KEY POINTS:
In June 2006 David O'Malley began work as a caregiver for "A" - a 17-year-old with intellectual disabilities learning to live on his own.
His job was to provide 16 hours a week of "Supported Independent Living" care - to nurture A, born with a chromosome disorder and diagnosed as being on the autistic spectrum, teach him house management and personal skills.
A's mother was behind the idea and helped organise the flat. It was a way to begin addressing her concern about who would look after her son - who had a mental ability of around 10 years - when she was no longer able to.
The disability services provider contracted by the district health board to provide the support had a care and safety plan in place.
Staff rostered to care for A knew about his disability and his "difficulty with appropriate social skills, which makes him very vulnerable to the point where he can be taken advantage of". What could possibly go wrong?
"A" received a caregiver who didn't give care, instead taking advantage of his vulnerability. Susceptible to suggestion, and with difficulty in making friends, A quickly latches on to anyone who is friendly towards him, and is then easily persuaded by that person.
This made it relatively easy for O'Malley to persuade him and, at times, his 16-year-old former girlfriend to play "dare" games of a sexual nature. He would, for example, expose himself, demonstrate sexual acts, and encourage A to mimic his behaviour.
O'Malley frequently made sexually explicit and inappropriate comments to them both, displayed sexually explicit behaviour and watched pornography with A.
Last week O'Malley's betrayal of trust of one so vulnerable finally caught up with him to the tune of $40,000 in compensatory and exemplary damages, and costs.
Not in a criminal court, but in a decision by the Human Rights Review Tribunal, which found he had breached the Code of Health and Disability Services Consumers' Rights.
The Tribunal chose to impose exemplary damages because of evidence it received about a general regression in A's behaviour after his contact with O'Malley, including his increased depression and attempted suicide.
It's believed to be the first time a disability services caregiver has been held accountable to the Code by the Tribunal.
"It gives some teeth to the Code," says Health and Disability Commissioner Ron Paterson, who is pleased with the emphasis on the broader principles of treating consumers with respect and with recognition of their dignity.
"Those principles go to the heart of the provision of disability services. It's a powerful signal, particularly when it's backed by an award of damages and, importantly, exemplary damages which are damages to punish a wrongdoer."
The O'Malley case is a timely reminder of the problems facing disability services in New Zealand. Timely because the Government has just responded to the report by the Social Services Select Committee, following its inquiry into the quality of care and services provision for people with disabilities.
This was an inquiry that showed how instances of abuse and exploitation like O'Malley's were not rare or rogue events. It was brought about after widespread media stories, including the Herald, in 2005 and 2006
about inadequate care by several disability services providers including the largest, Focus 2000.
"Publicity about abuse and irregular financial dealings appeared to be indicative of wider issues in the disability sector, and organisations representing the disabled community publicly expressed dissatisfaction with current service provision," says the inquiry report, released in September.
In 2007 National MP Dr Paul Hutchison, a strong advocate of the inquiry, asked questions in Parliament about the quality of care provided by Spectrum Care Trust to Guy Tuffin.
Tuffin was left to sleep on a urine-soaked and faeces-covered mattress for three weeks, isolated from planned activities and not given medication he needed to maintain a good quality of life.
During the inquiry a slew of reports of abuse and neglect were heard by Parliament's social services committee.
Hutchison highlighted several examples of "systemic abuse", including a woman with cerebral palsy abandoned in a wheelchair for four days without food, cases of intellectually disabled people being beaten by caregivers and a woman dead for 48 hours while her care staff ticked off half-hourly reports to show she was being closely monitored.
"We found that the provision of disability services lacks direction and leadership, services are variable throughout the country, and significant systemic problems have developed unchecked," says the report.
"In particular, the New Zealand Disability Strategy, introduced in 2001 to widespread support from the disabled community, has not been effectively implemented."
The strategy says that New Zealand society should be inclusive, enabling people with impairments to be valued and to participate as they wish in community life.
The inquiry's overriding concern was the lack of accountability for disabilities services, its fragmented funding structure and the difficulty users have accessing services from such a disjointed range of pathways
- Accident Compensation Corporation, the Land Transport Fund, the Lottery Grants Scheme, District District Health Boards, the Ministry of Health, the Ministry of Social Development through the Disability Allowance, administered by Work and Income, and through Child, Youth and Family Services, and the Ministry of Education.
"We note that no one agency is held accountable for the disability sector and the overall provision of disability services," say the report. "We consider there is a need for a single agency able to have oversight of the sector, taking responsibility for the implementation of the disability strategy, managing and co-ordinating the provision of disability services, and acting as an advocate on disability issues.
Without the establishment of a single, overarching entity with responsibility and accountability for the disability sector, we are concerned that the required changes may not be achieved."
But the Government has rejected the idea, opting instead for a ministerial committee chaired by the new Minister for Disability Issues, Paula Bennett. "We want the ministerial committee to get a greater understanding of all the different funding silos and criteria for support for people with disabilities," says Health Minister Tony Ryall.
"Part of the work will be how we can streamline service delivery to people with disabilities and try and get rid of some of this silo approach."
Disability advocacy groups are not impressed. DPA, the national organisation of disabled people, slammed the Government's response to the inquiry recommendations as "absolutely pathetic".
Chief executive Gary Williams says, "Creating another cabinet committee, with no expertise on disabled people's issues, is not going to help."
He says the inquiry gave recommendations for action on rights and leadership by disabled people, but the response ignores what disabled people said.
"I guess in the economic climate they've decided to kick for touch again, and have another committee and another few years of reinventing the wheel," says DPA national policy researcher Wendi Wicks.
The national policy project manager for CCS Disability Action, Paul Gibson, is disappointed too.
"The time and energy in investigating what would really make a difference doesn't appear to have been done and the engagement with the NGO sector is not really reflected in the Government's response.
" He says the response seems to go against the spirit of partnership and inclusion which the new Government had been so keen to convey - "in the sense that the committee is not engaging with the community sector and taking on board their wisdom and putting forward collective solutions".
Gibson says structural change at a minimal cost, in the form of a separate commission with independent functions a bit like the Children's Commission with an annual budget of $2 millon, would have sent a strong message that the Government was serious about change in the sector. "That's not big money, but it has an influence and punching power beyond its budget."
Ryall says the Government favours working within existing structures rather than wasting valuable money on another bureaucracy. It's looking at appointing a dedicated disability commissioner within the Health and Disability Commissioner's office.
Ryall says it is a significant step to have a cross-ministerial group led by the Minister for Disability Issues.
"The disability sector has not had that before. What they've had in the past is Ruth Dyson's speeches. What we've now got is a commitment to deal with the issues of improving frontline services."
He expects there will be a consolidation of disability funding. "But we're not there yet and I'm not going to do what the Labour Party did, which was set up huge bureaucracies which don't actually improve the service."
One of the problems Ryall will face in having a dedicated disability commissioner within the Health and Disability Commissioner's Office is the shortcomings of the existing legislation.
At present the Commission can deal only with complaints about the quality of care, which excludes complaints about funding decisions and access to care - widespread problems in the sector.
Just how well the Government tackles disability issues will become evident next year when the first report is due on how well New Zealand is meeting its obligations under the United Nations Convention on the Rights of Persons with Disabilities which was ratified late last year.
"The whole tenet of the convention is about dignity and respect," says Human Rights Commissioner Robyn Hunt. "I think it's a very powerful tool for influencing change when people are wanting to get their rights
respected."
Given the convention's broad aims are similar to the 2001 New Zealand Disability Strategy, which the Select Committee inquiry found has mostly not been implemented, it seems the new Government will have its work cut out.
A RAFT OF UNSETTLING QUESTIONS
The O'Malley case - while the latest in a long line of cases highlighting inadequate care and abuse of intellectually disabled people - raises other unsettling questions.
Why wasn't the disability services provider also liable? After all, wasn't it responsible for providing "A" with a safe environment in which to develop his independence?
In her report of September 24, 2007 deputy Health and Disability Commissioner Tania Thomas says, in the circumstances, the service provider did everything by the book. It performed the mandatory police check on O'Malley before employing him in June 2005, gave him some training and alerted him to A's needs. On learning of O'Malley's actions, it immediately suspended him, initiated a full inquiry and subsequently dismissed him. It also alerted the Health and Disability Commissioner, concerned that O'Malley might seek to care for others like A.
But shouldn't the service provider have to do more - have processes in place to prevent an employee from breaching the Code of Consumer's Rights in the heinous way that O'Malley did?
Again, it appears O'Malley's employer followed the rules - made sure O'Malley had an "orientation" to its philosophy, ethical values and other relevant policies. And he was informed about important issues such as maintaining professional boundaries.
Which begs a wider question: if the service provider did nothing wrong, does this suggest fundamental flaws - systemic failure?
How else to explain how an intellectually disabled young man is guided towards independent living by someone with no professional qualifications in autism care?
Didn't A deserve a higher standard of care and a more thought-out independent living plan?
True, the problem was dealt with quickly when discovered, but it wasn't
until August 22 that it came to light.
Shouldn't there have been closer monitoring of A's progress?
There are no easy answers to any of the above, but Thomas does gives a hint of where some of the problems lie. The chief executive of the disability services provider tells Thomas during her investigation that recruiting and retaining suitable staff for their disabled clients is a constant challenge. "Caregivers are not well-paid and [there is] little job satisfaction or incentive for them to stay," says the report.
