16 June 2020 

Ann Marie Smith death highlights legal gaps that must be addressed

The tragic death of Ann Marie-Smith has highlighted significant gaps in the legal framework designed to protect people with disability.

The Law Society has written to the Safeguarding Task Force – established by the State Government - outlining some of the existing shortcomings in the system and suggesting reforms to reduce the risk of people with disability experiencing violence, abuse, neglect and exploitation.                          
The Society has also written to The Hon Nat Cook MP, suggesting necessary changes to the MP’s proposed Community Visitor Scheme legislation, which the Society supports in principle.

“There are currently Federal and State laws designed to protect people with disability from violence, abuse, neglect and exploitation, but the current regimes have significant gaps, in part due to the way the State and Federal jurisdictions interact. Those gaps can have grave consequences for the safety of people with disability in the community,” said Law Society President Tim White.

“In SA, there is currently no specific legislative framework to protect people with disability living in the community who experience violence, abuse, neglect or exploitation, beyond first responders such as child protection and SA Police.”

“However, the proposed implementation of a Community Visitor Scheme with appropriate safeguards, in conjunction with the existing Adult Safeguarding Scheme being utilised to its full potential, would go a significant way to providing a legal safety net and addressing some of these gaps.”

The Adult Safeguarding Unit was established in 2019 to respond to concerns of abuse against vulnerable people. The primary focus of the Unit to date has been to investigate elder abuse, and currently is limited to people over 65 and Indigenous people over 55. However, the scheme is due to be broadened to apply to all vulnerable adults from 2022.

“The legislation that governs the Adult Safeguarding Unit explicitly states that people with disability are among the categories of people the Unit is charged with protecting,” Mr White said.

“This is an important mechanism to intervene in instances of suspected abuse against people with disability in the community.”

Since the transition from state funded disability services to the NDIS, SA’s current community visitor scheme has become largely ineffectual as it is only applicable to State-funded disability accommodation premises, of which there are now very few.

Under changes to the scheme proposed by the Disability Inclusion (Community Visitor Scheme) Amendment Bill, a community visitor would have the power to visit and inspect a disability accommodation premises as well as a person’s private home if they were receiving supported independent living assistance from a disability service provider. The visitor would have an obligation to report any matters of concern to the Minister and also act as an advocate on behalf of people with disability.

“While the Society supports the functions and powers of a community visitor under the proposed scheme, it is imperative that there are appropriate safeguards to protect the privacy of people with disability, particularly with regards to visits to private residences,” Mr White said. “For example, visitors should be limited to investigating the care being provided by the service provider, and must be cautious against investigating general lifestyle choices of the resident or their families.”

“The Scheme should also allow a bystander to alert a community visitor to premises where there is concern over a person’s treatment. Under the Bill, a community visitor can only carry out a visit if the resident themselves makes a request, or by an “authorised” person with the consent of the resident.

“Clearly, in the shocking case of Ms Smith, her total isolation from the outside world meant that she, nor an authorised person, would have been able to make a request for a visit.”

“The Society suggests that by-standers, such as neighbours, should also have the ability to raise concern with the Community Visitor Scheme. In matters where a vulnerable person is cut off from the outside world, sometimes it is only neighbours or passers-by who may suspect any wrongdoing.”

“The Society shares the community’s horror at the reports of the deplorable conditions that Ms Smith was subjected to before she died, and is appalled that people with disability would be subjected to such shocking human rights violations. Preventing such an abhorrent tragedy from happening again should be a top priority for the State,” Mr White said.

“While legislative reform alone will not adequately address the disproportionate violence, abuse, neglect and exploitation of vulnerable people, it is a critical piece of a much larger puzzle.”