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A Standing Inquiry Into Abuse and Neglect of Vulnerable Adults: Learning from New South Wales
“Atrocious” neglect and abuse
In Australia an important report from a recent standing inquiry (‘the inquiry’) went to the New South Wales (‘NSW’) Parliament calling for more action to protect adults with disability from abuse and neglect in community settings, including within family homes. Abuse and neglect of vulnerable adults in NSW – the need for action, published on 2 November 2018, was presented by the NSW Ombudsman including a finding that
…the inquiry has identified highly vulnerable adults who are living in atrocious circumstances, and experiencing serious and ongoing abuse and neglect.
These are just three examples of what was reported to the NSW Ombudsman during their recent inquiry:
A young woman with intellectual and physical disability who is unable to verbally communicate and relies on a feeding tube for nutrition lives at home with her mother and her mother’s partner. The mother uses cable ties, a dog leash and sheets to tie the young woman to her wheelchair and bed. The mother terminated the services of a previous disability in-home support provider who made a report to police about her restraining the young woman and leaving her alone in the house for the evening while she went out.
A young man with intellectual disability lives at home with his parent. He shows signs of neglect, including poor hygiene, weight loss, and limited access to food. He has unexplained bruising, does not have access to medical treatment for his health issues, his parent has stopped him from seeing his psychiatrist, and he turns up to his day program in a sedated state. The young man does not have any access to his own money, and it is suspected he is exposed to domestic violence and drug use in the home.
[A] young man lived in a converted garage at the back of his family’s house, and the neighbour reported that the young man was left at home unsupervised and extremely distressed for most of the day. The young man was observed to wander the backyard for hours, slapping his face, biting himself, crying out, and banging on the door to the main house. The man’s family was seen by the neighbour to hit him with a broom to move him away if he approached visitors to the home.
Background and mandatory reporting
In 2014 legislation in NSW introduced the Disability Reportable Incidents scheme requiring the Department of Family and Community Services (FACS) and funded disability providers to notify the NSW Ombudsman “of serious incidents of abuse, neglect and ill-treatment of people with disability living in supported group accommodation”. NSW has led the way in the mandatory reporting and independent oversight of the abuse and neglect of people with disability in disability accommodation settings.
From 2015, as the numbers of contacts with the NSW Ombudsman about these matters increased, “coinciding with the progressive withdrawal of FACS from the provision of specialist disability services” the decision was taken to commence a standing inquiry; it reflected “the seriousness of the matters that were being reported” to the NSW Ombudsman, and the fact that no other agency has “the powers to adequately investigate these types of allegations.”
Reports to the inquiry
Between August 2015 and October 2018, the NSW Ombudsman received 358 contacts relating to the alleged abuse and neglect of adults with disability living in community settings. 206 reports did not relate to the conduct of service providers but were about “the conduct of the person’s family and other informal supports, and members of the community.” Of the 206, just under a third were referred to the inquiry via the National Disability Abuse and Neglect Hotline and the rest via reported external agencies or individuals. Most of the allegations were of abuse and/or neglect by family members including partner/ spouse, parent or sibling.
Two of the limits of the inquiry
The scope of the NSW Ombudsman’s inquiry was limited to “adults with disability who receive, or are eligible to receive, community services” and therefore could not include all vulnerable adults; for example many incidents of elder abuse did not fall within these limits. The report notes that there is a NSW Elder Abuse Helpline and Resource Unit funded by FACS but its function is to support rather than investigate or coordinate cases management. Another key limit of the inquiry was that the NSW Ombudsman had no power to enter private residences to gain direct access to the alleged victim and the information they obtain is not necessarily admissible in legal proceedings.
A new body and new legislation?
The inquiry found that there was “horrendous abuse occurring in family homes and other community settings.” The report provides powerful evidence in support of the recommendation of the NSW Law Reform Commission for a Public Advocate to “(among other things) investigate – of its own motion or in response to a complaint – cases of potential abuse and neglect of people who need decision- making assistance.” It also calls for new law to enable inter-agency information sharing and supported decision making and further review to find ways to strengthen the NSW system for protecting vulnerable adults.
The inquiry concluded that there needs to be “swift action to establish a comprehensive adult safeguarding approach that will both fill the looming gap in relation to adults with disability, and address the longstanding gap in relation to vulnerable older persons.”
New guidance for people who interview vulnerable adults
In 2016 I spent two months in New South Wales to help set up a witness intermediary scheme based on the English model. NSW went one step further than any other jurisdiction has so far and introduced witness intermediaries at the same time as pre-recording of cross-examination (Cooper, 2016) and the scheme has been very positively, independently evaluated (Cashmore et al., 2017). NSW legislation does not, as yet, extend intermediaries to vulnerable adults, however the importance of research-informed questioning techniques (see for example my latest research publication and The Advocate’s Gateway) is already being realised in NSW.
I have been working for some time with the NSW Ombudsman to create an evidence-based guide to interviewing people with cognitive disability and communication support needs. It forms part of the NSW Ombudsman’s Rights Project for people with disability which was funded by FACS.
It is critical that concerted and ongoing efforts are made to maximise the ability of more vulnerable members of the community, including people with cognitive impairment, to be able to speak up about abuse and other unacceptable situations.. it does a disservice to vulnerable adults to provide information about how to exercise their rights without ensuring that appropriate supports are in place to help them to do so, and that services are adequately prepared and equipped to respond.
The Guide is intended to give disability workers and investigators tasked with responding to allegations and complaints, advice about how to obtain the best evidence from people with cognitive impairment, particularly those who are the subject of, or witnesses to, alleged abuse. The Guide covers:
- how to remove barriers to effective participation in an interview by making reasonable adjustments
- conducting a pre-interview assessment ¬¬– gathering key information about the interviewee and assessing issues such as ‘capacity’ and ‘competence’
- the impact of trauma on communication and how to manage this
- critical steps in interview planning and preparation
- assistance with communication and support for the interviewee – the role of support people; communication assistants, such as intermediaries; interpreters and using communication aids
- strategies for rapport building
- factors to consider in choosing the right time and location for the interview, and the right interviewer, and
- obtaining an account – questioning techniques and things to avoid
I hope that that this guide will be put to practical use in the United Kingdom. We share New South Wales’ desire to improve the ways in which we enable vulnerable adults to be heard and to exercise their rights. The Guide is due for release within months and an update for readers will follow.
Penny Cooper, PhD
Door Tenant, 39 Essex Chambers
[Penny’s academic research projects at Birkbeck, University of London, include studies funded by the Nuffield Foundation and the AHRC about the participation of witnesses and parties, including P in the Court of Protection. Penny’s forthcoming book, Access to Justice for Vulnerable People, edited with Linda Hunting will be available in December from Wildy & Sons Ltd.]