person has a decision making disability, substitute decision making means the ‘objective’ decisions of others can be imposed. It is more likely than not those ‘objective’ decisions will be protective in nature, meaning a person will be removed from the abusive or neglectful situation to respite or supported accommodation in the short or long term. It is very difficult for a substitute decision maker to make any other decision, especially when many substitute decision makers are statutory agencies appointed in emergency situations. While the Board would be clear that their first responsibility is to the safety of the person with a disability, the end effect is that the person with a disability has less right to make a choice about the future of their accommodation. This reverses the standard response to an offence that has been committed against a person, where it is the offender whose rights are limited, for example by imprisonment.

Tasmanian Department of Education Systems and Frameworks

The Tasmanian Department of Education (DoE) has a Child Protection and Children in Care Policy available to all schools and employees. The Policy is currently being updated in collaboration with DHHS as a Mandatory Reporting Policy. All Tasmanian Government school staff are provided with training in Mandatory Reporting that contains child sexual abuse content.

Tasmanian Government Submission Senate Community Affairs Reference Committee 19

DoE provides teachers with resources under the Good Teaching Suite that includes, Differentiating Classroom Learning and Curriculum Mapping and Planning for Learning. Inclusive Schools - Disability Focus was launched in July 2014 and Inclusive Schools - Diversity Focus is currently being developed.

All Tasmanian Government schools are implementing DoE’s Learner Wellbeing and Behaviour Policy that ensures that schools provide safe and inclusive learning environments so that all learners have the best opportunity to strive for excellence and reach their potential. DoE’s Respectful Schools and Workplaces Framework also outlines the priorities and strategies that contribute to safe and inclusive learning environments for students and young people.

In 2014, DoE’s School Expectations and Support document prioritised the implementation of the Respectful School, Respectful Behaviours Framework42 and booklet to support schools in ensuring that school environments are calm, orderly, respectful and able to focus on student learning outcomes. A strong commitment was made by all schools in 2014 to engage with the anti-bullying and anti-harassment work of Professor Donna Cross, in consultation with DHHS and the Department of Police and Emergency Management.

SYSTEMS AND FRAMEWORKS ADDRESSING DIMENSIONS OF VIOLENCE, ABUSE AND NEGLECT

The National Plan to Reduce Violence against Women and their Children 2010-2022

The Tasmanian Government is a signatory to the Council of Australian Governments (COAG) National Plan to Reduce Violence Against Women and their Children 2010-2022 (National Plan) which was endorsed on 15 February 2011. The vision of the National Plan is that ‘Australian women and their children live free from violence in safe communities’.

At a national policy level, building on Stop the Violence: Addressing Violence Against Women and Girls with Disabilities in Australia project, undertaken in the National Plan First Action Plan, is essential to ensure women with disability do not face barriers in seeking support from service providers across the continuum of care required. Evidence from the project research indicates that the siloed nature of service delivery administered under gender, violence or disability often place women with disabilities who are at risk of or experiencing violence outside the remit of the system.

At a state level, the Tasmanian Government will continue to seek to ensure that the needs of women and girls with disability are considered in its implementation of the National Plan. The Second Action Plan (2013 -2016) of the National Plan contains 26 practical actions that all governments agree are important for improving women’s safety. It prioritises initiatives for women with disability who experience family violence and sexual assault.

In May 2015, the Tasmanian Minister for Women launched Moving Ahead: Tasmania’s Second Implementation Plan in support of the Second Action Plan of the National Plan. The major priority for the Tasmanian Plan is continuing to implement Taking Action: Tasmania’s Primary Prevention Strategy to Reduce Violence Against Women and their Children 2012-2022, which is Tasmania’s response to the National Plan.

42 Available at https://www.education.tas.gov.au/documentcentre/Documents/Respectful-Schools-and-Workplaces-Framework.pdf.

Tasmanian Government Submission 20 Senate Community Affairs Reference Committee

The Tasmanian Government is also providing $100 000 over three years to ANROWS to build the evidence and best practice in primary prevention that will support the needs of women living with disability.

The focus on primary prevention is complemented by national efforts such as Our Watch, a national foundation which aims to change the underlying causes of violence against women and Tasmanian Government strategies including improving gender equality through the Tasmanian Women’s Plan 2013- 2018.

In particular, the development of a gender mainstreaming policy and gender analysis toolkit for Tasmanian Government agencies will help ensure that policy makers across portfolios apply a ‘gender lens’ in policy, program and service development, and consider the needs of women, including women with disability.

The Tasmanian Government will also continue to implement initiatives aimed at improving and strengthening our justice and service systems, improving perpetrator interventions, collecting and maintaining robust data collections to build strong evidence bases, and recognising and understanding the diverse experiences of violence for women with disability, culturally and linguistically diverse women, Aboriginal and Torres Strait Islander women and women across a range of age groups.

Aboriginal and Torres Strait Islander women Under the National Plan, governments are supporting Aboriginal communities in developing and implementing local solutions across family violence. DPAC has engaged the Tasmanian Aboriginal Centre (TAC) to update and re-introduce two existing, but outdated resource booklets. The palawa kids can say no booklet and the family violence is not ok! for palawa kids’ booklet were created in 2003 and although both were considered best practice documents at the time, they will now be updated to align with the National Standards for working with Children and Young People living with Domestic Violence.

DPAC is also working with the TAC on a project that will see the organisation, as a registered training organisation, deliver a course that will develop the skills of Aboriginal and Torres Strait Islander people in the area of family violence responses.

These projects also link to the new COAG Indigenous reform agenda being progressed through the Working Group on Indigenous Affairs. This agenda recognises that without safe and stable communities, investment in areas such as housing and education will fail to make a difference.

Culturally and linguistically diverse women Understanding how governments can better prevent violence against women from culturally and linguistically diverse (CALD) backgrounds and support CALD women who are affected by violence is another priority under the Second Action Plan of the National Plan

Initiatives being undertaken in the next three years to support CALD women and their children include funding Our Watch to strengthen the focus on CALD women and communities and deliver a CALD- specific primary prevention project; funding ANROWS to research ‘what works’ for stopping violence against CALD women and their children; and developing a communications strategy to improve access to information and resources for CALD women and communities and to show what opportunities there are for participation and leadership.

Tasmanian Government Submission Senate Community Affairs Reference Committee 21

Elder Abuse

The Tasmanian Government’s response to elder abuse is the whole-of-government prevention strategy, Protecting Older Tasmanians from Abuse43. Under the Strategy, the Tasmanian Elder Abuse Helpline was established. The Helpline is operated on behalf of the Tasmanian Government by Advocacy Tasmania Inc and it provides callers with information, advice and referral on actions they can take to prevent and respond to elder abuse.

The Tasmanian Government also has a community awareness campaign - 'elder abuse is not okay'. The campaign features television, online and newspaper advertisements and posters aimed at informing the community about elder abuse and to send a clear message that elder abuse will not be tolerated in our community.

Abuse in a residential aged care setting is a failure of care by the provider whose responsibility is to ensure residents are safe. The Australian Government, which funds and regulates residential and community aged care services in Tasmania, amended the Aged Care Act 1997 (Commonwealth)44 to provide legislative protection for older adults in residential care. Under the amended Act, there is compulsory reporting of physical and sexual abuse, and all staff require police checks45.

In cases of concern over the conduct of a health or community care professional, including allegations of alleged abuse, several actions are possible including, lodging a complaint with:  the Agency employing the worker;  the Health Complaints Commissioner Tasmania46;  the Tasmanian State Ombudsman47; or  the Australian Health Practitioner Regulation Agency48.

National Disability Insurance Scheme

The National Disability Insurance Scheme (NDIS) is working to achieve significant advancement in the care and support for Australians with disability. Tasmania was selected as a launch site for the NDIS. Tasmanian Government agencies continue to work with the National Disability Insurance Agency to implement the NDIS Tasmanian trial and work toward full implementation of the NDIS in Tasmania. This collaborative work has resulted in strong satisfaction levels being recorded by participating clients and families. The Tasmanian Government will do all it can to work with the Australian Government to introduce a full NDIS that provides appropriate support for all Tasmanians in need.

43 Available at http://www.dhhs.tas.gov.au/disability/projects/elder_abuse. 44 Available at http://www.comlaw.gov.au/Details/C2013C00389. 45 Protecting Older Tasmanians, page 10. Available at http://www.dhhs.tas.gov.au/disability/projects/elder_abuse. 46 Refer to http://www.healthcomplaints.tas.gov.au/. 47 Refer to http://www.ombudsman.tas.gov.au/. 48 Refer to https://www.ahpra.gov.au/Notifications/Make-a-Notification.aspx.

Tasmanian Government Submission 22 Senate Community Affairs Reference Committee

5. ROLES AND RESPONSIBILITIES

State and territory governments currently have responsibility for regulating the disability services sector. However roles and responsibilities for safeguarding people with disability receiving support services will change as a result of the roll out of the National Disability Insurance Scheme (NDIS).

The transition to the NDIS provides a welcome opportunity to review and strengthen safeguards for all people with disability using disability services. For example, the Tasmanian Government is actively engaging with the Australian Government, other state and territory governments and the National Disability Insurance Agency in the development of the draft NDIS Quality and Safeguarding Framework. The Framework aims to ensure that same level of quality and safety in services is provided in every jurisdiction. It also aims to promote choice and control for people with disability, protect people from abuse, promote mechanisms for people with disability to make a complaint, ensure that services have good practice in regard to recruiting the right staff, provide a safety framework that offers protection to people who choose to manage their own NDIS plans, and reduce or eliminate the use of restrictive practices.

The development of the NDIS Quality and Safeguarding Framework (the Framework) is occurring through processes established under the oversight of the Disability Reform Council and COAG. The Tasmanian Government will continue to work through these fora to respond to feedback received via the current public consultation process and finalise the Framework.

The Tasmanian Government will actively participate in additional opportunities provided through the transition to the NDIS to transform and strengthen and improve the disability services sector to ensure the aims of the NDIS are realised.

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Appendix 1: Guardianship and Administration Board The following case studies provide examples of where a residential facility overlooked the rights of the resident in favour of other considerations. The full cases are available at http://www.austlii.edu.au.

HDH (No 1) (Guardianship) [2005] TASGAB 2 A 93 year old man with dementia was deprived of contact with his female companion of many years when an aged care facility acted on instructions from the man’s family who did not approve of the friendship (but contrary to the resident’s wishes). When a guardian was appointed and contact was resumed, the pair had been separated for 12 months.

MF (Administration) [2007] TASGAB 1 The mother of a 23 year old woman in supported accommodation applied to the Board for appointment as her administrator, as the supported accommodation facility demanded control of all of the resident’s accounts. The Board stated: “17. The Board believed that lack of flexibility was based upon an excessively rigid interpretation of organisational values espoused by GHA (the accommodation provider). One such value was the assumption that financial management in a supported facility must be rigid and uniform between residents to be effective and accountable. This is not consistent with the overall goal of making life in supported accommodation as normal as possible. In homes shared by young adults, residents can have different methods of financial management according to their different needs and income sources. The Board believed that Miss M.F. need not feel ‘singled out’ for having different financial systems if all parties cooperate towards accepting a diversity of approach. 18. Another value that the Board took issue with was the implied assumption that following transition, the influence of Mrs F.C. and other members of Miss M.F.’s family should automatically or significantly diminish in favour of the planned strategies developed by the trained staff at the home. Both values seemed to the Board to arise from a possibly unconscious denial by GHA staff of the importance and normalcy of continued family rituals, relationships and interdependence after a young adult leaves their family home.”

ENT (Guardianship) [2008] TASGAB 2 A 32 year old man with a head injury was being held in a secure psychiatric ward (inappropriate accommodation) without his consent and with no clear source of authority. The Board recommended that the accommodation provider seek legal advice about their potential liability for an action of in false imprisonment or similar tort and for the criminal charge (as principals or accessories) for the criminal charge of assault as constituted by unlawful deprivation of liberty. The man, represented by the Public Trustee as administrator, was eventually successful in obtaining a payment of compensation under a settlement. The Board has produced two policies which relate to these kinds of circumstances. These are: http://www.guardianship.tas.gov.au/__data/assets/pdf_file/0006/152385/Management_of_Residents_Funds_2 0_7_10.pdf; and http://www.guardianship.tas.gov.au/__data/assets/pdf_file/0009/203967/Detention_of_people_with_dementi a_in_secure_facilities.doc_31.7.12.pdf.

Tasmanian Government Submission 24 Senate Community Affairs Reference Committee

Department of Premier and Cabinet GPO Box 123 HOBART TAS 7001

Visit: www.dpac.tas.gov.au