RECOMMENDATIONS

Co-ordination between agencies

48. The Ageing and Disability Department should co-ordinate strategy for government agencies responsible for the treatment of people with an intellectual disability who are involved in the criminal justice system through the development of a comprehensive interdepartmental policy and procedural framework designed to protect the rights and meet the needs of these people. To do this, the Department should, after consultation but within 12 months of the tabling of this Report:

(a) prepare an agreed set of principles about people with an intellectual disability in the criminal justice system;

(b) identify the service and other needs of people with an intellectual disability within the criminal justice system;

(c) decide which agency is primarily responsible for meeting those needs or providing those services and prepare interagency guidelines reflecting these responsibilities;

(d) develop a strategic plan and time frame for establishing new services needed;

(e) develop interagency guidelines: for overlapping agency responsibilities or a changeover of responsibility; for handling conflicts between agencies; and for regular communication between agencies, to ensure continuity of contact and service provision for a person with an intellectual disability.

The Department should monitor the implementation of (a)-(e) above. As part of this monitoring, it should report annually to the Attorney General through its Minister on its progress in implementing this recommendation and should also include information about this process in its Annual Report. [See paras 10.9-10.22]

49. The Community Services Commission’s complaints and monitoring jurisdiction should be expanded to cover the provision of services by relevant government agencies involved in the criminal justice system to people with an intellectual disability. [See paras 10.23-10.24]

Exchange of information

50. The Ageing and Disability Department should develop mechanisms and guidelines to ensure that government agencies involved in the criminal justice system exchange, where appropriate, relevant information they hold about a person with an intellectual disability. The mechanisms and guidelines should take into account privacy considerations. [See paras 10.25-10.26]

Screening, assessing and identifying intellectual disability

51. The Ageing and Disability Department should contact and assist government agencies to ensure that each has appropriate principles and procedures for screening, assessing and identifying people with an intellectual disability. [See para 10.27]

Government agencies’ policies

52. Each government agency should, using the principles, policies and procedures developed by the Ageing and Disability Department under Recommendation 48 as a basis, develop and implement a policy and operational guidelines for addressing the rights and needs of people with an intellectual disability. [See paras 10.28-10.31]

Police intellectual disability liaison officers

53. The New South Wales Police Service should establish specialist intellectual disability police liaison officer positions. [See paras 10.32-10.37]

Ensuring continuity of contact and service provision

54. The New South Wales Department of Community Services should establish a case manager service for all people with an intellectual disability who come into contact with the criminal justice system. [See paras 10.38-10.50]

Explanatory Note to Recommendations 48-54

Relevant New South Wales government agencies for the purposes of these Recommendations are:

• Ageing and Disability Department;
• Attorney General’s Department, including the Crown Solicitor’s Office;
• Crown Prosecutors;
• Department of Community Services;
• Department of Corrective Services, including the New South Wales Probation and Parole Service;
• Department of Health;
• Department of Juvenile Justice;
• Guardianship Board of New South Wales;
• Legal Aid Commission of New South Wales;
• Mental Health Review Tribunal;
• New South Wales Police Service;
• Office of the Director of Public Prosecutions;
• Office of the Public Guardian and the Protective Commissioner; and
• Public Defenders.

If administrative arrangements change, the list of agencies is to include the agencies that take responsibility for the areas currently administered by the above agencies.

Reference in the above recommendations to involvement in the criminal justice system includes people who are at risk of involvement in the criminal justice system.

Reference to people with an intellectual disability includes consideration of the special needs of people with an intellectual disability who face the additional disadvantages of having a “dual diagnosis” of both mental illness and intellectual disability or of coming from Aboriginal, Torres Strait Islander or non-English speaking backgrounds. Wherever possible, people with an intellectual disability should be consulted about the procedures outlined above.

The Commission considers that Recommendations 48 and 54 above are key recommendations for the inquiry as a whole.

BACKGROUND

10.1 A number of reports in Australia and overseas have considered the difficulties faced by people with an intellectual disability in the criminal justice system. Many of these have identified the fundamental problem of the lack of a systematic and coherent approach to people with an intellectual disability at risk of becoming involved in, and involved in, the criminal justice system.¹ Submissions and consultations also emphasised lack of co-ordination as a problem and referred to the need for a systematic and co-ordinated approach.² Problems of lack of co-ordination occur at a number of levels.

• There is little co-ordination between government agencies, including government departments, for example: there are no clear interdepartmental arrangements for the transfer of relevant information about a person³ or responsibility for a person from one agency to the next;⁴ there is uncertainty about which agency is the appropriate contact, provider of services or source of information;⁵ and there are people needing services for whom no agency will accept responsibility.⁶
• Many criminal justice agencies do not have a systematic approach to clients who have an intellectual disability, for example: they do not have appropriate procedures to identify people with an intellectual disability;⁷ staff often do not understand the needs of people with an intellectual disability or how to meet them;⁸ the agency’s responses to difficulties may be inappropriate, based on wrong information or inconsistent;⁹ and there is no adequate formal system of liaison and consultation between agencies and people with an intellectual disability, their carers and representatives.¹⁰
• There is no overall co-ordination or continuity in the way support is provided to an individual when he or she comes into contact with the criminal justice system. It tends to be provided in a sporadic and crisis-based manner.¹¹

The consequences of poor co-ordination

10.2 Lack of co-ordination has caused a range of difficulties for people with an intellectual disability. Those who fall into grey areas of departmental responsibility often do not get the services they need. For example, no department accepts clear responsibility to provide supervised accommodation for people with an intellectual disability who need appropriate accommodation while on probation or parole.¹² Those with a dual diagnosis of intellectual disability together with behavioural problems or psychiatric illness are likely to fall between the mental health system and services for people with an intellectual disability.¹³

10.3 People trying to find services find themselves referred from one department to another. One commentator stated:

Some families have been to literally hundreds of agencies in an attempt to find consistent help for their child. Education, health, community, welfare, church and non-government, recreational, and vocational training programmes have been the sieves through which these clients and their families have fallen.¹⁴

10.4 Where services or programs are provided, they are not necessarily provided by the most suitable department or agency, for example they may be provided by a criminal justice agency such as the Department of Juvenile Justice rather than a services agency such as the Department of Community Services.¹⁵ Service provision is fragmented and does not address “whole of life” needs of the person. Because there is no systematic way of ensuring that a person with an intellectual disability receives continuity of service provision, a person may lose services when he or she moves from the responsibility of one department to another. Without these services, a person may return to earlier behaviour patterns and re-offend.¹⁶

10.5 The person is often exposed to a constant change in personnel which may add to his or her distress. As outlined above, information about identification and assessment gathered at one stage in the system, for example, in court proceedings, is not always passed on to the next stage, for example, the prison. A person with an intellectual disability may be assaulted or abused in prison or may not receive special services because the prison was not aware that the person had been identified as having an intellectual disability.¹⁷ Services and functions may be unnecessarily duplicated, for example, a person may be assessed more than once for the same purpose.¹⁸ For people with an intellectual disability who are Aboriginal people or Torres Strait Islanders, of non-English speaking backgrounds or who are diagnosed with both intellectual disability and mental illness, these problems are even more acute.¹⁹

Reasons for lack of co-ordination

10.6 Achieving co-ordination is particularly difficult in this area because so many agencies and personnel can become involved when a person with an intellectual disability enters the criminal justice system. These include the Department of School Education, Department of Technical and Further Education, Department of Community Services, Department of Health, Department of Housing, New South Wales Police Service, Attorney General’s Department, Department of Juvenile Justice, Department of Corrective Services (including the New South Wales Probation and Parole Service), Ageing and Disability Department, Ombudsman, Judiciary/Magistracy, Legal Aid Commission of New South Wales, Office of the Director of Public Prosecutions, other lawyers, Office of the Public Guardian, Guardianship Board of New South Wales, non government agencies, Mental Health Review Tribunal, and Department of Social Security. The complexity is added to by the existence of both federal and State responsibilities in the area of disability services.

10.7 Achieving a systematic approach has also been difficult because departments and agencies have not given the issue a high priority. The misconception that only small numbers are involved appears to be partly responsible for this.²⁰ The Office of the Public Guardian stated:

There persists an inadequate level of commitment and resolve on behalf of some of the key departments and service agencies to undertake appropriate action to ameliorate difficulties experienced by this extremely vulnerable group of people. In particular, motivation to attempt to undertake innovative strategies or programs is gravely lacking. This had been evidenced by the significant lack of co-operation in strategic planning and advocacy in this area by such departments.

... While we understand that some internal developments are being considered within this Department in this area, the Office of the Public Guardian remains dissatisfied with the level of activity and consultation by the Department of Community Services. Despite a significant number of attempts to gain undertakings from the Department to develop innovative strategies in the areas of supported accommodation and service provision for people who are in contact with the criminal justice system, or people with significant difficulties in challenging behaviour ..., this has not been forthcoming and no indications have been provided as to when this might occur.²¹

10.8 Agencies, particularly government departments such as the Department of Community Services are often under-resourced and therefore are unlikely to take responsibility for the provision of services in areas other than those that clearly fall within their self-defined “target population”.²² The Commission’s recommendations in this chapter are designed to provide a comprehensive and systematic approach to the difficulties faced by people with an intellectual disability and to “plug the gaps” in the current system. A key player in achieving this co-ordination must be the Ageing and Disability Department, established in 1995 (see below). As discussed in Chapter 9, these recommendations cannot be achieved by simply reshuffling resources, there will need to be additional sums spent.

DISCUSSION OF COMMISSION’S RECOMMENDATIONS

Recommendation 48: A co-ordinated approach

10.9 The Commission believes that the first priority in this reference is to ensure that immediate steps are taken to ensure there is a systematic and co-ordinated approach to people with an intellectual disability in the criminal justice system. The current ad hoc and crisis-based approach results in a violation of the human rights of many people with an intellectual disability by preventing them from realising their individual capacities for physical, social, emotional and intellectual development and to live in and be part of the community.²³ The New South Wales Council for Intellectual Disability stated that its:

observations of attempts at inter-agency co-ordination have been that while local efforts may be effective, this depends largely on the individuals involved, and therefore produces variable results across the state. Alternatively, various Departments may send representatives to centralised Inter-departmental Committees, such as that currently auspiced by the Office on Disability, to discuss issues and strategies. However, in both scenarios, CID believes much effort is wasted and good intentions lost when such inter-agencies are not operating from the basis of clearly established policies from each jurisdiction. The issues of inter-departmental co-operation and responsibilities must start from much higher than is possible through any of the Committees we have observed. CID argues that the various Departments and bodies involved must develop and make public clear statements of responsibility and policy regarding their dealings with people with intellectual disability.²⁴

Who should be responsible for co-ordination?

10.10 In DP 35 the Commission proposed establishing an Intellectual Disability Commissioner as the mechanism for overcoming the lack of co-ordination among agencies in the criminal justice system.²⁵ The Commission also envisaged that the Intellectual Disability Commissioner would have an educational and training role and a research-promoting function. A number of submissions supported the proposal.²⁶ They emphasised the need for independence,²⁷ adequate funding²⁸ and a legislative base²⁹ for the proposal. The Commission remains convinced that there is a need for a separate, adequately funded body to undertake a co-ordination role. Concerns raised in submissions have led the Commission to conclude that establishing an Intellectual Disability Commissioner is not necessarily the most efficient way to achieve co-ordination. Concerns raised by submissions include:

• it would be a duplication of resources and bureaucracy;³⁰
• its functions would overlap with those of the recently established Community Services Commission and other watchdog bodies;³¹
• it would cause confusion;³² and
• singling out intellectual disability as needing a Commissioner may not be practical or appropriate.³³

10.11 Additionally, since the release of DP 35 in October 1994, new administrative arrangements have been established in this area. There is now an Ageing and Disability Department (“ADD”) which has responsibility for developing and managing disability policies including implementing and reviewing disability services legislation. It also funds and monitors some programs for people with a disability. The service delivery functions are to remain with the Department of Community Services (“DOCS”). The functions of an Intellectual Disability Commissioner would overlap significantly with the functions of the new Department. The Commission has concluded that the appropriate body to take responsibility for achieving co-ordination is the ADD, rather than a new bureaucratic structure. It is independent of service delivery departments. It clearly has responsibility for Policy in relation to people with an intellectual disability. Part of its brief is to monitor adequacy of services to people with an intellectual disability.

Requirements for achieving co-ordination

10.12 There are a number of vital tasks that the ADD must carry out to achieve a well co-ordinated and integrated approach to people with an intellectual disability in the criminal justice system. It must involve all the relevant agencies, but responsibility for finalising and resolving issues and conflicts should lie with the ADD. To ensure that it properly takes into account the rights, wishes and needs of people with an intellectual disability, the ADD should consult, as appropriate, people with an intellectual disability.

10.13 Recommendation 48(a): A common set of principles. The starting point for co-ordination is to have a set of principles that all relevant government agencies use as a basis for their work with people with an intellectual disability. Agencies cannot work together effectively unless they have agreement about such matters as: the nature of intellectual disability; objectives of services for people with an intellectual disability involved in the criminal justice system and for those at risk; the rights of people with intellectual disability in the criminal justice system; and training and information obligations. Some suggested principles are:

• where appropriate, legal processes affecting a person with a disability should be expedited;³⁴
• there should be the highest level of continuity of personnel possible;³⁵ and
• there should be specific measures for educating the person with an intellectual disability about the criminal justice process.³⁶

10.14 Recommendation 48(b): Identification of service needs. The Commission has identified a number of areas in which the needs of people with an intellectual disability in contact with the criminal justice system, or at risk of coming into contact with the criminal justice system, are not being met.³⁷ It has also been told of the double disadvantage suffered by people with the additional disadvantages of mental illness, non-English speaking and Aboriginal and Torres Strait Islander backgrounds, and the particular difficulties faced by women and juveniles with an intellectual disability.³⁸ The Commission has made recommendations about the services it thinks are most critical in Chapter 11. However, there are a number of other unmet needs. The ADD should systematically identify the unmet service needs of people with an intellectual disability at all stages of the criminal justice process. In particular, it should focus on the preventative service needs of people with an intellectual disability at risk of entering the criminal justice system.

10.15 Recommendation 48(c)-(d): Allocation of responsibility and plan for new services. Uncertainty about which department or agency is responsible for meeting the various service needs of people with an intellectual disability must end. Having identified the needs, the ADD should finally resolve the issue of who has primary responsibility for providing services. If possible, it should reach a decision based on the consensus of relevant agencies. If that is not possible the final decision should lie with the ADD. The decision should be based on the best interests of people with an intellectual disability. As part of this process, the ADD should develop a strategic plan for establishing the new services needed. The plan should ensure that additional resources are made available to the agencies taking on additional responsibilities.

10.16 Recommendation 48(e): Interagency co-operation. Agencies must be able to work together at a local level. To ensure continuity of service provision, ADD should develop procedures that agencies must follow when a person with a disability moves from the responsibility of one to another. It should also develop guidelines for when more than one agency is involved with a person with an intellectual disability. Guidelines should include procedures for handling conflicts between agencies, and provide procedures and mechanisms for regular communication and information provision. A possible model would be the interagency guidelines for sexual assault victims.³⁹

Monitoring

10.17 The above recommendations do not involve a “one off” process. The ADD (and its successors) will need to monitor the implementation of the steps outlined above and also undertake (or allocate) other long term tasks such as: monitoring policy developments in Australia and overseas; encouraging research, initiatives in service delivery and other developments; and monitoring department and agency policies, procedures and training. Additionally, considering the poor record of implementation of the many previous reports in this area, the Commission considers that the progress of ADD in implementing this critical recommendation must also be monitored. It should report annually to the Attorney General through its Minister on the progress it has made and, to enable public scrutiny, ADD should also report on its progress in its Annual Report.

Date for implementation

10.18 The Commission regards this recommendation as playing a key role in improving the circumstances of people with an intellectual disability within the criminal justice system. The Commission believes that this recommendation should be acted on without delay. The Commission has therefore decided to recommend a deadline of 12 months from the date of tabling of this Report for ADD to implement this recommendation.

10.19 The Commission believes that the short term costs involved in implementing this recommendation will be recovered in the long term because:

• if, as the Commission believes, better co-ordination, particularly in the provision of services, reduces recidivism, there will be much less money spent on accommodating people with an intellectual disability in prison and processing offenders and reoffenders through the criminal justice system;⁴⁰
• there will be less wasteful duplication of services; and
• less time and money will be wasted on trying to find services for people with an intellectual disability.

10.20 Achieving co-ordination is complex. The guidelines and procedures ADD develops will need adjusting. Every three to five years the ADD should commission an independent review of the effectiveness of its policies, guidelines and procedures and the effectiveness of each relevant agency’s and department’s policies, guidelines, procedures and training.

Juvenile justice

10.21 As discussed in Chapter 2, there are particular concerns and issues for juveniles with an intellectual disability. There have been a number of major reviews and initiatives affecting the juvenile justice system as a whole: New South Wales Department of Family and Community Services Report from the Working Party on Services to Young Persons with Intellectual Disabilities in the Juvenile Justice System (1988); Youth Justice Coalition (NSW) Kids in Justice: A Blueprint for the 90s (1990); New South Wales Legislative Council’s Standing Committee on Social Issues Juvenile Justice in New South Wales (Report 4, 1992); Juvenile Justice Advisory Council of New South Wales Future Directions for Juvenile Justice in New South Wales (Green Paper, 1993); and New South Wales Government Breaking the Crime Cycle: New Directions for Juvenile Justice in New South Wales (White Paper, 1994). Some of the recommendations of the White Paper are in the process of being implemented. A report by the New South Wales Ombudsman on Juvenile Justice Centres is also due to be released in December 1996. There have also been other reports on issues affecting youth generally or youth with an intellectual disability in particular including: New South Wales Social Policy Directorate Supporting Young People in their Communities: Report of Community Youth Support Taskforce (1993); New South Wales Council for Intellectual Disability Homeless & 15: Young People With Intellectual Disability in Crisis (1995); New South Wales Legislative Council’s Standing Committee on Social Issues A Report into Youth Violence in New South Wales (Report 8, 1995); Human Rights and Equal Opportunity Commission and Australian Law Reform Commission Speaking for Ourselves: Children and the Legal Process (Issues Paper 18, 1996) and New South Wales Legislative Council’s Standing Committee on Social Issues Inquiry into Children’s Advocacy (Report 10, 1996).

10.22 All of these reports make recommendations likely to be of assistance to young people with an intellectual disability. Many of these reports, and submissions and consultations, confirm that the problems of co-ordination of service provision for adults with an intellectual disability also apply to youth with an intellectual disability in the juvenile justice system.⁴¹ A priority of the Juvenile Justice White Paper was the need to co-ordinate effectively the work of agencies involved in juvenile justice. As a result, an Inter-departmental Committee on Juvenile Justice was given responsibility for “developing an integrated, consistent and co-ordinated response from all agencies involved in the juvenile justice system”.⁴² The Commission does not want to pre-empt any initiatives that are taking place in the juvenile justice area. However, the Commission is concerned that the co-ordination strategy found in this recommendation should include the Department of Juvenile Justice. Youth with an intellectual disability are particularly vulnerable, and also have the greatest potential for benefiting from habilitation or rehabilitation programs. Therefore, the Commission recommends that the ADD and the Community Services Commission (see Recommendation 49 below) closely monitor policy development and service delivery for youth with an intellectual disability.

Recommendation 49: Monitoring by the Community Services Commission

10.23 Apart from the co-ordination strategy outlined above, the Commission is convinced that there is also a need for a body which can actively monitor service delivery to all people with an intellectual disability involved in the criminal justice system and which is able to handle complaints about the services they receive. The Community Services Commission has this role in relation to services provided to people with an intellectual disability by defined community service providers.⁴³ But it does not have the authority to monitor, or handle complaints in relation to, services delivered by other agencies to people with an intellectual disability involved in the criminal justice system.⁴⁴ The Community Services (Complaints, Appeals and Monitoring) Act 1993 (NSW) allows for the Commission’s jurisdiction to be expanded into other portfolios by arrangement between the relevant Ministers.⁴⁵

10.24 To avoid creating yet another body to monitor the services provided by other departments and agencies, arrangements should be made between the relevant Ministers, as foreshadowed by the current legislation, to enable the Community Services Commission to play this role in relation to people with an intellectual disability involved in the criminal justice system. This would enable a more integrated approach to monitoring service delivery and complaints.

Recommendation 50: Exchange of information

10.25 The failure of departments, courts and agencies to exchange relevant information about a person with an intellectual disability has caused a variety of problems for people with an intellectual disability involved in the criminal justice system. It is vital that important relevant information about a person reaches the departments, agencies or individuals who have responsibility for, or provide services to, that person. For example, in DP 35, the Commission outlined the likely importance of information provided to the court, primarily for the purposes of sentencing, for an appropriate (and expeditious) placement and treatment of the person in both custodial or non-custodial options.⁴⁶ Accordingly, the Commission proposed that procedures be instituted to ensure that relevant information about an offender’s intellectual disability is transferred from the courts to the New South Wales Department of Corrective Services and the New South Wales Probation Service.⁴⁷

10.26 The Commission now believes, that in the interests of consistency, consideration of this issue should be extended to all the relevant agencies. Accordingly, as part of its co-ordination tasks, the ADD should develop mechanisms and guidelines to ensure that departments and agencies involved in the criminal justice system, exchange, where appropriate, relevant information they hold about a person with an intellectual disability. The guidelines should take into account privacy and confidentiality considerations and when the person’s consent is required. Guidelines should include provisions about the kinds of information that can and cannot be exchanged, the circumstances in which it is appropriate to release information and to whom information can be released.

Recommendation 51: Screening, assessing and identifying intellectual disability

10.27 The failure of agencies to identify people with an intellectual disability has been a major issue of concern throughout this reference. All relevant agencies should have effective screening, assessment and identification procedures. Screening usually involves a series of tests and/or questions to identify the possibility of intellectual disability. The screen is usually administered to all people at the point of admission to an agency, for example when a person is first admitted to prison. A person may then be referred for more detailed assessment if the screen reveals possible intellectual disability. Assessment is a far more complicated process involving appropriate professionals and more in-depth testing. Assessment for intellectual disability usually involves some form of intelligence test and interviews with the person and people connected to him or her, such as carers. Identification involves putting together the results of screens and assessments and giving a person the label of intellectual disability. Many screening tests used by agencies are not conclusive, they only establish the possibility of intellectual disability. Establishing these procedures is complex and requires expertise. The Commission considers that the ADD should contact and assist the relevant agencies to ensure each has appropriate principles and procedures for screening, assessing and identifying people with an intellectual disability. The agencies’ principles and procedures (see Recommendation 52 below) should ensure that the person with a disability is fully involved and consulted in the processes.⁴⁸

Recommendation 52: Government agencies’ policies

Rationale

10.28 The Commission believes that many of the problems people with an intellectual disability have with the criminal justice system are caused by the fact that the government agencies they come into contact with do not have a systematic approach for providing support to this group. The starting point for overcoming these problems at the service level is for each agency to have a policy, or strategic plan. There is already a legislative requirement that a “public authority” prepare a “Disability Strategic Plan”, “to encourage the provision of services by that authority in a manner that furthers the principles and applications of principles set out in Schedule 1 [of the Disability Services Act]”.⁴⁹ The principles and applications set out in Schedule 1 are based on the principle that people with disabilities have the same basic human rights as other members of Australian society together with the rights needed to ensure that their specific needs are met.

10.29 A policy ensures that an agency recognises that people with an intellectual disability are part of the community and have needs. It ensures that each agency knows its responsibilities within the wider framework of the criminal justice system. It helps achieve consistency across agencies involved in the criminal justice system. It sets out the principles that the agency should follow in relation to people with an intellectual disability. It ensures consistency within agencies at all levels. It is a statement that the agency places considerable importance on the issue, and is a signal to staff that they should take these issues seriously. It sets the basis for allocation of resources. It provides a benchmark for an agency to evaluate its progress. It also enables those outside the system to know what the agency’s approach is, and to complain if it does not appear to be following and implementing its policy. The Commission’s recommendation merely amplifies the existing legislative provision in this area.

Policy contents

10.30 The Commission believes that each government agency’s policy should be consistent with the principles and guidelines which Recommendation 48 argued should be developed by the ADD. Each agency should develop the agreed principles further to make them relevant to the agency’s specific functions and operations. Policies should include general principles about the rights and needs of people with an intellectual disability, including Aboriginal and Torres Strait Islanders, people of non-English speaking backgrounds and people diagnosed with both intellectual disability and mental illness. This ensures that all agencies are working towards the same goals. The policy should also clearly outline the specific responsibilities for people with an intellectual disability that the agency has been allocated within the overall ADD plan. It should outline the agency’s commitment to liaising with other relevant bodies and provide for regular evaluation and review of the policy and of progress in implementing it.

Operational guidelines

10.31 A policy sets a framework. It sets out principles but it does not tell staff how to implement it. To make policy effective the Commission believes that each agency should also have guidelines which put the policy into day to day practice. Operational guidelines should identify the tasks which must be done to implement the policy. They should say when tasks should be carried out. They should say who will carry out the tasks, for example, they may provide that there should be a special unit or a special liaison officer responsible for implementing policy and procedures. Guidelines should address training needs and also include measures, for example, data collection, which enable the agency or others to evaluate the policy and practice. The policy and operational guidelines should be written in plain English and the agency should publicise and make them available to people with an intellectual disability, their carers and representatives. It should consult with these groups when preparing the policy and guidelines. Each agency should include information in its Annual Report about its policy and guidelines and its progress in implementing them.

Recommendation 53: Special units and officers

10.32 It is a term of this reference that the Commission report on whether specialist units should be established within the Office of the Director of Public Prosecutions, the Legal Aid Commission, the Department of Corrective Services, the Police Service and other related bodies to deal with the special needs of people with an intellectual disability. The Commission received a mixed response on this issue. In responding, people had in mind different concepts of what a special unit might be. Some considered the creation of specialist units as involving a total removal of people with an intellectual disability from the criminal justice system. This raises the issue of diversion which is considered in Chapter 2. Others saw special units either as vehicles for developing policy, or as information and liaison points, or alternatively as separate operational units or designated officers. Submissions in favour of having special units said that they:

• provide a point of contact for people outside the agency;⁵⁰
• provide expert knowledge about and links to appropriate outside referrals, for example to psychologists and counselling services;⁵¹
• improve access to the range of services available for people with an intellectual disability who come into contact with the criminal justice system;⁵²
• allow accumulation of expertise which enables greater accuracy in the identification of intellectual disability;⁵³ and
• can provide a pool of expertise which is a basis for advice and training for other people within the agency.⁵⁴

10.33 Arguments against or concerns raised about specialist units or officers raised in submissions included:

• resources would be more appropriately spent on training general personnel, as the person has to be recognised as having an intellectual disability before he or she can receive specialist services;⁵⁵
• specialist units may create more bureaucratic complexity when what is really needed is increased co-operation between service providers;⁵⁶
• specialist units may reduce the availability and diversity of legal and other services for people with an intellectual disability throughout the State;⁵⁷
• if people with an intellectual disability are exclusively dealt with by such units, it may further stigmatise and alienate them from mainstream services and the community;⁵⁸
• a specialist unit may become a dumping ground where people with an intellectual disability become invisible to, and ignored by, the general community;⁵⁹
• specialist units may suggest to criminal justice personnel generally that they no longer have a responsibility in matters involving intellectual disability;⁶⁰ and
• agencies may not have the funds to establish a specialist unit or officer.⁶¹

The Commission’s conclusions

10.34 The Commission has concluded that the specific measures needed to ensure that an agency protects the rights and meets the needs of people with an intellectual disability will vary depending on the size and function of the agency. The Commission considers that special measures, including providing special units or appointing specialist officers, will be justified and appropriate in some circumstances but not in others. It makes a specific recommendation about the police below. The Commission has decided, on reflection, to abandon its proposal for a pilot study of court liaison officers,⁶² preferring to focus on general training and information recommendations which should make such a position redundant. To provide such a service state-wide would be enormously expensive and could be a waste of resources. In Recommendation 52 the Commission places obligations on relevant agencies to establish appropriate policies and procedures to ensure that rights are protected and needs are met. The Commission leaves it to the agency to work out, consistently with ADD policies, principles and procedures, the manner in which it will meet this obligation.

Specialist police liaison officers

10.35 The Commission has identified the New South Wales Police Service as needing specialist officers available to ensure support and co-ordination at the operational service level. Police are the first point of contact with the criminal justice system. They work in the community and are critical to ensuring that cases involving people with an intellectual disability are handled properly from the very beginning. For this reason, there is value in having specialist police officers that can provide support for, and play a co-ordinating role in relation to, every operational level of the Police Service. Officers holding these positions must be appropriately trained. This recommendation was supported in submissions⁶³ and a similar recommendation was made by the New South Wales Women’s Co-ordination Unit.⁶⁴

10.36 Every operational level of the Police Service should have access to the expertise of these officers. The role of these officers would be to:

• identify all the agencies that provide services to people with a disability in the local area and establish contact with them;
• discuss with relevant local services and agencies (in line with the ADD co-ordinated policy) procedures to be followed when a person with an intellectual disability comes into contact with the criminal justice system;
• establish specific procedures about who should be contacted if a person is arrested;
• give information and advice to other officers, for example, about screening, assessment and identification and available services;
• run training programs for local police on intellectual disability; and
• develop and run programs for local people with an intellectual disability on the role of the police and the duties of citizens.

10.37 The Police Service already has specialist officers for other special interest groups, for example, gay and lesbian liaison officers. The Commission considers there should be enough specialist officers to enable all police officers at the operational level to have ready access to support and advice. The role of these special liaison officers would not be to insulate all other officers from intellectual disability issues. Rather it would be to improve the effectiveness of all police officers in the area in handling cases involving people with an intellectual disability. As extra resources will be involved, the positions could be established in stages.

Recommendation 54: Ensuring continuity of contact and service provision

10.38 A critical issue raised during this reference has been that no agency will take overall responsibility for a person with an intellectual disability as they move through the criminal justice system. Associate Professor Susan Hayes stated:

A major difficulty is the lack of comprehensive case management by a single individual or agency who is responsible for the client and who cannot negate or hand on that responsibility. There must be a service which has the ultimate responsibility and coordinating role.⁶⁵

Similarly, the New South Wales Council for Intellectual Disability (“CID”) stated:

CID believes there is a need for one Department to take the central role in co-ordinating, tracking and case managing those individuals whose needs and circumstances will take them across Department boundaries.⁶⁶

Strong evidence of this need is that the courts, tribunals, lawyers, the Guardianship Board of New South Wales and carers of people with an intellectual disability are increasingly asking the Public Guardian to carry out this function.⁶⁷

10.39 In DP 35 the Commission discussed the importance of the continuity provided by a case manager, and proposed that a case manager from DOCS should be appointed and be available when required to assist a client in the criminal process.⁶⁸ Submissions generally supported the proposal.⁶⁹ A number of submissions commented on the general unwillingness of DOCS to take on this role despite the fact that the Department clearly has the authority and expertise to do so.⁷⁰ The Office of the Public Guardian in its submission gave an example of one case in which DOCS developed a plan of action on release from prison for a young man with an intellectual disability who had been incarcerated as a result of an alleged serious offence. The Office commented:

This plan of action was innovative, individualised and intensive. Following considerable pressure and advocacy, the Director General of the department approved the plan. ...

Unfortunately, despite extensive lobbying, senior officers of the Department of Community Services have recently stated that they will not consider adoption of a plan with similar elements ... due to the high costs of providing such an extensive support service to those persons who are not included in the Department’s target group. The Office of the Public Guardian is concerned with the inconsistencies in delivery of service to individuals and the reluctance of the Department to consider individualised service according to assessed need.⁷¹

One submission was concerned that if the proposal were implemented funding would be cut in a very short space of time and the system would become “window dressing in an area where there is no votes and the very few willing to speak out in its favour are mostly trying to do what they can [to] alleviate the plight of the intellectually impaired”.⁷² This submission suggested that there could be problems if a person were only able to get a case manager if he or she committed an offence.⁷³

The current service

10.40 Through its Community Support Teams, DOCS officers may already have a case manager role for some people with an intellectual disability who are involved in the criminal justice system. Generally speaking, they would act as case manager for a person who is already a DOCS client at the time the offence is committed. However, many people with an intellectual disability are not known to DOCS before they offend and until recently DOCS has tended to provide services for those with more severe intellectual disabilities. Community Support Teams can provide a range of support services to people with an intellectual disability, for example, speech therapy, social education and counselling. If a client comes into contact with the criminal justice system, the case manager may arrange assessments and programs, and support the person in court. DOCS also has specialist teams which service a small number of people with an intellectual disability who have challenging behaviours. An increasing number of people are being referred to these specialist teams as offenders.⁷⁴ The Commission understands that generally speaking, the case manager’s role does not continue while the person is in prison, and often does not recommence on release. The Commission noted at the time of DP 35 that there were insufficient resources for DOCS to undertake this role for all people with an intellectual disability who enter the criminal justice system.

10.41 Under the Department of Juvenile Justice Disability Strategic Plan, that Department will have policies and protocols for case management, particularly for offenders with an intellectual disability. Every detainee in a Juvenile Justice Centre will be given a case manager. According to the Department:

As a part of the case management plan, health/mental needs of detainees will be monitored and reviewed through multi-disciplinary teams. Case plans will be formulated with a view to meeting the special needs of clients and case management will be made subject to regular review. An evaluation project of the multi-disciplinary teams has been established to ensure optimum efficiency and standard of service delivery to clients with special needs.⁷⁵

The Department has also developed a protocol with DOCS:

to ensure that services are more responsive to children and families who require assistance from both departments. The protocol is regularly reviewed to address any gaps or problems in service provision.⁷⁶

The Commission’s recommendation: A case manager service

10.42 The Commission is convinced that it is absolutely critical, to prevent reoffending and to achieve rehabilitation, that there is a professional who takes case management responsibility for each person with an intellectual disability who enters the criminal justice system. Victims should also receive co-ordinated support. This is not only for their welfare but also because there is evidence that victims may become offenders.⁷⁷ The Intellectual Disability Rights Service stated that it:

knows of many cases where people who have been sexually assaulted have received inadequate assistance and have then acted out in a sexual manner only to be charged and brought before the courts. It is truly depressing that inadequate assistance is forthcoming for these people when they are victims, but as soon as they become the ‘offender’ they are readily charged, brought before the courts, frequently imprisoned and later released having never received any help for their problem.⁷⁸

10.43 The Commission has concluded that a case management service should be provided to both offenders and victims with an intellectual disability and that DOCS is the appropriate Department to provide it, building upon the service it already provides to a limited number of clients. The Department is designed to provide services to support people with an intellectual disability and therefore case management is clearly within its area of responsibility and expertise. Its role is not limited, as are other government agencies, to one particular part of a person’s life and, as it can provide services before, during and after involvement with the criminal justice system, it is best placed to provide continuity of support across other government agencies. The Commission considers that a person with an intellectual disability, of whatever level of severity, who comes into contact with the criminal justice system has high support needs which justify access to DOCS services. The consequences of not providing that support are amply documented by this inquiry.

10.44 Voluntary nature of the service. Except when a court, tribunal or the Offenders Review Board makes it a condition of bail, probation, parole or release that a person have a case manager, the case manager service should only be provided if a person, or his or her guardian, agrees to have one.⁷⁹ It should be part of the service procedure that it hold regular review meetings to discuss with the person with an intellectual disability, or his or her guardian, whether he or she still wants or needs the services provided.

10.45 Availability of the service. If the person with an intellectual disability or his or her guardian asks to have a case manager, the case manager service should be required to provide one if the person with an intellectual disability is accused of, or has committed an offence or is at risk of committing one. (Guidelines should establish criteria for deciding if a person is at risk of committing an offence.) The service should also be required to provide a case manager if a court, tribunal, or the Offenders Review Board orders or makes it a condition of bail, probation or parole release that the person have one. The case manager service should also be required to provide a case manager, on request, for a victim of a serious offence, including all offences punishable by imprisonment. It should have a discretion to provide a case manager to a victim of a minor offence. The service’s decision whether or not to provide a case manager should be reviewable by the Community Services Appeals Tribunal.

10.46 The service should be widely publicised and relevant agencies in the criminal justice system should inform their clients about the service. DOCS should tell a carer or guardian of a person with an intellectual disability about the case management service as soon as the Department becomes aware of challenging behaviours likely to lead to contact with police. The case management service should make sure that all relevant agencies know about the service so that they can put carers of people with an intellectual disability with challenging behaviours in touch with the service. As soon as a person with an intellectual disability is arrested or charged with an offence, the police should tell the person, guardian or carer that they are, or may be, entitled to have a case manager and tell them how to go about getting one. A lawyer, magistrate, judge, prison officer, or probation or parole officer should also tell the carer or guardian of a person newly identified as having an intellectual disability, or the person with the disability if most appropriate, about the case management service.

10.47 Role of the case manager. The level of involvement of the case manager would depend on the needs of the person with the intellectual disability. The role of the case manager would continue, as needed and agreed to, through all stages of the criminal justice system, including police investigation, seeing lawyers, court, non-custodial options, prison and post release. It could continue while the person is involved with other agencies. The case manager would not provide therapeutic, social education, general education, or employment or other services. He or she would:

• provide continuing contact, support and information for the person and their carer or guardian;
• act as a point of liaison for police, lawyers, courts, probation or parole officers;
• either develop, or ensure that someone else from the service develops a comprehensive (“whole of life”) support plan for the person with an intellectual disability which could include: accommodation; supervision; social education; behaviour management programs; living skills; programs for sex offenders; counselling; speech therapy; employment preparation; on the job support; health services; and mental health services;
• broker and co-ordinate the provision of the supports or services needed;
• monitor the progress of a person towards habilitation or rehabilitation;
• ensure that the support plan is updated and new services provided, where appropriate, as the person progresses through the criminal justice system and support needs change; and
• ensure that services and support continue regardless of the person’s stage in the criminal justice system.

10.48 Needs of Aboriginal people and Torres Strait Islanders and people of non-English speaking backgrounds. In establishing this service, care needs to be taken to ensure that it meets the needs of Aboriginal people and Torres Strait Islanders and people of non-English speaking backgrounds. These groups would need to be closely consulted on a local basis and case management services provided in a way that is responsive to the needs of the local communities.

10.49 Additional funding needed. The advantage of this proposal is that it is not new or radical. It builds on services and skills already provided and available within DOCS. However DOCS will need extra funding to provide this service and to employ case managers. It will also need extra funding to pay for some of the services the person needs that are not available, or not available in a suitable form. The Commission recommends that the government and ADD make available extra funding to enable DOCS to provide a case manager service. For too long lack of resources has been used to justify inaction. The Commission believes that the short term costs of ensuring that each case is properly managed will be offset by the savings to the Police Service, courts and Corrective Services resulting from early and comprehensive support, and the reduction in repeat offending. Although they cannot be easily measured in monetary terms, the benefits to people with an intellectual disability in terms of their welfare and the protection of their rights must be taken into account.

10.50 As a case manager service is urgently needed, the Commission recommends that ADD should develop a comprehensive plan to establish the service within 12 months of the tabling of this report. However, because of the extra resources needed, the Commission suggests that a staged approach to establishing the service be taken. ADD should identify the numbers of case managers that would be needed to support all the people with an intellectual disability who come into contact with the criminal justice system or are at risk of doing so, and prepare a staged plan over a number of years for DOCS to establish a comprehensive case management service.

FOOTNOTES

1. New South Wales - Report of the Inter-Departmental Committee on Intellectually Handicapped Adult Offenders in New South Wales Australia The Missing Services (Departments of Corrective Services and Youth and Community Services, Sydney, 1985) and the follow-up story in the Ombudsman of New South Wales Annual Report 1990 at 115-119; New South Wales - Department of Family and Community Services Report from the Working Party on Services to Young Persons with Intellectual Disabilities in the Juvenile Justice System (Department of Family and Community Services, 1988); New South Wales - Community Youth Support Taskforce Supporting Young People in their Communities (Social Policy Directorate, New South Wales, 1993); C Puplick The Last to be Served: A Review of the Adequacy and Comprehensiveness of the Provision of Services to Developmentally Delayed Inmates by the NSW Department of Corrective Services (Report to the Minister for Justice, 1994) at 30; S Hayes Reducing Recidivism Amongst Offenders with an Intellectual Disability (unpublished, prepared for the Office on Disability of the New South Wales Social Policy Directorate and the Disability Council of New South Wales, 1994).

2. For example, New South Wales - Office on Disability Submission (13 March 1995) at 1; Australia - Department of Health, Housing, Local Government and Community Services, Office of Disability Submission (27 February 1995) at 3; Community Services Commission Submission (2 March 1995) at 1; New South Wales Council for Intellectual Disability Submission (4 April 1995) at 15-16; Letter from the Office of the Public Guardian, New South Wales to the Commission dated 2 March 1995 at 1; Intellectual Disability Rights Service Submission (1 March 1995) at 16-17; consultation with representatives of the New South Wales Probation Service, the Department of Corrective Services and the Aboriginal Legal Service on 2 March 1994.

3. See, for example, consultation with a New South Wales Department of Community Services Community Support Team (29 November 1993); consultation with representatives of the New South Wales Probation Service, the Department of Corrective Services and the Aboriginal Legal Service on 2 March 1994; and Puplick at 17-18.

4. See, for example, New South Wales Council on Intellectual Disability Submission (4 April 1995) at 15; Mr P Hutten Submission (6 January 1992) at 4.

5. New South Wales Council for Intellectual Disability Submission (16 September 1992) at 2; and Intellectual Disability Rights Service Submission (1 March 1995) at 16.

6. See Hayes (1994) at 13 in relation to mild intellectual disability. Legal Aid Commission solicitors referred to the lack of facilities and the “buck passing” between departments and services which occurs in relation to clients considered particularly difficult in a consultation on 17 March 1994. See also Office of the Public Guardian, New South Wales Submission (1 March 1995) at 9.

7. Puplick at 14-15.

8. See, for example, consultations with people with an intellectual disability reported in New South Wales Law Reform Commission People with an Intellectual Disability and the Criminal Justice System: Consultations (Research Report 3, 1993) at para 4.10; see also Chapter 9.

9. See, for example, consultation with a New South Wales Department of Community Services Community Support Team on 29 November 1993.

10. See, for example, Intellectual Disability Rights Service Submission (6 March 1995) at 17; New South Wales Council for Intellectual Disability Submission (4 April 1995) at 15.

11. See Hayes (1994); and consultation with representatives of the New South Wales Probation Service, the Department of Corrective Services and the Aboriginal Legal Service on 2 March 1994.

12. Office of the Public Guardian, New South Wales Submission (1 March 1995) at 8-9.

13. Hayes (1994) at 10; Intellectual Disability Rights Service Submission (1 March 1995) at 16.

14. Hayes (1994) at 15.

15. See, for example, letter from Mr I Graham, Director-General, Department of Juvenile Justice to the Commission dated 7 March 1994.

16. Hayes (1994).

17. See consultation with New South Wales Department of Community Services Community Support Team on 29 November 1993.

18. Over-assessment for some purposes has been identified as a reason why some people with an intellectual disability hide their disability or are reluctant to be tested: see, for example, Intellectual Disability Rights Service Submission (16 October 1992) at 4; and New South Wales Council on Intellectual Disability Submission (4 April 1995) at 4-5.

19. For example, consultation with Disability Services Aboriginal Corporation on 10 October 1995.

20. For a discussion of the significant numbers of people with an intellectual disability coming into contact with the criminal justice system see Chapter 2.

21. Letter from the Office of the Public Guardian, New South Wales to the Commission dated 2 March 1995.

22. See, for example, Office of the Public Guardian, New South Wales Submission (1 March 1995) at 9 and Intellectual Disability Rights Service Submission (16 March 1995) at 16.

23. See Disability Service Act 1993 (NSW), Schedule 1 “Principles and applications of principles”.

24. New South Council for Intellectual Disability Submission (4 April 1995) at 15.

25. New South Wales Law Reform Commission People with an Intellectual Disability and the Criminal Justice System: Courts and Sentencing Issues (Discussion Paper 35, 1994) (“NSWLRC DP 35”), Proposal 48.

26. New South Wales Police Service Submission (February 1995) at 17; Intellectual Disability Rights Service Submission (1 March 1995) at 16-17; Queensland - Department of Family Services and Aboriginal and Islander Affairs Submission (8 March 1995) at 6; Brain Injury Association of New South Wales Inc Submission (28 February 1995) at 45; Illawarra Disabled Persons’ Trust Submission (23 February 1995) at 5; Australia - Department of Health, Housing, Local Government and Community Services, Office of Disability Submission (28 February 1995) at 3; Victims Advisory Council Submission (27 February 1995) at 4; Law Society of New South Wales Submission (24 February 1995) at 1.

27. See, for example, New South Wales Police Service Submission (February 1995) at 17; Intellectual Disability Rights Service Submission (1 March 1995) at 16-17.

28. Intellectual Disability Rights Service Submission (1 March 1995) at 17; Illawarra Disabled Persons’ Trust Submission (23 February 1995) at 5; Brain Injury Association of New South Wales Inc Submission (28 February 1995) at 45.

29. Intellectual Disability Rights Service Submission (1 March 1995) at 17; Brain Injury Association of New South Wales Inc Submission (28 February 1995) at 45.

30. Office of the Public Guardian, New South Wales Submission (1 March 1995) at 10; Community Services Commission Submission (2 May 1995) at 2.

31. New South Wales - Department of Community Services Submission (23 March 1995) at 3; Community Services Commission Submission (2 May 1995) at 2; Office of the Public Guardian, New South Wales, Submission (1 March 1995) at 10.

32. Community Services Commission Submission (2 May 1995) at 2.

33. See, for example, Australia - Department of Health, Housing, Local Government and Community Services, Office of Disability Submission (27 February 1995) at 3; Community Services Commission Submission (2 May 1995) at 3.

34. See, for example, New South Wales Council on Intellectual Disability Submission (4 April 1995) at 8.

35. New South Wales Council on Intellectual Disability Submission (4 April 1995) at 4.

36. See Chapter 9.

37. See Chapter 11.

38. See Chapter 2.

39. Interagency Guidelines for Responding to Adult Victims of Sexual Assault (New South Wales Police Service, Office of the Director of Prosecutions, Department of Health, 1995). The Guidelines include: details of each Department’s roles and responsibilities, the policies and principles which underpin each Department’s response, and chronological details of the procedures to be followed from the time a victim presents at the police station or hospital through to the court room.

40. There are currently an estimated 720-780 people with an intellectual disability in prison (1994 figures); see Puplick at 10.

41. See NSWLRC DP 35 at paras 13.3-13.8.

42. New South Wales - Department of Juvenile Justice Submission (21 July 1995) at 1.

43. Community Services (Complaints, Appeals and Monitoring) Act 1993 (NSW) s 4 and s 12.

44. Community Services Commission Submission (2 May 1995) at 2-3.

45. Community Services (Complaints, Appeals and Monitoring) Act 1993 (NSW) s 4 (para (f) of the definition of “service provider”).

46. NSWLRC DP 35 at paras 11.51-11.52.

47. NSWLRC DP 35, Proposal 43.

48. New South Wales Council on Intellectual Disability Submission (4 April 1995) at 5.

49. Disability Services Act 1993 (NSW) s 9(1). Pursuant to s 9(7), a “public authority” means a government department, administrative office or declared authority specified in Schedule 1, 2 or 3 of the Public Sector Management Act 1988 (NSW), and includes an authority prescribed as a public authority by the regulations.

50. New South Wales Council for Intellectual Disability Submission (16 September 1992) at 9.

51. New South Wales Council for Intellectual Disability Submission (16 September 1992) at 9.

52. New South Wales - Department of Family and Community Services, Office on Disability Submission (26 November 1991) at 3.

53. Senior Constable P Fernandez Submission (8 December 1991) at 40.

54. Senior Constable P Fernandez Submission (8 December 1991) at 40; and Intellectual Disability Rights Service Submission (16 October 1992) at 12.

55. Australia - Attorney-General’s Department, Office of Legal Aid and Family Services Submission (28 August 1992) at 6.

56. Western Australia - Department of Corrective Services Submission (19 January 1991) at 7.

57. Legal Aid Commission of New South Wales Submission (8 January 1992) at 3.

58. Intellectual Disability Rights Service Submission (6 January 1992) at 5; Queensland - Department of Family Services and Aboriginal and Islander Affairs Submission (18 August 1992) at 6; consultation with Disability Services Aboriginal Corporation on 10 October 1995.

59. Intellectual Disability Rights Service Submission (1 March 1995) at 14.

60. National Council on Intellectual Disability Submission (18 December 1991) at 2.

61. Legal Aid Commission of New South Wales Submission (5 May 1995) at 2.

62. NSWLRC DP 35, Proposal 39.

63. For example, Law Society of New South Wales Submission (23 December 1993) at 2-3; Illawarra Disabled Persons’ Trust Submission (20 January 1994) at 1; Hobart Community Legal Service Inc Submission (20 January 1994) at 2; and Office of the Ombudsman, New South Wales Submission (4 March 1994) at 4. The New South Wales Council for Intellectual Disability Submission (16 December 1993) at 4; the Intellectual Disability Rights Service Submission (28 January 1994) at 14; and the Queensland Department of Family Services and Aboriginal and Islander Affairs Submission (31 January 1994) at 2; supported the recommendation with reservations, including the need for training and support and the concern that such officers would reinforce the separation of people with an intellectual disability and allow general police to avoid their responsibilities in this area.

64. New South Wales Women’s Co-ordination Unit Sexual Assault of People with an Intellectual Disability (Final Report, 1990), Recommendation 4.5.

65. Hayes (1994) at 19.

66. New South Wales Council for Intellectual Disability Submission (4 April 1995) at 15; see also Mr P Hutten Submission (6 January 1992).

67. Office of the Public Guardian, New South Wales Submission (1 March 1995) at 1-2.

68. See NSWLRC DP 35, para 13.40 and Proposal 8.

69. See, for example, Illawarra Disabled Persons’ Trust Submission (23 February 1995) at 1-2; Mr P Hutten Submission (20 January 1995) at 8; Brain Injury Association of New South Wales Inc Submission (28 February 1995) at 20; Queensland - Department of Family Services and Aboriginal and Islander Affairs Submission (8 March 1995) at 3.

70. See, for example, Mr P Hutten Submission (20 January 1995) at 8.

71. Office of the Public Guardian, New South Wales Submission (1 March 1995) at 9.

72. Magistrate P Cloran Submission (13 February 1995) at 1.

73. Magistrate P Cloran Submission (13 February 1995) at 5.

74. Consultation with a New South Wales Department of Community Services Community Support Team on 29 November 1993.

75. New South Wales - Department of Juvenile Justice Submission (21 July 1995) at 2.

76. New South Wales - Department of Juvenile Justice Submission (21 July 1995) at 1.

77. See, for example, Intellectual Disability Rights Service Submission (1 March 1995) at 16.

78. Intellectual Disability Rights Service Submission (1 March 1995) at 16.

79. One submission emphasised the importance of informed choice and having the right to refuse to have a case manager; see Ability Incorporated Submission (22 May 1995) at 1.