Four Corners: can the NDIS prevent abuse of people with disability?

Monday’s Four Corners program, Fighting the System, was deeply disturbing viewing. It detailed shocking sexual abuse allegations of two residents at a group home for people with disabilities.

One of the most intolerable elements of the program was the revelation that the abuse was allegedly flagged with authorities, but nothing was done. Family members felt powerless to control what happened to their loved ones.

Anne Mallia, the mother of a young man with intellectual disability who had allegedly been abused, said she would sometimes park her car outside the residential facility her son was in and watch.

… because I wasn’t permitted to go in […] I felt close to my son so that if he did need something I’d be there, but the reality is, I couldn’t protect him at that point.

The program raised many issues needing urgent attention. They include whether the police listen to people with cognitive impairment when they report abuse. Whether the recently enacted South Australian Vulnerable Witnesses Bill, which allows people with cognitive impairment to give evidence to courts in more supportive ways, will result in more convictions of abusers. And if such laws should be adopted nationally.

Another issue is how people with disability who don’t have family or friends to advocate for them can be heard, including those unable to communicate verbally.

Once the National Disability Insurance Scheme (NDIS) comes into full effect, there is the question of whether abusers will be able to move to a new service and continue abusing. And if the NDIS will have the necessary structures and procedures to stop the abuse of people with disabilities.

If the NDIS is implemented in accordance with its legislation, it could mitigate some of the abuse and the distress experienced by people with disability. But it won’t be able to address all the other issues raised by Four Corners.

Choice and control

We know from numerous inquiries that vulnerable people are targeted by those with a proclivity to abuse. Victoria’s 2013 inquiry into the abuse of children in religious and other non-government institutions concluded that there will always be the risk of employees and others abusing the vulnerable.

Part of the trauma of the stories told in the Four Corners program was that the people being abused and their families were powerless to have the person moved away from the abuse. Their requests to service providers and government for alternative accommodation were not met.

The NDIS’s principles of choice and control give people with disabilities the right to choose what services they will purchase, with the assistance of family and loved ones when appropriate. This was one of the main features of the Productivity Commission’s recommendation for a national disability scheme in 2011, which led to the introduction of the NDIS. The expectation was that the choice of provider would motivate the provision of high quality services in a competitive market.

When the scheme becomes fully operational and it applies to residential services, people should be able to give notice and move to another service, as occurs with other commercial contracts.

National watchdog

Social Services Minister Christian Porter has said the federal government would establish a new watchdog as disability services moved to a national model under the National Disability Insurance Scheme (NDIS). He told Four Corners there would be an “ongoing system of registration for service providers in disability accommodation that will ensure that standards are regularly reported on, regularly investigated and regularly enforced”.

This oversight will presumably be based on the NDIS Quality and Safeguarding Framework, which outlines a strategy to protect people with disabilities. It has plans to build capability and support systems, prevent harm and promote quality, and respond if things go wrong. However, there are flaws with this plan that undermine confidence in the NDIS.

A central feature of the quality framework is “having formal safeguards in the NDIS planning, implementation and review processes”. Planning and reviews supposedly give people with disabilities the opportunity to consider what services and supports they want to support their lifestyle.

But my discussions with planners and other staff involved have revealed that the National Disability Insurance Agency (NDIA), which runs the NDIS, has contracted planning conversations with NDIS participants to be had by phone. Draft plans are negotiated and agreed to, and later go to senior staff for approval.

Anecdotal reports from outside the NDIS suggest that people are not being supported during these phone calls to consider their options and opportunities. The plan is returned to them with changes they don’t want, and they have difficulties getting a review meeting.

This process flies in the face of the NDIS principles of choice and control, and raises serious doubts about the planning and review mechanisms to ensure safety.

The complaints procedures outlined in the safety framework are necessary but not sufficient to stop the abuse that we know occurs. Ensuring all registered providers have an internal complaints system will not stop abuse, nor will links to universal protections outside the NDIS, such as police, other regulatory and complaints systems.

A royal commission

In light of the Four Corners program and other abuse inquiry reports, the NDIS quality framework does not go far enough. The framework states it will continue the community visitor scheme for the time being. This is where trained volunteers inspect residential facilities without prior notice.

But the framework also states that there is no commitment to this continuing beyond the transition stage of the NDIS rollout, and indicates no other monitoring system.

The 2015 Commonwealth Senate inquiry’s report into abuse and neglect of people with a disability in institutional settings stated the committee was:

very disturbed by the significant body of evidence it has received which details the cruel, inappropriate and, in many cases, unlawful treatment of Australians with disability.

The committee mentioned the largely inadequate responses from authorities and people in positions of responsibility when abuse was reported. The first of 30 recommendations was for a royal commission to be held into the mistreatment of people with disabilities in group homes. The second recommendation was for a national, independent, statutory protection watchdog.

The royal commission was recommended because because the committee suspects that we have only seen the tip of the iceberg, and a national system for reporting and investigating abuse is needed.

The federal government’s recent rejection of a royal commission on the basis that the NDIS will protect people with disability is fallacious. The NDIS does not have rigorous mechanisms for protecting its participants, let alone the many vulnerable people with disability who will not be eligible for the NDIS.

Australia needs new mechanisms to stop the abuse of people with disabilities. The NDIS has the potential to assist. An important way it can help is by listening to people in planning and review meetings, and following up any concerns. To date, the NDIS is proving to be a missed opportunity. We need a royal commission to put pressure on the NDIS to live up to the principles in its legislation.

Carmel Laragy has received national and state research grants.