Media Release - Terms of Reference: Reporting and investigation of allegations of abuse in the disability sector

There has been widespread concern about the way in which allegations of abuse in the disability sector are handled. In response, on 8 December 2014, I announced an investigation into how such allegations are reported and investigated.
In order to more fully understand the issues and identify the best focus for this investigation, I invited submissions from people with experience of reporting abuse. Together with the investigation team I met with many individuals - including clients, families, carers and workers, as well as groups involved in the disability sector - to hear direct feedback.
The response - both to the investigation itself and to the call for submissions - was extremely positive.   The invitation to submit also generated some valuable reflections on the nature of abuse and its causes. As one respondent put it:

What has occurred and been reported in the media is a product of the culture in which we live. If this inquiry enables our community to rethink our casual culturally ingrained ideas about who is a human, who is afforded rights and who is supported to access justice, then this will serve as the best way to prevent anything like this from ever happening again.’                             Inclusion Melbourne submission.

I would like to thank all those who gave of their time and experience in making submissions – they have helped both to shape this investigation and to ensure it is informed by their experience.
From the meetings to date and the submissions received, I am acutely aware that expectations are high, both in relation to the scope of the work and its outcome. I am equally aware of the other activities which have a bearing on the timing and scope of the investigation, including state and Senate inquiries, and the rollout of the National Disability Insurance Scheme (NDIS). The National Disability Insurance Authority has now issued a consultation paper on safeguards under the new scheme, which closes on 30 April, and decisions are expected at a national level before the end of this year. In addition, the Victorian Government has committed to a Parliamentary Inquiry, which I anticipate will be informed by my investigation.
The Terms of Reference which follow set out what is and what is not included in my investigation.  They articulate the most effective way for me to help improve standards for Victorians with a disability, and also make a meaningful contribution to other inquiries and the important public debate. 
The focus of this investigation is on the reporting of abuse and not specifically its causes.  As a consequence, I will look closely at the way in which service providers operate.
Some matters raised in submissions, in particular those that involve individual cases, may be considered separately. Some contain sensitive details that will not be published within this investigation but will help to inform it. Wider issues raised in submissions that are not included in the scope will be kept under review by my office - particularly in light of any ongoing complaints - and may become the subject of a future investigation.
The disability landscape
The disability sector in Victoria is complex. People with a disability live and work in a variety of settings, under a number of statutory regimes. The following elements broadly make up the sector:
  • 14,593 people with an Individual Support Package
  • 5,041 supported accommodation beds managed by disability service providers; this includes 52 per cent directly provided by Department of Health and Human Services (DHHS) and 48 per cent provided by community service organisations
  • 4,930 beds in 143 Supported Residential Services (SRSs) 91 per cent of residents were reported to have a disability (2013)
  • 296 funded organisations that deliver disability services
  • 124 facility-based respite services
  • 1,701 disability advocacy clients
  • approximately 1000 high care clients of the Transport Accident Commission (TAC) and WorkSafe Victoria.
Response to call for submissions
As at 27 February 2015 the Ombudsman received 78 submissions including:
  • 28 from current and former disability service workers
  • 27 from clients, their parents or families
  • 17 from NGOs
  • 15 from disability advocates or organisations and
  • 4 from agencies.  
Some submissions raised specific allegations of abuse which are being handled in accordance with the appropriate statutory regime. 
In settling the scope of this investigation, I have considered:
  • feedback from the submissions process
  •  the role the agencies and/or services play in supporting people with a disability
  •  the timing of the consultation and roll-out of the NDIS
  • concerns identified in our meetings with individuals and advocacy organisations
  • information published in the reports of the DSC and Office of the Public Advocate (OPA).
As a result, the following services and agencies are included in the scope of the investigation:
  1. Disability services provided by or funded by DHHS
  2. Client services in the TAC or WorkSafe schemes
  3. Oversight mechanisms including:
a.    DHHS
b.   DSC
c.    Office of Professional Practice (Senior Practitioner - Disability)
d.   OPA and Community Visitors
e.    Authorised Officers of SRSs.
Some agencies and services are outside the scope of this investigation:
  • The management of children with a disability under the Child Protection Program
  • The management of people with a disability in Victorian education facilities
  • Mental health service providers working under the Mental Health Act 2014.  A person with a mental illness living in a Supported Residential Service will be considered as part of this investigation, however a health service provider under the Mental Health Act will not
  • The Home and Community Care (HACC) program - provided direct to a person’s home and usually managed by local councils. There is a complex mix of state and federally funded as well as private service providers operating under HACC.
Terms of reference
 Terms of reference in Easy English PDF
The investigation will consider the adequacy of the processes for reporting and investigating allegations of abuse in the disability sector in Victoria.

The focus is the reporting of abuse and not specifically its causes. Trends or themes relating to the management and reporting of abuse may indicate causes, which may be considered as part of the investigation, but this is secondary to our key focus.

‘Abuse’ for the purposes of this investigation is an incident which would require reporting to the DHHS or the TAC. This includes:
  • an incident that has resulted in a serious outcome, such as a client death or severe trauma, or
  • events that threaten client or staff health, safety and wellbeing.
Examples of the types of incidents we may consider include:
o   physical assault
o   sexual assault
o   injury
o   management of a medical condition.

The investigation will also consider whether allegations of abuse meeting the incident reporting requirements have either not been reported, or reported as a ‘non critical incident.’

Phase 1
1.     The effectiveness of the statutory oversight mechanisms in reviewing incidents and reporting on deficiencies. This includes the work of -
a.    DHHS
b.   DSC
c.    Office of Professional Practice (Senior Practitioner - Disability)
d.   OPA and Community Visitors
e.    Authorised Officers (under the Supported Residential Services (Private Proprietors) Act 2010)
f.     Transport Accident Commission.

2.    Any gaps in statutory oversight.

Phase 2
The second phase of the investigation will look at incident reporting under relevant legislation including:
  • Disability Act 2006
  • Supported Residential Services (Private Proprietors) Act 2010
  • Transport Accident Act 1986 and
  • Workplace Injury, Rehabilitation and Compensation Act 2013.

3.    The management of incidents that occur involving a registered disability service provider for the purposes of the Disability Act including:

a.    Accommodation
b.   Day service programs
c.    Respite
d.   Advocacy
e.    Individual support.

This is based on service providers and not clients. If children are present in any of these environments they will be considered as part of the investigation.

4.   The management of incidents involving a supported residential service under the Supported Residential Services (Private Proprietors) Act

5.    The management of incidents that occur involving severely disabled workers or compensable clients of the TAC or WorkSafe for the purposes of the Transport Accident Act and Workplace Injury, Rehabilitation and Compensation Act.

The report on Phase 1 will be released in the first half of this year to inform the NDIS Quality and Safeguards Framework, and the final report covering Phase 2 will be tabled in the second half of the year.