Protections from abuse and unfair treatment
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A person can complain to various bodies about abuse, poor or unfair treatment. Most of the bodies listed below are specific to people with disability.
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The National Disability Insurance Scheme (NDIS) Quality and safeguards Commission (‘NDIS Commission’) is an independent agency established to improve the quality and safety of NDIS supports and services.
The NDIS Commission:
Responds to concerns, complaints and reportable incidents, including abuse and neglect of NDIS participants;
Promotes the NDIS principles of choice and control, and works to empower participants to exercise their rights to access quality services as informed consumers;
Registers and regulates NDIS providers and oversees the NDIS Code of Conduct and NDIS Practice Standards;
Provides guidance and best practice information to NDIS providers on how to comply with their registration responsibilities;
Monitors compliance against the NDIS Code of Conduct and NDIS Practice Standards, including undertaking investigations and taking enforcement action;
Monitors the use of restrictive practices within the NDIS with the aim of reducing and eliminating such practices;
Works in collaboration with states and territories to design and implement nationally consistent NDIS worker screening;
Focuses on education, capacity building and development for people with disability, NDIS providers and workers;
Facilitates information sharing with the NDIA, state and territory authorities and other Commonwealth regulatory bodies.
The NDIS Commission can take complaints about:
NDIS services or supports that were not provided in a safe and respectful way;
NDIS services and supports that were not delivered to an appropriate standard;
How an NDIS provider has managed a complaint about services or supports provided to a NDIS participant.
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The office of the Disability Services Commissioner (DSC) is an independent agency that helps resolve complaints in Victoria.
DSC can help with enquiries and complaints about disability services delivered by registered disability service providers under the D Act that are:
funded or contracted by the Department of Families, Fairness and Housing;
funded by the Transport Accident Commission.
DSC does not handle complaints about the NDIS or services funded by the scheme, the NDIA, disability employment services, the Companion Card program or Centrelink.
The DSC also has oversight of registered Victorian disability funded services in relation to:
reviewing and investigating incident reports that relate to assault, injury or poor care;
reviewing and investigating the deaths of people who were receiving disability services at the time of their death;
initiating other investigations where there are allegations of abuse or neglect of an individual or that are recurring or systemic; and
providing education and information to the disability sector about responding to abuse and neglect.
Contact details are provided at the end of this chapter.
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The Mental Health and Wellbeing Commission (MHWC) is an independent statutory entity established under the MHW Act. It monitors and reports on the performance, quality and safety of Victoria’s mental health and wellbeing system and holds the government to account for the implementation of the Royal Commission into Victoria’s Mental Health System.
The MHWC:
Supports people with lived experience to lead and partner in reform and play a key role in leading actions to reduce stigma related to mental health;
Provides a system monitoring and oversight role, handles complaints, conducts investigations, and promotes effective complaint handling by publicly funded Mental Health and Wellbeing Services Providers;
Publishes reports on the performance, quality and safety of the mental health and wellbeing system and works to improve the mental health and wellbeing of Victorians.
Contact details are provided at the end of this chapter.
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The Victorian Health Complaints Commissioner (HCC) receives and resolves complaints about health services and the handling of health information in Victoria under the Health Complaints Act 2016 (Vic).
HCC resolves complaints through alternative dispute resolution methods and can also conduct investigations. It can also investigate and take action against providers who pose a risk to public health and safety. The service is free and impartial.
HCC also receives and resolves complaints about private sector mental health service providers. Complaints related to public mental health services are handled by the MHWC.
Under the Health Records Act 2001 (Vic), the HCC receives and deals with complaints about the handling of health information and breaches of privacy in relation to health information in both the public and private sectors and access to health records held by private organisations. (See also ‘Health Records Act’ in Chapter 12.2: Privacy and your rights.)
Contact details are provided at the end of this chapter.
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The Complaints Resolution and Referral Service is available to discuss any concerns about a Disability Employment Services provider, Australian Disability Enterprises and/or Advocacy Services that is funded by the Australian Government.
Contact details are provided at the end of this chapter.
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Introduction and key legislation
The Public Advocate is an independent statutory office established under the Guardianship and Administration Act 1986 (Vic). On 1 March 2020, that Act was replaced by the GA Act, which continued the role.
The Public Advocate’s functions on behalf of people with disability include:
promoting the human rights of people with disability and developing their ability to act independently;
protecting people with disability against abuse, neglect and exploitation;
advocating on a systematic or individual level;
coordinating programs that achieve these goals;
informing the public about the laws affecting people with disability; and
acting as guardian and medical treatment decision-maker of last resort.
The Public Advocate’s office is known as the Office of the Public Advocate (OPA).
Information and advice
OPA provides information and advice to people with disability, their supporters and other members of the community about guardianship and administration, supportive guardianship and administration, applications to the Victorian Civil and Administration Tribunal (VCAT), enduring powers of attorney and supportive attorneys, supported decision-making, the rights of people with disabilities, medical treatment decision-making and advance care directives.
OPA’s community education program conducts regular education sessions and provides written resources and speakers.
Investigations and advocacy
Where there is an allegation of abuse, mistreatment or exploitation of someone with disability, OPA has the power to investigate if the person needs guardianship (GA Act s 16(1)(g)).
The Public Advocate may choose to exercise this power if there is no complaints body or other more fitting agency to address the allegation.
If the investigation is blocked by the person or agency involved in the alleged abuse, an application for guardianship may need to be made to VCAT (the Guardianship List). On hearing the matter, VCAT may refer the matter to OPA for investigation Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’) sch 1 cl 35) or make a guardianship order or both. Where there is evidence that the person is being illegally detained or is likely to suffer serious harm, VCAT can also authorise active intervention with police assistance (GA Act s 43).
OPA can refer matters to the community Visitors Program (see ‘Community Visitors Program’, below). Where individual matters highlight a systemic issue with a law, policy or practice affecting multiple people, OPA may investigate, research and advocate about the issue to seek law reform or systemic change.
These activities include the publication of position statements, preparation of submissions to government inquiries and the publication of reports. OPA has also produced guides to assist people to plan ahead, including Take Control (June 2022). These and other publications can be downloaded from OPA’s website.
Protection from abuse
Generally, where there is an allegation of abuse, mistreatment or exploitation of someone with disability, OPA has the power to investigate if the person needs guardianship (GA Act s 16(1)(g)).
If the investigation is blocked by the person or agency involved in the alleged abuse, an application for guardianship may need to be made to VCAT (the Guardianship List), for VCAT to authorise an investigation (VCAT Act sch 1 cl 35) or make a guardianship order or both. Where there is evidence that the person is being illegally detained or is likely to suffer serious harm, VCAT can also authorise active intervention with police assistance (GA Act s 43).
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Community Visitors Program is managed by the OPA. The Program has a statutory base in the MHW Act, the D Act and the Supported Residential Services (Private Proprietors) Act 2010 (Vic).
Community Visitors are community volunteers appointed by the Governor-in-Council who regularly visit:
disability accommodation for people with psychosocial, cognitive or intellectual disabilities;
registered supported residential services; and
public mental health units.
Community Visitors have the power to enter unannounced and make enquiries, access documentation and consult with anyone involved in the provision of services or the administration of a facility.
They talk to residents on issues such as:
the adequacy of services;
standards within the facility;
the care and treatment being received; and
social and community inclusion.
Community Visitors respond to queries and enquire into complaints. If the issues are unable to be resolved at a service level, they can be raised with OPA, with the appropriate regulator and ultimately with the government minister responsible.
NDIS matters related to the quality of NDIS-funded services can be escalated to the NDIS Commission (see ‘National Disability Insurance Scheme Quality and Safeguards Commission (Commonwealth)’ above).
Section 17 of the GA Act gives the Public Advocate powers similar to those of Community Visitors to visit, inspect and enquire into particular matters at specified premises.
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It is unlawful to discriminate against any person who has, or has previously had, a disability in the area of:
employment (including matters concerning an application for employment, dismissal, terms and benefits of employment, training and promotion);
provision of goods and services (including banking, retailing, insurance and entertainment);
education;
clubs and community organisations (if receiving government assistance or on government land);
accommodation;
sport;
local government;
administration of Commonwealth laws and programs; and
disposal of land.
There are exceptions to these. If you believe you have been discriminated against because of a disability, it is advisable to contact the Victorian Equal Opportunity and Human Rights Commission or the Australian Human Rights Commission. (For further information, see Chapter 11.1: Discrimination and human rights.)
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Family violence intervention orders under the FPV Act, can include orders against people who provide care for a person with disability, whether that care is paid or unpaid.
The types of acts contemplated include:
physical or sexual abuse;
emotional or psychological abuse;
economic abuse; and
coercion or control and domination that makes the person fear for their safety and wellbeing.
Paid care can include supports funded by the NDIS or in a residential service under the D Act.
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The Disability Royal Commission (DRC) concluded that sexual violence occurs disproportionately against people with disability, stating that:
‘Women with disability experience sexual violence and abuse at higher rates than women without disability and men with disability. For instance, 29 per cent of women aged 18 to 64 with disability have experienced sexual assault since the age of 15.’
They are:
nearly twice as likely as women without disability (15 per cent) to have been sexually assaulted; and
more than three times more likely as men with disability (7.7 per cent) to have been sexually assaulted.
For this reason, it is crucial that lawyers supporting clients with disability understand the legislation intended to provide support and protections for victims who have a disability and victims generally.
(For protections specific to people with disabilities see the next section; FVP Act s 8(3)(1); the Victorian Government’s Disability and Family Violence Crisis Response Initiative; Chapter 4.4: Family Violence; Chapter 10.6: Assistance for victims of crime for supports and protections of victims generally).
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There are specific offences in the Crimes Act concerning a person who provides treatment or a support service to a person with cognitive impairment or mental illness (a ‘client’):
it is a crime to engage in acts involving sexual penetration with a client (s 52B);
it is a crime to engage in sexual touching with a client (s 52C);
it is a crime to engage in sexual activity in the presence of a client (s 52D); and
it is a crime to cause a client to be present when someone engages in sexual activity (s 52E).
Giving evidence
The prevention of abuse of people with cognitive impairments has been hindered by difficulties with the requirements for a witness to give evidence. While the law assumes competence, many people with cognitive impairment need support to be able to give evidence in court proceedings, and for their communication needs to be accommodated.
Some important protections apply to a witness with a cognitive impairment:
a person with cognitive disability can simply use the words, ‘I promise to tell the truth’ rather than a full oath or affirmation when being sworn in as a witness (Evidence Act s 21(6));
a person with cognitive disability giving evidence about certain types of offences is allowed to give their evidence by audio or audiovisual recording rather than in a courtroom (CP Act s 367);
where a person with intellectual disability is the victim of an alleged sexual offence, all evidence must be given at a special hearing unless the person wishes otherwise. This includes them not being in the same room as the person accused of the offence when giving evidence, and only authorised people being present in the courtroom when evidence is given (CP Act s 370). There are additional requirements about this type of witness being cross-examined or re-examined (s 376(1)).
In some courts, a witness may be supported in their communication through an intermediary through the Intermediaries Pilot Program established by the Department of Justice and Community Safety.
(See ‘Contacts’ at the end of this chapter.)
Protections from abuse and unfair treatment
Chapter: 8.1: Understanding disability and the law
Contributor: Philip Grano, Former Principal Lawyer, Office of the Public Advocate; Naomi Anderson, Legal Practice Manager, Villamanta Disability Rights Legal Service
Current as of: 1 September 2024
Law Handbook Page: 698
Next Section: Limitation on rights
