Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697643898670.pdf (Australia)
SENATE COMMUNITY AFFAIRS REFERENCES COMMITTEE INQUIRY INTO VIOLENCE, ABUSE AND NEGLECT OF PEOPLE WITH DISABILITY IN INSTITUTIONAL AND RESIDENTIAL SETTINGS NSW Government Submission May 2015 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 66 NSW Submission to the Senate Standing Committee on Community Affairs - Inquiry into violence, abuse and neglect of people with disability in institutional and residential settings INTRODUCTION The NSW Government submission is provided for the purpose of assisting the Committee to understand current arrangements for reporting, responding to and preventing violence, abuse and neglect against people with disability in institutional and residential settings.
The NSW Government has a range of legal, regulatory, policy, governance and data collection frameworks, practices and mechanisms to provide safeguards, report, respond to and prevent violence, abuse and neglect against people with disability in institutional or residential settings.
The NSW Government works closely with independent statutory bodies including the NSW Ombudsman’s Office and the Office of the Children’s Guardian to provide safeguards and checks.This submission also highlights work in NSW contributing to the development of a national framework for quality and safeguarding under the National Disability Insurance Scheme (NDIS) together with the Commonwealth and other States and Territories.
NSW Government departments and agencies will be available throughout the Inquiry’s proceedings to provide further information or clarification about existing or past government programs or initiatives, if required.

A.

SUPPORTING PEOPLE WITH DISABILITY IN RESIDENTIAL SETTINGS IN NSW The NSW Government provides and commissions a range of residential disability services, including supported accommodation, group homes, large residential centres, and centre- based respite services.
Legislative safeguards, policies, practices and mechanisms exist to report, respond to and prevent the incidence of violence, abuse and/or neglect of people with disability in residential settings.

I.

Preventing violence, abuse and neglect against people with disability in residential settings The NSW Government is committed to, and acknowledges, prevention as the best form of protection from all forms of violence, abuse and neglect.
The provisions of the Disability Inclusion Act NSW 2014 (DIA) require disability service providers to recognise and protect the rights of people with a disability to feel safe and live in an environment free from neglect, abuse and exploitation.
In accordance with the Disability Inclusion Act 2014, the Child Protection (Working With Children) Act 2012 and the Ombudsman Act 1974 service providers have a duty of care to implement practical prevention strategies, including:  recruitment screening for people who wish to participate in disability-related employment (referee and criminal record checks, and the Working With Children Check administered by the NSW Office of the Children’s Guardian)  prohibition of the employment of people who have been convicted of certain criminal offences (including murder, certain sexual offences and violent offences resulting in a term of imprisonment for two years or more)  compliance with the NSW Disability Service Standards and prescribed quality requirements set out in funding agreements with the NSW Government  service providers are also expected to implement employment practices to ensure the engagement of skilled staff who understand, respect and support the rights of people with disability, and are aware of contemporary policies and legislation relating to abuse and neglect.
The NSW Government is responsible for licensing and monitoring Assisted Boarding Houses (ABHs).
ABHs must be authorised in accordance with the Boarding Houses Act 2012 and 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 66 NSW Submission to the Senate Standing Committee on Community Affairs - Inquiry into violence, abuse and neglect of people with disability in institutional and residential settings comply with standards included in the Boarding Houses Regulation 2013.
Proprietors and managers of ABH must be assessed as ‘suitable’, including having a criminal record check.

The NSW Ombudsman and Official Community visitors have a role in investigating and addressing concerns about the conduct of ABHs under the Community Services (Complaints, Review and Monitoring) Act 1993.
All NSW Government funded and operated disability services must have a mechanism for the authorisation of restricted practices where these are used (including restricted access, seclusionary time-out, physical restraint, psychotropic medication, response cost and seclusion).
The NSW Government is introducing six monthly sector reporting on the incidence of restricted practices in all NSW Government disability funded and operated services, and has funded the National Disability Services (NDS) to deliver training to disability service providers on restricted practice authorisation mechanisms.

II.
II.

Reporting and responding to abuse and neglect of people with disability in residential settings The NSW Government has Abuse and Neglect: Policy and Procedures to provide safeguards for people with disability who live in, or participate in, a NSW Government operated or funded disability service.
There are clearly defined roles and responsibilities for the Ombudsman (as an independent oversight body with investigative powers), Official Community Visitors, the Department of Family and Community Services and the NSW Police in reporting, responding to and preventing abuse and neglect.

Disability service employees who witness, or are present at the time of an incident of violence, abuse or neglect have a responsibility to immediately report the incident to their line manager, and/or the NSW Police.
Allegations of abuse by a member of staff may be the subject of internal misconduct investigation and/or criminal investigation by the NSW Police.

Findings of abuse may warrant immediate dismissal and criminal prosecution.

Part 3C of the Ombudsman Act 1974 includes requirements for reporting and responding to abuse and neglect that apply to all NSW Government funded and operated disability service providers.
These reporting requirements apply to existing and new National Disability Insurance Agency registered providers under the Quality Assurance and Safeguards Working Arrangements for the Trial of the NDIS in NSW.
These requirements include:  mandatory notification of the NSW Ombudsman of reportable incidents as part of the ‘Reportable Incidents Scheme’ involving abuse and neglect of people with disability in supported group home accommodation or centre-based respite (including adults and children and young people)  monitoring by the NSW Ombudsman of the management of these reportable incidents by FACS or a non-government disability accommodation provider  investigating and reporting by the NSW Ombudsman on individual incidents, and on the systems that a provider has in place to identify, prevent and respond to reportable incidents.1 The NSW Ombudsman is an independent oversight body accountable to the people of NSW through the NSW Parliament.
The Ombudsman is responsible for keeping the systems for preventing, handling and responding to reportable incidents under scrutiny.

The Ombudsman Act 1974 requires the Ombudsman to be notified by FACS or the funded provider of any reportable incidents that occur in supported disability accommodation (including group homes and centre-based respite care) within 30 days.
The NSW 1 ‘Reportable incidents’ are defined under Part 3C of the Ombudsman Act 1974 and include violence, sexual abuse, neglect and fraud by an employee of FACS or a funded provider against a person with disability living in supported accommodation.

Reportable incidents also include serious assaults and sexual offences committed by a person with disability against another person with disability in this residential setting.
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 66 NSW Submission to the Senate Standing Committee on Community Affairs - Inquiry into violence, abuse and neglect of people with disability in institutional and residential settings Ombudsman’s role under the new scheme is to oversee investigations undertaken by FACS or FACS funded providers into reportable incidents and to determine whether appropriate action has been taken as a result of the investigation.
The Ombudsman also has functions under the Community Services (Complaints, Reviews and Monitoring) Act 1993 (CRAMA Act) in dealing with abuse and neglect of people with disability.

The CRAMA Act provides that where the person is receiving services from a service provider, amongst other things, the NSW Ombudsman can: • investigate complaints relating to that service provider • monitor, and review services provided by the service provider, and • review the deaths of certain persons (e.g.
a child in care, or a person with disability living in residential care provided by a service provider).

The CRAMA Act also allows Official Community Visitors to visit people living in an assisted boarding house and people living in an accommodation service where their full-time care is provided by a service provider.
On 1 July 2013, the NSW Government made amendments to the CRAMA Act to provide a legislative framework, together with a Ministerial arrangement between the Commonwealth and the NSW Government, to ensure that the NDIS launch participants have access to these safeguards.

B.

SUPPORTING CHILDREN AND YOUNG PEOPLE WITH DISABILITY IN RESIDENTIAL SETTINGS The NSW Government supports children and young people to have the best possible start to life and protection from abuse and neglect.
This includes mechanisms to report, respond to and prevent the abuse and neglect of children and young people with disability in residential settings.

I.

Preventing abuse and neglect of children and young people in residential settings The NSW Office of the Children’s Guardian is an independent statutory body that administers the Working With Children Check (WWCC) under the Child Protection (Working with Children) Act 2012.
All people engaged in child-related work in NSW (including FACS funded and operated disability services) whether on a volunteer or paid basis, must undergo a WWCC.

WWCCs involve a national criminal history check and a review of findings of workplace misconduct.

The Office must not grant a WWCC clearance to persons who are ‘disqualified persons’ (due to their criminal history) or persons who pose a risk to the safety of children.
The result of a WWCC is either a clearance to work with children for five years, or a bar against working with children.

Cleared applicants are subject to ongoing monitoring, and relevant new records may lead to the clearance being revoked.

Child Wellbeing Units provide day to day advice, coaching and information to support schools, police and health practitioners across NSW where staff identify safety, welfare and wellbeing concerns for a child or young people person.
Child Wellbeing Units assist in determining whether concerns about the safety, welfare or wellbeing of children and young people reach the threshold for making a mandatory report to the Child Protection Helpline.

They also help identify and implement local responses to support a child or young person and their family where the suspected risk of significant harm threshold is not met, but there are concerns for the safety, welfare or wellbeing of the child or young person.
Child Wellbeing Units link information across Government and non-government organisations and facilitate information sharing to ensure coordinated responses to address child protection and wellbeing concerns.
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 66 NSW Submission to the Senate Standing Committee on Community Affairs - Inquiry into violence, abuse and neglect of people with disability in institutional and residential settings II.
Reporting and responding to abuse and neglect of children and young people in residential settings In NSW, allegations of abuse or neglect of a child should be reported to the NSW Child Protection Helpline.

All reports to the Helpline are screened to determine whether a child is at risk of significant harm on the basis of concerns for their safety, welfare and/or wellbeing.
Depending on the Helpline assessment, the matter may be:  closed as no risk of significant harm is indicated  referred to the local Community Services Centre (CSC) or Joint Investigative Response Team Referral Unit for further assessment or action  immediately attended to by a child protection caseworker, because the information indicates the child or young person is in immediate danger.

Sometimes children and young people are not able to live with their families for a period of time.
They may have experienced abuse, or be at risk of abuse, or it may be that their families are unable to care for them due to illness, drug and alcohol abuse, domestic violence or poverty.

When children and young people can no longer live with their parents, the NSW Government arranges Out of Home Care (OOHC) support.

OOHC placements range from kinship care, foster care or other forms of residential care.
Voluntary OOHC (VOOHC) is care that is arranged between a parent and a designated agency or agency registered with the NSW Children’s Guardian, where there are no child protection concerns.

In 2013/14, 2321 children and young people accessed voluntary OOHC in NSW.

FACS is accredited with the NSW Children’s Guardian to provide voluntary OOHC for children and young people with disability.
Under the Children and Young Persons (Care and Protection) Act 1988 (Care Act), OOHC providers must be accredited as ‘designated agencies’ by the NSW Office of Children’s Guardian.

The Office is an independent statutory body that reports to the NSW Minister for Family and Community Services and to the NSW Parliament.

The Office uses the NSW Standards for Statutory OOHC for the accreditation and quality improvement of statutory out- of-home care services in NSW.
The Standards describe the requirements for OOHC service providers, including FACS, in providing quality care to children and young people in all types of OOHC settings.

Designated agencies must comply with these standards.

The NSW Government has an important quality assurance role as the contract manager for OOHC services provided by non-Government organisations.

As part of funding agreements, providers must regularly monitor the welfare of children in their care.
The wellbeing of children in OOHC is monitored at the individual level by designated agencies as required by the FACS Case Management Policy.

The NSW Government has procedures and mechanisms in place for the management of allegations of misconduct involving NSW Government employees, investigation and disciplinary action.
The NSW Ombudsman oversees the handling of allegations of a child protection nature made against employees of all government and certain non-government agencies, including non-government schools, child care centres and agencies providing substitute residential care.

Allegations involving possible criminal conduct are reported to the NSW Police and allegations of possible corrupt conduct are reported to the Independent Commission Against Corruption.
The NSW Government has procedures and mechanisms in place for the management and investigation of any allegation that a carer has physically or sexually assaulted, neglected or ill-treated a child in their care (where the carer is engaged and authorised by the NSW Government to provide care for a child).

The NSW Government conducts investigations and assess whether a child should be removed from the home while the investigation is undertaken.
The NSW Government reports the most serious matters to the NSW 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 66 NSW Submission to the Senate Standing Committee on Community Affairs - Inquiry into violence, abuse and neglect of people with disability in institutional and residential settings Ombudsman who oversees the investigation process and outcomes.
Any criminal conduct is reported to the NSW Police.

Where an allegation of serious physical assault or sexual misconduct is sustained, the carer’s details are also provided to the Office of the Children’s Guardian to assess if the carer is suitable for child related employment.

In OOHC and disability residential services, Official Community Visitors (OCVs), coordinated by the NSW Ombudsman, visit children and young people on an irregular basis.
OCVs provide advice to Ministers and the NSW Ombudsman about the quality of care provided to residents.

OCVs have powers to enter premises, access files, and speak directly to children, young people and people with disability in residential settings.
C. SUPPORTING STUDENTS WITH DISABILITY IN STATE SCHOOLS The NSW Government provides services and programs to support more than 90,000 students with additional learning needs due to disability in NSW public schools (about 12% of the NSW public school student population).
This includes specialist education services and programs supporting more than 25,000 students with disability as well as specialist education support for more than 65,000 students with additional needs relating to difficulties in learning or behaviour.

The NSW Government provides additional support for more than 6,700 students with a disability attending regular classes through the Integration Funding Support program.
In addition, the NSW Government provides 2,708 support classes located in 106 government special schools and in 610 mainstream schools across the state with the capacity to support more than 27,000 students.

All new teaching staff in state schools are required to participate in child protection induction training.

Annual child protection update training is mandatory and provides all staff with information and tools to help them identify and respond to emerging child protection issues.
Since 2013, over 47,000 staff have completed specific training to ensure compliance with their obligations towards students with disability under the Disability Discrimination Act 1992 and Disability Standards for Education 2005.

D. SUPPORTING PEOPLE WITH DISABILITY WHO ARE VICTIMS OF DOMESTIC AND FAMILY VIOLENCE The Crimes (Domestic and Personal Violence) Act 2007 provides for civil orders prohibiting certain types of conduct in both personal and domestic relationships.
If the prohibited conduct occurs in breach of an order, a criminal offence has been committed.

Police must apply for an order on behalf of a person in need of protection where that person and the perpetrator have a ‘domestic relationship’.

A ‘domestic relationship’ is defined broadly to include people who live in the same household, people who live together in a residential care facility, and people with a dependant/carer relationship.
The Safer Pathway program provides case coordination and other support to victims of domestic and family violence.

Police refer victims (including those living in group homes or other residential care setting) to a Local Coordination Point (LCP).

The LCP worker provides victims with individually tailored care coordination and support, facilitating links between victims and appropriate health, welfare, legal and other services.
From July 2015, the Central Referral Point database (from which referrals are made under the Safer Pathway domestic and family violence program) will routinely identify whether the victim of domestic and family violence has a disability.

Over time, this data will provide evidence of the prevalence of domestic and family violence against people with disability and the service responses to those victims.
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 66 NSW Submission to the Senate Standing Committee on Community Affairs - Inquiry into violence, abuse and neglect of people with disability in institutional and residential settings E. SUPPORTING PEOPLE WITH DISABILITY IN CONTACT WITH THE JUSTICE SYSTEM The NSW Government provides a range of programs, services and facilities which are accessible to and supportive of people with disability in contact with the justice system.
Police deliver training on issues like disability awareness and mental health intervention to new recruits and existing officers.

To support this training, the NSW Police Handbook and Police Powers Handbook provide information regarding police responses and obligations.

While the NSW Police Force engages with the community, there continues to be under reporting of crime from culturally and linguistically diverse and Aboriginal communities, as well as from people with disability.
The Criminal Justice Support Network (CJSN) aims to ensure people with an intellectual disability who are in contact with the criminal justice system understand their rights and have the ability to exercise them.

The Network offers support at police interviews and at court.
State-wide Disability Services is a multi-disciplinary team that provides limited direct service and consultation and training to other correctional staff relating to assessment, general management, program design and modification and pre-release planning for people with disabilities in correctional centres.
F. A QUALITY AND SAFEGUARDS FRAMEWORK FOR THE NDIS NSW is working with other jurisdictions to develop a national approach for the NDIS NSW is currently supporting national efforts to develop a consistent approach to quality assurance and safeguards under the NDIS.

Currently each State and Territory has its own system for ensuring people with disability receive quality services and are safe from harm.
A national approach will mean that people accessing disability services can expect the same standards and safeguards wherever they are in Australia.

NSW is actively participating in the development of the framework, which is expected to be finalised by the end of 2015.

This Senate Inquiry is expected to inform and complement the development of the national framework.
NSW supports a number of important elements that will be considered for inclusion in the National Framework, including:  NDIA provider registration  systems for handling complaints  ensuring staff are safe to work with participants  safeguards for participants who manage their own plans, and  reducing and eliminating restrictive practices in NDIS funded supports.
NSW also supports the inclusion of an independent oversight body with functions not less than those of the NSW Ombudsman’s Office, to ensure transparency and accountability in preventing, reporting and responding to abuse and neglect of people with disability by both government and non-government service providers, as part of the national quality and safeguards framework for the NDIS.
NSW supports the use of the principles below to guide the development of the framework:  choice and control: the NDIS should maximise opportunities for people with disability to make decisions about their supports  risk-based and person-centred approach: safeguards under the NDIS should relate to the actual level of risk faced by a person 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 66 NSW Submission to the Senate Standing Committee on Community Affairs - Inquiry into violence, abuse and neglect of people with disability in institutional and residential settings  presumption of capacity: the NDIS should presume that all people with disability have the capacity to make decisions and exercise choice and control  national consistency: the quality and safeguarding framework should provide the same protection to people, regardless of where they live in Australia  reducing/minimising regulation: the quality and safeguarding framework should create the least burden possible on individuals and providers of supports while still achieving the agreed quality and safeguarding aims of the framework  administrative efficiency: a national quality and safeguarding system should be well organised.
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 66