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A Critique - Community Visitors Board, Victoria, Report

 25 Sept, 2014  

1.         The Purpose of this paper

The recent release of the Community Visitors Annual Report 2013–2014 by the Office of the Public Advocate demands that the report be critiqued.  This is particularly so given the role of Community Visitors, the report’s contents and its recommendations.  In assessing the actual impact Community Visitors have in "promoting human rights, interests and dignity of Victorians with a disability", and in fulfilling their obligations under the Disability Act 2006, the Annual Report stands as a significant document. 

The significance of the Annual Report cannot be understated.  Not only is it a public document which is tabled in Parliament, but it must also be assumed to be a document that through its reporting seeks to promote the need for particular changes aimed at enhancing the provision of services to people with a disability in residential settings.  As noted by the Public Advocate in her Message at the commencement of the report, the report should function as “an early warning system highlighting where sector change is needed”.  As noted further below in this paper, the writers submit that the report is deficient in providing quantitative data to support the recommended changes and is also deficient in failing to detail the breaches of the Disability Act 2006 and the entities who have broken the law. 

This critique specifically addresses the report’s contents as applying to disability services only.  The critique therefore focuses solely on disability service providers, including the Department of Human Services, and the recommendations concerning disability services as contained in the report.  The critique also comments on what might be considered as omissions or matters not addressed in the report.

The roles, relationships and functions of the Office of the Public Advocate (OPA) and Community Visitors are an important consideration in assessing the report, given that it is the Public Advocate who has direct responsibility for Community Visitors.  It is also the Public Advocate who sits on the Community Visitors Disability Services Board.  Sections 28 to 36 inclusive of the Disability Act 2006 (the Act) govern the work of the Community Visitors as applicable to disability residential services.

Significantly, the functions of Community Visitors are detailed in Section 30 of the Act and provide Community Visitors with the authority to inquire into eight specific matters.  Section 33 authorises Community Visitors to refer a matter, via the Community Visitors Board, to the Secretary of the Department of Human Services, the Disability Services Commissioner, the Senior Practitioner or the Ombudsman. 

2.         Addressing the Contents of the Report

While the writers acknowledge the report provides comment from a statewide perspective as well as an individual division perspective, the following comments are primarily focused on the references as made in the statewide section of the report.  However, where appropriate, the writers have, for illustrative purposes, made reference to particular comments made under particular divisional sections of the report.

As noted below, the commentary made under each of the ten headings, as referenced in the statewide section of the Community Visitors Report, addresses: (a) the comment in the report, (b) recommendations made in relation to the individual sections, followed by (c) the writers’ critique of both the report’s content and recommendations.

  1. Abuse and Neglect
  1. The report

The Community Visitors report significant concerns from across the state as to abuse and neglect occurring in residential facilities.  They note that the abuse and neglect is physical, sexual, emotional and also includes neglect of healthcare.  They further report their belief that the neglect is systemic in group homes.  They also make the comment that at least in part this neglect occurs as a result of inadequate funding. 

Significantly, the report states “abuse and neglect has been a continuing theme in Community Visitors annual reports in recent years.”  While the report acknowledges advice provided to Community Visitors that a change in organisational culture is aimed at eliminating abuse and neglect and the Community Visitors Board expresses a view that “both DHS and CSOs are working hard to achieve change”, it is further noted that during this transitional period residents in group homes continue to suffer. 

The report also, under this section, makes reference to incident reporting and expresses the view that “accurate, open and comprehensive incident reporting is integral to eliminating abuse and neglect”.  The report does, however, question the efficacy of incident reporting, suggesting that in some instances incidents go unreported, or they are poorly reported. 

  1. The recommendations

Of the 16 recommendations made in the report, two specifically relate to the matter of abuse and neglect.  One recommendation seeks for a formal independent inquiry into abuse and neglect in group homes to be instigated.  The second recommendation seeks to have the OPA guidelines regarding abuse and neglect and the National Disability Services Zero Tolerance project form part of the funding and quality requirements.

  1. The critique

While the writers of this critique accept the concerns as expressed in the Community Visitors report, they also express surprise that, given these concerns have been reported in successive Annual Reports, follow-up action does not appear to have been taken by either the Community Visitors Board or the Public Advocate.  Instead, concerns are held over for release in the Annual Reports.  The option of the Community Visitors Board referring matters to either the Public Advocate or the Minister, at any time, is available to the Board under section 32(3)(d).

As referenced further above, section 33 of the Disability Act also provides the Community Visitors Board with the authority to refer any matter to the Secretary of the Department, the Disability Services Commissioner, the Senior Practitioner or the Ombudsman.  Given that the alleged abuse in care is allegedly systemic and has been occurring over many years, the writers submit that the Community Visitors Board appears to have been remiss in not pursuing their concerns more vigorously. 

Given that the Community Visitors report makes no reference to any such action having been taken by the Board, it is reasonable to assume that, other than via the Annual Report, the Board has not pursued the matter of abuse and neglect.  While the writers acknowledge reference in the report to the interagency guidelines developed by the OPA, they contend that as a standalone initiative this is not sufficient to address the significant issue of abuse in care as reported by the Community Visitors. 

The writers are critical that the Community Visitors Board, although expressing concern about abuse in care and alleging that this is systemic, presents no evidence to demonstrate that they have taken leadership in pursuing their concerns with those individuals and organisations who could address their concerns.

After all, in terms of the Secretary of the Department, not only does she have authority over departmental managed residential services, but also, as the funder to non-government sector residential services providers as well as being the registering authority for service providers, she has significant functions and power under sections 8, 9 and 10 of the Disability Act. 

In relation to the Disability Services Commissioner, given that any person may make a complaint to him, section 110, and given that such complaints may arise out of the provision of services by a disability service provider, section 109(a), as well as the fact that the Commissioner must investigate complaints relating to disability services, section 16(a) and 118(1)(a), then again it is reasonable to ask why the Community Visitors Board has not seen fit to refer their concerns to the Commissioner. 

The Senior Practitioner has functions under the Disability Act particularly relating to restrictive interventions and compulsory treatment, which in some instances could be related to abuse in care. 

In terms of the Ombudsman, section 13(2) of the Ombudsman Act 1973 provides the Ombudsman with the power to “inquire into or investigate” particular administrative actions.  Such inquiries or investigations can also address the matter of whether or not such actions are “incompatible with a human right set out in the Charter of Human Rights and Responsibilities 2006”.

The writers must also be critical that despite the comments made in relation to alleged abuse and neglect, the Community Visitors report provides no specific detail, via data, as to the nature and extent of the abuse and neglect.  The only figure provided identifies the “number of issues identified for the 2011-12, 12-13 and 13-14 years” (p 66).  The writers further suggest that the provision of such data would strengthen the reporting of the issues. 

  1. Incident Reporting
  1. The report

The report expresses concern that there is “no centralised or integrated system for incident reports in group homes.”  The report also makes reference to DHS endorsing and embedding OPA’s Interagency Guidelines Addressing Violence, Abuse and Neglect (IGUANA) into the practice of funded disability service organisations as part of the funding and quality requirements.

  1. The recommendations

The report addresses two recommendations as concerning incident reports.  The first calls for the “full public reporting of all incidents and allegations of abuse and neglect, as well as the outcomes of these reports and any investigations”.  The second requests that the “Ombudsman inquire into the efficacy of the current system of incident reporting in group homes”. 

  1. The critique

The writers note that in addition to the reference to incident reports under that specific heading, comment was also made under the abuse and neglect heading.  

The writers note that under particular divisional reports concern is expressed that the Community Visitors do not always have access to incident reports.  While the writers understand that a copy of incident reports as pertaining to individual clients should be filed on the individual client’s file, nonetheless they do support the recommendation as expressed in the report, that there should also be what might be called an “incident report file”. 

Notwithstanding this, the question still remains as to incident reports not always being accessible by Community Visitors.  If this is a regular occurrence, and is a particular concern regarding particular agencies or group homes, then the writers argue that these agencies and outlets need to be named.  They argue that the matter of incident reporting has the potential to be a significant indicator of how well an organisation is providing its service and how well such services are being managed.   The writers submit that the niceties of reporting should not be used as an excuse not to “name and shame”. 

On the matter of the second recommendation, while the writers acknowledge this is a recommendation that the Ombudsman inquire into the efficacy of the current incident reporting system, they wonder why such a request would be made in an annual report to a Minister, and not as a direct formal request to the Ombudsman.  Notwithstanding this recommendation, the writers express surprise that the Community Visitors Board has not requested the Public Advocate to initiate a review of the efficacy of the incident reporting system.  It seems to the writers that the Public Advocate could well have a significant leadership part to play in pursuing many recommendations and issues, including this recommendation, as made in the Annual Report. 

  1. Respite Care
  1. The report

The report expresses concern as to the number of people with disabilities, including children, who are accommodated on a long-term basis in respite facilities.  For the reporting year, the report identified 34 people, including 15 children, living in long-term respite accommodation.  They also reported that some adults had “lived in respite facilities for up to seven years”. 

The report noted the response from DHS that “a register of children with a disability living in out of home care has been developed, and that DHS divisions are responsible for maintaining this register” (p 67). 

  1. The recommendations

The report recommends the provision of new and permanent accommodation to meet the needs of all people currently living on a long-term basis in respite accommodation. 

  1. The critique

While the writers concur with the concerns as expressed in the report regarding the use of respite beds as a long-term accommodation option for both adults and children, nonetheless the writers submit that the Community Visitors Board appears to have been diverted by DHS by reference to the register for children and the expectation that respite facilities registered under the Disability Act are expected to adhere to the principles and objectives of the Act. 

While it may well be that as reported by the Community Visitors adherence to the principles and objectives of the Act may not always be upheld, the writers argue that the significant issue is the use of respite beds as a long-term option, and the resultant outcome being a reduction in the availability of respite for genuine respite needs. 

Again, the writers contend that the provision of data relating to the total number of respite beds across the state and their breakdown into regions as well as those being used as long-term options would have enhanced the reporting under this heading.  Indeed, the writers believe that the report in effect lets the department “off the hook”.  While inappropriate use of respite beds as an ongoing placement is in part clearly a matter of the lack of availability of long-term accommodation, that children are being placed in long-term care, and also that the rights of both the children and the adults are being transgressed, are matters that require greater scrutiny.

While the Community Visitors have raised this issue, the writers note that there is no reference or recommendation relating to seeking input from the Commissioner for Children and Young People.  It seems reasonable to conclude that the use of respite beds as a long-term accommodation option cannot be divorced from the situations that lead to such decisions.  In turn, this therefore raises the question of the types of supports that may be available to families, and in some instances the provision of behaviour support by departmental staff. 

  1. Unmet Need for Accommodation
  1. The report

The report makes reference to inadequate forward planning and resourcing.  It further comments that the shortage of supported accommodation often leads to inappropriate placement in a group home because that is where the vacancy exists, and as such this is regardless of the needs of the client being placed or the existing residents.  The report expresses the “high likelihood of incompatibility” of residents.  The report advises that DHS has informed the Board “supporting complex clients is not yet clearly identified in future budget arrangements”.

  1. The recommendations

The report recommends the provision of accommodation options to address situations where people in group homes are at risk of assault and neglect. 

  1. The critique

The writers find it concerning that the report makes no reference to the Disability Support Register and how this operates, and indeed the increase in the number of clients on this register.  Also, further, that there would be many people on the register who have been waiting for a supported accommodation place for many years. 

Clearly, from the writers’ perspective, long-term accommodation and support continues to be the significant issue facing the disability sector.  Yet, despite this, and recognition of its association with ageing parents continuing to have to provide accommodation for their family member with a disability in the family home, the planning, funding and access processes for long-term accommodation continue to be totally inadequate.

The writers believe that given the significance of long-term accommodation and its reference in the Community Visitors Report, the report could have emphasised to a greater extent the failure of the department and successive governments to adequately deal with this issue.

  1. Upkeep of Buildings and Fittings
  1. The report

The report highlights this as a long-term and ongoing concern.  In particular, it notes that in one area despite maintenance money being available for bathrooms and kitchens, maintenance issues in relation to bathrooms have not been addressed. 

The report also noted that the Community Visitors were unable to identify any government “strategies or budget resolutions to address maintenance issues in group homes”.  The report also noted their concerns as not being limited to DHS owned properties, but also that Singleton Equity Housing properties are becoming increasingly problematic. 

  1. The recommendations

The report recommends an immediate increase in the maintenance budgetFurther, it also recommends that all housing for people with disabilities should be of a satisfactory standard and that the audit of DHS-owned group homes should be finalised in order to identify refurbishment or replacement requirements. 

  1. The critique

While the two recommendations associated with this area are legitimate, a concerning feature regarding the reporting is that the matter of maintenance and replacement is not a new issueIn terms of the audit which is apparently being undertaken in DHS-owned group homes, no mention is made of how long this audit has been going on, who is undertaking it, and who the audit will report to.  The Community Visitors make no mention of what they consider an appropriate date for finalisation. 

The writers suggest that even greater emphasis should have been placed on this issue. 

While it is all very well for the report to make a call for an increase in funding, it failed to raise the question as to why part of the current maintenance budget, for bathrooms, has not been utilised. 

  1. Individual Planning
  1. The report

The report is critical that “individual planning and communication support for residents has not been adequately provided”.  While the report makes reference to DHS advice that direct care staff must have practices in place as in accordance with the Residential Services Practice Manual (RSPM), the report also notes that funded agencies, although not required to adhere to the RSPM, are expected to have comparable policies in place. 

  1. The recommendations

The single recommendation relevant to this section of the report seeks for “all people with complex communication need to have a communication assessment conducted by a speech pathologist by June 30, 2015.”

  1. The critique

The Disability Act, sections 52 to 55 inclusive, mandates specific requirements in relation to individual client planning.  Of greater import, however, is section 54, which requires that a service provider must prepare and review a support plan when ongoing support is being provided.  Therefore, despite the report rightly raising concerns about the inadequacy of individual planning as well as communication support, the writers note that the report makes no reference to the mandated requirements of the Act, nor is any specific data provided as to the extent of this deficit.  In essence, if, as reported by the Community Visitors, planning is not being adequately provided, then the writers believe there is an onus on the report to clearly state that this is a breach of the Disability Act.

In relation to the recommendation, the writers query whether the issue is simply about communication assessments as opposed to the application of effective communication strategies, specific to the individual client.  Indeed, it is reasonable to assume that there are a number of clients who have been assessed by a speech pathologist, yet no reference is made in the report as to this and how effective the assessments have been in terms of establishing practical communication strategies for staff to implement with the client. 

  1. Community Inclusion and Access
  1. The report

While the report noted the requirement under the Disability Act to advance participation in the community, the report focussed exclusively on the lack of availability of suitable transport, particularly that to accommodate clients in wheelchairs.

  1. The recommendations

In terms of the recommendations, the report calls for an immediate increase in the vehicle fleet “to ensure that every group home has a vehicle appropriate to the needs of its residents”. 

  1. The critique

While the writers acknowledge the requirements of the Act and support the concept of community inclusion, nonetheless they consider that the report adopted a very narrow focus in relation to this area.  While vehicle transport, appropriate to the needs of clients, is desirable, the report made no reference as to how many houses across the state do have access to a dedicated vehicle, or where a vehicle is shared between houses, or the number of houses that do not have access to a vehicle.  Further, the writers also note that the report made no reference to other opportunities that may exist to facilitate community inclusion.  As such, the writers are concerned that the report’s focus on increasing the vehicle fleet has the potential to detract from the real intent of community inclusion and the multiple ways in which this may be facilitated.

Again, no data was provided to quantify the extent of the lack of suitable transport and whether the lack of transport relates to a DHS or a CSO-managed home.

  1. Staff Support
  1. The report

The report is highly critical of the inadequacies in staffing within group home facilities.  The report notes the high use of casual staff and the negative impact of this, deficits in important skills and the dysfunctional nature of staff teams.  It also notes ongoing changes or lack of permanent house supervisors.  The report also makes comment in relation to the importance of the minimum training at Certificate IV level and the registration of staff working with people with disabilities. 

  1. The recommendations

The report makes two recommendations regarding this area.  The first relates to ensuring that all staff working in the accommodation sector are trained and registered to a Certificate IV standard.  It is argued that this would provide a competent workforce able to meet the principles and objectives of the Disability Act. 

The second recommendation calls for an urgent addressing of shortages in the disability services workforce.  This recommendation also calls for the progressing the Community Sector Workforce and Education Strategy report and a particular focus on values-based training as detailed in the government’s response to the Community Visitors 2011-12 report.

  1. The critique

The writers do not disagree with the importance of minimum qualification levels and registration.  They also do not disagree with the significance of the deficits in relation to staffing as outlined in the report.  However, the writers note that the heading of this section of the report is “Staff support”.  Yet, despite this, the report makes no reference to the significance of management and supervisory practices, and any deficits that might be occurring in relation to these.  Also, it makes no reference to consequences where staff fail to meet their employment obligations, including their duty of care to those people they support, noting that this applies to staff whether they are trained or not. 

The writers further express the view that of themselves qualifications and registration do not necessarily, “provide a competent workforce who are able to meet the principles and objectives of the Disability Act 2006.”  It is unfortunate that the report provides no information in relation to whether or not there is a distinction between the performance and application of untrained staff versus those who do have Certificate IV or above.  Indeed, the writers suggest that it is naïve to believe that simply because someone has a particular qualification that they will necessarily perform their duty in a competent way or they will necessarily enact the principles and objectives of the Disability Act.  As such, it is for this reason that the writers express their concern as to the failure of the report to make any reference to the quality of management and supervision as a vehicle for staff support.

In addition to the above, the writers also submit that it is not good enough for the report to make unsubstantiated comment.  They argue that to refer to the number of casual staff or the number of unfilled house supervisor positions without quantifying the actual numbers is unacceptable.  The quantification of such significant issues must be considered as a first step in seeking change.  

  1. Institutions
  1. The report

The report welcomed the announcement of the closure of the Oakleigh Centre and also made comment in regards to pending assessments and outcomes for Colanda residents as relating to the National Disability Insurance Scheme (NDIS) trial in Barwon.  The report noted that Plenty Residential Service (PRS) is not listed as an institution.  Nonetheless the report saw fit to make critical comment that the service has “cluster housing and a staff culture reminiscent of institutional practice”.  The report further commented “vulnerable people living at PRS are being placed at risk by new residents who have behaviours of concern, and some with involvement in the criminal justice system.”  The report further commented, “many long-time residents at PRS could easily live in the community rather than at this ‘cluster’ site”. 

  1. The recommendations

The report recommends expediting the closure of the Oakleigh Centre and Colanda as well as determining the future of Plenty Residential Services. 

  1. The critique

While noting the report’s reference to the Oakleigh Centre and Colanda, the writers express surprise there is no reference made in the statewide section of the report to the Sandhurst Centre, although there was reference made in the section on the Loddon Region.  In addition to this, the writers also express surprise that the report does not acknowledge that the Oakleigh Centre is not declared as an institution.  Further, although the report acknowledged that PRS is not an institution, nonetheless the report saw fit to also include it under the institutional heading. 

The writers argue that by the inclusion of Oakleigh and Plenty under the institutional heading, this signals a bias of the Community Visitors, which the writers believe has in particular inappropriately coloured their comments in relation to Plenty Residential Services.  The writers understand that two houses at PRS have been specifically designated as a long-term treatment facility, which includes accommodating people with significant behavioural problems as well as those who have been involved in the criminal justice system.  Given this, the writers therefore contend that it is misleading of the report to suggest that all houses that comprise PRS necessarily accommodate new residents who have behaviours of concern or have had involvement in the criminal justice system. 

Again, as indeed with other sections of the report, the writers note that the report provides no specific data to quantify the report’s claims.  As such, the writers contend that this aspect of the report is not only misleading and fails to substantiate the claims but also in some ways can be considered to show some degree of discrimination against those people who present with behaviours of concern or those who have had involvement in the criminal justice system, albeit that the primary or presenting factor associated with these people is their disability.

The writers are both bemused and concerned regarding the Board’s belief that “many long-time residents at PRS could easily live in the community rather than at this cluster site”.  Firstly, and again, no data is presented in this part of the report to substantiate the claim.  However, the most concerning aspect of the statement is the suggestion that PRS is not part of the community and by extension the residents enjoy no community participation and inclusion activities.

The writers condemn what they argue to be ideological claptrap.  By adopting the statement as made, this therefore suggests that any housing developments such as retirement villages, unit developments and high rise developments constitute ‘cluster’ accommodation arrangements that are not part of the community.  The writers find it most unhelpful that an entity such as the Community Visitors and its Board would see fit to be side-tracked by what is in effect a non-issue. 

  1. Community Visitors Program Funding
  1. The report

The report contends that the Community Visitors program “remains inadequately funded”.  The report states that as a result of the funding inadequacy the number of visits had to be reduced. 

  1. The recommendations

The report recommends the provision of “adequate funding to the Community Visitors program to enable it to properly carry out its legislated functions”. 

  1. The critique

The report fails to substantiate its claim of inadequate funding, and it does not quantify the reduction in the number of visits.  It does not quantify what is meant by “adequate funding”.  By reference to the provision of a “small investment in the program” enabling Community Visitors to continue to meet their legislated obligations and “continue to provide protection against abuse and neglect of people with disability”, in light of the comments made under the section “Abuse and Neglect” the writers find this comment somewhat incongruous. 

Indeed, it can be argued that if the Community Visitors are to “continue to provide protection against abuse and neglect” then the inference could be seen as supporting the commentary as to a systemic problem, the figures do not support the suggestion that the Community Visitors actually provide “protection against abuse and neglect”.

3.         Omissions and Queries

            While the annual report has been constructed in such a way as to provide specific comment in relation to the DHS regions as well as the statewide section, the writers have focussed specifically on the heading used in the statewide section of the report. 

Although section 2 as above addresses the specifics of the statewide section of the report, the writers note, and therefore query, the non-inclusion of the following, arguing that each of the matters below represents significant issues that should be included in the annual report:

  1. Breaches of the Disability Act 2006

The opening paragraph of the Disability Services Board report states that the “Community Visitors reported on a range of serious issues in disability accommodation; many of which are significant and fundamental breaches of the Disability Act 2006, for which DHS, CSOs and group home staff should be held to account.”

Despite the significance of this statement, the body of the Disability Services section of the annual report makes only one or two cursory references to breaches of the Act, and further, breaches of the Act are not identified in the issues table.  Given that it is the Disability Act that provides the mandated requirements of service delivery, and Part 5 of the Act gives emphasis to residential services, the writers are critical at the failure of the report to expand on the opening paragraph.

Breaches of the Act, which of course represent breaches of the law, must be considered as requiring much more than simply advising that breaches have occurred.  It is noteworthy that a function of the Community Visitors, section 30(g) of the Act, is to inquire into any failure to comply with the provisions of the Act.  This point needs to be emphasised: that Community Visitors do have the power, to inquire into breaches – or failure to comply with provisions – of the Act. 

The writers submit that the report has failed to emphasise the significance of the lack of adherence to the law by not specifying and quantifying the nature of the breaches, and the providers who have breached the Act. 

If Community Visitors are to play a significant part in safeguarding the rights of people with disabilities, then the Annual Report must be prepared to expose and condemn breaches of the law.  The writers contend that this is a significant omission of the Annual Report.

Further to this, while the opening statement also emphasises that “DHS, CSOs and group home staff should be held to account” the report also fails to provide a specific recommendation linked to this statement.  Of equal significance, the report fails to elaborate on how such holding to account might be achieved. 

Given that the report is a report to the Minister, and it seems reasonable to assume that it is the Minister who is best positioned to be able to influence and direct change, then clearly the report should have documented specific recommended actions. 

By way of example, there is no reference to penalties such as disciplinary action, there is no reference to the responsibility and authority of the Secretary of the Department, and there is no reference as to how breaches of the Act link to breaches of duty of care.  As such, the writers of this paper call on the Public Advocate and the Community Visitors Board to follow up on this significant omission by issuing a supplementary statement as to breaches of the Act. 

  1. Abuse and neglect and incident reports

While the report makes specific reference to abuse and neglect and incident reporting under separate headings, the writers note that the report does not expand on the link between the occurrence of abuse and neglect and its reporting via incident reports.  For example, the question arises as to whether or not those figures detailed in Figure 9 (page 66) as identified abuse neglect and violence issues were reflected in the reporting of abuse and neglect via incident reports.  The writers argue that given the significance of abuse and neglect in care, and particularly the report’s call for an inquiry, then greater emphasis should have been placed on the relationship between these two sections of the report.

(iii)Behaviours of concern

The report makes some reference to the incompatibility of clients in particular group homes.  It also makes reference to vulnerable people living at Plenty Residential Services being placed at risk by new residents who have behaviours of concern.  Some of the regional reports give examples of instances the incompatibility of residents being as a result of behaviours of concern being demonstrated by particular residents.  The report also makes reference to a stable and skilled workforce being critical when supporting people with behaviours of concern. 

Despite such references, the report omits any reference to the role of the Senior Practitioner and how he might be engaged to review particular situations.  It is also worthy of note to again reflect on the provisions of section 33 of the Act, whereby the Community Visitors Board can refer matters to the Senior Practitioner.  Given there is no reference to the Senior Practitioner in the Annual Report, it must be assumed that the Community Visitors Board did not, during the course of 2013-14, make any referrals to the Senior Practitioner. 

Given that the report made reference to the incompatibility issue under the abuse and neglect section of the report, and further it also made reference to abuse under the incident reporting section of the report, and then again made reference to behaviours of concern under the Institutions section of the report and Staff support, the writers find it inconceivable that the report failed to link these matters. 

In addition to the above, the fact that the Disability Act requires Community Visitors to inquire into the use of restrictive interventions and compulsory treatment, section 30(f), and given that it is the Senior Practitioner who has functional oversight in respect to restrictive interventions and compulsory treatments, the failure of the Annual Report to make any reference to the Senior Practitioner and the associated matter of restrictive interventions and compulsory treatments is highlighted to an even greater degree.

Indeed, the writers go so far as to suggest that the Annual Report has failed to report on some matters that clearly should be reported.

  1. Reporting on functions

The writers believe it is of some significance that the report makes no reference to the way in which the reporting of individual visits is recorded.  While the writers acknowledge the existence of a report template under the Statutory Rules for the Act, they also note with significant concern that the format does not reflect the eight areas of inquiry as listed in the Disability Act.  In terms of this Annual Report, the Community Visitors only report on three of the eight inquiry areas in the statewide section of the report.  The report fails to address sections 30(c), (d), (f), (g) and (h) of the Act.  In other words, the report does not make critical comment as to whether residential services are being provided in accordance with the principles of the Act; it does not provide advice as to whether information is being provided to the residents as required by the Act; it makes no comment on the use of restrictive interventions and compulsory treatment; it does not specifically make reference to any failure of service provides to comply with the provisions of the Act; and it makes no reference to complaints made to Community Visitors by residents.

  1. The failure to provide quantitative data

As mentioned a number of times above, the report fails to provide quantitative data where it could reasonably be assumed such data would be available and should have been provided.  As such, the writers submit that the report’s comments and recommendations are weakened by this omission. 

Although Table 5 (p 66) records the number of units visited, no advice is provided as to whether the figures listed reflect the actual number of residential settings in each of the divisions.  The writers argue that the provision of this figure is necessary in order to determine whether or not the Community Visitors provided full coverage.  Also noting, of course, its relationship to the comment on program funding.

  1. Contributors to the Community Visitors knowledge

Although the report makes reference to the Community Visitors having been told particular things, the report fails to specify the contributors of this information.  While the writers assume that the Community Visitors base their assessment in part on observations and a review of documents, in terms of actual people who provide information the report fails to provide any quantitative data in relation to this.  Therefore, while it might be reasonable to assume much of the contribution to the Community Visitors knowledge has come via staff in the particular facilities at the time when the Community Visitors make their visits, it cannot be assumed that there is any level of significant input either sought or provided by clients or their family members.   The writers contend that the provision of such information is necessary in being able to feel satisfied that the Community Visitors are able to balance their assessments on the basis of a variety of inputs. 

4.         Do Community Visitors Fulfil a Useful Role?

            It is worth noting that the Community Visitors came into being with the passing of the Intellectually Disabled Persons’ Services (IDPS) Act 1986.  However, the genesis for Community Visitors can be argued to have grown out of what were known as Official Visitors under Mental Health legislation.  The significance of these two facts is that the notion of persons independent of service providers visiting and inquiring into the services provided has been in existence now for well in excess of 50 years.  The translation into Community Visitors is also just short of 30 years.  Another relevant fact is that despite the establishment of the Disability Act 2006 the functions of Community Visitors as identified under this latest act in effect replicate the functions as identified under the 1986 IDPS Act.  Therefore, what this adds up to is that Community Visitors in one form or another have been around for a long time.  Further, that the authority given to them to inquire into significant issues associated with the provision of people with disabilities in care must be argued to be quite significant. 

Yet, the question must be asked, as to whether or not the Community Visitors are fulfilling a useful role.  The determination as to what constitutes a useful role in part relates to the parameters of their role, and in part relates to whether or not Community Visitors have the requisite power to influence service provision and change, and in part relates to whether the powers they do have actually do influence service delivery and change. 

Additionally, given the Community Visitors and particular members of their Board function as volunteers, it is also seems reasonable to suggest that Community Visitors must be supported by the entity under which they are appointed, that being the Office of the Public Advocate.  Associated with this, however, and reflecting on the Community Visitors Board, the other consideration is as to whether the Board itself pursues with the necessary degree of vigour those changes and recommendations made in previous Community Visitors reports. 

The writers note several references in the 2013-14 Annual Report to matters that have previously been raised as issues of concern and recommendations made that have not yet been taken up by either the government of the day or the Department of Human Services.  On the one hand, while it might be argued this simply reflects the intransigence of governments and the Secretary of the Department of Human Services, equally it may also reflect a lack of assertiveness by the Community Visitors Board and the Public Advocate.  In other words, it can be argued, at least to some degree, that the influence of Community Visitors is only as strong as the leadership shown by the Community Visitors Board and the Public Advocate, in terms of being prepared to speak out and support the findings of the Community Visitors and to follow through on recommendations. 

As already noted further above, the Community Visitors Board, which again it should be noted includes the Public Advocate, can of its own volition refer matters reported by Community Visitors to individuals and entities that have significant influence and responsibilities in terms of the disability sector.  Yet, despite this option, no evidence is presented to suggest that action of this type has been taken up.  In addition to this, it might also be argued that the way in which Community Visitors annual reports are written, and in particular the recommendations, may in part determine whether or not the government of the day and the Secretary of the Department of Human Services are placed under sufficient pressure to tackle the issues raised. 

Certainly, it is the writers’ view that with the absence of quantitative data, as already noted, and its critical analysis, and the somewhat open-ended nature of many of the recommendations, an immediate “out” becomes available to the government and the Secretary of the Department. 

Although the writers acknowledge that the current government has tabled a response in Parliament to the Community Visitors 2013 annual report, the issues associated with such tabling relates to the response itself, as well as whether there is acceptance of particular recommendations and whether an implementation program is defined and monitored.  Certainly, it might be argued that this is a function that should be addressed and followed up by the Community Visitors Board. 

Done properly, the role of Community Visors not only requires good operational knowledge of the legislation under which they operate but also significant skills of inquiry, which in turn requires some practical knowledge about service provision including the complexities of communication, dealing with behaviours of concern and the health management of clients.  While there is no doubt that individual Community Visitors will come to the role with variable skills and experience, it is also acknowledged that the Office of the Public Advocate provides training and support to Community Visitors.  Nonetheless, the issue of whether the role can continue to be left to volunteers is open to debate. 

It is the writers view that the real assessment of whether or not Community Visitors fulfil a useful function cannot be addressed by considering the Community Visitors program as a standalone program from the role and function of the Disability Services Commissioner, the Public Advocate, the Senior Practitioner, the Ombudsman, and other entities which influence the disability sector, such as the Human Rights and Equal Opportunity Commissioner, the Privacy Commissioner, the Health Services Commissioner, the Commission for Children and Young People. 

It is too easy to assume that by simply creating a proliferation of watchdogs services will necessarily be provided in accordance with the mandated rules, and that untoward events like abuse and neglect will not only be reduced but no longer occur.  Indeed, the writers argue that the current matrix of so-called protective mechanisms has created a situation where authority and responsibility can easily be dispersed and the right and the left hand do not necessarily work in concert with each other. 

While the confusion of relationships, roles and authorities currently exists, there is nothing to suggest, in that which has been published to date, that the way in which the NDIS will function will necessarily improve the provision of protective mechanisms such as that intended to be provided by the Community Visitors program.

While the writers are aware that there is apparently some discussion occurring behind the scenes about safeguards, nonetheless the significant change which must be to the forefront of any discussions is that the person with the disability will, under the NDIS, control their funding.  It then becomes a key issue, as to whether this person will want Community Visitors having the right to enter their home without their having requested such a visit.  In addition to this, the question also arises as to whether what are currently State entities will be able to continue to operate in what will in effect be a Commonwealth-legislated service environment. 

The writers note that the OPA hosted a roundtable discussion on NDIS safeguards, involving the Victorian Ombudsman, the Office of the Disability Services Commissioner, the Victorian Equal Opportunity and Human Rights Commission.  It is noteworthy that the Commission for Children and Young People was not involved in this roundtable.

5.         Concluding comment – Amending the legislative platform

While this paper has set out to provide an independent critique of the Community Visitors Annual Report 2013-14, it has also provided additional comment under 4 above.  The writers contend that the critique would be incomplete without making some reference to the legislative basis under which Community Visitors operate.  Although the Disability Act is unambiguous in terms of the functions delegated to Community Visitors, the writers believe it is essential that it must be a requirement of the Community Visitors to specifically report on such functions.  The current report format as provided for in the Schedule is totally inadequate as it makes no reference to the functions as detailed in the Act.  Yet, despite this deficiency, neither the Public Advocate nor the Community Visitors Board appears to have taken any steps to rectify this, either by establishing a complementary report or seeking for the Schedule to be changed.  

While the Act makes reference to the Community Visitors Board, the writers note that the Board comprises the Public Advocate and two Community Visitors.  Among the six functions listed for the Board, section 32(3) of the Act, one of the functions is for the Board to report matters to the Public Advocate or to the Minister.  As a member of the Board, this means that the Public Advocate has the potential to report matters to herself.  This raises the question as to why the Public Advocate would sit on the Board in any event, and why greater status is not given to the Board.  This is particularly telling when compared to the composition of the Board for the Disability Services Commissioner.  And, while these comments should not be seen as seeking to denigrate either the Public Advocate or the two Community Visitors who currently comprise the Community Visitors Board, it must be stated that the Board is insular in its composition. 

Other than having the authority to visit and inspect residential facilities, and to make referrals, Community Visitors have nothing like the power and authority of, for example, workplace inspectors under the Occupational Health and Safety Act 2004.  Therefore, in essence, the writers argue that the impact of Community Visitors will continue to be minimal unless this role is given “real teeth”. 

Further in relation to the current legislation, Community Visitors, in terms of the disability sector, are restricted to visiting residential settings.  This of course means that they have no power to visit funded day sector facilities.  The writers express concern about this, arguing that deficiencies in service provision, and the potential for breaches of legislation and abuse and neglect to occur, are not restricted to residential settings. 

Given the above, the writers therefore contend that the Disability Act should be amended in order to strengthen the role and authority of Community Visitors.  In making this comment, however, the writers also acknowledge that in a few short years the NDIS will be fully rolled out across Victoria and as such, this potentially creates a whole new platform.  The fact remains however that this will not occur for at least another five years, and therefore it would be remiss of any government not to seek to amend the current Disability Act.  What happens with the full rollout of the NDIS is a public debate yet to be had.  However, the writers consider that the extension of a Community Visitors type program into the NDIS arena should not necessarily be seen as a given. 

If the outcome is that Community Visitors or a similar scheme will become part of the NDIS platform, then the writers contend in the strongest way possible that this must be the same across Australia, and not driven by what is currently being promoted as “nationally consistent” considerations.  The writers strongly contend that given that the NDIS is a national program, then the standards that underpin the program as well as any “watchdog” provisions that are established to monitor service delivery must be mandated as the same for all signatories to the NDIS. 

As such, the writers further contend that given the Community Visitors report includes a recommendation that the program be “embedded” into the NDIS as “a primary safeguard for residents living in group home facilities”, as this recommendation currently stands it represents a somewhat short-sighted view.  Therefore, given that the Public Advocate and the Community Visitors Board recommend the extension of the Community Visitors program, as currently operating in Victoria, into the NDIS, this recommendation could only have value if it also contains the requirement for a standardised approach across Australia, a strengthening of the reporting requirements and a strengthening of the authority of Community Visitors.

Notwithstanding the above, however, this is not to suggest that the writers of this paper support the inclusion of a Community Visitors type program as part of the NDIS.  Indeed, the writers argue that such a program is incongruent with the notion of individuals with a disability being provided with and controlling funds to meet their reasonable and necessary support needs, then being subjected to visits by parties they have neither requested to visit nor given authority to enter their home.  As such, if Community Visitors are to exist under the NDIS, then the writers submit that their authority to enter a person’s place of residence should only occur at the request of the person with a disability.  It is important to note that if the disability sector wishes to promote the principles of choice and control, then these principles must not be compromised by what might be seen as a questionable protective process.

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