Communities
& Justice
Committee Secretary
Joint Standing Committee on the National Disability Insurance Scheme
Department of the Senate
PO Box 6100
Parliament House
CANBERRA ACT 2600
AUSTRALIA
29 July 2020
RE: Submission to the Inquiry into the NDIS Quality and Safeguards
Commission
This submission is the contribution of Community Safety Program (CSP; formerly Community Justice Program, CJP) to the Senate Inquiry into the NDIS Quality and Safeguards Commission. The CSP is an initiative of the NSW Department of Communities and Justice (DCJ) that provides services to individuals with cognitive impairment, mental health concerns, complex support needs and serious or persistent challenging behaviour. Upon referral, the CSP may provide complex case management,
specialised assessment and consultation services to other agencies and non-government
organisations.. CSP work with services supporting NDIS clients. Issues related to NDIS are brought to the attention of CSP, some of which relate to the objectives of Quality and Safeguards. CSP have interacted with the Quality and Safeguards through submission of complaints and seeking advice.
The submission presents a series of case studies to evidence three primary arguments1:
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More resources should be allocated to improving the communication and implementation of complaint and investigation outcomes;
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There is a need for more responsive monitoring of NDIS participants, particularly those who present with a high degree of vulnerability (e.g. who pose a high risk of harm or have complex needs).
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Increased communication is required between the Commission and state authorities to ensure that the approaches to Restrictive Practices are aligned, particularly regarding Lawful Orders that constitute Restrictive Practices.
These case studies were selected as the clearest examples from a cohort that is more likely to experience several overlapping issues across justice, mental health, health and NDIS services. Many cases were excluded for brevity and those included do not represent singular instances of these concerns.
Primary arguments and case studies
- More resources should be allocated to improving the communication and implementation of complaint and investigation outcomes
Following referral to the Commission, stakeholders from cases in which the CSP was involved have never received formal communication of the outcomes of complaints and investigations. Support coordinators and NDIS planners working with the CSP have reported similar experiences. This lack of
1 Whilst these are relevant to all Terms of Reference for the Inquiry, particular reference should be made to A, B, D and E. It is noted that all of these issues occurred in the context of the recent transition period (G) and should be considered in light of its management.
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communication has caused confusion about how to proceed with services and subsequent delays to participants receiving appropriate supports. In some cases, the Commission outcomes may require careful implementation to avoid a negative impact on the participant. This cannot be done effectively if stakeholders are not provided with adequate information as to what the outcomes are.
Case Study 1: Ms A is a 28-year-old Aboriginal woman with a mild intellectual disability and a background of complex trauma. Ms A has been diagnosed with longstanding substance use disorders and has a history of psychotic episodes believed to be related to these. Ms A was incarcerated for offences related to substance use, theft and physical aggression. Ms A received an NDIS plan prior to release from custody with funding for core supports, improved daily living and support coordination. Ms A disengaged from supports after one day in the community and absconded from her Community
Corrections placement. Limited core support funding and support coordination was utilised
attempting to engage with her in the location she moved to. However, this was unsuccessful and Ms A breached her conditions and was returned to custody some time later. Ms A’s NDIS planner advised that the service provider had inappropriately exhausted all NDIS plan funding and that Ms A was being referred to the Commission for investigation. Upon receiving her release date, Ms A requested her previous support coordinator. After six weeks, the NDIS planner advised that she did not expect to receive any follow up regarding the outcome of the Commission investigation, and the NDIS planner submitted a referral for a new support coordinator.
Because the NDIS planner did not expect to receive feedback from the Commission, it was assumed that the investigation would identify wrongdoing and a different service was engaged. As a result, the participant was not able to continue to receive support from the service provider of her choice. Due to the uncertainty around how stakeholders should proceed in relation to support coordination, the participant experienced a considerable delay before a support coordinator was engaged to establish NDIS supports upon release. This delay risked the participant being released from custody without appropriate supports.
Case Study 2: Mr E is a 26-year-old man with a mild intellectual disability, schizophrenia-paranoid type, conduct disorder, and poly-substance dependence. Mr E has a background of sexual violence, physical and verbal aggression, and self-harm. Upon completing his prison term, Mr E lived in supported accommodation with additional funding for support coordination and behavioural support in his NDIS Plan. Whilst living with the service provider, Mr E successfully applied for employment with them as a disability support worker. The CSP reported this to the Commission due to concerns relating to Mr E’s increased access to vulnerable people, including children, against which he had previously offended. Parties to the complaint (support coordinator and the CSP) received no formal
notification of outcome. Upon being advised of further issues by the participant’s support
coordinator, the CSP manager contacted the Commission and was informed that she was not party to the complaint as the previous manager had originally made contact. The support coordinator subsequently reported that the service advised they were directed to cease the participant’s employment. In addition, Mr E’s behaviour support plan was almost identical to that of another client with different behaviours and support needs. Both plans referred to the participants by several different names and appeared to be largely plagiarised. The CSP recommended to the participant’s support coordinator that the issue be referred to the Commission. Whilst contact was received from the Commission during the investigation, neither the CSP nor participant’s support coordinator received outcome or further communication.
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The CSP and support coordinator did not receive feedback on investigation outcomes despite being the agencies that made the complaints. The participant may be negatively impacted by the outcomes, having achieved employment and then having the service provider cease offering work without careful explanation, step down or behaviour management strategies. The CSP and support coordinator have lost confidence in the service provider’s recruitment process to ensure the safety and wellbeing of children and vulnerable people who are, or may be, unable to take care of themselves against harm or exploitation by reason of disability, trauma, age or illness.
- There is a need for more responsive monitoring of NDIS participants, particularly those who present with a high degree of vulnerability (e.g. who pose a high risk of harm or have complex needs).
People with a cognitive impairment are likely to have heightened vulnerability to situations in which they may be taken advantage of by services. The participants’ psychosocial deficits may challenge their ability to effectively and assertively communicate their needs and goals. This may place such individuals at a level of disadvantage when navigating services and systems compared to agencies and services who have this awareness and capacity. Many participants referred to the CSP are found to have adequate funding for supports but it is either not utilised properly or exhausted without the provision of the service. This indicates there are insufficient mechanisms in place to identify services that are not providing appropriate supports.
Positive behaviour support is a key area of concern, given the participants referred have frequently been incarcerated for behavioural issues relating to their impairments. If funding is not utilised, it is currently assumed that it is not required and removed from future NDIS Plans. It is unlikely that a
participant will cease to require positive behaviour support without services being able to
demonstrate they have implemented step down strategies and provide evidence of a substantial reduction in behaviours of concern. It is more likely that the lack of funding being utilised is an indicator of substandard services being delivered to the participant or a crisis period (such as return to custody) and should be flagged for review.
Case Study 3: Mr D is a 47-year-old man with a mild intellectual disability, substance use disorder (alcohol and cannabis) and a personality disorder. Mr D is currently under conditions from the Mental Health Review Tribunal due to being found unfit to be tried for sexual assault. Upon release, Mr D was receiving drop in support, behavioural support and support coordination funded by his NDIS Plan. Despite claiming all available funding, Mr D’s behaviour support practitioner did not complete a
behaviour support plan or have any clinical involvement with support staff. Mr D’s support
coordinator had only met him once, two years earlier and did not engage with attempts to apprise him of Mr D’s support requirements. At his recent plan review Mr D’s support coordinator informed the NDIA that Mr D did not require supports and all services had ceased. Mr D informed the case manager overseeing his Mental Health Review Tribunal conditions that he no longer received supports. As Mr D’s conditional release was contingent upon him receiving supports in the community, the case manager raised the lack of supports with the support coordinator and the NDIS planner. The support coordinator advised that Mr D had elected to withdraw from the NDIS and did not require support. The NDIS planner followed up with Mr D and found that he was not aware of what the NDIS was or how he received his supports. After several months without supports, a new support coordinator was allocated.
The participant’s NDIS funding was utilised but he did not receive the supports. There is no evidence to suggest that behaviour support was actually provided to the participant. If the participant had not
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mentioned to his case manager that the services had withdrawn, he would not have received the supports he needed to progress under his Mental Health Review Tribunal conditions and would have been at increased risk of non-compliance and consequent incarceration.
Case study 4 concerns people managed by the Mental Health Review Tribunal and living in supported placements.
Case Study 4:
Mr F is a 66-year-old man with a mild intellectual disability and a history of alcohol abuse, microcephaly, epilepsy, traumatic brain injury, dysarthria and antisocial personality disorder. He is currently under Mental Health Review Tribunal conditions relating to his offending history of manslaughter, assault and property damage. Mr G is a 63-year-old man with a mild intellectual disability. He is currently under Mental Health Review Tribunal conditions relating to his history of sexual offending against children.
Both participants have lived in a supported placement for an extended period since release. They have had a high level of support and the CSP has provided case management of their Mental Health Review Tribunal conditions. The CSP requested that Mr G’s behaviour support practitioner be involved in reviewing protocols for staff supporting him in the community and were advised that there was no funding for behaviour support. The CSP requested Mr F’s behaviour support plan from the service provider as part of preparation for the end of his Mental Health Review Tribunal Order. The plan provided had not been updated since 2017, despite the service having drawn down on the participant’s Improved Relationships funding each year.
The service provider exhausted Mr F’s Improved Relationships funding but Mr F did not receive supports. It is unclear if the service did not provide a behaviour support plan to the Commission or if the Commission is not adequately reviewing them. Mr G had Improved Relationships funding but the supported accommodation provider and support coordinator were unaware that it was available but not being used. In both cases, participants with clear behavioural needs were not provided with appropriate positive behaviour supports. Both were fortunate to have oversight external to their NDIS supports that understood their disability support requirements. Without these, the participants would not have the opportunity to progress with supports specifically trained to help them manage their behaviours of concern.
3. Increased communication is required between the Commission and state authorities to
ensure that the approaches to Restrictive Practices are aligned, particularly regarding Lawful Orders that constitute Restrictive Practices
Section 4.6 of the NSW RPA Policy (v2) and section 6 of the NSW RPA Procedural Guide (v2) provide guidance regarding Lawful Orders with conditions that constitute restrictive practices, including the provision of the order and a behavioural support plan that sets out the details and limits of the restrictions permitted. Communications from the NSW Central Restrictive Practices Team and the Commission regarding Lawful Orders that constitute Restrictive Practices have provided conflicting advice. Without sufficient guidance in this area, stakeholders lack understanding of what constitutes a Lawful Order containing restrictive practices and how to adhere to requirements when a participant is not considered by the NDIA to require funding for positive behaviour support.
Case Study 5: Mr B is a 35-year-old man with a cognitive impairment relating to a traumatic brain injury that occurred when he was 17. Mr B has a diagnosis of substance use disorder and is currently
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under conditions from the Mental Health Review Tribunal relating to four counts of aggravated sexual assault. Mr B’s conditions include the requirement for him to access the community only with support staff or family members. Mr B’s core support provider was not registered to implement restrictive practices and queried whether this requirement constituted an environmental restraint. Clarification was sought with the Commission, including the need for the provider to be registered and whether they would be considered to be implementing the practice. The Commission responded that it does constitute an environmental restraint and that the provider would require registration. The NSW Central Restrictive Practices Team provided conflicting advice that the core support provider is not responsible for, or implementing, the environmental restraint and therefore does not require registration.
Inadequate policy and procedural guide detail is available to inform provider’s approach to Lawful Orders that constitute restrictive practice. The Commission and the relevant NSW authorities provided conflicting advice, reflecting a lack of synchronisation of their approaches to Lawful Orders. It is unclear how drop-in service providers could be held responsible for implementing legal conditions that require the participant to remain home unless with support workers or family.
Case Study 6: Mr C is 59-year-old man with a mild intellectual disability and a history of sexual
offences that have resulted in his supervision under an Extended Supervision Order. Mr C’s
supervision included the requirement for 1:1 support when accessing the community to assist Mr C in
regulating his behaviour and managing his high impulsivity. Mr C did not have Improved
Relationships funding in his NDIS Plan and this decision was upheld by the NDIA upon review. Clarification was sought with the Commission regarding the requirement to submit a behaviour
support plan and Mr C’s conditions as Legal Orders that constitute restrictive practices
(environmental restraint). The Commission responded that the issue was being examined currently but that a behaviour support plan was required for submission with the Legal Order and funding issues should be escalated through the NDIA.
Participants who have Legal Orders that constitute restrictive practices, but do not receive NDIS funding for behaviour support are not able to comply with the requirement to submit a behaviour support plan and do not receive positive behaviour support to ensure that restrictions are implemented appropriately within their support model.
Recommendations
More resources should be allocated to improving communication and implementation of complaint and investigation outcomes;
Provide updates to the referring agent at regular intervals throughout the investigation Develop a pro-active and robust tracking system to ensure regular updates are completed and relevant agency contacts are retained. The above system should allow for changes to the individual’s party to the referral. For example, for a participant whose previous support coordinator referred an issue to the Commission, the new support coordinator should be able to follow upon on investigation outcomes. Consult the referrer on the outcome of investigation and proposed course of actions.
There is a need for more responsive monitoring of NDIS participants, particularly those who present with a high degree of vulnerability (e.g., who pose a high risk of harm or have complex needs).
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Develop system for flagging clients with high risk (either risk of harm to self/others or forensic risk), complex needs and lacking informal supports for additional oversight. In NSW, this could include flagging clients who return to custody or hospital, or receive an Extended Supervision Order or Mental Health Review Tribunal conditions. Increase oversight of supports delivered to people with disability and behaviours of concern that have brought them into contact with the justice system. These may include, but is not limited to, the following: o Review cases in which providers have used Improved Relationships or Improved Daily Living without the provision of the relevant reports and assessments.
o Review cases in which participants receive an NDIS plan omitting Improved
Relationships funding when they previously received positive behaviour supports and have not demonstrated step down strategies and reduced behaviours of concern. o Review cases in which the behaviour support plan omits reference to the behaviour assessment completed or reviewed on an annual basis
Increased communication is required between the Commission and state authorities to ensure that the approaches to Restrictive Practices are aligned, particularly regarding Lawful Orders that
constitute Restrictive Practices
Increased communication between the Commission and NSW Central Restrictive Practices to ensure that inter-agency approach to Lawful Orders are aligned. Improved guidance for service providers on Lawful Orders that constitute Restrictive Practices, particularly relating to: o What constitutes a restrictive practice; o What services need to provide; o How Lawful Orders are implemented; and o How this is funded. Collaboration between the NDIA, the Commission and NSW Central Restrictive Practices Team to ensure that service providers are adequately funded to meet their requirements for Lawful Orders that constitute Restrictive Practices.
Please contact for clarification of the above points or if further information is required from the CSP.
Endorsement
On file 29 July 2020 On file 30 July 2020
Christian Jones
Senior Clinical Consultant
Katerina Nesporek
Community Safety Program
Team Leader
Department of Communities and Justice
Community Safety Program
Department of Communities and Justice
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On file 30 July 2020
On file 30 July 2020 Mirele Cristo
ManagerJames Wu
Community Safety ProgramTeam Leader
Department of Communities and JusticeCommunity Safety Program
Department of Communities and Justice
Dr Phillip Snoyman
Director State-wide Services
Offender Services and Management
Department of Communities and Justice
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