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Open Letter by JacksonRyan Partners

26 November 2014

OPEN LETTER TO VICTORIA’S DISABILITY SERVICES COMMISSIONER

Mr Laurie Harkin AM

Disability Services Commissioner

Level 30, 570 Bourke Street

Melbourne Vic 3000

Dear Mr Harkin,

Subject:  Response to Questions by 4Corners

We write in relation to your response to questions put to you by 4Corners investigators and as published on the 4Corners website - http://www.abc.net.au/4corners/stories/2014/11/24/4132812.htm

As you will note, this is an Open Letter as we believe that comment on your responses must be widely circulated, as your responses raise serious questions as to how your office operates. 

Investigations

The Disability Act 2006 under section 16(a) lists one of your functions as being to “investigate complaints relating to disability services” and further that section 118(1)(a) states that you “must” investigate a complaint. The question therefore arises as to why you have only undertaken six investigations in your seven plus years of operation.  These six investigations were in relation to complaints made in 2008 and 2009, noting that this was confirmed by a statement in your 2010 Annual Report, “No new complaints were referred to investigation in 2009-2010.” 

In relation to your 2011 to 2014 Annual Reports, you provided no advice in any of these reports to suggest that any investigations were initiated or carried forward in any of those years.  Therefore, we confirm your advice provided to 4Corners, that you have actually only “undertaken investigation of six cases” since commencing in July 2007.  

The significance of the above is that your last five Annual Reports (2010 to 2014) show that a total of only 64 complaints were referred to conciliation.  Yet these reports also show that a total of 207 complaints were only partially resolved or not resolved at all.  These figures demonstrate that a significant number of complaints did not lead to a resolution, and clearly many were not referred for conciliation.  Yet it is evident that, many, if not all, should have been referred to investigation.  After all, as you acknowledged to 4Corners, you do have “the power to conduct an investigation” where you “consider a complaint is not suitable for conciliation or the conciliation has failed”.   We find it inexplicable that no investigations were initiated in the five years 2009-10 to 2013-14.

You advised the 4Corners program that because of “the comprehensive and investigative nature of the assessment process there have been few cases where a formal investigation would provide greater insight or information relating to the matter.”  We challenge your suggestion that the nature of the assessment process is “investigative”.  We therefore submit that what you have sought to do is to divert attention away from the fact that you have not initiated any investigations since 2009.   

To further our view that the assessment process is not “investigative” in nature, we refer you to your own Information Sheet Number 5 – Participating in an Assessment Conference, where it is stated that “an assessment conference is used to assist our assessment process …” We also challenge your advice to the 4Corners program that “there would few cases where a formal investigation would provide greater insight or information”.  The reason for our challenge is that unless a formal investigation is actually conducted, it is pre-emptive to suggest that all the necessary information would have been provided through your assessment process.  It seems reasonable to conclude that what you sought to convey to the 4Corners program is that your assessment process constitutes an investigation.  We put it to you that assessment and investigation are not one and the same thing. 

Your own Information Sheet No 8 – Investigating a complaint – supports this view, where you state that “Once the Commissioner has decided to accept a complaint, the Commissioner must either refer it to a conciliation or an investigation.”   

Given the above, and with particular reference to the 207 complaints not resolved in the period 2010 to 2014, we put it to you that your response to the 4Corners program questions demonstrated a lack of transparency.  As such, your response brings into question the operations of your office.

Own motion inquiry

We acknowledge that the Disability Act does not specifically state that the Disability Services Commissioner may conduct an own motion inquiry.  Nonetheless we submit that the Act does provide you with the opportunity to be proactive.  Section 16(a)(j) of the Act, for example, gives you the authority to refer issues to the Disability Services Board and section 16(m) provides you with the authority, subject to the approval of the Minister, to initiate inquiries into matters referred to you by the Board.  Therefore, while it may well be that you did not receive any specific complaints as related to the Yooralla cases, we would have thought that in your position you would have become aware of the concerns and therefore been proactive in pursuing inquiries.

Double standards

We note in your response to the 4Corners program you cite the DSC 2012 Occasional Paper No. 1, Safeguarding People’s Right to be Free from Abuse.  Given the occasional paper is primarily about giving advice to service providers, it seems reasonable to conclude that while you seem to be prepared to “talk the talk” you have not demonstrated a willingness to heed your own advice of the need for agencies to be more proactive.  There was in indication in the advice that you provided to 4Corners that you had engaged with Yooralla to consider their complaints processes in relation to people’s rights, and supporting complainants through the processes. 

Further on the matter of investigations, we note that you have established a DSC Investigations: Guidance for Good Practice and associated information sheet, where this information has been provided to “support services to promote consistent good practice in investigations”.  Surely this also smacks of double standards, where you seem prepared to tell others how to do their job in terms of investigations, but have so little experience in undertaking investigations in your capacity as the Disability Services Commissioner.  Further, you have also shown a distinct lack of preparedness to undertake investigations in your own right.

Your apparent hands-off position is further exacerbated by the advice you provided in your 2013 Annual Report.  In this report you stated that from time to time complaints which are submitted to your office about disability service providers are then referred by you back to the agency about whom the complaint was made, with the agency then investigating itself. This action is an unacceptable substitute for you as the Commissioner undertaking an investigation under the authority of the legislation. 

Therefore, in relation to your responses to the 4Corners program regarding the matter of investigations, we suggest to you in the strongest possible way that you failed to reflect your apparent refusal to undertaken investigations.  As such, you were less than transparent in your response to 4Corners.

We note The Age editorial (24/11) also expressed concern about your failure to investigate by stating, “The Victorian Disability Services Commissioner should long ago have been probing Yooralla; it is lamentable that the commissioner, Laurie Harkin, has failed to launch an official investigation.”

Review of incident reports 

In relation to incident reports, we note that over the combined years 2012-13 and 2013-14 you reviewed 590 Category One incident reports.  In your response to 4Corners you refer to Notices of Advice as being something you have provided in response to incident reports.  It is relevant to note that, as noted in your Annual Reports, for the two years when you reviewed the 590 incident report, you only provided a total of 48 Notices of Advice.  Given the reasonable assumption that not all such Notices related to the incident reports reviewed by you, as some would have been in relation to complaints, this suggests that something in the vicinity of at least 550 to 560 incident reports would not have led to a Notice of Advice being issued.  Again, we suggest that your response to 4Corners was less than transparent.

The six themes identified by you as arising from the incident reports reviewed in 2013-14 give rise to concerns as to the deficits existing in the disability services system.  As noted by you, the themes relate to the matters of - safeguarding people’s rights; the need for proactive engagement; the need for further clarification in relation to Quality of Support Reviews; the requirements of reporting critical incidents; the lack of a shared understanding of the definition of ‘assault’ and ‘poor quality of care’; the need to regulate the suitability of staff working in the disability sector.  Given the concerns that you identified through your review of the incident reports, we therefore question why your only action was apparently to provide Notices of Advice to DHS or funded organisations in order for them to address the specific issues.  Certainly, there was nothing in your response to the 4Corners program to suggest that you had taken a more proactive systemic approach aimed at reducing the potential of similar type incidents occurring in the future. 

Despite the Minister having requested you to review the incident reports we note that in your response to 4Corners you provided no information as to whether or not you provided any advice to the Minister.  It seems reasonable to suggest that opportunity did exist for you to advise the Minister as to whether there is a need for legislative changes to take account of your belief that “we in the disability sector must be uncompromising about putting people’s rights at the centre of the services delivered.”  Given the significance of your statement, and based on the reasonable assumption that of the incident reports reviewed by you many would have demonstrated a compromising of the rights of people with disabilities, we find it unfathomable that you have not been more assertive in identifying what must happen when rights are compromised or breached.  It is a sad indictment on your position that you consider only one side of the neglect, abuse and exploitation equation by suggesting that the cure for these ills in the disability sector will largely come through “improvements” such as better communication.  You ignore the other side of the equation, which is what should happen to Boards, CEOs, senior managers and direct service staff when there are transgressions.  We note you made no mention to the 4Corners program as to what actions you believe should be taken when Boards, CEOs and senior managers fail to meet their duty of care.

Conclusion

If it is as you stated in your response to the 4Corners program that “the Disability Services Commissioner provides a strong, independent voice to promote and protect the rights of people using disability services” then we query why you did not also advise the program as to why you remained isolated from the Yooralla cases. 

While we acknowledge that you do not have the authority to engage in issues when the police are involved, we suggest that your catchcry “It’s OK to complain” apparently did not result in Yooralla staff and clients seeking your assistance.  We also note that you provided no advice to the 4Corners program as to whether you have investigated why complainants did not come to the Commissioner.

In conclusion, we can only repeat our disappointment that the information you provided to the 4Corners program was nothing short of a superficial bureaucratic response.  We submit that you therefore failed to take up the opportunity to demonstrate how a Disability Services Commissioner can show leadership.  This opportunity not just arose in responding narrowly to the 4Corners questions but could have been expanded by you publicly demonstrating your “independent voice” and as you further suggest “promoting and protecting the rights of people using disability services.”

Please note that we are only too happy to meet with you to discuss the contents of this Open Letter or to receive, in writing, your response to it.

Yours sincerely

Max Jackson & Margaret Ryan

JacksonRyan Partners

Max mobile:  0413 040 654        Margaret mobile: 0412 409 610

Copy: 

The Hon Dr Denis Napthine MP – Premier of Victoria

The Hon Peter Ryan MP - Deputy Premier and Leader of the National Party

The Hon Dan Andrews MP - Leader of the Opposition

The Hon Mary Wooldridge MP - Minister for Disability Services and Reform

The Hon Jenny Mikakos MP - Shadow Minister - Community Services

Mr Greg Barber MP - Leader of the Greens

Ms Colleen Hartland MP – Greens Spokesperson for Health, Community and Local Government

Ms Deborah Glass - Victorian Ombudsman 

Ms Colleen Pearce - Public Advocate

Ms Gill Callister - Secretary, Department of Human Services

Newsprint

  • James Campbell - State Politics Editor, The Herald Sun
  • Josh Gordon - State Political Editor, The Age
  • Richard Baker & Nick McKenzie, The Age
  • Dennis Shanahan - Political Editor, The Australian
  • Political Editor - The Saturday Paper
  • Gay Alcorn - Victorian Editor, The Guardian Australia

Television Channels

  • ABC       4Corners; 7.30 Report
  • Brendan Donohoe - Melbourne State Political Reporter, 7 News
  • Political Reporter - Channel 9
  • Political Reporter - Channel 10
  • Political Reporter - SBS
  • Political Reporter - Channel 31

Radio

  • Jon Faine – Radio 774
  • Neil Mitchell – Radio 693
  • Tom Elliott – Radio 693

LISA Inc   ~   Phone: 03 9434 3810   ~   Email: vk3qq@optusnet.com.au   ~   Address: 73 Nepean Street Watsonia VIC 3087

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