SUBMISSION TO THE SENATE COMMITTEE INQUIRY INTO THE

NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT (QUALITY AND SAFEGUARDS COMMISSION AND OTHER MEASURES) BILL 2017

JULY 2017

ROLE OF THE PUBLIC ADVOCATE AND CHILDREN AND YOUNG PEOPLE COMMISSIONER

The Public Advocate and Children and Young People Commissioner (PACYPC) is part of the ACT Human Rights Commission and has legislative responsibility for protecting and promoting the rights and interests of people in the ACT who are experiencing vulnerability, and for consulting with children and young people in ways that promote their participation in decision-making.

The role of Public Advocate extends to all persons within the ACT whose situation or condition gives rise to a need for protection from abuse, exploitation or neglect, or a combination of those things.

The responsibilities of the PACYPC are underpinned by a range of functions including advocacy (individual and systemic), representation, investigation, and monitoring. Some of these functions are specific to children and young people, and others encompass people with complex disability needs, including those with mental health conditions and/or forensic patients.

Overarching these functions is a strong focus on ensuring that the PACYPC’s monitoring and oversight functions (and the recommendations that we make to government and non-government agencies on legislation, policies, and practices) contribute to improvements in the accessibility, responsiveness and quality of supports and services that are available for persons experiencing vulnerability.

COMMENTS ON THE BILL

The PACYPC welcomes the introduction of the National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and other Measures) Bill 2017 (‘the Bill’). The Bill contains important provisions that will protect the safety of people with disability. The Bill also has potential to promote a culture of internal review and continuous improvement among NDIS providers.

Overall the PACYPC is supportive of the aims of the Bill, particularly of the proposals to:

establish an NDIS Quality and Safegards Commission (‘the NDIS QASC’), a statutory authority that will conduct a range of oversight functions independent of the National Disability Insurance Agency (NDIA)
require service providers to meet certain minimum standards before they can achieve registration with the scheme (section 73E)
provide the NDIS QASC with authority to categorise different ‘specified classes of supports’ (section 73B), allowing the possibility for low-risk services to be provided to consumers with minimal regulatory oversight

provide for the development of ‘NDIS Practice Standards’ (section 73T) to formally articulate the quality of service provision required to be an NDIS provider
provide for the development of an ‘NDIS Code of Conduct’ (section 73V) to formally articulate the standards of behaviour required by people working for NDIS providers

impose a statutory obligation on NDIS providers to:

    o  provide internal complaints management and resolution systems (section 73W)

    o maintain proper recordkeeping practices (section 73Q)

    o develop an internal incident management system (section 73Y)

provide for national oversight of investigations of ‘reportable incidents’ (section 73Z) and
provide for national leadership in behaviour support and the reduction and elimination of use of restrictive practices (section 181H).

This submission contains general comments on matters requiring consideration during the challenging implementation stages of the legislation. The PACYPC looks forward to the opportunity to comment on the NDIS Practice Framework and the NDIS Code of Conduct when they are ready for public circulation.

Importance of national leadership

The PACYPC supports the implementation of a national regulatory framework for the NDIS scheme in protecting people with disability and in ensuring their protection from harm. Ensuring consistent standards through a robust national oversight and monitoring mechanisms is essential to safe and high quality standards of service provision. Different regulatory mechanisms, standards, quality assessment and oversight processes currently exist between the jurisdictions as a consequence of the staged roll out and implementation of the NDIS reforms. Standards of service delivery for NDIS approved agencies are not consistent across the country, potentially exposing people with disabilities to risks due to poor quality service delivery.

The levels of oversight, quality improvement processes and the capacity to manage and resolve complaints also vary between different jurisdictions. The establishment of the NDIS QASC is a positive and necessary step to ensuring optimal standards of service and consistency in the resolution of issues across jurisdictions. As many NDIS registered providers operate in different states and territories, changes that occur within organisations can also then be applied across the whole of organisation rather than just in the prosecuting jurisdiction.

Rights based framework

Quality and safeguarding regulatory structures must promote, align with and be tested against human rights instruments to which Australia is a signatory, including but not limited to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) 1and the United Nations Convention on the Rights of the Child (UNCROC)2.

     1 Convention on the Rights of Persons with Disabilities, opened for signature on 30 March 2007, [2008] ATS 12 (entered into force on 3 May
  2008) 'Convention on the Rights of Persons with Disabilities'.
      
     2 United Nations (1989) Convention on the Rights of the Child. Retrieved 19 July 2017 from http://www.ohchr.org/Documents/ProfessionalInterest/crc.pdf

Consumer participation in the implementation of the Bill

The NDIS QASC needs to have a broad role in facilitating a comprehensive quality and safeguards framework that extends beyond the quality audit, compliance and enforcement focus to ensuring participants are actively involved in ongoing policy reform processes.

The PACYPC recommends, in particular, that people with disability be closely involved in the design of the NDIS QASC, and that the NDIS QASC’s operations incorporate regular opportunities for consumer participation and consultation.

Enhance natural safeguards

The introduction of the customer-driven marketplace of disability service provision offers a number of opportunities and challenges, many of which will sit within the NDIS QASC.

The need for a combination of informal and formal safeguards must be recognised and implemented. The development of natural safeguards is an important strategy and should be a priority for the NDIA and the NDIS QASC. There must also be minimal limitations (bureaucratic and regulatory) placed on the extent to which individuals can use informal arrangements.

Therefore it is critical that the first function of the NDIS QASC (‘functions relating to the quality and safety of services and supports provided to people with disability’, as stated in amendment 6 of the Bill) is seen as a priority and drives the implementation of the registration of providers and complaints management functions.

Empower people with disability to participate in decision making

Supporting participant satisfaction and ensuring quality services will require more than just registration and compliance activities; it will also require education and appropriate supports to assist people with disability to understand and navigate the nature of contractual arrangements with service providers, the relationship between personal expectation and the provider-participant agreement, and the remedial rights available to people. Active involvement by participants in consumer feedback processes, quality auditing and complaints management will also require education and support for participants.

In particular, participants with cognitive impairment will need a significant investment in supports to help build their capacity to actively develop and maintain natural safeguards as well as participate actively in formal safeguarding processes. While some of this support may come from within the person’s individual plan, a broader strategy of capacity building needs to be a key element of the NDIS QASC’s activity. The PACYPC would recommend that the developmental elements of a quality and safeguards framework are specifically articulated as part of the role of the NDIS QASC.

National framework for preventing and responding to abuse, neglect and exploitation

There must be a high priority placed on preventing and responding to abuse, neglect and exploitation. It is essential that the NDIS QASC have a lead role in a holistic and comprehensive national framework for preventing and responding to abuse, neglect and exploitation of people with disability. The framework should be consumer focussed and present information on best practice in prevention, early intervention and remediation strategies. The framework should be publically available, broadly promoted and presented in a range of accessible formats.

Prioritise consumer satisfaction and outcomes

Arguably the current orientation for disability quality mechanisms, including complaints management systems, sees people with disability as ‘passive’ recipients of welfare-type services. The NDIS provides a direct challenge to this and people with disability are now able to directly purchase supports they choose to drive the outcomes they seek to achieve.

It is unclear within this legislation how the quality assurance strategies (including registration of providers, quality audits and complaints mechanisms) will build and enhance the capability of people with disability to be active consumers and to ensure that there is active monitoring of consumer based outcomes and consumer satisfaction.

A risk based approach depending on a person’s vulnerability

As providers are reorienting their business strategies around consumer focussed services, the requirements under the legislation for quality auditing against NDIS Practice Standards, complaints management and incident management system also need to be underpinned by consumer driven quality processes that are premised on an accurate assessment of risk.

The explanatory memorandum identifies that the approach to quality assurance requires the application of the NDIS Practice Standards in a manner that is cognisant of the inherent risk of the supports or services and proportionate to the size and scale of the provider. However the registration requirements set out in this legislation appear to reflect a continuation of the current disability quality systems rather than the radical transformation that is essential to fully realise the intent of the NDIS.

The PACYPC considers the NDIS Practice Standards, NDIS rules, model complaints mechanisms, and NDIS Code of Conduct as critical pathways for delivering quality and safeguards within a consumer directed scheme. With the proposed legislation mirroring existing schemes, the details and approaches within these other mechanisms will need to provide the ground work for the transformational change that is needed. This means that the NDIS Practice Standards will need to differ from the National Disability Service Standards, which were based on government funded service delivery. This difference will be critical to effective implementation of the NDIS as a consumer driven market approach.

The memorandum notes two levels of quality assurance, the first being third party quality certification and the second, a lighter touch periodic verification processes. These two options are supported for disability specific supports.

However the NDIS funding enables people with disability to purchase from a broader range of providers than was previously funded under government funded schemes. This breath [sic] will include providers from commercial markets such as gardening, cleaning and provision of personal care products, rather than just specialist disability services. In addition a range of therapy services are currently provided by NDIS registered providers that do not have to complete quality audits as they already have quality assurance through registration requirements and are purchased regularly by people with disability through other schemes without the need for disability specific quality assurance.

The application of legislative requirements for some of these types of services would benefit from a greater focus on risks.

Community visitor programs

One proactive mechanism used across jurisdictions but with gaps in the level of coverage is community/ official visitor programs. The NDIS QASC would strongly benefit from considering whether a national scheme across the NDIS would provide additional benefits. This would necessitate connecting with, and working alongside, existing schemes in the states and territories to identify the relative merits of doing so versus continuing with disparate schemes.

Leadership in relation to behaviour supports and restrictive practices

The Bill indicates that the NDIS QASC will provide leadership in relation to behaviour supports in reducing and eliminating the use of restrictive practices. Further clarification is required as to the parameters of this function and how this function will interface and/or work in collaboration with Offices of the Senior Practitioner that exist in a number of jurisdictions, which similarly have responsibilities for monitoring restrictive practices. To avoid confusion, any potential duplication and overlap in functions needs to be avoided and the roles and responsibilities of the NDIS QASC pertaining to this function need to be clearly articulated.

Providing leadership in relation to behavioural supports also necessitates the NDIS QASC having access to high level contemporary clinical practice expertise. In striving for optimal practice, this expertise may be best achieved by adopting a multidisciplinary clinical approach that involves, for example, clinical psychologists, occupational therapists, other allied health practitioners and medical staff. Whilst it is understood that further policy work is occurring on this, the PACYPC welcomes receipt of additional information on how this function will be fulfilled.

Complaints functions of the NDIS Quality and Safeguards Commissioner

The PACYPC endorses the separate submission by the ACT Disability and Community Services Commissioner on the issue of information handling and complaints investigation. Consistent with that submission, the PACYPC suggests the Bill be revised to give the NDIS QASC clearer oversight powers over the NDIA. Although Part 6 of the National Disability Insurance Scheme Act 2013 provides for internal review of some NDIA decisions by the CEO of the NDIS, then allows for the participant to seek referral to Administrative Appeals Tribunal (AAT), these processes elevate complaints management to a level that may be daunting, if not inaccessible, for many people with disability.

The PACYPC has observed concerns and problems with NDIA decision-making for individual consumers that are not being adequately addressed and resolved under current oversight arrangements. Examples include but are not limited to:

The apparent application of benchmarks for funding rather than considering the reasonable and necessary supports for individuals with complex needs
Significant reduction in respite care for people with complex needs
NDIA staff discouraging people from seeking a review of decision.
Significant delays in making decisions
NDIA undertaking reviews with participants by telephone, with no notice, and without allowing for the participant to arrange for a carer or support person to assist them.

Problems such as these appear to be unresolved because either (a) they are not reviewable decisions, or
ongoing delays in decision making by the NDIA mean the matter cannot be put to review, or (c) the AAT is not a readily accessible process for resolution for people with limited resources, noting that the AAT does not have an overarching systemic perspective on the operation of the disability sector.

The Bill does not give NDIS QASC authority to investigate complaints about the NDIA (sections 181E and 73X). This may be problematic, as the performance of NDIS providers is inextricably linked to decisions by NDIA about funding allocations and plans. An assessment of the quality of service by an NDIS provider will sometimes raise larger questions about the funding allocation or design of a participant’s NDIS plan. For example, an NDIS provider may be investigated for allegations of inadequate supports, but may argue they provide as much as is possible with the funding allocated to the person. The NDIS QASC may find it difficult to provide oversight of the NDIS system if they are prevented from considering the full implications of a complaint.

The Bill anticipates that the QASC will provide ‘advice or recommendations to the Agency or the Board in relation to the performance of the Agency’s functions’ (section 181E9G of the Bill). The PACYPC recommends that the Bill be changed to include a legislative requirement for the NDIA to seriously c onsider and respond formally to any such recommendations by the NDIS QASC.

Alignment of NDIS Practice Standards and Code of Conduct with existing practice standards

The PACYPC notes that health practitioners are already regulated through the Health Practitioner Regulation National Law and the Australian Health Practitioner Regulation Agency (AHPRA), and the National Code of Conduct for Health Care Workers for unregistered health care workers who provide a health service. The PACYPC recommends the draft NDIS Practice Standards and Code of Conduct align with existing codes and standards to ensure providers and workers can reasonably comply with all their obligations.

The PACYPC further recommends that additional provisions be drafted to clarify the NDIS QASC’s monitoring and reporting obligations and how it will share information with AHPRA and other regulatory authorities responsible for the regulation of practitioners. This should include clearly setting out how and when referrals of complaints will be made, and to whom, and provide for transparency for the individual or notifier with respect to referral and outcome.

NDIS Code of Conduct should clearly define unacceptable behaviour when working with clients

PACYPC welcomes the proposal for a NDIS Code of Conduct as an explicit statement of expectations and of behaviours that will not be permitted by people working with NDIS providers.

The Code of Conduct should include specific reference to ‘grooming’ behaviours, as these can be indicators of, or precursors to, abuse and exploitation of children, young people and vulnerable adults (for example, secretly giving gifts to children or young people, inappropriate online communication, inappropriate physical contact, displaying favouritism to certain clients, arranging to meet clients outside work hours, etc).

The Code of Conduct must be clear, detailed and specific, making it possible for high-risk offender-like behaviour to be challenged directly and immediately, and leaving no room for the exploitation of ambiguity.

Child safe standards

The PACYPC encourages the NDIS QASC to align the NDIS Practice Standards and NDIS Code of Conduct with existing standards to protect children and young people in organisations. The National Framework for Creating Safe Environments for Children$ and the National Guidelines for Building the Capacity of Child Safe Organisations% were developed by the Community and Disability Services Ministers’ Conference in 2005, and are described as ‘nationally agreed good practice’ in building the capacity of organisations to maintain child safe environments.

In broad terms, a ‘child safe and child friendly’ organisation is one that consciously and systematically:

creates conditions that reduce the likelihood of harm occurring to children and young people,
creates conditions that increase the likelihood of any harm being discovered, and
responds appropriately to any disclosures, allegations or suspicions of harm.

The strategies and actions recommended by the 2005 National Guidelines include:

Systems to ensure adaptation, innovation and continuous improvement
Governance and culture (child safe policies, risk management systems, codes of conduct)
Participation and empowerment of children and young people
Human resources management (pre-employment screening, rigorous recruitment processes, staff supervision, performance management, disciplinary processes)
Education and training.

Ensure consistency with the Royal Commission into Institutional Responses to Child Sexual Abuse

The Royal Commission into Institutional Responses to Child Sexual Abuse is expected to provide the Australian community with updated guidance on child safe standards later in 2017. The NDIS QASC will have an important role in adapting these standards to apply to the disability sector, to help protect people with disability who may experience vulnerability due to the nature of their condition.

The Royal Commission into Institutional responses to Child Sexual Abuse is also undertaking significant research and analysis of the broader systems and processes necessary to protect children and young people (and by extension vulnerable adults) who are receiving care in institutional settings (such as respite care and residential care). PACYPC encourages the NDIS QASC to align its operations with the upcoming report and recommendations of the Royal Commission.

Provide advice about best practice standards for ‘child safe and child friendly’ organisations

Under section 181E(c) of the Bill, one of the NDIS QASC’s core functions will be to ‘promote the provision of advice, information, education and training to NDIS providers and people with disability.’ The PACYPC encourages the NDIS QASC to provide information to NDIS providers about how to build their capacity to protect client safety; and provide information to consumers and carers about the characteristics to look for when selecting a service provider.

Conclusion and Recommendations

The NDIS QASC, and the NDIA, will both have an important role in promoting awareness among participants and carers of the features of child safe organisations, so they can act protectively, and choose providers that adopt best practice standards.

Some of the Children’s Commissioners, Guardians and Advocates across Australia publish free resources to guide organisations in the development of child safe and child friendly practices. These tools and resources will be of benefit to NDIS providers, children and young people with disability, and their parents and carers, in helping them identify what a ‘child safe and child friendly’ service provider looks like. The NDIS QASC will also have a role in creating new information material about client safety issues designed specifically for people with disability and their carers.

CONCLUSION AND RECOMMENDATIONS

Thank you for the opportunity to provide comment on the National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and other Measures) Bill 2017. This Bill and the safeguards it introduces are a welcome addition to the NDIS landscape. While generally supportive of the nature and intent of the Bill, the following recommendations are tendered to support the finalisation and implementation of the Bill:

Developmental and preventative elements of quality and safeguards should receive a high priority and focus by the NDIS QASC, and also be reflected in the legislation.
The developmental, preventative and corrective elements of the quality and safeguards approach set out in the legislation should be underpinned by a rights based framework that is grounded by Australia’s obligations under the relevant international covenants to which Australia is a signatory.
Quality assurance processes (in both design and implementation) should be consumer driven and risk based depending on the vulnerability of the consumer.
A detailed and sophisticated risk analysis should underpin the implementation of processes for registration of providers, quality auditing, the NDIS Practice Standards and complaints mechanisms.
The NDIS QASC should take a lead role in overseeing a national framework to prevent and respond to abuse, neglect and exploitation of people with disability.
Further analysis should be undertaken on how best to integrate and/or replace existing state and territory systems (such as Office/Community Visitor Schemes) to give effect to the necessary transformational change.
A person’s right to make complaints and seek redress should be expressly addressed in the legislation, including establishing powers for the NDIS QASC to address complaints about the NDIA and a legislative requirement for the NDIA to seriously consider and respond formally to recommendations by the NDIS QASC.