Involving People with Intellectual Disabilities in Tribunal Proceedings:

1. Involving People with Intellectual Disabilities in Tribunal Proceedings: Learnings from the Intellectual Disability Review Panel10th Annual AIJA Tribunals ConferenceLynne Coulson Barr, President , Intellectual Disability Review Panel, Victoria

2. Outline • Background- the Panel & broader context • General challenges • Three approaches to involvement: • Individual applications for hearings, • Hearings for a group of residents relocating from Redlands, • Reviews of residents relocating Kew Residential Services • Summing up - key learnings

3. Background:Intellectual Disability Review Panel • An independent statutory authority- established under the Intellectually Disabled Persons’ Services Act 1986 (IDPS Act) • Reviews certain decisions of the Department of Human Services • Reviewable decisions include decisions about eligibility, a person’s General Service Plan, use of restraint or seclusion & admissions to institutions • Unique ‘service brokerage’ role

4. Background:Intellectual Disability Review Panel • Provides advice in response to referral from Secretary or Minister, such as: Review of relocation plans for residents of Redlands & Kew Residential Services • Recommendatory powers • Bound by principles of IDPS Act • Advance dignity, worth, human rights and full potential • Right to exercise maximum control over every aspect of his or her life • Right to individualised developmental opportunities

5. Background:Intellectual Disability Review Panel • New disability legislation Disability Act 2006- to be proclaimed 1 July 2007 • Panel will cease to exist 30 Sept 2007 • New review and complaint mechanisms under new Act- VCAT and Disability Service Commissioner • Learnings from Panel’s experience will be relevant to other jurisdictions

6. Background- Broader Context Imperatives for Tribunals for effective involvement of people with intellectual disabilities in proceedings : • Requirements of natural justice/procedural fairness • Therapeutic jurisprudence • Movement to psychologically optimal way of handling legal matters • Fair, just processes- balance with ‘quick’ and ‘efficient’

7. Background- Broader Context Disability and Human Rights Imperatives: • “ Not about us without us”- Disability rights and self advocacy movement • United Nations Convention on the Rights of Persons with Disabilities- Onus to: • develop and carry out policies and administrative measures for securing the rights ( Article 4) • identify and eliminate obstacles and barriers to accessibility ( Article 9) • promote awareness of the capabilities of persons with disabilities (Article 8).

8. Background- Broader Context Disability and Human Rights (cont): • Victorian Charter of Human Rights and Responsibilities - July 2006. • Right to recognition and equality as a person before the law (section 8) • Right to a fair hearing (section 24)- includes right to fair proceedings by competent tribunal • What do these rights mean for people with intellectual disabilities?

9. General challenges Involvement & views of people with intellectual disabilities • Nature of intellectual disability • Cognitive impairments • Complex communication needs • Establishing effective communication • Receptive vs. expressive language • Identifying communication needs and methods • Availability of assessments

10. Example of communication tools

11. General challenges Involvement & views of people with intellectual disabilities • For many applications- reliant on information from others • Gaining the perspective of the person with intellectual disability- what is important to person • Weighing up views of others – family, advocates, service providers • Often absence of independent advocates • Absence, for some, of anyone who knows the person well

12. Approach 1:Individual Applications for Review Panel Processes • Hearing with three member Panel- Psychologist, Community, Department sessional members • Hearings must be attended by person affected and Dept reps • Family, advocates, direct care workers, legal reps etc also attend • Natural justice, not bound by technicalities

13. Approach 1:Individual Applications for Review Pre hearing Process • Pre hearing process is critical- need time • Consistent person (Executive Officer) to respond to queries/provide information • Important to ascertain needs/participation of person affected • Prepare person affected and advocates/family members/Dept members for their roles

14. Approach 1:Individual Applications for Review Pre hearing Process • Needs of person with intellectual disability considered in making hearing arrangements- e.g. • communication ability • familiar carers/family/advocate • attention span • factors that may cause distress • food/drink • health issues

15. Approach 1:Individual Applications for Review Pre hearing Process (cont) • Determine appropriate venue- range of venues • Need for space, familiarity, distractions, ability to travel • Options- tribunal rooms, residential facilities, day programs, community centres • Level of informality/formality • Prepare person for hearing-booklet

16. Hearing preparation booklet

17. Hearing preparation booklet

18. Hearing preparation booklet

19. Hearing preparation booklet

20. Approach 1:Individual Applications for review Hearing Process: • Panel usually meets person before hearing- ‘voir dire’ meeting with person- with or without support person • introduce Panel and environment • explain hearing processes and Panel’s role • check comfort re persons present • check understanding of hearing • ascertain specific communication needs • ascertain need for independent representative • explore ways for them to communicate need for breaks in hearing etc

21. Approach 1:Individual Applications for review Hearing Process: • Focus on person as centre of process: • Seating • Explaining documents • Use of language • Checking understanding • Validating concerns and views • Need for breaks and movement

22. Approach 1:Individual Applications for review Learnings: • Pre-hearing process and contact person is critical • Need for time to ascertain needs/prepare person for hearing • Benefits of multi member Panel with range of expertise and experience • Need for flexibility in hearings-timing and venue allowing breaks- person to come and go • Adjournments to obtain further information/ visit person in his/her environment

23. Approach 1:Individual Applications for review Learnings:Constraints • Having the communication tools to maximise person’s participation • Time constraints to hear and determine matter • Response of other parties • Numbers of people present

24. Approach 2:Redlands Reviews Background • Closure of “congregate care service” for 28 residents- ‘intentional community’ created by families, residents grown up together on isolated site • Ministerial referral for advice • Advice re accommodation model • Review individual General Service Plans • Research study examined process of 25 hearings by Dr Christine Bigby & Sue Tait (former President)

25. Approach 2:Redlands Reviews Pre Hearing Process • Assess ways to maximise resident participation. • President met with each resident at Redlands • Visit by Panel members to Redlands • Development of communication tools • Photo book – Panel premises and personnel - prior to hearing • “Redlands Storybook”- types of housing- leisure activities • Photo collection + Storyboard – resident photos & activities.

26. Approach 2:Redlands Reviews Hearing Process • Panel received General Service Plan, Assessment of needs, consultants report • Hearings attended by resident, family, direct care worker, case manager, senior DHS and agency managers • Where feasible resident spoke first using story book and story board • Effective or partial communication with 18 residents out of 28 /no effective communication with remaining residents • Others invited to “put selves in shoes of resident”

27. Redlands ‘Story book’ Approach 2:Redlands Reviews

28. Redlands ‘Story book’ Approach 2:Redlands Reviews

29. Redlands ‘Story board’ Approach 2:Redlands Reviews

30. Approach 2:Redlands Reviews Outcomes • Recommended changes to each resident’s GSP-focus on individuals • Identified significant unmet needs • Rejected submissions by some family members for ‘cluster village’ model • Recommended significant changes to resident groupings • Range of different housing models to meet individual needs

31. Approach 2:Redlands Reviews Learnings- Results from Research Study • Conflicting views on hearings • Panel members and managers – opportunity to refocus attention on residents • Presence of resident • supported by case managers, Panel members, direct care workers • contested by family- 64% • Concerns about number of people, unfamiliar settings etc

32. Approach 2:Redlands Reviews Learnings- Results from Research Study • Process not tailored to each individual • Mixed views on communication tools • Views of Panel members • More time to get to know the resident • Appointment of independent advocate • Importance of in depth knowledge and detailed assessment of needs reports • Potential for greater investigative role • Query whether formal hearings appropriate medium

33. Approach 3:Kew Residential Services Background • Government decision to close largest institution • Large scale service redevelopment-455 residents to move to community houses • Referral by Secretary to develop Protocol for provision of advice on relocation plans for all residents • Decided on ‘investigative’ process • Reviews commenced July 2003- will complete in July 2007

34. Approach 3:Kew Residential Services Process • Review conducted by ‘investigative’ process and series of meetings/visits by two Panel members per house grouping • Panel reviews documentation, meets with case managers, residents, visit house, speak with family etc • Assessment of Needs reports • Communication assessments, ‘About me’ books to assist • Meetings with residents in own environment, new house, venues of choice.

35. Approach 3:Kew Residential Services Outcomes • Recommendations made across all areas of GSPs eg Living Situation, Health, Vocation, Advocacy, Family Support • Quality improvement effect on GSPs • Department regards role as value-added for residents and quality of planning

36. Approach 3:Kew Residential Services Learnings: Investigative Process • Process allows for involvement of resident on range of levels • Time to piece together information from range of sources/weigh up conflicting views • Detailed ‘Assessment of Needs’ reports and in depth knowledge of person a key to the process • Less control of processes compared to hearings • Importance of a collaborative approach and understanding of role of review

37. Summing upKey learnings for involving people with intellectual disabilities • Pre hearing processes and resources can be as critical as the hearing • Need time and flexibility to accommodate needs and abilities of affected person • Focus on communication needs • Role for investigative processes outside formal hearing processes • Room for a hybrid model of a hearing with an investigative process?

38. For more information Intellectual Disability Review Panel 30/570 Bourke St Melbourne 3000 Ph: 03 8601 5244 Fax: 03 8601 5288 Toll Free: 1800 641 038 Email:idrp@dhs.vic.gov.au Website:www.idrp.vic.gov.au _________________________________Article on Redland’s Review: Bigby, C. & Tait, S (2004) Evaluation of the independent review of a major life decision affecting people who have an intellectual disability. Psychiatry, Psychology and Law, 11, 2, 202-213