Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697634586943.pdf (Australia)
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 Submission 06/2015 Attention: Senate Standing Committees on Community Affairs Email: community.affairs.sen@aph.gov.au Victorian Disability Services Commissioner Level 30 / 570 Bourke Street Melbourne VIC 3000 Email: complaints@odsc.vic.gov.au Phone: 1300 728 187 Laurie Harkin AM Victorian Disability Services Commissioner Violence, abuse and neglect against people with disability in institutional and residential settings, including thegender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people withdisability, and culturally and linguistically diverse people with disabilitySubmission 86 Background The Victorian Disability Services Commissioner (VDSC) commenced on 1 July 2007 under the Victorian Disability Act 2006 (the Act) to improve services for people with a disability in Victoria.
The Disability Services Commissioner is an independent body that provides advice and assistance to resolve complaints about disability service providers.

The service is free, independent and accessible.

We encourage and assist the resolution of complaints in a variety of ways including informal approaches to resolution, assessment conferences, conciliation processes, or under certain circumstances through investigations.
We research ways to improve outcomes for people with a disability and improve disability services’ complaints systems.

We also provide capacity development activities for people with a disability, their families and disability services through a variety of education and information.

Our approach to our work reflects the objectives of the Victorian Disability Act 2006 and our values and principles that are aligned to the United Nations Convention on the Rights of Persons with Disabilities.
Since the establishment of this office some eight years ago we are able to provide comment based on the evidence and knowledge we have gained in responding to over 5,000 matters to date.

Victorian disability service providers also readily contribute to our growing body of knowledge by reporting each year on the number and types of complaints they received and how they were resolved (as provided for in the Act).
This information is used to identify systemic issues and inform the ongoing development of the disability service system.

On-line complaint reporting has contributed knowledge of nearly 10,000 complaints dealt with by service providers.

The comments and proposals outlined in this submission are informed by our experience in applying the Act and the lessons learnt from complaints, which we have identified from service provider’s data and our own data and experience in resolving complaints.
We provide these for the consideration by the Inquiry in order to achieve the best possible outcomes for people with a disability and consideration for improving safeguards of those people who are most vulnerable.
Submission to Inquiry: Violence Abuse and Neglect against people with disability Victorian Disability Services Commissioner, June 2015 2 Violence, abuse and neglect against people with disability in institutional and residential settings, including thegender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people withdisability, and culturally and linguistically diverse people with disabilitySubmission 86 Contents of this submission Background The approach of the Victorian Disability Services Commissioner Addressing issues of abuse and neglect Oversight of critical incidents Our understanding into the experiences and impact of violence, abuse or neglect including incidence and prevalence Responding to and eliminating barriers of violence, abuse and neglect Case stories relevant to this inquiry Sam’s story: Investigation of injury Sara’s story: Residential fees Andrew’s story: Directing supports Martin’s story: Critical incidents and brokered services Alice’s story: Incompatibility Appendix 1: Alternate Dispute Resolution model Appendix 2: VDSC definitions of resolution Appendix 3: Submission - Victorian Parliament Law Reform Committee – Inquiry on people with an intellectual disability and their families/carer’s experience interaction with the justice system Appendix 4: Hansard Transcript - Victorian Parliament Law Reform Committee 2 4 7 8 9 9 11 Appendix 5: VDSC Paper to the Commonwealth Regulation Impact Statement consultation on 25 Proposal for a National Disability Insurance Scheme quality and safeguarding framework Submission to Inquiry: Violence Abuse and Neglect against people with disability Victorian Disability Services Commissioner, June 2015 3 Violence, abuse and neglect against people with disability in institutional and residential settings, including thegender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people withdisability, and culturally and linguistically diverse people with disabilitySubmission 86 The approach of the Victorian Disability Services Commissioner Establishment of an independent complaints office in Victoria was an enabler of the principal legislation which sought to empower people with a significant disability to have greater control over the supports and engagement as citizens.
An independent statutory complaints framework aimed to build the capacity of people with a disability, and their carers or family members, to ‘speak up’ to their service and drive improvement in services meeting their needs.
The establishment of such an office to fulfil this function at this time was innovative in Australia due to its visibility through name, being a discrete entity (not attached to any other jurisdiction such as health) and being tasked with system stewardship of cultural changes in the sector, rather than administrative review.

“Complaints will often provide opportunities to improve quality of care and redress systemic issues.
They should be seen primarily as a method of quality assurance, rather than as providing a means of detecting and punishing wrongdoers.

A complaints body can operate as a practical mechanism to support and enforce a statement of core values.” (Victorian Law Reform Commission, 2003, p. 153) The core legislative responsibilities of the Victorian Disability Services Commissioner (VDSC) are to: Work with people with a disability and service providers to resolve complaints.
Provide information, education and training about complaints in disability services and the ways to prevent, manage and resolve issues.

Utilise information from mandatory complaints reporting from service providers to inform broader improvement in disability services.

The VDSC has adopted a foundational approach of contribution and capacity building, with compliance being a tertiary end response.
Each interaction is an opportunity to build the capacity of the person and service provider, and fundamentally change the culture of delivery of services.

Informal resolution of complaints is underpinned in the Act s.113 (3) [informality is also reflected in Conciliation process s.116 (2) and Investigations s.118 (3)(b) and is consistent with the Alternate Dispute Resolution (ADR) model (Appendix 1) adopted by VDSC in resolving complaints.
The paper provided by VDSC in April to the Commonwealth Regulation Impact Statement consultation on Proposal for a National Disability Insurance Scheme quality and safeguarding framework provides detailed information about the approach; functions and powers of the Commissioner (refer to Appendix 5).

For the purpose of clarification, the Act clearly details the provisions to exercise our ‘power’ to conduct investigations.
We are aware some members of the community appear to be under the impression that we have the power to conduct a general investigation into the performance of service providers.
In fact, our power to conduct an investigation relates specifically to determining whether or not a complaint is justified, particularly where we believe that the Submission to Inquiry: Violence Abuse and Neglect against people with disability Victorian Disability Services Commissioner, June 2015 4 Violence, abuse and neglect against people with disability in institutional and residential settings, including thegender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people withdisability, and culturally and linguistically diverse people with disabilitySubmission 86 complaint is not suitable for conciliation or an attempt to conciliate the complaint has failed and further action is required.
The assessment phase of complaints that come to our office is robust and thorough, and during this period we may require service providers to take a number of actions including, but not limited to, requests for information; VDSC attending the site; interviews of staff; and completion of actions.

During this assessment VDSC may also facilitate an assessment conference following an ADR approach specifying follow up actions by providers.
The majority of complaints are completed within this informal 90 days assessment period (specified in the Act).

Utilising this model VDSC has consistently achieved a complaints resolution rate of 70 per cent and above.

This exceeds the resolution rate for similar bodies, but noteworthy is that this rate is based on the person’s perspective of resolution (refer to appendix 2 for VDSC definitions of resolution).

A further 21 per cent were partially resolved in 2013-14.
Fewer than one in ten matters do not achieve resolution in the view of the person who has raised the concerns.
Referencing the Society of Consumer Affairs Professionals (SOCAP Australia), a membership organisation focused on professional complaint handling and prevention, the best practice principles for investigating complaints notes: “Some complaints investigations processes (in particular when the complaint is serious in nature) appear to be based on a law enforcement model, where the purpose is to apportion blame and to allow for the appropriate action to be taken against the person (or persons) found to be responsible.
With complaints handling, that approach can be too narrowly focused and the opportunity to find a timely and effective resolution can be lost, along with the ability to acknowledge the needs of all of the stakeholders in the complaint.” (SOCAP Training, 2015) Aligned with VDSC promoting the value of complaints as an opportunity to learn from and improve service delivery, we also afford people who have gone through our complaints process the opportunity to provide feedback to VDSC.
Our evaluation process over time demonstrates: The perceived resolution of issues has improved from 58 per cent in 2009-10 to 92 per cent in 2013-14.

Satisfaction with how VDSC dealt with the complaint has risen from 69 per cent in 2011-12 to 80 per cent in 2013-14.

Dissatisfaction with the outcome of the complaint has dropped from 21 per cent in 2011-12 to 8 per cent in 2013-14.
Satisfaction that the person felt listened to by the Resolutions Officer, was respected and felt the complaint was treated seriously has averaged 92 per cent since 2011.

Committed to a learning model, VDSC has interrogated a range of internal data with the view to improve on our accessible and person-centred complaints process.

Earlier this year VDSC embarked on an end-to-end project that aims to achieve: A simplified complaint process, without the requirement of filling out forms.
Reduced timeframes for allocation and informal resolution of complaints.

Identification and confirmation of key issues early in the complaint sand setting clear expectations of how they will be managed.

Revised electronic feedback evaluation that is more user-friendly.

Where required, utilise provisions of legislation that allow follow up issues that are repeatedly identified.
Submission to Inquiry: Violence Abuse and Neglect against people with disability Victorian Disability Services Commissioner, June 2015 5 Violence, abuse and neglect against people with disability in institutional and residential settings, including thegender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people withdisability, and culturally and linguistically diverse people with disabilitySubmission 86 It is critical to note that these improvement activities aim to increase the timeliness of resolution and the person’s understanding of the VDSC process.
Submission to Inquiry: Violence Abuse and Neglect against people with disability Victorian Disability Services Commissioner, June 2015 6 Violence, abuse and neglect against people with disability in institutional and residential settings, including thegender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people withdisability, and culturally and linguistically diverse people with disabilitySubmission 86 Addressing issues of abuse and neglect Of benefit to this Inquiry, is in our view to understand the contribution VDSC has made to issues of abuse and neglect, including the success in Victoria of campaigns which aid safeguards and protections by encouraging people with a profound disability to have a voice.
One of the most significant barriers to address in regards to abuse and neglect is the culture of service delivery.

While VDSC cannot deal with criminal matters, people are encouraged to raise complaints about the quality of care they receive in the provision of disability service including the handling of critical incidents, communication and planning issues that surround issues of alleged abuse.
VDSC has sought to enable cultural change through empowering people to speak up, and ensuring issues raised by people are listened to and to see complaints are a learning opportunity for service providers.
To enhance the capacity of people with a disability and their family to raise issues, be heard and respected in the delivery of their service the VDSC: ● ● ● ● ● ● ● coach people to raise issues directly with their provider or another entity facilitate a warm referral to other complaints entity provide education sessions develop campaigns of ‘It’s OK to complain!’ and ‘Speak UP!’ produce easy English newsletters conduct an accessible complaints resolution process (including bespoke resources) have a person-centred alternative dispute resolution model.
The voice of people with a disability will be better heard when services employ a positive attitude to people making complaints and recognise the value of learning through complaints.

A critical component of cultural change is the ability, through reflective practice, to identify and redress issues that have arisen from service delivery that does not align with the core values of the organisation, relevant standards or principles of the Act.
To build the capacity of the sector VDSC: ● developed training on the Four As of complaints handling (Acknowledgement, Answers, Action and Apology) providing organisations with a tangible responsive approach to handling complaints embeds person-centred practice and organisational reflection within the online complaints reporting process coaches services in their response to people raising issues provides feedback on service providers complaints policy and processes provides resources and publications to support staff and senior executives in good practice complaints handling provides organisational complaints culture stock take tools questions the lessons learnt and organisational improvements that can be made as part of the complaints resolution process issues Notices of Advice highlighting improvement areas.
● ● ● ● ● ● ● Submission to Inquiry: Violence Abuse and Neglect against people with disability Victorian Disability Services Commissioner, June 2015 7 Violence, abuse and neglect against people with disability in institutional and residential settings, including thegender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people withdisability, and culturally and linguistically diverse people with disabilitySubmission 86 Since 2007, VDSC has produced research and practical resources for the sector.
As part of our submission we would appreciate the committee having access to the following publications available on our website that are directly relevant to this Inquiry.

Learning from Complaints Series <http://odsc.vic.gov.au/occasional-papers> o Occasional Paper 1: Safeguarding people’s right to be free from abuse.
o Occasional Paper 2: Families and service providers working together Everything you wanted to know about complaints <http://odsc.vic.gov.au/ComplaintsBooklet> Investigations: Guidance for service providers < http://odsc.vic.gov.au/Investigations- guidance-for-service-providers> Additional resources available on this page: Information Sheet o o Practice Guidance Sheet 1: Preliminary assessment of incidents involving allegations of staff to client assault or unexplained injuries o Practice Guidance Sheet 2: Investigating incidents involving allegations of staff to client assault or unexplained injuries Oversight of critical incidents Since June 2012, VDSC has been providing independent review and monitoring of Category One incident reports relating to allegations of staff-to-client assault and unexplained injuries for Department of Health and Human Services.
In August 2012, this arrangement was extended to include community service organisations.

Through our role in monitoring and reviewing incidents, we influence policy to improve prevention and responding to abuse; and provide advice on individual matters where the concern for the person with a disability is not apparent.
To date we have reviewed over 888 incidents reports and we consistently identify the following themes: a lack of focus on people’s outcomes and safeguarding people’s rights during investigations the need for proactive engagement with Victoria Police further clarification on the scope, conduct and guidelines for Quality of Support Reviews the requirement for advocacy organisations to report critical incidents a lack of clarity and shared understanding of the definition of ‘assault’ and ‘poor quality of care’ the need to regulate the suitability of staff who work in disability services.
Our submission to the Commonwealth Department of Social Services (DSS) on the Quality and Safeguards under an NDIS details our perspective of the barriers and opportunities that exists in addressing some of these core themes.
Submission to Inquiry: Violence Abuse and Neglect against people with disability Victorian Disability Services Commissioner, June 2015 8 Violence, abuse and neglect against people with disability in institutional and residential settings, including thegender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people withdisability, and culturally and linguistically diverse people with disabilitySubmission 86 Our understanding of the experiences and impact of violence, abuse or neglect including incidence and prevalence Issues of physical or sexual abuse and neglect on average represent 12% of total complaints raised with our office.
The provision of a Notice of Advice to an organisation or an individual identifies actions to respond to specific issues and provides advice on policy and systemic issues to support service improvements in the organisation and/or sector.

Our office has issued 102 Notices of Advice (as part of our legislative function) until end of May 2015.
Half relate to serious concerns about the quality of care and responses to abuse and neglect issues including 30 related to abuse issues, 18 to neglect issues and 2 relate to both abuse and neglect issues.

While we are unable to deal with criminal matters we encourage complaints that surround the abuse or neglect issues.
The complaints matters are wide ranging from human rights considerations of living situations, to inadequate/non existent support planning impacting on health or behaviours, discrimination and financial abuses and workforce culture.

Complaints themes data is contained in the Commonwealth DSS consultation (appendix 5).

Year-to-year information is also available in our Annual Reports available from our website <www.odsc.vic.gov.au>.
Responding to and eliminating barriers of violence, abuse and neglect Much of our knowledge as to the experience and impact of abuse or neglect of people with a disability has been shared broadly with a view to influence practice and policy.

As such we provide this Inquiry a number publications and submissions to previous state and national processes.
In 2011 the Victorian Parliament Law Reform Committee conducted an Inquiry into Access to and Interaction with the Justice System by People with an Intellectual Disability and their Families and Carers.

We contributed to this process our observation that when people with a disability support and criminal repercussion to some of the most abhorrent crimes, there is no equal sign before justice.

We provide our submission and extract from Hansard in Appendix 3 & 4.
Our first Occasional Paper (2011) Safeguarding people’s right to be free from abuse provides key considerations for preventing and responding to abuse informed by a comprehensive literature review, lessons learned from complaints and an Inquiry undertaken that preceded our oversight of critical incident.

The key considerations cited are: 1.

Understanding abuse 2.

Primary prevention: Promoting practices and safeguards which can prevent abuse 3.
Targeted prevention: Identifying and addressing particular risk factors Submission to Inquiry: Violence Abuse and Neglect against people with disability Victorian Disability Services Commissioner, June 2015 9 Violence, abuse and neglect against people with disability in institutional and residential settings, including thegender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people withdisability, and culturally and linguistically diverse people with disabilitySubmission 86 4.
Secondary prevention: Responding to incidents and allegations of abuse 5.

Tertiary prevention: Identifying and addressing underlying causes of systemic issues Occasional Paper No.2 (2013) Families and service providers working together highlights the challenges carers and families face when raising issues and provides practical suggestions for service providers to work more effectively with families to ensure improved outcomes for the person receiving services.
This research significantly informed the National Disability Services Zero Tolerance project, which has actively sought to engage the sector and to understand what makes people with a severe disability feel safe (refer to http://www.nds.org.au/projects/article/194 ).

The personal responses as part of this project aligns well with our understanding of the issues raised in complaints.
Our 2015 paper for Commonwealth DSS consultation provides commentary about the unique nature of the disability sector, why people don’t raise issues and detailed data about complaints (Attachment 5).

It highlights the human rights abuses that occur when people are subject to inadequate and unmonitored behaviour support and restrictive interventions.

Commentary is also provided about current mechanisms of safeguards, the process and systemic barriers and opportunity to reduce these.
Submission to Inquiry: Violence Abuse and Neglect against people with disability Victorian Disability Services Commissioner, June 2015 10 Violence, abuse and neglect against people with disability in institutional and residential settings, including thegender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people withdisability, and culturally and linguistically diverse people with disabilitySubmission 86 Case stories relevant to this inquiry Sam’s story: Investigation of injury Sam lives in a group home.
When staff were helping Sam with his personal care, they noticed a serious injury.

Sam has no verbal communication skills and couldn’t tell staff what had happened.

Medical attention was sought, and the injury was assessed as requiring hospital admission and surgery.

The hospital was concerned that the injury may have been the result of assault and notified police.

Sam’s family was kept up to date by both the hospital and the disability service provider.
Hospital staff indicated that the injury may have been sustained a few days prior to it being noticed by staff.

Police advised that they would not pursue the issue, as the injury seemed to have been self-inflicted.

A review of the incident indicated that staff were aware of Sam’s behaviours of concern, but these behaviours were not detailed in his support plan or behaviour support plan.
While a forensic medical assessment was organised, an external investigation was conducted that developed interim strategies to minimise the risk to Sam of further injury.

While the investigation outcomes were developed DSC requested further information about supports provided to Sam.

The organisation advised that a supervision protocol had been implemented to ensure Sam was well supported.
DSC’s review of the incident and a Notice of Advice to the service provider ensured that Sam’s behaviour support plan was reviewed.

Using feedback from the Department of Human Services’ (DHS) Office of Professional Practice, the plan was updated with a more person- centred approach and strategies to reduce Sam’s risk of self-harm.

The service provider also reviewed staff culture at the house, how staff provided support to people using the services, and how they responded to serious injuries.
Submission to Inquiry: Violence Abuse and Neglect against people with disability Victorian Disability Services Commissioner, June 2015 11 Violence, abuse and neglect against people with disability in institutional and residential settings, including thegender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people withdisability, and culturally and linguistically diverse people with disabilitySubmission 86 Sara’s story: Residential fees Sara contacted DSC about an increase in her daughter’s residential fees.
Her daughter couldn't afford to pay the new fees, and neither Sara nor her daughter could understand why the increase was so significant.

DSC assessed the complaint and identified that the residential statement provided to Sara’s daughter was out of date and contained inconsistent information.

It became evident that other residents and their representatives were also confused about the breakdown of the residential fee and what it paid for.
In addition, DSC identified that residents were being charged more than the maximum 75 per cent of their disability support pension.

The disability service provider reached an agreement with Sara and her daughter about payment of fees, and their complaint prompted the service provider to review and improve the residential statements for all the residents.

Each resident was reimbursed for overpaid fees and their ongoing residential fee was reduced.
As a result of the DSC process the service provider clarified their rights and responsibilities and reaffirmed the value of clear communication with stakeholders.
Submission to Inquiry: Violence Abuse and Neglect against people with disability Victorian Disability Services Commissioner, June 2015 12 Violence, abuse and neglect against people with disability in institutional and residential settings, including thegender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people withdisability, and culturally and linguistically diverse people with disabilitySubmission 86 Andrew’s story: Directing supports Andrew made a complaint to DSC about his role in coordinating his in-home supports.
Andrew said workers were always late, and he had to constantly remind them about tasks and routines in his personal care.

His funding was stretched to cover their shifts.

He wasn’t able to focus on his health and do the things he wanted to do.

Discussion with DSC revealed that over time Andrew’s support team had become very small and relationships had become more informal.

The coordinator was not very involved, and believed that Andrew was happy with the way things were working.
Together Andrew and his service took action to ensure that staff were clearer about their expected tasks on each shift.

They also recruited and inducted new team members.

Andrew was able to arrange backup from a flatmate when he needed additional support outside of his regular roster.

The service provider acknowledged that they needed to be more aware and involved in Andrew’s support, and work with him on new ideas about how support could best meet his needs.
Submission to Inquiry: Violence Abuse and Neglect against people with disability Victorian Disability Services Commissioner, June 2015 13 Violence, abuse and neglect against people with disability in institutional and residential settings, including thegender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people withdisability, and culturally and linguistically diverse people with disabilitySubmission 86 Martin’s story: Critical incidents and brokered services Martin’s daughter Isabelle receives in-home respite coordinated by a registered disability service provider and delivered by subcontracted agencies.
Martin contacted DSC with concerns about the behaviour of a contracted in-home respite worker and the service provider’s response to his complaint.

Martin told the service provider that the support worker took photos of Isabelle playing, yelled at her and allowed her to play with crockery from the kitchen cupboards.
He was upset that the service provider forwarded the complaint to the contracted agency without talking to him first, and that the contracted agency didn’t follow up his concerns or what actions they were taking.

DSC identified that an incident report hadn’t been completed or submitted to the Department of Human Services (DHS).

After consultation with DHS, DSC worked with the service provider to ensure this was done.
Further assessment identified that the contracted agency did not have robust incident reporting policies or a complaints policy that was person centred and proactive.

DSC facilitated an Assessment Conference with Martin, his wife, the contracted agency and a representative from DHS.

The contracted agency apologised to Martin and his wife and acknowledged their concerns about how the complaint had been managed.

Following this incident the contracted agency implemented new training for staff.
With support from DSC they reviewed their complaints, assessment and orientation processes, and improved the communication between themselves and the service provider.

DHS continued to monitor both service providers, their working arrangements and their incident reporting and complaints policies and processes.
Martin expressed his satisfaction that other people wouldn’t have to go through the same situation if they made a complaint, and that the service providers were working to make their processes better.
Submission to Inquiry: Violence Abuse and Neglect against people with disability Victorian Disability Services Commissioner, June 2015 14 Violence, abuse and neglect against people with disability in institutional and residential settings, including thegender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people withdisability, and culturally and linguistically diverse people with disabilitySubmission 86 Alice’s story: Incompatibility Alice and Sharon lived together in a group home.
Alice felt unsafe as a result of Sharon throwing things and yelling at Alice.

To safeguard Alice the disability service provider tried different ways of providing behaviour support to Sharon, but had limited success.

Alice’s mother Dorothy submitted a complaint to DSC as she believed the service provider was not doing enough to address the compatibility issues between Alice and Sharon.
DSC spoke to Alice who made it clear that she wanted Sharon to stop harming her and did not want to live with Sharon anymore.

DSC encouraged the service provider to work together with Alice and Dorothy to resolve the situation.

The service provider identified a vacancy at another house that was potentially suitable for Alice.

Alice decided that this was a good solution for her.
Not only would she feel safe at the house, but the other residents were a similar age, a friend of hers lived there and she would still be able continue to access her local community and attend her day service.

On reflection, the service provider realised the importance of involving Alice and her mother in problem solving and reaffirmed their responsibilities in safeguarding people with a disability.
Submission to Inquiry: Violence Abuse and Neglect against people with disability Victorian Disability Services Commissioner, June 2015 15 Violence, abuse and neglect against people with disability in institutional and residential settings, including thegender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people withdisability, and culturally and linguistically diverse people with disabilitySubmission 86 Appendix 1: Alternate Dispute Resolution model ‘Alternative Dispute Resolution (ADR) is an umbrella term for processes, other than judicial determination, in which an impartial person assists those in a dispute to resolve the issues between them.
ADR is commonly used as an abbreviation for alternative dispute resolution, but can also be used to mean assisted or appropriate dispute resolution.

Some also use the term ADR to include approaches that enable parties to prevent or manage their own disputes without outside assistance.’ Direct quote from: National Alternative Dispute Resolution Advisory Council; Dispute Resolution Terms, September 2003.
<http://www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Documents/NADRAC%20Pu blications/Dispute%20Resolution%20Terms.PDF> Mediation is a flexible process that can be adapted to suit the parties and the circumstances.

The LEADR & IAMA model (below) gives you an idea of the process.
Further information available at: http://www.leadriama.org/dispute-resolution/about-mediation Submission to Inquiry: Violence Abuse and Neglect against people with disability Victorian Disability Services Commissioner, June 2015 16 Violence, abuse and neglect against people with disability in institutional and residential settings, including thegender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people withdisability, and culturally and linguistically diverse people with disabilitySubmission 86 Appendix 2: VDSC definitions of resolution Resolved: Where the person who made the complaint decides that the issue(s) have been resolved by reaching agreement.
Partially resolved: A number of the complaint issues were resolved by reaching agreement.

A number of complaint issues were not able to be resolved through agreement.

Not resolved: Agreements have not been reached on any issue(s) in the complaint.

Note: at times this is due to the views of the person who made the complaint being unknown in circumstances where it is not appropriate or possible to seek their view.
Submission to Inquiry: Violence Abuse and Neglect against people with disability Victorian Disability Services Commissioner, June 2015 17 Violence, abuse and neglect against people with disability in institutional and residential settings, including thegender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people withdisability, and culturally and linguistically diverse people with disabilitySubmission 86 Appendix 3: Submission - Victorian Parliament Law Reform Committee – Inquiry into Access to and Interaction with the Justice System by People with an Intellectual Disability and their Families and Carers INQUIRY INTO ACCESS TO AND INTERACTION WITH THE JUSTICE SYSTEM BY PEOPLE WITH AN INTELLECTUAL DISABILITY AND THEIR FAMILIES AND CARERS– Submission 09/2011 SUBMISSION – Thursday 6 October 2011 Attention: The Executive Officer Email: vplrc@parliament.vic.gov.au.
Mail: Law Reform Committee Parliament of Victoria Spring Street East Melbourne VIC 3002 Disability Services Commissioner Victoria Level 30 / 570 Bourke Street Melbourne VIC 3000 Email complaints@odsc.vic.gov.au Phone 1300 728 187 Fax (03) 8608-5785 Mr Laurie Harkin Disability Services Commissioner Submission to Inquiry: Violence Abuse and Neglect against people with disability Victorian Disability Services Commissioner, June 2015 18 Violence, abuse and neglect against people with disability in institutional and residential settings, including thegender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people withdisability, and culturally and linguistically diverse people with disabilitySubmission 86 Victorian Disability Services Commissioner – October 2011 Background The Victorian Disability Services Commissioner (DSC) commenced on 1 July 2007 under the Disability Act 2006 (the Act) to improve services for people with a disability in Victoria.
This independent statutory office works with people with a disability and disability service providers in Victoria to resolve complaints.

Our complaints resolution process is free, confidential and supportive and we encourage and assist the resolution of complaints in a variety of ways including discussions, conciliation processes, or under certain circumstances through investigations.
Over the four years since the establishment of this office we are able to compare the experiences we have gained in responding to over 2,000 matters to date.

Victorian disability service providers readily contribute to our growing body of knowledge by reporting each year on the number and types of complaints they receive and how each complaint was resolved.

This information is used to identify systemic issues and inform the ongoing development of the disability service system.
The themes and conclusions we draw from service provider’s data and our own data, that captures our experience of the complaints brought to our office, informs our submission to this Inquiry.

We provide a summary of a few emerging trends and systemic issues we have identified for consideration in this inquiry in order that better outcomes may be achieved for people with disabilities who are accessing the criminal justice system.
Submission to Inquiry: Violence Abuse and Neglect against people with disability Victorian Disability Services Commissioner, June 2015 19 Violence, abuse and neglect against people with disability in institutional and residential settings, including thegender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people withdisability, and culturally and linguistically diverse people with disabilitySubmission 86 Summary of key areas addressed by this submission a) key issues and themes, including but not limited to: participants’ knowledge of their rights; i. ii.
availability of appropriate services and supports; iii.

dealings with the police; and iv.

the operation of the courts; b) measures within Australia and internationally to improve access to, and interaction with, the justice system, including but not limited to measures that seek to: i. ii.

deliver just and equitable outcomes; iii.

facilitate collaborative and co-ordinated approaches across government departments and agencies; and break down barriers to the justice system and enhance participation; iv.
provide responses that address the circumstances of the offender and offence concerned.

c) consideration as to whether the findings of the inquiry have broader application to people with a disability other than an intellectual disability, for example those with an acquired brain injury or neurological condition leading to cognitive disability.

Paragraph (c) was inserted by resolution of the Legislative Assembly on 30 June 2011.
Submission to Inquiry: Violence Abuse and Neglect against people with disability Victorian Disability Services Commissioner, June 2015 20 Violence, abuse and neglect against people with disability in institutional and residential settings, including thegender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people withdisability, and culturally and linguistically diverse people with disabilitySubmission 86 Issues identified in enquiries and complaints specific to this submission a) Key issues and themes: Participants’ knowledge of their rights A key aspect of DSC’s work with people with a disability involves the promotion of people’s right to make a complaint and to speak up about issues or adverse events experienced in service provision.
DSC’s experience suggests the need for increased rights awareness education and training for people with a disability about all of their rights, including their right to access to justice.

A proportion of complaints to DSC are about incidents of alleged or actual assaults by staff or other clients.
Whilst these incidents are required to be reported to the police by the disability service provider, it is DSC’s experience that clients, their families and even staff may not be aware of their right to have an Independent Third Person (ITP) present (ITP – Office of the Public Advocate funded program) and the responsibility of the police to organise an ITP.
The right of a person with a disability to additional or specialised support to make witness statements (through for instance specialist police units and Visual Audio Recorded Evidence - VARE) also does not appear to be widely known.

Availability of appropriate services and supports It has been the experience of DSC that there is a need for greater advocacy support to enable people with disabilities to effectively participate in the justice system.
Furthermore, greater access to communication aides or knowledge of an individuals specific communication needs is vital to ensuring active participation in the justice system.

The accurate identification of a cognitive disability also plays an important role in the provision appropriate services and supports.

It is often the case that people with less visible disabilities are not seen as requiring additional support, thus not always referred to appropriate services and or supports.
Dealings with the police It has been the experience of DSC that people with disabilities can experience delays in police conducting initial interviews regarding alleged assaults, deciding whether or not to proceed to investigation, and concluding an investigation.
These delays and conclusions can have a significant impact on clients and their families in terms of access to justice as well as impact on the capacity of the service provider to provide remediation and effective responses to the adverse event and trauma experienced whilst the police processes are still in process.
Delays in investigation can result in people with an intellectual disability experiencing difficulty in recalling information as an aspect of their disability and often it is suggested that they can be relatively easily swayed and confused by people who set out to influence them as to the facts and sequence of events in an incident under investigation.
This is Submission to Inquiry: Violence Abuse and Neglect against people with disability Victorian Disability Services Commissioner, June 2015 21 Violence, abuse and neglect against people with disability in institutional and residential settings, including thegender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people withdisability, and culturally and linguistically diverse people with disabilitySubmission 86 often compounded by investigating police having only a limited understanding of effective strategies to deal with people with disabilities, which can impact on the effectiveness of police interviews and the investigation process.
Flexibility is required by police and other participants in the justice system when dealing with people with disabilities (in particular in relation to interview location/duration).

As outlined above, when dealing with the Police, people with disabilities are to have an Independent Third Person Present (OPA Program).

It is the experience of DSC staff in dealing with complaints is that this requirement (which is outlined in a Protocol between OPA and Victoria Police) is not always met.

b.
b.

Measures within Australia and internationally to improve access to, and interaction with, the justice system, including but not limited to measures that seek to deliver just and equitable outcomes DSC’s experience of dealing with complaints involving alleged or actual assaults of people receiving disability services indicates that people with an intellectual disability are often confronted with stereotypical responses from within the justice system.
For example, a person with an intellectual disability who has been a victim or witness to an alleged assault are commonly not seen to be credible witnesses.

There is a view that people with an intellectual disability are not reliable in that they may not be able to provide the same answers to questions under cross examination.

The way questions are phrased can confuse and mislead people with a disability and this should not act to exclude them from participation in the justice system.
In DSC’s view, the justice system needs to adopt a set of agreed methods and required skills for interviewing people with an intellectual disability to ensure that they have equal and fair access to justice.
The ‘Tips for Communication’ contained in the ‘Ready Reckoner- Responding to People with a Cognitive Impairment’ published by the Office of Public Advocate provides a useful starting point for developing effective methods for interviews, which needs to be complemented with appropriate training, skill development and options for specialisation of interviewing police officers.
c) Consideration as to whether the findings of the inquiry have broader application to people with a disability other than an intellectual disability, for example those with an acquired brain injury or neurological condition leading to cognitive disability.

DSC’s experience would suggest that the findings of the inquiry are likely to have broader application to people with a disability, particularly those people who rely on augmented communication or other forms of support to communicate.

5.
Conclusion/ Recommendations On the basis of DSC’s experience of dealing with complaints involving alleged or actual assaults of people receiving disability services and their interaction with the justice system, we recommend that consideration be given to: Submission to Inquiry: Violence Abuse and Neglect against people with disability Victorian Disability Services Commissioner, June 2015 22 Violence, abuse and neglect against people with disability in institutional and residential settings, including thegender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people withdisability, and culturally and linguistically diverse people with disabilitySubmission 86 I.
The need for increased rights awareness education and training for people with a disability about all of their of rights including their access to justice; II.

The need for increased availability of advocacy support for people with an intellectual disability and their families in dealing with the justice system; III.
A recognition of the significant impact delays in police processes can have on access to justice for a person with an intellectual disability, together with access to remediation and effective responses to the person’s experience of trauma and the adverse event; IV.
The ongoing need for police induction and training to address stereotypical views of the capacity of people with an intellectual disability to provide evidence; and V. The need for specialist training, agreed methods and flexibility of police approaches to interviewing to ensure that people with an intellectual disability receive appropriate support to provide evidence in order to receive equal and fair access to justice.
Submission to Inquiry: Violence Abuse and Neglect against people with disability Victorian Disability Services Commissioner, June 2015 23 Violence, abuse and neglect against people with disability in institutional and residential settings, including thegender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people withdisability, and culturally and linguistically diverse people with disabilitySubmission 86 Appendix 4: Hansard Transcript Parliament Law Reform Committee - Victorian Submission to Inquiry: Violence Abuse and Neglect against people with disability Victorian Disability Services Commissioner, June 2015 24 Violence, abuse and neglect against people with disability in institutional and residential settings, including thegender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people withdisability, and culturally and linguistically diverse people with disabilitySubmission 86 Appendix 5: VDSC Paper to the Commonwealth Impact Statement consultation on Regulation Proposal Insurance Scheme quality and safeguarding framework for a National Disability Submission to Inquiry: Violence Abuse and Neglect against people with disability Victorian Disability Services Commissioner, June 2015 25 Violence, abuse and neglect against people with disability in institutional and residential settings, including thegender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people withdisability, and culturally and linguistically diverse people with disabilitySubmission 86