Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697643412464.pdf (Australia)
Capricorn Community Development Association Inc. Submission to the Senate inquiry into Violence, abuse and neglect of people with a disability June 2015 The organisation: The Capricorn Community Development Association Inc. (CCDA), is an unfunded volunteer, community development organisation.

Its purpose is to support the community in solving its own problems.

CCDA acts as a mini-peak body for the region and inputs a Central Queensland perspective to state and national forums.
CCDA is a member of: The Queensland Futures Forum; The Controlled Income Management Group; The Queensland Anti-Poverty Week State Steering Committee; QCOSS; Peak Care; CCFSN, The Community Services Industry Partnership and is a foundation member of the Community Services Industry Alliance.

Activities include: Advocacy; Information dissemination; A monthly newsletter; Community information events and activities; Networking opportunities; Input to strategic forums and networks.
The author: John Homan is a member of the CCDA Management Committee, and is the father of Amanda who was intellectually disabled from birth.
He has served a more than forty year ‘apprenticeship’ in the disability sector, at an operational level, and a strategic one:  he was a management committee member of several disability service providers,  served as a Community Member on the (first) Disability Services Council of Queensland,  wrote four submissions to the Productivity Commissions inquiry into Disability Care and Support, and  made two presentations to the Productivity Commission.

Content: 1.

Introduction 2.

Overview 3.


Impediments to change 4.

Prevention 5.

Protecting the vulnerable 6.

Summary 7.


Recommendations “Society is judged on how it looks after its most disadvantaged” Desmond Tutu (and others) 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 80 1.
Introduction The treatment of people with disabilities has, historically, been charactarised by inequality, and discrimination.

Its origins in charity – alms for the (deserving) poor - became the ‘social construct of disability’ during the industrial revolution, and this enshrined the stigma and inequality that have endured to this day.
With all the changes that have occurred over the decades, one thing has not changed: people with disabilities have had things done to them, at them and for them (some good, some bad), but rarely with them.

They have never been allowed to own their own lives.
The inequality enshrined in the social construct of disability has legitemised a power differential in which people with disabilities are the vulnerable party, spectators in their own lives, and unable to defend themselves against misuse of power: abuse and neglect.

This submission is divided into several sections, starting with a historical overview of how we got where we are.

The second part is about impeding change.


Then we explore options of preventing neglect and abuse, preferable to addressing abuse after it has occurred.

The final section relating to ‘protecting the vulnerable’ may be seen as somewhat controversial, but as Albert Einstein said: “The problems we have created can not be solved with the level of thinking that created them”.

So, this section is about ‘new thinking’.

The summary is then followed by recommendations which may produce positive outcomes.

2.
2.

Overview1 What, giving all the changes in the disability sector over the years, decades, and centuries has prevented people with disabilities from owning their own lives?

If every life is a question in search of an answer2, then what stands in the way of people with disabilities answering the question of their own lives?
It is not a person’s disability, but our society that has been the major impediment to inclusion, and it follows that it is us, society, that needs to evolve and redefine our relationships.

“Charity maintains poverty” said Mohammad Yunis.3 From the days of Jane Eyre, Charles Dickens, to this day, disability support has been treated as charity, giving alms to the deserving poor.
Australia has been influenced by many of the British institutions, including the institutions that Emily Bronte, Jane Austen, and Charles Dickens chronicled, both church and state.

However this system was hierarchical and created a sub-class in a rigidly class conscious society.

The ‘beneficiaries’ of this charity welfare were powerless to influence their own lives.

It was a system without accountability where power corrupted and led to abuse.
These institutions became part of Australia’s history for more than 150 years, and little changed since Dickens’ time: “Claremont Mental hostel was a custodial institution, implying that its residents were dangerous and needed to be kept away from “normal” people in the community.

There was no education or stimulation or attempt to enable the residents to move out.

It was custodial care of the lowest kind”.

Dr Guy Hamilton, former Superintendent Mental Deficiency Division, Health Department (W.A.
), 1962 – 1982.4 In the fifties parents were advised to put their children with disabilities in institutions and “forget they ever had them”.5 The Industrial Revolution formalised this inequality through the social construct of disability, which made people with disabilities a separate sub class, isolated and marginalised.
Those who could not meet skill and productivity standards were declared unfit, and excluded from paid employment (Russell and 1 Homan, J., From Charity to Equality, 2010, submission 599 to the Productivity Commission re Disability care and support.

2 Heidegger, M., cited Deegan, P., Recovery as a journey of the heart, 1996 3 Mohammed Yunis, Founder of the Grameen Bank of Bangladesh, Nobel Peace prize winner, 2006.
4 Hamilton, D., cited Croft, D., When needs go Begging, Disability Services Commission, WA, 2000 5 Croft, D., When needs go Begging, Disability Services Commission, WA, 2000 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 80 Malhotra, 20026).
The disabled, particularly the intellectually disabled, were considered a social problem.

They were excluded from mainstream life and were transferred to institutions, workhouses, asylums and prisons (Ariotti 1999, p. 216)7.

The social construct of disability contributed to legitimising the institutional system.
When in the nineteen eighties institutions were closed and residents were re-settled in the community many people found that they had moved from institutions into ‘institutionettes’ and were behind a one metre fence just as isolated from community as they were previously behind a two metre wall.

The institutional culture and industrial practices had not changed, and, as before, there was no capacity to engage with the community.8 In the eighties the social model of disability became all the rage.
It purported to address the social and emotional needs of people with disabilities as well as their physical ones: levels three and four in Maslow’s Hierarchy of Needs: ‘self actualisation’, empowerment.

Normalization developed by Neils Bank-Mikkelsen (1980) of Denmark and Bengt Nirje of Sweden in 1969, was introduced in Australia in the eighties when de-institutionalisation was gaining momentum, and became the dominant philosophy.
“Making available to all mentally retarded people [sic] patterns of life and conditions of everyday living which are as close as possible to the regular circumstances and ways of life of society.” (Perrin and Nirje 1985:69)9 Wolf Wolfensburger developed his version of normalisation in 1972 and called it Social Role Valorisation (SRV) The highest goal of the normalization has recently been clarified to be the establishment, enhancement, or defence of the social role(s) of a person or group, via the enhancement of people's social images and personal competencies.
It is proposed that normalization be henceforth called "social role valorisation.

"10 Normalisation or SRV aims to make people who are different appear ‘normal’, not different.
It is envisaged that they will be better placed to be respected and accepted in society; however: “… the arbitrary disciplinary process of normalisation [“SRV”] has robbed us all of our difference, our society of its sensitivity to diversity and thus of true tolerance, and our culture of its potential richness, all to serve ultimately the interests of a privileged minority”.

(Branson and Miller 1992)11 Normalisation’s culture and practices did not lead to empowerment.
They further legitimised the status quo.

SRV and Normalisation have proved to be as controlling as the medical model and so, what is referred to as the social model of disability, is in fact no more than a new version of the medical model.

“One of the central contradictions of normalisation [“SRV”] is that while it purports to re-value people with disabilities, it is rooted in a hostility to, and denial of “differentness””.
(Szivos 1992:126)12 6 Russell, M., Malhotra, R., 2002, cited Wiltshire, D., The Social Construction of Disability, 2004 7 Ariotti, 1999, p. 216, cited Wiltshire, D., The Social Construction of Disability, 2004 8 Paton, S., Homan, J., Learning with Amanda, 2004 9 Perrin and Nirje 1985:69, cited Campbell, F., Social Role Valorisation Theory as discourse: bio-medical transgression or recuperation?, 1998 10 Wolfensburger, W., Eric Education Information Centre, 1983 http://www.eric.ed.gov/ERICWebPortal/search/detailmini.jsp?_nfpb=true&_&ERICExtSearch_SearchValue_0=EJ299 722&ERICExtSearch_SearchType_0=no&accno=EJ299722 (sighted 070810) 11 Branson and Miller 1992, cited Campbell, F., Social Role Valorisation Theory as discourse: bio-medical transgression or recuperation?, 1998 12 Szivos, 1992, cited Campbell, F., Social Role Valorisation Theory as discourse: bio-medical transgression or recuperation?, 1998 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 80 “SRV” is seen by many as ‘best practice’, and has significantly influenced the Disability Services Act 1986 (DSA).
The legislation emphasised de-institutionalisation by enshrining “SRV” principles into its Objects (s.3) and the Act’s Principles & Objectives.

[xx] (Campbell, F., 1998)13 The feudal, hierarchical, top down, charity model has had a variety of guises but has maintained inequality and marginalisation of disabled people till this day.

3.

Impediments to change From the mid 20th century government became a contributor, but within the charity model.
In the latter part of the century government discovered that it could deliver on social policy by contracting services out to the not for profit sector.

Government also figured that it could do this at a reduced cost.14 At present all power resides with the funding providers, who then delegate some of this power to service providers, who as ‘contractors’ are accountable to the funding bodies.

Service providers become the ‘gate keepers’ in the system.
They manage the resources, block funding as well as individual funding, and decide on the type of services they want to deliver.

The professionals are at the centre of the process, and the ‘client’ is generally only a token participant in the decision making process.15 This creates a lack of accountability and transparency to service users that may readily lead to misuse of power.

The current Royal Commission into institutional sexual abuse offers some valuable insights.
The Catholic Church’s Truth, Justice and Healing Council (121214) makes two significant statements about the nature of its organisation, which may well apply to many other top down hierarchal institutions :  It said the church’s response to child sex abuse had been shaped by its culture and “clericalism”, which it defined as an “ordained ministry geared to power over others, not service to others”.
“Church institutions and their leaders, over many decades, seemed to turn a blind eye, either instinctively or deliberately, to the abuse happening within their diocese or religious order, protecting the institution rather than caring for the child,” 16  Most organisations and departments handle complaints ‘in house’, which creates real or perceived conflict of interest.
Dr Tom Artobelli notes that there is a deep feeling of cynicism, scepticism and disappointment in the Australian public about the internal processes and policies used by institutions to deal with allegations of (sexual) abuse.

In short, there is a reluctance to trust institutions that deal with these matters internally.17 The current top down, feudal, hierarchal relationship structure in the sector inhibits accountability, transparency and trust.
Fear is one of the principal reasons for the lack of reporting of cases of abuse and neglect.

Fear of retaliation, discrimination, and social exclusion, the fate generally suffered by whistle blowers.

Ian Boardman, Queensland Public Advocate 2000-2005, observed that: “When I first arrived in Brisbane, the most striking characteristic of the broad socio-political culture was its unusually punitive nature.
It did not matter where he ventured, people were afraid to speak out for fear of being punished”.18 There are reasons to believe that the culture in many other states of the commonwealth is not a great deal different.

It is distrust of the integrity of the current dispute resolution systems that has created an – unwilling - acceptance of a culture of neglect and abuse.
13 Campbell, F., Social Role Valorisation Theory as discourse: bio-medical transgression or recuperation?, 1998 14 Professor Lonne and Associate, Professor Healy, Queensland Industrial Relations Commission, Industrial Relations Act 1999 - s.125 - application for new award, 060509, 15 Homan, J., From Charity to Equality, 2010, submission 599 to the Productivity Commission re Disability care and support.
16 The Guardian, Celibacy rule may have contributed to child sex abuse, says Catholic church, 121214 17 Altobelli, T., Institutional Processes for dealing with allegations of sexual child abuse, 2003, P3 http://www.aic.gov.au/conferences/2003-abuse/altobelli.pdf (sighted 080408) 18 Boardman, I., Challenging behaviour, Office of the Public Advocate – Queensland, 2005 P19 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 80 Another reason for not complaining is the lack of capacity of service users and other stakeholders to complain effectively.
The expectation of a complaint being upheld is low, and the fear of further abuse when it is not, high.

Staff selection is critical for both coordinators as well as support workers.

Selection criteria have largely focused on skill sets, rather than attitude and values.

Also, because of the complications of the unfair dismissal laws, staff that are deemed unsatisfactory have not been dismissed, but in many instances have been induced into resigning with a good reference the reward.
This creates a situation not dissimilar to the one practiced by the Catholic church where clergy were transferred to other parishes without their previous history being revealed.

Bad apples being moved from barrel to barrel rather than removed from the system.

Empirical evidence within the sector indicates that attempts to rehabilitate offenders have been an overwhelming failure because there has been a high rate of reoffending.
Rather than the current practice of accepting this elevated risk of these ‘bad apples’ doing more harm, supporting them to make a career outside the human services sector seems the better option.

A significant factor is that hard proof of wrong doing is very difficult to get, particularly with people of reduced capacity, and or non verbal, as – most of the time - they are not considered credible witnesses.
An added difficulty is that a person with a disability is usually only attended by a single support worker.

This creates the problem that abuse allegations can rarely be corroborated.

This is especially significant for people with an intellectual disability.

They rely on ‘divine intervention’: the one occasion that a person of capacity is present at the time of an incident, and this person recognising it as a misuse of power, and this person being prepared to make a written complaint.
It is rare for all these planets to be in alignment at the same time; and because of this, abuse causing major damage, physically, socially and emotionally, can go on for a long time without being detected.

Advocacy in Queensland is a risky business, and there is little reason to believe that it is much different in other states.
Ian Boardman, the first Public Advocate in Queensland, wrote in 2005: “It seems that many people and organisations in Queensland have considerable difficulty in communicating their concerns effectively to those who have it in their power to make things right.

As often as not, people have reported to me that they are ignored or stereotyped as troublemakers, and then marginalised or threatened”19.

So, how healthy is the sector now?


Some of the comments from the Shut Out20 report of 2009 paint a picture:  “56 per cent of submissions received discussed the experience of exclusion and the impact of negative social attitudes on the lives of people with disabilities and their families, friends and carers.

 Many submissions said that there is little or no choice in services provided, particularly in regional or remote areas.
 Submissions and participants at community consultations said that the system is characterised by a ‘one-size-fits-all’ approach in which there is very little choice or flexibility.

 Programs and services are built around organisational and system needs rather than the needs of clients”.
The Productivity Commission stated in 2011 that: “The current disability support system is underfunded, unfair, fragmented, and inefficient, and gives people with a disability little choice and no certainty of access to appropriate supports.

The stresses on the system are growing, with rising costs for all governments”.21 To attempt to repair the present – broken – system will be a mistake.
Not only is it beyond repair, but it was no good to begin with!22 19 Boardman, I., Challenging behaviour, Office of the Public Advocate – Queensland, 2005 20 Shut Out, The Experience of People with Disabilities and their Families in Australia, National People with Disabilities and Carer Council, 2009 (p2) https://www.dss.gov.au/sites/default/files/documents/05_2012/nds_report.pdf 21 Productivity Commission, Disability Care and Support, 2011 http://www.pc.gov.au/inquiries/completed/disability- support/report/disability-support-volume1.pdf 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 80 4.
Prevention The National Disability Insurance Scheme (NDIS) has the potential to destroy the barriers of the social construct of disability, and open the door to equality, inclusion, and opportunity for people with a disability.

Provided:  The NDIS is funded, as intended by the Productivity Committee, so disability support becomes an  entitlement, and the NDIS does not revert to the charity model by an other name.

It has bipartisan support at a philosophical, strategic and operational level.
This will enable it to break away from the shackles of the electoral cycle and give it the long term certainty and security people with disabilities need.

The NDIS will drive a major culture change in the sector, as it will force a change in relationships.

The top down relationship from funder to service provider to service user will become a horizontal one.
The entitlement of service users to control (within certain boundaries) their funding packages, will shift power from service providers to service users.

This changes the role of the service provider from gate keeper to shop keeper.

This is empowering for service users as it gives them real choices, so they can build and pursue their goals and dreams for a good life.

The NDIS has a focus on safeguarding people with disabilities by building on their capacity.
One strategy is to assess current capacity in four basic parameters, and then build on this capital.
 Personal Capital – a person’s resources in themselves and their ability to assert themselves, inner strength and resilience  Knowledge Capital – a person’s skills, knowledge and ability to use this knowledge for action  Material Capital – a person’s resources and material goods  Social Capital – a person’s relationships and connections 23 Developing the person’s capacity may be seen as a journey towards reaching the person’s potential.
It will provide a better quality of life, and make him less vulnerable to abuse and neglect.

NDIS coordinators are in the unique position of being able to advise people with disabilities, and assist them in making decisions they may not be able to make on their own.

As Stehlik and Chenowith put it: “They can be the person holding the map, while assisting and supporting the client to move forward themselves.

The barriers, road blocks, potholes etc.


that are constantly in the way are therefore potentially smoothed by this partnership — thus enabling the journey to be taken by others as well”.24 Coordinators because of their close relationships with service users and service providers are also in a strong position to prevent harm.

Preventative strategies There are a number of strategies that can be put in place to protect the vulnerable.

a) Staff selection is critical.


It is important that support workers not only have the required skills, but also the willingness and capacity to enter into long term respectful and trusting relationships with the service user and family.

Engaging staff is never risk free, but risk can be managed and minimised.

To do this the engagement and induction processes must be thorough and assess attitude and values as well as skill sets, and include the service user.
Where possible a candidate should operate with a ‘buddy’ during a trial period.

This enables ground truthing the qualities of the candidate, and the relationship with the service user.

It also leads to a gradual transition in changing circumstances.

22 Homan, J., From Charity to Equality, 2010, submission 599 to the Productivity Commission re Disability care and support.
23 Walker, M., Fulton, K., Bonyhady, B., A Personalised Approach to Safeguards in the NDIS, 2013, http://www.centreforwelfarereform.org/uploads/attachment/385/a-personalised-approach-to-safeguards-in-the- ndis.pdf 24 Stehlik, D., Chenoweth, L., Flexible funding as an underpinning to community resiliency: early reflections on the introduction of local area co-ordination in Queensland, 2001.
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 80 Where families choose to manage the funding package and engage support workers themselves, there is little protection from what may be significant risk.
A thorough engagement and induction process is needed to minimise this risk.

My Place (WA) PTY Ltd has developed a comprehensive tool “A Guide to Engaging your own Support Workers”.25 It is thorough, NDIS friendly, and easy to follow.

It will bring a great deal of certainty to the relationship between the parties.

b) Relationships between service users and support workers are important.
Paton and Homan in 2005 challenged some traditional paradigms about relationships: “Many support services and government departments actively discourage the development of close personal relationships between carers and clients.

It is seen firstly, as ‘not professional’ and, in line with the medical model of disability, appears aligned to the doctor/patient model of relationships and in many instances is focused solely on maintaining the physical integrity of the person.
Secondly, relationships between staff and clients are frequently presented as placing the staff member in the position of ‘conflict of interest.’ We must ask ourselves: “How can this be?”, if the institution, agency or service provider is truly focused on working in the client’s best interests and providing quality of life, as well as physical care.
The traditional paradigm assumes that the intellectually disabled either do not require love or friendship or that they are able to meet these needs outside the care network.
The perception from the medical community that ‘children like that don’t need love’ (Smith 1997 cited Croft 2000, p. 170) was in the past also used as justification for institutionalizing them”.26 There is a clear difference between personal and professional relationships, but there are also many common elements that may lead to a professional relationship being meaningful, respectful and beneficial, to both worker and service user.27 Provided certain boundaries are observed a professional and personal relationship can coexist without conflict of interest.
Bramston Training and Consultancy has published an excellent guide, which defines freedoms as well as boundaries.

28 c) Support dogs are not just dogs that have been specially trained to assist a disabled person with certain daily tasks that he is unable to perform for himself.

An assist dog, on duty around the clock, creates a safer environment.
Also people with disabilities with an assist dog require fewer hours of attendance by support workers.29 This also adds to a safer environment as risk of abuse and neglect will be proportional to support hours provided.

d) ‘Support Circles’ for disabled people are becoming increasingly more common in Western countries.
Chernets cited Ward (2002, p.7) explains: “A circle is a group of citizens who come together to support and share a relationship with a person who is vulnerable because of having a disability.

People who have disabilities are always at risk of becoming isolated and surrounded by people paid to be in their life.

Together, people in a Support network/ circle develop a safe and secure present and future for the individual”.
Chernets goes on to say that the most important gift we can give a disabled family member is a ‘support circle’ to oversee their future.30 The strategies outlined above are a form of ‘circling the wagons’.

However there are benefits that go well beyond establishing a safe environment for the person with a disability.

They are conducive to establishing valued respectful and trusting relationships.

They have the potential to turn transactional support into an empowering one.
To create and nurture an environment that encourages the person with a disability to move from a ‘filling in time between meals’ model to a journey towards their potential.

25 http://www.arcinc.org.au/files/library/media-private/141/MyPlace_Engaging%20Staff%20Booklet.pdf 26 Paton, S., Homan, J., Learning with Amanda, 2005.

Address to the International Conference for Engaging Communities, Brisbane, 2005.
27 Homan, J., From Charity to Equality, 2010, submission 599 to the Productivity Commission re Disability care and support.

28 Bramston Training and Consultancy, Getting it right, p25, 2008/09 29 Homan, J., Men women and dogs, 2011, submission 975 to the Productivity Commission re Disability care and support.

30 Paton, S., Amanda: Journey to Freedom, A qualitative evaluation of the progress of Amanda towards a meaningful and inclusive life, 2004.
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 80 5.
Protecting the vulnerable No matter how far reaching the reforms, no matter the dedication and commitment of government, funders and service providers, they will all be seriously compromised unless the systems designed to protect people with disabilities from abuse and neglect are robust, ethical, and put the wellbeing of people with disabilities first.31 The following remarks are not just relevant to people with disabilities, but also reflect on abuse of power in many other areas: sexual abuse, domestic violence, child abuse and more.
Enquiries past and present, the literature, the media and anecdotal evidence continue to demonstrate that abuse and neglect of vulnerable people, not just people with disabilities, is endemic.

It clearly demonstrates that our judicial system, justifiably held in high regard, has failed to protect vulnerable people, both in the area of common and criminal law.

Albert Einstein said: “The problems we have created can not be solved with the level of thinking that created them”.
In the new thinking the focus is on the victim.

It is about protecting the vulnerable from the risk of suffering further harm, rather than about punishing the defendant.

It means that we must challenge the assumption of ‘innocent until proven guilty’ as that may leave the door open to further abuse until a final outcome has been decided – and this can be a long time!32 In cases of misuse of power the clear obligation is to: a.

Immediately ensure the safety of the vulnerable person, b.
Establish – on balance of probability – if the event took place, assess the risk of re-offending, then deal with the defendant appropriately.

What community and people with disabilities and other stakeholders are looking for is a system that is independent, ethical, and fair.

A system where people who report wrong doing are the heroes, not the villains.

A system that people can trust.

A system where the victim’s well being is the highest priority.
To be independent this system needs to be part of the human services sector, but independent from it.

It must be established by a federal act, and its budget should also be guaranteed by law to avoid political interference and ‘death by administration’.

The process must be non adversarial, and about problem solving, rather than finger pointing.

Processes must reflect respectful relationships, and collaboration and co-production principles.
The introduction of Victim Impact Statements will contribute to the transparency of the process.

It is also important that proceedings take place in an environment that is comfortable and non threatening to the victim.

Common law Professor David Hamer of the University 0f Queensland says: “The ordinary civil case is symmetrical, The plaintiff and the defendant have an equal stake in the proceedings.
Arguably, where this symmetry is not present and the defendant has more at stake than the plaintiff, the standard should increase or an intermediate standard should be imposed”.

33 Where there is misuse of power this symmetry is clearly not present.

It may be argued that the impact of abuse and neglect is related to the power differential between the parties.

The more vulnerable the plaintive, the more he has to loose if the decision goes against him.
A non verbal person with a profound intellectual disability and also epilepsy for example, is far more dependant on a support worker than a sporting wheelie, and hence is much more vulnerable to further abuse and neglect if the complaint is not upheld.

Where the symmetry that David Hamer refers to is not present, and consistent with his observation about an intermediate standard of proof, the standard of proof may be made relative to the power differential.
The level of allowable evidence will bear on the likelihood of getting a correct decision.

Hence, as a wrong outcome for very vulnerable people will be most damaging, the required level of proof for them should be 31 Homan, J., From Charity to Equality, 2010, submission 599 to the Productivity Commission re Disability care and support.
32 Homan, J., From Charity to Equality, 2010, submission 599 to the Productivity Commission re Disability 33 Hamer, D., Probalistic standards of Proof, 2004 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 80 lowest.
Peter Kennedy, Vice-President Royal College of Psychiatrists, commenting on the Kerr Haslam Inquiry into sexual abuse, said the report recognises that rumour and gossip can be grossly misleading (perhaps 2% are false).
However, when rumour, gossip and withdrawn or unsubstantiated allegations refer to the same person repeatedly, the balance of probability grows that patients are being harmed.34 Although the standard of proof in these cases may be low, the trends become very clear, with consequently fewer flawed outcomes.
Criminal Law Blackstone’s maxim of 1765 states that ‘it is better that ten guilty persons escape than that one innocent should suffer’.35 It confirms that the focus is on the defendant: victims of crime are almost invisible.

Louise Casey, the first commissioner for victims of crime in England and Wales, says the criminal justice system treats victims as a poor relation and an afterthought.
Too often victims found themselves a "sideshow" as police, prisons, lawyers and the courts focused on the offender.36 Is our current interpretation of Blackstone’s maxim the correct one?

British society In Blackstone’s time was highly class conscious to he point of creating the social construct of the ‘criminal classes’.

The power differential between the judged and those doing the judging was very large.
Defendants had much to loose, like their lives or being transported to the colonies, for quite minor crimes.

Did Blackstone attempt to protect the vulnerable of that time, the defendants?

Things have changed.

In the new century, in cases of misuse of power, abuse and neglect, defendants are no longer the vulnerable party, the victims are, and the focus should be on protecting them.
Recent research demonstrates that where cases are judged on the basis of ‘beyond reasonable doubt’, Blackstone’s maxim – as understood today - has almost become a prophesy.

Professor David Hamer says that: “If a plaintiff proves her case to a probability of 60 per cent, a verdict will be rendered for the plaintiff and, in the factfinder’s view, this verdict will probably be correct.

If ten plaintiffs proved their cases to a level of 60 per cent, all would succeed.
Six of these verdicts would be expected to be factually correct, and four factually incorrect, though which were which would be unclear.

If the standard were raised to, say, 65 per cent, the defendant would be successful in each of the ten cases.

However, the fact-finder would then consider only four verdicts to be factually correct, and six to be factually incorrect.
By increasing the standard of proof, the subjective expected rate of factually correct verdicts would be reduced”.37 It demonstrates that in criminal cases based on ‘beyond reasonable doubt’ defendants are at a distinct advantage.

It also demonstrates that the level of advantage increases as the required standard of proof is raised.
This reflects a determination that the protection of defendants' rights or interests at stake in the litigation is much more important to society than plaintiffs' interests (Cleary, 1972).38 That is the ‘old’ thinking.

In the new thinking the plaintiff’s interests come first, as it is the party with the most to lose.
Dorothy Kagehiro, Research Psychologist and Consultant, writes that: “The standard of proof refers to the degree to which the trier of fact must be satisfied that the necessary facts have been established, and that this varies from case to case.

The lowest or least stringent standard of proof, preponderance of the evidence, is used in most civil cases and concerns whether or not the existence of a fact is more probable than its nonexistence.
The determination of what standard of proof applies in a particular case reflects a judicial or legislative allocation of the risk of error between the disputing parties.
The higher the standard of proof, the greater the risk of error that has been placed on the initiating parties”.39 34 Kennedy, P., Kerr/Haslam Inquiry into sexual abuse of patients by psychiatrists © TPsychiatric Bulletin, 2006 35 William Blackstone, cited Hamer, D., Probalistic standards of Proof, 2004 36 Casciani,D., Crime victims treated like the 'poor relation' , BBC News, 200710 37 Hamer, D., Probalistic standards of Proof, 2004 38 Cleary, 1972; In re Winship, cited Kagehiro, D., Defining the standards of proof in jury Instructions, 1990 39 Kagehiro, D., Defining the standards of proof in jury Instructions, 1990 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 80 In criminal cases the expected standard of proof that will minimise the rate of error is 50 percent.
Both Kagehiro and Hamer assert that standards of proof are not absolutes, and that defendant’s are advantaged by raising this standard.

The 50 percent standard of proof in criminal cases is an ‘expectation’ rather than a hard rule, and so it may be argued that to restore symmetry, and not disadvantage victims, a downward adjustment of this standard may be appropriate at times, similar to that proposed for civil cases.
A clear disadvantage to victims was demonstrated in the St Joseph's Catholic College case where it appears that much relevant evidence was disallowed, presumably because it was considered ‘prejudicial’.

A former dorm master at Sydney's prestigious St Joseph's Catholic College has been jailed for sexually assaulting a student after nine separate trials spanning 13 years, and more than 30 years after the abuse took place.
When Maguire was first charged each of the former students who said they had been abused by Maguire saw separate trials in which the jury was not told about any other allegations against him.
Maguire was acquitted on seven separate occasions – with one hung jury – until last November he was convicted for the first time in relation to the abuse of the 11-year-old in 1983.40 The Uniform Evidence Manual of the Judicial College of Victoria states that: “In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused”.41 The St Joseph case clearly demonstrates that withholding the information about other allegations created what, may be referred to as major miscarriages of justice at immeasurable cost to the victims and major cost to the tax payer.
Consistent with balancing the standard of proof relative to power differential, and the identification of trends that may point to the risk of re-offending, courts should have the discretionary powers to include evidence that may be considered prejudicial, but where exclusion is more damaging to the victim than the defendant.

6.
6.

Conclusion In this submission we have highlighted how discrimination and inequality of people with disabilities has endured, through the charity model of welfare, to this day under different names and guises.

The paper has also identified a number of obstacles to change.
The Productivity Commission (PC) in its inquiry into ‘Disability care and support’ received more than 1000 submissions,42 and concluded that the current system is broken beyond repair, and identified a new direction to equality and inclusion.

The NDIS, with bipartisan support has become the vehicle to effect this major paradigm shift.

It is about changing relationships.

A change of culture from hierarchal and controlling relationships, to respectful and facilitating ones.
Its greatest challenge is that it requires sharing power.

Service providers will not welcome this unchosen, change, as it will change their relationship with people with a disability from gate keeper to shop keeper.

Threats to the NDIS are two fold: political interference is an external threat.

The internal threat is failure to effect the culture change to equal respectful and trusting relationships in the sector.

The new culture will bring with it a reduction in abuse and neglect.
The preventative strategies listed, and others, will reduce vulnerability through empowerment and inclusion.

Quality coordinators will also prevent harm, as will respectful and trusting relationships between people with disabilities and support workers.

Abuse and neglect can be reduced through the NDIS, but is does not have the capacity to address it.

Nor should it, as it could be compromised by real or perceived conflict of interest.
http://www.smh.com.au/national/former-st-josephs-college-dorm-master-brother-john-dennis-maguire-sentenced-for- child-sex-abuse-20150320-1m44sj.html 41 The Uniform Evidence Manual of the Judicial College of Victoria, 137 Exclusion of prejudicial evidence in criminal proceedings, http://www.judicialcollege.vic.edu.au/eManuals/UEM/index.htm#28737.htm 42 The author contributed four submissions: # 599, 643, 975, and 1051.
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 80 Abuse and neglect must be addressed by the judicial system.

To make the process fair, and ethical a change of focus is needed.
The focus on defendants rights needs to change to a priority of rendering the victim safe, removing the a-symmetry caused by power differential, and assessment of the probability of re-offending.
It appears that the courts have the authority to implement these proposed strategies: render the vulnerable person safe through Domestic Violence Protection Orders,   adjust the required level of evidence required, and  determining the effect of, what may be considered, pre-judicial evidence on the defendant and victim.

The required change in focus will challenge long held beliefs and practice.

It also is a unique opportunity to make the judicial system more relevant and fair.

7.

Recommendations 1.


Full bi-partisan support for the NDIS to ensure that it is a. a national system, b. support is an entitlement, and is c. fully funded, 2.
Full bi-partisan support for removing the biases in the current judicial system and a. the primary focus is on the safety of the victim, b. the a-symmetry caused by the power differential between defendant and accused, is compensated for by adjustment of the standard of proof required, both in civil as well as criminal cases, c. assessment of ‘prejudicial evidence to determine if withholding it is more damaging to the victim than the defendant, d. an assessment of risk of re-offending through establishing trends based on all available evidence, including evidence considered prejudicial.
3.

Establishment of a system that will prevent abusers from working in the sector.

4.

Introduction of Victim Impact Statements.
References Altobelli, T., Institutional Processes for dealing with allegations of sexual child abuse, 2003, P3, http://www.aic.gov.au/conferences/2003-abuse/altobelli.pdf (sighted 080408) Ariotti, 1999, p. 216, cited Wiltshire, D., The Social Construction of Disability, 2004 Bibby, P., Former St Joseph's College dorm master brother John Dennis Maguire sentenced for child sex abuse, SMH, 210315, http://www.smh.com.au/national/former-st-josephs-college-dorm-master-brother- john-dennis-maguire-sentenced-for-child-sex-abuse-20150320-1m44sj.html Boardman, I., Challenging behaviour, Office of the Public Advocate – Queensland, 2005 P19 Bramston Training and Consultancy, Getting it right, p25, 200809 Branson and Miller 1992, cited Campbell, F., Social Role Valorisation Theory as discourse: bio-medical transgression or recuperation?, 1998 Campbell, F., Social Role Valorisation Theory as discourse: bio-medical transgression or recuperation?, 1998 Casciani,D., Crime victims treated like the 'poor relation' , BBC News, 200710 Cleary, 1972; In re Winship, cited Kagehiro, D., Defining the standards of proof in jury Instructions, 1990 Croft, D., When needs go Begging, Disability Services Commission, WA, 2000 Hamer, D., Probalistic standards of Proof, 2004 Hamilton, D., cited Croft, D., When needs go Begging, Disability Services Commission, WA, 2000 Heidegger, M., cited Deegan, P., Recovery as a journey of the heart, 1996 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 80 Homan, J., From Charity to Equality, 2010, submission 599 to the Productivity Commission re Disability care and support.
Homan, J., Men women and dogs, 2011, submission 975 to the Productivity Commission re Disability care and support.
Industrial Relations Act 1999 - s.125 - application for new award, 060509, Professor Lonne, Associate, Professor Healy, Queensland Industrial Relations Commission, Kagehiro, D., Defining the standards of proof in jury Instructions, 1990 Kennedy, P., Kerr/Haslam Inquiry into sexual abuse of patients by psychiatrists © TPsychiatric Bulletin, 2006 Mohammed Yunis, Founder of the Grameen Bank of Bangladesh, Nobel Peace prize winner, 2006.
MY Way, A Guide to Engaging your own Support Workers, http://www.arcinc.org.au/files/library/media- private/141/MyPlace_Engaging%20Staff%20Booklet.pdf Paton, S., Amanda: Journey to Freedom, A qualitative evaluation of the progress of Amanda towards a meaningful and inclusive life, 2004.

Paton, S., Homan, J., Learning with Amanda, 2005.

Address to the International Conference for Engaging Communities, Brisbane, 2005.
Perrin and Nirje 1985:69, cited Campbell, F., Social Role Valorisation Theory as discourse: bio-medical transgression or recuperation?, 1998 Productivity Commission, Disability Care and Support, 2011 http://www.pc.gov.au/inquiries/completed/disability-support/report/disability-support-volume1.pdf Russell, M., Malhotra, R., 2002, cited Wiltshire, D., The Social Construction of Disability, 2004 Shut Out, The Experience of People with Disabilities and their Families in Australia, National People with Disabilities and Carer Council, 2009 (p2) https://www.dss.gov.au/sites/default/files/documents/05_2012/nds_report.pdf Stehlik, D., Chenoweth, L., Flexible funding as an underpinning to community resiliency: early reflections on the introduction of local area co-ordination in Queensland, 2001.
Szivos, 1992, cited Campbell, F., Social Role Valorisation Theory as discourse: bio-medical transgression or recuperation?, 1998 The Guardian, Celibacy rule may have contributed to child sex abuse, says Catholic church, 121214 The Uniform Evidence Manual of the Judicial College of Victoria, 137 Exclusion of prejudicial evidence in criminal proceedings, http://www.judicialcollege.vic.edu.au/eManuals/UEM/index.htm#28737.htm Walker, M., Fulton, K., Bonyhady, B., A Personalised Approach to Safeguards in the NDIS, 2013, http://www.centreforwelfarereform.org/uploads/attachment/385/a-personalised-approach-to-safeguards-in- the-ndis.pdf William Blackstone, cited Hamer, D., Probalistic standards of Proof, 2004 Wolfensberger, W.,Social Role Valorization: A Proposed New Term for the Principle of Normalization, 1983 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 80