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Analysis by JacksonRyan Partners

 Critique of The Office of the Public Advocate Annual Report 2013 - 2014
by JacksonRyan Partners, December 2014 

This paper addresses the disability section of the Office of the Public Advocate Annual Report and provides a critical analysis of particular comments in the report as well as matters omitted from it.

The Purpose of this Paper

Annual Reports stand as significant public documents.  The Office of the Public Advocate (OPA) Annual Report is critical in assessing the Public Advocate’s impact in addressing the role and authorities assigned to her under the Guardianship and Administration Act 1986.

This paper is a critique of those sections of the OPA Annual Report 2014 associated with disability which are considered by the writers to either lack adequate explanation or are challengeable.  This assessment also addresses what the writers consider as obvious omissions in the report. 

  1. The Guardianship Act 1986 (the Act) and the Public Advocate’s Statutory Functions

The Act provides the Public Advocate with a range of functions as well as particular powers and duties associated with the Victorian Civil and Administrative Tribunal (VACT or the tribunal).  Some of these functions and powers will be addressed in the context of particular issues addressed in the critique.

Because of the significance of the Disability Act 2006 in terms of people with disabilities, and also because of the inclusion of sections in the Disability Act as relevant to Community Visitors, the writers have also considered this Act in the context of the Public Advocate’s role.  Further, consideration has also been given to the obvious relationship between the OPA Annual Report and the Community Visitors Annual Report 2014.

  1. Addressing the Contents of the Report

As indicated above, rather than go through the Annual Report on a page-by-page basis and specifically address the contents under every heading in the report, the writers have chosen to provide particular comment on those aspects of the report they believe require a more critical analysis.  Thus, while not being dismissive of the other content in the report, the writers argue that because an annual report is a significant document, it is important that a critique such as this addresses those aspects of the report as detailed below.

Therefore, in terms of the current report the following matters are specifically addressed:

  • The National Disability Insurance Scheme
  • The Concept of Advocate Guardians
  • The Community Guardianship Program
  • Investigations
  • The Community Visitors Program
  • The Case Studies
  • Omissions

The Specifics of the Critique

  1. The National Disability Insurance Scheme (NDIS)

The writers note that while it is reasonable to assume that there may be a number of matters associated with the NDIS that require further development and clarification, nonetheless, they note the primary purpose in establishing trial sites is to trial, test, learn and inform the development of the scheme. 

Notwithstanding this however, the writers express a number of concerns in relation to particular comments made in this section of the report.  In general these concerns are based on the writers’ view that every effort should be made by people in positions of power and influence, such as the Public Advocate, to seek to influence the current and future conversations in relation to the NDIS.  Where, such influence is directed to pursuing the notion that "National means National". Or, in other words, the legislation, the operational practices, standards, quality assurance and safeguards all operate as nationally driven and nationally controlled activities and responsibilities.  In part this underpins the following comments.

There are however, other comments in this section of the report that this critique contends require clarification.

  1. The first relates to the matter of the “planning process” where the report expresses concern over the “speed” of the process.  The reader is left wondering as to whether the “speed” of the planning process is too fast or too slow and further, what benchmark, if any, has been used to make this statement.

Comment is then made concerning the support given to “people with a cognitive impairment to exercise choice and control over the services they wish to access”.  Given OPA’s involvement with the NDIS on a number of levels in the Barwon trial site, it is reasonable to expect that more detail would have been provided about any such concerns. 

  1. The report also makes reference to “some troubling legislative and operational implications of the NDIS”.  It expresses concern about the relationship between state appointed substitute decision makers and nominees appointed under the NDIS, stating that NDIS appointed nominees also have substitute decision making powers.

The writers challenge this contention on the basis that Section 80 of the NDIS Act is clear in requiring a nominee to ascertain and only act on the “wishes of the participant”.  The writers argues that both the letter and intent of this section is clearly one of the nominee not acting as a substitute decision maker for the participant, but only acting on and after having ascertained the wishes of the participant.

If it is that the report’s use of the term “substitute decision makers” in terms of Victoria’s legislation, are guardians, then the writers challenge the report’s contention that a nominee appointed under the NDIS legislation has the equivalent powers.  Victoria’s Guardianship and Administration Act under Section 24 is unambiguous in providing a guardian appointed under that legislation with the power “to decide” for the represented person.  While the writers note that “A guardian must act in the best interests of the represented person” and take “into account, as far as possible, the wishes of the represented person”, nonetheless Section 24 still applies.    

The writers therefore contend, that by failing to make the above distinction the comments in the report lead the reader to assume that a nominee under the NDIS, in effect, has the same authority as a guardian appointed in Victoria.  The writers do not consider this to be the case.

  1. The report states that it is anticipated OPA’s advocacy function will continue, "beyond the timeframe of the trial” with people living in Colanda.  While this may be appropriate and necessary up to the time the NDIS fully establishes its own operational mechanisms, the writers argue that if OPA’s involvement were to continue beyond the trial period this would not be appropriate.  The reason for this being that given the NDIS is a national system, then all aspects of it must be nationally managed and driven as a national system.  As such, the writers submit that rather than promoting the continuation of OPA’s involvement, the Public Advocate should be promoting the notion of transitional arrangements to enable the NDIS to truly function as a national system

  1. The report makes reference to the concept of "nationally consistent".  The writers acknowledge that the reference to this terminology is in the context of what has occurred to date and also that envisaged in the bilateral agreements at the time of the launch of the NDIS sites. Nonetheless, they argued that the annual report would have provided the Public Advocate with an excellent opportunity to advocate for a single national system, as opposed to the notion of "nationally consistent" mechanisms particularly given that by definition “nationally consistent” provides the potential for multiple systems albeit they may be consistent. 

  1. The report states that OPA will be "dedicated to ensuring the development of national safeguards do not diminish Victoria's existing quality assurance system and safeguards”.  Comments made by the Public Advocate and those attributed to Community Visitors in the Community Visitors Annual Report 2014, challenge this suggestion.  For example, comment that abuse and neglect is systemic in the disability accommodation sector, that it has been reported for years, that it is now on the increase and that what has in effect been uncovered is ”only the tip of the iceberg”, do not provide a glowing reference for Victoria’s systems and safeguards.

Although the writers acknowledge the annual report was written before the recent Four Corners program concerning Yooralla, nonetheless, the cases which were the subject of the program, and the writers suggest others known to the Public Advocate, provide clear indicators that the quality assurance system and safeguards currently operating in Victoria are not working.  And indeed, they have not worked for years.  Therefore, the writers contend that to suggest that the development of national safeguards should “not diminish Victoria’s system”, ignores the clear evidence that Victoria’s system is not the panacea that some would have us believe.

As such, the writers suggest that the Public Advocate’s dedication to maintaining Victoria’s system constitutes a significant error of judgement.

  1. The Concept of Advocate Guardians

Reference is made in the annual report to guardianship as being the dominant component of OPA’s work and the “staff operating in the program” being termed ‘advocate guardians’.  While the writers acknowledge sections 28(1) and (2)(a) of the Act reflect the notion of a legally appointed guardian being required to also act as an advocate for the represented person, question arises as to whether the staff to which the report refers are legally appointed guardians.  If such staff are formally appointed as guardians then the writers argue that that the term ‘advocate guardian’ is unnecessary.

A trend that has arisen in the disability sector over many years has been the coining of terminology that is both unnecessary and at times can be confusing.  Often such terminology is driven by the need for the creators to be seen to be introducing something new, which is assumed to add value to their work.  The reality is that in many instances such terminology does not add value and in some ways has been created to give the illusion that something new and of importance has been established, when this is not necessarily the case.

Therefore, apart from the belief this particular reference required some form of clarification, essentially the writers argue that it is unnecessary and has the potential to lead to misunderstanding or possibly misinterpretation.

  1. The Community Guardianship Program

While the writers note the intent of this program and the Public Advocate’s legislative obligation to involve the community in the lives of people with cognitive disabilities, they nonetheless question the comment that “volunteers, after induction and training, act as limited guardians for one or two individuals who are usually resident in the community.” 

It might be assumed that the volunteers have been legally appointed as guardians in the true sense of the word.  Alternatively, by describing these volunteers, as acting “as limited guardian for one or two individuals” it could also be that they have not been formally appointed as guardians.  If it is the case that they are not guardians in the legally defined sense of the word, then the writers argue that to describe the volunteers in this way is not only misleading but contradicts the requirement for guardians to be legally appointed.

Further in relation to this particular section of the report, the writers note that the Public Advocate appears to have a particularly narrow view of what constitutes “the community” by suggesting that this program relates to individuals who are “usually resident in the community”.  The writers contend that it is simply wrong to suggest that the community is a ‘special place’ that only includes those services and facilities, which are argued by some to constitute the community.  And, by contrast, to infer that there are services and facilities that are ‘not in the community’. 

Given that function (a) under section 15 of the Act includes “the community” - How can it be that the Public Advocate considers the community as a special place where some people reside as opposed to other people not residing in the same community?  Clearly, not only is it wrong to infer the concept of the community as being a special place that only some people access while others do not access, but also by making this inference it must be taken to suggest the legislation is wrong.  It is critical to note that the legislation in section 15 (a) of the Act does not talk about particular types of communities, but simply “community”, which can reasonably be concluded to suggest a single community. 

  1. Investigations

While the writers acknowledge the investigations referred to in this section of the Annual Report (p 16) relate to matters referred to the Public Advocate by VCAT, nonetheless the writers also note that under section 15(d) of the Act, the Public Advocate is required “to investigate, report and make recommendations to the Minister on any aspect of the operation of this Act referred to the Public Advocate by the Minister.”  While it may be that no such referrals were made by the Minister, the writers contend that by not making reference to this section of the Act, even if no referrals were made, this constitutes an information deficit in the sense that it leaves the reader wondering whether or not any such investigations were referred and undertaken. 

  1. The Community Visitors Program

The writers acknowledge the role played by Community Visitors in the disability sector over the past 25 years or so, and the recognition given in the report to volunteers during the course of the reporting year.  However, whatever part Community Visitors play in observing people with disabilities in residential services, the question arises as to how successful OPA has been in acting on Community Visitors reports expressing the view that abuse and neglect is systemic and is on the increase.  If, as the report states (p 34), Community Visitors “ensure that the human rights of individuals are being upheld, that they are being treated with dignity and respect and are not subject to abuse, neglect or exploitation” then clearly based on the content of the Community Visitors 2014 annual report this function is not being fulfilled. 

As such, the writers query why this incongruity was not highlighted in the OPA annual report, with a comment being provided as to where the breakdown might be occurring between observing, reporting, and activating actions to address the abuse the neglect and exploitation.

Further, given the significant concerns expressed by Community Visitors, as well as comments attributed to the Public Advocate in the Community Visitors 2014 Annual Report, about systemic abuse and neglect as well as reference to residents who exhibit violence towards others, it is concerning that no reference is made in the OPA report about referrals.  As the Chair of the Community Visitors Board, the Public Advocate has the authority to report matters to the Minister, as well as referring matters to the Secretary of the Department, the Senior Practitioner, the Disability Services Commissioner (DSC) and the Ombudsman.  As such, the writers query why, given this power, the OPA report did not provide any advice as to whether any matters were referred, either by way of complaints to the DSC or as requests for particular matters to be dealt with by other agencies.

While the writers acknowledge that perhaps the Community Visitors Annual Report may have been best to report on these matters, equally they see no reason why the Public Advocate should not have reported on them in the OPA 2014 Annual Report.  The significance of following up on reports, through investigations or requests for others to investigate, must be considered an important responsibility of the Pubic Advocate and hence should be reported on in the OPA Annual Report. This failure must be considered as a significant and concerning omission.

  1. The Case Studies

The writer's note that a popular trend in annual reports, particularly those related to human services is to include in them a number of case studies.  Some might argue that the inclusion of case studies adds value to a report, in that by inference the individual studies represent a common trend of successful outcomes.  Although the writers do not dispute that case studies that are included may well provide an accurate overview of the individual case, nonetheless, they contend no single case study can go beyond the case it represents.  Therefore, they question the inclusion of case studies as an approach appropriate for an annual report.

Additionally the writers note that when case studies are included in annual reports - and this is certainly the case in the current OPA report - they always reflect positive actions and positive outcomes.  Based on the balance of probabilities, the writers contend it is more likely than not that there will be a number of cases dealt with by OPA that have not necessarily had successful outcomes.  As such, they query why "failures" or perhaps to put it more sensitively why examples of cases that have not had successful outcomes are not also included in order to give a balanced view.

In terms of the case studies included in the 2014 Annual Report, the writers note the case study on page 36.  They note that in relation to this case eventually there was a positive outcome.  Nonetheless, given the nature of the abuse of dragging a client along a carpet to the extent that the client sustained second-degree burns, the writers express significant concern that in the first instance DHS took no action for two years, despite the persistence of Community Visitors.  It was then, only after two years had expired that, “OPA ultimately referred the matter to the Ombudsman.”

Therefore, despite the ultimate positive outcome, the writers suggest this is very much a case of a significant failing in the protective mechanisms.  Firstly, DHS was in some ways culpable by failing to act on the Community Visitors reports.  Secondly, OPA was prepared to give the department two years grace before finally deciding to refer the matter to the Ombudsman.  Clearly, for the matter to have been able to drag on for two years suggests the department took little notice of OPA or alternatively OPA did not act vigorously to ensure DHS took appropriate action.

If protective mechanisms including that of observing, reporting and actioning are significant elements in the management of individual cases, then for the reporting of case studies to have future import, the writers contend that deficits as highlighted above must receive some comment in annual reports.

  1. Omissions

It is probably reasonable to argue that the annual report details the work undertaken by OPA in the reporting year, and does so under particular headings.  Further, that by analysing the report, the various sections combined generally address the Public Advocate’s functions.  However, despite this, the writers contend that a significant shortcoming of the report is its failure to be futuristic in terms of addressing abuse, neglect, exploitation and violence in the disability sector.  And, while the writers acknowledge that by their very nature annual reports are somewhat reflective in that they report on a past period, nonetheless, the writers believe that when considered in the context of the 2014 Community Visitors annual report, comment on how the protective mechanisms might work more effectively would have value-added to the contents of the OPA report. 

11.       A Concluding Comment

The Public Advocate must be considered a significant player in upholding and promoting the rights of people with disabilities.  Given this, the writers therefore contend that it is desirable and necessary that the OPA Annual Report to Parliament is precise and unambiguous in its language, is evidenced based and inclusive in its contentions, and is uncompromising in promoting the need to strengthen protective mechanisms both through her position and across the disability sector more broadly.

As illustrated above, the writers contend that the OPA 2014 Annual Report has a number of deficits in each of the above ‘must do’ requirements.

As noted under headings 5 and 6 above, a number of comments made in the report either lack the preciseness required in such a document or are ambiguous. 

As noted under headings 4, 7, 9 and 10 above the report failed to include some matters that should have been reported and, by inference, sought to generalise from single case examples.

Significantly, as the comments under heading 8 above highlight, despite the reference to the role played by Community Visitors, and by association the comments about systemic abuse and neglect in the Community Visitors 2014 Annual report, the OPA 2014 Annual Report failed to demonstrate how OPA, the Community Visitors and the Public Advocate act as required under Section 15 (c) (iv) of the Act to protect ”persons with a disability from abuse and exploitation and the protection of their rights”.

It is concerning that the 2014 Annual Report failed to maximise its potential. 

It is just as concerning that in making reference to carers as – “Carers are, of course, everywhere – as are the people they care for – and many staff at OPA and in our volunteer programs are carers …”, there was no reference to families as carers. 

After all, despite all the caring by ‘outsiders’ it is still families who undertake most of the advocacy, the protection and provision of accommodation for people with disabilities.  Therefore, it would have been appropriate for families to be given some recognition in the report and for some advice to be provided as to how the Public Advocate enacts Section 15 (iv) of the Act in terms of “relatives”.

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While JacksonRyan Partners endeavour to provide reliable analysis and believes the material it presents is accurate, it will not be liable for any claim by any party acting on such information.

© JacksonRyan Partners 2015

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