The 2017 Australian Law Reform Commission
report on elder abuse quoted Dr Wendy Bonython and myself. It is reassuring that insights and concerns articulated in that report are being rtecognised elsewhere, with this week's NSW Ombudsman's
report on
Abuse and neglect of vulnerable adults in NSW – the need for action commenting
In July 2016, the Ombudsman’s office commenced a standing inquiry under section 11(1)(e) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 to examine and respond to allegations of abuse and neglect of adults with disability in community settings, such as the family home.
We started the inquiry:
• in recognition of the seriousness of the increasing number of matters that were being reported to us that raised concerns about the safety and welfare of adults with disability in the community, and
• in the absence of any other agency with the powers to investigate allegations that do not reach a criminal threshold or that otherwise require a coordinated interagency response.
The standing inquiry
Between August 2015 and October 2018, we received 358 contacts relating to the alleged abuse and neglect of adults with disability living in community settings. Most (206) of the matters involved reports of alleged abuse and neglect that required action as part of the standing inquiry.
The 206 reports do not relate to the conduct of service providers – they are about the conduct of the person’s family and other informal supports, and members of the community.
Source of reports
We have an agreement with the National Disability Abuse and Neglect Hotline that it will refer matters to us that involve allegations of abuse and neglect of adults with disability in community settings in NSW. Of the 206 matters, 55 (27%) have been referred to us by the Hotline. The majority (143) of the other matters have been directly reported to us by external agencies or individuals.
The primary source of reports (whether via the Hotline or directly to our office) has been nongovernment disability providers, who have accounted for almost half (91) of all reports. Other main reporters include family members (34), NSW government or funded agencies (24), and community members (20).
The people involved
Alleged victims
Over half (110) of the matters reported to us in the standing inquiry have involved allegations of abuse or neglect of an adult with intellectual disability. More broadly, most reports have involved a person with some form of cognitive impairment.
However, there has been a range of matters in which the person has not had a cognitive impairment – including 11 matters that involved a person with a solely physical disability.
Subjects of allegation
Most of the subjects of allegation have had a close and personal relationship with the adult with disability – with most of the alleged abuse and neglect committed by their family members or their partner/spouse.
Over two-thirds (141) of the reports have been about the conduct of family members – mainly parents (99) and siblings (31). The adult with disability’s partner/spouse has been the subject of allegation in 17% of matters (35). A smaller number of reports have involved community members (10) and ex-support staff of the adult with disability (4).
The reported allegations
Most of the reports have involved more than one type of abuse and/or neglect – most commonly neglect (78) and physical abuse (77). Allegations of ill-treatment featured in 56 reports, and one-quarter of reports involved alleged financial abuse of the adult with disability (52). Over 10% of reports included allegations of sexual abuse (24).
Our actions under the standing inquiry
Our actions in response to the reports typically involve undertaking inquiries with agencies that are currently, or have recently been, involved with the alleged victim; checking available intelligence on relevant parties (including police and child protection databases); bringing agencies together to facilitate the exchange of relevant information, discuss the existing risks, and agree on necessary actions; and monitoring the implementation of the agreed actions.
The standing inquiry has enabled our office to test, in a very practical sense, what needs to be done to provide an effective interagency response to these matters. Our handling of the 206 reports has highlighted that providing an effective interagency response can be relatively straightforward – provided that the agency taking the lead role has access to the right information, adequate powers, and the cooperation and support of key government and non-government stakeholders.
However, the Ombudsman’s standing inquiry is a temporary measure, and will cease on 1 July 2019. In addition, there are critical gaps that are not addressed by the standing inquiry. In particular, we do not have the power to enter private residences to gain direct access to the alleged victim, and we are not competent or compellable to provide information to NCAT. The standing inquiry also does not encompass elder abuse.
The need for an effective safeguarding approach for vulnerable adults
In the context of the persuasive evidence provided by our standing inquiry, and the findings and recommendations from NSW and national inquiries into elder abuse, there is an urgent need for an effective, integrated framework and independent lead agency for responding to the abuse and neglect of all vulnerable adults in community settings in NSW.
We strongly support the recommendations of the NSW Law Reform Commission from its review of the Guardianship Act 1987, relating to the establishment of an independent statutory position of a Public Advocate to (among other things) investigate – of its own motion or in response to a complaint – cases of potential abuse and neglect of people who need decisionmaking assistance, with powers to:
- apply for and execute a search warrant if needed
- intervene in court or NCAT proceedings in certain cases
- require people and organisations to provide documents, answer questions, and attend compulsory conferences
- refer allegations to equivalent agencies in other jurisdictions
- exchange information with relevant bodies
- have read-only access to the police and child protection databases.
Our standing inquiry has highlighted some significant issues that should inform the development of a comprehensive safeguarding approach for vulnerable adults in NSW, and the work of the independent lead agency. In particular:
- There is a need for concerted guidance, service improvement, and capacity development with providers, agencies and the community in relation to the abuse and neglect of vulnerable adults in community settings – to ensure that matters are reported, and appropriate action is taken.
- There are significant opportunities to assist the work of police, through coordinating actions to assess and address the circumstances of the vulnerable adult, and providing a point of referral for police for guidance and support on specific matters. There is also a need to enhance police expertise in interviewing people with disability who have communication support needs and cognitive disability, to maximise their ability to give evidence and gain effective access to justice.
- All efforts should be taken to maximise the involvement of the vulnerable adult in the response that is provided to the alleged abuse and neglect – including through the provision of appropriate decision-making supports.
- There is a need for provisions for agencies that have responsibilities relating to the safety of vulnerable adults to be able to exchange information that promotes the safety of vulnerable adults – these agencies need to be able to share critical information with each other, and not have to rely on the Public Advocate to facilitate the exchange of information.
What is needed
From 1 July 2019, the NSW Ombudsman’s office will no longer carry out its standing inquiry into the abuse and neglect of adults with disability in the community. Without an alternative option in place, this gap will present unacceptable risks to an already vulnerable and marginalised cohort of our community. There is a need for swift action to establish a comprehensive adult safeguarding approach that will both fill the looming gap in relation to adults with disability, and address the longstanding gap in relation to vulnerable older persons.
The recommendations of the NSW Law Reform Commission in relation to the establishment of an independent Public Advocate with investigative functions provide a timely and constructive way forward. However, there are a small number of supplementary steps that are required to provide an effective, integrated and person-centred approach to responding to the abuse and neglect of vulnerable adults in NSW – including information sharing provisions for relevant agencies, and enhanced options for decision-making assistance.
More broadly, the NSW Ombudsman’s office would hope that this report acts as a trigger to the NSW Government to commit to a broad review, focused on establishing in NSW the strongest independent safeguarding and regulatory system in Australia for protecting vulnerable groups in our community.
The Ombudsman's recommendations are -
It is recommended that the NSW Government should:
1. Implement the recommendations of the NSW Law Reform Commission in relation to the establishment of an independent statutory body to investigate and take appropriate action in relation to the suspected abuse and neglect of vulnerable adults in NSW, as outlined in its report on the Review of the Guardianship Act 1987.
2. As part of the establishment of the independent statutory body, and to support the development and implementation of an effective and integrated safeguarding approach for vulnerable adults in NSW:
a. Introduce legislative provisions to enable agencies that have responsibilities relating to the safety of vulnerable adults to be able to exchange information that promotes the safety of vulnerable adults.
b. Ensure that there are enhanced options for vulnerable adults to gain appropriate decision-making assistance. The recommendations of the NSW Law Reform Commission in relation to supported decision-making should be considered as part of this response.
3. Review the independent safeguarding and regulatory arrangements in NSW to identify opportunities to strengthen the system for protecting vulnerable groups in our community, with a view to considering the potential benefit of creating a single independent community services oversight body.
