On 30 November 2020, the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Royal Commission) published a Public Hearing Report in relation to Public Hearing 5, which was held in Sydney between 18 and 20 August 2020, and examined the experiences of people with disability during the COVID-19 pandemic (Report).

The Report was prepared following Public Hearing 5, and was prepared in advance of the Royal Commission's Final Report, in consideration of the fact that the COVID-19 pandemic (Pandemic) could last for an extended period of time, and accordingly, had the potential to continue to acutely impact people with disability.

In the Report, the Royal Commission makes 22 Recommendations, primarily directed at the Commonwealth and State and Territory Governments, as well as the National Disability Insurance Scheme (NDIS) Quality and Safeguards Commission (QSC).

In this update, we discuss the key findings and recommendations made by Royal Commission in its Report. While the Report is largely critical of Commonwealth, State and Territory Governments, it also notes that some of the deficiencies identified are in the process of being remedied or have been resolved.

It is unclear whether the Royal Commission is taking feedback from relevant stakeholders in relation to the Report or its Recommendations. It is also unclear whether the Commonwealth Government will accept the Report's Recommendations. However, the Royal Commission has expressed its intention to review 'the Australian Government’s response to the recommendations in this report' in early 2021.

Read the Royal Commission's Report.

Summary

The Report examines Government's response to COVID-19, and the failure to develop a response tailored to disability service providers or to consult with disability advocate groups, or persons with disability:

'It is striking that neither disability representative organisations nor individual people with disability were consulted during the critical early period when emergency plans responding to the pandemic were being prepared'

The failure of Government at all levels to consider the unique needs of the disability sector, to consult with advocacy groups and people with disability and to take steps to protect people with disability from the risks associated with the pandemic runs throughout the Report.

The Commonwealth Government has already indicated its acceptance of a number of the recommendations previously made by Counsel Assisting in Public Hearing 5, including that:

• the Commonwealth Government should review all existing emergency plans for the purpose of identifying and modifying these plans to ensure that people with disability are included and considered in a manner that is consistent with Australia's international obligations; and
• the next National Disability Strategy should specifically establish 'pathways to ensure persons with disability, through their representative organisations, are consulted and included at every level in the planning and response to other public emergencies'.

The latter recommendation has been adopted by the Australian Government in an amended form to remove the reference to representative organisations to capture a wider range of views.

Planning

The Report outlines a range of planning shortcomings that compromised the Commonwealth Government's response to the Pandemic. The Report notes that the guidelines for COVID-19 outbreaks in residential care facilities did not refer specifically to the QSC, or the specific circumstances of disability accommodation services. The Royal Commission has found that the Australian Government failed to give clear guidance in relation to infection control and outbreak management to service providers which accounted for the differences of service delivery in disability accommodation settings.

The Report recommends that specific guidelines relating to the management of COVID-19 in disability settings be developed by the Commonwealth Department of Health in consultation with the QSC and National Disability Insurance Agency (NDIA).

With a view to effective planning and co-ordination of the health and disability response to emergencies such as the Pandemic, the Report recommends that a single unit within the Department of Health be responsible for planning to protect and improve the health, safety and wellbeing of people with disability.

The Royal Commission highlights evidence heard at Public Hearing 5, regarding the difficulties experienced by persons with disability in receiving testing for COVID-19. While the Australian Government was aware that there were accessibility issues for people with disability in relation to conventional COVID-19 testing, steps were not taken to facilitate access to testing for people with disability. Necessary changes to screening and testing were identified in the Management and Operational Plan for People with Disability, and the Royal Commission recommends that these be implemented 'without delay'.

Funding

While the Report does not consider funding issues in detail, the Report notes the Commonwealth Government's submission made during the course of Public Hearing 5 in which Counsel Assisting's recommendation that 'the Commonwealth Government fund and support people with disability and their organisations to participate in consultation with it during the COVID-19 pandemic' was 'acknowledged'. The Report suggests that this acknowledgment is an indication of the Commonwealth Government's acceptance of the recommendation however, this has not yet been confirmed.

Advocacy

In highlighting the crucial role of advocacy by disability representative organisations, the Royal Commission found that funding available to disability representative organisations was insufficient due to increasing demand for services. The Royal Commission has recommended that the Government immediately commit to additional funding for disability representative organisations in relation to the Pandemic, and commit to such funding being available in relation to future pandemics or emergencies.

Data

The Report contends that the Australian Government failed to collect adequate data in relation to the number of people with disability who contracted COVID-19, nor has it released data in relation to infections and deaths in disability accommodation relating to COVID-19.

Quality and Safety Commission Engagement

The commentary and recommendations around the QSC are arguably the most significant component of the Report as it relates to NDIS providers.

The Report states that from the start of the Pandemic, the QSC adhered to a policy that primary responsibility for ensuring the safety, health and wellbeing of participants rested with the registered service providers. The Royal Commission has found that the relevant provisions in the National Disability Insurance Scheme Act 2013 (Cth) did not prevent the QSC from taking a more proactive approach to the Pandemic. Further, the Royal Commission states that the failure of the QSC to 'intensify active oversight' of NDIS participants was a missed opportunity. The Royal Commission has recommended that the QSC review the NDIS Practice Standards and Quality Indicators to ensure they are fit for purpose for pandemics and other emergencies.

Workforce

A key concern of the Royal Commission is the casualisation of the disability workforce and the lack of priority support from the Government for workers in a disability setting. Although, the Royal Commission has not made recommendations to reduce the casualisation of the disability workforce, they have recommended that the Australian Government, in conjunction with the States and Territories, make provision for disability support workers to have priority access to PPE and testing in the event of a further COVID-19 outbreak.

Healthcare Rationing

Finally, the Report outlines the concerns that persons with disability had in relation to healthcare rationing, and the significant fear and anxiety in the community in relation to access to health services were the Pandemic to escalate to a point where healthcare rationing was required. Although it is acknowledged that healthcare rationing was never proposed in Australia, the Report recommends that guidelines be published by the Government making it clear that people with disability will never be denied access to health services due to rationing, how intensive care units and a COVID-19 vaccine will be accessed by people with disability, and that similar guidelines be published by the States and Territories.

Where to from here?

On balance, the Report is concerned with the response of Government and the QSC to the COVID-19 Pandemic. Accordingly, the key takeaways for disability service providers relate to how their interactions with Government and the QSC might look like if there was to be a resurgence of COVID-19 in Australia. This will likely mean a greater level of support and collaboration, given the finding that the disability sector was largely 'forgotten' in its initial response to the pandemic. It is important to note however that greater support likely comes with greater scrutiny, and providers may find that the QSC and State and Territory Governments are much more engaged with providers, particularly due to the suggestion that the QSC should (and could) have taken a more proactive role in protecting people with disability, rather than this being left primarily to registered service providers.