TRANSCRIPT
FAMILY AND COMMUNITY DEVELOPMENT COMMITTEE
Inquiry into social inclusion and Victorians with a disability
Melbourne — 6 March 2014
Members
Mrs A. Coote
Ms B. Halfpenny
Mr J. Madden
Mr D. O’Brien
Ms D. Ryall
Chair: Ms D. Ryall
Deputy Chair: Ms B. Halfpenny
Staff
Executive Officer: Dr J. Bush
Research Officer: Ms V. Finn
Administrative Officer: Ms N. Tyler
Witness
Dr J. Chesterman, manager, policy and education, Office of the Public Advocate.
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The CHAIR — Welcome, and thank you for taking the time to appear before this hearing of the Victorian
Parliament’s Family and Community Development Committee. We are inquiring into social inclusion and
Victorians with a disability. I am Dee Ryall, the Chair. I have some preliminaries before we start. As outlined in
the guide that has been provided to you by the secretariat, all evidence provided before this hearing is taken by
the committee under the provisions of the Parliamentary Committees Act 2003 and other relevant legislation,
therefore anything that is said within this hearing attracts parliamentary privilege but any comments made
outside this hearing do not attract that privilege. The proceedings are being recorded by Hansard staff. They are
not being broadcast through the net, but you will receive a proof transcript after the hearing to which you will be
able to make any factual or grammatical corrections if required.
Firstly, could you introduce yourself to the committee and state your role in the organisation you represent? We
ask that you give a 15-minute presentation, and then we will take the opportunity to ask questions. That will
round us out to about the 45-minute mark.
Dr CHESTERMAN — Sure. Thank you very much, and thanks for the invitation to be here. My name is
John Chesterman. I am the manager of policy and education of the Office of the Public Advocate. At the outset
I advise you that Colleen Pearce, the public advocate, sends her apologies. She is just back from leave and has
had to attend to some urgent matters which she advised me of this morning. This is an important time in the
disability sector, and thank you for the opportunity to address you today.
I know that you will know about the Office of the Public Advocate. We have a range of statutory roles in
relation to people with disabilities, particularly adults with cognitive impairments and mental ill health. Our
roles include the following. We are the guardian of last resort for adults with decision-making incapacity. Our
advocate guardian program provides statutory guardianship, investigation and advocacy for Victorian adults
who cannot make decisions for themselves. We also offer support to private guardians. The program was
involved, in the last financial year, in 1590 guardianship matters, 386 investigations and 394 cases requiring
advocacy.
We also have an advice and education service. We have a policy and research unit. Probably our best known
program is the community visitors program, in which volunteers work with OPA to help protect and advocate
for the rights of people with disabilities. The volunteers visit Victorian accommodation facilities for people with
cognitive impairments and mental illnesses. In the last financial year we had 366 volunteers, who conducted
over 5000 site visits. Another of our big volunteer programs is the independent third person program, which
sees volunteers assist adults with apparent cognitive impairments who are being interviewed by Victoria Police
or making formal statements to Victoria Police. They can be witnesses, victims or alleged offenders. Last year
our independent third persons attended over 2000 interviews.
There are four matters I would like to raise with you by way of preliminary comment. These four matters are
drawn from our written submission. The first matter concerns the national disability insurance scheme. As our
submission points out, NDIS offers the prospect of substantial improvements to the lives of eligible people with
disability. Of course one of the underpinning ideas behind the NDIS, which has already been endorsed by
Victoria with its adoption of individual support packages, is that people with disabilities themselves are best
placed to work out how money should be spent to support them. For most people with disabilities, this is a
terrific development that will not present a problem, but for people with significant cognitive impairments and
mental ill health, it may.
As we say in our submission, we are very concerned that the NDIS may lead people to be more socially isolated
than before as they buy in services. We also expect to see a significant rise in the number of for-profit disability
service providers, which may not have the same philosophical commitment to social inclusion as existing
not-for-profit providers. In our submission we simply suggest that the Victorian government monitor, evaluate
and address the effect that the consumer-choice philosophy is having on the social inclusion of Victorians with
significant cognitive impairments or mental ill health.
The second matter I want to talk about is the exciting concept of supported decision making. We would like to
see greater recognition of the principle of supported decision making, which is central to modern
conceptualisations of the rights of people with disabilities and which has obvious connections to the
consumer-choice philosophy that underpins the NDIS. The principle in many ways underwrites the United
Nations Convention on the Rights of Persons with Disabilities, and it holds very simply that people, no matter
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what their level of cognitive impairment or mental illness, should be supported to make and implement their
own decisions. Our submission makes a number of points in this regard.
There have been some important supported decision-making developments that have occurred in Australia
recently as part of an impetus for change generated by the convention. In 2012 the Victorian Law Reform
Commission made some significant supported decision-making recommendations in its final report on
Victoria’s guardianship laws and practices. We really encourage uptake of the commission’s recommendations.
In 2013 the Office of the Public Advocate hosted a forum, ‘Supported decision making: from theory to
practice’. That was opened by the Parliamentary Secretary for Families and Community Services. That
well-attended forum considered important supported decision-making developments that have occurred or are
occurring throughout Australia. There is also work happening at the national level on this topic. As committee
members will be aware, the Australian Law Reform Commission is currently undertaking a review of equal
recognition before the law and legal capacity of people with disability. Potential supported decision-making
initiatives will likely be a key aspect of the commission’s work.
Meanwhile OPA is very pleased to report on the steps we have taken to establish a pilot supported
decision-making program, which has been partly funded by a grant from the Victoria Law Foundation. This
novel project will connect isolated people who have cognitive impairments with volunteer supporters who will
previously not have had contact with the participants and who will assist them in making important decisions.
We would like for this program, which offers significant social inclusion improvements to the lives of
Victorians with cognitive impairments, to become a permanent volunteer program for the organisation, and of
course we already have over 700 volunteers in our volunteer programs. We are keen for the government to
monitor this trial, with a view potentially to funding it should it prove to be beneficial.
The third matter I want to raise of the four that I will mention in these opening comments concerns closing
residential institutions. A key aspect in our submission concerns the closing of residential institutions, which
OPA considers to be a very important social inclusion matter. In our submission we make reference to the very
successful Caloola21 celebration we hosted last year, which marked 21 years since the closure of Caloola
training centre in Sunbury. Again, the Parliamentary Secretary for Families and Community Services was there
and spoke.
The closure of Sandhurst Centre in Bendigo is proceeding well, and OPA congratulates the government on the
handling of this process. We have advocated for the closure of Victoria’s remaining institutions and we
published a position statement on this topic last year. We seek the closure of all congregate care facilities or
institutions in Victoria for people with disability. These include Colanda Residential Services in Colac, the
Oakleigh Centre and Plenty Residential Services in Bundoora. Of course Colanda is in the pilot launch NDIS
site in Barwon, and we are seeking to work with the National Disability Insurance Agency and DHS to assist
some of the people at Colanda as they come under the NDIS later this year. Our recommendation on this topic
is that the government, in liaison with the National Disability Insurance Agency, should be encouraged to
develop and implement a plan for the closure of all remaining residential institutions for people with disability
in Victoria.
The fourth matter I want to raise concerns criminal justice. Another way in which people with disability are
socially excluded is through their inappropriate dealings with the criminal justice system. Victoria has had a
number of reports recently on this topic, including one by the Victorian Parliament’s Law Reform Committee
and one by OPA on the operation of our independent third person program. Our submission to this committee
pays particular attention to the recent Equal Before the Law report by the Australian Human Rights
Commission, which calls for the development in each jurisdiction in Australia of a holistic disability justice
strategy, a recommendation we endorse in our submission.
I will close there by saying our submission makes other recommendations about defining social inclusion, about
a possible social inclusion awareness campaign, about the funding of disability service delivery and about
extending the Disability Act provisions to people with cognitive impairments other than intellectual disability. I
will finish my introductory comments there.
The CHAIR — Thank you, John. If we look at social inclusion as being rights, not just opportunities, and
we look at access to OPA as a right for individuals, looking at individuals who perhaps live in a community
service setting, as in a house, and others that live with family, it does not necessarily mean that because you live
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with family members or even in a relationship, you do not need OPA or an advocate in that sense, given perhaps
sometimes dysfunctionality and other aspects of family life. You mentioned the community visitors program
going to houses, and perhaps day programs or different opportunities for them to interact. How does your office
interact or help represent those who may be living in the family context, and perhaps the assumption is made
that the family will advocate but they do not and it is needed?
Dr CHESTERMAN — Sure, that is a good question, and it is going to become an increasingly important
one with new models of care under NDIS. We have a very highly used advice service that anyone can utilise.
We receive over 13 000 calls a year, so we are certainly accessible in that sense. This is something the Victorian
Law Reform Commission recommended, and I was fortunate enough to travel on a Churchill Fellowship last
year and I looked at this matter as well. We have sought a broader investigation power, so where there is a
concern or suspicion or allegation that a person with a disability is not being well cared for in whatever setting,
the public advocate would have a broader power to go and investigate and require entry and be able to see
whether there is any concern that needed service sector attention. We have sought that and the Victorian Law
Reform Commission recommended it, so the government has that report and is considering it.
The CHAIR — It is probably anecdotal to a degree, but in relation to people with a disability who live with
family members or in a relationship, we have just heard about women and domestic violence or family violence
and so forth. If you do not get reports or somebody is suspicious of something, I guess the question is: how do
you identify or let people know about the ability to advocate?
Dr CHESTERMAN — That is right, and again this is something I looked at in my Churchill Fellowship
report. Scotland had quite a good public campaign about alerting people to the needs of at-risk adults in the
community. I did not intend to talk about my Churchill Fellowship report here, but the central idea that came
from that was that we need to create a one-stop shop, a phone number, that people in the community can call if
they have any concerns, and then that will be an investigation and referral agency, and the recommendation is
that that would be the Office of the Public Advocate.
The CHAIR — So it is really just relying on others to highlight an issue, and I guess the issue is that when it
is behind closed doors it is difficult to identify?
Dr CHESTERMAN — That is right. One of the positive sides to this would be that you would then enable
people in the general community more easily to say, ‘This is what I do in this situation’. If you couple that with
a public awareness campaign you can increase not only people’s knowledge but their willingness to act.
Incidentally I do say that we are partners in the research that Women with Disabilities Victoria are doing in their
Voices Against Violence work. It is a huge research undertaking that will involve seven reports. We are one of
the partners in that and it will be very important work.
Mr MADDEN — Did you say that that is established in Scotland or — —
Dr CHESTERMAN — Yes, Scotland does it slightly differently. Scottish local authorities are more
powerful than the equivalent local councils here, and they organise it at local authority level. But yes, they do
have an adult protection system.
Mr MADDEN — I will follow on from that. In terms of the best practice models for the sorts of thing you
are talking about where there is the ability to, I would not say investigate, but to ask questions around complex
needs in situations that people might have doubts about, are there other locations or other models around the
world where that is implemented or has been developed?
Dr CHESTERMAN — For people in private homes?
Mr MADDEN — No, I mean in terms of an authority like yourself. In other parts of the world are there
authorities that have a greater level of power than you currently have or powers that you have suggested there in
relation to investigation?
Dr CHESTERMAN — Yes, there are other authorities. My travels last year focused on those jurisdictions
which have quite interventionist adult protection legislation, so I went to Washington state, USA, to Nova
Scotia, Canada, to Scotland, and I also visited England. Washington state and Nova Scotia both have adult
protection services, and the closest analogy we would have here would be child protection. The various reasons
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why I would not be recommending a straight adoption of that over here is that you can have adult protection
services go in and say, ‘Yes, there is a situation of concern here’, but unless they then have links to the service
sector, that is just a report.
So we are highly unusual in the Office of the Public Advocate. There are guardians of last resort in every
jurisdiction in Australia, but none have the same number of volunteers that we have, so we are quite unusual,
and indeed there are public advocates only in Western Australia, South Australia, ACT and Victoria. The others
are public guardians or, in Queensland, an adult guardian.
So overseas there are different organisations. Scotland has the mental welfare commission also, which has
investigative powers, which I think is worth looking at. But I distilled all of that and came back with the
recommendation that you cannot start from scratch in Victoria, nor should we. There are lots of benefits to our
system, but the easiest thing to do would be to empower one statutory agency — and we would be the obvious
one — to have a broader investigation power and to be the one contact point for members of the general
community. That is not to say we would then take everything on; we would be a referral agency. But people
need one spot to go to.
Mr MADDEN — So the extension of that, let us say in a model like this, is if you discover something, that
somebody has been mistreated but it is not against the law — it just compromises the individual’s ability to be
included in the greater community — how would you expect to deal with that under a model like that?
Dr CHESTERMAN — You would use a supportive intervention approach. So you would be going in, but
you would not just be an arms-length investigator; you would be kind of a therapeutic investigator. You would
go in, and if there was a need for case management, if there was a need for linkage with particular services, then
you would undertake that, almost as an advocate. That is how it would be a supportive intervention approach. If
there was a crime discovered, you would need an obvious referral to police.
Mr MADDEN — Of course.
Dr CHESTERMAN — But you were talking about where it is not illegal — —
Mr MADDEN — I ask that because some of our discussions have been — not so much with service
providers, but the difficulties families have and even workers have in dealing with those with some form of
disability — about the ability to take risk, and let people venture out a bit, or to avoid that risk. It is about letting
go a bit. One of the issues that keeps coming through in our discussions is trying to encourage individuals,
organisations and carers to let people out into the community a bit more, rather than maintain the status quo of
keeping somebody isolated or completely protected. So, in that sense, I suppose members of the committee are
interested in that, but it is not without some difficulties too, given the sorts of issues that you raised.
Dr CHESTERMAN — Sure.
Mr MADDEN — How protective should you be? How much risk is too much risk? They are not easy
things.
Dr CHESTERMAN — No, they are very important. We are strong advocates for the dignity of risk, as it
were. Our advocate guardians, who are, as I say, guardians for adults, are routinely encouraging service
providers to take risks within reasonable limits in the knowledge that completely shutting down a person may
be the least risky thing to do in some ways, but it has clear implications for quality of life. So we do advocate
that. Our community visitors go into group homes and other disability accommodation settings with that firmly
in mind. They ask, ‘How is this service assisting the person to be socially included?’.
I think it is fair to say that we are getting better at that too. We are involved in a project with La Trobe
University called the Good Group Homes project, which is encouraging our community visitors to identify
certain criteria which indicate a group home is a good one, and social inclusion is a key part of that.
Mrs COOTE — That was going to be much the same as my question, which is about guardians. I know that
with a guardian there are a lot of very complex issues that have got to be dealt with — a lot of physical issues, a
lot of legal ramifications et cetera, particularly for people for whom you are the last resort and there is no-one
else. Social inclusion is in some respects esoteric. It is not as easy to monitor; it is not as easy to see whether it
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has been successful. Likewise, with the community visitors. It is: how successful do you actually think that you
are and the community visitors are in encouraging service providers to be providing social inclusion? I do not
mean just taking everybody to the bowling green for the afternoon once a month; I really mean interacting very
much with the community. It is easy to say yes, you have been to the park or whatever, and tick that box, but is
it really happening?
Dr CHESTERMAN — It is happening sporadically. There are good homes, and there are less good homes
that we visit. As to how successful we are, I would say we are moderately successful and could always be more
successful. It is difficult to measure, and in encouraging, for instance, staff at a group home and saying, ‘Why
does this person not go out more and engage with the community?’, there will often be reasons given. That is
where the role of the community visitors is simply to prod and to push and to identify if a plan has been made
for a person, whether that plan is actually occurring and whether the goals are being met and so on. I think one
of the challenges we find is that staff will say occasionally they are not adequately funded to be able to meet all
the needs of all the residents. That is just something that community visitors hear, and I think we need to be able
to confront that. As you know, we badge ourselves as the eyes and ears of the community, so we go in and see
whether an accommodation setting meets community standards.
We are lay visitors; we are not medical specialists. We go in and say, ‘Does this meet community standards?’.
You look at the person’s abilities and see if they are getting enough social interaction. All we do is write reports,
we encourage staff and when we identify serious matters, then we elevate them and they can appear in our
annual report. We can always do better, I think.
Mrs COOTE — You know I am a huge advocate for the community visitors. I think it is an extraordinary
service. It is fabulous. I take my hat off to all of them. They are amazing, as you know. However, given that we
are going into a new NDIS world or NDIA world, and given that we have probably all got responsibilities and
this committee will be making recommendations to strengthen that social inclusion element, do you believe
there is a role for OPA and for this committee to be making recommendations to formally suggest that social
inclusion is included in the deliberations that they are making when they are doing their planning?
Dr CHESTERMAN — Absolutely. It ought to be. We are engaged in discussions with the National
Disability Insurance Agency around some of our supported decision-making ideas and are encouraging them to
adopt this idea, which it is fair to say that senior people at NDIA are very interested in. It is a matter of what
then gets incorporated into plans; that will be the proof. But the architects of the NDIS were very aware of the
dangers that could come, as I discussed in my preliminary comments, about people becoming more isolated.
The architects were certainly aware that social inclusion was an important matter. I know you have looked at the
Productivity Commission report; social inclusion is certainly mentioned, but, as you say, it needs to be built into
the new system.
Mr O’BRIEN — Thank you for your evidence and your work. There is one aspect that I would like to draw
out from you, and in a sense it is part of the tension of your office and the role of guardianship, and it is also
where much of the thinking is going to become difficult in practice. If we are, as we are, moving to a position of
greater independence and greater supported services, and recognising an individual’s human right to make
decisions for themselves, one of the tensions is in the classic guardianship dispute over where the line is drawn
between the decisions that are made then in the public interest to appoint a guardian, sometimes against the
wishes of the individual, and an individual’s right to make their own decisions. The decisions are perhaps not
bad decisions and are in their best interest as determined by the guardianship board and obviously the role that
your office plays. Could you explain how that works in practice at the moment and give some evidence on how
you foresee issues that we will need to monitor closely under NDIS and other developments?
Dr CHESTERMAN — Sure. The modern role of guardianship is under the spotlight in some ways, with the
developments in the United Nations Convention on the Rights of Persons with Disabilities. In signing up to that,
Australia said in a declaratory statement that guardianship and other substitute decision-making possibilities,
like involuntary mental health treatment, were, in Australia’s view, possible under the convention. It is fair to
say though, and we certainly support this, that the guardianship criteria in our current guardianship act should be
narrowed. The Guardianship and Administration Act 1986 gives three criteria for the appointment of a
guardian, and VCAT appoints the guardian. We are appointed as a last resort; the preference is for somebody
else. If a guardian is needed at all, the preference is for it to be somebody who knows the person for obvious
reasons. We are just appointed if that is not possible, and we then exercise that role. In exercising that role, we
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are statutorily obliged to take into account the person’s expressed wishes and wherever possible we try to follow
those. Occasionally we do not, and that is the very live tension that we deal with every day in the office.
Mr O’BRIEN — Can I just stay focused on that tension? I thank you for pointing to changes to the act. In
the sense that this system is going to be more alive to those problems as they are played out in greater
independence, do you foresee a greater role for your office, and do you see your role changing in the way you
have anticipated under the act?
Dr CHESTERMAN — No, and indeed when the NDIS was being set up and the legislation was in draft
form, there was a concern about whether the NDIS might require a significant rise in guardianship appointments
in order to make NDIS-related decisions. We are pleased that that was not the case. In fact we made the
argument that it would not be consistent with the disabilities convention, and it had to be. The NDIS legislation
has the provision for nominees, so where a person is unable to make their own NDIS decisions, the CEO of the
agency can appoint a nominee to make decisions for the person, rather than needing to appoint a guardian
through the state and territory guardianship tribunals. So those nominee provisions exist, and my understanding
is that they are not being highly utilised and informal mechanisms are holding sway where persons are
somehow restricted in their ability to make their own decisions.
The CHAIR — John, you mentioned the Law Reform Committee. Was that the report from last year?
Dr CHESTERMAN — The Law Reform Committee reported on people with an intellectual disability in
the justice system last year, and the law reform commission released a 2012 report on guardianship.
The CHAIR — When you spoke before about looking at the expansion of powers, was it the committee
report you were referring to?
Dr CHESTERMAN — No, the Victorian Law Reform Commission’s report.
The CHAIR — I was just looking at recommendation 8 of the report of the Law Reform Committee, which
talks about your office being involved in amending or looking at the Victoria Police manual in relation to the
identification of a person. I am just thinking in terms of what you mentioned before. As we have said, we are
looking at recommendations to improve social inclusion. If we look at social inclusion as being about helping to
improve the access to rights of people with a disability, and there is that issue I referred to before of helping to
identify issues for people who do not have that access because they live in family circumstances and do not
have knowledge of or are unable to access the public advocate, or someone to advocate on their behalf, what are
your suggestions about making that better able to happen?
Dr CHESTERMAN — In which case, it requires information to be given to the individuals involved. We
were talking about people with significant cognitive impairments. That presents challenges if, for want of a
better term, they are in a protective family situation. That is a challenge that confronts us as a society, and we
are often contacted by people in the general community about relatives, but something has to trigger that. So,
look, it is a challenge.
The CHAIR — So is it something that this committee can report on. We can consider whether we make a
recommendation in that area on increasing that opportunity for people to be informed. I guess the next step on
from that is what would you consider to be the best way? I know you have mentioned what the law reform
commission came up with, but are there are other avenues or other opportunities?
Dr CHESTERMAN — I guess a public education campaign is the obvious response to that. How you target
it would be a real challenge.
The CHAIR — But the public would need to know who to contact in that instance.
Dr CHESTERMAN — That is right.
The CHAIR — So do you see your office as perhaps the best point of contact there, or would it be the
police? Who would it be in that instance?
Dr CHESTERMAN — When we are talking about a situation of harm — —
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The CHAIR — Concern even.
Dr CHESTERMAN — Yes, concern, absolutely. In my view it would be us. At the same time you always
advise people that where a crime is witnessed or suspected, then the police must be their first port of call.
The CHAIR — Yes. It is more if there is a concern.
Dr CHESTERMAN — But with social inclusion I think you are also talking about something broader too,
which is whether people are engaging enough with society. They might not be coming to physical harm as such,
but they just may not be engaging with society. That is a real public education campaign for carers as well as for
the people themselves.
The CHAIR — So that would be education in that area and opportunities for people to perhaps report if they
have concerns.
Dr CHESTERMAN — Sure, and to know what support is available. That is another thing. With the NDIS
in the Barwon region I think most of the participants who have now had plans drawn up were known to the
service sector, but there were some striking ones who were not. So that is a case of some education going to, in
this case, probably carers about what is available as well. They might think, ‘We do not have the funds to do
that’. They might not realise that there are funds.
The CHAIR — Are there opportunities for services that might report in that situation? It is not about
whether there is harm within the family, but that there may be concerns about opportunities for inclusion or
maybe they are not turning up to you on a regular basis. How does that information get reported in to be looked
at?
Dr CHESTERMAN — With people in private homes, it does not, and that is one of the challenges — to
know what is the right balance between respecting someone’s privacy and encouraging them to engage with
society. I do not think there is an easy answer to that.
The CHAIR — Some have described social inclusion as being about a person not only having opportunities
to be included in the broader community but also having their rights afforded to them.
Dr CHESTERMAN — Sure, and I think in terms of how you evaluate social inclusion, I think that can be
done if you identify the criteria, sample a group of people with disabilities and see whether those criteria have
been met for them, which would include things like employment, involvement in groups, outside contact and
their way of doing it. There are evaluators around, but I think that would be the process.
The CHAIR — John, thank you very much for coming before us today and giving us your time. We really
appreciate it. On behalf of the committee, thank you.
Dr CHESTERMAN — It has been a pleasure.
Committee adjourned.
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