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Rebecca Sullivan with her mother Esther Woodbury. Esther lost her son in 2008 while he was in respite care. Photo: Jeffrey Chan

September 15, 2012 Opinion Sue O'Reilly

Why did government agencies allow Jack Sullivan to be placed in a respite facility - where he later died - which they knew had a questionable history?

Sue O'Reilly reports In early 2008, when Esther Woodbury waved goodbye to her disabled teenage son as he was driven from their Ainslie home for one of his occasional weekends of government-funded respite care in Queanbeyan, she had no idea childcare and disability agencies in NSW and the ACT had recorded numerous allegations of physical, sexual and emotional abuse against the respite facility.

If anyone in authority had bothered to alert her, Woodbury says, she would immediately have withdrawn her 18-year-old son, Jack Sullivan, who as a result of severe autism and epilepsy was particularly vulnerable. But nobody in authority did bother to alert her - and that weekend, in respite care funded by the ACT government agency Disability ACT, Jack Sullivan drowned while having a bath.

The teenager was pronounced dead in Canberra Hospital on February 18, 2008, some 24 hours after he was discovered by a respite worker submerged and unconscious in the bathtub, apparently after suffering an epileptic seizure. At the hospital, Woodbury recounts, she and Jack's devoted younger sister, Rebecca, ''sat with Jack all night, knowing he was gone, trying to come to terms with the shocking and pointless loss of someone we loved so much''.

Jack Sullivan

''I had to leave him there and go back to a life with no point of reference any more,'' says Woodbury, who was widowed in 2002, leaving her to raise Jack and Rebecca alone. ''Because his disabilities made him so dependent on me, my life completely revolved around Jack.''

With Jack always at risk of a sudden epileptic seizure, it was mandatory that anyone caring for him ensure he was never left alone in a bath, even for a few seconds, because of the very real danger he could drown.

At home, it was usually Rebecca who sat close by while her brother was having his evening bath, doing her homework on a laptop while their mother cooked dinner.

After Jack's death, the carer told police she had left him alone for a few minutes to go to the toilet, but kept him in her line of sight.

In October 2010, however, when the NSW deputy coroner conducting an inquest into the events of that February evening visited the house with a posse of lawyers to check this claim out for himself, it was discovered that the bath was not visible from the toilet. A mass of government records, documents and emails subpoenaed before the inquest revealed that the carer's record and history over a number of years had led NSW government agencies and Queanbeyan Council to shun the Queanbeyan facility well before Jack Sullivan's death. But even after his death, as also emerged from the subpoenaed documents and also from the inquest itself, ACT government childcare, child protection and disability service agencies continued to place vulnerable children and people with disabilities there. And today, as she continues to battle for answers, accountability and, above all else, justice, Esther Woodbury wants to know why.

''What happened to Jack was not a stand-alone, one-off event,'' she says. ''Several years before, another severely disabled ACT resident died in a government-funded respite facility in very similar circumstances, and there have been other deaths as well. As a number of ACT inquiries and reports over the past decade have revealed, there have been systemic and longstanding failures in the ACT's child protection and support services for people with disabilities and their families stretching back many years.

''And until we get to the bottom of why that is so, the risk remains that vulnerable people like Jack could continue to be placed in danger.''

It took Woodbury, a former Australian Federal Police employee, more than two years of relentless phone calls, research and letter-writing even to persuade the NSW coroner's office that an inquest into her son's death was warranted. Then following the inquest, which was suspended after only three days, she was forced to wait almost two years more while the NSW Director of Public Prosecutions mused over whether to bring charges against a person whose name NSW deputy coroner Hugh Dillon ordered suppressed.

A few weeks ago however, the DPP's office finally advised Woodbury it had decided not to bring any charges against this person, on the grounds that the precise cause of death could not be conclusively established. Yet over the entire period the DPP's office spent contemplating what action, if any, to take in relation to this ''incident'', as Jack's death is referred to, Woodbury says every comment made to her by DPP staff encouraged her in the hope that the opposite would be the result; that a prosecution would ensue.

According to a spokesman for ACT Community Services Minister Joy Burch, a number of reforms have been implemented as a result of Jack Sullivan's death. But nobody has been held accountable, and no satisfactory answers ever given as to why and how ACT government agencies could have knowingly exposed someone as severely disabled and vulnerable as Jack Sullivan was to such risk in the first place, once alerted to concerns about the Queanbeyan centre's record.

In mid-2007, for instance - some eight months before Jack died - an ACT government-funded disability service agency, Community Connections, formally warned senior officers in Disability ACT, or DACT, that it had serious concerns about the Queanbeyan service and no longer wished to use it.

In an email which only came to light at the 2010 inquest, a Community Connections staffer warned DACT: ''I believe we have to make a choice about the level of risk involved in utilising a service which I have been informed is questionable. From an organisational and personal point of view, I would argue that placing any child or adolescent in a situation we knew to be questionable leaves us all open to litigation, if in fact an incident occurs.''

For reasons that remain unexplained, DACT took no conclusive action in response to this email, or to a further alarm bell rung three months later by another ACT government agency, the Care and Protection Services branch of the Office of Children, Youth and Family Services, or OCYFS. Instead, via Community Connections, DACT continued to fund respite services in the Queanbeyan house for Jack, while Care and Protection Services continued to send child protection clients there even after Jack's death, and despite its own senior staffers ordering it no longer be used.

In the lead-up to the 2010 inquest, and then at the hearing itself, a great deal of disturbing evidence emerged about the Queanbeyan respite worker's history with government childcare and disability departments in the ACT and NSW. The government documents and records subpoenaed revealed that for a number of years before Jack Sullivan's death, the respite worker failed repeatedly to meet the standards required by various childcare and disability agencies, and that after a number of complaints NSW's Community Services Department declined from 2006 onwards to use the centre.

The inquest heard that Queanbeyan Council terminated the worker's employment around the same time and had also decided not to use this respite service any longer, even if no other respite places were available. In the ACT meanwhile, OCYFS withdrew the worker's licence to provide childcare services in early 2006 - yet continued to send child protection clients there for a further two years.

In September 2007, OCHFS's Child and Protection Services branch sent an email to all staff stating: ''It is important we do not use [the Queanbeyan service] under any circumstances. Please do not refer or direct any member of the public to use this service. Doing so may imply an endorsement of the service they provide.'' Yet its staff continued to do just that, well into 2008.

Two days after the 2007 email was sent, it was forwarded to a senior DACT officer who passed it on to staff with the comment:

''Until we have established that appropriate standards are in place, we should follow this arrangement. Exception - brokered care from this service may be requested in writing by families with whom we are working and then funded from [Individual Support Package] funding.''

In a written submission to the inquest, the DACT officer said she met Woodbury a few weeks after that email exchange to advise her DACT could no longer directly fund respite services at the Queanbeyan house.

''I told E about the issues I was aware of relating to [the Queanbeyan service]. At no stage did E query what the issues DACT had with contracting [these] services,'' the officer wrote. ''Rather, she reiterated the value and worth of this service.''

But according to Woodbury, she was told nothing whatsoever at that or any other meeting about any ''issues'' with the care provider, and that if properly alerted, would immediately have withdrawn Jack.

Giving evidence under oath at the inquest itself, the DACT officer initially denied any awareness whatsoever of the respite worker's history.

Confronted with the June 2007 email from Community Connections, the DACT officer then burst into tears. Approached by The Canberra Times for a response to Woodbury's comments, a spokesman for Joy Burch said last week it was ''important that as a government and community we learn from experiences such as this''.

But the spokesman categorically rejected any suggestion the teenager's death was a reflection of systemic failings in ACT child protection and disability support services, pointing to the NSW coroner's conclusion that communication issues - since resolved - were to blame.

''Following Jack's death, a number of changes occurred to address some of the communication shortcomings raised at the inquest, notwithstanding that the coroner made no recommendations or findings in this respect,'' the spokesman said.

''The coroner in his closing comments stated he specifically considered whether any systemic issues within the government had contributed to Jack's death, and in this respect made no adverse comments and findings. The coroner accepted there were shortcomings in internal communication between agencies, but he also accepted that these were complex circumstances. He also described the government officials as 'impressive' witnesses and praised their frank evidence.

''A number of reforms have occurred since. In particular, the main internal communication issue that was raised during the inquest was the failure or inability by Care and Protection Services to pass on information about the service provider to Disability ACT, due to secrecy provisions that existed in the legislation at the time, [an] issue resolved prior to the inquest through legislative changes.

''As the coroner was told, the respite care arrangement with the service provider did not require DACT to vet or license providers, and … the coroner accepted it was best not to make recommendations in this area.'' But to Woodbury, this response is just more grist for a very depressing mill.

''ACT authorities just don't seem to care seriously enough about how vulnerable children and people with severe disabilities are treated, because there are just no consequences - even when a child dies,'' she says.

''The ACT government and its departments take no responsibility for my son's death, but they should, and I have tried everything I know to make them.

''After Jack's death, I pleaded with the Human Rights Commissioner for Young People and Disability, Linda Crebbin, to investigate the systemic problems with ACT disability services that led to Jack being placed in an environment known to be dangerous. She refused, but did ask the Auditor-General to investigate the running of respite centres and that subsequent report, released in 2009, was damning.

But Jack's death wasn't mentioned because DACT provided no information on this 'incident' to investigators.

''An ACT parliamentary committee then looked into respite issues, but Jack's death and the fact the ACT government knowingly put children and young people at risk by continuing to fund the Queanbeyan worker for so long was never mentioned.

''With the NSW DPP declining to bring any charges, all that's left to me is to try to ensure my community hears this story. It should be told publicly; let the people judge their government.''

Sue O'Reilly is a journalist who is writing a book about her personal experiences of the ACT disability support system, as the mother of a disabled son herself. She first met Esther Woodbury in 2010.

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2002_01_january_sep of powers

by Crispin Hull on January 1, 2002

Costs, conflict and delay have been the hallmarks of the saga over disability services in the ACT.

Three young men died in share homes for the disabled run by the ACT in 2000. Something was obviously wrong. Coronial inquests were required for each death, but there was growing concern towards the end of 2000 that individual inquires into individual deaths would not get to the nub of any systemic problem with ACT disability services. There was merit in that concern.

The then Liberal Government resisted the idea under the usual principle that Governments think the world is wonderful and Oppositions whinge about its imperfections. The Government thought the coronial inquests were enough and that any other inquiry would run into conflict with those inquiries.

That would have been the end of the matter anywhere else, but the ACT is an unusual polity. Nowhere else is the doctrine of the separation of powers more apposite and effective.

Executive vs Legislature:

In the ACT, the Government is invariably in a minority on the floor of the single-chamber Legislative Assembly. A majority of Assembly members will support it in most things, but not all. And on disability services in late 2000 the cross-bench and the Labor Opposition had the numbers. They passed a motion demanding an inquiry. The Government ignored it. The Assembly passed another motion, threatening to pass legislation setting it up.

Under the doctrine of the separation of powers in a liberal democracy the Government (the Executive) must obey the law of the land as laid down by the legislature. In dictatorships the Government does what it likes.

But the Executive did not want the legislature to have all its own way. It did not appoint a disability expert who would concentrate on systemic problems and make recommendations about what should happen to improve services in the future. Rather it argued that the best way to avoid the legal pitfalls of an inquiry that might conflict with the coronial inquests would be to appoint someone who know about those legalistic sorts of things.

And so it was in December 2000, the Government appointed former Supreme Court Justice John Gallop to inquire in ACT disability services.

So we had two sets of legalistic inquiries. Even though they were inquiries that look at events and not courts that determine rights, they were imbued with the adversary tradition and rules of evidence – even though unlike courts they were not technically bound by them. These things add costs and delay and often exclude much that should be included.

Justice Gallop’s experience was in judging. Inevitably, he put his undoubted forensic skills to the task of laying blame and finding out what happened when the young men died – precisely what was not required.

Gallop took a year. Just before Christmas his report was ready, but because four public officials thought it made adverse findings about them without giving them a chance to be heard, the officials went off to court to seek an injunction against the report being made public.

This became the second battleground in which the separation of powers was crucial.

Judiciary vs Executive:

What power did the judiciary have over the Executive – in the name of Chief Minister Jon Stanhope, who had a copy of the report in his hand?

The usual role for the judiciary is to apply the law that the legislature has passed to individual cases where a dispute arises. The Executive’s task is to administer that law applying so long as no dispute arises. The legislature might pass a law saying you can build a wall up to 2 metres high of material approved by the Minister. A landowner applies for a brick wall. No problem. Another landowner applies to build a wall made of razor wire. The Minister and the neighbour object. The court sorts it out. The Minister abides by the court’s decision.

In this case, the Executive agreed not to publish.

Enter separation of powers argument Number Three.

Legislature vs Judiciary:

What if the Legislative Assembly (the legislature) met and demanded that the Chief Minister (the Executive) table the report? After all, the Assembly wanted the inquiry in the first place.

That would – at first blush — put the Executive in an awful bind. The Chief Minister would be in contempt of the court if he breached the injunction by publishing or in contempt of the Assembly if he defied the court and tabled the report.

My guess is that the Act Supreme Court’s writ does not run to the privileges of the Legislative Assembly. This is because Section 24 of the (Federal) Australian Capital Territory Self-Government Act provides that the Assembly has “”the same powers as the powers for the time being of the House of Representatives”. Those in turn are taken from the House of Commons. The Self-government Act says powers included privileges and immunities, but does not include legislative powers.

The exclusion of legislative powers is there because the Supreme Court does have power to declare whether or not a law passed by the Assembly is within is law-making power. But the court (the judiciary) has no power over actions of the legislature. The Bill of Rights in 1689 ensured that the Parliament had exclusive control over its own proceedings, including what is debated and tabled and immunity for those who report what is debated and tabled.

If Stanhope was serious about publishing the Gallop report all he needs to do is call the Assembly into session and table it.

That said, he would look a bit of a goose because when the matter first came to court just before Christmas he agreed to abide by the injunction until February 8. It was only after the nature of the injunction was made widely known that Stanhope must have realised the electoral folly of doing so. It was seen as putting bureaucrats reputations before the welfare of the disabled.

If the Gallop inquiry had been done by an Assembly committee, none of this would have happened. It would have cost less than the $2 million projected – money that could have been spent on the disabled.

And the grand irony was that having appointed Gallop with the aim of avoiding conflict with the coroner, what has been the result? The coroner has delayed his inquest into two of the three dead men and at the conclusion of his first inquest in September he found a case of accidental drowning, but called for an urgent review of ACT disability services (eight months into the Gallop inquiry!)

Perhaps it is fair to say that the coroner thought that the Gallop inquiry was either not being done with sufficient urgency or it was not an inquiry into disability services at all, but rather an inquiry into something else – who is to blame for the deaths, for example?

If we have two lawyers steeped in the adversary system given the task of inquiring into similar matters we should only have expected conflict, costs and delay.

Pity the parents and guardians of the disabled.