Submission to the Inquiry into the NDIS Quality and Safeguarding Commission | External submission

Submission to the Inquiry into the NDIS Quality and

Safeguarding

Commission

JULY 2020

Submitted by

Leighton Jay

Jessica Quilty

Ann Drieberg

KEY RECOMMENDATIONS 4

ABOUT US 5

INTRODUCTION 5

WHAT’S MISSING? 5

1.   A clear articulation of, and focus on the components of the QSF                               5

2.    Building and sustaining friendships                                                      7

3.   Codesign approaches                                                                 8

TERMS OF REFERENCE 8

a.   Monitoring, investigation and enforcement powers and exercising those powers               8

b. The effectiveness of responses to concerns, complaints and reportable incidents, including allegations of abuse and neglect of NDIS participants 9

c.   Adequacy and effectiveness of NDIS Code of Conduct and Practice Standards                 10

d. Adequacy and effectiveness of provider registration and worker screening, including transparency of and public access to information regarding decisions and actions taken by the Commission 11

e. Effectiveness of communication and engagement between the Commission and State and Territory authorities 12

f. Human and financial resources available to the Commission, and whether these resources are adequate for the Commission to properly execute its functions 13

h.  Any related matters                                                               13

CONCLUSION 13

Key recommendations

The NDIS Quality and Safeguarding Commission directly publish the Quality and Safeguarding Framework document in an easily accessed and prominent place on their website. It should not take viewers to an external link on the DSS website.
Figure 1 in the Quality and Safeguarding Framework document be separately published in a prominent place on the Commission’s website.
The Commission reviews its key messages of compliance over human rights. This may involve seeking external advice and input into what keeps people safe and improves quality of life.
As a matter of urgency, the Commission develops and communicates a plan that explains how they will better invest in the developmental components of the Quality and Safeguarding Framework.
As a matter of urgency, the Commission begins work that directly addresses the current underinvestment in building and sustaining friendships as a key element of the Quality and Safeguarding Framework. This requires investment, education resources and information to be developed and made available for participants, family members, frontline workers and service provider leaders. These resources should be codesigned as per the next recommendation.
The Commission adopts a codesign approach when developing approaches, tools, resources etc as a default position. This codesign approach will include people with disability, family members and people from around Australia who have relevant knowledge, skills and expertise.
The Commission engages external expertise to break down its complex policy and compliance directives so providers are able to effectively implement what is required.
The National Worker Screening Check be implemented nationally as a matter of urgency.
The Commission works with states and territories to develop clear messages and reduce the confusion of conflicting state/territory and Commonwealth policies.
Federal, State and Territory governments collaborate to remove and eliminate the growing trend towards states and territories each developing their own registration, quality and/or safeguarding requirements. The Commission was supposed to introduce a single, nationally consistent approach. This is at serious risk due to this growing trend of autonomous actions and decisions by individual states and territories.
The Commission develops resources and programs to build the capability of providers to implement quality and safeguarding approaches that are effective and meaningful ‘on the ground’.
The Commission undertakes a complete review of the administrative burden placed on providers and develops more efficient and effective approaches.
The Commission takes a more coordinated approach with the NDIA. The two bodies should work hand in hand and reduce instances of conflicting and mixed messaging.

About us We are all family members and/or people who work as NDIS consultants and trainers, predominantly with service providers across the country. Collectively, we have trained hundreds of people engaged in NDIS work, with much of that training focused on assisting people to understand, implement and build their capacity in relation to NDIS quality and

safeguarding (Q&S)  expectations and  requirements.  Jess and Ann  are  quality and

safeguarding subject matter experts who know quality and safeguarding inside out. This includes the NDIS Commission and its work, the quality and safeguarding framework, provider registration requirements, workforce implications and issues and auditing requirements. We are skilled communicators who are motivated by wanting to see people with disability have better lives and providers adapt and succeed.

Introduction

We would like to thank the Committee for the opportunity to comment on the operation of the NDIS Quality and Safeguards Commission to date. We are genuinely enthusiastic about the intent and potential of both the NDIS and the Quality and Safeguarding Framework (QSF) to catalyse much needed change in the disability sector (and possibly beyond). And we want to

praise the Commission for instances where  it’s work has been  first class. The Worker

Orientation training module comes to mind as an example.

We are, however, concerned that things that are key elements of the Commission’s work seem to have gone missing. We fear that the Commission may unwittingly be on a path to building a confusing, complex system that won’t produce the capacity building approaches that were

envisaged.  Instead,   it seems headed towards producing a system  that  will produce

compliance-focused  behaviours  rather  than  genuinely  effective ways  to  ensure  that

participants are safe and receive high quality services. In the context of an ongoing Royal Commission into the Abuse and Neglect of People with Disabilities, such an outcome would be more than tragic.

We have structured our submission by beginning with what we see as three omissions. These are the main issues of concern for us and can best be categorised under the Committee’s ‘Any other matters’ Term of Reference. In our view, these omissions are all highly significant and have a causative relationship with most of the other issues we discuss.

What’s missing? Three core elements of the originally proposed QSF are largely out of sight and out of mind in the Commission’s work to date. This is deeply concerning for many reasons and has implications across the entire sector.

A clear articulation of, and focus on the components of the QSF Prior to the Commission’s existence, significant codesign work was done to develop and

articulate the QSF and its key components. Like the NDIS, the Framework is quite

revolutionary compared to the Q&S systems that existed across Australia prior to the NDIS. It requires a culture shift away from a compliance approach to Q&S to a capacity building and strengths-based approach. As if to illustrate how out-of-sight the QSF seems to be, the Commission’s website doesn’t seem to have a clear and simple articulation of it despite referencing it numerous times. This literal invisibility seems to be having a significant negative impact on the Commission’s work and across the sector. Figure 1 (taken directly from the QSF document available on the DSS website) is a simple, relatively clear explanation of the QSF that should be front and centre on the Commission’s website and in its work.

Figure 1. Components of the NDIS Quality and Safeguarding Framework

Underpinning foundations UN Convention on the Rights of Persons with Disabilities; National Disability Strategy 2010-2020;

National Disability Insurance Scheme Act 2013

Components

Developmental: Building            Preventative: Preventing harm       Corrective: Responding  if things

capability and support systems     and promoting quality            go wrong

Individuals: supporting and empowering people with disability

Providing partlclpanu           Safeguarding participants        Responding to complaints

information for decision-        through planning,               NDIS complaints commissioner

making                        implementation and review         receiving and responding to

Providing accessible information    processes                          complaints about NDIS-funded

on how the NDIS works,            Having formal safeguards in the     supports, as well as ensuring that all

participant rights, providers and    NDIS planning, implementation      registered providers have an

compla ints processes              and review processes                  internal complaints system

Building particlpanu' capability    Funding advocacy services       Responding to serious incidents

Supporting participants to build      Funding formal individual and       Providers reporting on and

knowledge, skills and confidence to   systemic advocacy services         commissioner investigating

exercise choice and control           outside of the N DIS               dangerous situations

Strengthening natural supports   Supporting self-managing        Community visitors

Supporting participants to            participants                       Continuing existing state and

strengthen fam ily and other          Ensuring self-managing participants   territory schemes during the

support networks and participate    are equipped to manage their         transition and conducting a

fully in their community             supports                            review to evaluate their role in

full scheme

Links to information, linkages and    Links to supported and substitute     Links to universal protections

capacity building                   decision-making (guardianship       outside the NDIS (e.g. police, other

systems) and National Disability regulatory and complaints

Advocacy Framework systems)

Workforce: promoting a safe and competent workforce

Building a skilled and safe        Screening workers               Monitoring worker conduct

workforce                         Screening workers to help ensure   Monitoring through employee

Supporting the development of     they keep people with disability     screening functions, serious

an NDIS workforce with the          safe                                  incident reports, complaints and

attitudes and skills that meet the breaches of the code of conduct needs of participants Ensuring workers have the skills for specific roles through provider quality assurance system and registration

Links to Integrated Market, Sector Links to National Framework for

and Warkforce Strategy Protecting Australia’s Children

Providers: encouraging safe, innovative, high-quality support provision

Building provider capacity and    Reducing restrictive practices     Investigating non-compliance

belt practice                       Ensuring restrictive practices are    with the code of conduct

Supporting the development of a   reduced or eliminated by            Investigating potential breaches

diverse and sustainable provider    introducing consistent quality       of the code of conduct and taking

market able to meet demand and   requirements for behaviour         appropriate action

provide safe and high-quality support practitioners and relevant services providers, and reporting. The senior practitioner will conduct an educative role in the reduction of restrictive practices

As Figure 1 shows, the QSF has nine domains created by three components intersecting with three levels to the Framework: Developmental, Preventative and Corrective components

applied  across  individual,  workforce and  provider  levels. As  will become  clear,  the

Commission’s work to date has been uneven across these domains, with a fundamental underinvestment in developmental components particularly concerning.

Much of the preliminary development work for the QSF, including the rationale for adopting this approach, was spelled out by Walker, Fulton and Bonyhady in 2013. Like the QSF, this is an important and foundational paper that is not available on either the Commission or the NDIS

websites. An important feature of this paper  is that  it asks two obvious questions that

professional services (and the Commission as it turns out) seem to largely overlook: What contributes to keeping us all safe? and what typical things add quality to all of our lives? A key part of the answer to both questions is “friends and people who know us well, spend time with us and look out for us”. Figure 1 represents this as Strengthening Natural Supports in the Individual Developmental domain. While the phrase ‘strengthening natural supports’ isn’t as clear as it could be (overtly identifying the importance of friends would better reflect ‘ordinary life’ language), the intent to represent the importance of friends and relationships is at least present in the QSF. However, it seems to be absent from the Commission’s work to date.

Building and sustaining friendships It is an established fact that many people with disability experience high levels of social isolation, often because their disability impacts on their ability to develop and exercise social and friendship building skills. Anyone who doesn’t have freely given, unpaid friends in their lives is going to find themselves vulnerable more frequently and lives with increased risk of abuse and/or neglect. This absence also reduces opportunities to experience the richness and benefits that networks of friends bring to our lives.

For the most part, the pre-NDIS service systems operated in ways that largely ignored this issue. Many people with disability have been congregated with others who share similar disability labels to them and are largely segregated from opportunities to build and sustain friendships with non-disabled people, many of whom will be able to add ‘social capital’ to their lives. The developmental component of the QSF represents the Commission’s crucial role and responsibility to facilitate all of us to invest in changing this aspect of the system. People with

disability need investment and support  to build  their capacity  to develop and sustain

friendships. Frontline workers need investment and training to build their skills – how do you support someone with complex communication access needs, challenging behaviours, or psychosocial disability to meet people and make friends with them? Service providers need investment to change their service models so that their services facilitate rather than impede friendship building, and that they routinely expect this to be a crucial element of support workers’ roles. This will change elements of their recruitment, training and performance monitoring systems.

If the Commission does not see that leading this change is a critical part of their role and function, then we must ask who’s role is it? We concede that it seems to be an unusual role for a regulatory body, but we can’t escape the conclusion that both common sense and the QSF demonstrate that it must be front and centre in their work. To date, there seems to be little evidence that they share this understanding or are prepared to lead the sector in this. Without, there is a very real risk that the experience of Ann Marie Smith will be repeated at the same time as providers become increasingly embedded in compliance focused behaviours that completely fail to address this massive issue.

Codesign approaches The third promised feature of the Commission’s work that seems to be absent or underused is the promise to use a codesign approach to develop the practice details of the QSF. The Worker Orientation training module and the current work to develop a Workforce Capability Framework stand out as shining exceptions to this absence. Underutilising this approach is resulting in the

development of features and approaches that are inefficient, confusing, complex and

sometimes self-contradictory. Making more use of codesign approaches to work with people who have relevant, leading edge expertise and lived experience would be beneficial.

The net effect of these absence is that the individualised, capacity-building, strengths-based approach to quality and safeguarding that was originally proposed and is so empowering and revolutionary has largely been ignored to date. We seem to be on a path towards recreating elements of past systems that have proved themselves to be ineffective. These systems create gaps, are inefficient, unnecessarily complicated and don’t always keep vulnerable people safe.

Terms of Reference

a. Monitoring, investigation and enforcement powers and exercising those powers The NDIS Commission has come into existence at a moment in history that is problematic for the effective operation of regulatory bodies across a broad range of sectors in many countries. A generation of economic and political reforms shaped by Milton Friedman’s neoliberal economics has created a landscape of powerful, influential, individuals, organisations and corporations. These exist alongside governments (of many political persuasions) that are committed to ‘small government’, fiscal austerity and limited public services. This has a significant impact on regulatory practices in Australia. A cursory look across a range of government regulators (e.g. ACMA, ASIC, ATO, ACCC, AACQA, APRA etc) reveals that few, if any, have the resources they really need to effectively monitor, investigate and enforce compliance compared to the resources and influence available to large organisations in their sectors. It is common to see such bodies “working with” organisations that breach regulatory codes to try and bring them into line. Prosecution of large organisations and their leaders for

serious breaches  is extremely rare. The  reality  is that any intervention that suspends,

deregisters or seriously disrupts the operations of a large service provider in any sector will create significant practical and political problems, and no government wants to bring such pain on themselves.

This observation is relevant to this Inquiry because the same dynamic exists in the disability sector. Expecting that the NDIS Commission will be resourced sufficiently to fully discharge its monitoring, investigation and enforcement responsibilities is unrealistic in this broader context. No Federal Government is likely to countenance a very large disability service provider having its license to operate suspended. Imagine the practical and political fallout if large providers were deregistered for systematically failing to meet Quality and Safeguarding requirements. It isn’t going to happen without extremely compelling evidence, even if they systematically fail in their basic duty of care.

For those of us who live and work in the NDIS context, and who have family members who are NDIS participants, this is a vastly unsatisfactory situation. The spectre of Ann Marie Smith haunts every parents’ nightmares. As devastating as business malpractice can be, it pales in comparison to the avoidable trauma that can be and is experienced by many people with disability. The Royal Commission into the Abuse and Neglect of People with Disability is evidence that this is a very real problem and mostly affects a cohort of people who are among the most silent and systematically marginalised in our society: people with intellectual disability and other cognitive impairments. Many people in this group do not have access to adequate communication support to express what they feel or to talk about things they may have experienced. The pre-NDIS State-based systems have failed many such people. And at this stage, we cannot be confident that the NDIS Commission is designing, implementing and overseeing a system that will achieve better outcomes. It is difficult to see how this can be changed without a wholesale change to how we think about and approach public services, public policy, economics and government resourcing of regulatory bodies across the board.

At a more operational level, the Commission’s powers can only be activated when a name (organisation, person) appears on Part 2 of the Register: Compliance and Enforcement. Little is understood about how the Commission regulates the auditors who are the first line of defence in compliance. There appears to be limited links between an auditor’s report to the Commission and the Commission subsequently engaging in a developmental approach with the provider. The auditors cannot (and should not) consult with organisations, so the Commission is uninformed and uninvolved until there is a report, or a serious breach requiring investigation. The Commission then becomes only a compliance tool working in the corrective components of the QSF, rather than proactively working with the sector on the developmental and operational components.

b. The effectiveness of responses to concerns, complaints and reportable incidents, including allegations of abuse and neglect of NDIS participants There are several issues we can identify here. Firstly, this Term of Reference itself focuses on the corrective components of the QSF. As described above, this is problematic for many reasons, and it is instructive that the very invisibility of the QSF that we have described leads to such wording. This argument would not stand if there were comparable Terms of Reference enquiring about the developmental and preventative components.

This reflects our opinion that the Commission has focused too heavily on traditional compliance obligations at the expense of promoting and educating providers, participants and the sector about the merits and foundations underpinning the structure and components of the QSF. As Walker, Fulton and Bonyhady made clear, an individualised, strengths-based and capacity building approach is possible, preferable, more typical of others’ lives and will be more effective than a compliance-driven approach. It is also likely to be more cost effective and will result in more participants living more fulfilling and satisfying lives.

Which leads to our second point: the cause and extent of concerns, complaints and problems is unclear because the Commission’s data mechanisms appear to be quite basic (see reportable incidents in this newsletter). How can the Commission fix problems at a systemic level if they don’t understand what is happening or why?

For example, we recently worked with an organisation that was in trouble for implementing unauthorised restrictive practices (RP). Once they realised their error, they organised a behaviour support plan (BSP) to be developed. Because, they had not been audited against the supplementary module (2A) which allows them to report electronically on the use of restrictive practice they have been forced to do this manually. They were required by the Commission to have an additional audit and to get external training in order to comply with their obligations. External consultants provided them with the training. It is perplexing that the Commission doesn’t offer this function when they say that the Commission “brings together various quality and safeguards functions under a single agency for the first time, with a suite of education and regulatory powers that will apply across Australia”. The paperwork received from the Commission caused the provider great confusion and anxiety and it became a compliance exercise rather than a capacity building one. In our view, the organisation certainly needed better risk management and governance arrangements in place, however perhaps this would be something the Commission could have alerted them to if it was more connected to its capacity building function.

Thirdly, the Commission’s effectiveness on this issue is reliant on providers actually reporting as required. Given how convoluted the guidance material and definitions are, this cannot be assumed. For example, the language around what is a reportable incident is unnecessarily complicated. A no wrong door policy would be far safer and more effective in our opinion.

c. Adequacy and effectiveness of NDIS Code of Conduct and Practice Standards We rate both the code of conduct and practice standards as being very good. The issue we see (consistent with points made above) is that more capacity building investment needs to happen to assist providers and workers to understand and embed the standards. It is currently on a path to being just a compliance exercise.

Let us illustrate this. Since 1 July 2018, several new businesses have opened aiming to help organisations meet their Q&S Commission obligations. Some even provide self-assessment answers that will get providers through audit. So providers that use these services are

effectively outsourcing  their  quality compliance, which  is counterproductive and  highly

problematic because, at its heart, quality is inextricably linked to organisational culture. This is undoubtedly seeding long-term systemic problems, yet no-one to date is identifying this as a significant concern. To us, understanding the standards – as well as complying with them – is critically important to building a culture that takes quality and safeguarding seriously. But when these new ‘services’ are focused solely on helping providers meet their compliance obligations and no-one is sounding an alarm, poor and mixed messages are being sent to the sector as a whole. If the Commission’s view is that understanding the standards isn’t intrinsically important, that would be hugely concerning.

There is guidance on implementing the code of conduct from the Commission but none on the practice standards which is why the workshops we and other private training businesses offer, continue to be popular. Audits are also becoming more expensive with so many standards to meet, yet providers are no longer getting state funding (or any other funding) to help them with those costs. Once again, a greater focus on the developmental component would have significant value in enabling providers to shift from a compliance-oriented quality system to one that focuses on better outcomes for participants and supporting them to do high quality work.

For most organisations, this requires a significant shift in culture, approach and service models.

Evidence of  this  is that many providers  still  fail to provide information  in formats that

participants can understand. Look no further than their Service Agreements: the vast majority of providers don’t even go close to meeting the Commission’s published practice standards (p14), leaving us to wonder about the point of having them. The Commission could use its powers to demystify, educate and build the capacity of providers to meet these and other practice standards. Such an approach would go a long way to enabling them to shift their quality management systems to align more closely with the Q&S practice standards and code of conduct. Something similar to the workers orientation module for practice standards would accomplish this outcome.

d. Adequacy and effectiveness of provider registration and worker screening, including transparency of and public access to information regarding decisions and actions taken by the Commission There is currently a big gap in worker screening because unregistered workers still cannot be screened (apart from standard police checks). With delays to the rollout of national screening, this means there is no real transparency and inconsistencies continue to exist across the country.

A recent example when one of us was contacted by a Queensland (QLD) father of a young man with disability illustrates some of the issues. This family began employing independent support workers because they were looking for specific skills to support their son. They wanted the workers to get yellow cards (the transitional arrangement in QLD), but the workers are unable to do so because this is only available to registered providers at this time. The father complained to both the NDIS Commission and QLD Department of Communities, arguing that the option to have workers screened should be available to all employers. Both bodies reported that there was nothing they could do and directed the man to the other organisation. Neither informed him about the national check that is coming that they should be able to access in future.

We share this man’s dismay and confusion, noting that such inconsistencies and confusion are likely to be widespread among people who self-manage their funding and directly employ workers. This father stated that he couldn’t understand why every other industry that works

with children  in any capacity requires blue cards, noting that  in a Royal Commission

environment this is a really basic test. He also stated that in his community, there is an assumption from families, planners and support coordinators that all workers are screened, so it is a surprise to learn that this isn’t the case. He noted that the broad impact of COVID-19 on employment may lead to a rise in unsuitable people seeking work in the sector, thus increasing risks to people with disability.

In regard to the transparency of public information, there are a couple points to iterate. Firstly, because providers are not required to register, the Commission has very little visibility over their services and performance until something goes wrong. Secondly, the national worker screening is not available yet and has been delayed several times. Therefore, we cannot comment on the transparency of the information other than to say that state transitional worker screening arrangements are not available to self-managers. Thirdly, the provider register on the Commission’s website outlines some decisions, but without transparent information about the threshold to make it onto that register, the investigative process undertaken and the timeframes, we can only presume that the threshold is quite high.

e. Effectiveness of communication and engagement between the Commission and State and Territory authorities One example of this is restrictive practices. For example, in QLD providers are regulated for restrictive practices (RP) for adults with a cognitive disability. The QLD definitions are slightly different and don’t apply to locking gates and doors in response to a skills deficit. WA and NSW refer to a concept of ‘non-intentional risk’ as not requiring RP authorisation. None of these are exceptions from the Commission though. The States and Territories create confusion when they say they don’t regulate but you need to check the Commission on your responsibilities there. A more coordinated approach would be for the state or territory government and the NDIS Commission to determine a provider’s requirements in each jurisdiction so they can give clear, coordinated advice. Alternatively, we could make it consistent across the country.

Further, there is also almost no guidance from the NDIS Commission about restrictive practices despite there being a senior practitioner that oversights. Some states and territories have developed their own fact sheets (NSW probably has the most extensive) but you don’t know if you can rely on them or not because they haven’t come directly from the Commission.

f. Human and financial resources available to the Commission, and whether these resources are adequate for the Commission to properly execute its functions Please see our comments above in Section a. Our only additional comment would be to question if the Commission has the right mix of skills and expertise required to create and lead the capacity building approach that is needed (see the section on What’s Missing?)

h. Any related matters The final matter we want to put before the Committee concerns the relationship between the NDIA and the NDIS Commission. While it makes sense to have separate bodies to oversee two very different functions, there undoubtedly needs to be a strong relationship and consistent messaging between the two. Almost predictably however, there are numerous examples of mixed and contradictory messages coming directly or indirectly from the two organisations. Sometimes, these messages come from the Commission itself. We do not intend to identify these, just to highlight the issue as one that needs to be monitored and actively addressed.

Conclusion

As we have argued throughout, the Commission’s work to date seems to be on a path that will miss this historic opportunity to completely reorient the disability support system. They have the opportunity now, to change course and get providers, workers and many other people on board with an approach to quality and safeguarding that is clearly embedded in human rights, is effective in looking after people, and intentionally promotes the main elements that make all people safer and bring quality to their lives.