Senate Inquiry into the National Disability Insurance Scheme Amendment (Quality and Safeguards

Commission and Other Measures) Bill 2017

People with disability are entitled to expect and receive high-quality supports and be free from abuse, neglect, exploitation, violence, or other harm. Arrangements that can deliver this rest with not with one entity or one set of rules, but depend on an ecosystem of actors, resources, rules and expectations. These include general systems of law and law enforcement, natural supports, individual capacity-building strategies and organisational cultures. The proposed NDIS Quality and Safegards Commission will be a critical entity within this system but, to be effective, will need to work as part of a larger network.

NDS is committed to supporting disability service providers to provide high-quality supports in safe environments. Our Zero Tolerance initiative assists disability service providers to understand, implement and improve practices which safeguard the rights of people they support. Built around a national evidence-based framework, Zero Tolerance is:

a way for organisations to understand actions to prevent and respond to abuse, neglect and violence of people with disability
a clear message that abuse, neglect and violence are not okay
a way of thinking about abuse as a human rights issue not a disability issue
a collection of resources to educate and train staff at all levels to understand their responsibilities in preventing and responding to abuse
a way of working collaboratively within and outside the disability sector to prevent and respond to abuse

We look forward to working collaboratively with the new NDIS Quality and Safeguards Commission to ensure NDIS participants receive high-quality supports underpinned with appropriate protections for their rights and safety. Our comments on the Bill are made with this aim in mind.

Our comments are limited by the unavailability of draft Rules, which will be critical in understanding how many of the arrangements will work. NDS urges government to consult on draft Rules before they are introduced into Parliament.

Structure of the Commission

The legislation proposes a structure for the NDIS Quality and Safeguards Commission that incorporates three key functions: a complaints commission; a registrar; and a senior practitioner. While the simplicity of this is appealing, it is not clear how the Commission will operate to ensure the integrity of the functions.

The Bill outlines the obligation to guard information provided to the Commission; hhowever, it is not clear about the sharing of information within the Commission across its functions.

The sharing of information across the Commission should not be unregulated. Some complainants are vexatious and make frequent complaints that are never substantiated; and some organisations actively promote the importance of making complaints which generates a high number of complaints. Thus, a high number of complaints against a provider should not in itself influence decisions regarding the registration of the provider or how frequently the provider should be audited. The risk of disclosure of unsubstantiated information across the Commission’s functions is increased by the proposed shared legal and investigative division.

NDS would like the legislation to detail how the three key functions of the Commission will guard information until such time that the matters are substantiated or of such a serious nature that a formal decision is taken to share information across the functions.

Commonwealth Minister’s powers over the Commission

The Commission must act, and be seen to act, independently. The legislation should specify the Commonwealth Minister’s powers over the decisions and actions of the Commission. The powers should be limited and clearly articulated.

Role of the state and territory governments in making Rules

The quality and safeguards framework agreed by COAG requires state and territory governments to undertake functions, namely worker screening and approving the use of restrictive practices. As such, state and territory governments have an integral (if reduced) role in overseeing the delivery of high-quality supports to people with disability.

The legislation proposes that most Rules pertaining to the quality and safeguarding system will be Category D Rules, requiring that the Federal Minister consult state and territory governments but not obtain their consent. The interest of state and territory governments in some of the Rules will be greater than this assumes.

It would be reasonable for state and territory governments to be involved in decision-making where their quality and safeguarding responsibilities overlap with those of the proposed Commission. Moreover, in moving towards national consistency on matters as serious as limiting the freedom and rights of an individual, every effort should be made to obtain agreement among all states and territories on a common approach (effectively treating the matter as if it were a Category A Rule). However, to prevent undue delays in the securing of Rules, an increased number of Category

B Rules

would be sufficient (which require agreement between the Commonwealth and the relevant state or territory government but not consensus among all jurisdictions).

Investigative powers

The Commission should have the power to initiate investigations (not just respond to complaints). This was a recommendation of both the Victorian Ombudsman’s 2015 report and the 2016 Victorian Parliamentary Inquiry into the abuse and neglect of people with disability in that state. An ‘own motion’ power to investigate is not clearly articulated in the legislation; it should be added.

Relationship with other complaints’ bodies

Some people seeking redress make a complaint to more than one body at the same time, which can duplicate investigative and conciliation efforts. The legislation should provide for a mechanism to limit this duplication by allowing some information sharing and coordination across defined complaints bodies.

Scope of coverage

The Bill specifically lists NDIS providers and NDIS registered providers as being subject to the requirements of the legislation. It should also include Information, Linkages and Capacity Building services, Local Area Coordination services, Early Childhood Early Intervention services and the National Disability Insurance Agency itself (it has people working closely with participants) as being subject to the requirements of the Bill.

Some of the organisations providing the above services are currently not NDIS registered providers but provide supports with NDIS funding that could place participants at risk of abuse, neglect or poor-quality support. While they would be subject to the proposed Code of Conduct, this alone is insufficient given the nature of some of the supports they will provide.

IT system

NDS understands that an ICT system to support the Commission is being developed (using a modified Siebel platform). NDS urges the Commonwealth Government to work with the sector on this development to identify and respond to providers’ requirements and ensure that the system is comprehensively tested with users before being launched.

Requirements of non-registered providers

NDS is very concerned about the disparate approaches to quality and safeguarding according to who manages an NDIS participant’s funding. Participants who self- manage their funding (or who have their package managed by a family member) will be able to purchase supports from unregistered providers. Unregistered providers will not be audited against quality standards or have to report serious incidents to the

Commission

(such as the serious fall of a participant while showering). Given that the NDIA is promoting self-management (with the hope that the proportion will reach 40%), this would expose a significant proportion of NDIS participants to unacceptable risks. It would also establish a two-tiered market, with one tier more regulated than the other and bearing higher compliance costs. The tiers would be determined principally not by the degree of participant vulnerability or the risk profile of the service type, but by how participants choose to manage their funds.

Over time, the NDIS will see more people with disability being supported in unsupervised environments and in situations where it is more difficult to control outcomes.

NDS opposes the arrangement that allows self-managing participants to employ the services of unregistered providers. We maintain that all providers should be registered and that regulation and reporting requirements should be proportionate to isk. An exception should be self-employment, which requires the participant to take on the responsibilities of an employer.

National database for worker screening The introduction of a national quality and safeguards system is an opportunity to improve worker screening but this will not be possible unless it is supported by a national database. The sector has been let down by the ability of workers found guilty of unacceptable practices (or seriously suspected of them) to move across jurisdictions and sectors. Establishing a national database for worker screening will help prevent this from occurring. Including this in the Bill is preferable to relying on states and territories to each find a way of being able to share screening information (and trying to manage this within each jurisdiction’s privacy regime).

Serious breaches of the Code of Conduct and any banning orders will need to be included on this register. Ideally, serious concerns arising from adjacent sectors such as aged care, children’s’ services and health should also be recorded on this national database.

It would be beneficial for the Bill or the Rules to include more on the need for information-sharing among jurisdictions.

Code of Conduct In our recent submission, NDS urged the Government to develop separate, though related, Codes of Conduct for service providers and workers. Combining obligations into a single Code dilutes the Code’s relevance to both providers and workers. We would like to see this referenced in the legislation.

From the Bill, it is difficult to understand how the Code will operate in practice. For example, will workers in significant breach of the Code be subject to a banning order or some other method of limiting their work in the sector? How will a breach of the Code be linked to state and territory worker-screening processes? How will an employer of a worker found in breach be informed (if at all)? What mechanisms will

Increased clarity on information-sharing arrangements is required. For instance, will information the Commission receives on the use of restrictive practices by organisations or individuals be provided back to the relevant state or territory which is authorising their use? If yes, would all information be provided back or would it be limited to matters that might influence future authorisations? Similarly, will concerns arising through complaints be shared with states and territories?

In addition, if a state or territory government approves the use of restrictive practices for a participant, how will knowledge of that approval be shared across all relevant organisations providing support to the participant?

Review of the Act

This legislation is complex, concerns a critical and sensitive dimension of service provision and forms a key pillar of the NDIS; it should include a review clause. NDS recommends that the Bill include reference to a review of the Act within 3‒5 years of its introduction.

Community visitors

The legislation is silent on community visitors’ schemes. NDS is aware that a review of the effectiveness of such schemes was planned but is unaware of the outcomes. If possible, their role in a national quality and safeguards system should be outlined in the Bill.

July 2017

Contact: Dr Ken Baker Chief Executive

National Disability Services is the peak industry body for non-government disability services. It represents service providers across Australia in their work to deliver high-quality supports and life opportunities for people with disability. Its Australia-wide membership includes over 1100 non-government organisations which support people with all forms of disability. Its members collectively provide the full range of disability services—from accommodation support, respite and therapy to community access and employment. NDS provides information and networking opportunities to its members and policy advice to State, Territory and Federal governments.