Dear Mr Andrews,
I am writing to you in your capacity as Chair of the Joint Standing Committee on the National Disability Insurance Scheme, hoping that the committee can address a shortfall in the function of the NDIS.
I lead an organisation which provides individual advocacy for people with disability, with many clients who have impaired cognitive abilities or significant behavioural issues. Consequently, their interaction with the NDIS requires our involvement.
However, the NDIA does not appear to have any consistent policy or procedure to recognise advocates. We routinely find that:
- agency staff do not recognise written consents provided by us; or
- agency staff say that an NDIA form must be used, but that there is no form available on the website and a uniquely numbered form be produced by the NDIA, and yet other staff dealing with the same matter will communicate even before the form is produced; or
- staff will not be aware of any consent requirement
We have written to the CEO of the NDIA expressing these concerns, however the agency’s reply has merely reiterated the need for the NDIA to protect privacy. We already understand that requirement, as we made clear in our enquiry, and the response does not assist at all in resolving the issue. I have attached copies of both communications.
This is not a trivial issue only affecting people at the margin. A significant proportion of NDIS participants and potential participants rely on advocacy assistance to navigate life in general and the NDIS in particular. This is an obstacle both to supporting the human rights of the participants and to the efficient operation of the NDIS.
We would be grateful for the Standing Committee’s attention to this issue.
Yours Sincerely,
Geoff Southwell CEO
Milton House 25 Flinders Lane, Melbourne VIC 3000
T. (03) 9489 2999 www.leadershipplus.com
Mr Rob De Luca Chief Executive Officer National Disability Insurance Agency GPO Box 700 Canberra ACT 2601
Dear Mr De Luca
Re: Consent and Permission processes within the NDIA
As advocates assisting people with disability in negotiating the NDIS planning process, we are experiencing first-hand the challenges this process entails for participants. We are also finding that there are policy and process issues around the way the NDIA deals with advocates which are hampering our ability to assist clients and unnecessarily prolonging, and in some cases obstructing the process.
In particular, we are seeing a number of issues around the NDIA’s recognition of participants’ consent for us to act on their behalf or assist them. These include:
-
NDIA not recognising any form of authority to act other than the NDIA document. Most government departments and agencies will recognise any suitably worded and executed authority to act, but in the case of the NDIA:
- only the official NDIA form is recognised
- the official form is not readily available, but an individually numbered for a participant must be requested from the NDIA. These restrictions create unnecessary steps and unnecessary delay.
-
Inconsistent recognition of NDIA’s own consent requirements. We have experienced instances of one person in NDIA refusing to deal with an advocate without an NDIA authority to act, and while the advocate was attempting to obtain that authority, they were contacted
ABN 30 591 218 387
Leadership Plus 25 Flinders Lane Melbourne VIC 3000
Phone: (03) 9489 2999 Fax: (03) 9489 2988 Email: www.leadershipplus.com
by another person from NDIA to discuss the same matter with no apparent concern for whether such authority existed.
Our advocates fully recognise that such authority is important to the protection of potential participants and are universally concerned to ensure the validity of any authority to represent a client. In order to ensure a smooth process, it would be very beneficial if the NDIA were to:
- Confirm a policy of recognising any validly executed authority to represent a client
- Make available a proforma version of such an authority on the NDIA website for clients who are not familiar with the requirement
- Promulgate procedures within the NDIA to ensure that the requirement for such an authority is consistently enforced and that the recognition policy is consistently followed.
I hope that this suggestion can find support in your agency.
Best Regards,
GEOFF SOUTHWELL Chief Executive Officer
ABN 30 591 218 387
Leadership Plus 25 Flinders Lane Melbourne VIC 3000
Phone: (03) 9489 2999 Fax: (03) 9489 2988 Email: www.leadershipplus.com
Dear Mr Southwell
Thank you for your email of 22 March 2018 to the Chief Executive Officer of the National Disability Insurance Agency (NDIA), Mr Robert De Luca regarding consent for National Disability Insurance Scheme (NDIS) participants. Mr De Luca has asked me to reply to you on his behalf.
I appreciate the time you have taken to provide feedback regarding advocacy support for NDIS participants and your concerns with the recognition of Leadership Plus’s authority to act.
It is my understanding redacted, NDIA Senior Complaints Officer, made contact with you on 27 March
2018 to discuss your concerns. I have been informed redacted discussed the obligations imposed on the NDIA
under federal law, including the Privacy Act 1988 and the National Disability Insurance Scheme Act 2013 (NDIS Act).
The NDIS Act allows for the recording, disclosure or use of protected information when a person to whom the information relates requests or consents to the disclosure (express consent) or can be taken to have requested or consented to the disclosure (implied consent). When determining whether a participant has consented to the disclosure of protected information about them, it is important to remember that the consent can be in writing (such as an email) or provided orally (such as over the telephone or in a face to face meeting). Where consent is given orally, NDIA staff must make a written record of that consent.
It is also possible that a participant can be taken to have given their consent where they agree to a course of action that requires the disclosure of their protected information. For example, a participant will be taken to have consented to the disclosure of their protected information to a service provider where the participant has requested they receive services from that service provider (i.e. during the development of the participant’s plan) and disclosure of certain information is necessary to facilitate the provision of those services.
Further information on NDIA information handling obligations can be found at https://www.ndis.gov.au/operational-guideline/information-handling.html#8.2.
Thank you for bringing your concerns to the NDIA’s attention.
Yours sincerely
redacted
National Disability Insurance Agency