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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-12-02 Daily Xml
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STATUTORY AUTHORITIES REVIEW COMMITTEE: OFFICE OF THE PUBLIC TRUSTEE

The Hon. CARMEL ZOLLO (21:41): I move:

That the final report of the committee, on an Inquiry into the Office of the Public Trustee, be noted.

Essentially, the Office of the Public Trustee provides the core services of estate administration and trusteeship in South Australia. The office was established in 1881, pursuant to the Public Trustee Act of the time. The Public Trustee himself, who is currently Mr Mark Bodycoat, is a statutory officer who is responsible for the strategic direction of the office and the management of service delivery.

Under the provisions of section 5(2) of the Public Trustee Act 1995, the Public Trustee may act as trustee, executor of a will, administrator of an estate (whether or not of a deceased person), manager, receiver, committee, curator, guardian, next friend, agent, attorney and stakeholder.

The Statutory Authorities Review Committee resolved on 31 March 2008 to inquire into and report on the operations of the Office of the Public Trustee. Mr Bodycoat has held the position of Public Trustee since September 2007 and therefore has been the Public Trustee throughout the entire period of this inquiry. The committee, however, did hear historical evidence on issues dating back to 1998. The public trustees prior to Mark Bodycoat were Ms Catherine O'Loughlin from March 2002 to 2007 and Ms Judith Worrall from July 1991 to 2002.

It was clear from the outset that, upon commencing as Public Trustee, Mr Bodycoat implemented changes in order to improve staffing issues and customer service. However, the committee has a number of recommendations for consideration by the Attorney-General that it believes could further assist in improving the staff culture and service standards that are currently in place.

Before proceeding further, I would like to place on the record that I was appointed and elected as presiding member of this committee a year into the Office of the Public Trustee inquiry. I would therefore like to take this opportunity to thank the other members of the committee, including previous members, for their contribution and, in particular, the previous presiding member, the Hon. Bernard Finnigan. I would also like to thank all current members of the committee: the Hons Ian Hunter, Terry Stephens, Rob Lucas and Ann Bressington.

I also acknowledge and thank the staff of the Statutory Authorities Review Committee for their contribution and ongoing support. In relation to this report, I particularly thank our research officer, Ms Lisa Baxter. On behalf of the committee, I also take this opportunity to acknowledge and thank the organisations, agencies and individuals that submitted evidence to the committee during this inquiry.

The committee heard evidence from a variety of sources and received both written submissions and oral evidence. The committee also received a number of submissions from the Public Trustee in order to receive relevant and updated information. Through the information provided to it, and through its own research, the committee was able to gain a clear understanding of the key issues.

By way of background, the inquiry into the Office of the Public Trustee received written submissions from 29 interested stakeholders. These included clients, clients' family members, ex-employees, advocacy groups, the Government Investigations Unit, the Public Advocate and the Guardianship Board.

Importantly, the inquiry heard from parties who had experienced direct dealings with the Office of the Public Trustee. Many witnesses provided the committee with their own recommendations on improving the Office of the Public Trustee, whilst also noting the important role that the Public Trustee has in South Australian estate administration.

Whilst receiving evidence in this inquiry, four main themes emerged: Public Trustee customer service and client contact, financial administration, internal management practices at the Office of the Public Trustee, and the Public Trustee's relationships with other organisations. I will endeavour to outline the evidence received by the committee under each of these topics.

In relation to customer service and client contact, the committee heard from Public Trustee clients, ex-employees and advocacy agencies in relation to the administration and management of Public Trustee client files, customer service and work practices. A major part of this evidence revolved around clients' dissatisfaction with the Office of the Public Trustee's responses, or lack thereof, to both oral and written communication.

The committee was given examples where clients had waited weeks for responses to very simple questions or requests. The committee agreed that the examples provided raised legitimate concerns at the standard of customer service in place at the Office of the Public Trustee. Ex-employees also told the committee that, in their experience, it was well known that certain officers would leave some correspondence in the too-hard basket.

However, the committee also heard that the Office of the Public Trustee at times dealt with difficult or unwilling clients, and the Public Advocate commented that there were instances of extraordinary individuals working within the office.

The ACTING PRESIDENT (Hon. I.K. Hunter): Order! The level of conversation in the chamber is just a little bit too audible. If members wish to have conversations of a private nature, please leave the chamber and allow the speaker to be heard in silence.

The Hon. CARMEL ZOLLO: Thank you, Mr Acting President. I felt that I was having to raise my voice continuously. The current Public Trustee, Mr Mark Bodycoat, believed that some of the unsubstantiated allegations made about work practices within the Office of the Public Trustee appeared to be overstated. Mr Bodycoat explained that, whilst it was clear that there had been instances of substandard file management and behaviour in the past, they were not widespread and related to a limited range of instances and individuals.

Service standards that have been put into place at the Office of the Public Trustee now require responses to telephone calls and emails to be made by staff within one working day. The committee also received evidence on the number of Public Trustee client files per staff member, with the Public Advocate explaining that it was well known that Public Trustee staff often had high case loads. The committee found that the Office of the Public Trustee would be better serviced if it had a higher number of case officers, particularly in the area of personal estates.

Another topic discussed before the committee was the computer system in place at the Office of the Public Trustee. Mr Bodycoat explained to the committee that the current system is inadequate and is now beyond further upgrading. The committee agreed that the office was in need of a completely new computer and database system, which would improve customer service in a number of different ways.

The other major aspect of evidence received in relation to the standard of the Office of the Public Trustee's customer service was the issue of direct client contact. Currently, in South Australia, Public Trustee clients rely on visits from outside agencies, family members or their liaison person. A liaison person is someone who is appointed by the Guardianship Board. This is done at the time the board prescribes an administration order, when the board appoints an administrator to take over the management of a person's affairs.

The committee heard evidence in relation to when the Public Trustee is appointed administrator by the Guardianship Board and when the board appoints a liaison person to act as the go-between from the client to the Public Trustee. The use of a liaison person is intended to assist the administrator and is a matter of practice, rather than a formal requirement in the legislation.

However, the committee heard evidence that the liaison person may hinder the process because it often created an extra layer between the client and the Public Trustee. The committee also heard that the practice can make it difficult for the client to have their voice directly passed on to the Public Trustee. For example, the liaison person may be a family member and there may actually be conflict within that family, or at least perceived.

Another problem with the current liaison person system on which the committee received evidence was the Public Trustee's increasing reliance on the liaison person for updated information on their client. The committee heard evidence that, in the absence of an effective liaison person, the responsiveness of the system appeared to rely on the diligence of the individual Public Trustee officer in making inquiries about the needs of their clients. It also depends on the ability of the Public Trustee's clients to negotiate on their own behalf.

The committee heard evidence from advocacy agencies, clients, clients' families and the Public Advocate, who all expressed the opinion that there was not sufficient face-to-face contact being made by Public Trustee officers with their clients. The committee heard that in some cases such meetings held in person, especially at the commencement of an administration order, were vital in providing an opportunity for mutual rights, responsibilities and forward planning to be discussed. The committee also heard evidence that such meetings may contribute in fostering a positive relationship between the client and the Office of the Public Trustee.

The Public Advocate provided evidence on the importance of managing the affairs of a person on an individual case-by-case basis. Examples were given of the approach in other jurisdictions, such as the activities carried out pursuant to the UK Mental Capacity Act 2005, which endorses a system of decision-making being proportioned and tailored to the person's circumstances.

The committee also researched client visitation programs that are used in other jurisdictions. In particular, the committee was advised of the existence of the Authorised Visitor Program in New South Wales. The committee obtained information that the office of the New South Wales Trustee and Guardian runs a program whereby authorised visitors may be called upon to physically visit clients in order to ensure that substitute decisions made by that office are consistent with a client's needs and lifestyle.

The New South Wales Trustee and Guardian maintains a panel of authorised visitors who are independent experts, such as social workers, psychologists, medical practitioners, occupational therapists or similar professionals. The visitor formally reports to the office and makes recommendations for enhancing the client's quality of life and provides an opinion regarding the client's needs.

The committee felt that the government may want to consider introducing such a system to complement the services of the Office of the Public Trustee in South Australia. However, the committee noted the difference in structure between the South Australian Public Trustee and the office of the New South Wales Trustee and Guardian, with the latter now incorporating the merged offices of the New South Wales Protective Commissioner, the New South Wales Public Guardian and the New South Wales Public Trustee.

The committee also heard evidence relating to the financial administration of Public Trustee clients' affairs and the way that clients' funds are managed. In particular, the committee received evidence from clients' families who were dissatisfied with the way that the Office of the Public Trustee managed their family member's finances. Instances whereby the Office of the Public Trustee had mistakenly made overpayments on a client's behalf and then having to reimburse a client's account were also heard by the committee. In those cases, once the mistake had been realised, sometimes years later, the Public Trustee had to reimburse clients with thousands of dollars. The committee also heard that some clients were absolutely unaware of how much money they had in their account.

Mr Bodycoat explained to the committee that the Public Trustee was required to send out six-monthly financial statements to its clients. However, the committee thought it more prudent for the Public Trustee to send out three-monthly financial statements and has recommended such in order to keep clients in the loop and to ensure that any mistakes may be picked up earlier.

Evidence was also received by the committee on the ability of clients requesting extra funds for specific purposes. The committee heard from advocacy agencies that had seen cases where clients were denied funds from the Public Trustee, even when they were to be used for worthy causes and where the client had sufficient funds available. However, the Public Trustee maintained that reasonable requests for advances or special payments would normally be approved where the funds were available and all such requests were dealt with in accordance with the Public Trustee's general policies.

Advocacy agencies gave evidence to the committee in relation to the situation when Public Trustee clients have administration orders revoked by the Guardianship Board. This usually means that the client has proven to the board that he/she has the capacity to regain responsibility over their finances. However, the committee heard that in some cases the client may be left with no support or assistance in learning how to manage their finances again and may become overwhelmed. Therefore, the committee felt that the Guardianship Board is best placed to consider whether a client of the Public Trustee would benefit from having their Public Trustee officer explain the management of their finances before the administration order is officially revoked.

Former employees of the Public Trustee alleged financial mismanagement by the Office of the Public Trustee. After one former employee had made allegations of financial mismanagement in 1997, when he was still employed by the Office of the Public Trustee, the Public Trustee engaged Deloitte to conduct an audit. This audit revealed that the majority of issues raised by the former employee had been resolved by the Public Trustee before the audit commenced.

In relation to internal management practices, another prominent theme in this inquiry centred on the internal management practices of the Office of the Public Trustee. Historical evidence was received by the committee as to past allegations made of workplace bullying and a culture of an unhappy work environment. In particular, one former employee provided evidence of three separate actions he brought against the Public Trustee. I note that the specific workplace bullying claims made by former employees of the Public Trustee occurred well before this inquiry commenced and had subsequently been dealt with by the Commissioner for Equal Opportunity, the Equal Opportunity Tribunal, the Government Investigations Unit, an investigation pursuant to section 58 of the Public Service Management Act 1995, and the removal of one senior manager at the Office of the Public Trustee.

The committee received evidence of past workplace behaviour which, in the committee's view, constituted unacceptable behaviour in the workplace environment. Other matters raised during this inquiry included:

the relationships between the Office of the Public Trustee with the Office of the Public Advocate, the Guardianship Board and the Disability Advocacy Complaints Service of South Australia, and the improvements in the liaison between those organisations;

the fees and commissions charged by the Public Trustee and waivers given to clients suffering financial hardship;

the number of complaints and commendations made in relation to the Office of the Public Trustee for the years ending 30 June 2006, 2007 and 2008; and

the internal policies and standards in place at the Office of the Public Trustee, and the Attorney-General's Department policies to which the office is subjected. Having examined the evidence before it, the Statutory Authorities Review Committee has a number of recommendations to make in order to improve the current workings of the Office of the Public Trustee.

Arising out of the evidence received in relation to the lack of face-to-face client contact between Public Trustee officers and their clients, the committee recommends that the Public Trustee inquire into the most appropriate client visitation program to be implemented. The committee believes that the New South Wales authorised visitor program is a good example of independent health professionals assisting and ensuring the clients' needs and lifestyle requirements are known and kept up to date. It also finds that implementing an authorised visitor system would decrease the reliance on a liaison person to keep the Public Trustee informed of its clients' needs.

The committee also recommends that client satisfaction surveys, measuring both public awareness and client satisfaction, be conducted by the Public Trustee annually and reported publicly in the Public Trustee annual report and on the Public Trustee website. In order to improve the standard of customer service at the Office of the Public Trustee, the committee recommends an appropriate number of Public Trustee officers be maintained, especially in the Personal Estates Branch.

The committee also recommends the introduction of a new computer system enabling Public Trustee officers to work more efficiently and enabling easy access to a client database. The committee noted that this would also assist in providing the mechanism for instantaneous responses to client telephone inquiries. A new database would also allow for Public Trustee officers to record all telephone inquires made by clients and subsequent actions taken by officers. Once such a system has been introduced, the committee recommends that the use of voicemail be abandoned at the Office of the Public Trustee.

As mentioned earlier, the committee believes that Public Trustee clients did not have sufficient access to their account information. Therefore, the committee recommends that the Public Trustee send out quarterly financial statements to clients. As a result of receiving information on the fees charged by the Public Trustee to its clients, the committee notes the importance of high quality service delivery on behalf of the Office of the Public Trustee.

As such, the committee recommends the following: the standard practice for the reimbursement of late fees paid out to a client's account if a client's bill has not been paid on time by the Public Trustee be made into a formal policy; the Public Trustee draft and implement clear guidelines to allow its clients to use their savings in circumstances that are deemed appropriate; the Public Trustee consider an appropriate training program for staff in relation to financial management in order to increase the level of skill and efficiency of officers; and the Public Trustee Act 1995 and Public Trustee Regulations 1995 be amended in order to formally reflect the Public Trustee's internal policy of waiving fees to clients suffering from financial hardship.

The committee also recommends that the Guardianship Board's powers be reviewed when administration orders are revoked in relation to directing Public Trustee officers to assist their clients in stepping down from financial administration. Arising out of the evidence received on internal management practices, the committee recommends that the Public Trustee ensure that all internal standards on Public Trustee work practices and customer service accord with the policies enforced by the Attorney-General's Department.

In conclusion, the committee is thankful for the opportunity to have inquired into and reported on the operations of the Office of the Public Trustee. It was clear to the committee that changes have been implemented since the current Public Trustee commenced in that role. However, the committee is hopeful that the proposed recommendations, if implemented, will improve the level of Public Trustee client satisfaction even more and will assist in improving the overall competence of the Office of the Public Trustee. As such, the committee's final recommendation is for the Public Trustee to attend before the Statutory Authorities Review Committee in two years' time in order to demonstrate the outcome of changes already implemented by the most recent Public Trustee and those for consideration arising out of this inquiry.

Just a quick recap. The Public Trustee is an important institution that is entrusted with looking after the financial affairs of some of the most vulnerable people in our society due to accident, illness, age or disability.

The committee in particular heard allegations (and I stress this) of a historical nature in relation to both inefficient client services and inappropriate staff management. However, the committee also heard evidence from the present Public Trustee that some were overstated, some had already been addressed and some are in the process of being addressed. It is for that reason, as I mentioned, that the committee has recommended that the Public Trustee attend before it in two years—we thought that prudent—to report on the changes already addressed, as well as any suggested recommendation or changes from this inquiry.

The Hon. R.I. LUCAS (22:05): I rise to support the remarks made by the Hon. Mrs Zollo as the Presiding Member of the Statutory Authorities Review Committee. The honourable member has given a comprehensive summary of the themes that arose during the committee's inquiries and most of the recommendations, and I do not intend to repeat those. However, I do want to come to the core of the agreed conclusion or summary made by all members of the committee. I believe that it is important to stress that, with two Labor members, two Liberal members and the Hon. Ann Bressington, the diversity of the Legislative Council is represented on the committee, and all members, including the two government members, agreed with the following statements:

The Statutory Authorities Review Committee was appalled at some of the historical examples provided in evidence to the committee of unacceptable levels of performance and service provided to some clients, as well as unacceptable treatment of some staff of the OPT by other staff and managers of the OPT.

The committee believes significant changes must be made to the operation of the OPT to ensure significant improvements are achieved in the quality of service provided to clients.

The committee acknowledges evidence from the new Public Trustee, Mr Mark Bodycoat, that changes to the operation of the OPT are already being implemented, but the committee reserves its final judgment on the adequacy of those changes and proposes a series of further recommended changes and a further review by this committee in two years.

As I said, that is an agreed conclusion by all members, including two members of the government, and I pay credit to the courage of the Hon. Mr Hunter and the Hon. Mrs Zollo for being prepared to call a spade a spade. The evidence we received was, indeed, appalling in terms of the way in which staff had been treated in the Office of the Public Trustee and the quality of the service that was being provided to some clients and those family members who were trying to assist some clients.

I think that phrase in and of itself summarises starkly the hundreds of pages of evidence that this committee received on the term of reference we were given. The other aspect was that this inquiry, as the Hon. Mrs Zollo indicated, was based on evidence right across the board. We took evidence from individuals who gave us quite emotional and heart-rending testimony in relation to the problems they had confronted with a family member or friend who was a client of the Office of the Public Trustee.

We also heard heart-rending testimony from some individual staff members who had been treated appallingly by other staff members, and their needs were ignored by management of the Office of the Public Trustee. We also received well-considered and sensible submissions from a number of agencies and bodies to which the Hon. Mrs Zollo referred. A number of those came up with very sensible policy recommendations for changes, a number of which the committee has picked up and incorporated in its recommendations.

We do not claim a dazzling brilliance on our behalf with respect to some of these policy recommendations. Some of them were actually part of submissions by respected bodies and agencies involved and associated with the work of the Office of the Public Trustee. The committee considered and agreed with a number of them and incorporated them in its recommendations.

I want to talk briefly about that, because over a period of time a number of members of parliament had been receiving whistleblower allegations about the appalling nature of the Office of the Public Trustee. It was, in part, because of the driving influence of some of those people that this committee inquiry was originally established. Some of those people turned up and gave evidence to the committee inquiry and, as I said, it was evidence of appalling treatment. With respect to the examples of evidence that we received from Rob McKibbin and John Oliver, frankly, that sort of behaviour in the workplace by staff members to other staff members should not be accepted anywhere, let alone in a government department or agency such as the Office of the Public Trustee.

When complaints were made to senior managers about that sort of behaviour, or complaints about the lack of productivity in other sections of the Office of the Public Trustee, rather than genuinely investigating, considering and then doing something about resolving the issues, sadly, management ignored many of the problems and issues that were being raised. They festered and they caused problems, and some people now are suffering significant health-related issues and problems as a result of the way in which the Office of the Public Trustee managed some of those issues.

I do not intend to repeat all of those tonight. Some of them attracted some publicity during the hearings of this inquiry. They are part of the evidence of the report and also part of the documentation and the transcripts which have been tabled and which can be made available to anyone who wants to see them. The fact that all members of this committee, having listened to the testimony, agreed that they were appalled at some of this treatment, as I said, is a very good summary of the impact of the evidence on all members of the committee.

I acknowledge, as has the Hon. Mrs Zollo, that there is a new Public Trustee who has been appointed in the past 18 months or so, and he is in the position of saying, 'Look, I wasn't there when many of these things happened.' However, I hasten to say the committee is aware that, even as we speak, there is still a small number of examples of bullying and harassment that are having to be considered by the Office of the Public Trustee at the moment, and we can only hope that they can be resolved satisfactorily and quickly. The new Public Trustee has indicated that he and they are adopting new policies. They are hoping to improve the culture of the workplace at the Office of the Public Trustee.

As I said, I am pleased that the committee has said, 'We will reserve our final judgment on the adequacy of those changes. We propose a series of further changes and a further review by the committee in two years.' That was the committee's judgment. Speaking personally, what has been suggested so far sounds fine but, in the end, it is not sufficient to talk the talk: we need to see someone walk the walk. We have heard what is being proposed, and we now need to see action. That is why members of the committee believe that there should be a further review by the committee.

I note that in the specific recommendations we talk about inviting the Public Trustee to come back to report to the committee in two years, but the conclusion on page 10 of the report is 'and a further review by this committee in two years'. It is my very strong view that the committee in two years should not just be listening to the Public Trustee and having him report on what has happened in the past two years but that it should be a further inquiry.

Those very sensible bodies and other agencies, including the Office of the Public Advocate, a number of advocacy agencies and the Guardianship Board that gave evidence this time, should be asked to give evidence to see whether or not in their judgment the changes have been achieved. The committee should hear from the Public Trustee, but that should not be sufficient.

There should be a further review in two years to listen not only to the Public Trustee but also to the other agencies that gave evidence on this occasion to say, 'Okay, you have had two years under the new arrangements (by that time it would be almost three years), do you genuinely believe that there have been measurable improvements and measurable changes in terms of the performance of the Public Trustee?' I think that is a critical aspect of this particular report.

I do not intend tonight to go into a lot of the detail of the cases that we heard about in evidence; they are available, and some of them attracted publicity at the time. I want to strongly urge the Legislative Council in two years to conduct a review or an inquiry, not just hearing from the Public Trustee as to how he thinks things have been going during that two year period.

Debate adjourned on motion of Hon. I.K. Hunter.

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