Reporting and investigation of allegations of abuse in the disability sector. Phase 2 - incident reporting

Foreword

That the measure of society is how it treats its most vulnerable has been said since the days of Ancient Greece. But this adage has scarcely been illustrated as starkly as in the cases of abuse of people with disability. Disability covers a wide spectrum: the term is applied to over a million Victorians. Many of us are affected by disability either personally or through people we know and care for. People with disability deserve as much dignity and control over their lives as is possible to achieve.

For some this requires a significant measure of support: daily care, connection, advocacy. Strong support for decision making, and ensuring that there are safety nets and checks in place to guard against abuse, are the cornerstones of a respectful and sustainable disability framework.

While needs vary greatly, people who are unable to care for themselves require the most protection. Some have advocates – people who speak for those who cannot speak for themselves. Others have no-one, and it is the silence of those voices that can be the most damning.

… it’s his power to make you feel powerless and to groom her not to say anything, if you want your treats … then you do this and say nothing.

This report is the second part of an investigation I launched in December 2014 into the reporting and investigation of allegations of abuse in the disability sector, prompted by widespread public concern. In June 2015 I concluded in my phase 1 report that the oversight system in Victoria is fundamentally failing to deliver protection in a consistent and coherent way. The system is fragmented, complicated and confusing, even to those who work in the field. I made two recommendations of principle to the Victorian Government: to create a single independent statutory oversight body, and to increase the funding for advocacy to support decision making by people with disability.

Phase 1 focused on systems; this investigation has focused on incidents. We have reviewed hundreds of individual incidents, and the conclusions are once again unambiguous. The person at the centre of the incident – the person with disability – is largely absent. Their voice is not recorded. There is a perception that it is not what has happened to them that matters but that forms are filled out and faxed within a prescribed timeframe. Feedback to service providers is ad hoc, and learning from incidents is not supported. The system itself relies on an archaic and inefficient transmission of paper via fax machines.

This reveals a way of thinking about people and disability that is at odds with the equal application of human rights, which would demand that the systems support the people and not the other way round.

The second theme to emerge from my investigation is the fear that accompanies this imbalance of power. People with disability and their families are afraid of making or pursuing complaints, for fear of withdrawal of funding or services, or that they will not be believed. Workers in disability services are afraid to report potential abuse, for fear of reprisal including loss of shifts or intimidation by supervisors. Tellingly, we have reviewed some incidents where workers were criticised for delayed reporting while no action was taken against the worker against whom an allegation was made.

I was stood down … I felt like I had done something wrong … they were more focused on what I did following the procedures rather than the abuser … that was more of a priority for them than he was.

In the course of this investigation my team and I met many people in the disability sector, including people with disability, families, advocates, workers and volunteers. I thank them all for their openness and honesty with us, and their willingness to share experiences, however painful. What comes across strikingly is the sense of disempowerment felt by so many, the passion of advocates and families, and the dedication of many workers and volunteers in what can be very demanding roles. Many describe a strong sense of frustration with official responses – to a person with disability’s vulnerability, or to the response of ‘the system’ to an allegation or report.

What do we offer within Victoria to support and safeguard people with disability? A patchwork of oversight bodies and pockets of good practice but no consistency, too many gaps and no ownership of the problem. We have systems and processes, but all too often the official response lacks care and compassion for the rights of the individual.

What is the answer to this sorry state of affairs? The extreme vulnerability of some people with disability will not lessen with the introduction of the National Disability Insurance Scheme, and not everyone will be equipped to take advantage of greater personal choice. Advocacy, including building up skills for self-advocacy, will continue to be an essential safeguard. There should be mandatory reporting to an independent oversight body, with responsibility for ensuring that allegations of abuse are appropriately investigated and lessons learned. There should be safe ways for abuse to be reported, without detriment to the whistleblower. And after a decade of criticisms, the current incident reporting system must finally be made fit for purpose.

But it is within the hundreds of service providers that change is also sorely needed. Whether facilities are run directly by the government, funded or regulated, a positive reporting culture is essential. People who make allegations of abuse should feel safe, supported and confident that appropriate action will be taken. While we are seeing good practice in some providers, profound cultural change and constant vigilance is required across the sector to ensure the safety and wellbeing of Victorians with disability.

The agencies involved in recent abuse scandals have learned the hard way – and Victorians with disability have paid an unacceptably high price.

Deborah Glass

Ombudsman

Glossary

Executive summary

In 2014 there was much media and public focus on incidents of appalling abuse in facilities for people with disability in Victoria. In December that year, I announced a two-phase investigation into the reporting and investigation of allegations of abuse in the disability sector. Phase 1 looked at the effectiveness of oversight and I tabled that report in June 2015.

This is the report on phase 2, which examined incident reporting and management in the range of environments in which people with disability live in Victoria.

The evidence for this phase included:

• 357 incidents reported to the Department of Health and Human Services (the department) over two month-long periods: February and October 2014
• 19 incidents reported to the Transport Accident Commission (the TAC) involving its clients (January 2013 – August 2015)
• 42 notifications made about people with disability living in supported residential services (SRS) between July 2012 and December 2014.

In addition we received 78 submissions from people with an interest in the sector, including people with disability, their families, advocates, disability workers and academics. This material was used in both phases.

A snapshot of the disability landscape reveals:

• one million Victorians live with disability, with 365,000 defined as having a profound or severe disability1
• the vast majority live at home, and 15,000 receive an individual support package (ISP) to help purchase individualised support, including day services, respite and care in the home
• of those who live in supported accommodation, 5,000 people live in state-funded accommodation – almost equally split between:
• facilities owned and operated by the state (disability accommodation services – DAS)
• those run by community service organisations (CSO) and funded by the state
• privately owned and operated SRS, where around 4,0002 Victorians with disability live
• the TAC funds the care of 1,253 Victorians living with severe injuries as a result of traffic or workplace accidents. They live in a range of accommodation – most at home, some in CSO-run facilities and TAC purpose-built accommodation and a few in SRS.

My investigation attempted to determine the scale of abuse across these environments, but as discussed in phase 1, it is a complex landscape and there is no single source of information, or consistency in data. A number of reviews from Australia and overseas, however, described reported abuse as ‘the tip of the iceberg’.

There is broad consensus that people with disability are more likely to experience abuse than the general population, for example:

• children with disability are three to four times more likely to be mistreated
• adults with an intellectual disability are more than 10 times more likely to be a victim of sexual assault.

The prevalence of abuse in facilities specifically for people with disability has been revealed in a recent survey of disability workers, over half of whom said staff-to-client abuse or neglect occurred. In the same survey, 46 per cent reported witnessing violence, abuse or neglect of clients by other staff, and a further 18 per cent said they knew people who had witnessed such events.

Issues with incident reporting

If what we know is a fraction of the whole, it is important to understand why we do not have a clearer picture, so in phase 2 my officers assessed the experience of reporting and investigation.

There are a number of issues of concern with incident reporting under all three regimes – DAS/CSO, SRS and TAC. My investigation found flaws in how reports are made, how they are communicated and what actions are triggered. This conclusion is not new: around a dozen reviews back to 2006 have considered incident reporting, including reviews by the department, independent organisations and my office.

In the first instance, the department, which supports the majority of Victorians with disability living in funded accommodation, states that its purpose in incident reporting is to learn from events and, if possible, to prevent their recurrence. One of the aims is to ‘ensure timely and effective responses are taken to address immediate client safety and wellbeing’.

Learning from incident reports requires data collection and analysis; however, departmental staff acknowledged that the current approach to incident reporting, which requires manual entry, was
‘inefficient and ineffective’, with a risk of error.

Learning also requires that constructive comment goes back to the service provider in order to effect change. Feedback from the department was described as ‘minimal’ and in most instances ‘non-existent or very sporadic’. My investigation also found evidence that different divisions of the department offered feedback in different ways.

The impact of this is clear: it perpetuates poor and inconsistent practice in circumstances where we are aware there is already an under-reporting of abuse.

The fact that client safety and wellbeing is not one of the primary purposes of reporting, but one among a number of aims, is striking. This has not gone unnoticed elsewhere, with numerous comments in reports and reviews noting that the department appears to be focused on procedures and risk management, rather than ensuring client wellbeing.

The Supported Residential Services (Private Proprietors) Act 2010 has the objective of protecting the safety and wellbeing of residents. It requires that proprietors record incidents and alert the department to serious reportable incidents by the end of the next business day – failure to do so can attract a penalty. Generally, reports are made by phone and then entered by departmental staff into a database. There is no paper trail between the department and the SRS, and there is evidence that some staff misunderstand the distinction between ‘reportable’ and ‘recordable’ incidents, leading to a potential failure to report serious incidents.

Failure to report

Others have speculated about the reasons why people do not report incidents of abuse in higher numbers. In its submission, the Office of the Public Advocate said:

The experience of violence is likely to be under-reported by people with disability for reasons including fear or repercussions … family breakdown, that support services will cease and implications for personal care, transport, and communication assistance.

This fear was borne out in submissions to this investigation from staff, family, carers and advocates, who described intimidation, and fear of reprisal against the reporting staff member, the client and/or their family. They reported concerns about the reputation of the service provider, unease about the impact on the subject of the allegation, disempowerment of staff, frustration with the significant paperwork associated with reporting and a lack of capacity to identify abuse.

A number of comments were also received about a culture of bullying and abuse in the sector and that this was evident in many relationships: staff-to-client, staff-to-staff and client-to-client.

Staff

My investigation heard time and again that workers were fearful of the consequences of reporting – pressure from management not to report, ostracism and possible loss of work and income if they did. We also saw an instance where staff were disciplined for late reporting of incidents and the alleged perpetrator was not disciplined at all.

Some facilities have only one staff member present for a shift, so there is no capacity for oversight; and there were reported instances of staff tending to side with their peer workers and not believing client allegations of abuse.

A number of submissions raised concerns about the capacity of disability workers to identify abuse. Training in this area is not mandatory in the sector. A review commissioned by the department said:

… staff consistently reported that they do not feel confident in their ability to recognise the indicators of abuse and neglect and have not received training on the topic …

There was also evidence of workers being unaware of procedures, particularly temporary agency staff having inadequate language and literacy skills to make reports, and complaints about the paperwork they generated.
Clients and families

Family and advocates described the significant power disability workers have in the lives of people with disability, many of whom are vulnerable. The opportunities available to people with disability to make a complaint were also described as limited: by time, capacity or access to appropriate support.

Fear of consequences of making a report was also clearly evident. My officers heard there was genuine concern that if a report was made, people with disability would have their funding cut, or their placement or care would change. The strong implication was that in a system that is already under stress, protecting current arrangements is seen by many as paramount.

There are, however, areas of good practice, where agencies had put individuals’ wellbeing at the centre of their work.

Incident reporting process and form

Between a quarter and a third of incident reports across all providers (DAS, CSO, TAC and SRS) were found not to meet the mandated timeframes (generally within one working day), with the latest report being made 38 days after the incident.

The structure of the department’s incident report form for DAS/CSO clients, and the processes triggered by it, revealed a number of shortcomings.

The form is ‘one size fits all’ for the department and is used for child protection incidents as well as those involving people with disability. Comments indicate both sectors are unhappy with this approach.

Largely comprised of tick boxes, the form offers limited opportunities for explanation about the incident. There is also no space for contextual information about the person, including their disability, medical background, any required supports or which people have or should have been informed.

The form must be printed off and faxed through to the department from the facility. This generates numerous risks: that forms are mislaid, illegible or delayed in transmission. One regional CSO told us that reports may pass through a number of hands and many kilometres in order to access a fax machine. We also heard that the department has, from time to time, notified service providers that the receiving fax machine had failed to operate for lengthy periods and they were required to resend reports.

The structure of the form underscores the department’s focus on process, where the first task of a senior manager receiving a report is to assess its quality, followed then by ensuring the immediate needs of the person have been met. In a third of the 357 reports examined, my officers saw scant evidence in the report that would satisfy the manager that the ‘immediate needs of the client’ had been addressed and that ‘all appropriate actions’ had been taken.

My officers found that, in some divisions of the department, file notes are used, which appear to make up for the lack of space available on the incident report form. This would seem to be a useful development but creates a number of records and is not a consistent practice across divisions.

Timeframes mandated for incident reporting (‘at the latest within one working day’) raise questions about the value of the information available at that point and the capacity of managers to express their satisfaction that any necessary support or follow-up has been done.

Reporting incidents in SRS is generally done by phone from the proprietor or staff member to the authorised officer (AO) in the department. The AO then fills out a prescribed reportable incident form, but it has no section to capture whether the resident has a disability. Like the DAS/ CSO form, there is no space to identify any particular communication, advocacy or support needs required by the resident. The work of the department’s AOs focuses on compliance, not individual client wellbeing.

Escalation and communication

The form used for DAS/CSO provides prompts through tick boxes to ensure that key agencies like the police, the Centre Against Sexual Assault (CASA) and the Disability Services Commissioner (DSC) are alerted to an incident as necessary. My investigation found there was, in many cases, a failure to escalate incident reports or to communicate with relevant parties as required.

The incident reports we reviewed indicated:

• of 79 reports that should have triggered contact with police, only 59 did
• of 28 reports of sexual assault requiring referral to CASA, CASA support was offered in only eight
• five incidents that should have been referred to the DSC were not.

There were also instances of lengthy delays, including one where the report was provided to the DSC over a year after the abuse. As a result of this failure to refer, opportunities for independent review were lost.

In SRS, Community Visitors play an important role in protecting the rights of residents. Under the SRS Act, they have a statutory function to visit unannounced and identify and raise issues about the care of residents. It is also standard procedure for the department’s AOs to contact Community Visitors when an allegation of sexual assault has been made. However, of the 14 notifications of alleged sexual assault analysed by my officers, three made reference to AOs contacting Community Visitors. As a result, in the management of 11 of 14 serious allegations, there was no indication of independent oversight.

Communication

The capacity of clients to communicate their experience and needs is central, especially in instances of abuse. Some people with disability need support to communicate their experiences and feelings; but in the incident reports we analysed, there were many instances where there appeared to be a need for support but no indication that it was provided.

There is clear departmental guidance that requires that people with a cognitive disability or mental illness must be supported by an independent third person (ITP) in police interviews about physical and sexual assaults. This is intended to ensure impartial support is provided in these circumstances, and that there is no actual or perceived influence by staff over the client. We cite numerous instances, however, where there was either no ITP or where staff acted in this role, despite the guidance to the contrary.

We also heard of instances where there was a lack of communication about an incident with other key people in the client’s life – particularly family. In one case, a family member detailed an instance of a fall in a facility that neither medical staff nor family were made aware of. Four months later, the client was found to have multiple fractures to her left leg. The family member wrote in a submission to us:

Imagine for a moment the excruciating pain of having an untreated fracture in your lower leg for four months. No cast, no pain medication, and no way to communicate the constant pain you are in. People just putting clothes and shoes
on and off, paying no regard to fractured bones …

Gaps

My investigation identified several further areas of concern in the reporting system.

• Neglect: in the incident reports that I examined, instances of neglect (rather than assault) were rarely captured in the most serious incidents category, even though the consequences for clients can be considerable, and they may present a pattern of inadequate service. ‘Poor quality of care’, as it is described by the department, is also not subject to the department’s Quality of Support Review process.
• SRS: while there are more than 4,000 people living in SRS, the department provided my office with only 134 reportable (serious) incident notifications for a 2.5 year period. This is significantly lower than reporting in state-funded accommodation, for which there were 2,120 category 1 incidents in 2014 alone. This indicates significant under-reporting.
• TAC: my officers reviewed a total of 19 incident reports involving TAC or WorkSafe clients in TAC facilities or CSO captured over a 32-month period. In contrast, the TAC’s alleged abuse register contained 94 separate entries in an 11-month period for 88 TAC clients. This indicates significant under-reporting.
  Further, the TAC does not require SRS proprietors to report to the TAC serious incidents involving TAC and WorkSafe clients (of which there are currently eight). The TAC could therefore remain unaware of serious incidents involving TAC clients in SRS, or of SRS proprietors who have acted inappropriately or not met required standards.

Issues with investigation and review

The department and incidents in DAS and CSO

There is a lack of clarity on the purposes of investigations and reviews across the department and service providers. The KPMG review stated that an investigation by the department or service provider should seek to obtain evidence to establish a breach of standards by a worker; a review examines incidents systemically to learn from and prevent similar events occurring. Understanding the distinction is imperative given their different purposes. A failure to appreciate the distinction can lead to the destruction of evidence and/or prejudice to an investigation, or the failure to examine the cause of an incident for a review.

My investigation identified specific concerns with the investigation and review mechanisms.

Investigation

My investigation found that the department does not have a documented investigations framework. With no endorsed departmental policy, there is no clarity as the purpose and process of investigation, who undertakes it, and how the client is supported through it.

In the absence of a framework, departmental divisions and service programs have developed local, ad hoc processes for undertaking investigations. As a result poor and inconsistent investigative practices can proliferate. For example, my officers were made aware of instances where the person with disability at the centre of the allegation was not interviewed; staff interviews were conducted in front of peers; and there were delays in reporting to police so internal enquiries could be made. In some instances the pressure on the person with disability as a result of these poor practices resulted in them withdrawing the allegation.

Review

There are two principal types of review used by the department. It appears one is intended to look at specific instances of abuse (Quality of Support Reviews or QoSR) and the other has scope to take a more systemic view (adverse events reviews), although, once again, there is apparent confusion about their respective use.

QoSR are mandatory for all reports of staff-to-client assault and are discretionary, although encouraged, for incidents of unexplained injury. Incidents that do not involve workers, such as client-to-client assaults, poor quality of care, dangerous behaviour, self-harm or suicide, are not subject to a QoSR. They are also not conducted for explained injuries. My officers investigated an incident where a resident fell over, was given paracetamol and went to bed. The next day it was discovered he had a broken hip and required surgery. This was initially recommended for a QoSR, but later the provider said the incident was witnessed and therefore ‘explained’, so a QoSR was deemed unnecessary.

The focus of QoSR on incidents involving staff reflects my phase 1 conclusion that the response to an allegation of abuse is not determined by the nature of the abuse or the vulnerability of the victim. Whether a QoSR is initiated is determined by whether staff are involved or could be involved in the incident. A person is no less injured or at risk because the perpetrator is not a staff member. In the absence of a QoSR the opportunity to examine the cause, contributing factors or any preventative measures is lost.

Analysis of incident reports also showed that 71 per cent of QoSR were not completed within the 60-day timeframe, and recommended actions were not followed up, despite these being stated as necessary for client safety and wellbeing. The utility of the QoSR is limited by the department’s delay in finalising these reviews.

The department’s policy on its other review mechanism – adverse event reviews – states these are designed to:

… assist in the effective management of all adverse events and promote a learning culture and continuous improvement in service quality.

Adverse event reviews can be triggered by a complaint or an event, or a cluster of either. However, there is clearly confusion about the purpose, with departmental divisions describing adverse event reviews and QoSR as addressing the same issues. One division said:
Quality of Support Reviews are the more standard method of conducting reviews in relation to an incident report[s] for adverse events.

Despite the rhetoric in the policy, adverse event reviews are rarely used, with 10 conducted in the past five years for the whole department. To give this perspective, there were 2,120 critical incident reports in 2014.

The department and incidents in SRS

Incidents in SRS are not subject to the department’s investigation and review processes. The focus of the department’s oversight is on the compliance of the proprietor. An AO can inspect facilities in response to a complaint, incident or Community Visitor notification, but if their view is that the SRS has responded appropriately, they may not visit, even in the case of an allegation of sexual assault.

AOs conduct planned and unplanned inspections, but both types tend to focus on whether the SRS proprietor has met their legislative obligations, although the department says the AO will also focus on resident safety and wellbeing.

The TAC

In October 2014, the TAC established the Client At Risk Taskforce (CART) to examine all alleged abuse concerns, including serious incident reports involving TAC clients. This is the case whether the clients live in CSO or TAC facilities.

The effectiveness of CART in responding to alleged abuse is limited, however, by the fact that the TAC does not require incident reports regarding its clients in SRS.

The department’s response to earlier reviews

Few of the issues raised in this report are new, though the evidence is increasingly compelling. Over the period of my investigation, it is clear the department has taken heed of the reports and reviews and is undergoing considerable change, with a revision of policies, procedures and practices.

In response to questions about the department’s response to the most recent review by KPMG, Independent Review of the Department of Human Services Critical Incident Response and Management Approach finalised in December 2014, senior departmental staff told my officers that they have:

• developed specifications for redesigning of the incident reporting management system
• commenced an update of reviews
• improved data collection and analysis.

It is yet to be seen whether these changes will have the desired outcome of ensuring client safety and wellbeing.

Conclusions

This investigation found a service focused on the process rather than the person, one constantly mindful of strict parameters rather than the best interests of individuals. A response to critical incidents involving people with disability should be personcentred and rights-based.

The current system of incident reporting fails at every level. It is not fit for purpose, either in its primary aim of learning and prevention, or its secondary aim of ensuring ‘client safety and wellbeing’. Prioritising systemic learning over the wellbeing of people with disability is both misguided and ineffectual: feedback to service providers is non-existent or sporadic.

The system hobbles itself with an archaic paper-based tick-box approach that:

• provides no space for the perspective of the victim of abuse
• does not consistently escalate issues to other people and agencies appropriately, including the police
• limits the capacity of managers to ensure the wellbeing of clients.

My investigation found a culture of fear in the disability sector, which also contributes to significant under-reporting. People with disability are afraid to report abuse or neglect for fear of loss of service or retribution; workers feel intimidation from peers and managers.

There is evidence of work being done to develop a positive reporting culture, in which those working in the system respect the human rights of individuals with disability to have a voice and be free from abuse. An opportunity for continuous improvement, where incident reporting and management is recognised as genuine, will be essential. The fragmented nature of the system however makes it difficult to assess and monitor the effectiveness of these steps.

There is a compelling need to provide a safe way of reporting abuse that addresses people’s fear of repercussions. The protected disclosure legislation is intended to protect the identity of whistleblowers and prevent detrimental action against them; however, its protections do not extend to all workers in the sector. Extending these protections to all aspects of the system should be considered.

There are confusions, inconsistencies and workarounds at a number of points in the process. The purpose of and distinction between investigation and review is not clear, which is not surprising given the department has no documented investigation framework. Some divisions within the department patch the system with their own notes and practices.

There are also a number of gaps evident in the system including:

• the oversight of people with disability living in SRS is inadequate
• neglect
• the number of incidents reported by TAC clients not captured by the TAC; and the TAC does not receive any reports regarding their clients in SRS.

The evidence in this investigation confirms the findings of phase 1: that there is a critical role for advocates to assist people with disability. The importance of this was evident in many of the stories where people were afraid to complain or faced difficulties in doing so.

However, since 2003, state funding for individual advocacy has only risen in line with the consumer price index, despite the number of people with disability growing from 323,000 to 364,900 in 2012; an increase of 41,000. As I recommended in phase 1, there is a pressing need for a comprehensive assessment of the need for advocacy services in Victoria to better support people with disability.

1. Scope and methodology

1.1 Terms of reference

I released the terms of reference for my investigation on 2 March 2015:

My investigation was undertaken in two phases so I could prioritise the issues relevant to imminent decisions about the shape of the National Disability Insurance Scheme (NDIS) and the current Victorian parliamentary inquiry into abuse in disability services.

On 24 June 2015 I tabled in Parliament my report, Reporting and investigation of allegations of abuse in the disability sector: Phase 1 – the effectiveness of statutory oversight. This report details phase 2 of my investigation.

1.2 Scope

As discussed in my phase 1 report, some agencies and services were outside the scope of this investigation:

• agencies with specific responsibility for managing children with disability under the Child Protection Program
• educational facilities where people with disability learn
• mental health service providers working under the Mental Health Act 2014 (people with a mental illness living in an SRS are considered as part of this investigation; however, a health service provider under the Mental Health Act is not)
• the Home and Community Care (HACC) program – providing services direct to a person’s home and usually managed by local councils (there is a complex mix of state and federal funding as well as private service providers operating under HACC).

In addition, I do not have jurisdiction over Victoria Police. Consequently, I have not directly looked at how Victoria Police deals with reports of abuse about people with disability. However, I do make observations in this report about Victoria Police’s role or actions where these are relevant to the incident reports I reviewed for phase 2. I note that the Victorian Equal Opportunity and Human Rights Commission examined the experiences of people with disability reporting crime to police in its report Beyond Doubt.

1.3 Approach

Phase 1 of this investigation involved:

• analysing information received as part of the submissions process
• meetings and interviews with a number of disability clients, their parents and families
• briefings with representatives from the department, the DSC and the TAC
• meetings with the Community Visitor regional convenors
• consulting with a number of disability groups, advocacy organisations, peak bodies and community groups
• attending disability events, including the Victorian Advocacy League for Individuals with Disability (VALID) ‘Having A Say’ 2015 Conference, Deakin and OPA Safeguarding Forum and several VALID self-advocacy network meetings
• interviewing key people from various oversight bodies
• examining extensive documentation and material obtained from the department, the DSC, OPA and the TAC
• considering and reviewing relevant legislation, policies, procedures, instructions and standards.

The investigation in phase 2 also involved:

• reviewing 357 category 1 incident reports, and associated documentation, for incidents that were reported by disability accommodation services (DAS) and community service organisations (CSO) to the department in February and October 2014
• reviewing 19 serious incident reports, and associated documentation, involving the TAC and WorkSafe clients that were received by the TAC from its registered disability service providers from January 2013 to August 2015
• reviewing the TAC’s alleged abuse register
• reviewing the information stored on the department’s Compliance, Registration and Monitoring System (CRAMS) database in relation to 42 notifications of prescribed reportable incidents in SRS between July 2012 and December 2014
• making enquiries of the department and the TAC in relation to incident reports
• conducting separate enquiries and investigations into specific allegations of abuse raised with my office, as discussed below.

I am reporting my opinion and the reasons to the Minister for Housing, Disability and Ageing and to the Secretary of the department under section 23(1)(g) of the Ombudsman Act 1973. The administrative action to which the phase 2 investigation relates is the effectiveness of decision-making processes of the department and the TAC as they relate to incidents of alleged abuse against people with disability.

In accordance with section 25A(3) of the Ombudsman Act I advise that any persons who are identifiable, or may be identifiable from the information in this report, are not the subject of any adverse comment or opinion. They are named or identified in this report as:

• I am satisfied that it is necessary or desirable to do so in the public interest
• I am satisfied that identifying those persons will not cause unreasonable damage to those persons’ reputations, safety or wellbeing.

In order to respect the privacy of people with disability and their families, I have de-identified the stories throughout my report and have not named service providers. For these reasons, I have also deidentified submissions made to my office by individuals. These are referred to throughout my report by submission number.

1.4 Separate enquiries and investigations

During phase 1, I received 78 submissions, many of which raised individual complaints that required consideration by my office outside this investigation.

A number of the submissions raised allegations of abuse by workers in state-funded residential accommodation, as well as falsification of records. As these appeared to relate to improper conduct by public officers, I forwarded them to the Independent Broad-based Anti-Corruption Commission (IBAC) for determination under the Protected Disclosure Act 2012. IBAC referred some of these matters back to me.

I also conducted an investigation into a complaint about the placement of a 13 year old boy in accommodation with adults:

The above investigation led me to initiate an own-motion investigation into the accommodation of children and young people with disabilities in homes with adults:

In addition, I am conducting enquiries into other complaints alleging:

• the withholding of food from residents
• assaults on residents by staff
• failure to report incidents of assault
• misuse of resident funds
• damage by staff to residents’ property
• failure by the department to respond to complaints of abuse.

1.5 Considerations

In conducting this investigation I am mindful of several other activities that have a bearing on the timing and scope of my investigation, including both state and federal inquiries into abuse in the disability sector, as well as the rollout of the NDIS.

Victorian parliamentary inquiry

On 5 May 2015 the Victorian Government announced the terms of reference of a parliamentary inquiry by the Family and CommunityDevelopment Committee into abuse in disability services (‘the parliamentary inquiry’). The parliamentary inquiry’s terms of reference state:

a. in particular the inquiry will include but not be limited to:
i. why abuse is not reported or acted upon; and
ii. how it can be prevented.

The parliamentary inquiry is to be conducted in two stages, with stage 1:

… [to] consider the strengths and weaknesses of Victoria’s regulation of the disability service system with a view to informing Victoria’s position on appropriate quality and safeguards for the National Disability Insurance Scheme.

The committee provided an interim report on stage 1 on 6 August 2015. Stage 2 of the parliamentary inquiry will:
… consider any further systemic issues that impact on why abuse of people accessing services provided by disability service providers within the meaning of the Disability Act 2006 are not reported or acted upon.

A final report is due no later than 1 March 2016.

Commonwealth Senate inquiry

The Commonwealth Senate Community Affairs References Committee also conducted an inquiry into violence, abuse and neglect against people with disability in institutional and residential settings. The report was tabled on 25 November 2015.

2. Lived experience

Around one million people in Victoria have a disability. This includes about 364,900 Victorians who have ‘profound’ or ‘severe’ disability. Disability within the meaning of the Disability Act includes acquired brain injury, intellectual disability and physical, sensory and neurological disability.

The needs of people with disability range from requiring minimal or no support to live independently, to those who need full-time care and specialist services.

The disability sector in Victoria is complex, and people with disability live and work in a variety of settings. The vast majority of Victorians with disability live at home. Others live in accommodation that is delivered by for-profit, not-for-profit and government providers, which are each subject to a mix of oversight and accountability mechanisms.

Many people with disability access services under the Disability Act. These services are provided or funded by the department. Figure 1 illustrates the number of people and service types by departmental geographical division in 2015.

2.1 State-funded residential accommodation

There are more than 5,000 people with disability living in state-funded accommodation. This is divided into two sectors:

• facilities funded and provided by the state (DAS), which house around 52 per cent of people
• facilities funded by the state and run by CSO, which house the remaining 48 per cent. Two of the largest are Scope and Yooralla.

There are an additional 113 people with disability living in residential institutions and 60 people living in short-term contingency housing. An additional eight people with disability live at North Division’s Disability Forensic Assessment and Treatment Service.

2.2 Supported residential services

SRS are privately owned and operated residential services where accommodation and personal support are provided or offered to residents for a fee. SRS may be at pension level or ‘pension plus’ level (charging fees above the pension).

SRS accommodate people across a broad age range, which can present resident mix issues. For example, a young person with disability may be housed in a predominantly aged care environment.

SRS must be registered with the department and comply with the SRS Act and its regulations.

There are an estimated 4,275 SRS residents in Victoria, with just over half (2,308) living in pension-level facilities.

The 2013 Census of Supported Residential Services in Victoria found that 91 per cent of people living in SRS have a disability. It also found:

• 96 per cent of residents living in pension-level SRS have a disability
• residents of pension-level SRS are more likely to have a psychiatric disability (59 per cent)
• the incidence of people with age-related frailty, disability and drug and alcohol problems increased significantly between the 2008 census and 2013 census.

2.3 The Transport Accident Commission

Under the Transport Accident Act and the Workplace Injury Rehabilitation and Compensation Act, the TAC is responsible for:

• funding treatment and support services for people injured in transport accidents
• managing people who have been severely injured in workplace accidents on behalf of WorkSafe Victoria.

• The TAC manages 1,253 severely injured people who live in a variety of different settings. This includes:
• 1,108 people living at home or in a private residence
• 128 people living in shared supported accommodation operated by TAC registered service providers
• 9 people living in purpose-built accommodation funded by the TAC (TAC facilities)
• 8 people living in SRS.38 Example: A severely injured person in the TAC facilities

2.4 Individual support

There are approximately 15,000 people with disability who have an ISP. An ISP is an allocation of funding to a person with disability to help purchase supports that will best meet their needs. Planning for an ISP also takes into consideration the needs of family members or carers to maintain the caring relationship.

Individual support includes:

• day services
• flexible support packages
• outreach support
• respite.

Day services can be purchased through ISP funding. Day services provide opportunities for people that support their community and social participation, and can include skill development and recreation.

Community-based respite services are also available through ISPs. Respite services provide short-term accommodation or support for people with disability to enable their carers to take a break.

The department notes that ISPs have been developed as self-directed, flexible and tailored support so that people are able to exercise the maximum possible level of control over their lives, with safeguards intended to match their needs, vulnerability and circumstances. Safeguards in this context are intended to provide the necessary level of support and are not intended to impose restriction upon individuals and families who have the capacity to make choices about their supports and service providers.

2.5 Abuse in disability services

What is abuse?

There are variations in the way that ‘abuse’ in disability services is defined. Generally abuse is described in conjunction with neglect.

The National Disability Services Abuse and Neglect Hotline defines abuse as ‘the violation of an individual’s human or civil rights, through the act or actions of another person or persons’. The hotline defines neglect as a ‘failure to provide the necessary care, aid or guidance to dependent adults or children by those responsible for their care’.

The department relies on its Critical client incident management instruction (CCIMI) to manage incidents across the human services portfolio. The CCIMI does not define abuse specifically in disability contexts. However, in relation to child protection clients, the CCIMI defines ‘abuse in care’ as ‘alleged or actual physical or sexual assault where a client in care is the victim and the perpetrator is a staff member, a carer or a member of the carer’s household’.

Neglect is not defined in the CCIMI, but ‘poor quality of care’ is defined as ‘inappropriate behaviour or inadequate care by caregivers or staff’. In addition, the department’s Critical client incident management summary guide and categorisation table 2011 identifies a ‘category one poor quality of care’ as ‘the failure to care adequately for a client to the extent that the health, wellbeing and development of the client is significantly impaired or at risk’.

For the purposes of this investigation, abuse is an incident that would require reporting to the TAC or the department under the CCIMI. This includes:

• physical assault
• sexual assault
• injury (such as unexplained injury)
• poor quality of care.

The investigation focused on category 1 incidents, as these incidents have resulted in serious trauma (as per the category 1 definition).

How common is abuse?

In phase 1, I sought a clear picture of the scale of abuse in the disability sector in Victoria. However, there is no single source of information or common framework for reporting abuse. Instead, my officers looked at a range of data in a number of formats from a number of bodies, such as the department, the DSC and Community Visitors. This data includes ‘critical incidents’ within services directly provided, funded or registered under the Disability Act, ‘prescribed reportable incidents’ in SRS, ‘serious incidents’ reported to the TAC and notifications by Community Visitors to OPA.

The data available is recognised in national and international research as the ‘tip of the iceberg’. This is largely because of the barriers people with disability experience in reporting abuse ‘such as fear of losing services or not being believed, reliance on assistance for day to day support, language or communication difficulties and lack of awareness of rights and what constitutes abuse’.49

National and international research consistently report that people with disability are more likely to experience abuse than the general population:

• children with disability are 3 – 4 times more likely to be mistreated than children without disability
• adults with intellectual disability are more than twice as likely to be victims of personal crimes than the general population, and more than 10 times more likely to be victims of sexual assault
• ‘people with disability – particularly people with an intellectual disability, cognitive, communication and/or sensory impairments, high support needs, and behaviours of concern – are much more likely to experience abuse, including physical and sexual assault, than the general population.’

Research conducted with Victorian and Tasmanian disability workers also demonstrates a concerning level of abuse experienced by people with disability. In response to a Health and Community Services Union survey, 46 per cent of disability workers in Victoria and Tasmania reported witnessing violence, abuse or neglect against people with disability by other staff. A further 18 per cent said that, while they had not witnessed such abuse, they knew colleagues who had. Fifty-five per cent of respondents said that staff-to-client abuse occurred frequently or occasionally.

3. Reporting framework

Incident reporting is vital because people with disability usually don’t or can’t complain.

In phase 1 of this investigation I noted with concern that how an incident is reported differs depending on the service provider or where it occurs.

I discuss below the different purposes and requirements for reporting within services directly provided or funded by the department and registered under the Disability Act, for people living in SRS, and for TAC clients.

3.1 State-funded residential accommodation

Legislation and policies

The Charter of Human Rights

Actions and decisions related to reporting and investigating abuse in the disability sector can raise human rights issues under the Charter of Human Rights and Responsibilities Act 2006.

The Charter applies to ‘public authorities’ as defined in section 4 of the Act. Section 4(c) of the Charter provides that a public authority undertakes functions ‘of a public nature’, when it is working on behalf of the state or a public authority (whether under contract or otherwise). The Charter therefore arguably applies to CSO, as well as the department and DAS. The Charter does not apply to SRS, which are privately run facilities. However, the principles of the Charter have been incorporated into the SRS Act and its regulations, under with which proprietors must comply.

Section 38 of the Charter provides that it is unlawful for a public authority to act, or fail to act, incompatibly with a human right contained in the Charter or, in making a decision, to fail to give proper consideration to a relevant human right.

Relevant to allegations of abuse in the disability sector, section 10 of the Charter provides protection from torture and cruel, inhumane or degrading treatment. Section 10 states:

A person must not be – (a) subjected to torture; or
(b) treated or punished in a cruel, inhuman or degrading way; or
(c) subjected to medical or scientific experimentation or treatment without his or her full, free and informed consent.

Section 10 also imposes a positive obligation on public authorities to take steps to prevent torture and cruel, inhumane or degrading treatment. According to the European Court of Human Rights in the case of Z and Others v United Kingdom, the obligation under the right to protection from degrading treatment requires:

… states to take measures designed to ensure that individuals … are not subjected to torture or inhuman or degrading treatment … [which measures should] … provide effective protection, in particular, of children and other vulnerable persons and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge.

In some cases, section 9 of the Charter may also be relevant, which protects the right to life, and, like section 10, encompasses a positive obligation on the state to safeguard the lives of those within its jurisdiction.

Protected Disclosure Act 2012

The Protected Disclosure Act came into operation on 10 February 2013. The purposes of the Act are to:

• encourage and facilitate disclosures of:
• improper conduct by Victorian public officers, public bodies and other persons
• detrimental action taken in reprisal for a person making a disclosure
• provide protection for persons who make those disclosures or suffer detrimental action in reprisal for those disclosures
• provide for the confidentiality of the content of those disclosures and the identity of persons who make those disclosures.

Allegations surrounding abuse of people with disability by departmental staff may amount to a disclosure of improper conduct under the Protected Disclosure Act and be subject to investigation by my office or IBAC.

Disability Act 2006

The Disability Act provides the department with a legislative responsibility to support the provision of quality disability support services. Under the Act, there is a commitment to protecting the rights and dignity of people with disability. This is expressed in the principles of the Disability Act as including:

… the rights of people with disability to live free from abuse, neglect or exploitation.

Incident reporting is not specified in the Act; however, the department has developed and implemented policies and procedures as a safeguarding mechanism.

The instructions

Incidents involving a client of a department delivered (DAS) or funded service (CSO) are reported in line with the department’s CCIMI technical update 2014 and the Responding to allegations of physical or sexual assault (RAPSA) departmental instruction.

The purpose of incident reporting is outlined in the CCIMI:

The key reason for reporting incidents is to learn from them and, if possible, prevent the future occurrence of similar incidents. Without a detailed analysis of incidents affecting clients, we may fail to uncover problems or situations that are potential hazards to clients or staff which could have been avoided or mitigated.

The CCIMI also outlines the aims of the incident reporting system including:

• ensure timely and effective responses are taken to address immediate client safety and wellbeing
• be accountable to clients for actions taken immediately and planned in response to their experience of a critical incident
• ensure due diligence and responsibilities to clients are met
• support the provision of high-quality services to clients through the full and frank reporting of adverse events
• assure and enhance the quality of service and supports to clients through monitoring and acting on individual incidents as well as trends identified through the analysis of incident reports
• ensure that identified deficits in service and support are addressed.
• 
  

The RAPSA sets minimum standards for supporting victims of physical and sexual assault. The aims of the RAPSA are to:

• ensure timely and effective responses are taken to address immediate client safety and wellbeing
• support clients who have experienced physical or sexual assault
• be accountable to clients for actions taken immediately and planned in response to their experience of an assault
• ensure due diligence and responsibilities to clients are met
• hold perpetrators of physical and sexual assault accountable for their actions.

Allegations of physical or sexual assault involving clients in disability services must be reported to Victoria Police.

As public sector employees, DAS staff are subject to the Code of Conduct for Victorian Public Sector Employees, which requires that they demonstrate responsiveness, respect and a commitment to human rights. A contravention of the code may constitute misconduct, and the department may take disciplinary action for misconduct if a worker fails to report, or fails to report on time, under its Managing Performance and Conduct in Disability Services policy. The code and the policy do not apply to workers in CSO or SRS.

Incident reporting

‘The incident report focuses on the moment in time report of an event, immediate responses and action to be taken.’

Client incident reports are written by the most senior staff member present or the staff member to whom the incident was disclosed. This constitutes parts 1–4 of the form. At this point, the staff member is required to indicate if the incident is either category 1 or category 2:

• category 1: a serious outcome such as client death or severe trauma; to be reported to the department within one working day
• category 2: an incident that threatens the health, safety and/or wellbeing of clients or staff to be reported to the department within two working days. 142. In February

Category 1 incident reports received by disability services between 2010 and 2014 have increased by 66 per cent, as shown in Figure 2.

Figure 2: Category 1 incident reports received by disability services, 2010–14

In February and October 2014, the sample periods for my investigation, the department received 357 category 1 incident reports. Of the 357:

• 81 related to illness
• 62 related to deterioration of known medical condition
• 47 related to injury
• 35 related to staff-to-client physical assault
• 14 related to staff-to-client sexual assault
• 12 related to poor quality of care
• 6 related to client-to-client sexual assault
• 4 related to client-to-client physical assault
• 96 related to other incidents.

Table 1 shows the number of category 1 incident reports received by the department in February and October 2014 by division and, where specified on the incident report, by program. As is evident from the two months of data the majority of category 1 incident reports related to residential accommodation services.

Part 5 of the form is completed by a delegated management representative of the service provider, who records a summary of the incident, the response of the service provider and any action taken or proposed to prevent recurrence. The service provider then faxes the form, whether they are DAS or CSO, to the designated divisional office in the department.

Once received by the department, incident reports are assessed by the area manager (DAS manager or Local Connections manager for CSO reports) and the area director, who complete parts 6–8 of the form. The area manager must quality check the report, which requires consideration of the incident type and category. They must also consider further actions to be taken, identify any program management failures and consider any referrals such as to the Disability Services Commissioner. Finally the area director must consider any method of review – for example, a Quality of Support Review (QoSR) – and whether an email alert is required to notify the minister and their office. At the end of each part, divisional staff must endorse the report form.

Following a report, an incident may be subject to a range of reviews including the QoSR, Promoting Better Outcomes practice review or a service review (see Figure 3). These are identified on a case-by-case basis but may also be triggered by one of the department’s new safeguarding initiatives, introduced during the timeframe of this investigation. These are described in more detail in the Investigation and review section of this report.

For CSO, incident reporting has a contractual dimension. They are required under the terms of their service agreements to undergo an independent review every three years, in which they must demonstrate compliance with the department’s four service delivery standards, including that services are provided in a safe environment for all people free from abuse, neglect, violence and/or preventable injury. The North Division has advised my office that ‘[t]o satisfy this Standard the service provider must have clearly documented policies and processes for responding to potential or actual harm, abuse, neglect, violence or injury’. CSO are also subject to an annual desktop review that assesses service performance including incident reporting requirements.

3.2 Supported residential services

Legislation and policies

The objective of the SRS Act is to protect the safety and wellbeing of residents. The SRS Act recognises a resident’s right to freedom from abuse, neglect or exploitation, with minimum accommodation and personal support standards detailed in regulations.

Under the Act, it is mandatory for SRS proprietors to report any prescribed reportable incident occurring at, or in relation to an SRS, to the department by the end of the next business day. Failure to do so can result in a penalty.

AOs are responsible for regulating SRS. The department stated:

As regulators, authorised officers of supported residential services are responsible for monitoring compliance with the Supported Residential Services (Private Proprietors) Act 2010 and its regulations to achieve the objective of the Act: to protect the safety and wellbeing of residents in supported residential services. This role is underpinned by a risk-based regulatory framework. This framework supports authorised officers and the Supported Residential Service program in the department to provide information, guidance and build the capacity of proprietors of supported residential services when undertaking registration, monitoring and enforcement activities.

The role of the authorised officer is complementary to the role of Community Visitors, case managers, and supporting connections workers in improving outcomes for residents of supported residential services. The Supported Residential Services (Private Proprietors) Act 2010 does not confer any case management role on proprietors or on the department in its role as regulator and administrator of the legislation.

The purpose of this incident reporting is outlined in the Department of Health’s Incident reporting instruction (updated May 2013) and mirrors the CCIMI: to learn from incidents and, if possible, prevent their recurrence. However, in April 2014 the department conducted a review and determined that SRS should be removed from the scope of the incident reporting instruction. A department factsheet for AOs and regional directors stated this was due to ‘the legislative framework governing SRS proprietors, and the absence of a direct funding relationship between DH [Department of Health] and SRS proprietors’. The May 2013 incident reporting instruction has not been updated to reflect this change.

Incident reporting

Under the SRS Act, SRS proprietors are required to keep records of prescribed incidents, which are defined in the SRS regulations as ‘any event that threatens the safety of a resident or staff’. These are to be made available to Community Visitors.

An SRS proprietor must notify the department of prescribed reportable incidents. These are:

• the unexpected death of a resident
• the serious injury of a resident
• a fire or other emergency event
• an alleged serious assault, either physical or sexual.

Usually notifications of prescribed reportable incidents are made through a phone call to an AO at the department. There is no requirement for a written report. In response to my draft report the department stated:
Current practice has been that authorised officers generally do not request a copy of the SRS’s incident record required to be kept by the proprietor. However, these are sometimes provided to the department by proprietors of SRS.

Prior to April 2014 the AO completed a category 1 incident report form when a notification was made; however, this is no longer the case.

The AO then completes a prescribed reportable incident form capturing basic information about the incident and the proprietor’s response and then transfers this information to the CRAMS database, together with records of any follow-up actions by the AO.

Between July 2012 and December 2014, SRS submitted 134 notifications of prescribed reportable incidents to the department. Forty-two of these notifications were analysed for the purposes of this report. Of the 42 notifications, there were:

• 10 of unexpected death
• 6 of serious injury
• 6 of fire or another emergency
• 20 of alleged serious assault, including 14 allegations of sexual assault and 6 of physical assault.

3.3 The TAC and WorkSafe

Legislation and policies

Under the Transport Accident Act and the Workplace Injury Rehabilitation and Compensation Act, the TAC is responsible for:

• funding treatment and support services for people injured in transport accidents
• managing people who have been severely injured in workplace accidents on behalf of WorkSafe Victoria.

The TAC requires CSO and TAC facilities accommodating TAC clients to be independently registered with the TAC under the Provider Registration Requirements for Provision of Disability Services (the registration requirements). The TAC’s registration requirements set standards for reporting serious incidents by TAC registered providers.

Few TAC clients are accommodated in department-funded CSO. Where an allegation of abuse involves a TAC client in a department-funded CSO, the department’s CCIMI applies to the provider, and the report is provided to the department. It is also provided to the TAC under the registration requirements and subject to the TAC’s review processes.

A majority of TAC clients living in supported accommodation live in CSO that are not department-funded or in TAC facilities. Incidents involving such clients are reported to the TAC only; they are not reported to the department.

Under the requirements, TAC-registered providers are required to notify the TAC of a ‘serious incident’ within one business day. Serious incidents are of the same order as those that would be reported by other providers to the department under its CCIMI. They are defined as:

• the death of or serious injury to a client
• allegations of or actual sexual or physical assault of a client
• significant damage to property
• serious injury to another person caused by a person with disability.

My officers asked the TAC about the basis of its reporting requirements for TAC registered providers. In response, the TAC stated that its registration requirements are ‘based on the DHHS incident report guidelines and are further reinforced by the TAC Shared Supported Accommodation policy’.

The TAC’s Supported Accommodation Services policy also states that:

… TAC registered providers must have and use a fully documented Incident Reporting Procedure categorized by severity. The provider must notify the TAC of all serious incidents involving TAC clients before the end of the business day after the serious incident occurs.

The TAC’s registration requirements do not stipulate the use of a specific incident report form when reporting serious incidents. In response to questions on this during my investigation, the TAC said it considers incident reporting to be:

… a standard industry practice, consistent with other funders, and does not specify the format of incident reports and accepts a range of forms. If a provider requests guidance on which form to use to report a serious incident, the TAC directs them to use the DHHS form and processes.

However, in response to my draft report, the TAC stated:

As part of the review of the TAC/ WorkSafe provider registration requirements, the TAC will implement its own incident report form for use in reporting serious incidents involving TAC/WorkSafe clients. The form will be accessible on the TAC website.

SRS are not required to be independently registered with the TAC. Therefore, incidents involving TAC clients in SRS are not subject to the TAC’s registration requirements.

Incident reporting

My officers asked the TAC to provide all serious incident reports involving TAC and WorkSafe clients that were received by the TAC from TAC-registered providers from January 2013 to August 2015. The TAC provided 17 incident reports. Only one incident involved allegations of staff-toclient assault.

Given the low number of reports, my officers requested confirmation from th https://craftcms.ombudsman.vic... department of all incident reports involving TAC clients who are joint clients of the department for the corresponding period. In response, the department provided my office with a further two serious incident reports.

My review of the 19 incident reports identified:

• the most common incident (8) was hospitalisation for treatment related to the person’s injuries
• 3 incident reports related to a person who had attempted suicide on multiple occasions
• 1 involved allegations of staff-to-client assault
• 1 incident report related to a person missing from the shared supported accommodation facility.

Despite TAC clients being cared for by a number of different TAC-registered providers, 15 of the 19 serious incident reports were received from one provider.

4. Issues with incident reporting

This investigation has identified a number of issues with incident reports regarding how they are written, communicated and actioned.

There have been a number of reviews in the last decade raising similar concerns in relation to the reporting and response to abuse allegations in the human services portfolio, shown in Figure 4 and including the following:

• Four investigations by the former Victorian Ombudsman:
• Improving responses to allegations involving sexual assault (March 2006) found inconsistent understanding of reporting requirements across government agencies and difficulties in identifying systemic issues. The report recommended wholeof-government data analysis of reported incidents and training for disability workers to improve their responses to reports of sexual assault.
• Own motion investigation into the Department of Human Services Child Protection Program (November 2009) identified significant concerns with the effectiveness of the department’s response to allegations of child abuse and neglect. The report included recommendations designed to increase the level of scrutiny for incidents of abuse and neglect and to increase systematic analysis of incident reports.
• Investigation into Child Protection – Out of Home Care (March 2010) found that despite ongoing reforms of the out-of-home care system, some children do not experience placements as the secure and safe environment they should be. Rather, they are subjected to further abuse and neglect. The report recommended changes to quality of care guidelines and data analysis, as well as increased oversight arrangements.
• Assault of a Disability Services Client by Department of Human Services (March 2011) found that a person with disability in supported accommodation was ‘dragged’ along the floor by two departmental staff members, causing a serious injury that required medical treatment. The staff members reported that the injuries were self-inflicted. Medical treatment was not sought for more than 24 hours. The investigation found that the department failed to respond adequately to the incident. This report recommended disciplinary action against several staff and that the department consider implementing a web-based reporting system for incident reporting to provide a more efficient and immediate reporting process that includes an electronic audit trail or log of events.
• The DSC’s Inquiry into the DHS QoSR processes for staff-toclient assaults in DHS disability services (2011) recommended the adoption of a person-centred approach to allegations of abuse and the development of a suitability assessment process for disability workers.
• Several department-commissioned reviews identified a range of options to improve the incident reporting process and data analysis:
• Complaints, Incidents and DINMA project, 2008
• Strengthening incident reporting, 2009
• Refocused incident reporting, 2011
• Strengthening the critical client incident management approach, 2013
• CCIM System Redevelopment Project, 2014.
• The National Disability Services’ Critical Client Incident Management System Review (January 2014) concluded that the department’s reporting system was flawed. The review identified opportunities for improvement in relation to the incident report form, the need for a portal/database to replace paper-based reporting and the need to improve feedback to service providers.
• The Victorian Auditor-General’s Office report Residential Care Services for Children (March 2014) recommended improved systems and processes for collecting and analysing information, including the removal of inefficiencies and manual data entry.
• Most recently, KPMG’s Independent Review of the Department of Human Services Critical Client Incident Response and Management Approach, Final Report (December 2014) reviewed the end-to-end incident reporting and management process. It found that the department is ‘failing to meet the stated aims of … [its incident reporting framework] and to adequately mitigate risks arising from critical incidents’.

These concerns relate to the department’s reporting and management of incidents in DAS and CSO. However, the concerns are also relevant to the TAC, which refers TAC registered providers to the department’s form and processes.

Figure 4: Timeline of reviews

4.1 Purpose of reporting

As set out above, the purpose of incident reporting as articulated by the department is to learn from events and, if possible, to prevent their recurrence. The process also aims to ‘ensure timely and effective responses are taken to address immediate client safety and wellbeing’.

Learning from reports

In order for disability providers to learn, the department must provide them with feedback on their incident management. Previous reviews of the incident reporting and management system question whether the department achieves this aim. For example, the National Disability Services (NDS) review in January 2014 stated:

There is minimal feedback from DHS regarding notifiable incidents which hinders opportunities for continuous improvement. All CSO’s interviewed indicated that feedback from DHS is, in most instances non-existent or very sporadic. Some DHS regions were identified as better than others.

This theme was repeated in the December 2014 KMPG review,95 which stated:

Stakeholder consultations with the funded sector revealed a deep frustration that there is significant effort expended by agencies to provide vast amounts of information to DHS in incident reports, but almost no feedback of trends, performance, or patterns identified from that information.

Learning from incident reports requires data collection and analysis. Prior to recent changes in the oversight of incidents,
incident reports were entered into the department’s document management system via manual data entry. At interview, the department’s former Executive Director of Service Design and Operations and the Executive Director of Community Services acknowledged that manual data entry was ‘inefficient and ineffective’ and that there is a risk of error.

According to the KPMG review, departmental divisions created multiple systems to review and analyse incident reporting data to identify trends and improve reporting practice.98 This was criticised in the KPMG review:

… the analysis of incident data currently occurs in the absence of benchmarks and consideration of incident outcomes, which means that DHS is relying on unsubstantiated reports and unsophisticated analysis, thus limiting the usefulness of the information produced. There is an absence of guidance and counting rules regarding how aggregate data should be used and analysed, and the lack of a centralised ICT system with reporting capability has led to the establishment of multiple ‘shadow systems’ for conducting analysis, resulting in a lack of comparable data across the state.

The inadequacy of incident reporting data was also raised in one submission to my investigation:

Incident reporting is not new – it has been a requirement in one form or another for over 30 years. Therefore the collection and categorisation of incident reporting data is something which can reasonably be assumed to be well-established. Yet despite what are identified by the department as significant responsibilities of Central Office in terms of incident report data informing decision-making, the department does not have the information in a format which allows them to use such information as a management tool.

This sentiment was echoed in comments from a regional CSO, which linked the provision of feedback to an electronic reporting system:

It would … facilitate more efficient sorting of information to check for systemic or structural problems and the ability for reports to be produced specific to individual providers, across regional areas and/or State-wide. Incident Reporting has the potential to be and should be viewed as much more than a risk management formality.

While incident reports are still entered manually into the department’s TRIM database, they now undergo analysis via the department’s Critical Incident Analysis (CIA) tool. The department’s improvements in relation to data collection and analysis are discussed later in my report.

The following case demonstrates concerns about the lack of feedback provided to service providers. In this case there was no record that feedback was given to the service provider.

My officers examined numerous incident reports where there was inadequate information or incorrect categorisation of an incident, which can have an impact on the response to the incident and the level of scrutiny. However, for a majority of reports, there was no record that feedback was given to the service provider about these failings, as illustrated in the following case.

To clarify the feedback process, my officers asked that the four department divisions set out their approaches to providing feedback to service providers on incident reports. Each division responded slightly differently, some relying on the use of emails, file notes, forums and committees at the divisional level and others stating they had phone conversations or responded at the local service level. This made it difficult for my officers to confirm that feedback was given to service providers as appropriate.

At interview, the Department’s Executive Director of Community Services said feedback is provided in various ways, including from the department’s Client Outcomes and Service Improvement team through the QoSR process. She also stated that divisions provide feedback to individual service providers on the basis of aggregate data from incident reports. She said feedback would be recorded across various records, including safety plans, medication plans, house plans or practice review reports.

In response to the draft report, the department stated:

Feedback is provided to CSOs through local engagement officers. Area management also work closely with CSOs and provide regular feedback on a range of matters.

CSOs have, as part of their funding and service agreement obligations, a responsibility to analyse and learn from incidents to improve outcomes and their service delivery.

This is inconsistent with the NDS and KPMG findings.

Client safety and wellbeing

In addition to learning from and preventing events, the CCIMI provides that the incident reporting and management process aims to ‘ensure timely and effective responses are taken to address immediate client safety and wellbeing’.

There are a number of comments in reports and reviews that suggest the department is focused on procedures and risk management, rather than ensuring client wellbeing, which is one of the aims of incident reporting and management. The NDS review said the incident management system has flaws in understanding the ‘nature and causes of incidents’. Specifically that:

These flaws create the impression that the Department has implemented the system to meet their own risk management compliance requirements rather than to assist their service providers to improve outcomes for their client.

The KMPG review also reported:

There are concerns that responses to the most serious incidents may be too focused on investigative and reporting procedures rather than a client outcomes perspective.

In addition, in its paper, Safeguarding People’s Right to be Free from Abuse, the DSC identified that:

… responses to incidents of alleged staff-to-client assaults have a tendency to focus on whether or not the alleged assault can be ‘substantiated’ for the purposes of criminal or disciplinary proceedings, and do not also consider the nature and impact of the incident more broadly from the client’s perspective, and whether the client has experienced abuse, a breach of their rights, and trauma as a separate and equal consideration.

4.2 Failure to report

In phase 1, I reported that the available statistics on reported abuse are regarded by many as an underestimate of the abuse being committed against people with disability.

Some people with disability either do not have the capacity to tell someone or they have no trusted person they can tell.

OPA put the view that there is underreporting of incidents, and a fear of the consequences:

The experience of violence is likely to be underreported by people with disability for reasons including fear of repercussions. Possible repercussions include family breakdown, fear that support services will cease and implications for personal care, transport and communication assistance that may be provided by the perpetrator.

As described in one submission:

It seemed that people felt powerless or intimidated or were unwilling or unqualified to act. The most vulnerable residents (those without a voice) were the ones who were targeted the most.

For the above reasons, there is a strong reliance on family and service provider staff to report abuse.

In its paper, Safeguarding People’s Right to be Free from Abuse, the DSC discussed the importance of a culture that encourages reporting:

The development of positive complaints cultures within services, where clients, families, advocates and staff are supported and feel confident to raise concerns, should also be recognised as a primary prevention strategy. From DSC’s experience, services need to proactively address the fear that many clients and their families express about speaking up and making complaints. Addressing these potential barriers to disclosure is a key strategy for changing the conditions that can allow abuse to occur and be perpetuated. Complaints processes that empower all levels of staff to raise concerns and act on complaints, can also play a critical role in addressing the issue of ‘bystanders’ to acts of abuse …

My investigation has identified a reluctance or failure to report by both staff and clients or their families.

Incident reports and submissions from staff, family, carers and advocates consistently describe this hesitance, citing:

• intimidation
• fear of reprisal against the reporting staff member, the client and/or their family
• concern about the reputation of the service provider
• unease about the impact on the subject of the allegation
• disempowerment of staff
• frustration with the significant paperwork associated with reporting
• a lack of capacity to identify abuse.

Submissions from a range of perspectives described a culture that discourages reporting.

From OPA:
Bullying and abuse of residents appears embedded in the culture of some services where there is an implicit acceptance of behaviours that cause harm and a reluctance to name this as violence. This type of culture may also include bullying of staff, intended to discourage reporting.

From an advocacy body: … there was a culture of not speaking up for fear of ramifications for staff, despite their duty of care and relevant policy and procedures being in place. The staff are rather happy to discuss situations, but not to document it. The only discussion is off the record: it’s intimidation from the system.

And a former disability support worker:
… female staff member – completely unprovoked, grabbed a client from [sic] the hair and dragged this client to the bathroom. … [the] staff member was aggressive, intimidating … The residents were terrified of her.
… she unashamedly behaved that way in front of others – there appeared to be no effort by her to conceal her behaviour; the
‘system’ or culture completely enabled her.

Investigating a failure to report presents obvious challenges: we cannot know definitively what has not been captured. The material set out below is what has come to light through eventual incident reports and reviews, or expresses a view about the reasons for failing to report. The themes were strikingly consistent across a number of case studies and submissions.
Intimidation and fear of reprisal

Fear of reprisal or intimidation were cited by staff across the range of service types as reasons for failing to report, or failing to report on time.

The case study below is taken from the Community Visitors Annual Report 2013–2014 and demonstrates workers’ concern that they would suffer retribution for reporting.

Further submissions from disability workers and advocates also expressed these concerns.

An advocacy agency stated:

I am aware that staff in human services organisations and healthcare programs have concerns that if they report staff with whom they work they will find themselves as the ‘informant’ being victimised by either their co-workers and/or manager level up from the staff member who was reported … the informant ends up leaving because their work environment has been made too unpleasant for them to bear.

And another stated:

… we had no management support when we submitted [two] category one incident reports … the matter wasn’t handled we feel correctly and instantly, it was hidden and we felt we had done something wrong.

Submission 77 to the Victorian Ombudsman, 17 February 2015. 122 Submission 16 to the Victorian Ombudsman, 16 February 2015.

In a submission,123 a disability worker said they witnessed staff use excessive force and demeaning language against people with disability in residential accommodation:

… I witnessed a lot of abuse of clients in that home … I attempted to report this to my immediate supervisor who started threatening me with my job and potential to gain permanent employment … Other employees … had been threatened and intimidated by the supervisor.

This investigation identified several instances like the two above where penalties were considered or imposed on staff who did report but did so outside the prescribed timelines. The impact this might have on workers’ willingness to report was discussed in the recent KPMG Review of Safeguarding Practices in East Division Disability Accommodation Services, July 2015:

There were different views about the [importance] of timelines for incident reports. From the DAS Workforce Group’s perspective it is absolutely necessary to have penalties for staff who fail to report an incident within the specified timeline. On the other hand, House Staff reported that imposing penalties on an individual for making a late incident report discourages staff from reporting incidents at all, if they have missed the deadline. House staff also reflected that this policy does not provide staff with enough time to reflect on instances where they have been uncomfortable with a staff member’s behaviour towards residents, but where it is not a clear example of physical abuse.

Warnings by management were also evident in a further incident report examined by my officers.

Another parent and guardian said:

It is my belief there have sometimes been other staff working at the house who have been aware [the client] was being abused, but because of fear of management moving them on to work at another house, or retribution from alleged perpetrators they have not spoken up because they are too scared to.

The following incident of abuse was not reported for nine days because the reporter said they were intimidated:

A number of submissions spoke of the actual or perceived threat of reprisals against staff having a financial impact, particularly if they are casual workers, for example:

There are staff that are very caring and have the best interest of the clients, but unfortunately there are those who observe abuse and do nothing and those that struggle as to whether they should report it, be it emotional, physical, sexual or restrictive, for fear of retaliation from co-workers and loss of shifts, particularly if they are employed on a casual basis. All staff need to report abuse incidents to management or police without feeling threatened. Some residential homes only have one staff member on the entire shift including sleepover, leaving no other staff member to report any suspicions to management.

The Health and Community Services Union (HACSU) also raised this issue in its submission to the parliamentary inquiry into abuse in disability services:

HACSU’s research shows casual workers are much less likely to report abuse than those in secure employment as they believe this may potentially put them in direct conflict with both co-workers and management, making their employment more tenuous.

Some submissions went to the lack of support for staff when making reports or consequent action taken by management. Workers reported that they felt unable to speak in confidence. One submission from a worker in residential services described an instruction ‘not to report it and deal with it in house.’

There were comments in a few submissions that business reputation was a key consideration:

I witnessed abuse of several men with a disability while I was working in the field and of course reported it immediately to my manager at the organisation I worked for. Unfortunately her handling of my report was [appalling] and she seemed much more worried about saving the reputation of her business than pursuing the violent offender.132

Another submission described pressure from managers not to submit incident reports. A support worker in a residential service run by a CSO said that staff were instructed not to complete incident reports but to maintain file notes, and that email correspondence from families relating to incidents should not be logged as incidents but also put on the file.

For incidents in SRS, the SRS Act and its regulations prescribe a range of matters including the definition of an incident, requirements for prescribed reportable incidents, timeframes for reporting, and particulars of records that must be kept of all incidents. A manager responsible for Community Visitors said:

Widespread perception in Pension Level SRS [is] that fewer incidents is better than more, so much is still not recorded.

This is supported by my investigation, which found only 134 incidents reported to the department for 4,000 people from July
2012 and December 2014.

A lack of awareness among DAS staff about what to do if their house supervisor failed to take adequate action in response to a report was raised in the KPMG review of East Division DAS:

All house staff [DAS only] considered their House Supervisor as the first point of call if they were concerned about potential abuse or neglect of a resident. However, when asked who they would tell if the House Supervisor did not act, awareness of procedures across houses was inconsistent. In a house where staff were not aware of the procedures, they stated they would contact the Health and Community Services Union. This overreliance of House Supervisors suggests that there is a level of disempowerment among some staff which needs to be addressed. The notion of contacting the Union rather than following the clear procedural guidelines about who to contact also indicates that further training is required to ensure that all staff understand their role in responding to incidents of suspected or actual abuse.

Staff concerns about the impact of reporting

The consequences for staff who are the subject of a report of abuse can be significant. They are likely to be stood down pending an investigation, and they may be excluded from working in the sector if the allegations are substantiated. Even if the allegations are disproven, the report can have a significant impact on the wellbeing of the subject and their reputation. The processes required for investigation can also disrupt the routine of the service. Disability workers may therefore be reluctant to report abuse, particularly if they are uncertain about whether abuse has in fact occurred.

A submission from a volunteer Community Visitor said:

Potential reporters fear that if their suspicion is wrong, another individual may be wrongly incriminated … the reporter should be assured that they do not need to wait in order to have all the proof, evidence or facts at hand to justify their suspicion. Voicing their suspicion is their role, assessing the validity of that suspicion is not their role.

My investigation also identified that staff can side with colleagues or fail to report allegations of abuse made by clients:

Capacity to identify abuse

A number of submissions raised concerns about the capacity of disability workers to identify abuse. One father of a daughter with disability saw it as systemic:

I’m tired of needing to educate government authority around what constitutes abuse.

The review commissioned by the department into safeguards in the East Division in July 2015 identified similar concerns:

Staff consistently reported that they do not feel confident in their ability to recognise the indicators of abuse and neglect, and have not received training on the topic through either induction, compulsory training or professional development opportunities. Staff were hopeful they would be able to observe a change in resident behaviour, if abuse was taking place. However, staff reported that, even if they did recognise a behavioural change, they would not be confident that they would draw a link to abuse and/or neglect.

My investigation received evidence that training on abuse is not mandatory across the sector. While a number of CSO advised that they require their staff to attend mandatory abuse and neglect training, this is not an expectation across all CSO.

A failure to identify abuse was evident in an incident report examined by my office:

Administrative demands of reporting

The apparent administrative burden imposed in reporting was also seen as a disincentive in responses to the NDS review of incident reporting:

… when [a] CAT1 [report] was issued a LEO [local engagement officer] responded by complaining that they had to lodge a significant amount of paperwork.

In a submission to my office, a disability worker said that workers often failed to report incidents or to report them on time when incidents occurred at the end of their shift. She provided an example of an incident that occurred at a day program where a client had a fall resulting in bleeding. As the day program was closing, she said she did not report the matter and instead asked disability workers from the supported accommodation facility to deal with it.

Community Visitors, in consultation for this investigation, said they were aware of temporary agency staff not completing reports and that these staff were unaware of procedures. Community Visitors also said that major incidents were not reported if staff members did not witness the incident, despite evidence of the occurrence and other residents having witnessed the incident.

Clients not reporting

Evidence to my investigation detailed the significant barriers that people with disabilities experience in reporting abuse.

The prevailing cultures and power relationships in residential accommodation in particular were seen by some as creating an environment where reporting was discouraged. In a submission to my office, an advocacy agency stated:
Because of the power workers have in the lives of people with disability there are barriers to people with disability expressing their own view. It is not uncommon for people to agree with whatever workers say, because they are workers and clients are vulnerable and want to please.

In its submission, a funded self-advocacy agency described the societal conditions that result in people with disability not reporting abuse, including marginalisation and isolation. The submission went on to say:
Social support systems often do not believe them or discount their reports because of their disability status. When they choose not to report, it is because they feel they will not be believed, they are fearful of further reprisal or losing a needed caretaker, and consequently are willing to tolerate a certain level of abuse.

A number of submissions also described bullying behaviour by staff towards clients and their families, creating an atmosphere of fear and the possibility of retribution. Instances of withholding food and slamming doors in the faces of clients and family members were cited, as well as claims that ‘those residents who had little to no family members were treated worst’.

Some people with disability live independently and receive support from staff who come into their homes. The capacity of clients in this circumstance to report abuse was also mentioned:

This also raises concerns of lack of respect, abuse, neglect and theft, leaving the disabled person to feel unsafe and threatened, as there are those who may not be able to report their abuse to others or management due to their communication problems, e.g. difficulty understanding their speech, and if it is reported, this then causes them to be fearful of further abuse.

An advocacy organisation described the limited opportunities to report, especially when the abuser is the carer:
The opportunity for a person with a disability to make a report about, and seek assistance in relation to abuse may be limited by the nature of their disability and their social circumstances e.g. if they are being abused by a family member who is also their carer, then the times that they can safely phone the hotline or report the abuse to a disability service provider who is involved in their care may be quite limited.

Adequate support for clients to report abuse was an issue in two submissions:
If people are not supported during the process of reporting abuse it is possible that they will consider it a task that is too difficult or feel like no one cares or listens even when they try to report abuse.

And regarding people living in supported accommodation:

Staff seem uneducated, management seem uneducated on how best to support someone who discloses abuse and their duty of care as a support service to that person disclosing abuse to them. For the person having experienced the abuse they then have to go on and relive this by telling the police, telling SOCIT, telling CASA, the courts, possibly DHS. How is this system supporting the person abused? I feel it is not by any means at present.

There were also a number of submissions that described the fear of families in reporting incidents:

People with a disability and their families are frightened that if they complain their funding may be withdrawn or altered and/ or their residential service placement may be similarly affected.

An advocacy agency set out similar concerns in two case studies:

Her sister who was her guardian decided not to take the matter to the police because she was fearful of the consequences for her sibling.

And:

The client’s brother, who was his legal guardian, was reluctant to pursue the matter any further because he was frightened that his brother might be removed from the house.

The opportunity to report abuse can be limited in a number of ways. Community Visitors play an important role in enabling people with disability in residential accommodation to report: they can visit facilities unannounced and at any time for the purpose of ‘minimis[ing] abuse and neglect in services and mak[ing] communities more inclusive’. They can speak with residents, identify concerns about the care being provided and liaise with staff and management to resolve matters.152

Positive reporting culture

The importance of establishing a positive reporting culture was a consistent theme during my investigation. My officers spoke with St Laurence Community Services (SLCS) about their work in this regard.

Yooralla is the biggest CSO providing disability services in Victoria. Revelations of numerous instances of sexual abuse by a disability care worker in Yooralla facilities in 2011–12 prompted intense community focus on abuse in these environments and has led in part to a number of investigations, including this one. Over the past three years, Yooralla has undergone a substantial process of review and reform.

4.3 Delayed reporting

State-funded residential accommodation

Under the CCIMI, there is a requirement for category 1 incident reports related to CSO and DAS to be submitted to the department within one working day. This reflects the seriousness of these incidents and the urgency with which they should be managed. However, our examination of incident reports revealed that 25 per cent of category 1 incident reports relating to DAS and CSO were not received within that timeframe. Most of the reports were provided within a couple of days. The latest of these reports was provided to the department 38 days after the incident.

My examination of the incident reports identified that, on some occasions, staff from DAS were subject to disciplinary action for delayed reporting.

Supported residential services

Any prescribed reportable incident occurring on the premises of, or in relation to, an SRS must be reported to the department by the end of the next business day. Failure to do so is an offence, and attracts a financial penalty.

Thirty-five per cent of the 42 notifications examined by my office were late. In response to the delayed reports from SRS, AOs did remind SRS in several instances of the reporting requirements but did not take any statutory enforcement action.

The prescribed reportable incident form contains a section where the AO can detail any reason for a reporting delay and any action taken; however, this was not used in the reports my officers saw.

On one occasion in the notifications analysed, the SRS apologised for a delay in reporting an incident, the SRS manager telling the AO that she ‘was dealing with the issues and forgot’.

The Transport Accident Commission

TAC-registered providers are required to notify TAC of a ‘serious incident’ within one business day under the registration requirements. Twenty-nine per cent of reports reviewed by my office were provided outside this timeframe, although the delays were not significant. Two incident reports were not provided to the TAC but were provided to the department.

My officers asked the TAC whether it conducts any monitoring of registered disability service providers as a means of ensuring that all serious incident reports are provided within one business day. In response to my draft report, the TAC stated:

... TAC/WorkSafe has now developed a provider registration performance management framework. The framework includes targeted and random audits to be conducted by the TAC/WorkSafe of registered service providers to monitor compliance with the provider registration requirements (including incident report and investigation procedures).

The TAC/WorkSafe provider management framework will be implemented from March 2016.

4.4 The incident report form and process

The effectiveness of incident reporting depends on the integrity and rigour of the process, and central to that is the form that is the key communication tool.

The form records the moment in time report of an event, immediate responses and actions to be taken.

My investigation identified concerns with the department’s incident report form (refer to Figure 5), which is used for reporting incidents in services delivered or funded by the department. The TAC also recommends TAC-registered providers use the form. These concerns included the structure of the form and the value of the information, given the requirement to provide it within one working day. The incident reporting system is also an outdated paper-based system, which is designed for one-way flow of information.

Much of the reporting is done through tick boxes to ensure reporting requirements are met. For example:

• Parts 1–5: There is no opportunity for the perspective of the person with disability to be recorded. There is no space for contextual information about the person, such as their disability, medical background, support needs and relationships to family or advocacy supports and the need to notify them. There is also limited requirement to provide evidence of wellbeing beyond the person’s immediate needs. For example, in the case of staff-to-client assault or abuse in care, CASA support is offered, but there is no requirement to record if this was taken up or if any other support was appropriate.
• Part 6 review: The first task in the departmental manager’s review is to check the incident report ‘quality’, followed by ensuring the immediate needs of the person at the centre of the incident have been met. In a third of the 357 reports examined during my investigation, my officers identified scant information in the report to satisfy the manager that the ‘immediate needs of the client’ had been addressed and that ‘all appropriate actions’ had been taken.
• Parts 7–8 review: There is no requirement for the area director to satisfy themselves that adequate steps have been taken to address the ‘immediate needs of the client’ in response to the incident. The focus is on escalation internally and externally or to trigger a review process.

In some divisions, file notes are used to supplement the form. These appear to make up for the lack of free text and detail provided in the incident report form. File notes seen by my officers include background or contextual information such as a profile of the person, immediate follow-up, medical follow-up, and information about family support or any advocate working with the person. File notes may also describe staff issues and actions to be taken. File notes that more fully describe the incident and the context are useful but currently are not required and have not been adopted consistently across divisions.

A number of reports reviewed by my officers reflected well-documented incidents. These reports were completed at each section, endorsed by the appropriate staff, and included details about how the person was supported following the incident.

One-day reporting requirement

As noted above, category 1 incidents are to be reported to the department ‘at the latest within one working day’. While immediate reporting is warranted given the seriousness of category 1 incidents, it may be unreasonable to expect the manager at the service level to confirm within that time period what actions have been taken and what follow-up there will be in response to the incident (part 5 of the incident form). The value of the information in the incident report is therefore questionable, particularly in relation to the ongoing needs of clients.

The KPMG review of the incident reporting system noted that there are ‘misaligned expectations among senior and service level staff about the purpose of the incident report and the information that it can and should contain in the immediate aftermath of the incident’. KMPG proposed a range of measures to provide the department with more detailed and current information about an incident including:

… new requirements for service level staff to update incident reports as critical new information becomes available, and where requested, submit a more comprehensive follow-up briefing on the incident and its response once the client’s care or support plan and relevant history has been reviewed and considered.

KPMG further stated that in the department:
Policies, processes and performance measures place greater emphasis on reporting quality and timeliness than on adequacy of the response … The focus on complying with reporting requirements and timelines detracts from a focus on ensuring [the] client’s safety and wellbeing.

Paper-based reporting system

In his report Assault of a Disability Services Client by Department of Human Services (March 2011), the former Victorian Ombudsman recommended that the department consider implementing a web-based reporting system for incident reporting to provide a more efficient and immediate reporting process that includes an electronic audit trail or log of events. Notwithstanding this recommendation, the reporting system remains paper-based.

There are three ways in which a report form may be completed: using the online version containing macros,165 the online version containing no macros, or printing the form and filling it in by hand. Once completed, all reports must be printed and faxed to the department. The department then manually enters the information on the form into its records management system. This is an outdated and resource-intensive paper-based reporting process.

This process presents difficulties for service providers, particularly those in regional Victoria, as described in these comments from a CSO:

The manual Incident Reporting process creates a number of challenges, particularly for regional agencies with multiple service sites. Reports may need to pass through several sets of hands, with the penultimate step requiring the relevant supervising Manager to fax the finalised report to the Department. Those steps can create logistical and timing challenges, especially acute for Category 1 incidents or if service staff are travelling to visit clients out of the office when they become aware of incidents.

There have been occasions where the fax-back system has failed and providers have been informed of the failure some weeks, or even months after the event. Central messages have included a date range where the fax system has not been operational, with a request that all reports within the range be resent.

A fully automated and electronic system would improve reliability for both the Department and service providers.

Because it is paper-based, the form cannot be updated; instead, the form records the response to an incident at a point in time. The incident report is designed for oneway flow of information and there is no record of whether the follow-up action identified by the service-level provider or recommended by the department at parts 6–8 is taken or checked by the department.

This one-way information flow on the form is at odds with one of the purposes of incident reporting in the CCIMI, which is to learn from incidents. There is a reliance on the department’s Local Connections staff to track actions, although it is unclear how this is achieved when the incident report is a static form.

As incident reports are hand-written, the legibility of the reports can vary significantly. Some incident reports examined by my office were poorly written and/or difficult to read. This can lead to inefficiencies, with departmental staff spending time clarifying information. As noted in the KPMG review, it also increases ‘the risk of inaccurate interpretation and data entry’.

The security and privacy of the information in paper form was also questioned in a number of submissions, some of which suggest that reports ‘go missing’. The fact that there is no allocation of a reference number until the departmental review at part 6 raised further concerns about the integrity of the paper-based process.

The incident report form is used across the department for other purposes, including child protection. In its recent report, the Commission for Children and Young People raised similar issues about the effectiveness of the incident report:

The current paper-based CIR system is outdated, inefficient and open to misinterpretation. It is not child-focused and lacks an effective feedback loop.

In their annual report for 2013–14, Community Visitors raised issues relating to the current incident reporting system:

Community Visitors still have difficulty accessing reports, with many staff uncertain about where they should be filed. Community Visitors report that incidents are recorded in various documents, such as the shift report book and progress notes, but no incident report seems to have been written.

The following case study is illustrative of poor reporting practices.

The prescribed reportable incident form and SRS process

A notification of a prescribed reportable incident from an SRS typically occurs through a telephone call from the proprietor or a senior staff member to an AO. There is no requirement for the notification to be in writing, although the SRS is required to maintain a record of the incident onsite in hard copy or electronic form, which includes a description of the incident, action taken in response to the incident, and information about the notification. In some instances, the AO will request a copy of the SRS incident report or related documentation.

AOs complete a Prescribed Reportable Incident Form (Figure 6) when they receive the notification from SRS. This form is specific to the SRS reporting process and requires the AO to identify basic information about the incident, the actions taken and the support provided to the resident.

There are tick boxes and text space for the AO to document their regulatory response including: whether they attended the SRS, who has been informed, whether noncompliance was identified or whether a follow-up inspection is required. There is also a section covering departmental response, review and endorsement.

The details of the notification, associated documentation (such as a copy of the SRS incident report) and follow-up action by the AO are recorded in the CRAMS database.

There is no section that captures whether the resident is a disability services or mental health client of the department (rather than an SRS resident without a disability). Like the DAS/CSO form, there is no space to identify any particular communication, advocacy or support needs required by the resident.

In response to my draft report, the department wrote:

There is no requirement for proprietors to submit a copy of their incident record to the department. Authorised officers review incident records in the Record keeping and resident information targeted compliance review.

Appraisal of the proprietor’s management of the incident at the time of notification is the responsibility of the departmental authorised officer and regional manager. The authorised officer’s prescribed reportable incident form requires the Regional Director to sign-off on the notification of the incident including that it’s being managed appropriately by the supported residential service and appropriate response actions have been taken by the department.

My officers analysed 17 notifications made since April 2014 when the new form was introduced, which indicated some confusion:

• In four instances, the AO indicated on the form that further action would be undertaken such as reviewing particular policies, adding the outcome of a police investigation, or undertaking a site visit. However, there was no further information in the documentation to indicate whether these additional actions were performed and what the outcome was. There is also no indication on the form of any feedback provided to the SRS in relation to its obligations.
• In six instances, the prescribed reportable incident form was not used, instead the AO used a ‘prescribed reportable incident record’ to record details of the notification. This form states: ‘This document is designed to be used for note-taking purposes when receiving notification of a PRI [prescribed reportable incident]. Please enter this data on CRAMS …’ Unlike the prescribed reportable incident form, there is no requirement by the AO to sign the form or that it be signed by the SRS program manager or the regional director, indicating oversight of the process.

4.5 Escalation and communication

My investigation identified examples of a failure to escalate incident reports or to communicate with relevant parties as required. In some cases, this meant that essential supports were not provided to clients or that incidents were not subject to appropriate scrutiny or investigation.

Escalation to other agencies

The analysis of category 1 incident reports undertaken for this investigation (refer to Table 2) shows that of 79 reports requiring contact with police, 59 recorded police contact.

Of 28 sexual assault reports requiring referral to CASA, eight incident report forms recorded CASA support as having been offered.

My officers reviewed the reports and identified that a number should have been referred to these and other agencies but were not.

Victoria Police

The incident report form requires the reporter to indicate if Victoria Police has been contacted using a tick box. The department’s Responding to allegations of physical or sexual assault (RAPSA) departmental instruction requires that all assaults are reported to police. It states:

… the allegation of assault must be reported to the police, whether or not the client has consented to the matter being reported. The client may choose not to participate in the police investigation.

The RAPSA requires that:

… the most senior staff member in the relevant work area (such as a house or unit) present at the time the allegation is made is responsible for reporting the allegation of assault to the police.

In the incident reports examined by my office, 25 per cent of assaults were not referred to police.

The language used in the RAPSA and the incident report form differs. The incident report form requires ‘contact’, while the RAPSA guidelines require staff to make a ‘report’ to police.

The incident reports that I examined indicated that what is happening is merely a notification to police of an allegation of assault. In a number of instances police required a formal statement from the person or their guardian in order to proceed with an investigation.

In response to my draft report, Victoria Police stated:

There is an identified need to build better pathways and relationships to support police at the frontline and build linkages that are more strategic in equipping police with information, education and tools to provide a more consistent response to persons with a disability and the relevant service sector.

Victoria Police listed a number of projects and actions that have raised similar issues and outlined areas for improvement, including the Victoria Police Accessibility Action Plan (to be released December 2015) and the Blue Print Project - Review of police service to people with a disability.

Victoria Police stated:

Victoria Police continues to work closely with the Office of the Disability Services Commissioner to continue to identify ways for Victoria Police and the Commission to work more effectively and efficiently together...

Victoria Police recently... participated in a round table forum co-chaired by the Victorian Disability Commissioner and NSW Ombudsman on ‘Initial and early response to abuse and neglect in disability services’, which included the review and development of resources to be made available to frontline staff.

...Victoria Police have recently developed the Ready Reckoner for Police in responding to persons who may have a cognitive impairment and are in the process of finalising an Easy English version for Reporting Crime – Your Rights as well as a series of community and cultural awareness guidelines, including People with Disabilities and Victim Centric Policing.

Centre Against Sexual Assault

On the incident report form, there is a tick box to indicate whether CASA support has been offered. CASA operates throughout Victoria and provides crisis and ongoing counselling support to recent and past victims of sexual assault.

The RAPSA states:

… if the client consents, in instances of alleged sexual assault, the local CASA should be contacted at the same time the police are informed of the allegation.

And:

If the client is a person with a disability who does not have the capacity to consent, consent should be obtained from the person’s guardian to contact CASA.

The most senior staff member in the relevant work area is responsible for ensuring this contact is made.

In the incident reports examined by my office where sexual assault was reported, the form showed CASA support was offered in less than one third of cases (Table 3).

There is also no indication on the incident reports as to whether the client or their guardian accepted or declined the offer of CASA support, or if another form of support was offered and/or received.

The following example demonstrates the importance of considering CASA support for all incidents of sexual assault.

Disability Services Commissioner

Under the Protocol for Incident Report Reviews between the Disability Services Commissioner and the Department of Human Services, it is mandatory for the department to refer any incidents of sta - to-client assault or unexplained injury to the DSC:

The DSC will receive and review all Category 1 incident reports and associated documentation (department email
alerts and information updates) relating to allegations of staff-to-client assault and unexplained injuries for quality of response, client safety and client rights.

In my officers’ review of category 1 incident reports for the months of February and October 2014, we identified five incident reports relating to both staff-to-client assault and unexplained injury where the DSC was not informed.

The following case is illustrative of a staff-to-client assault allegation that required referral to the DSC but was not:

Disability Services Commissioner

Under the Protocol for Incident Report Reviews between the Disability Services Commissioner and the Department of Human Services, it is mandatory for the department to refer any incidents of staff-to-client assault or unexplained injury to the DSC:

The DSC will receive and review all Category 1 incident reports and associated documentation (department email alerts and information updates) relating to allegations of staff-to-client assault and unexplained injuries for quality of response, client safety and client rights.

In my officers’ review of category 1 incident reports for the months of February and October 2014, we identified five incident reports relating to both staff-to-client assault and unexplained injury where the DSC was not informed.

In instances where incidents are not entered into RIDS or there is a delay, further opportunity for review and improvement in protection is lost, as is demonstrated in this case study:

SRS residents and Community Visitors

Guidelines for SRS proprietors and the department’s authorised officers (AOs) in responding to allegations of sexual assault are set out in Responding to allegations of sexual assault in SRS: Clarifying roles for SRS proprietors, the Department of Health and Centres Against Sexual Assault (October 2012).

The guidelines state that when an AO receives a notification, they ‘advise [the] Community Visitor Regional Convenor by email and cc [the Community Visitor Program] coordinator’.

Community Visitors have a statutory function to visit SRS and assess whether services are being delivered in accordance with the Act and the prescribed accommodation and personal support standards. Community Visitors may take a number of actions in response to issues of concern in fulfilling their function. For example, they can submit a notification of an issue of concern for investigation by the department if the issue was not resolved at the time of the visit.

As SRS are not subject to the same level of scrutiny by the department as DAS or CSO, Community Visitors play an important role in protecting the rights of SRS residents. Timely advice to Community Visitors about incidents may assist them in fulfilling their statutory function.

Of the 14 notifications of alleged sexual assault analysed by my officers, three made reference to contact with Community Visitors, one of which was a disclosure by an SRS resident directly to a Community Visitor, rather than through the proprietor’s report and the AO. Contact with Community Visitors is not required, however the guidelines say that it is standard procedure in these circumstances.

There is no specific tick box or any other prompt on the prescribed reportable incident form to indicate contact with Community Visitors.

Communication

The capacity of clients to communicate their experience and needs is central, especially in instances of abuse. In many cases, there is a need for support or advocacy from someone outside the service environment to ensure the client can express themselves. As I said in phase 1:

… the role of advocacy is particularly important in the highly sensitive area of complaints about abuse, where people may be afraid to complain, and for those people who do not have the ability to communicate or to make a complaint on their own behalf.

The following case involves a woman with no-one in her life to support her:

Support can be provided in a range of ways: informally through family or trusted friends; by funded advocacy services; or formal advocacy, which applies where there is an appointment of an Advocate or Guardian through VCAT.

There is no obligation on the part of the department or CSO to offer advocacy or support. The RAPSA guideline states, however, that for incidents of sexual or physical assault, staff should:

… with the client’s consent, engage family, significant others, an independent key support person and/or advocate to support the client and advocate on behalf of the client and ensure their rights are respected.

Other than indicating whether support from CASA was offered for sexual assault incidents, there is no requirement on the incident report to record whether any support was offered or provided in response to an incident, or if family have been informed at the time of the incident.

Incident reports analysed for this investigation showed many instances where there appeared to be a need for support but no indication on the form that it was provided.

The following case goes to the need for independent communication support for people when reporting allegations to police.

Staff acting as an independent third person, contrary to the RAPSA

Communication support for people with disability is particularly critical when involved in police interviews. In relation to both physical and sexual assaults, the RAPSA says:

The police may want to interview the client and take a statement. The client may choose whether or not to participate in the police investigation.

Clients with a cognitive disability or a mental illness must have an independent third person present during the interview. The role of the independent third person is to facilitate communication, ensure that the client understands his or her rights, and to support the client. Police are responsible for arranging the independent third person.

There is a tick box on the incident report asking whether or not police have been contacted but no space to indicate any further actions – for example, who attended the police interview with the person with disability and whether there was an ITP present.

A number of cases identified that staff acted as the ITP in police interviews, despite this being proscribed in the RAPSA, which states:

Departmental and funded agency staff should not act as the independent third person.

This guidance is intended to ensure impartial support is provided in these circumstances and that there is no actual or perceived influence by staff over the client. 314. The case studies below also show instances where staff acted as the ITP in police interviews, contrary to the RAPSA. One also demonstrates an inconsistent approach between police areas regarding non-sexual offences.

The Victorian Equal Opportunity and Human Rights Commission has also noted cases where police did not investigate a report of abuse, ‘instead pushing the matter back to the system’.

In its submission, OPA cited an allegation of sexual assault of a young woman with intellectual disability where staff acted as an ITP.

Serious concerns exist in regard to the police statements made by B and her case manager who police allowed to act as an ITP during the interview. The statement signed by her case manager concluded that it was not in B’s interest to proceed with any form of investigation. More appallingly, in her signed statement the case manager said ‘I have some doubts about the validity of what B is saying … I am not saying B has made this up, but believe she may have put herself in a position she is now regretting.’ Not surprisingly, the police discontinued investigation of the issue.

OPA found that police had no guidance as to who should act as an ITP. The response to the complaint acknowledged that the case manager ‘was not an appropriate person to use as an ITP because of the perceived lack of impartiality’.

Failure to ensure communication support for SRS residents in police interviews

The Responding to allegations of sexual assault in SRS194 document states SRS should:

… advise Police if the resident/s has difficulty communicating and may need an Independent Third Person (ITP) …

and that when an AO receives notification they:

… ensure … any limiting communication capacity of parties is advised to police as an Independent Third Person …

The Prescribed Reportable Incident Form requires AOs to record whether the police were contacted and provides space to outline actions taken by the proprietor. There is no requirement, however, to indicate if the resident has difficulty communicating or whether police have been made aware of this and the possible need for an ITP.

In the 14 notifications of alleged sexual assault reviewed by my officers, it was observed there was either no evidence or it was unclear whether the AO had taken steps to ensure the SRS advised police of any communication issues.

In three of the 14 notifications, the residents retracted allegations. In each case there is no evidence that the AO ensured any communication needs were made clear to police.

Failure to communicate with other agencies

A large number of people with disability in Victoria receive services in more than one environment; for example, they may live in a group home and also attend a day facility, or they may receive independent support at home.

Consequently, communication between the different service providers in a person’s life is essential but not always evident. There is no space on the incident form that requires consideration of other services in contact with the person.

The Community Visitors raised this concern in their annual report:

The DHS Critical client incident management instruction 2011 outlines the incident reporting requirements involving a resident who receives support from more than one service provider. However, Community Visitors are concerned that information about incidents that occur at day placement is not appropriately communicated to staff at the group home, or adequately recorded on the resident’s file at the house.

Failure of timely notification to family

There is currently no specific reference to family being notified on the incident report form; however, submissions regarded notification of family as a clear expectation, and that failure to do so was a breach of trust.

An incident report examined by my office also demonstrated this issue:

Provision of advocacy services

My investigation found that there is a critical role for advocates to assist people with disability. The role of advocacy is particularly important in the highly sensitive area of complaints about abuse, where people may be afraid to complain, and for those people who do not have the ability to communicate or make a complaint on their own behalf.

While Community Visitors have a role in advocating on behalf of people with disability and to follow up on action taken by the department, they are volunteers and their role does not extend to individual advocacy. OPA provides some advocacy
services to people with disability, but this is limited by its funding arrangements.

Family also play an integral role in advocating on behalf of people with disability, and this was evident in the submissions to my office and my meetings with family members. However, there are circumstances where there is apparent tension between the approach of family and the best interests of the person with disability.

Where there is no family support, or as a matter of preference, advocates can provide critical assistance to ensure the best interests of a person with disability. In Victoria, advocacy is provided through Commonwealth and state funding. The Commonwealth provides $4.1 million funding through 16 agencies, including $3.67 million for individual advocacy. 331. Oversight of the state’s disability advocacy program is provided by the Office for Disability (OfD), which sits within the department. The OfD’s mandate is to ‘put disability on the agenda across the Victorian Government’. At interview, staff of the OfD stated:

• the OfD has an overall budget of around $4.8 million
• $2.7 million of the OfD’s budget is used to fund 24 agencies providing both individual and systemic advocacy: $1.7 million goes to individual advocacy and $1 million goes to systemic advocacy.

In phase 1, I discussed the need for a comprehensive assessment of the need for advocacy services in Victoria in order to better support people with disability.

State funding for advocacy through the OfD has increased only by the CPI since 2003. This is despite:

• the number of people identifying as having a profound or severe core-activity limitation in Victoria increasing from 323,300 in 2003 to 364,900 in 2012; an increase of more than 41,000
• the volume of critical incidents reported to the department almost tripling from 2002–03 to 2013–14. 334. A number of disability advocacy organisations told the parliamentary inquiry that they support my recommendation for additional funding for advocacy.

One submission to my office from an advocacy agency complained about a lack of funding for training. The agency said it received $60,000 over two years to provide ‘peer to peer training to residents in shared supported accommodation about their rights … including their right to be free from … abuse’. The agency said they were told of ‘numerous instances of abuse’ during the training and they advocated for individuals to remedy the situations. The agency said ‘there are 1000 … homes with around 6000 residents and we were only able to visit 86 homes’. The agency stated it did not receive further funding for the project, despite requests to the department and OfD and ‘support for the project from the Office of the Public Advocate and reports from the Disability Services Commissioner that say this type of program actually prevents as well as reveals abuse’.

When asked at interview about how the OfD determines the need for advocacy services, the office manager from the OfD said it receives quarterly data from advocacy agencies and conducts visits and periodic forums with agencies to gather intelligence. They do not receive incident report data from the department. The office manager stated:

… understanding the true nature of demand in relation to advocacy is quite a complex thing because there are a number of players in this space. So, we have our program [OfD], which has a particular function; we have the Commonwealth program …; we have, obviously, the role of OPA …; then we have the Disability Services Commissioner, which has some related role; and we have VEOHRC [Victorian Equal Opportunity and Human Rights Commission], which has some related role.

The office manager further stated that the OfD has not received evidence from advocacy agencies that they are underfunded:

... each agency will work within the funding allocation that they have to manage the people coming through their service and identifying with a need for advocacy. So they will determine, through their own organisation, how they can manage the number of individuals that they support at any one time. And, anecdotally, the evidence that we get from agencies is that they’re able to do that. Yes, the demand’s high, but they are able to manage the demand. So we have not, at this point in time, received firm evidence from any of the agencies that they are not able to meet the demand.

The OfD states it is currently looking at strengthening the individual advocacy program and is reviewing the need for advocacy in Victoria. In preparation for the rollout of the NDIS, the federal Department of Social Services is also undertaking a review of advocacy for people with disability, with decisions to be made in December 2015.

In my phase 1 report, I also stated that there is an inherent conflict in the department funding advocacy for people who are reliant on the services of the department itself. At interview, the OfD office manager put the view that the current arrangement worked well:
I don’t believe there’s a conflict … I think it is a good fit … because … the focus of the Office for Disability is about addressing the issue of disability and barriers of people’s inclusion across a full range of life areas. In that sense, the advocacy program is a good fit because it has a similar focus. We also have a focus on capacity building across government, across the community, and the advocacy program provides that function as part of what it does … We don’t have a service delivery focus. I understand the comments that were made in the [phase 1] report and I understand where that’s coming from. I think though that it’s important to understand that the function of the Office for Disability is quite different to the service delivery component or part of the organisation [the department]. It provides a distinct, but complementary function. I also think there are some benefits being associated with the Office for Disability because of the proximity to the policy hub of government in relation to disability, broader whole-of-government disability issues.

Since the phase 1 report, some advocacy groups have told the parliamentary inquiry that they were ‘firmly of the view that the body that administers the funds needs to be independent of any conflict of interest’. One submission to the inquiry suggested that ‘because advocacy organisations are currently funded and administered by the Department of Health and Human Services they have been less effective than they need to be’.

Other disability advocacy organisations expressed a different view, telling the inquiry that ‘they do not support the recommendation that the administration and funding provision be transferred to the Office of the Public Advocate’.

4.6 Gaps in the reporting system

My investigation identified four areas where serious incidents affecting the wellbeing of people with disability are potentially ‘falling through the cracks’. The material set out below is what has come to light through incident report enquiries or my analysis of available data.

Neglect

In the context of disability services, the term ‘abuse’ is generally discussed in combination with ‘neglect’. Abuse is defined as ‘the violation of an individual’s human or civil rights, through the act or actions of another person or persons’. Neglect is a passive form of abuse: it is the ‘failure to provide the necessary care, aid or guidance to dependent adults or children by those responsible for their care’.

The CCIMI does not define abuse in the disability context. However, in relation to child protection clients, the CCIMI defines ‘abuse in care’ as:

… alleged or actual physical or sexual assault where a client in care is the victim and the perpetrator is a staff member, a carer or a member of the carer’s household.

Neglect is not defined in the CCIMI, but ‘poor quality of care’ is defined as ‘inappropriate behaviour or inadequate care by caregivers or staff’. In effect, this is neglect.

In relation to the categorisation of poor quality of care incidents, the CCIMI states:

Poor quality of care concerns may, depending on the extent and nature of impact on the client be defined as either Category One or Category Two incidents. In general, it is anticipated that poor quality of care concerns would represent lower level risks to the health and wellbeing of a client than physical or sexual assault and are therefore likely to be defined as Category Two incidents.

My capacity to examine the reporting and investigation of neglect allegations was limited, as only 12 of the 357 category 1 incident reports reviewed by my office related to poor quality of care.

The CCIMI says that where medical intervention is required in response to poor quality of care, or where poor quality of care cannot be excluded as contributing to a client’s need for medical intervention, the incident should be reported and defined as category 1. When categorising a poor quality of care incident, service providers are told to consider ‘any previous incident reports regarding the client, the carer or the family of the client or carer’.

The CCIMI does not state whose responsibility it is to select the category for the report; however, the category is selected at part 2, which is completed ‘by the most senior witness to the incident or, if there were no witnesses, the staff
member to whom the incident was reported’. The report is subject to quality checking by the department, at which time the category may be changed.

Poor quality of care incidents are not subject to a QoSR. They may trigger an adverse event review, where ‘a collective group of events’ in DAS or CSO ‘leads to negative consequences for individuals and/ or groups directly or indirectly attributable to the disability service provision’.

KPMG recommended that category 1 incidents continue to be reported to the department for individual oversight and management given the higher risks associated with the incidents, and that category 2 incidents be managed at a local service level, with the department providing oversight through aggregate data analysis, audits and inspections.

The department is developing a new model for incident reporting and investigation in response to the KMPG report. If the KPMG model is accepted, the department will not have visibility of quality of care incidents unless they are described by the service provider as category 1.

Under this system, the following case of poor quality of care would not be reported to the department. It was initially classified as a category 2 incident by service-level provider staff. However, the department’s operations manager changed it to category 1, presumably because of the traumatic effect on the people involved.

In response to my draft report, the department stated:

As part of the work to develop the new client incident management system, consideration will be given to revised incident reporting categorisation and prioritisation models. Consideration will be given to ensuring adequate visibility of those most serious incidents.

SRS residents

Under-reporting of incidents

In 2013, 4,275 people lived in SRS. People with disability made up 91 per cent of these residents.

While there are more than 4,000 people living in SRS, the department provided my office with only 134 reportable (serious) incident notifications for the 2.5 year period: 1 July 2012 to 31 December 2014. As the majority of people living in SRS have a disability, most of these concerned people with disability. However, it is difficult to be precise: the incident report completed by AOs does not generally state whether the person involved in the incident had a disability.

The 134 notifications is significantly lower than reporting in state-funded accommodation, for which there were 2,120 category 1 incidents in 2014 alone.

The low number of notifications for SRS has been noted by Community Visitors:

… it is our view that abuse is systematically under reported in PL [pension level] SRS.

Community Visitors note a trend for incidents to be recorded in residents’ progress notes rather than in the format for prescribed or reportable incidents. Community Visitors do not have automatic access to progress notes and they say their role is impeded by lack of access to this information.

In response to my draft report, the department wrote:

The department has recently confirmed with Legal Services that Community Visitors should have access to progress notes/communication books as they contain information which is relevant to the objective of the SRS Act: to protect the safety and wellbeing of residents of supported residential services.

This will be communicated to the sector in November 2015 (authorised officers, Community Visitors, and proprietors of supported residential services).

Further, Community Visitors regularly report that proprietors and staff of mainly pension-only SRS have difficulty understanding the difference between ‘reportable’ and ‘recordable’ incidents, leading to a potential failure to report serious incidents.

Mr E’s case provides an example of serious incidents in SRS going unreported to the department.

In response to my draft report, the department stated:

The department has produced a new incident record-keeping book which promotes recording all incidents. The new book was issued with a fact sheet about the benefits of keeping records of all incidents. Incident recording practices have been a focus of the supported residential services training program and will have increased emphasis in 2016.

Incidents outside an SRS

The SRS Act requires that a prescribed reportable incident occurring ‘on the premises of, or in relation to’ an SRS must be reported to the department by the end of the next business day.

Analysis of prescribed reportable incident notifications showed that on two occasions an SRS resident made an allegation of a sexual assault that occurred away from the SRS premises – one at a nightclub and one at a bus stop when the resident was returning from work.

In the first instance the resident disclosed the incident at the nightclub to managers of the SRS facility who advised the department, which in turn advised the SRS program in the department.

Email correspondence between departmental staff within the SRS program states: ‘This is not a notifiable event or a CAT 1 as it occurred off the SRS premises and appears totally unrelated to the SRS. It is interesting though that the SRS did not inform us.’

The AO subsequently contacted the SRS to follow up on the actions taken by the SRS and reminded them of the requirement to notify of a prescribed reportable incident.

On the second occasion the resident disclosed the alleged sexual assault at the bus stop to SRS staff, who made a notification of a prescribed reportable incident to the department. The AO followed up with the SRS about the supports provided to the resident.

While on both occasions the department was made aware of the alleged assaults and was able to follow up, the first shows a potential gap in reporting serious incidents occurring outside SRS premises. In the first instance, the SRS did not report the incident to an AO as it did not occur on the premises; however, it did report it to the resident’s case manager. Without the contact between the case manager and the AO, the AO may not have been made aware of the incident and unable to follow up on the actions of the SRS to ensure the safety and wellbeing of the resident.

Transport Accident Commission

TAC clients in CSO and TAC facilities

Seventeen serious incident reports were reported to the TAC in the 32-month period between January 2013 and August 2015, with one incident involving allegations of staff-to-client assault. This is a very low number.

At interview, the TAC’s manager of Care Assurance was asked about the serious incident reports the TAC receives from different service providers:

From our understanding we have received them all, we don’t know any different that we haven’t. Nothing has come up from any client or anyone else to say anything differently.

As noted earlier, few TAC clients live in accommodation funded by the department, and the department therefore receives few incident reports involving TAC clients. However, given the small number of reports received by the TAC, my officers asked the department if it had received any additional incident reports for TAC clients in department-funded service providers for the corresponding period.

In response, the department provided my office with a further two serious incident reports involving TAC clients. In both instances the clients had been hospitalised for medical treatment; however, the TAC was not provided with a copy of the incident report by the service provider. In phase 1 of my investigation I also identified an example of a serious incident involving a TAC client in receipt of dual funding from the TAC and the department, where the TAC had not been notified of the incident by the service provider. The TAC identified this oversight and obtained a copy of the incident report.

While the TAC received only 17 incident reports for the 32-month period, the TAC’s alleged abuse register contained 94 separate entries in the 11-month period from November 2014 to September 2015 for 88 TAC clients. The register captures not only serious incident reports received from service providers but any type of abuse concerns that have been raised by TAC clients, family/friends, service providers, health or legal professionals, TAC staff, third parties and any other person or agency.

Examples of the types of concerns captured by the register included:

• allegations of physical and sexual assault
• allegations of poor quality of care
• disability workers allegedly speaking to TAC clients in a disrespectful manner
• disability workers allegedly stealing from TAC clients or requiring the client to pay for the workers’ incidental expenses, such as meals or travel expenses.

Some of the allegations of abuse on the register were made by TAC clients during welfare checks conducted by the TAC. The TAC stated that, so far, it has visited 215 of its vulnerable clients, and 30 per cent of clients (59) raised an allegation of abuse, most commonly physical abuse.

While not all the allegations detailed in the abuse register would require an incident report, the difference between the incident reporting numbers and the abuse register suggests there may be under-reporting by service providers to the TAC.

In response to my draft report, the TAC stated:

The alleged abuse register captures all allegations of abuse, most of which are reported during a TAC client welfare check. The disparity between the number of incidents captured in the abuse register and the number of incident reports received by the TAC may indicate a variety of things, including that clients feel it easier to make a report of abuse during their welfare visit .

The TAC says it refers its registered providers to the department’s incident report form and processes for responding, given it does not have its own. However, I note that some TAC-registered service providers have no relationship with the department and therefore may have no knowledge of departmental practice or ready access to the documentation.

In response to my draft report, the TAC said:

As part of the review of the TAC/ WorkSafe provider registration requirements, the TAC will implement its own incident report form for use in reporting serious incidents involving TAC/WorkSafe clients. The form will be accessible on the TAC website.

The TAC also stated that it has developed a provider regulation performance management framework, which includes targeted and random audits to monitor compliance with registration requirements including incident reporting.
TAC clients in SRS

The SRS Act requires proprietors to notify the department of any ‘prescribed reportable incidents’ by the end of the next business day.

The TAC does not require SRS proprietors to be independently registered as a provider of disability services. Consequently, there is no requirement for SRS proprietors to report to the TAC serious incidents involving their clients, such as alleged physical or sexual assault. This is in contrast to CSO and TAC facilities, which are required to provide reports to the TAC under their registration requirements.

In response to this issue, the TAC stated:

SRS operators must be registered with the DHHS and comply with registration requirements set out in the Supported Residential Services (Private Proprietors) Act 2010 …

… the TAC does not duplicate this process or impose additional requirements on SRS over and above those already set out in the … [SRS] Act.

The TAC also said:

… [it] expects SRS operators to comply with the mandatory incident reporting requirements set out in Part 4, Division 8 of the … [SRS] Act, guided by the recommendations in the DHHS publication, Operating a Supported Residential Service – a guide for proprietors, and overseen and regulated by the DHHS.

In the absence of any formal requirements for SRS proprietors to notify the TAC, the TAC could remain unaware of serious incidents involving TAC clients in SRS, or of SRS proprietors who have acted inappropriately or not met required standards.
Information sharing between the department and TAC

In my phase 1 report I commented on the need for information-sharing arrangements between the TAC and the department to ensure that each agency is aware of information about service providers and serious incidents, particularly where a service provider has been found to have acted improperly or not met required standards.

In order to ensure that it receives information about serious incidents involving TAC clients, the TAC advised that it has been working on an information-sharing protocol with the department for the past couple of years.

The draft information-sharing protocol proposed by the TAC, among other things, provides for the sharing of information between the TAC and the department where a ‘suspicion, complaint, allegation or other evidence is received about: the health, safety, abuse or risk to a client or where there is a failure to meet basic client needs’.

The draft protocol also recognises that there are exceptional circumstances when the department and the TAC must share information to fulfil their responsibilities, including where they become aware of issues or reports of activities that may put clients, or prospective clients, at risk.

In regards to my concerns about the TAC’s inability to receive incident reports about their clients living in SRS, the TAC stated that:

… [it] has identified that, in the absence of an information sharing protocol with DHHS, this may result in serious incident reports being received by the DHHS but not being received by the TAC in relation to TAC/Community Integration Program (CIP) clients in SRS.

While the TAC has stated that the proposed information-sharing protocol with the department will address this gap, the draft protocol specifically states:
i. Information shared shall be limited to organisations who are registered with both:
a. DHHS and TAC

As SRS are not registered with the TAC, it appears that the proposed information-sharing protocol will not apply to SRS and any TAC clients living in these facilities.

In response to my officers asking the TAC what is preventing the draft protocol from being implemented, the TAC stated:

The information protocol requires DHHS and TAC to agree on what information can and should be shared. These matters are under negotiation between the parties.
…
The TAC is hopeful that agreement with the DHHS can be reached as soon as possible so that the protocol can be implemented shortly thereafter.

In response to my draft report, the TAC further stated:

In response to the TAC’s requests to meet and discuss the implementation of an information sharing protocol, the TAC awaits the department’s advice.

In response to my draft report, the department stated:

The department confirms it is working on an information sharing protocol with the TAC to assist both parties to fulfil their regulatory duties and reduce regulatory burden.

There are a small number of people who access services from both the department and the TAC. As work continues on the protocol, as noted in the department’s response to the draft phase 1 report, information can be shared between the department and TAC about these clients.

At the time of tabling my report, the information-sharing protocol was not yet implemented.

People at home

There are approximately 15,000 people with disability who have an individual support package (ISP). An ISP is an allocation of funding to a person with disability to help purchase supports that will best meet their needs. Planning for an ISP will also take into consideration the needs of family members or carers to maintain the caring relationship. As at June 2015, 9,477 ISP recipients were not living in a CSO or DAS residential service; while some would live in SRS, a majority of the 9,477 live at home. Most people with an ISP have their services managed by a registered disability service provider, or use a financial intermediary. Only five per cent receive direct payments.

My report acknowledges the significant under-reporting of incidents in residential accommodation. There is also a risk that incidents that occur in the home, where an ISP is in place, will not be reported. This is because an ISP for a person who lives independently generally involves an individual worker providing support. For example, a worker may provide support to a person with disability for community access or outreach.

The person with disability living at home and receiving direct payments may be reluctant to report an allegation of abuse for a range of reasons including:

… shame that they have been abused or exploited, a desire to maintain independence and control over their life, a desire to ‘maintain friendships’ with people other than paid support workers even when the relationship is abusive, a fear of the consequences including that they will not be able to find someone else to deliver their support, and an unwillingness to report on the basis that they were receiving the support they needed even if they were being exploited, particularly financially.

In addition, there may be less opportunity for people at home to report compared with those in residential accommodation, as Community Visitors do not visit them and they may not have contact with other disability support workers to whom they can report.

The relevant worker is also unlikely to report an allegation of abuse for which they are the subject.

Staff engaged by people with disability from non-registered providers for services such as community access and outreach, are not required to comply with departmental policy and procedure, such as incident reporting.

I note that two-thirds of the incident reports examined by my office related to residential accommodation, and around one-third (93 of the 357) of the incident reports related to an ISP. It is unclear from the incident reports how many of these relate to clients who live at home.

The risk of under-reporting by people with disability at home could be heightened with the NDIS, which will provide people with disability with increased autonomy to engage their own support. In the development of the national scheme, consideration should be given to appropriate safeguards.

In this regard, I note that in the United Kingdom, where direct payment systems have been in place for some time, safeguards include support services that assist people with disability to manage their direct payments and employ staff. These services provide ‘bank account, payroll and financial reporting services’243 and include access to:

• a non-residential address for receiving applications
• a safe place to interview prospective staff that is not the person’s home
• support in conducting referee checks
• as well as encouraging and facilitating criminal record and employment-barring checks and probationary
  periods before formally engaging staff
• information and training on inducting and managing staff.

In response to my draft report, the department stated:

Individual Support Packages have been developed as self-directed, flexible and tailored support so that people are able to exercise the maximum level of control over their lives possible, with safeguards matching their need or vulnerability. This includes not imposing unnecessary restriction on people who have the capacity to make choices about their supports and service providers. It is also important to note that people with a disability have the same safeguards as other members of the community.

ISP funding is individually attached and portable, meaning that an individual and their support network can choose to change providers. In many instances, individuals and families are able to select their workers in consultation with the service provider.

5. Issues with investigation and review

My investigation identified that the department does not have a documented investigations framework. Divisions and service programs have developed local, ad hoc processes for undertaking investigations. In the absence of policies and procedures to guide providers in conducting investigations, inconsistent and poor practice has crept in, and in some cases, this has led to the client retracting an allegation.

There is also significant overlap in the review mechanisms for incidents. These are applied inconsistently by providers. Some serious incidents are not consistently subject to formal review, as warranted.

5.1 Difference between an investigation and a review

The KPMG review described the framework for investigation and review as:

… a patchwork of processes with varying levels of detail and maturity. While quality of care and quality of support reviews provide the primary formal review mechanisms, these do not apply across all DHS divisions. Divisions and service streams have local processes for undertaking reviews and investigations; however, these are ad hoc and not informed by clear policy guidance and minimum standards.

The KPMG review highlighted that the distinction between investigations and reviews is not clear in departmental policies and procedures, and that there was significant confusion among stakeholders about their purpose and differences.

The KPMG review noted the difference between investigations and reviews in the department context:

The primary purpose of an investigation is to gather admissible evidence for any subsequent action… [and it] can also result in prevention and disruption action. In the DHS context, investigations may relate to a breach of the DHS standards or staff ethical standards rather than a breach of the law. In contrast, incident reviews do not have a focus on substantiating breach and disciplinary action. The critical incident reporting instruction refers to incident review as a process by which ‘incidents should be systematically analysed and ongoing change implemented in order to prevent similar events from occurring’.

The lack of understanding of the distinction between investigations and reviews was reflected in evidence received during my investigation. For example, in part 5 of the incident report form, there is a tick box for the delegated management representative to answer ‘yes’ or ‘no’:

Has an investigation been initiated?

This is in a section that includes other considerations relating to staff-to-client assault or abuse in care incidents.

At interview, an executive director of the department said that if the incident report stated that an ‘investigation’ had been initiated, this would most likely refer to a disciplinary investigation, which is consistent with the context of the question on the form.

Fifty-four category 1 incident reports reviewed by my office indicated an investigation had been initiated. While a majority related to allegations of staffto-client assault, others related to clientto-client assaults, illness and injury, which would be unlikely to lead to a disciplinary investigation against a staff member.

When asked by my officers about local service-level investigations, the East Division provided a broad definition of ‘investigation’:
For the purposes of this response, the term ‘investigation’ is understood as the range of complementary activities that are undertaken by the Division, funded organisations and relevant stakeholders to ensure timely and effective responses to reports of abuse …

In response to my draft report the department stated that it investigates both incidents and disciplinary matters and that the ‘purpose of both is to gather and analyse all facts and evidence objectively affording all parties natural justice’.

5.2 Incident investigation Investigations framework

The form anticipates that investigations will be initiated by service providers. However, with the exception of investigations related to staff misconduct, the department does not have an investigation framework to document the purpose of investigations, accountability for determining when an investigation will be initiated, or minimum standards for conducting investigations.

The Deputy Secretary of the East Division advised:

In the absence of an explicit ‘investigation policy’, the East Division DHHS’ practices of managing and reporting the most critical incidents impacting upon clients that ‘threatens health, safety or wellbeing’ are supplemented by a range of departmental policies and protocols including the Critical Client Incident Reporting Instruction [CCIMI], Reporting Allegations of Physical or Sexual Assault [RAPSA] … Promoting Better Outcomes – systemic Improvement Policy: Managing and Reviewing Adverse Events; and the Disability Worker Exclusion Scheme.

Division Deputy Secretaries advised my officers that, in practice, staff are encouraged to use the Disability Service Commissioner’s Investigations: Guidance for good practice: Resource paper for disability service providers, Investigation of incidents of alleged staff-to-client assault or unexplained injury. The guideline states:
Investigations of serious matters where the alleged victim is a person with an intellectual disability or cognitive impairment must follow accepted best practice. A person-centred approach is essential. Best practice involves:

• establishing the framework of the investigation
• providing procedural fairness
• ensuring that appropriate matters are referred to police
• using an independent third person where appropriate
• appropriately determining investigation outcomes.

This guidance relates only to staff-to-client assault and unexplained injury and does not discuss:

• investigations into other incidents, such as poor quality of care or client-to-client assaults
• the department’s expectations for investigations (for example, there is no requirement that a report be produced to the department at the end of an investigation, and no guidance as to how recommendations from a report will be implemented or monitored).

The guidance has not been formally endorsed by the department and is not available on the Funded Agency Channel, a central online location used by service providers to source departmental information.

Poor investigative practice

The DSC guidance states that the need for it arose out of the DSC’s complaints resolutions and review of category 1 incidents of alleged staff-to-client assault or unexplained injuries. This work ‘revealed inconsistent approaches and standards applied in investigations conducted or commissioned by service providers’, as well ‘as significant gaps or poor practice in investigations, including instances when:

• the client was not interviewed, or interviewed only after a considerable amount of time had passed since the incident
• insufficient attention was given to the situation and experience of the client
• staff interviews were conducted in public, in a group setting
• there was an inappropriately limited scope to the investigation’.

My review of incident reports revealed inconsistent approaches to investigations and poor investigative practice, including by service providers. This is illustrated in Mr W’s story below.

Poor investigation practices were also identified in an external investigation conducted in response to an incident report examined by my office:

The DSC guidance highlights the impact of poor practice:

The limitations and shortcomings of some responses and investigations may compromise the wellbeing and safety of clients. DSC has reviewed many incidents that have not been investigated consistently, with adequate rigour, leading to missed opportunities for practice and service improvement, or for redress, and the risk of recurring abuse.

In its submission, an advocacy group put the view that victims should be at the centre of investigations:
We have noted one of the deficiencies in disability sector practice is to take a focus on ‘allegations’. This concentration on allegations becomes a truth finding exercise. We can learn more by asking ‘how are investigations experienced by victims?’ We should be designing a system that keeps the victim at the centre of all responses, and ensuring that formal investigations by the justice system occur when required.

External investigations

In some cases, there may be a need to engage independent investigators with special expertise, for example:

• complex investigations
• where there is a pattern of failures
• where there is a risk of bias if the investigation is conducted locally
• where there are repeated allegations against a staff member
• if the provider lacks the resources to conduct an investigation.

There is no departmental guidance as to when a service provider or the department should initiate an external investigation. In the phase 1 report the Assistant Director of Residential Services and Complex Support said, ‘I don’t often … engage an external contractor [unless the department is] really short of staff’.

The four departmental divisions described different triggers for external investigation:

• North: in response to a complaint in relation to an incident; where there may be a conflict of interest
• South: to mitigate an actual or perceived conflict of interest; where there is a pattern of failures; concerns about the outcome of the service provider’s review
• East: particularly complex incidents; if it involves a staff member; if it involves criminal conduct where specialist expertise is required
• West: incidents that present significant risk.

As set out in phase 1, it is not clear why some incidents were subject to external scrutiny and others were not. Of nine investigations conducted by one CSO and analysed by my officers, five were investigated externally even though all involved allegations of serious assault and vulnerable residents.

The question raised by this variability in the use of external investigators goes to the quality of the investigation and the outcomes for the person involved.

Had Ms P’s story on page 54 not been subject to external investigation, the conduct of the staff member is likely to have continued unchecked.

5.3 Incident reviews

The department uses a number of review mechanisms to assess and prevent recurrence of critical incidents.

Quality of Support Reviews

QoSR are mandatory for all reports of staff-to-client assault and are discretionary for incidents of unexplained injury, although encouraged.259 The QoSR is:

… a mechanism for ensuring that the responses taken by disability service providers following an allegation of staff-to-client assault are effectively reviewed, and that appropriate processes are established, or strengthened, and maintained, to reduce risk of occurrence of incidents in the future.

The South Division stated that a QoSR:

… is a review of the actions taken following an incident to assess how the client’s health, safety and wellbeing needs were responded to …

Despite this, QoSR do not apply to other incidents such as client-to-client assaults, dangerous behaviour, self-harm, poor quality of care or suicide.

Table 4 shows the number of assaults by departmental division in February and October 2014 that were subjected to a QoSR (staff-to-client assaults) and the number that were not (other assaults).

QoSR apply to unexplained injury incidents, although this is discretionary. A QoSR in this case is used to identify the potential cause of injury and whether the response to the person was adequate. The story below illustrates a model of a QoSR.

QoSR are not conducted for explained injuries. In the following case, the incident was reported as an unexplained injury and recommended for a QoSR. However, the service provider subsequently said the incident was witnessed and therefore was explained. The QoSR was thus deemed unnecessary, despite the cause of the injury and the adequacy of the actions taken by the service provider to prevent recurrence requiring review.

In order to meaningfully assess how needs were met, reviews need to be conducted within a reasonable period of time. According to the department’s checklist, a QoSR should be completed within 60 days. However, analysis for phase 1 showed that 71 per cent did not meet this timeframe. The department has recently finalised some outstanding QoSR for October 2014.

The lack of timeliness was raised by the DSC as an issue of concern. When asked about the effectiveness of the QoSR, the DSC said:

… it seems extraordinary that the time taken to undertake Quality of Support Reviews can seem so breathtakingly past the event as to question the relevance of it being vaguely contemporary at the time of its delivery … but it’s their [the department’s] system.

The analysis for phase 1 also demonstrated that actions recommended in the QoSR were not followed up despite these being necessary to address client safety and wellbeing.

In response to my draft report, the department stated:

The department acknowledges that there have been issues with the timeliness of completion of some QoSR and is working to address this issue.

Adverse event reviews – promoting better outcomes

Other reviews are conducted under the department’s Promoting Better Outcomes – Systemic improvement policy and procedure. The purpose of such reviews are to:

… assist in the effective management of all adverse events and promote a learning culture and continuous improvement in service quality.

Under the policy, an adverse event:

… is the overarching term used to cover a collective group of events and includes: an incident, issues or events identified in a complaint or by a notification in relation to the provision of services or supports by a disability service provider.

When an adverse event is identified by the service provider or the department, an initial desktop assessment of ‘client files, incident reports, correspondence from families, and correspondence from others including professionals’ is conducted.

According to the policy, the desktop assessment should assess the risk level of the event. Risk level is determined by the likelihood of occurrence or reoccurrence, in addition to the consequence of the event, to the service, client, and possible media attention.

When asked how often desktop reviews occur, divisions were inconsistent in their responses. For example, one division advised that all category 1 incidents are subject to a desktop assessment; another advised all registered critical incidents (category 1 and 2) include a desktop assessment.

Under the policy, all desktop assessments with a risk level of critical, high and medium are referred for a practice review. A practice review includes risk and root cause analysis. It examines available information to determine how often a specified adverse event is likely to occur, the potential impact of its consequence, and the factors that contributed to the event.267

It is evident that there is confusion about the use of adverse event reviews and QoSR. In response to enquiries by my officers, divisions identified adverse event reviews and QoSR as addressing the same issues. For example, the South Division stated:

Quality of Support Reviews are the more standard method of conducting reviews in relation to an incident report for adverse events.

For the phase 1 report, the department’s central office advised that 10 adverse event practice reviews had been conducted in the past five years for the whole department. To give this perspective, there were 2,120 category 1 reports in 2014.

5.4 Investigation of incidents in SRS

As set out in phase 1, the reporting requirements for SRS are quite different from CSO and DAS. Incidents in SRS are not subject to the department’s standard investigation and review mechanisms.

In response to a prescribed reportable incident notification, an AO does not conduct an investigation. The AO records details of the incident and the actions taken by the SRS and makes an assessment as to whether the SRS is compliant with the Act, standards and regulations.

As part of this process the AO may undertake an unplanned site inspection or review documentation in relation to the SRS. As outlined in phase 1, this does not occur on all occasions, even in relation to allegations of sexual assault, if the AO believes the SRS has responded appropriately.

Where there is an unplanned site inspection, the AO does not investigate the consequence for the resident but focuses on SRS compliance. If issues of noncompliance are identified, follow-up site inspections can also be undertaken.

If there is a notification from a Community Visitor or a complaint from a resident, family member or health professional, the AO may also undertake unplanned site inspections, interview people and review SRS documentation to respond to the concerns. Again the purpose of these actions is to determine the SRS’ compliance with the Act, standards and regulations. In response to my draft report, the department wrote:

In addition to conducting inspections to monitor supported residential services’ compliance, authorised officers focus on resident safety and wellbeing. This includes ensuring the proprietors has met their legislative obligations in addition to ensuring the proprietor is managing the incident appropriately and confirming all residents’ safety and wellbeing.

The department does not direct SRS to undertake investigations into incidents. In response to my draft report, the department stated:

Formal investigation of criminal incidents in supported residential services is the responsibility of Victoria Police. The department complements the role of Victoria Police by identifying risks to resident safety and wellbeing, identifying compliance breaches, accessing funding to facilitate counselling/support for residents, building the capacity of proprietors to use incident records to interrogate trends and linking the proprietor, staff and residents in with the appropriate services.

The department undertakes planned monitoring of SRS, including targeted compliance reviews, but again the purpose is to monitor and review a proprietor’s compliance with the law and regulations rather than to investigate incidents and its impact on the resident. In response to my draft report the department states ‘all targeted compliance reviews monitor SRS compliance with the objective of positive outcomes for residents’ safety and wellbeing’.

The number of reviews undertaken in relation to an individual SRS depends on its level of risk, but each must undergo at least one planned targeted compliance review per year, with high-risk SRS required to undergo at least four.

The department has advised that it is developing a new client incident management system and, as part of this process, is considering the viability of including SRS in the incident reporting model.

More generally, regulation of SRS has been inadequate in the past and the subject of attention over the last few months, including from this office in my investigation into Mentone Gardens (an aged care SRS). In response, the department has reviewed its enforcement policy and is developing an updated complaints management procedure, including a process for analysing and reporting on complaint data. All these measures will provide greater confidence in this sector to support the health and wellbeing of residents. It is too soon to evaluate the effectiveness of these responses.

5.5 The TAC’s response to incidents

Incidents in CSO funded by the department and involving the TAC clients are subject to the same investigation and review mechanisms as other people with disability in these facilities. Incidents in TAC facilities and CSO with no relationship to the department are only subject to review by the TAC.

My investigation examined the TAC’s response to the notification of serious incident reports involving TAC clients in CSO and the TAC facilities.

Systemic review

In October 2014 the TAC established the Client At Risk Taskforce (CART) as part of the TAC Safeguarding Clients at Risk project to examine all alleged abuse concerns, including serious incident reports, involving TAC clients. This taskforce also coordinated welfare checks on vulnerable clients.

According to the TAC, in response to any serious incident report:

… the CART working group reviews the nature of the incident and identifies systemic issues, examines the root cause of the incident and develops a strategy to address any issues arising.
…
Depending on the nature of the incident and actions documented in the serious incident report, the TAC may conduct multifaceted interviews (client, provider and if necessary the client’s family and the support workers) and a review of the provider’s work practices and policies to ascertain the circumstances surrounding the incident and the events leading up to the incident occurring.

In addition, serious incident reports are also reviewed by the Health and Disability Strategy Group (HDSG) to determine whether any follow-up action is required. According to the TAC, the HDSG:

… works collaboratively with a service provider reporting an incident in order to resolve any issues, including reviewing incident circumstances and obtaining information about the service provider’s policies and work practices which are in place to address the current incident and procedures in place to prevent future reoccurrences of a similar incident.

In November 2014 the TAC implemented an ‘alleged abuse register’. The register captures not only serious incident reports received from service providers but any type of abuse concerns that have been raised by TAC clients, family/ friends, service providers, health or legal professionals, TAC staff, third parties and any other person or agency. This register was discussed earlier in my report.

The CART working group, which consists of representatives across the TAC including the Claims Branch, Forensics, Service and Review, Corporate Legal, Health and the Disability Services Group, meets weekly to review any alleged instances of abuse, including serious incident reports received from service providers.

My officers examined the minutes of the CART meetings. The minutes record the CART’s decision making in response to each concern regarding alleged abuse and the actions taken by the TAC. The minutes also record the actions taken by the TAC in relation to each case, with some noted for ongoing review by the CART until agreement is reached to finalise the matter.

In response to a number of allegations of abuse on the register, the TAC requested a detailed account from the disability service provider in response to the concerns raised. Other actions taken by the TAC included:

• visiting the TAC client to check on their safety and welfare
• meeting with the service provider to discuss the provider’s response to the concerns raised
• reviewing the investigation report completed by the service provider
• contact with the client’s treating health professionals to ensure appropriate medical care is in place
• arranging contact with other agencies such as OPA.

The following is an example of the actions taken by the TAC in response to a report of a client allegedly being verbally abused by a disability worker at a shared supported accommodation facility:

The CART working group also considers whether there are any systemic issues arising from an incident. To date, the TAC has identified some concerns regarding disability workers requiring the TAC clients to pay for incidental expenses, such as the disability worker’s lunch while on an outing. The TAC advised that these issues have been addressed on a case-by-case basis, as well as systemically, by writing to all their registered service providers to make them aware of any issues and the required standards.

Investigation and review guidelines

My officers requested information from the TAC about any practice instructions or guidance it provides to TAC-registered service providers concerning the investigation of serious incidents, such as physical and sexual abuse. In response, the TAC stated that it:

… does not provide practice instructions or guidelines regarding the investigation of serious incidents, however, the TAC requires all registered service providers to have and use a fully documented incident reporting procedure.
…
The TAC may provide advice to service providers about their investigation processes when they feel that an investigation undertaken by a service provider has not been adequate, or where requested by a service provider.

The TAC was also asked what steps it takes to ensure the adequacy of investigations undertaken by service providers. In response, the TAC stated:

When an incident report is received that the TAC deems as requiring further review, TAC will obtain all information from the provider and related parties about the incident, including the investigation report.

The TAC assessment of an adequate investigation by the provider is on the basis of:

• the current and ongoing safety and wellbeing of the TAC/CIP client
• the adequacy of the disability service provider’s response, including actions taken to prevent future occurrences
• all related parties are satisfied.

My officers reviewed the TAC’s response to the notification of serious incident reports since January 2013. Of the 17 reports received from TAC-registered providers, two were the subject of separate scrutiny by the TAC. In both cases, this involved the TAC requiring the service provider to respond to a series of questions about the incident and the actions taken in response.

In one of these matters, the TAC arranged for a support coordinator to visit the TAC client and conduct a welfare check to determine the client’s safety and to discuss any ongoing concerns

The department’s response to earlier reviews

As set out above, there have been a number of reviews in the past decade that have raised similar concerns in relation to incident reporting and investigation in disability services. Most recently, the department commissioned KPMG to review the end-to-end incident reporting and management process for the whole department. KPMG reported to the department in December 2014.

KPMG found that the department is failing to meet the stated aims of the CCIMI and to adequately mitigate risks arising from
critical incidents in disability, as well as child protection and youth justice. KPMG made 21 recommendations involving policy, practice and system reforms to strengthen the incident reporting and management framework.

In October 2015, I asked the department to provide an update on the status of its implementation of the KPMG recommendations. The department stated:

The [KPMG] review found that the Department of Human Services incident response and management system requires fundamental reform. The most viable option for the future design of the system is to increase the department’s focus on high risk incidents and increase service provider accountability for managing lower risk incidents. More robust agency management is a critical prerequisite to successful reform of the system.

The review recommendations include a risk-based reporting system that focuses effort and resources on the most serious critical incidents, improved oversight mechanisms, including the use of audits and benchmarks, greater alignment between agency management, monitoring and regulatory functions and a contemporary integrated information management system for incident reporting, recording, monitoring and analysis.

According to a department executive director, following significant consultation, the department has developed key specifications for a redesign of the incident reporting and investigation business process. It is now seeking responses to these specifications and expects this process to be complete by April 2016.

According to the department, the redesign of the business process includes considerations for incident reporting, escalation and investigation, review mechanisms for assessing the responses to and management of critical incidents, and an issues management framework. This framework includes a review of current instructions, policy and procedures.

The department advised that it also proposes to introduce a new electronic reporting and management system and to develop a strategy that seeks to include data mining and predictive analytics capabilities. As stated by the department’s former Executive Director of Service Design and Operations, the building of this will need to include the ‘right benchmarks, the right data, the right system learning capacity’.

In the meantime, the department stated it has improved its data collection and analysis:

The department has strengthened its monitoring and interrogation of critical incident data via the application of business intelligence product called Qlikview. Known internally as CIA (Critical Incident Analysis), this tool provides dynamic searches and analysis to occur by agency, incident location, address of clients, age of client, name of staff member reporting, incident type, client name, and many other dimensions. The implementation of this tool and exposure of regularly refreshed data to divisional COSI staff has resulted in significantly improved data quality over a number of fields. The more robust data provides higher confidence in identifying previously hard to discern patterns of incidents.

The provision of improved quality data has allowed the department to start linking critical incident data from CIA to other data in a manner which allows examination of the relative rate of over and under reporting from particular funded agencies and services.
Performance, Regulation and Reporting Branch has developed a strengthened regulatory policy, including risk-based regulation and the introduction of unannounced audits.

An executive director of the department stated that the collection of data from incident reporting has been a big change for the department, but there is still room to improve. He said:

The big change we have is rather than collecting that data manually, it’s actually all live, it’s now there but certainly one of the issues that we have been concerned about is the ability for us to be able to link incident reports to outcomes. … With some of our systems we can look to do that manually but it’s very laborious … but in order for us to be able to assure ourselves across the system about how incidents are being finalised and closed off and we know the outcome and we are able to then measure those at a system level. That’s the critical element of the new system.

I understand the new Funded organisation performance monitoring framework, to be implemented in January 2016, will include real-time access and sharing of data between staff to increase risk monitoring and identify funded agencies that are failing to meet requirements of the department’s service agreement.

The department also advised my office of a number of initiatives recently implemented as part of a two-year program of work including the update of QoSR and the adverse event reviews or Promoting Better Outcomes policy and procedure. The department advised of a number of committees aimed to strengthen safeguards for people with disability.

With the department undergoing a notable redevelopment during my investigations, including new policies, procedures and the amendment of current practices, it is yet to be seen whether these changes will have the desired outcome of ensuring client safety and wellbeing. It is necessary to monitor these changes and review their progress upon implementation.

In response to my draft report, the department stated ‘my report represents only a small proportion of work being undertaken by the department. There is [a] significant program of work underway that has not been included’. The department further stated:

The department is committed to strengthening safeguards for people with a disability accessing services provided, funded or regulated by the department.

7. Other issues

7.1 Workforce

My investigation has not examined workforce issues, such as qualifications and training, as these were not part of my terms of reference. However, I note these are a focus of the parliamentary inquiry, and it is impossible to meaningfully discuss reporting and investigation of abuse in the sector without mentioning this issue.

Workforce issues are evident in the significant majority of the cases set out in this report. These include the need for training in relation to incident reporting, human rights, the code of conduct, person-centred planning and inclusive communication. It is also an issue that the code of conduct applies only to departmental staff, and that coverage of workers under protected disclosure legislation is unclear in many cases.

In its interim report, the parliamentary inquiry noted the different requirements for disability workers employed by the department – who are required to have, at a minimum, a Certificate IV in Disability – and other workers in the system who require no minimum level of training. As HACSU pointed out in its submission to the inquiry, there are currently no statewide entry-level or mandatory qualifications within the sector.

A manager of Community Visitors also raised concerns with my office about the qualifications of SRS staff, as well as the staffing ratio, training and issues with English language proficiency:

One of the key areas of concern to CVs is the level of staffing and their qualifications in SRS as the staff/resident ratio is 1:30 and the only mandatory qualifications are first aid training and one staff member with a Cert III who undertakes the role of the Personal Support Coordinator.
…
[There are] no English language requirements for SRS staff so some staff would not be able to write an incident report even if they needed to and in some instances would not even understand if a resident told them that they had suffered abuse or violence so it is our view that abuse is systematically under reported in PL [pension level] SRS.

7.2 Disability Worker Exclusion Scheme

The Disability Worker Exclusion Scheme was implemented by the department in September 2014 as a way to ‘protect clients and staff’ from people who are found to be ‘unsuitable’ to work with clients of disability residential services.

Staff who are considered unsuitable by way of serious misconduct are placed on the DWES list. Service providers must notify the DWES unit of any incidents that would meet the criteria of the scheme so they can be investigated. Further, as part of residential service pre-employment checks, service providers must check that prospective employees are not on the list.

Phase 1 of my investigation highlighted a number of impediments to the scheme including the conflict between the exclusion scheme, departmental obligations under its industrial agreement and obligations under the Protected Disclosure Act. Further, the scheme only applies to staff working in residential services and does not extend to staff working in services such as individual support, day programs or staff in SRS.

As the scheme was introduced in September 2014, it was not in place for the February 2014 incident reports I examined, and had just commenced for the October 2014 incident reports. However, I note that DWES is able to consider notifications for workers who resigned or were terminated for conduct within the DWES criteria, prior to the commencement of the scheme.

8. Independent oversight

In my phase 1 report, I noted my concern that there is no single source of information or common framework for the reporting of abuse in the disability sector. Several agencies have responsibility for dealing with abuse against people with disability in Victoria. These agencies have different responsibilities regarding how and to whom they are required to report abuse, the types of abuse they can deal with, and their approach when dealing with abuse allegations.

The complexity of the reporting and oversight arrangements means that the response to a serious incident is determined by the location of the person with disability within the system, rather than the person’s vulnerability and the nature of the allegation:

• Allegations of abuse within DAS and/or funded CSO facilities are reported in writing and faxed to the department as ‘critical incidents’ in accordance with the CCIMI. Critical incidents may be subject to review by the department.
• Allegations within SRS are reported orally to an AO as ‘prescribed reportable incidents’. They are not routinely reviewed by the department. While the department has been empowered to take infringement enforcement action against an SRS since the implementation of the SRS Act in 2012, the department is yet to use this power. Under the SRS Act, Community Visitors may enter any part of an SRS premises, speak to residents, ask questions of staff in relation to any resident’s care and look at any records required to be kept under the Act.
• While the TAC is notified of incidents in TAC-registered facilities the TAC has not identified a requirement to be notified of an incident involving a TAC client living in an SRS.
• The DSC must be notified of category 1 incident reports relating to staff-toclient assault or unexplained injury only.
• Matters concerning serious abuse and unexplained injury reported by Community Visitors must be notified to OPA.

The complexity of the reporting and oversight arrangements mean it is not possible to say with any certainty what the scope of the problem is and therefore it is difficult to address systemic issues to prevent abuse.

The phase 1 report highlighted the example of the New South Wales disability reportable incidents scheme, which is the only legislated scheme of its type in Australia. The scheme has now been in operation for a year and further information about its impact is set out below.

54 per cent) involved allegations of employee-to-client incidents. Thirty-five per cent of notifications (167) involved allegations of client-to-client incidents and 10 per cent (51) involved allegations relating to unexplained serious injuries – including fractures, extensive bruising and burns.

Of the 253 notifications the NSW Ombudsman received about employee-to-client reportable incidents:

• 98 (39 per cent) involved allegations of physical assault
• 50 (20 per cent) involved allegations of neglect
• 29 (11 per cent) involved allegations of ill-treatment
• 28 (11 per cent) involved allegations of sexual offences.

9. Conclusions

The evidence in this report needs to be considered alongside the conclusions of phase 1 of this investigation, which examined the effectiveness of the statutory oversight systems for reporting and investigating abuse. That investigation highlighted the fragmented, complicated and confusing nature of oversight arrangements – where the system’s response was dictated not by the vulnerability of the individual, but by which service provider they happened to access.

This focus on process – rather than the person directly affected by the abuse – is painfully evident in phase 2 of the investigation, which delved into hundreds of individual incidents. The voice of the person affected is largely absent; enormous numbers of reports flow through the hands of a multitude of officials and the victims’ voices remain unheard.

Disability covers a wide spectrum, but people who are unable to care for themselves require the most protection. The evidence of both phases of this investigation strongly indicate that advocacy to support decision making and the provision of the robust safety nets, are the cornerstones of a respectful disability framework.

The review of these individual reports also reinforces a key finding of phase 1 – that we do not have a clear picture of the scale of abuse in the disability sector in Victoria. There is no single source of information or common framework for reporting abuse. Agencies have different responsibilities in relation to the types of abuse they can deal with, and different approaches to dealing with abuse allegations. There are even different approaches within the same agency, depending on where the abuse occurred or which service provider was involved at the time it occurred.

The voices coming through in this investigation were mostly those of the families or other advocates of people with disability, as well as disability workers in the system who have witnessed abuse. Their experiences are characterised by fear. Family members reported being afraid that if they complained, services or funding would be withdrawn. Workers were afraid of losing their jobs, or otherwise becoming victims themselves. And not without reason – this report includes cases where the reporter of alleged abuse, rather than the alleged perpetrator, suffered consequences for reporting.

The examination of individual incidents inevitably focused the attention of this investigation on the detailed processes of the department, which yet again highlighted its shortcomings. It is clear from the evidence that the current system of incident reporting by service providers to the department fails at every level. It is plainly not fit for purpose, either in its primary purpose of learning and prevention, or its secondary aim of ensuring ‘client safety and wellbeing’.

These concerns are not new. As noted on page 42, there have been numerous reviews over the past decade, from my own office and elsewhere, that have raised similar concerns. For much of the past decade, review after review have confirmed the system is broken.

In response to my draft report the department said:
The department is committed to ensuring that people with a disability accessing disability services or living in supported residential services are protected from abuse and neglect. To this end, the department is implementing a program of work to strengthen safeguards for people with a disability and your final report will further inform this work.

While the department deserves some credit for finally taking significant steps to fix its incident reporting system, the time it has taken to do so is lamentable.

The specific issues are set out below.

Systemic issues with departmental incident reporting and investigation

The process is not person-centred

A response to critical incidents involving people with disability should be person-centred and rights-based, where the client’s ‘wellbeing and safety, both physical and psychological, underpins the actions taken’. However, the overwhelming theme from my investigation was that the department’s incident reporting and investigation system is not person-centred.

There are clear concerns in the disability sector that the rights of people with disability take ‘a back seat to the recording, sharing and investigation of incidents that were deeply personal’; that the department’s focus is on ‘report completeness, rather than substantive issues such as what caused the incident’; and that incident reporting is an administrative task, rather than a meaningful risk management strategy. This is evidenced by the department’s stated purpose of reporting, the incident report form itself and the investigation and review mechanisms.

The department’s investigation and review mechanisms are not person-centred. Whether they are initiated is determined by the nature of the incident, rather than the effect of the incident on the person with disability.

The purpose of reporting

The department’s stated purpose of incident reporting is to ‘learn from events and, if possible to prevent their recurrence’. Ensuring ‘timely and effective responses are taken to address immediate client safety and wellbeing’292 is described as one of a number of aims.

The focus on learning over client wellbeing is misguided. It has the effect of reducing incidents to mere reports, data and information, rather than an event that may have caused severe trauma or threatened an individual’s health, safety and wellbeing.

While learning from incidents is clearly important, ensuring immediate and future client wellbeing should be a purpose equal to learning from and preventing incidents. This sends a strong message to staff about the importance of a person-centred approach to incident reporting. In response to my draft report, the department stated:

The instructions state in response to the question ‘why report’: The key reason for reporting incidents is to learn from them and, if possible, to prevent the future occurrence of similar incidents. Without a detailed analysis of incidents affecting clients, we may fail to uncover problems or situations that are potential hazards to clients or staff which could have been avoided or mitigated.

The instruction list the eight aims of client incident reporting and management ... five of the ... eight aims ... relate to clients. The department considers it is paramount to ensure individual client wellbeing and to ensure learning from incidents to prevent potential future recurrence.

The incident report form

The design of the incident report form, which is also recommended by the TAC, does not support a person-centred approach. There is no opportunity in the form for the voice of the individual or their account of the incident to be reflected. Rather, the form is completed by various service providers and departmental staff.

Research conducted by National Disability Services (NDS) relating to what service providers can do to make people with disability feel safe supports the need for incident reporting to include the voice of the person with disability:

Listening ranked highly again as a way for people to feel safer and more confident, with emphasis on active listening (‘not just listening but listening so they believe you’) and being taken seriously … Several groups emphasised the need to listen to the person and not default to family members (‘I’m sick of not being heard. They ask my family or case worker. They don’t listen to me.’)

There is no provision for recording contextual information about the individual, such as their disability, medical background, support needs, other services and relationships to family or advocacy supports and the need to notify them. This is despite the value of this information when determining how to respond to the incident. A lack of information can have the effect of isolating the incident, without any consideration of the further consequence in the life of the person with disability.

Information on the incident report form is critical: it is the basis on which the department makes an initial assessment as to whether the provider has adequately responded to the immediate needs of the client, and if further follow-up action, review or investigation is required.

Failure to escalate incident reports

My investigation identified examples of failure to escalate incident reports or to communicate with relevant parties as required. For example:

• referrals to CASA, DSC and the Senior Practitioner did not always occur as required
• independent third persons were not always engaged to support clients to make complaints of assault
• Community Visitors were not always informed when SRS reported allegations of sexual assault.

In some cases, this meant that essential supports were not provided to people with disability reporting serious allegations of abuse, or that incidents were not subject to appropriate scrutiny or investigation. I commented in my phase 1 report on the gaps and fragmentation that pervade the system of oversight as it is presently constructed. It is simply unacceptable if the mechanisms that are in existence are not even invoked to provide meaningful oversight.

Failure to learn from incidents

The evidence to this investigation strongly indicates that the purpose of reporting as set out by the department in its CCIMI is misguided, in that it preferences process over client wellbeing. But the department also fails to meet its own articulated purpose: to learn from incidents. It is essential that this learning is applied at the service provider level – where the abuse allegedly occurred – so that staff can learn from the incident and a positive reporting culture can be encouraged.

Previous reviews of the incident reporting and management system have also questioned whether the department achieves this aim, stating that feedback to service providers is non-existent or sporadic; that despite ‘significant effort expended by agencies to provide vast amounts of information to DHS in incident reports … [there is] almost no feedback of trends, performance, or patterns identified from that information’. This was consistent with the evidence in my investigation, which found, at worst, there was little or no feedback given to service providers; at best, feedback was not recorded.

The current, archaic paper-based reporting system is problematic on a number of fronts: for reporting incidents, for recording and retrieving systemic data, and for improving services. The incident report form cannot be updated; instead, it records the response to an incident at a point in time and is designed for one-way flow of information. The failure to adopt modern technology in this area is a sad indictment of the lack of priority given to the rights of people with disability.

The investigation and review framework

There is a lack of understanding across the department and service providers about the distinction between investigations and reviews. The KPMG review stated that an investigation by the department or service provider should seek to obtain evidence to establish a breach of standards by a worker. The focus is therefore on the conduct of the worker involved. A review examines incidents systemically to learn from and prevent similar events occurring. Understanding the distinction is imperative given their different purposes. A failure to appreciate the distinction can lead to the destruction or prejudice of evidence for an investigation, or the failure to examine the cause of an incident for a review.

The department’s most common review mechanism is its QoSR. The arrangements for QoSR reflect my phase 1 conclusion that the response to an allegation of abuse is not determined by the nature of the abuse or the vulnerability of the victim. A QoSR is initiated depending on the nature of the incident, rather than the effect on the person.

QoSR are currently conducted for staff-to-client assaults and unexplained injuries. The former involves an allegation against a worker and the latter involves a need to determine the cause of an injury, arguably to ensure it was not caused or contributed to by a worker. Incidents that do not involve workers, such as client-to-client assaults, dangerous behaviour, self-harm, poor quality of care or suicide, are not subject to a QoSR. This again underscores the bias of the system towards preserving its own structure and process and away from the wellbeing of clients. A person is no less injured or at risk because the perpetrator is not a staff member, and the opportunity to examine the cause, contributing factors or any preventative measures is lost if these incidents are not subject to review.

My phase 2 investigation also identified that many QoSR were not completed in a timely manner, thus limiting the review’s capacity to contribute to client wellbeing.

There is also extensive overlap between the types of reviews that the department can conduct, and it is unclear which review is more suitable or preferable. This results in inconsistent application of the review process to similar incidents by the different divisions. There is a need for the department to be clear about what, when and how incidents are reviewed, and to ensure the review process also applies as necessary to client-to-client assaults, dangerous behaviour, self-harm and suicide.

My investigation found that the department does not have a documented investigations framework except for investigations into staff misconduct. In the absence of such, divisions and service programs have developed local, ad hoc processes for undertaking investigations. With no endorsed departmental policy framework, there is no clarity as to the purpose and process of an investigation, who undertakes it, and how the client is supported through it.

In the absence of a guide for providers in conducting investigations, inconsistent and poor practice has crept in. Poor practice is especially apparent in relation to engaging people with disability in the process, in particular staff interviewing victims without the presence of an independent advocate, poor record keeping and lack of impartiality. In some cases, these issues resulted in the person retracting their allegation.

There is much available guidance on responding to allegations of abuse in the sector, such as the Office of the Public Advocate’s Interagency guideline for addressing violence, neglect and abuse (IGUANA); the Disability Services Commissioner’s Investigations: Guidance for good practice; the department’s Responding to allegations of physical or sexual assault (RAPSA); the department’s CCIMI; as well as research and papers by advocacy groups, such as NDS. However, there is an urgent need for the department to adopt a clear, consolidated set of policies and procedures for both investigations and reviews.

Systemic issues in reporting abuse

A positive reporting culture does not exist

In order for allegations of abuse to surface, for victims to be supported, and for perpetrators to be dealt with, clients, families, advocates and staff must feel supported and confident to raise allegations of abuse – this is a primary prevention strategy.

However, my investigation identified a systemic failure by those working in the system to report abuse, citing:

• intimidation
• fear of reprisal against the reporting staff member, the client and/or their family
• concern about the reputation of the service provider
• unease about the impact on the subject of the allegation
• frustration with the significant paperwork associated with reporting
• a lack of capacity to identify abuse.

My investigation also identified a tension between the department disciplining workers who provide a delayed report, and the need to encourage workers to report allegations of abuse. While timely reporting is integral to ensuring immediate needs are met, imposing penalties on an individual worker for making a late report has the effect of discouraging staff from reporting incidents at all. In some cases examined by my office, the reporter was punished for providing a delayed report, but there were no consequences for the subject of the allegations.

The evidence in this investigation is inevitably limited by the points in time of the incidents reported and reviewed. There is some evidence of recent work being done in the disability sector to develop a positive reporting culture, a culture in which those working in the system respect the human rights of individuals with disability to have a voice and be free from abuse, where the behaviour you walk past is the behaviour you accept, and where incident reporting and management is recognised as a genuine opportunity for continuous improvement. But once again, the fragmented nature of the system makes it difficult to assess and monitor the effectiveness of these steps or determine the extent of the work that needs to be done to embed such a culture across the hundreds of service providers who operate in Victoria.

Lack of protection for whistleblowers

There is a compelling need to provide a safe way of reporting abuse that addresses people’s fear of repercussions. Whether such fears are real or perceived, there is no doubt they contribute to significant under-reporting. The protected disclosure legislation is intended to protect the identity of whistleblowers and prevent detrimental action against them; however, its protections do not extend to all workers in the sector. Extending these protections to all aspects of the system should be considered.

Systemic gaps

Inadequate oversight of incidents in supported residential services

My investigation has again highlighted the complexity of the reporting and oversight arrangements for different parts of the disability sector, where the response to a serious incident is determined by the location of the person within the system, rather than their vulnerability and the nature of the allegation. Of particular concern is the reporting and oversight of incidents in SRS. In my view, the oversight here is inadequate and the department is failing to fulfil its role as a regulator.

The department has not used the infringement enforcement provision since it received this power in 2012. Instead, the department says it uses compliance instructions, suspension of admissions and revocation of registration in response to breaches of the SRS Act relevant to safety and wellbeing.

It is evident that the work of the department’s authorised officers is focused not on individual wellbeing but on compliance. While SRS are privately operated and not funded by the department, the department’s role as a regulator under the SRS Act must actively include protecting the safety and wellbeing of residents, which is the objective of the Act. This cannot be achieved through compliance activities alone.

As discussed at length in my investigation into Mentone Gardens (an aged care SRS), registration and oversight of SRS has been inadequate. The department has responded to my recommendations in these matters but it is too soon to evaluate the effectiveness of these responses.

Incidents involving Transport Accident Commission clients

A majority of TAC clients living in supported accommodation live in CSO that are not department-funded, or in TAC facilities. Incidents involving such clients are reported to the TAC only; they are not reported to the department.

Where incidents occur in such facilities, the department has no role; it does not receive the reports and the CCIMI does not apply. However, the TAC says it refers TAC registered providers to the department’s incident report form (it does not have its own) and the department’s processes for responding to incidents as an example of what is expected. In response to my draft report, the TAC stated it will introduce its own incident report form in March 2016.

The TAC has put in place several mechanisms to address client wellbeing, including its Client At Risk Taskforce (CART), welfare checks and the TAC’s alleged abuse register.

The disparity between the numbers on the alleged abuse register and the numbers of incident reports suggests the TAC is not receiving reports of all relevant incidents.

The TAC is looking to implement a compliance and audit framework in March 2016 and is exploring the oversight of provider compliance with incident reporting requirements. In the absence of this, the TAC does not know whether incidents of abuse have gone unreported among TAC service providers.

In response to my draft report, the TAC stated:

The alleged abuse register captures all allegations of abuse, most of which are reported during a TAC client welfare check. The disparity between the number of incidents captured in the abuse register and the number of incident reports received by the TAC may indicate a variety of things, including that clients feel it easier to make a report of abuse during their welfare visit.

The TAC also said it was introducing a new provider registration performance management framework in early 2016. This covers both targeted and random audits to monitor compliance with registration requirements including incident reporting and investigation procedures.

Importantly, the TAC may not receive incident reports involving its eight clients in SRS, and the department does not share information with the TAC on these incidents.

Without information-sharing arrangements with the department for incidents in SRS, the TAC has no way of knowing for certain whether its clients are safe from potential abuse in SRS and whether appropriate action has been taken in response to serious incidents. There is a need for the department and TAC to settle on a draft information-sharing protocol and for this to be extended to incidents in SRS.

In response to my draft report, the TAC stated:

Whilst the TAC seeks to share information with the department for its own purposes, the TAC seeks not to replicate existing processes for incident reporting where they are mandated by legislation, as in the case of SRS. Importantly, it is a reasonable expectation of the TAC that the department will receive an incident report relating to a SRS resident and take appropriate action, whether or not they are a client of the TAC.

As noted in phase 1, Community Visitors’ access to TAC clients does not extend to facilities established outside of the Disability Act, which may include some TAC-registered provider facilities. To ensure consistent protection and oversight, the role of Community Visitors should be extended to visiting all TAC clients, wherever they live.

In response to my draft report, the TAC stated it would ‘welcome Community Visitors’ access to supported accommodation facilities housing TAC clients, however, this is ultimately a matter for the department’.
Lack of advocacy services

As discussed in phase 1, there is a critical role for advocates to assist people with disability. The evidence in this investigation confirms yet again the role of advocacy in the highly sensitive area of allegations about abuse, where people may be afraid to disclose, and for those people who cannot communicate or face difficulties in making an allegation themselves.

However, since 2003, state funding for individual advocacy has only increased by CPI – despite the number of people with disability increasing from 323,300 in 2003 to 364,900 in 2012; an increase of more than 41,000.

As I recommended in phase 1, there is a need for a comprehensive assessment of the need for advocacy services in Victoria to better support people with disability.

10. Recommendations

Phase 1 of this investigation put forward two overarching recommendations of principle:

• the need for a single independent oversight body
• advocacy to support decision making by people with disability.

The government’s response to my phase 1 report

On 26 October 2015, the Minister for Housing, Disability and Ageing, the Hon Martin Foley MP, wrote to me as follows:

The Victorian Government is very concerned about the abuse of people with a disability and is committed to strengthening safeguards. We established the Parliamentary Inquiry into Abuse in Disability Services to investigate why abuse is not reported and acted upon, and how it can be prevented. The Inquiry reported on its first stage in August 2015 and is due to provide its final report in March 2016.

The Government has welcomed the findings and recommendations of your report: Reporting and investigation of allegations of abuse in the disability sector: Phase 1 – the effectiveness of statutory oversight and agrees there is a need for further work to be done to improve safeguards for people with a disability.

I note your recommendation for a single independent oversight body and for the Parliamentary Inquiry to ‘… further examine the logistics … as it considers interim measures to strengthen the disability system prior to the introduction of the National Disability Insurance Scheme’ during its second stage. The Government will consider the recommendation within the context of the final Parliamentary Inquiry report and development of the National Disability Insurance Scheme Quality and Safeguards Framework.

I welcome your recommendation in relation to advocacy and support the need for a strengthened Victorian disability advocacy sector. I have requested my department undertake a comprehensive assessment of the Victorian disability advocacy program and provide me with recommendations regarding:

• The impact of upcoming Commonwealth reform including the National Disability Insurance Scheme and review of the National Disability Advocacy Program and National Disability Advocacy Framework
• The level of need and investment required across the disability advocacy program to safeguard the rights of people with a disability in Victoria
• Equity of access to advocacy across Victoria
• Options for future governance of disability advocacy.

I look forward to the findings and recommendations of your final report, particularly recommendations which will strengthen my department’s approaches to incident reporting and response. In the meantime, a comprehensive program of work is being undertaken by my department to address the issues raised in your Phase 1 report. This work strengthens safeguards for people with a disability during transition to the National Disability Insurance Scheme.

Further analysis of my phase 1 recommendations

Recommendation 1: Single independent oversight body

In line with my recommendation that this matter be considered further by the parliamentary inquiry, the inquiry took evidence on this recommendation, and its report noted:

Evidence provided to the Inquiry indicates strong support for the establishment of a single independent oversight body assuming responsibility for the multitude of safeguarding functions and powers in Victoria. Inquiry participants provided numerous suggestions about the most appropriate body to assume this responsibility, such as:

• an entirely new statutory entity
• Disability Services Commissioner
• Victorian Equal Opportunity and Human Rights Commissioner
• Victorian Ombudsman.

As I noted in my phase 1 report, the implementation of the National Disability Insurance Scheme (NDIS) by 2019 raises significant questions about the level of reform that is both realistic and achievable in Victoria within this timeframe. The parliamentary inquiry report also refers to evidence I gave to the inquiry on 29 June 2015, when asked to explain my views on the options. These are to:

• create a new body
• allocate the responsibilities to a single existing body, or
• improve the integration of existing bodies to fill the gaps and address the overlaps on the boundaries.

I remain of the view that this recommendation is of the utmost importance and that the government, guided by the parliamentary inquiry, needs to determine which of the options it is able to put in place in a short timeframe to address the obvious deficiencies in the system. I note and welcome that the parliamentary committee is seeking further submissions on the options I have set out. I recognise that this decision will also be informed by the design of a future safeguarding framework for the NDIS, which is yet to be announced.

A single independent oversight body would also address one of the systemic shortcomings identified in this report: that many people within the system are afraid to report abuse to an entity with which they have a relationship. An independent body would be in a position to receive and act upon complaints of abuse.

In addition, I suggest that the single oversight body play a proactive role in supporting service providers to investigate incidents. While I recommend later in my report that the department develop an investigation framework to assist providers with this task, policies and procedures will not be enough. The independent oversight body should, upon receipt of an incident report alleging abuse, examine the service provider’s capacity to effectively investigate the allegation. Where there are concerns about this, the body may provide guidance throughout the investigation, recommend the provider engage an external investigator, and/or assist the provider to build its capacity to conduct investigations. In the absence of an independent oversight body, the department must perform this critical role.

Any further recommendations I make in this regard will need to be addressed by whichever oversight arrangement the government settles on.

Recommendation 2: Advocacy to support decision making by people with disability

Further evidence has also been provided in relation to my second recommendation, regarding advocacy. There was strong support for the broad principle of the recommendation, which concerned the need to comprehensively assess the need for advocacy and fund this need accordingly. Advocacy groups have also told the parliamentary inquiry that they were ‘firmly of the view that the body that administers the funds needs to be independent of any conflict of interest’.

In phase 1, I discussed the inherent conflict in the department funding advocacy for people who are reliant on the services of the department itself. At interview, the Office for Disability (OfD) put the view that the current arrangement was working well; they said that the OfD was not involved in service delivery and consequently was not subject to conflict. Other submissions have expressed the view that the Office of the Public Advocate, which I recommended in phase 1 should take over this responsibility from the department, could also be said to have a conflict of interest.

I remain of the view that comprehensive assessment of advocacy, and commensurate funding, is crucial to the effective reporting of abuse in
the disability sector. It is ultimately a matter for government as to where this responsibility sits, but in principle it should be independent of the department from whom people with disability receive a service.

Recommendations from phase 2

Mandatory reporting

In my phase 1 report I identified the lack of mandatory reporting as a key issue of concern. I considered that there should be mandatory reporting, by all service providers, of all serious incidents to an independent oversight body. The NSW definition of ‘reportable incidents’ provides a good model to follow.

I also noted the risks that may emerge from self-managed funding under the NDIS and suggested that a mandatory reporting scheme should also consider the child protection model operating in Victoria and elsewhere, in which third parties including healthcare professionals would be obliged to report potential serious incidents that come to their attention.

I note that this issue has since been considered by the parliamentary inquiry:

Evidence to the Inquiry referred to the value of mandatory reporting in the context of abuse and neglect of people with disability.
A critical consideration in any system of mandatory reporting is what authority are mandated reports to be made to and for what purpose. For example:

• criminal investigation – compulsory reporting to police to instigate a criminal investigation?
• investigation into handling of allegations – mandatory reporting by specified professionals to an oversight body of allegations of abuse in a disability service to initiate an investigation into handling of the allegation by the organisation?
• guardianship investigation – mandatory reporting by specified professionals to an oversight body relating to concerns about the health and safety of a person with disability to initiate a guardianship investigation?

Currently disability service providers are required to report incidents to the department. Yet there is no mandatory legal requirement for disability services or individuals to report allegations of abuse involving people who access disability services to an independent body.
Some inquiry participants advocated introducing mandatory reporting of abuse involving vulnerable people to an independent body.

The parliamentary committee agrees this is an option worth considering, particularly in the case of people with severe or profound disability.

This could legitimise reporting of abuse and provide clarity around the obligation to report; however, the pathways for reporting would need careful consideration.

As noted in this report and elsewhere, the current system of incident reporting by service providers is not fit for purpose. As also noted in phase 1, not all category 1 reports are required to be notified to the Disability Services Commissioner. There is no effective oversight or monitoring at a whole-of-system level.

While it is hoped that the changes now being made by the department will address at least some of these shortcomings, they will not address the lack of independent oversight and monitoring.

To the government:

Recommendation 3

As part of the reforms being undertaken to implement a single independent oversight body (whichever option is chosen):

(a) introduce a mandatory reporting requirement to that body of all serious incidents relating to people with disability by all service providers, regardless of the regulatory regime under which they fall

(b) consider the benefit of extending mandatory reporting by third parties along the child protection models in Victoria and NSW.

The department’s incident reporting system

The shortcomings of the current system are well evidenced, including by the department itself. I am advised that the department is considering options for an information management and technology solution as part of a broader reform project on client incident management. Any new system needs to be centred on the person with disability. It also needs to be capable of tracking developments, analysing data and facilitating feedback. To achieve this, I make the following recommendations:

To the department:

Recommendation 4

Amend the Critical client incident management instruction (CCIMI) to ensure client wellbeing is the primary purpose of incident reporting and management.

Response from the Department of Health and Human Services:

Accepted.

Recommendation 5

Ensure the new incident report form and system:

• is person-centred
• records accountability for, and completion of, follow-up actions; the outcome of the response to the incident; and feedback to service providers on incident reporting and management.

Response from the Department of Health and Human Services:

Accepted.

I note that the NSW Ombudsman is working on the development of a two-way online portal for the reporting of both disability reportable incidents and employment-related child protection reportable conduct – using the same platform that is currently used by disability services in Victoria, NSW and WA to report complaints. Against this background, and with a view to a national approach, I suggest Victoria work with NSW on determining the scope for a joint IT solution, together with common data capture and reporting capabilities.

Reporting of abuse: whistleblowers

As noted, the complexity – and resultant inconsistency – of the disability landscape extends to the protected disclosure regime, which provides for protections for whistleblowers in some facilities but not others.

To the government:

Recommendation 6

Ensure that all workers across the disability sector are covered by protected disclosure legislation in order to support a culture of reporting.

To the department:

Recommendation 7

Examine opportunities to achieve cultural change in the reporting of abuse, including through:

• introducing mandatory training for disability workers in DAS and CSO, with a focus on incident reporting, identifying abuse and respect for human rights
• developing guidance to service providers on learning from incidents, including timely debriefing with staff involved.

Response from the Department of Health and Human Services:

Accepted.

Systemic gaps: investigation and review To the department:

Recommendation 8

Develop an investigation framework and guidance for investigation of incidents in DAS, CSO and SRS, including the purpose of investigations, accountability for determining when an investigation will be initiated, minimum standards for conducting investigations and action expected upon conclusion.

Response from the Department of Health and Human Services:

Accepted.

Recommendation 9

Develop guidance on reviews, including when, how and what type of incident requires review, and extend the application as appropriate to client-to-client assault, dangerous behaviour, self-harm and suicide.

Response from the Department of Health and Human Services:

Accepted.

Recommendation 10

Perform an active role in supporting service providers to investigate incidents. This should include, upon receipt of an incident report requiring investigation: examining the service provider’s capacity to effectively investigate the allegation; providing advice throughout the investigation; recommending the engagement of an external investigator where appropriate; assisting the provider to build its capacity to conduct investigations; and examining the outcome of investigations.

Response from the Department of Health and Human Services:

Accepted.

Systemic gaps: SRS To the department:

Recommendation 11

Subject incidents in SRS to the same level of scrutiny as those in DAS and CSO to ensure consistent protections for people with disability across the sector, including by:

• requiring SRS to complete the departmental incident report form for prescribed reportable incidents
• requiring SRS to provide the form to the authorised officer
• using the department’s enforcement powers where breaches are identified
• extending the department’s review mechanisms to incidents in SRS.

Response from the Department of Health and Human Services:

Accepted.

Systemic gaps: TAC

To the department and the TAC:

Recommendation 12

Implement an information-sharing protocol and extend this to incidents in SRS.

Response from the Department of Health and Human Services:

Accepted in principle.

Response from the TAC:

Accepted.

To the TAC:

Recommendation 13

Provide for access by Community Visitors to TAC registered providers.

In response to my recommendation, the TAC stated:

The TAC would welcome inspections by Community Visitors at all accommodation facilities housing TAC clients and operated by TAC-registered service providers, and may be able to facilitate access through provisions in its service provider registration requirements.