By Luke Geary, Partner and Georgia Haydon, Law Graduate

The Background

In 2015, a Senate Community Affairs References Committee held an inquiry into violence, abuse and neglect against people with disability in institutional and residential settings. The key recommendation of the Senate Committee in its report was that a royal commission be established to investigate the abuse experienced by disabled people in institutional settings.

Since then, the issue has been raised numerous times in Parliament and throughout the media;  earlier this year, it was noted in Parliament that people with disability continue to be subjected to violence, abuse and neglect, and that, from July – September 2018, the National Disability Insurance Scheme’s (NDIS) Quality and Safeguards Commission had received reports of over 184 incidents of abuse and neglect, 62 reports of unexpected deaths, 91 reports of injuries, 34 complaints against individual staff or service providers and 75 cases of unauthorised restrictive practices.

The Commission

In light of both the growing attention on the issue of abuse faced by people with disability and numerous calls for a royal commission, the Federal Government on 5 April 2019 announced the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Commission)

It is anticipated that the Commission will run for three years, with the Commissioners’ interim report due on 30 October 2020 and final report due by 29 April 2022.

The Terms of Reference

The Commission’s Terms of Reference were announced on 4 April 2019, and allow the Commission a broad scope to consider a range of issues relevant to the complex nature of violence and abuse of people with disability.  This is largely in response to the volume of growing evidence illustrating that instances of violence, abuse, neglect and exploitation of people with disability occur in a range of settings:  aged care, educational, hospitals, corrective services, and within the disability services sector.

The Commission’s inquiry will focus on:

• what governments, institutions and the community should do to:
  • prevent and better protect people with disability from experiencing violence, abuse, neglect and exploitation;
  • encourage reporting of, and effective investigations of and responses to, violence, abuse, neglect and exploitation of people with disability – including addressing failures in and impediments to reporting, investigating and responding to such conduct;
  • promote a more inclusive society that can support the independence of people with a disability, and their right to live free from violence, abuse, neglect and exploitation;

as well as any matter reasonably incidental to those matters.  In assessing those issues, the Commission is also to have regard to all forms of violence, abuse, neglect and exploitation of people with disability whatever the setting or context. 

Next steps

Whilst the Commissioners have been announced, much about the Commission is yet to be determined.  However, it is to be expected that the Commission will correspond with industry participants, invite public submissions and issue notices to produce to relevant parties.  The Commission will also have powers to compel evidence, produce documents, make recommendations, as well as refer people and organisations to the police or relevant regulatory bodies for investigation.

Further information about the next steps of the Commission will be announced on its website:  https://disability.royalcommission.gov.au/

Parallels to Royal Commission into Aged Care, Quality and Safety

It is anticipated that there will be cross-overs between the issues to be considered by this Commission with those currently being considered by the Royal Commission into Aged Care, Quality and Safety – namely, in relation to:

• funding – in particular, funding provided by the NDIS;
• issues associated with congregate care, and living in institutional settings;
• staff-to-patient ratios;
• record-keeping practices;
• food and nutrition practices;
• access to health services;
• medication mismanagement;
• availability of appropriate care;
• business models and practices, including corporate governance;
• risk management frameworks; and
• regulatory and disciplinary frameworks.

Planning for the Commission

Until further details of the Commission are announced, relevant stakeholders should be taking steps to:

• better understand the function and operation of a royal commission and what the potential issues are that may be of interest to the Commission;
• identify vulnerabilities within their organisation to avoid being caught ill-prepared when the Commission makes requests for information;
• organise their external legal team to prepare a legally privileged advice concerning issues of risks and exposure faced by their organisation;
• ensure they are appropriately resourced to identify areas of concern by developing a data collection and management system. Document review is a time-consuming process, and a proper strategy for this will be vital in responding to any Notices to Produce / Summonses;
• create a working group tasked with responding to requests for information from the Commission; and
• consider the reach of their insurance policies, and whether they are adequate to cover potential liabilities and possibly legal costs.

The Effects of the Royal Commission

There will be significant media and stakeholder scrutiny in the upcoming months as internal and external stakeholders begin to respond to and engage with the Commission and its processes.  With this “Royal Commission fever” on the increase, it is to be expected that:

• there is likely to be a level of panic, and information may be misreported or misunderstood;
• there will be more scrutiny and oversight, both internally and externally, of executives and board members of relevant organisations;
• there will be whistleblowing from past or present employees and volunteers;
• risk of exposure to litigation, or re-litigation, may increase; and
• organisations will be doing all they can to protect their brands and will undergo a test of leadership and culture.

For more information on how Mills Oakley can help your organisation, please see our Capability Statement.