Attachment Coversheet Page
A. NDIS Quality and Safeguarding Framework (December 2016) 1 B. Compliance and Enforcement Policy (June 2019) 105 C. Positive Behaviour Support Capability Framework (June 2019) 118 D. High-level information sharing principles with states and territories 159 E. Overview of the registration process with guidance for NDIS providers 160 F. Comparison between the regulatory arrangements of the NDIS Commission and AHPRA 168 G. NDIS Commission Activity Report: 1 July to 31 December 2019 170 H. Compliance notices issued to providers in NSW and South Australia (July 2020) 175 I. Correspondence from NDIS Commissioner to providers in Queensland, Victoria, NT, ACT, Tasmania advising of upcoming compliance activity 204
J. Draft principles for nationally consistent regulation of the use of restrictive practices 206
Attachment A
NDIS QUALITY AND
SAFEGUARDING
FRAMEWORK
9 DECEMBER 2016
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Contents
Contents ………………………………………………………………………………………………………………….. 2
Foreword …………………………………………………………………………………………………………………. 4
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Overview and context ………………………………………………………………………………………. 5 1.1 The National Disability Insurance Scheme ………………………………………………………………….. 5 1.2 The need for an NDIS Quality and Safeguarding Framework ………………………………….. 6 1.3 Framework development ……………………………………………………………………………………………….. 8 1.3.1 Consultation …………………………………………………………………………………………………………… 8 1.3.2 Impact analysis ………………………………………………………………………………………………………. 9 1.3.3 Public inquiries ………………………………………………………………………………………………………. 9 1.3.4 Related policy work …………………………………………………………………………………………….. 10 1.4 Framework objectives……………………………………………………………………………………………………. 11 1.5 Framework principles ……………………………………………………………………………………………………. 11 1.6 Framework components……………………………………………………………………………………………….. 13 1.6.1 Elements of quality and safeguarding outside of the Framework ……………… 16 1.6.2 Regulatory functions …………………………………………………………………………………………… 16 1.7 Implementing and refining the Framework ………………………………………………………………. 17
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Individuals ……………………………………………………………………………………………………… 19 2.1 Developmental ……………………………………………………………………………………………………………….. 19 2.1.1 Providing participants information for decision-making ……………………………… 19 2.1.2 Building participants’ capability ……………………………………………………………………….. 23 2.1.3 Strengthening natural supports ……………………………………………………………………….. 26 2.2 Preventative ……………………………………………………………………………………………………………………. 29 2.2.1 Safeguarding participants through planning, implementation and review processes ………………………………………………………………………………………………………………. 29 2.2.2 Funding advocacy services ………………………………………………………………………………… 33 2.2.3 Supporting self-managing participants …………………………………………………………… 36 2.3 Corrective ………………………………………………………………………………………………………………………… 40 2.3.1 Responding to complaints…………………………………………………………………………………. 40 2.3.2 Responding to serious incidents ………………………………………………………………………. 49 2.3.3 Community visitors ……………………………………………………………………………………………… 53
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Workforce ……………………………………………………………………………………………………… 55 3.1 Developmental ……………………………………………………………………………………………………………….. 55 3.1.1 Building a skilled and safe workforce ………………………………………………………………. 55 3.2 Preventative ……………………………………………………………………………………………………………………. 59 3.2.1 Screening workers……………………………………………………………………………………………….. 59 3.3 Corrective ………………………………………………………………………………………………………………………… 62
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3.3.1 Monitoring worker conduct ………………………………………………………………………………. 62
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Providers ……………………………………………………………………………………………………….. 64 4.1 Developmental ……………………………………………………………………………………………………………….. 64 4.1.1 Building provider capacity and best practice …………………………………………………. 64 4.2 Preventative ……………………………………………………………………………………………………………………. 66 4.2.1 Reducing restrictive practices ……………………………………………………………………………. 66 4.2.2 Ensuring provider safety and quality ……………………………………………………………….. 80 4.3 Corrective ………………………………………………………………………………………………………………………… 93 4.3.1 Investigating non-compliance with the code of conduct …………………………….. 93
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Glossary of key terms …………………………………………………………………………………….. 98 3 attachment page 3
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Foreword
The Disability Reform Council (DRC) is pleased to release the National Disability Insurance Scheme (NDIS) Quality and Safeguarding Framework. The Framework is designed to ensure high quality supports and safe environments for all NDIS participants. It seeks to help participants and providers access information and resolve issues quickly, and strengthen the capability of participants, the workforce and providers to participate in the NDIS market.
The NDIS represents a significant reform to the way supports and services are delivered to people with disability. A nationally consistent approach to quality and safeguarding is essential to support the realisation of the NDIS vision and to support participants to make informed choices, while also ensuring there are appropriate safeguards in place to facilitate high quality support provision in a new market environment.
Many people contributed to the development of the Framework, including people with disability, their family members and carers, service providers, advocacy groups and representatives of professional organisations. They have made a valuable contribution through their participation in public consultation meetings, online forums, and by providing written submissions. There will be further opportunities to contribute to the Framework in the design and implementation phases.
During transition states and territories will maintain their current arrangements and responsibilities to protect people with disability. Governments will seek to incorporate lessons learned during this phase in the development of the new quality and safeguarding arrangements, which are designed to apply at full scheme.
As we move towards full implementation of the NDIS, all Governments remain committed to building a nationally consistent and responsive quality and safeguarding system that supports participant choice and control in the NDIS market.
The Hon Christian Porter MP
Minister for Social Services
Disability Reform Council Chair
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- Overview and context
1.1 The National Disability Insurance Scheme
The National Disability Insurance Scheme (NDIS) represents a fundamental change to how supports for people with disability are funded and delivered across Australia. In the past, the majority of supports were delivered through government agencies, and providers were ‘block funded’ by government agencies to deliver particular supports to a certain number of people with disability. In the NDIS, people with disability are at the centre of the system. People with a permanent and significant disability that affects their ability to take part in everyday activities and those who would benefit from early intervention receive individualised funding to access reasonable and necessary supports. NDIS participants receiving funded supports and people who are not eligible for individualised funding can access community-based supports through Information, Linkages and Capacity Building (formerly called Tier 2).
The Productivity Commission’s inquiry report into Disability Care and Support recommended the NDIS replace existing disability support systems, which were underfunded, unfair, fragmented and inefficient, and which gave people with disability little choice and no certainty of access to appropriate supports. The Productivity Commission argued that the NDIS would generate longer-term savings through the benefits of early intervention, increased economic participation of people with disability and their carers, and the likelihood of increased productivity in the disability system.
The NDIS is administered by the National Disability Insurance Agency (NDIA). After three years of trial, from 1 July 2016 the NDIS commenced transition to full scheme across
New South Wales, Victoria, Queensland, South Australia, Tasmania, the Australian Capital
Territory and the Northern Territory on a geographical or age basis. Discussions are underway on the future of disability services provision in Western Australia.
Once the NDIS is fully established, the number of people with disability receiving government-funded support is expected to increase to 460,000. To meet demand, the workforce will need to double. A range of new providers are also expected to enter the market.
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1.2 The need for an NDIS Quality and Safeguarding Framework
The NDIS has potential to produce major benefits for people with disability, their families and the broader community, but it also holds some potential risks. An NDIS Quality and Safeguarding Framework is needed to ensure that capability is built in the new market-based system, the rights of people with disability are upheld, and the benefits of the NDIS are realised.
Implementation will require a consistent national approach to quality and safeguarding. In addition to advancing the rights of people with disability, a National Quality and Safeguarding Framework is required to support choice and control in the NDIS by empowering individuals and driving quality improvement. Choice and control also mean that participants are able to make decisions about the level of risk they are prepared to take and have the tools and information they require to make informed judgements about the quality and suitability of providers.
Replace existing quality and safeguarding measures In the new market-based system, participants will choose their providers, rather than providers being contracted by government agencies. This means that many of the current quality and safeguarding measures––which are managed through funding agreements—will no longer apply. A new system is needed to replace these measures, which have enabled governments to meet their duty of care to people with disability accessing funded supports. Government maintaining a stewardship role in the NDIS is consistent with the finding of the Harper Competition Policy Review Report that this is appropriate in emerging markets in the human services.
Empower and support participants The NDIS recognises that giving people with disability choice and control over their supports can help to improve their outcomes. It also helps develop a market of providers focused on supporting participants to meet their goals. While a number of state-based disability systems have begun to provide people with disability more choice and control in recent years, many are used to being allocated particular supports from a fixed menu. Given this, many NDIS participants will need assistance to build their capability to take control of their supports. Without this assistance, they may find it difficult to choose between providers, ensure their supports are delivered in a way that meets their needs, and make a complaint or change providers.
In relation to people with intellectual disability, Fitzsimons reminds us of the personal barriers which lead to a vulnerability to abuse ”[these] include learned helplessness, low self-esteem, self-blame, denial, sense of responsibility to others, fear of retaliation, fear of the unknown, lack of skills and knowledge, poverty. People with a disability, particularly intellectual disability, have learned to comply with the directions of those they believe are in positions of authority. As a result they are less likely to resist or report abuse”. Many participants in the scheme will struggle to recognise and report on
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poor quality service as well as matters of abuse or behaviour which harms them… [Endeavour Foundation submission].1
A connected approach to quality and safeguarding is needed to empower and support participants to make informed choices about providers, and to equip them to raise issues or make complaints when needed. This system will need to provide information about rights and options, build participants’ skills and confidence, help them to make connections, and provide decision-making supports to those who need them.
Focusing on building the capability of participants and supporting them to make connections recognises that the actions people take themselves—or that their family, friends and others around them take—are likely to be the most important component of the quality and safeguarding system. It also recognises the need for participants to be informed and discerning ‘consumers’ for the benefits of a market-based system to be realised, in particular to encourage providers to be flexible, responsive to participants’ needs and innovative.
Address systems issues identified through recent inquiries Recent inquiries into abuse of people with disability in institutional settings (discussed further at 1.3.3) have identified that particular groups are at increased risk of violence, abuse and neglect, including women with disability, people with intellectual or cognitive disability, people with disability who identify as Aboriginal or Torres Strait Islander, and people with disability from culturally and linguistically diverse (CALD) backgrounds. They have also identified issues with some current systems, including that organisational cultures have not always respected the rights of people with disability and the failure in some systems to take appropriate action when problems have arisen. A new system needs to recognise the increased risk that some people with disability experience and address issues identified with current systems.
Ensure quality The NDIS is designed to provide people with disability the reasonable and necessary supports they need to live their lives and achieve their goals. Ensuring that supports are safe and of high quality will be important to the everyday quality of life of participants. It will also be important to ensuring that the social and economic benefits of the NDIS for individuals and the broader community can be realised and that the scheme is sustainable.
Provide consistency Currently, quality and safeguarding measures vary between state, territory and Commonwealth funded services and there is fragmentation between systems. The NDIS Quality and Safeguarding Framework needs to ensure that participants receive the same protections no matter where they live.
1 Endeavour Foundation submission to NDIS Quality and Safeguarding Framework consultation, 2015. Available online at https://engage.dss.gov.au/ndis-qsf-submissions/1430362057/ In-text quote taken from Fitzsimons, N.M. (2009) Combating violence and abuse of people with disabilities, a call to action. Baltimore, Maryland: Brookes Publishing Co.
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Reduce the duplication of requirements for providers The duplication of regulatory, contractual and other legislative requirements in current systems increases complexity and costs. Providers who operate nationally have to understand and comply with the different requirements in each jurisdiction. Those that operate across community service sectors are also required to demonstrate compliance with multiple systems.
A nationally consistent system—with mutual recognition of compliance with other equivalent standards when appropriate—will reduce duplication for providers and make it easier for participants to understand what they can expect of workers and providers. It will also make it easier for participants who move interstate or choose to purchase supports (such as equipment) from elsewhere in Australia. Reducing duplication—when possible and appropriate—while maintaining safety and quality standards, should support the growth of a market of providers able to deliver effective supports to participants.
Enable effective monitoring and responses Recent inquiries have identified that existing systems can lack systematic data collection to assess the extent of problems and coordination to address identified issues. A national system will enable trends and emerging issues to be identified and addressed. There are also likely to be benefits in terms of monitoring the overall integrity and effectiveness of the Framework.
1.3 Framework development
An NDIS Quality and Safeguarding Framework represents significant regulatory policy and has potential to impact on businesses, community organisations and individuals. As such, Commonwealth, State and Territory governments were required to consider a range of options (non-regulatory, self-regulatory, quasi-regulatory, co-regulatory and regulatory) and assess their associated benefits, impacts and costs through consultation and impact analysis. This process meets the Council of Australian Governments’ requirements for best practice regulation.
The Framework has also been informed by recent public inquiries into the abuse of people with disability and children in institutional settings, and other NDIS-related policy work.
1.3.1 Consultation
Governments developed a consultation paper outlining a range of options for a national quality and safeguarding system. The paper drew on information about existing quality and safeguarding systems in the disability and other relevant sectors in Australia and internationally, and the research literature. It was released in February 2015.
Consultation on the options involved the following activities between February and May 2015:
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16 public meetings in capital cities and regional locations in each state and territory seven provider meetings in locations around Australia six workshops with specific stakeholder groups 220 submissions 585 questionnaire responses about particular quality and safeguarding measures, and an online discussion forum.
Officials from different jurisdictions also engaged in targeted stakeholder consultations.
The consultation identified a high level of agreement about most of the quality and safeguarding measures that should be adopted. While stakeholders emphasised the need to focus on developmental measures as the foundation of effective quality and safeguarding, most also considered a high level of regulation necessary, particularly while the market is developing and participants are building their capability to make informed choices about providers. Stakeholders supported a tiered approach to regulatory requirements for the workforce and providers, with requirements proportionate to the level of risk associated with the type of support provided, and the needs of the participants they support. Stakeholders also stressed the human rights basis for the Framework, particularly the need to ensure the rights of people with disability to dignity and respect, and to live free from abuse, neglect, violence and exploitation, as outlined in the UN Convention on the Rights of Persons with Disabilities. The full report of the consultation findings is available on the Department of Social Services website.
1.3.2 Impact analysis
An impact analysis was conducted to assess the net benefit of each potential regulatory option. In some cases, the costs and dollar value of benefits could not be meaningfully calculated because of the limitations of available data (including gaps and inconsistencies), and the hidden nature of some harms. Overall, the impact analysis identified that the benefits of an improved regulatory system, in reducing harm to participants, would outweigh the costs to governments and providers. Additionally, moving to a national system has the potential to eliminate duplication and consolidate existing regulation.
1.3.3 Public inquiries
There have been a number of inquiries into abuse and neglect in disability services following reports of abuse in 2014.
The Parliament of Australia’s Senate Standing Committee on Community Affairs (2015)
Report on the inquiry into abuse and neglect against people with disability in institutional and residential settings, including the gender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people with disability, and culturally and
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linguistically diverse people with disability2 made a number of recommendations. These included:
a national disability worker registration system to undertake screening, and administer qualification requirements a national system for reporting, investigating and eliminating violence, abuse and neglect of people with disability a national system of provider accreditation and broad serious incident reporting, and use of positive behaviour support strategies instead of restrictive practices.
At the national level, the Royal Commission into Institutional Responses to Child Abuse also made recommendations around screening people working with children that are relevant to worker screening for the NDIS.
Findings from the Victorian Ombudsman’s (2015) Reporting and Investigation of Allegations of Abuse in the Disability Sector: Phase 1 - The Effectiveness of Statutory Oversight3 concluded that ‘despite areas of good practice, oversight arrangements in Victoria are fragmented, complicated and confusing’, meaning ‘the system is fundamentally failing to deliver protection in a coherent and consistent way.’ The Ombudsman’s recommendations focused on the need for a single independent oversight body for the disability sector and the role of advocacy.
The Victorian Parliamentary Inquiry into Abuse in Disability Services4 made a number of recommendations about the design of the NDIS Quality and Safeguarding Framework, in particular that there be:
a single independent oversight body mandatory reporting of abuse, neglect and exploitation to the oversight body an independent advocacy and capacity building body measures to ensure guardianship of last resort a national quality assurance agency responsible for worker screening, and worker and provider registration, and a national evaluation of the various state and territory-based community visitor schemes.
1.3.4 Related policy work
Other NDIS-related policy work has informed the Framework. This includes the development of the NDIS through the experience in the trial sites, the Information, Linkages and Capacity
2 Parliament of Australia’s Senate Standing Committee on Community Affairs (2015) Report on the Inquiry into Abuse and Neglect Against People With Disability in Institutional and Residential Settings, including the gender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people with disability, and culturally and linguistically diverse people with disability. 3 Victorian Ombudsman (2015) Reporting and investigation of allegations of abuse in the disability sector: phase 1 - the effectiveness of statutory oversight. 4 Parliament of Victoria, Family and Community Development Committee (2015),Interim Report on the Inquiry into Abuse in Disability Services.
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Building, the Integrated Market, Sector and Workforce Strategy, and the reform of the National Disability Advocacy Program.
1.4 Framework objectives
The overall objectives of the NDIS Quality and Safeguarding Framework are to ensure NDIS funded supports:
uphold the rights of people with disability, including their rights as consumers facilitate informed decision making by people with disability are effective in achieving person-centred outcomes for people with disability in ways that support and reflect their preferences and expectations are safe and fit for purpose allow participants to live free from abuse, violence, neglect and exploitation, and enable effective monitoring and responses to emerging issues as the NDIS develops.
The Framework is designed to balance the need for appropriate protections that meet governments’ duty of care obligations with the need to enable participants to take reasonable risks so they can reach their goals. The aim is to establish a flourishing market that offers people with disability genuine choice and control. The Framework is also designed to suit the emerging market-based system in which participants are building their capability to act as informed consumers, the workforce is growing rapidly, and new providers are entering the market.
1.5 Framework principles
The following key principles underpin the Framework.
Human rights The NDIS gives effect to a number of key provisions in the UN Convention on the Rights of Persons with Disabilities. Consistent with this, the NDIS Quality and Safeguarding Framework is intended to uphold and respect the rights of people with disability. This includes the right to dignity and respect; to live free from abuse, neglect, violence and exploitation; and to participation and full inclusion in the community.
As such, the Framework includes measures to build the capability of people with disability to take control of their supports, as well as measures to prevent abuse and neglect and respond to any issues that emerge.
The presumption of capacity to exercise choice and control The Framework, like the NDIS, starts from a presumption that all people with disability have the capacity to make decisions and exercise choice and control. Strategies for reducing harm need to be weighed-up against the likelihood of harm occurring and its severity, and the impact this will have on choice and control. This allows for the dignity of risk, which includes
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“supporting people to take informed risks to improve the quality of their lives”.5 Rather than trying to find ways to eliminate all risk—which can be highly restrictive and out of proportion to the level of risk involved—the dignity of risk for NDIS providers means working with participants to define acceptable risk levels6 in delivering supports to achieve their goals. This must be done in a way that considers the individual circumstances of each participant. It also means supporting participants in positive risk-taking, including recognising when the risk is something the participant can decide on, and negotiating how best to support the wishes of the participant.
People will however come to the NDIS at varying stages of readiness to take control of their supports. The Framework includes developmental measures to support participants to become informed consumers, equipped to choose quality supports that enable them to live their lives the way they want, and advocate for their rights. It also recognises that there needs to be an option for participants who are unable or unwilling to exercise choice.
National consistency As the NDIS is a national scheme, it is important that regardless of where they live in Australia, participants can expect the same level of protection.
Proportionality and risk responsiveness The risk involved in delivering a support can be affected by the extent to which the participant is at heightened risk of abuse and neglect, and the potential risk associated with the particular type of support. Risk management must be tailored to different types of risk:
Risks at the individual level – Personal characteristics – such as age, skills, limited communication and complex medical conditions – can be associated with heightened risk. Certain groups, such as women, children, Aboriginal and Torres Strait Islander people, those from non English speaking backgrounds, and those with intellectual disabilities and complex mental illnesses, may be at higher risk of abuse. – People who have family and friends around them on a regular basis, or who receive supports from several different providers, may be less vulnerable to abuse and dangerous practices than people who are isolated.
Risks based on types of support – The effects of the support: some services, such as peg feeding and administration of prescription drugs, can have serious adverse effects when not carried out correctly. – The level of personal contact involved: supports that require a level of intimate personal contact with the participant, such as showering and toileting, can provide opportunities for abuse. – The environment in which the support occurs: supports that are delivered in an environment in which there is limited external visibility or direct supervision—or if
5 Victorian Equal Opportunity and Human Rights Commission (2014) Rights and risk - how human rights can influence and support risk management for public authorities in Victoria, Carlton, Victoria. 6 Australian Government (2010) Fact Sheet, AS/NZS ISO 31000:2009, Risk management – principles and guidelines.
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the support does not require professional registration—can pose a higher risk of abuse for participants.
Proportionality forms a component of a risk-responsive regulatory system, which recognises that risk of harm is experienced differently by individuals, and that regulatory tools for mitigating risk must be responsive. The Framework is therefore designed to be risk responsive and person-centred, with measures tailored to the strengths, needs and circumstances of participants that increase or decrease risks, and the risks inherent in certain types of supports. At the individual level, the planning process enables individual risks to be identified and safeguards developed. At the system level, the regulatory requirements for workers and providers are tiered to ensure regulation is proportionate to the level of risk associated with the needs of the participants supported, and the type of support offered. Workers and providers delivering supports considered to pose a higher risk will have higher compliance requirements. The regulatory system will also respond to market failure risks with prudential monitoring for some segments of the market.
Efficiency and effectiveness The NDIS entails a transition from a government-managed to a market-based system. The Framework is designed to support the development of an efficient and effective NDIS market and achieve the right balance between regulation. This is to ensure quality and safe services, and minimise barriers to market entry. The bar for entry into the market is not set so high that it would prevent market growth and create unnecessary red tape, nor so low that it would enable workers and providers who would pose an unacceptable risk to participants to enter and operate.
Developmental measures are included to develop the capability of participants, workers and providers, and to encourage providers to be flexible and responsive to participants’ needs. Market oversight mechanisms will also support a competitive market that meets the varying needs of participants across Australia. The Framework reduces duplication and allows for mutual recognition of compliance with equivalent standards when possible, so the system is easier for people with disability to navigate and red tape is reduced for providers.
1.6 Framework components
Figure 1 outlines the structure and components of the NDIS Quality and Safeguarding Framework.
The UN Convention on the Rights of Persons with Disabilities, the Disability Services Act 1986,
National Disability Strategy 2010–2020, and the National Disability Insurance Scheme Act
2013 provide the foundations.
The Framework itself consists of measures targeted at individuals, the workforce and providers within developmental, preventative and corrective domains.
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Measures in the developmental domain are intended to strengthen the capability of people with disability, the workforce and providers. While these are not regulatory functions, they are included in the Framework because they are fundamental to supporting quality and safeguarding.
Measures in the preventative domain are intended to prevent harm and ensure quality services are delivered to people with disability.
Measures in the corrective domain are intended to resolve problems, enable improvements to be identified to avoid the same problems recurring, and provide oversight of the system.
Across each of the domains, the measures interact to create a system that is mutually supporting and reinforcing. Investment in the developmental and preventative domains is intended to prevent adverse outcomes, so less corrective action is required. Additionally, some elements that are classified as preventative or corrective also have developmental aspects because of the importance of building capability to support positive outcomes for participants. For example, complaints are corrective, but also present an opportunity to learn from mistakes and improve practice (developmental), which in turn reduces the likelihood these same issues will occur again in future (preventative).
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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 participants 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
complaints processes and review processes internal complaints system
Building participants’ 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 NDIS dangerous situations
Strengthening natural supports Supporting self-managing Community visitors
Supporting participants to participants Continuing existing state and
strengthen family 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 Workforce Strategy Protecting Australia’s Children
Providers: encouraging safe, innovative, high-quality support provision
Building provider capacity and Reducing restrictive practices Investigating non-compliance
best 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
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Ensuring provider safety and De-register or bar as NDIS provider quality Having provider quality requirements proportionate to the type of support offered and the needs of participants, and that builds a culture of continuous improvement. This includes oversight of the NDIS market
Links to NDIS Sector Development Links to National Framework for
Fund Reducing and Eliminating
Restrictive Practices
1.6.1 Elements of quality and safeguarding outside of the Framework
Not all risks associated with the NDIS need to be addressed by the Framework: some are addressed through other means.
In particular, the NDIA will have systems for detecting fraud and related issues associated with the responsibility for paying providers and verifying that supports have been delivered. Complaints about the NDIA, or NDIA-funded local area coordinators, will be addressed through existing regulation, such as the Administrative Appeals Tribunal and the Commonwealth Ombudsman.
Some risks will also be managed through both the Framework and other related policies. This is why the Framework explicitly incorporates the links with other NDIS-related policies (such as Information, Linkages and Capacity Building and the Integrated Market, Sector and Workforce Strategy), universal protections (e.g. police, fair trading bodies, consumer protection, and other regulatory and complaints systems), and policy in other related areas (such as the National Plan to Reduce Violence against Women and their Children 2010–2022 and the National Framework for Protecting Australia’s Children.
1.6.2 Regulatory functions
Figure 2 outlines where the regulatory components of the Framework sit and how they are connected.
The NDIS complaints commissioner will receive and support the resolution of complaints about providers of NDIS-funded supports, receive and investigate serious incident reports, and investigate potential breaches of the NDIS code of conduct. The commissioner will refer matters related to non-compliance with provider standards to the NDIS registrar; serious incidents relating to inappropriate or unauthorised use of a restrictive practice, or that indicate unmet behaviour support needs, to the senior practitioner; matters relevant to the risk assessment of individual workers to screening functions; and other matters to relevant authorities (such as the police, consumer affairs agencies and other regulatory bodies) as needed.
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The NDIS registrar will have responsibility for registering providers; managing the NDIS practice standards and certification scheme; leading the design and broad policy settings for nationally consistent NDIS worker screening; monitoring provider compliance; and taking action as required. The registrar will also monitor, review and report on the effectiveness of the NDIS market of supports, including anti-competitive conduct and early indicators of risk of thin markets and market failure.
The senior practitioner will oversee approved behaviour support practitioners and providers; provide best practice advice; receive, review and report on provider reports on use of restrictive practices; and follow-up on serious incidents that suggest unmet behaviour support needs. The senior practitioner will refer concerns about worker or provider non compliance to the NDIS registrar. Approval for the use of restrictive practices will continue to be managed through current state and territory government processes.
NDIS risk-based worker screening will be nationally consistent, with responsibility for overall design and broad policy settings resting with the registrar, and operational responsibility—including the management and operation of worker screening units—resting with the states and territories. Risk-based worker screening for the NDIS will play an important role in reducing the risk of unsafe workers providing support to people with disability. Appropriate advisory mechanisms will need to be established to ensure that people with disability, their families and carers, and also support providers, have the opportunity to contribute to the development and operations of these regulatory bodies.
1.7 Implementing and refining the Framework
During the trial, existing state and territory quality and safeguarding arrangements and the NDIA terms of business for registered support providers are being used. There will be a need to transition from state and territory quality and safeguarding arrangements to the new national system in line with the broader roll-out of the NDIS.
This document is intended to be a high level-policy with significant work still to be done on the implementation design and roll out of the Framework.
As the Framework is designed to underpin the emerging market-based system, it will need to be reviewed to ensure it remains fit for purpose once capability has grown and the market has become more established.
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Figure 2. Regulatory functions
Referrals to police, worker screening units, NDIA Risk based screening of
Market-level consumer affairs agencies and other employees by state and
regulatory bodies, as needed information territory screening units
complaints registrar Refer serious senior practitioner Complaints and
commissioner incidents and concerns from a range of
Register providers quality issues Oversee approved sources:
Receive and Refer Manage the NDIS Practice with behaviour behaviour support concerns participants and resolve/refer Standards and certification support practitioners and providers about non- families complaints compliance scheme Provide best practice advice
individual workers Monitor and Monitor provider compliance Receive, review and report
and providers investigate serious and take action as required on provider reports on use
advocates and incidents Monitor the market of restrictive practices Refer concerns
community visitors Investigate breaches Design and broad policy Review serious incidents about non-
professionals of the NDIS code of settings for worker screening compliance that suggest unmet
members of the conduct behaviour support needs
community
Registered providers Registered providers All workers and Approved behaviour State/territory
report on serious report on quality audit providers comply with support practitioners restrictive
incidents outcomes code of conduct and providers practices approval
processes
Providers
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- Individuals The following developmental, preventative and corrective measures are designed to help people with disability to exercise choice and control over how their supports are delivered. The measures will help them resolve any issues they encounter with workers or providers.
2.1 Developmental
2.1.1 Providing participants information for decision-making
The context
Participants need access to quality information to exercise genuine choice and control over their supports in a market environment. Quality information will help participants be empowered consumers, including by choosing their providers, negotiating delivery of their supports with confidence, assessing quality and asserting their rights, and raising issues when required.
Current activities
In the trial, the NDIA provided information to people with disability and their families in a range of ways, including through the website, webinars, expos, collaboration with community organisations, fact sheets and videos. A range of private online information sites have also emerged to meet the needs of NDIS participants. These include directories with basic information about providers, platforms that enable participants to leave feedback and for providers to respond, and eMarkets through which participants can find and purchase supports.
What participants need for informed decision-making
To facilitate choice and control in the NDIS market, information must be comprehensive, reliable and accessible to all people with disability and their families.
Accessible information will be: clear and jargon free available in various formats to meet different communication needs, including Easy English, community languages, Auslan, braille, audio, video, large print and screen reader accessible culturally appropriate available through a one-stop-shop website, but also delivered through various channels, including online (social media platforms, apps and live chat), over the phone, face-to-face (individually or through forums), through peer networks—local area coordinators, advocates, community and mainstream services—in traditional and community media, and in relevant public places, and tailored to reach people who might not otherwise contact the NDIA.
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Comprehensive information will cover the full range of subjects that participants need to understand, including: navigating the NDIS rights and responsibilities the planning process support types and pricing structures what to do if something goes wrong what providers are registered, their locations and operating hours, as well as the supports they offer how to communicate and negotiate with a provider, and provider quality (this may include responsiveness, delivery of individual participant outcomes and commitment to service improvement, as well as anecdotal information from people who have accessed supports from providers).
Reliable information will be: up-to-date accurate relevant, and available from independent and objective sources.
The NDIS information system must be built not only on information provided to participants, but information created by participants. There is substantial value in online forums where peers can connect with each other to share ideas and experiences, as well as provide feedback about their experience with providers. However, there are also potential risks associated with these forums, including providers manipulating their ratings so they appear more positive or, on the flipside, trolling, unfounded or unfair criticism, and lack of information about whether complaints have been satisfactorily resolved. Peer information may also not be that helpful for niche or specialist supports because sample sizes are too small for information to be reliable.
There should be a mix of both anecdotal information from peers and independently verified information on quality, since it would be inadequate to rely solely on any one source.
Any online feedback forums will need to be independently moderated and should give providers the opportunity to respond to complaints. Consideration will need to be given to how current legislation for registered health professionals, which prevents them from advertising and using testimonials, could limit their ability to interact with participants online.
As well as a single entry point to the system and peer-to-peer information sharing, JFA Purple Orange’s research into an NDIS eMarket identified that participants want to be able to buy supports online (either through a central eMarket or direction to provider websites) and use the eMarket to help manage their supports (accessing targeted information and managing interactions with the NDIA and with providers).
As valuable as the private online information sites that have emerged during the trial are, they are unlikely to fulfil all of the identified information needs of participants and their
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families. As identified in the Harper Competition Policy Review Report and the Commonwealth Government’s response, there is a clear role for government in promoting informed choice, particularly in newly created markets, such as the NDIS. In the absence of this, participants could find it difficult to access information, be unable to access information about all of their options, be open to undue influence from providers, and find it difficult to compare providers based on objective information. For this reason, the NDIA will need an ongoing role in information provision.
Illustrative quotes from the consultation
It is only from other clients’ experiences that I would be able to get a better feel for the various providers. However an open mind would still have to be kept to a certain degree as each individual’s experience may not always be the norm. [Person with disability, New South Wales, questionnaire] An effective way to ensure consumer rating forums offer useful information is to ensure they include random sample surveys of client views, not just volunteer contributions. [National
Disability Services, submission7]
The system should be based on participants’ requirements and provide the opportunity to understand: participants’ rights and responsibilities; the service providers in the local area; the services they can assist with; contact details; specialist skills; meeting quality and service standards; membership of any industry or professional body related to standards. [RichmondPRA, New South Wales, submission8] People with disability and their natural supports need information available in a range of formats and from sources that suit their individual needs. For example, some people will be comfortable with a centralised website, others will rely on a local, trusted community organisation. [New South Wales Council for Intellectual Disability, submission9]
How it will work
Participants will draw on a range of sources to make decisions, including the views of family and friends, trusted professionals, other participants, and various information resources. Non-government online sites will continue to support participants to connect with each other and providers. Government information provision will not displace these other information resources, but will seek to complement them. Some existing non-government sites enable instant notification to the provider and give the provider the opportunity to publically or privately respond to service users. Service users are also invited to provide feedback on their level of satisfaction with the provider’s response. This type of functionality establishes a
7 National Disability Services submission to NDIS Quality and Safeguarding Framework consultation, 2015. Available online at https://engage.dss.gov.au/ndis-qsf-submissions/1430370763/ 8 RichmondPRA submission to NDIS Quality and Safeguarding Framework consultation, 2015. Available online at https://engage.dss.gov.au/ndis-qsf-submissions/1430700049/ 9 NSW Council for Intellectual Disability submission to NDIS Quality and Safeguarding Framework consultation, 2015. Available online at https://engage.dss.gov.au/ndis-qsf-submissions/1430724703/
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feedback loop that is much more informative for people than just viewing the original complaint.
The NDIA will provide information about the NDIS in various formats and through various channels to ensure all participants and their families have access to the information they need. Additionally, they will develop an eMarket to provide information about all registered providers. The eMarket will enable participants to understand their support options, make informed choices and connect with providers who can help them to achieve their goals. It will build on data collected at the time providers register, such as the supports they offer and their location, and allow comparisons of pricing structures. It will identify local providers and providers with special capabilities that are relevant to individual participants.
As it is further developed, the eMarket should make the process of connecting with providers more efficient (for example, by providing the option to make an initial appointment or seek further information), allow participants to purchase supports online, and give participants the opportunity to share information. The Health Practitioner Regulation National Law, which applies to certain Health Professionals including physiotherapists and occupation therapists, strictly controls registered practitioners’ advertising and prohibits the use of testimonials. Governments will monitor whether this legislation has a significant impact on their ability to engage with participants online in the way that other providers are able to and, if necessary, consider options.
Consideration will need to be given to the provision of independently verified, objective information on provider quality. Models for achieving this have already been implemented internationally, such as in the United Kingdom by the Care Quality Commission. This body publishes independent provider reports on quality, but also uses a ‘traffic light’ approach to summarise the information in a meaningful way for service users.
Typically, quality reports currently being produced in Australia through quality certification and audit processes contain content that is more relevant for informing the provider and regulatory bodies of the areas of the business that are working well or that need improvement from an operational service delivery perspective. However, these reports tend not to be as helpful for communicating information on quality that is more relevant and useful from a service-user perspective.
Implementing such an approach for the NDIS will also need to consider how to inform participants about the provider’s response to audit findings on areas requiring improvement. This should also form part of their considerations (establishing the equivalent of a “feedback loop”). The provision of publically available independent quality information should still encourage providers to view the audit process as creating opportunities for improvement, rather than presenting a business risk. Further work is needed to explore how to complement peer review information on quality with objective, independent information, which is directly relevant to what participants need, easy to understand while also giving providers the opportunity to make improvements.
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Linkages: local area coordinators, peer networks and independent advocacy services have a key role in helping participants to assess information and make decisions. The complaints commissioner will have a role in informing participants about their rights and complaints processes. The provider registration system will offer participants information about the types of supports providers have been approved for and the NDIS practice standards they have met.
The eMarket will also provide important information to support the NDIS registrar in monitoring the market and managing risk.
2.1.2 Building participants’ capability
The context
The NDIS is built on the principle of a person-centred approach, recognising that participants should be treated as experts in their own lives. For many participants, the NDIS gives them a power they have previously been denied to exercise choice and control over their lives.
To exercise choice and control, participants need to understand and assess available information, and use decision-making and self-advocacy skills. Some participants, particularly those who are already accessing individualised funding in existing systems, will come to the NDIS ready and willing to assess information, make informed choices, and negotiate with providers. Others, particularly those who have had limited choices within existing systems, will need to build the knowledge, confidence and skills to do this. Some may be unwilling or unable to exercise choice and control. The NDIS will need to respond to this variation in individual capability and preference.
Participant choice and control has the potential to drive change in the sector, which will support the development of more flexible, responsive and individualised services. However, this change will not happen automatically. In the past, many people with disability have seen providers as an extension of government and trusted services on that basis. Seeing providers as market operators will represent a significant shift in perception. Participants will need to understand their rights and have the confidence and skills to negotiate with providers about how their supports are delivered—and make complaints—when needed. Some participants could face high ‘transaction costs’ (for example time, effort and stress) in taking a more active role with providers. For others, changing providers if they are dissatisfied might seem daunting, burdensome or risky, particularly if they are highly dependent on the service for their daily living. Historically, the power imbalance between providers and people with disability has meant that people have often been reluctant to complain because they fear retribution (such as losing a service) or have had negative experiences with complaints processes. There is a risk that some participants will tend to settle for inadequate support because the alternative seems unattainable due to these transaction costs, in the same way many people tend not to change banks even when they are unhappy with their current provider.
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Relatively few participants and their families are likely to have experience in employing people and managing a substantial amount of funding. Accordingly, participants and their families who choose to manage their own funding arrangements (self-manage) may need help in areas such as understanding employment law and setting up payroll systems.
Current activities
In trial sites, a number of capability building activities are already underway for participants. In other locations, there are activities to support people with disability and their families prepare for the transition.
What capability building supports participants need
In the consultation, stakeholders emphasised the importance of helping participants to understand information about their rights and options and building participants’ skills to make decisions about their supports, negotiate with providers and stand up for their rights, when needed.
Some of the broader skills that stakeholders suggested should be fostered among NDIS participants included:
understanding and asserting rights and responsibilities informed decision-making communication managing budgets building healthy relationships recognising good and bad quality supports recognising and responding to violence, abuse or neglect, and making a complaint or suggestion.
Stakeholders noted that while many participants may only require access to information to exercise choice and control, some would need support from a local area coordinator, support coordinator or other knowledgeable person, to be able to experience the same opportunities. In particular, stakeholders identified that people with intellectual and cognitive disability and people with complex communication needs can face much greater barriers to exercising choice and control and will need access to decision supports.
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Illustrative quotes from the consultation
Much more than the design of the information system itself, access to a knowledgeable first contact person/mentor/LAC who can support and guide consumers in accessing appropriate information and assist in developing an informed and focussed package will be critical in the success of information provision and capacity building for people with a disability. [Clarke, D and Wise, submission10] People with disability commonly have not had the opportunity to develop their skills for choice and control and self-protective behaviour. On the contrary, people with disability commonly have lived lives with very limited choice and control and a high level of dependence on support providers. All these factors apply particularly to people with intellectual disability whose intellectual impairments impede their ability to take control of their own lives. Family members, who are often key advocates for people with intellectual disability, come from a history of being expected to be grateful for support that is provided and many have narrow horizons and limited confidence to pursue grievances. [New South Wales Council for Intellectual Disability, submission11] Individuals with intellectual disability generally need considerable support to develop their capacity to exercise choice and control. This requires skills development, supported decision making, and opportunities for choice and control starting with routine decisions that arise through the individual’s day-to-day experiences. [Minda Incorporated, SA, submission12]
How it will work
The NDIA released a Draft Information, Linkages and Capacity Building Commissioning
Framework in December 2015. It identified five streams of support:
information, linkages and referrals capacity building for mainstream services community awareness and capacity building individual capacity building, and local area coordination.
Many of the activities envisaged have the potential to make an important contribution to the informal safety net surrounding people with disability and to capability building.
The Individual Capacity Building Stream aims to help people better communicate their preferences and make informed and independent decisions. People will be supported to access courses, groups and organisations that can assist them to build their knowledge and skills. It may also link them with self-advocacy, mentoring and peer support groups, and support people with disability, their families, carers and communities to work together with and for people with disability.
10 David Clarke and Cliff Wise submission to NDIS Quality and Safeguarding Framework consultation, 2015. Available online at https://engage.dss.gov.au/ndis-qsf-submissions/1430964652/ 11 NSW Council for Intellectual Disability submission to NDIS Quality and Safeguarding Framework consultation, 2015. Available online at https://engage.dss.gov.au/ndis-qsf-submissions/1430724703/ 12 Minda Incorporated submission to NDIS Quality and Safeguarding Framework consultation, 2015. Available online at https://engage.dss.gov.au/ndis-qsf-submissions/1430354367/
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Local area coordinators will have an active role in promoting inclusion and working to address some of the systemic barriers to participation that people with disability can face. They will also support individual people with disability to address barriers they encounter to accessing mainstream and community services. At this stage, it is also envisaged that local area coordinators will deliver capability building activities for participants and people with disability who are not eligible for the NDIS, as well as their families and carers; explain the NDIS to potential participants; and support participants to develop and implement their plans.
Information, linkages and capacity building activities will evolve as more is learned about the support that people with disability want and what proves effective. Capability building strategies that could be supported through information, linkages and capacity building or individual plans include mentoring, peer support and circles of support (see Box 1).
Box 1: Capability building strategies13 Mentoring: a mentor is a trusted and experienced advisor. Mentoring can be an effective strategy where there is effective matching, training and support of mentors, and mentors follow through. Skills development programs: programs to build the skills of people with disability. Role models: user led organisations can be particularly valuable in providing an opportunity for role modelling that builds confidence. Peer support: interactions with people in similar situations can provide a way of pooling experience and providing mutual support. Online groups are increasingly a way for people to connect and share information. In areas where the NDIS has already been rolled out, web-based and in-person groups of participants and families with shared interests are meeting to discuss their experiences and ideas. Learning by doing: action learning to solve problems involves learning by doing with the support of a facilitator.
It will be important to ensure evidence-based models are used. Consideration also needs to be given to ways of testing whether approaches that have proven to be effective overseas will work in the Australian context. User-led organisations for example, have been supported by governments in the United Kingdom and could enhance self-efficacy of people with disability, as well as provide opportunities for people with disability to enhance their skills, be employed and help their peers.
2.1.3 Strengthening natural supports
The context
Natural supports (family, friends and community connections) provide an important informal safeguard for people with disability. A person with disability who has a supportive network of family and community members and is included in their community will be better protected
13 Capacity building for people with disability, their families and carers. Report to the Independent Advisory Council of the National Disability Insurance Scheme, September 2015.
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by these natural safeguards than they could by any safety net built by governments. However, some people with disability, particularly those exiting institutional environments, will not have strong existing networks. Others will have ageing carers and so need to identify additional supports. Carers may also need supports to maintain their role, and mainstream services and community organisations may need support to effectively include people with disability.
Current activities
In the trial sites, both in-person and web-based groups of participants and families are discussing their experiences and sharing ideas. Building and strengthening natural supports may also be a goal in a participant’s NDIS plan and providers can be funded to support the participant to achieve that goal.
What’s needed to strengthen natural supports
The consultation emphasised the importance of natural supports and inclusion of people with disability. Stakeholders noted the value that peer support and buddying can provide, helping people to share information and experiences while also building relationships. Some people will need support to build the skills to make connections, while others may not be interested in building relationships or may have been put-off by past negative experiences. Participants should be supported, but not forced, to make connections.
Parents, as well as siblings, and other informal support people can play a role in supporting people with disability to exercise choice and remain safe, but some may need support to take on this role. Some family members may try to take control when the person with disability would prefer they did not, and this should be considered by the NDIA, local area coordinators and support coordinators as the person’s plan is developed and implemented.
Circles of support could help people develop a network to plan for the big life questions. Circles of support are often comprised of the person with disability, a key family member and workers who are directly involved in supporting the person in particular aspects of their life. They meet regularly to establish a shared vision about how to support the person with disability to achieve their goals, identify and address changing needs, and (when necessary) integrate supported decision-making into the person’s day-to-day life. Stakeholders suggested that circles of support were a valuable way to foster collaboration and coordination between key people involved in a participant’s life.
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Illustrative quotes from the consultation
It’s very important to have peer support. It happens by phone and group meetings are important too. Twenty years ago I was a wreck. I had to write notes to shop keepers and I was afraid to speak publicly. Now I can’t shut up (because of peer support). [Women with
Disabilities Victoria, submission14]
Informal carers generally have the person’s best interests at heart, are experienced in communicating with the person, see them regularly enough to notice any problems and are likely to have their trust and be called upon in a time of need. Informal carers can also be key sources of information and often play the role of advocate for the person they care for. However, informal carers cannot effectively fulfil the role of natural safeguard without adequate, ongoing information and support that takes into account the caring arrangement. [Carers NSW, submission15] Siblings will likely have the longest relationship with the person with disability. If siblings are supported they are likely to contribute much to the emotional and social wellbeing of their brother or sister. This is particularly important because many people with disability, especially intellectual disability, can become isolated. Without effective support, siblings have a tendency to move away from their family, with long-term consequences for the whole family and for the person living with disability. [Siblings Australia, submission16]
How it will work
There will be activities funded through Information, Linkages and Capacity Building and individual packages. These will support people with disability to make connections in their community, carers to maintain their role, and communities and mainstream services to be inclusive. Peer supports will be available to help participants to share information, tips and their experiences, while building relationships. Local area coordinators will build positive attitudes in the community and help to facilitate meaningful participation and inclusion of people with disability.
In supporting the role of families, it will be important for NDIA planners and local area coordinators to ensure it is the voice of the person with disability guiding their plan, not a family member taking control of decision-making when this is not what the participant wants. In supporting the role of friends and community connections, it will also be important to recognise whether the person has not made connections because of a lack of skills, past negative experiences or a lack of desire, and not push them to make a friend or join a group if this is not what they want.
14 Women with Disabilities Victoria submission to NDIS Quality and Safeguarding Framework consultation, 2015. Available online at https://engage.dss.gov.au/ndis-qsf-submissions/1431658324/ 15 Carers NSW submission to NDIS Quality and Safeguarding Framework consultation, 2015. Available online at https://engage.dss.gov.au/ndis-qsf-submissions/1430376305/ 16 Siblings Australia submission to NDIS Quality and Safeguarding Framework consultation, 2015. Available online at https://engage.dss.gov.au/ndis-qsf-submissions/1430360324/
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2.2 Preventative
2.2.1 Safeguarding participants through planning, implementation and review processes
The context
Effective planning is a key element of quality support in a person-centred system. Participants should be supported to identify and manage risk as they interact with the NDIS through access to the level of assistance they need to develop and implement their plans.
Individual planning, implementation and review processes should also include formal safeguards. These should be proportionate to the level of risk the participant faces, based on their capacity, their natural support network and the supports available to them, as well as the level of risk they choose to accept.
Some participants will also need supported decision-making to ensure their will, preferences and rights direct the decisions that affect their lives. Supported decision-making is when one person gives another the support they need to make decisions about their own life. In the NDIS, supported decision-making will be crucial to ensure that people with communication needs, cognitive, intellectual or psychosocial disability are able to exercise genuine choice and control.
Current policy
Under the NDIS Act 2013, the NDIA has a central role in safeguarding the interests of participants. This includes working with participants to assess and manage risks.
Supported decision-making is encouraged over substitute decision-making whenever possible. However, the NDIS Act 2013 makes provision for nominees to be appointed when necessary. The NDIS operates in conjunction with existing state and territory-based safeguarding mechanisms for people with significant cognitive impairments or mental illness, such as guardianship tribunals and public advocates.
The NDIS Act 2013 also makes provisions for self-management of support plans.
What supports and safeguards do participants need in the planning, implementation and review process?
In the consultation, stakeholders identified an opportunity to build people’s decision-making skills through the NDIA planning process. They also identified the need for the process to include a thorough exploration of opportunities, risks and safeguards. While some were particularly concerned about risk, a number of stakeholders emphasised the need to include the concept of positive risk taking (or dignity of risk) within the Framework because, in the words of one person with disability, ‘if you don’t take risks you don’t learn’.
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Stakeholders also noted that some people will need more support with the planning process than others. There was support for a risk-based and person-centred approach that includes identifying risks and safeguards through individual planning. Many stakeholders also identified the need for particular consideration for specific populations, including measures to:
recognise gendered violence and the heightened vulnerability of women and girls with disability to exploitation, violence and abuse, and provide adequate safeguards ensure access to culturally appropriate information and supports for Aboriginal and Torres Strait Islander and culturally and linguistically diverse populations enable people with intellectual disability to exercise choice and control, and provide adequate safeguards that recognise their heightened vulnerability to exploitation, abuse and neglect recognise the particular needs of: o people with psychosocial disability o people with progressive neurological conditions o children with disability and their families, and o lesbian, gay, bisexual, transgender, and intersex people.
Stakeholders noted the importance of funding decision-making supports and of providers (particularly those with great influence over people’s day-to-day lives) facilitating supported decision-making on a day-to-day basis. This might include for example, taking the time to ask a person what they would like for breakfast and suggesting some options rather than providing a standard breakfast every day, or asking what they would like to do on the weekend and suggesting some options rather than taking them to the same activity every weekend.
How it will work
The NDIA has primary responsibility for planning, implementation and review processes. The way this is operationalised is expected to evolve over time, particularly during transition to full scheme. Accordingly, the discussion below focuses primarily on the key functional components of the system, rather than on how they might operate in practice.
Plan development: when individuals first make contact with the NDIS, they will be provided with different levels of support to develop their plans, depending on their personal circumstances including the informal supports and advice they can draw on outside the scheme.
Some participants will have the capability to develop their own plan without assistance. Participants who have few informal supports, are isolated, or who have more than one family member with a disability—placing extra strain on their family—may need some support to develop their plan and will be assisted by a local area coordinator.
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Participants at higher risk may include those: with involvement in the justice or child protection system receiving 24 hour support living in supported accommodation or a large residential centre with dual disability who have recently acquired a spinal cord injury or brain injury, or with a history of abuse or neglect.
These participants will usually require a greater level of support to develop their plan and will usually work with an NDIA planner.
Participants’ support requirements may change during the planning process. A participant who initially does not require assistance to develop their plan may request assistance from a local area coordinator at any time. If a participant does not develop their plan within the set period, this will also trigger contact with a local area coordinator.
Risk assessment: it is generally agreed that a holistic assessment of the risks a participant faces, which takes into account their family circumstances, informal supports and individual capabilities, is critical to enabling informed choice. It is also critical to identifying those who may be most at risk of abuse, violence, neglect and exploitation or who may be vulnerable to other risks, such as service provider failure. Families and carers, in particular, can play an important role supporting individuals to make choices about their supports.
Participants will take part in a formal risk assessment during the plan development process. They will be asked a range of questions about their personal perceptions of their own safety, their informal safeguards and the level of assistance they need. There may also be questions about their experience managing their finances.
Based on information provided by the participant, their local area coordinator, an information gatherer or their NDIA planner, the NDIA will consider the participant’s vulnerability to exploitation, abuse and financial risk and the assistance required to support implementation of their plan or to manage their funding. The NDIA planner will then work with the participant to discuss ways of managing risk and build strategies to reduce risk into plan implementation.
Supporting decision-making: supporting participants to develop their self-advocacy and decision-making skills, and to understand their rights, is vital to ensuring they can use the information that is available to them to make informed choices.
If people with disability need more assistance to exercise choice and control (determined by their risk assessment), their plan could provide access to specific supports to build their knowledge and ability to make choices, understand their plan and exercise their rights, when required. This could include training courses and mentoring programs, and facilitating access to local support networks so people can learn from the experiences of others. If a participant needs supported decision-making, this can also be funded through their plan.
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While supported decision-making will be encouraged and provided, there will be provision for nominees to be appointed when necessary.
Plan management: a participant’s support plan is a central vehicle for identifying opportunities to build and strengthen their knowledge, skills and relationships. For the purposes of plan management, participants will also be provided with different levels of support based on the outcome of their risk assessment.
Participants will be able to self-manage if they wish to, and there are no insurmountable financial and personal risks. These participants will take responsibility for the implementation of their own plan, including paying providers and hiring their own staff, or engage a plan manager to assist them with the financial management of their plan. A plan manager offering financial management will help mitigate financial risks but is not expected to have line of sight to mitigate broader risks. A proportion of participants will have their funding managed by the NDIA but not require any assistance to choose providers or change providers. In this case, the NDIA’s role will be to make payments to providers. Some participants will implement their plan with the support of a local area coordinator. A key part of the local area coordinator’s role will be directing participants to relevant mainstream and community supports and providing some guidance for participants to select suitable providers. Participants who are vulnerable to exploitation or abuse or lack the confidence and capabilities to manage their plan will have access to a support coordinator to help them implement their plans. Support coordinators will work intensively with participants to shortlist and investigate suitable providers, choose preferred providers, create an agreement with the providers, and to move to a different provider if required. Support coordinators will be registered NDIS providers.
An important role of both local area coordinators and support coordinators will be assisting participants to understand the differences in the level of risk associated with different types of providers. This is because the quality assurance requirements providers are required to meet will depend on the types of supports they provide and the participants they support. Some self-managing participants may choose to use providers that have not undergone any NDIS-specific quality assurance and are not registered. Others may feel that they want and need a higher level of assurance because of their personal circumstances. Local area coordinators, support coordinators and other planners could help participants assess what is best for them.
Plan review: a participant’s plan will usually be reviewed after 12 months, although a plan review can be initiated before this time if there is a change in circumstances. Plan reviews provide an opportunity to assess the supports being provided and whether they are proving effective. The review is also an opportunity to reassess risk in relation to a participant, and the strategies for managing risk.
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Monitoring and evaluation: a key factor for the success of the NDIS will be a capacity to respond flexibly and in a timely way to emerging issues on quality and safety. This includes responding immediately in crisis situations.
The effectiveness of the NDIA’s role in this area will be monitored through the oversight and governance arrangements applying to it, including through the National Disability Insurance Agency Board, the COAG Disability Reform Council and the Joint Standing Committee on the NDIS. Issues that have implications for both the NDIA’s responsibilities and the Framework could also be highlighted through own motion investigations undertaken by the NDIS complaints commissioner and NDIS registrar, so that appropriate cross-agency responses can be developed.
Accountability: there are a number of different groups involved in safeguarding participants while they develop and implement their plans, including NDIA planners, outsourced local area coordinators, information gatherers and participants themselves. However the NDIA will be accountable for agreeing to a participant’s plan based on a considered risk assessment, including identification and implementation of appropriate safeguarding strategies to manage and reduce risk.
Linkages: local area coordinators and support coordinators will have a role in supporting some participants to achieve their goals and to choose providers.
The NDIS complaints commissioner can be alerted if a plan review process identifies complaints about a particular provider, and the NDIS registrar can also be alerted if the process identifies issues with a provider’s practice that require investigation. The NDIS registrar will also have a role in investigating issues that emerge with service agreements (for example, providers locking people into long support periods or preventing people from making their complaints public), so these can be addressed.
2.2.2 Funding advocacy services
The context
Formal individual advocacy has an important role in supporting people with disability to identify and speak up about their concerns when something is not right, and in protecting people from discrimination, abuse and neglect. Formal systemic advocacy also plays an important role in identifying and addressing system-level issues.
Advocacy for people with disability can be defined as speaking, acting or writing with minimal conflict of interest on behalf of the interests of a disadvantaged person or group to promote, protect and defend the welfare of, and justice for, either the person or group by:
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acting in a partisan manner (i.e. being on their side and no one else’s) being primarily concerned with their fundamental needs remaining loyal and accountable to them in a way that is empathic and vigorous (while respecting the rights of others), and ensuring duty of care at all times.
Current policy
The Commonwealth Government funds advocacy services through the National Disability Advocacy Program. Some states and territories also fund complementary advocacy programs to build skills and capacity and to support individuals to promote and protect their human rights.
What is needed to support participants to stand up for their rights
In the consultation, many stakeholders identified an ongoing need for independent advocacy services to protect and promote the rights of people with disability. Stakeholders said that, at the individual level, independent advocates provide people with disability ‘someone in their corner’, who is independent of providers and the NDIA. At the system level, they help to identify and address issues affecting the rights of multiple people with disability.
Some of the supports the NDIS funds through individual plans and information, linkages and capacity building overlap with some supports traditionally provided by advocacy services. The National Disability Advocacy Program needs to be further developed to ensure it is complementary to the supports and safeguards made available through the NDIS.
Quotes from the consultation
Many people living with disability will require considerable support to make decisions and exercise real choice and control in their lives. Advocacy services are often fundamental in this process… self-advocacy, independent supported advocacy and the active participation of disabled person’s organisations and peer support groups are best positioned to facilitate real choice and control. [National Ethnic Disability Alliance, submission17] The role of advocacy organisations is essential in building capacity of people from NES/CALD background with disability. Advocacy organisations play a role in supporting these people…to develop skills and capacity through information sessions, skills development workshops, and self-advocacy skills development. [Multicultural Disability Advocacy Association of NSW, submission18]
17 National Ethnic Disability Alliance submission to NDIS Quality and Safeguarding Framework consultation, 2015. Available online at https://engage.dss.gov.au/ndis-qsf-submissions/1430369407/ 18 Multicultural Disability Advocacy Association of NSW submission to NDIS Quality and Safeguarding Framework consultation,
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How it will work
The Commonwealth Government will fund advocacy services outside of the NDIS through the National Disability Advocacy Program. Through this, advocacy will remain accessible to all people with disability, regardless of whether they are eligible for the NDIS.
A Transitional National Disability Advocacy Program Framework has been developed to outline the principles (see Box 2) and outcomes for advocacy services during the transition to the NDIS.
Box 2: National Disability Advocacy Principles
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All people have the right to be free from abuse, neglect and discrimination.
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All people have the right to pursue any grievance or complaint. All people have the right to privacy, dignity and confidentiality.
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All adults have an equal right to make decisions that affect their lives, and to have those decisions respected.
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Children and young people with disability have the right to participate, in whatever capacity, in decisions that impact on their lives.
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Adults with disability are presumed to have capacity to make and take part in decisions affecting all aspects of their life.
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Disability advocacy is inclusive of legal advice and representation where it is required to assist people with disability to exercise their rights.
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Facilitating effective and appropriate communication for people with disability is an essential component of disability advocacy.
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The will, preferences and rights of people with disability who may require decision-making supports must direct the decisions that affect their lives.
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Diversity and difference – including the practices, values, beliefs and cultures of individuals and families – must be respected.
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Disability advocacy is an essential tool for fostering the full and effective participation and inclusion of people with disability in society.
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The role of families, carers and other significant persons in the lives of people with disability is to be acknowledged, respected and resourced.
Safeguards
- Access to independent individual and systemic advocacy is an essential component of a quality and safeguarding system, assisting to identify and act on concerns, and protect people with disability from abuse, neglect and discrimination.
In 2016, DSS consulted people with disability, advocacy services and other interested parties to help shape the future of the National Disability Advocacy Program. The consultation will help ensure the program provides appropriate services in a changing disability environment, including the introduction of the NDIS.
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2.2.3 Supporting self-managing participants
The context
Providing an option for participants to self-manage their package gives them choice and control and helps improve their outcomes.19 It is also intended to provide greater flexibility: participants can choose workers or providers that are not part of the formal social care system, but may be better suited to providing support because of their attitude, personal compatibility or common interests. There is a need however for safeguarding mechanisms to minimise potential harm and meet governments’ duty of care.
Current policy
The current NDIS Act 2013 enables participants to self-manage their supports and take responsibility for:
choosing and arranging supports paying providers keeping records and receipts for services provided, claimed and paid, and reporting to the NDIA on the amount spent on items in their NDIS plan.
The NDIS Act 2013 provides safeguards around who can self-manage. Participants are able to self-manage if they have the capability to manage their own plan, or a nominee who can manage their plan on their behalf. Those who self-manage can choose to access unregistered or registered providers. A plan manager offering financial management will help mitigate financial risks but is not expected to have line of sight to mitigate broader risks.
What safeguards are needed for self-managing participants?
In the consultation, safeguards around who can self-manage and plan were seen as important, but opinion was divided about the level of safeguards that should apply to workers and providers delivering supports to self-managed participants. Some stakeholders argued that providers supporting self-managing participants should be required to comply with the same requirements as registered providers, or a limited subset of these, and that workers should be screened. They believed that this would provide a level playing field for providers, support better outcomes for participants, and provide protection against workers known to have committed abuse or neglect. Others suggested the emphasis should be on capability building, and that self-managing participants should be allowed to choose any provider other than close family members. They believed that this would best reflect the NDIS principle of choice and control, enable participants to choose the provider that best meets their needs and preferences, and maximise access to support.
There was agreement on the importance of providing information, resources and supports to self-managing participants to help them maximise the benefits and reduce any potential
19 Productivity Commission (2011), Disability Care and Support, Appendix E.
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risks. Likewise, the Independent Advisory Council of the NDIS has recommended that clear information be provided to help people use self-managed options and that training be made available. Information needs may include negotiating with workers and providers, budgeting and managing finances, understanding the advantages and disadvantages of choosing registered and unregistered providers, recruiting and managing staff, and participants’ responsibilities as an employer when directly employing workers (including wages, superannuation, occupational health and safety, working conditions, and insurance requirements).
Some participants may also choose to employ a personal assistant or intermediary organisation (such as a cooperative) through their plan to help manage their budget. In Europe, where these types of organisations have been used, there is anecdotal evidence that they can help reduce the risks of self-management, however their effectiveness has not been evaluated. Evidence also indicates that people without the capacity to act for themselves using self-management systems through third parties may be at greater risk of financial exploitation, as well as significant levels of unreported abuse, exploitation and neglect.20
Illustrative quotes from the consultation
For a number of years [our son] did receive services from providers. The difficulties we had were that there was always someone different turning up and we never knew them intimately. The people who worked with him, the people who came, often did not have enough information about [him] and what was going on. There was no continuity from day to day. If [he] had a seizure on the Tuesday, no one knew on the Wednesday what to do. It was just impossible. If a worker had an accident on the way… no one turned up, he’d scream for two hours. If they couldn’t come for sickness, they weren’t able to provide another worker in time. It just did not work. Therefore, [he] went to individualised funding. [He] selects his own workers. That’s important because he then knows who’s coming in to support him. They are reliable. He has currently five support workers and if one can’t turn up, they’ll ring another one who can. It just works perfectly. I would never go back to a system where there’s a provider trying to provide staff to our son. It does not work. [Parent, Adelaide, public meeting]
20 Goodwin, A., (2014) Churchill Fellowship Report.
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Isn’t NDIS all about choice for the client? So shouldn’t they have the option to choose whoever? Obviously they would have more protection if they went with someone who was a registered provider, but at the end of the day it’s all about choice and freedom of choice. [Provider, Geelong, public meeting] Registered providers have to meet certain standards to be accredited to legally provide selected services. Unregistered providers, such as family and friends, may not have the training to provide services that are safe and reliable. There will be unscrupulous providers looking to make money out of this scheme and also family members may see this as an opportunity to make a quick buck. Who is going to assess the validity of the services provided? Who is going to monitor unregistered providers? [Person with disability, Queensland, questionnaire]
How it will work
Eligibility for self-management: Under the NDIS Act 2013 and NDIS Rules, self-management can be disallowed when the participant is an insolvent under administration, or self-management would present insurmountable financial and personal risk to the participant. These arrangements will continue in the full scheme. Consideration of whether a participant is able to self-manage takes into account:
whether material harm, including material financial harm, could result if the participant were to manage the funding for supports the vulnerability of the participant to physical, mental or financial harm, exploitation or undue influence the ability of the participant to make decisions the capacity of the participant to manage finances, and whether a court or a tribunal has made an order under a Commonwealth, state or territory law under which the participant’s property (including finances) or affairs are to be managed, wholly or partly, by another person.
A participant with a plan nominee can have their nominee self-manage their plan on their behalf, but the NDIA can disallow this if it is not satisfied that the nominee will act in the participant’s best interest or has the capacity to manage finances.
Before making a determination that self-management is not possible, NDIA planners must consider whether any potential risks can be managed through the participant’s informal networks or through safeguarding strategies.
The NDIA will ensure, where required, self-managing participants have access to support and resources to build their capacity to self-manage. Some participants may not need any funded supports to manage their plans. Those who do need a greater level of support could be provided with funding as part of their plan to learn specific skills, for example, how to budget and how to meet their obligations as employers.
Where self-management of some supports would pose a risk, participants may be able to self-manage certain supports while the NDIA manages others, or they may be able to use a manager or intermediary organisation funded in their plan to help manage their budget. For some, this could be a personal preference, because being an employer creates
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obligations. For example, a participant might wish to manage their NDIS funding to pay for transport to appointments, but would prefer not to have responsibility for employing support workers directly. Others may choose to have the NDIA manage some of their supports because they will have more control to change their provider if they choose, or they feel that the NDIA will make sure that the providers are safe and will provide a quality service. Participants may also self-manage, but choose a supplier that is registered and has met the quality standards expected for the type of supports they offer.
In other cases, risk around self-management may be effectively managed by having regular contact between the NDIA and the participant or shortening timeframes for plan reviews.
It is important to note that, while the provision of additional supports may help mitigate the risks entailed in self-management, the nature of the additional supports should be tailored to the risks for each participant. The appointment of a financial intermediary for example, may assist with payment issues, but would not in itself address risks relating to poor decision-making about a provider. The potential for access to unregistered providers through a registered plan manager or intermediary service will also need to be clearly articulated and the risks communicated to self-managing participants.
The effectiveness of these safeguards will be reviewed once there is more evidence about self-management.
Information provision and supports to assist with self-management: NDIA planners will provide those who wish to self-manage information about the rights and responsibilities of the role, and discuss with them potential risks and management strategies. When needed, plans for self-managing participants will include resources to assist them to select providers who will best meet their needs and negotiate with these about how they would like their supports delivered.
Monitoring: the NDIA will develop monitoring processes to ensure the arrangements that self-managing participants have in place are working. This will take place in the context of plan review.
Complaints: self-managing participants will be able to make complaints about their providers to the NDIS complaints commissioner, regardless of whether the provider is registered with the NDIS registrar.
Workers: self-managing participants who are hiring workers directly—rather than through a provider––will be encouraged to ensure workers have screening clearances. Working With Children Checks (or equivalent) are currently required in all jurisdictions and parents managing their child’s plan will be encouraged to sight those checks when hiring workers directly. Additionally, in certain jurisdictions workers in particular occupations are required by law to have a Working with Vulnerable Persons Check or a Working With Children Check. Workers must comply with this requirement.
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The NDIS code of conduct will apply to all workers whether they are directly employed by self-managing participants, employed by an unregistered provider or employed by a registered provider.
Providers: the NDIS code of conduct will apply to all providers, regardless of whether they are registered. There will also be some additional safeguards around specific types of support that may pose a higher risk. Where current law requires that an allied health practitioner be registered with the Australian Health Practitioner Regulation Agency (AHPRA), participants will only be able to seek this type of support from a professional registered with AHPRA. Where the type of support is high risk and should only be delivered by a competent professional, but not subject to existing requirements (either AHPRA or self-regulating allied health professions), participants can only seek the support from a provider registered with the NDIS registrar. The full list of high-risk supports is yet to be finalised, but is expected to include allied health services not covered by AHPRA registration, services involving the implementation of behaviour support plans and restrictive practices, and early childhood intervention services.
2.3 Corrective
2.3.1 Responding to complaints
The context
An effective complaints system is needed to give participants confidence to raise any issues that they encounter, and to ensure that individual workers’ or providers’ practice is rectified or they are excluded from the NDIS market, when necessary. This will support development of an effective and competitive NDIS market and ensure participants have access to high-quality supports that help them achieve their goals.
Complaints management systems are a key protection in most markets. A strong consumer protection Framework can be an important way of building confidence in the market when deregulating or privatising service provision. It can help to ensure that when things go wrong, something is done about it. It can also drive change and improvements across the system.
In the NDIS, participants are customers and purchasers of products and supports. Customers who are not happy with a product or service can raise their concerns with the provider. However, experience across many different sectors suggests people will not necessarily exercise their right to complain.
People with disability can face multiple barriers to making a complaint about their provider either through a providers’ internal complaints system or a universal complaints systems. These include lack of experience asserting their rights as consumers, fear of retribution, negative experiences with complaints systems (including not being believed) and difficulty
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communicating what happened without support. Additionally, in the case of violence, neglect and abuse, people can face substantial barriers to making a complaint.
To address these, measures are needed to give participants the confidence to speak up and the skills they need to navigate complaints systems. The developmental measures included in the NDIS Quality and Safeguarding Framework will help participants to understand what they should expect from providers and build their capability and confidence to stand up for their rights. However, there will also be a need to focus on detecting problems early so they do not escalate, and on identifying and correcting serious problems, even when participants do not or cannot complain about them.
A strong regulatory system will help ensure that providers respond appropriately to complaints and that corrective action can be taken when necessary. It will also enable regular analysis of complaints data to identify systemic issues and drive system improvements. This will be particularly important in the context of the developing NDIS market.
In markets where there is strong competition, providers are more likely to take steps to obtain consumer feedback. However, in less competitive markets or in situations where consumers are less likely to communicate with each other, providers have fewer incentives for effective complaints handling and other feedback mechanisms. It will take time to build a competitive NDIS market. New issues are also likely to arise as providers and participants adapt to the new environment, new providers enter the market and some existing providers exit or merge with others.
An effective complaints system will support better outcomes for participants, providers and the NDIS market as a whole. Complaints can be an important source of intelligence, leading providers to improve the way they operate and the quality of the supports they offer, thereby helping them to attract more customers.21 Effective internal complaints management can also prevent damage to a provider’s reputation: effective handling of a complaint can turn a disgruntled customer into a satisfied and loyal one.22
Current policy
Current state and territory complaints functions for funded disability services are generally managed through contracts with providers. Some state and territory functions (such as an Ombudsman, a Human Rights Commission or Public Advocate) also have a broader role in responding to complaints.
Protections for consumers of products and services are also available through universal systems. In the NDIS, participants will have a more direct role in purchasing products and supports, and the consumer guarantees in the Australian Consumer Law are expected to
21 For a useful literature review see Larivet, S. and Brouard, F. (2013), ‘Complaints are a firm’s best friend’ in Competitive intelligence, analysis and strategy: creating organisational agility, Sheila Wright (Ed), Routledge. 22 See for example Buttle, F. and Burton, J. (2002) ‘Does service failure influence customer loyalty.’ Journal of Consumer Behaviour, 1, pp.217–227.
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cover most disability related services. State and territory governments have also put in place a range of sector specific measures.
Australian Consumer Law prohibits certain types of conduct that may lead to consumer detriment. Prohibited conduct includes, but is not limited to, misleading and deceptive conduct, false or misleading representations, use of unfair contract terms, unconscionable conduct, and undue harassment or coercion in relation to the supply of or payment for goods or services. These prohibitions apply to suppliers of disability supports in the same way that they apply to other industries. Under Australian Consumer Law, when you buy products and services they come with automatic guarantees that they will work and do what you asked for. These rights are known as the Australian consumer guarantees (see Box 3).
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Box 3: Australian consumer guarantees23 Under Australian Consumer Law, businesses automatically guarantee the goods and services that they supply to consumers. A person acquires goods or services as a consumer if the amount paid or payable for those services does not exceed $40,000, or the goods or services are of a kind that are ordinarily acquired for personal, domestic or household use or consumption. Relevant consumer guarantees relating to goods include that: Goods are of acceptable quality (that is, fit for all purposes for which goods of that kind are commonly supplied, acceptable in appearance and finish, free from defects, safe and durable). Goods are reasonably fit for any purpose disclosed by the consumer or represented by the supplier. Goods correspond with any description given in their supply. The manufacturer of goods will take reasonable action to ensure that facilities for the repair of goods are reasonably available for a reasonable period after the goods are supplied. Relevant consumer guarantees relating to services include that services will be: Rendered with due care and skill. Reasonably fit for the purpose for which the services are acquired by the consumer, which the consumer makes known to the supplier. Delivered within a reasonable time if no time period is fixed or agreed. If a business fails to deliver any of these guarantees, depending on the circumstances (i.e. minor or major fault), consumers may have rights for: repair, replacement or refund cancelling a service, or compensation for damages and loss. If you have a minor problem with a product or service, the business can choose to give you a free repair instead of a replacement or refund. When you have a major problem with a product, you have the right to ask for your choice of a replacement or refund. Where any of the consumer guarantees are not met, consumers can: contact the seller or service supplier to seek a resolution of the failure to meet the guarantee. Consumers with disability may do this themselves or with the assistance of a support person (for example, a friend, family member or a disability advocacy organisation) contact the Australian Competition and Consumer Commission (ACCC) or a state/territory consumer affairs regulator to make a complaint. Some state/territory regulators may also assist with advocacy for consumers with disability (e.g. Consumer Affairs Victoria). If it is not possible to reach agreement with the supplier, the consumer can consider taking legal action.
23 Summarised from www.accc.gov.au/consumers/consumer-rights-guarantees/consumer-guarantees, accessed 24 June 2016.
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In 2013, Consumer Affairs Australia and New Zealand agreed to a national project to educate consumers with disability and their families, as well as providers, on their rights and obligations under Australian Consumer Law. The ACCC has taken a lead in developing the project and has engaged with the NDIA, disability support organisations, disability advocates and state disability services commissioners to develop the communication strategy. While the project initially focused solely on NDIS participants, the scope was extended following stakeholder feedback to include other consumers with disability and broader purchases, such as Internet and phone services, building services and health services. The ACCC has released new information guides for consumers with disability about their rights, and for businesses about their obligations under the Australian Consumer Law.
Some NDIS-funded supports will also be covered by industry-based protections. For example, people accessing supports from health professionals registered with the Australian Health Practitioner Regulation Agency (AHPRA) can lodge a formal complaint through the agency if they are not satisfied with their supports. Depending on the nature of the complaint, there may be implications for that individual’s professional registration.
Some other NDIS-funded supports—including those provided by allied health professionals not registered with AHPRA—may be covered by industry-specific complaints mechanisms. For example, Speech Pathology Australia accepts complaints about its members if someone believes that a member has breached the association’s code of ethics.
What’s needed to enable participants to make complaints and have them addressed?
The need for an effective complaints system was a strong theme in the consultation. Stakeholders emphasised the need for an NDIS complaints system that will:
help participants understand their rights and what they should expect of providers give participants the confidence to complain, when needed, by addressing the power imbalances that people with disability can face when raising issues be accessible to all participants be easy to navigate respond to serious incidents as well as complaints enable other stakeholders (such as advocates, community visitors and workers) to make complaints and ensure issues can be addressed when participants are unable or unwilling to make a complaint support the resolution of complaints between providers and participants, when possible, and provide an escalation pathway when needed, and enable the identification of systemic issues and drive improvement actions, including through provider reporting on complaints.
Many people with disability and advocates noted the significant barriers people with disability face in making complaints and having them addressed. In particular, this includes not being believed by authorities when reporting an incident. Stakeholders emphasised the need for effective supports to enable people to complain and have their issues resolved. They
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also stressed the need for there to be serious consequences for providers that behave unethically, are grossly incompetent, or that put the safety and wellbeing of participants at serious risk.
The consultation and impact analysis identified the need for both internal provider complaints processes and an independent statutory complaints body for the NDIS. This approach is consistent with the principles set out in the Harper Competition Policy Review Report.
Requiring registered providers to have their own internal complaints systems will help to encourage provider responsiveness to participants’ needs, service improvement and the timely resolution of issues. Whenever possible and appropriate, it will also give providers the opportunity to respond to feedback and improve their service before an issue is escalated.
An independent statutory complaints body will uphold the rights of people with disability, give participants the confidence to raise issues they have been unable to resolve with their provider, and support resolution. It will help identify individual workers or providers that pose a serious risk to other participants, highlight corrupt or unethical conduct, and be the trigger for corrective action. It will also enable systemic issues to be identified and addressed at both the individual provider and NDIS market levels.
More broadly, this approach should help participants to exercise their rights as consumers within the NDIS market. It should give participants greater confidence to switch to another provider if they are unhappy; thereby increasing the incentive for providers to be responsive to participants and improving the efficacy and effectiveness of the NDIS market.
The Productivity Commission’s 2008 Review of Australia’s Consumer Policy Framework
suggested, for example, that creating a market in which consumers are willing and able to switch providers and have access to effective redress mechanisms, can contribute to innovation and productivity. Additionally, an effective consumer protection system can have a significant positive effect on the economy over time by:
making it easier for consumers to get problems fixed or compensation from the provider reducing the amount of time and effort consumers need to put into managing their choice of supports reducing legal and other costs for providers dealing with problems, and increasing competition and innovation due to pressure from empowered consumers.
Giving the independent complaints body for the NDIS responsibility for managing serious incident reporting and complaints, as well as the ability to share information with other relevant bodies, will ensure effective coordination within the NDIS regulatory system and a ‘no wrong door’ approach for complaints. This reflects the need—identified in recent
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inquiries—to avoid fragmentation in the system by adopting an integrated, rights-based and person centred approach.24
Illustrative quotes from the consultation
Having an independent body will mean that this body is unlikely to be accused of protecting workers from within the NDIA, service providers etc. People with disabilities, their families/advocates will be more likely to come forward and complain if they feel that their support will not be threatened. [Provider, SA, questionnaire] There is a perception when you have an ABI [acquired brain injury] that the ABI accounts for everything – it’s the ABI’s fault that you have made these things up… We would need an independent specialist service to be believed. [Women With Disabilities Victoria, submission25]
How it will work
The system for responding to complaints in the NDIS will include individual provider complaints processes, an NDIS complaints commissioner, and access to universal complaints systems that all members of the public are able to access, such as Fair Trading bodies.
Provider requirements: registered providers will be required to have effective internal complaints arrangements. Requirements will be proportionate to the size of provider and the risks inherent within their service model.
Providers will be required to keep accurate records of complaints received and how they were responded to, so these can be made available to the complaints commissioner, or other relevant parties, as required. For example, providers subject to third-party quality assurance will need to be able to demonstrate to auditors that their internal complaints resolution process is operating effectively. This could be verified by auditors reviewing complaints documentation and conducting short interviews with participants.
NDIS complaints commissioner: in addition to providers’ internal complaints systems and universal systems, the Commonwealth Government will establish an independent statutory NDIS complaints commissioner.
Scope: the main focus of the NDIS complaints commissioner will be on complaints suggesting that an individual worker or provider has breached the NDIS code of conduct. However, people will be able to raise broader issues about service quality—as well as concerns about safety, abuse and neglect—with the commissioner. This will enable the
24 The Victorian Ombudsman’s (2015) Reporting and Investigation of Allegations of Abuse in the Disability Sector: Phase 1 - The Effectiveness of Statutory Oversight and Phase 2 – Incident Reporting; Parliament of Victoria’s Family and Community Development Committee’s (2015) Interim Report on the Inquiry into Abuse in Disability Services; and Parliament of Australia’s Senate Standing Committee on Community Affairs (2015) Report on the Inquiry into Abuse and Neglect Against People with Disability in Institutional and Residential Settings. 25 Women with Disabilities Victoria submission to NDIS Quality and Safeguarding Framework consultation, 2015. Available online at https://engage.dss.gov.au/ndis-qsf-submissions/1431658324/
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commissioner to identify emerging issues in the NDIS market and make recommendations to government.
The commissioner will receive complaints about all providers of NDIS-funded supports, regardless of whether they are registered, as well as complaints about providers of information, linkages and capacity building supports and government-funded advocacy services. The commissioner will not cover complaints about the NDIA, or NDIA-funded local area coordinators, because these can be addressed through existing regulation such as the Administrative Appeals Tribunal and the Commonwealth Ombudsman. The commissioner will refer any complaints received about the NDIA to the relevant authority. The commissioner will also be responsible for receiving and acting upon serious incident reports from NDIS providers (see Part 2.3.2).
Who can complain: anyone may raise a complaint with the commissioner about a provider of NDIS-funded supports. This may include a participant, a family member, an individual worker or provider, an advocate or community visitor, a professional or a member of the community.
Accessibility: complainants will be encouraged to raise issues with their provider in the first instance. However, complainants will not be required to raise a complaint with their provider before raising it with the commissioner. Complaints will be accepted in various formats to meet the communication needs of people with disability.
Protections: whistle-blower protections will be included in legislation to protect both participants and employees when reporting concerns or raising complaints about providers. Specific provision will need to be made to protect public interest disclosures (for example, by an employee about an employer) and allow feedback to a complainant, subject to appropriate privacy protections (such as the permission of the participant to disclose the information, when this is possible).
Functions: the key functions of the NDIS complaints commissioner will be:
receiving and responding to complaints and referring matters to other relevant authorities when required providing information and advice about complaints processes to NDIS participants providing information and training about complaints handling to providers and advice related to the requirement that providers have adequate internal complaints systems reviewing complaints data to identify systemic issues to be addressed reporting publicly on the number, types and causes of complaints and the outcomes of complaints handling processes receiving, responding to and reporting on serious incident reports from providers, and referring matters to other relevant authorities when required, and investigating potential breaches of the NDIS code of conduct and coordinating the response where there are implications for registration or other regulatory bodies.
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Powers: the commissioner, taking a risk-responsive approach, will have discretion as to whether to investigate a complaint, suggest the complainant attempt to resolve the issue with the provider as a first step, refer the complaint to another body, decide that the matter was vexatious, or decide that there is insufficient information with which to take action. The commissioner will also have the authority to:
obtain information and internal provider records when investigating a complaint provide conciliation between parties when required share information with the registrar, senior practitioner and worker screening units, and conduct own motion investigations, reviews or inquiries into a particular provider or group of providers.
Universal and other complaints systems: universal complaints and redress mechanisms – including Fair Trading, professional and industry bodies – will continue to be available to participants. These bodies are responsible for ensuring their complaints processes are accessible to people with disability, as required under the National Disability Strategy 2010
- Anti-discrimination and human rights legislation overseen by the Disability Discrimination and Human Rights Commissioners will provide additional avenues for raising a complaint.
Other protections that may come into play when concerns arise include services provided by public advocates, disability advocates and guardianship tribunals. The NDIS complaints system will not replace existing functions in the states and territories with a broader scope (such as an ombudsman, a Human Rights Commission or a public advocate). The NDIS complaints system will also need to interact with industry complaints bodies.
Any complaints about the commissioner would be handled by the Commonwealth Ombudsman.
Linkages: local area coordinators, peer networks, advocates and community visitors will continue to support participants to understand their rights and raise issues when they encounter them.
The commissioner will establish relationships and referral pathways with other relevant complaints bodies and elements of the NDIS regulatory system to ensure there is ‘no wrong door’ for making complaints about providers of NDIS-funded supports.
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The commissioner will have the authority to refer:
matters relating to non-compliance with the NDIS code of conduct or provider quality assurance to the NDIS registrar serious incidents relating to inappropriate or unauthorised use of a restrictive practice, or that indicate unmet behaviour support needs to the NDIS senior practitioner matters relating to individual workers to the screening function, and other matters to relevant authorities (such as the police, consumer affairs agencies and other regulatory bodies) as needed.
When the commissioner refers a matter to another authority, the commissioner will be responsible for tracking progress in resolving the complaint and ensuring it has been resolved before closing the case. In some cases, responses may be required from multiple authorities (e.g. the NDIS registrar, police and worker screening units). In these situations, it will be the responsibility of the complaints commissioner to lead and coordinate a cross authority response. Arrangements will be in place to ensure information is handled appropriately.
2.3.2 Responding to serious incidents
The context
Serious incidents can be defined as events that disrupt service provision or threaten the safety of people or property.
Serious incident reporting systems are in place in many sectors in which there are significant safety risks associated with products (for example adverse drug reactions and therapeutic devices) or the positions of power that staff hold (for example registered health professionals and staff working with children). Serious incidents can have a significant impact on participants, workers, family, carers, community members and providers. Serious incident reporting requirements recognise the need for:
provider responsibility to prevent serious incidents wherever possible provider capability building to ensure serious incidents are prevented where possible, handled effectively and reflected on when they occur so they can be avoided in future specific requirements around reporting to capture incidents that would not likely be raised through the complaints systems because of the barriers people with disability face to making complaints external oversight to encourage timely and effective responses cross-agency collaboration to provide an effective response to incidents corrective action to be taken when necessary, and data to enable systemic issues to be identified and addressed.
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Oversight—combined with effective provider practice and regular analysis of data—can reduce preventable deaths, serious injuries and other serious adverse incidents through early intervention and provider capability building.
Serious incident reporting systems typically recognise that not all serious incidents are avoidable. They can occur due to external factors or reasons that are not under an organisation’s control. In these cases, the issue is not that the incident occurred, but how well the response was managed.
Current policy
Current serious incident reporting requirements for funded disability services are generally managed through funding agreements, except in Western Australia, New South Wales and the Australian Capital Territory where there are requirements in legislation. Definitions of serious incidents that must be reported differ between jurisdictions. Most systems focus on the most serious types of incidents. However, some take the view that less serious incidents can escalate rapidly if not managed effectively, and that patterns of less serious incidents can highlight broader systemic issues.
What’s needed to prevent and effectively respond to serious incidents
Recent inquiries into abuse in institutional settings have emphasised the need for providers to have effective internal processes to prevent and respond to serious incidents. System-level oversight is required to ensure serious incidents are thoroughly investigated, responses are coordinated, and systemic issues are identified and addressed. Similarly, in the consultation there was strong support for both internal processes for handling serious incidents and external reporting and oversight.
In the course of consultation, some stakeholders said the term ‘serious incident’ was misleading and tended to downplay the significance of these kinds of events. It was suggested that the term serious incident:
…dilutes the reality of violence and harmful practices and often leads to different, and often highly inappropriate, responses for people with disability – the situation is “written off” as a service incident and only investigated internally. The situation is not referred to the police or is not taken seriously by the police; people with disability do not receive the appropriate or same supports that are available to others in the community, such as sexual assault or trauma counselling.26
The term `serious incidents’ is used in many different sectors and reflects the fact that serious incident reporting has several different purposes. The scope of the term covers events, such
26 Women With Disabilities Australia and People with Disabilities Australia submission to NDIS Quality and Safeguarding Framework consultation, 2015. Available online at https://engage.dss.gov.au/ndis-qsf-submissions/1435277763/. This was also a recommendation in the Inquiry into abuse in disability services: final report, by the Family and Community Development Committee of the Parliament of Victoria, Chapter 2.
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as deaths in care, which are required to be reported regardless of cause and which are not necessarily the result of abuse.
It is important that the NDIS Quality and Safeguarding Framework recognises the serious nature of these incidents by providing a means to prevent them when possible, manage them effectively when they occur, and ensure corrective action is taken when necessary. A serious incident should trigger a response that seeks to address the wellbeing and immediate safety of the people involved, and takes the opportunity to review and improve operational practices as appropriate to reduce the risk of further harm. Both the response and evaluation should focus on the impact of the incident on the client, and the outcome (in terms of client wellbeing) that was achieved as a result of any remedial action.
Input from Ombudsmen into the Senate Standing Committee on Community Affairs (2015) Inquiry into abuse and neglect against people with disability in institutional and residential settings emphasises the need for capability building, encouraging a strong reporting culture, and ongoing monitoring to address serious incidents. The New South Wales Ombudsman’s submission to the inquiry flagged a long history of concerns with the sector’s capacity to effectively manage serious incidents. These included inconsistent processes and systems, ongoing failures to address key risk factors, inadequate training for staff to recognise when serious incidents have occurred, inadequate responses to incidents including failure to report suspected crimes to the police, and failure or significant delays in advising family members of incidents. The Victorian Ombudsman identified similar issues and noted that there appears to be substantial under-reporting of serious incidents. The New South Wales experience suggests that legislative requirements around serious incident reporting27 can increase reporting. Early evidence from the New South Wales experience also indicates that many more cases of abuse, violence and neglect have been identified through serious incident reporting than through the complaints system.28
A shared definition of serious incidents is needed. While using a broad definition could enable information about lower-level events to be used as a warning system, employing a narrower definition will ensure that the new system is not overloaded with reports and the most serious incidents can be investigated.
Illustrative quotes from the consultation
When women report violence their concerns aren’t always taken seriously, they aren’t believed and it rarely goes to court. We need some kind of balance to ensure that we are safe, without necessarily going to court. [Woman with disability, workshop] I am concerned that a lot of incidents get managed in house and the investigation aspects might be less than perfect or dubious, or just internal. So I think having an impartial external body for serious incidents is quite an important aspect. [Provider, Sydney, provider meeting]
27 Refer to Part 3c of the NSW Ombudsman Act 1974 – amended. 28 The NSW Ombudsman’s Annual Report 2014–15 noted that between 3 December 2014 and 30 June 2015, the Ombudsman received 350 reports of disability serious incidents, and 21 complaints relating to reportable serious incidents.
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How it will work
Internal processes: providers have primary responsibility for preventing and managing serious incidents, so they are expected to have processes for this as part of their risk management system. Registered providers will need to demonstrate that they have internal investigation and reporting arrangements to ensure that serious incidents are recorded and management takes corrective actions to prevent recurrence. As not all serious incidents will be avoidable, providers will need to ensure that their employees understand what constitutes a serious incident and what to do if one occurs. When an incident does occur, providers need to be ready to take immediate action to ensure the safety of the people in their care and their employees (including providing first aid or calling an ambulance). Depending on the nature of the incident, they may also need to notify the police and other appropriate authorities. In all cases, they will need to assess the impact on the client, whether the incident could have been prevented, how well they managed the response, and what, if any, changes they need to make to prevent further similar events occurring or minimise their impact. Providers will be required to make records available to auditors as part of the quality assurance process and to contribute to investigations relating to serious incidents.
Who will report: in the NDIS, all registered providers will be required to report serious incidents to the NDIS complaints commissioner. This will not replace obligations to report suspected crimes to the police and other relevant authorities. Reporting requirements would be introduced in stages, starting with higher risk providers.
Scope of reporting: serious incidents will be broadly defined as:
incidents involving fraud incidents of alleged physical or sexual assault of a participant committed by an employee incidents of alleged physical or sexual assault of a participant committed by another participant while in the care of the provider culpable neglect serious unexplained injury death of a participant (irrespective of cause), and unauthorised use of restrictive practices.
Reporting systems: an online reporting system will be developed which will be managed by the complaints commissioner and, subject to compliance with privacy laws, be accessible at different levels to different stakeholders. For example, when a serious incident suggests issues with behaviour support or unauthorised use of restrictive practices, the senior practitioner should have access to the report. The commissioner will therefore need capacity to share information and coordinate responses with other elements of the NDIS regulatory system and with relevant external authorities.
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Functions and powers of the complaints commissioner: for serious incidents, the complaints commissioner will:
receive and assess serious incident reports work with providers to develop a positive reporting culture build provider capability to prevent and respond to serious incidents, including working with providers to develop a service response to incidents if necessary recommend compliance action to the NDIS registrar when required refer matters to worker screening units, the NDIS registrar, the NDIS senior practitioner or other relevant authorities, and coordinate the response review serious incident reporting data to identify systemic issues to be addressed, and report publically on the level of serious incidents and prevention strategies.
Linkages: as well as the capability building role of the commissioner, developmental measures, such as the National Disability Services Zero Tolerance Project, will help providers develop positive organisational cultures that do not tolerate abuse, neglect and exploitation. Providers’ recruitment, training and supervision processes—as well as worker screening requirements—will help to prevent serious incidents from occurring. Registered providers’ internal processes for handling serious incidents will be audited or verified through quality assurance processes.
The NDIS complaints commissioner will be able to refer matters to, and share information with, the worker screening function, the NDIS registrar, the NDIS senior practitioner or other relevant authorities, and will follow up to ensure matters have been responded to.
2.3.3 Community visitors
The context
Community visitors can play an important role in promoting and protecting the rights and wellbeing of people with disability, identifying issues that people with disability may not otherwise raise, providing an early warning system to prevent abuse and neglect, and providing an escalation pathway for issues to be addressed. The value of the community visitor role arises from their ability to visit services (that are within the scope) without advance notice and enquire into conditions, often on the basis of concerns they have been alerted to by residents’ families, friends or workers. Importantly, visitors are able to identify problems that have not been reported by families, friends or workers.
Current policy
Community visitors are generally statutory appointees who make in-person visits to prescribed disability and mental health services. However, existing state and territory schemes have varying scope. Additionally, some have paid staff and others use volunteers.
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What’s needed to support participants in the changing NDIS environment
There was considerable support in the consultations for a community visitor type function within the NDIS Quality and Safeguarding Framework. The majority of providers were generally supportive of community visitors, indicating their assistance had been helpful in resolving complaints. Providers also indicated that the additional workload associated with their visits was minor.
However, the consultation also raised questions about how community visitors will fit within the changing disability system, and which of the existing state and territory models are most appropriate. As large residential services become less common and new national quality and safeguarding measures are introduced, there is a need to consider the scope of the community visitor function and how it integrates with other escalation pathways and oversight mechanisms. There is also a need to confirm whether community visitors should be volunteers or paid visitors, what training community visitors need, and the resourcing levels required.
How it will work
Existing state and territory community visitor schemes will continue during the transition to the NDIS, and an independent evaluation of the schemes will be undertaken during this period. The results of the evaluation will be used by the Disability Reform Council to inform decisions about the role of community visitors in the NDIS.
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- Workforce The following developmental, preventative and corrective measures are designed to promote a safe and competent workforce and ensure people who are unsafe are not able to support NDIS participants.
3.1 Developmental
3.1.1 Building a skilled and safe workforce
The context In 2015, it was estimated that about 74,000 full-time equivalent workers were employed in the disability sector. About 38% were casual employees, 35% permanent part-time employees, 23% full-time permanent employees, and 4% on fixed term contracts. 29 Over 80% of the disability service workforce has a Certificate III or higher qualification, although not necessarily in disability. The majority (83%) of the workforce was female and 50% were aged 45 or older.30 On the whole, workers were older and more highly educated, and less likely to be from an Aboriginal and Torres Strait Islander or non-English speaking background than the participants they support.31
To meet the growth in demand under an NDIS, the workforce will need to more than double (to an estimated 162,000 full-time equivalent workers) by full scheme in 2019–20. Roles are likely to change and require more flexibility under the NDIS. Workers from diverse backgrounds will also need to be attracted to the sector to help address the barriers for people from particular groups. For example, people from Aboriginal and Torres Strait Islander and culturally and linguistically diverse backgrounds can face specific barriers to accessing appropriate supports.
As the workforce grows and changes, it will be important for employers to ensure workers have the right attitudes, knowledge and skills to effectively support participants, and to prevent and detect abuse and neglect.
Current activities Governments and the NDIA have already begun working with the sector to support growth and capability development, recognising that recruiting and training staff is predominantly an employer’s responsibility.
29 NDS (2015), State of the Disability Sector Report. 30 Martin, B. and Healy, J. (2010), Who Works in Community Services? A Profile of Australian Workforces in Child Protection, Juvenile Justice, Disability Services and General Community Services, NILS, pp. 126–127 31 NDS (2014), Roadmap to a Sustainable Workforce – A National Disability Services Report prepared for the Australian Government Department of Social Services, unpublished.
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What’s needed to build a safe and skilled workforce In the consultation, stakeholders expressed divergent views about how to best build a safe and skilled workforce. Some thought all workers, or workers in certain roles (who are not already subject to professional registration requirements by law), should meet minimum qualification or training requirements, demonstrate continuing professional development and/or register with a professional association. The Parliament of Australia’s Senate Standing Committee on Community Affairs (2015) Report on the Inquiry into abuse and neglect against people with disability in institutional and residential settings also recommended that consideration be given to establishing a disability worker registration scheme that would include a stepped system of training and skills requirements. On the other hand, many stakeholders emphasised the importance of workers’ attitudes over their qualifications, as they did in consultations on the development of the NDIS. These stakeholders did not think that a person with qualifications would necessarily provide quality supports, but a person with the right attitude could develop the necessary capabilities. They also identified the potential barriers that minimum qualification requirements could pose to recruiting sufficient job seekers to the NDIS workforce and referred to a lack of agreement about what requirements would apply to all roles in the sector. In particular, questions were raised about the effectiveness of existing qualifications and training for ensuring the delivery of safe, high quality supports.
In this context, introducing mandatory qualification requirements for all workers would not reflect the views of many participants and their families and would likely inhibit the growth of the sector. It is more appropriate to introduce requirements for specific supports. All workers would complete an orientation module, which would ensure that these workers are familiar with the principles underpinning the NDIS and the risks of providing supports, including issues related to abuse and neglect. At the same time, other strategies can support further capability building in the sector.
Providers will also need to ensure their recruitment and selection processes (including referee checks) are effective. Some stakeholders, including people with disability and advocates, identified involving people with disability in these processes and providing participants with the opportunity to choose or refuse a support worker as an important quality and safeguarding measure. The Parliament of Australia’s Senate Standing Committee on Community Affairs (2015) Report on abuse and neglect against people with disability in disability services noted the importance of ensuring that staff are gender-appropriate to manage risk and respond to participant preferences (for example, ensuring that intimate personal care of women is provided by female workers).
Providers will also need preventative processes and internal training to develop positive work cultures. Recent reports and inquiries into abuse in institutional settings32 suggest a number of systemic issues in the sector to be addressed, including:
32 These include Victorian Equal Opportunity and Human Rights Commission (2014) Beyond Doubt: The Experiences of People with Disabilities Reporting Crime; Victorian Ombudsman’s (2015) Reporting and Investigation of Allegations of Abuse in the
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a lack of clarity and shared understanding of the definitions of assault and abuse the importance of effective worker training for delivering safe, high quality supports workers not knowing how to report abuse managers covering up rather than addressing problems when they are reported ineffective processes for investigating serious incidents and coordinating with police, and violence becoming normalised because it occurs frequently or is justified as an appropriate way to manage people with challenging behaviours.
In the consultation, stakeholders emphasised the need for leadership, management accountability, ongoing training and supervision processes to ensure the workforce respects the rights of people with disability, aims to prevent harm and is able to respond appropriately if harm occurs.
Illustrative quotes from the consultation
…it is imperative that the disability sector pursues value based and role based employment, rather than more qualifications, if people are to be assisted to lead normal lives. Value based employment means that people with disability will be supported to lead ordinary lives by those with appropriate skills and values. People with these skills and values may be better sourced from the full diversity of people in the community, perhaps through family or school networks, rather than solely from the pool of those with disability or medical qualifications. Role based employment means that support staff may be selected partially based on roles they fill in the community that may directly benefit a person with a disability due to that person’s interests or goals. [Family Advocacy, submission33]
[I have] gone through the interviews with new staff in a service provider who provides support to me and that was very interesting because I could quite easily see during the interview those who would be good for people may not necessarily be for me but for others, and a person who just didn’t sit well and really who should not have been in the industry … I think that should be more prevalent … because we’re the ones who have to live with them, therefore we have a right as a group of people to say well, that person is not going to be okay, but I can see that will work with them. Or I love that person, they will work with them very well, because that in itself is a level of safeguarding that no one has been talking about. [Person with disability, Newcastle, public meeting]
How it will work Strategies to grow the workforce and increase diversity: the Integrated Market, Sector and Workforce Strategy sets out actions to support the development of the NDIS workforce. These include:
governments working with the sector, education authorities and professional bodies to ensure that professional education adequately prepares workers for the NDIS encouraging allied health professionals and others to choose a career in the disability sector (for example, through initiatives such as Carecareers and ProjectABLE), and supporting workforce retention.
The strategy includes a focus on fostering workforce diversity.
Disability Sector: Phase 1 - The Effectiveness of Statutory Oversight; Parliament of Victoria’s Family and Community Development Committee’s (2015) Interim Report on the Inquiry into Abuse in Disability Services 33 Family Advocacy submission to NDIS Quality and Safeguarding Framework consultation, 2015. Available online at https://engage.dss.gov.au/ndis-qsf-submissions/1431915116/
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Orientation module: a compulsory orientation module will be introduced for registered providers delivering supports, including registered sole traders and all employees of registered providers engaged in the delivery of supports. This extends to allied health professionals providing NDIS-funded supports (who could undertake this as part of their continuing professional development requirements). Registered providers will need to demonstrate that their workers have undertaken or are scheduled to complete the module, whether as an e-learning module or as part of their induction and training procedures. Unregistered providers will be able to choose to have their employees complete the induction module to differentiate them from other providers in the market.
The induction module will be made available online as well as in other formats. It could build on existing materials. For example, SkillsIQ has registered a skillset for induction to disability that includes four units, one of which references abuse and neglect. The orientation could cover:
principles and values underpinning the NDIS, including choice and control obligations of providers and workers under the NDIS code of conduct basic legal obligations for workers, including those relating to safeguards (including abuse and neglect), and how to recognise and promote healthy body functioning, including equipping workers with basic awareness to recognise signs of distress or poor health requiring referral (an alternative to first aid training).
Training and capability building: the Integrated Market, Sector and Workforce Strategy includes supports to ensure the workforce has the right skills for the NDIS environment, for example, through the Sector Development Fund.
Provider practices and organisational cultures: providers will need to develop effective recruitment, ongoing training and supervision processes to effectively manage risk and respond to participants. There are already some projects in place to support the development of organisational cultures that prevent abuse and neglect, including the NDS Zero Tolerance Project (see Box 4).
Box 4: Zero Tolerance Project
The Zero Tolerance Project, led by National Disability Services in partnership with the disability sector, gives providers evidence-based guidance on prevention, early intervention and responses to abuse, neglect and violence towards people with disability.
The project provides a curriculum of safeguarding topics for CEOs, boards and senior managers to address. It also includes practical tools and resources for frontline staff and supervisors. Tools developed to date include practice sheets on safer recruitment and screening, and the role of supervision in developing safer organisational cultures that are focused on service excellence.
More information about the project and project resources can be access from the NDS website.
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Child safe organisations: the National Guidelines for Building the Capacity of Child-Safe Organisations encourage organisations to demonstrate their commitment to creating and maintaining child safe environments by adopting particular policies, procedures, practices and strategies. Providers offering supports to children will be expected to comply with relevant child safety arrangements operating within their jurisdiction, including the 2005
National Framework: Creating Safe Environments for Children – Organisations, Employees and
Volunteers.
Linkages: worker screening will supplement provider recruitment processes. Local area coordinators, peer networks and independent advocacy services will have a key role in helping participants to assess information and make decisions.
3.2 Preventative
3.2.1 Screening workers
The context While the primary responsibility for recruiting and monitoring safe employees rests with employers, governments can support and assist providers delivering services under the NDIS to fulfil this responsibility.
Screening is one of a number of standard tools used in recruitment processes to inform whether someone will pose an unacceptable risk to people using a service. On its own, screening is insufficient for preventing abuse and neglect, but it is a necessary element in safeguarding.
Screening focuses on known and probable risk-factors, such as:
a previous history of violence, abuse or neglect against others, particularly against people with disability, children or the aged, indicated, for example, by charges, convictions or Apprehended Violence Orders, and a history of non-disability related crimes or behaviours that suggest they may pose a serious risk.
Screening can operate:
before the person is employed—for example, by requiring potential employees to undergo a Working with Children Check or employers to check they are not on a ‘barred persons list’ to prevent those who pose a high risk from working in the sector or in a particular role while the person is employed—for example, by requiring employees to undergo regular police checks or live monitoring of criminal history and other information, or by excluding a person from future employment in the industry—for example, when they have been dismissed from their job for misconduct.
In principle, risk-based screening can be undertaken by individual employers, commercial screening agencies or government screening bodies. However who does the screening
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affects what information is taken into account, the process and the way the result is used. In particular, enhanced police information is not made available to individual employers or commercial screening agencies for security and privacy reasons. Government-managed screening processes are more effective than employer-managed screening processes because they can take into account a wider range of information, providing a better indication of the potential risk a person poses. The human resources literature across a range of sectors, including disability and children’s services, strongly supports the use of worker screening that takes into account as broad a range of information as possible.34
Current policy All jurisdictions currently require those working in funded disability service providers, as well as those working with children, to undergo some form of screening. Requirements for disability service providers are generally contained in provider funding agreements.
Screening processes for disability workers currently range from criminal history checks conducted by employers to risk-based worker screening. Risk-based screening involves collecting a broad range of information from police and courts about the worker and conducting a risk assessment to evaluate the level of harm posed by a worker. Anecdotal evidence suggests that Working with Children Checks are being used as de facto requirements for all workers in the disability sector by many providers in jurisdictions that don’t yet have a government-managed, risk-based system for screening these workers. Some jurisdictions, such as the Australian Capital Territory, have established Working with Vulnerable Persons Checks that extend beyond the disability sector.
A number of recent inquiries, including the current Royal Commission into Institutional Responses to Sexual Child Abuse,35 have identified inconsistencies, inadequate information sharing and lack of portability of worker clearances across jurisdictions.
What’s needed to protect participants from workers who pose an unacceptable risk The need to replace current requirements contained in funding agreements provides an opportunity to develop a nationally consistent approach to worker screening and consider the findings and recommendations of recent reviews into the issue. These inquiries and other literature have identified a need for a broad range of information to be included in worker screening, including referee checks; criminal convictions; criminal or civil charges not pursued; quashed and spent convictions and other information held by courts, police and child protection agencies; international police checks; allegations of workplace misconduct; and professional disciplinary proceedings. Information gathered should identify and exclude staff who have committed an offence, but do not have a conviction record (because of the barriers people with disability face in accessing the justice system) or a record of formal
34 See for example the literature review prepared for the Royal Commission into Institutional Responses to Child Abuse – Parenting Research Centre and University of Melbourne (2015) Scoping Review: Evaluations of Pre-employment Screening Practices. See also Powers, L.E. and Oschwald, M. (2004) Violence and abuse against people with disabilities: experiences, barriers and prevention strategies, Oregon Health and Science University; Colaprete. F.A., (2012) Pre-employment Background Investigations for Public Safety Professionals, CRC Press. 35 The Royal Commission into Institutional Responses to Sexual Child Abuse was established in January 2013 and its final report is due 15 December 2017. However, on 17 August 2015 it released a Working with children checks report that makes several recommendations that should be considered in the NDIS worker screening context.
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workplace proceedings (because they left their role before their employer could start or finish an investigation). However, consideration is needed to ensure that people are not excluded from working in the sector on the basis of an offence committed many years ago that has no bearing on their ability to safely support a person with disability. Additionally, the employee screening system will need to include appropriate privacy provisions.
A nationally consistent system taking into account a range of factors will strengthen protections for people with disability. Evidence suggests most current screening processes are efficient (with results provided in two to 10 days), so the process should not create substantial recruitment delays (except when a person has a significant criminal history). Additionally, having checks that are portable between organisations will reduce red tape.
Consultation on the NDIS Quality and Safeguarding Framework also supported robust risk-based worker screening in the disability sector that is portable across jurisdictions.
Illustrative quotes from the consultation
Employers should be required to obtain referee and police checks for all staff who will have client contact. However, these are minimal safeguards in view of the vulnerability of people with intellectual disability and the various reasons why mistreatment of people with intellectual disability seldom lead to criminal convictions. We support a requirement for working with vulnerable people clearances at least in relation to staff who have client contact. [Council for Intellectual Disability NSW, submission36]
The more safeguards in place the better. Regular, thorough screening is essential. Predators will look for areas to exploit vulnerable people. The more rigorous the screening the more an inappropriate person will be deterred from seeking this out as an area of employment. [Questionnaire, Disability support
provider, South Australia]
Employers have varied levels of knowledge and understanding about issues such as domestic violence and sexual assault (e.g. grooming dynamics etc.), and may not always have the competencies to make the judgement in such situations. A specialist organisation like [sic] operates for the New South Wales Working With Children Check is a better option. [Questionnaire, Family member of a person with
disability, New South Wales]
How it will work A nationally consistent screening process will be developed: the results of the screening process for an applicant will be valid throughout Australia, regardless of the state or territory in which it was issued.
Who will be risk-based screened: workers, including employees, agents, volunteers, contractors, and sub-contractors engaged by NDIS providers and the National Disability Insurance Agency (NDIA) that have significant contact with people with disability as a part of their work or role. Those engaged by NDIS providers or the NDIA who only have incidental contact with people with disability will not be required to undertake risk-based screening. Those who have already undergone equivalent checks through other systems will also be exempted.
36 Council for Intellectual Disability NSW submission to NDIS Quality and Safeguarding Framework consultation, 2015. Available online at https://engage.dss.gov.au/ndis-qsf-submissions/1430724703/
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Who will run the screening process: NDIS risk-based worker screening will be operated under a shared approach with defined roles and responsibilities. The Commonwealth through the NDIS registrar will have broad design responsibility, including determining scope, information to be considered, and a decision-making framework. States and territories will maintain operational responsibility for worker screening including managing and operating worker screening units.
How will the decision be made: the screening process will assess whether or not, on the balance of probabilities, a person would pose an unacceptable risk. It will take into account information such as convictions, including spent and quashed convictions; other police/ court information, such as current or pending charges; Apprehended Violence Orders, Child Protection Orders and child protection information; international police checks for those who have worked overseas, when feasible; and workplace misconduct, which comes to light through complaints and serious incident reporting. The assessment of risk will ensure that people who have committed offences in the past that have no bearing on their current ability to safely support a person with disability will not be excluded from the workforce.
Appeals: those who do not receive clearance will be able to apply to have the decision reviewed, firstly through the screening unit they used to apply for the clearance and, if unsuccessful, then through the relevant state/territory administrative appeals tribunal.
Linkages: providers will need to develop effective recruitment and selection processes to ensure they hire workers with the right attitudes and capabilities for particular roles, as well as effective ongoing management and supervision. Referee checking will remain a core responsibility of employers.
3.3 Corrective
3.3.1 Monitoring worker conduct
The context To prevent harm to participants, it will be important that workers proven to have harmed in the past are identified and can be excluded from the workforce when necessary. To achieve this, stakeholders emphasised the need for ongoing monitoring of workers as a part of the design of worker screening.
How it will work Information from the NDIS registrar and the complaints body––such as employer reports of serious incidents, complaints and potential breaches of the code of conduct––will flow through to the screening units for continuous monitoring of workers holding clearances. Additionally, arrangements will be in place for monitoring police information and as much other information as possible. If new information on a worker holding a clearance comes to light, it may trigger a new risk assessment.
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Appeals: workers who believe that they have been wrongly excluded will be able to apply to have the decision reviewed, firstly through the screening unit that excluded them, and, if unsuccessful, then through the relevant state/territory administrative appeals tribunal.
Linkages: complaints and serious incident reporting systems will provide a source of information to inform a worker’s ongoing clearance status, as will potential breaches of the code of conduct.
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- Providers The following developmental, preventative and corrective measures are designed to encourage safe, innovative, high-quality support provision and ensure providers that do not meet acceptable safety and quality standards are not able to support NDIS participants.
4.1 Developmental
4.1.1 Building provider capacity and best practice
The context In 2012–13 there were 2,141 organisations in Australia working through 15,659 service-type outlets that assisted people with disability on employment, accommodation, independent living, education and social participation.37 In 2015, not-for-profit organisations made up about 78% of the sector, government services 12% and for-profit providers about 10%.38 The number and types of providers will need to grow substantially to meet demand in the NDIS. As some state and territory governments have indicated that they will move out of direct service provision,39 it will be important to support existing providers to transition and grow their organisations, as well as enable new providers to enter the market. In market segments in which government services have been the dominant provider, transitions will need to be effectively managed.
Existing funded disability service providers have many strengths but may face some challenges in transitioning from a block funding model (in which they are paid upfront to provide supports to a certain number of people with disability) to a market-based system (in which people with disability choose their provider and providers are paid for supports delivered). They will need to transform their business models to manage this change, successfully attract and retain participants, and manage fluctuations in demand and requests for more flexible support models.
To ensure the safety and quality of supports for participants, it will be important that all providers (existing and new) have positive organisational cultures in which participants and their families feel comfortable raising issues. Staff and managers will be expected to be responsive to these issues, and committed to continuous improvement.
37 Australian Institute of Health and Welfare (2014) Disability Support Services: Services Provided under the National Disability Agreement 2012–13, p. 11. 38 NDS (2015) State of the Disability Sector Report. 39 To date New South Wales and Victoria have announced plans to transfer services to non-government providers.
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Current activities Governments have already begun supporting existing providers to reform their practice, so they can successfully transition to the NDIS environment. Additionally, new providers have emerged in trial sites, which bring opportunities for innovation and improvements in outcomes for participants. It will be important for the NDIS that the market develops in a way which supports these opportunities, and that the Framework is designed to:
build the capability of participants and providers encourage high quality support delivery monitor the market as it develops, and provide a timely response to emerging issues.
Encouraging diversity among providers and recognising the important role that both not-for profit and for-profit sectors can play in human services markets is consistent with the principles outlined in the recent Harper Competition Policy Review Report, which the Commonwealth Government has endorsed.
How it will work The Integrated Market, Sector and Workforce Strategy sets out actions to support development of a diverse and sustainable range of providers. These include:
supporting existing providers to transition their business models attracting new providers by providing information on demand monitoring the market to identify any gaps supporting the development of innovate business models, and ensuring service options in rural and remote areas and other thin markets.
Initiatives are being supported through the Sector Development Fund and state and territory transition plans.
In future, the NDIA, industry bodies and non-government organisations, including academic institutions and centres of best practice, will also potentially play a role in market capacity building. The NDIS regulatory system will also help build provider capability to deliver safe and effective supports.
Linkages: the NDIS complaints commissioner will support best practice approaches to complaints handling. The NDIS senior practitioner will support delivery of best practice behaviour support. Quality assurance requirements will assist registered providers to identify weaknesses, build capability and drive continuous improvement.
The NDIS registrar will also have an important role in monitoring market capacity, diversity and maturity, and working collaboratively with providers to build market capability. The emphasis will be on identifying thin markets and gaps in geographic and support type coverage to ensure that participants in all locations and with all types of needs are able to access supports.
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4.2 Preventative
4.2.1 Reducing restrictive practices
The context A relatively small proportion of people with disability may need additional supports to reduce the risk of harm when some of their behaviours pose a risk to themselves or others. These are often described as challenging behaviours or behaviours of concern. They are of such intensity, frequency or duration that the physical safety of the person or others is likely to be placed in serious jeopardy. They also include behaviour that is likely to seriously limit the use of, or result in, the person being denied access to services or ordinary community facilities.40
In these circumstances, providers, families and carers involved in the person’s life need to understand the function of the behaviour and implement positive support strategies to substitute the harmful behaviour with a positive one. Often the behaviour arise when an individual’s needs have not been met. It can typically be reduced or eliminated by identifying more productive, less harmful ways for the person to have their needs met. However, in some cases, the planned strategies will not work or the situation will escalate to a point at which the best and safest approach is to use interventions that restrict the person in some way. These are usually described as ‘restrictive practices’.
Restrictive practices are any intervention that has the effect of restricting the rights or freedom of movement of a person with disability, with the primary purpose of protecting the person or others from harm. They include the use of seclusion, as well as chemical, mechanical and physical restraint (see Box 5).41
40 Emerson, E. (1995) Challenging behaviour: analysis and intervention in people with learning difficulties, Cambridge University Press, Cambridge. 41 Department of Social Services (2014) National Framework for Reducing and Eliminating the use of Restrictive Practices in the Disability Service Sector, Commonwealth of Australia.
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Box 5: restrictive practices Seclusion: the sole confinement of a person with disability in a room or physical space at any hour of the day or night where voluntary exit is prevented, impeded or not facilitated. Chemical restraint: the use of medication or chemical substance for the primary purpose of influencing a person’s behaviour or movement. It does not include the use of medication prescribed by a medical practitioner for the treatment of, or to enable treatment of, a diagnosed mental disorder, a physical illness or physical condition. Mechanical restraint: the use of a device42 to prevent, restrict or subdue a person’s movement for the primary purpose of influencing their behaviour. It does not include the use of devices for therapeutic or non-behavioural purposes. For example, it may include the use of a device to assist a person with functional activities as part of occupational therapy, or to allow for safe transportation. Physical restraint: the sustained or prolonged43 use or action of physical force to prevent, restrict or subdue movement of a person’s body, or part of their body, for the primary purpose of influencing a person’s behaviour. Physical restraint is distinct from the use of a hands-on technique in a reflexive44 way to guide or redirect a person away from potential harm/injury, consistent with what could reasonably be considered the exercise of care towards a person. Psycho-social restraints: usually involves the use of ‘power-control’ strategies. Environmental restraints: restrict a person’s free access to all parts of their environment. Consequence driven practices: usually involve withdrawing activities or items.
In the past, restrictive practices were often used as a first line of response for people with behaviours of concern. It is now recognised that restrictive practices can represent serious human rights infringements. For example, the Parliament of Australia’s Senate Standing Committee on Community Affairs (2015) Report on the Inquiry into Violence, Abuse and Neglect Against People with Disability in Institutional and Residential Settings found that ‘in many cases what is deemed to be a necessary therapeutic or personal safety intervention is in fact, assault and unlawful deprivation of liberty’.
There is now also clear evidence that the routine use of restrictive practices to control individuals’ behaviour has often been harmful and exacerbated the behaviours they were intended to control.
For the vast majority of people with behaviours of concern, it should be possible to eliminate the use of restrictive practices over time by understanding and responding to the issues underlying the behaviours. However, for a small number of people, it may be unrealistic to completely eliminate the use of restrictive practices, and there may be some cases in which restrictions are put in place for other reasons. An example could be a person with Prader-Willi syndrome who, in some situations, may require restrictions placed on access to food in their home due to behaviours arising from their medical condition that could cause harm, such as overeating or eating foods that have not been prepared properly and may cause food poisoning. This is an environmental restriction that could be a longer-term intervention to address these behaviours, while positive behaviour support interventions, such as behavioural therapy, are being implemented.
42 A device may include any mechanical material, appliance or equipment. 43 For example, a physical force or action lasting longer than approximately 30 seconds, that is not a reflexive manual restraint (McVilly, 2008). 44 For example, momentary contact to guide or redirect a person, lasting for no more than approximately 30 seconds (McVilly, 2008).
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While the goal should always be to move towards the reduction and elimination of restrictive practices, there should also be recognition that there may be some emergency situations or extenuating circumstances when a restriction is the most appropriate response. The NDIS should move toward a system in which the use of restrictive practices in response to behaviours of concern occurs by exception and is underpinned by a positive behaviour support framework. The NDIS Quality and Safeguarding Framework is based on a person centred approach, recognising that it is services, systems and environments that need to change to address the needs of the participant, rather than the participant needing to change to fit the system.
Current policy Consistent with the UN Convention on the Rights of Persons with Disabilities, the Commonwealth, State and Territory Governments have committed to reducing and eliminating the use of restrictive practices through the National Framework for Reducing and Eliminating the use of Restrictive Practices in the Disability Service Sector. The Framework, which was agreed in 2014, sets out six core strategies to be implemented by 2018 (see Box 6).
Box 6: Core strategies for reducing and eliminating the use of restrictive practices Person-centred focus: including the perspectives and experiences of people with disability and their families, carers, guardians and advocates during restrictive practice incident debriefing, individualised positive behaviour support planning, staff education and training, and policy and practice development. Leadership towards organisational change: leaders need to make the goal of reducing use of restrictive practices a high priority, and provide support to their staff to achieve it. Use of data to inform practice: mechanisms––such as periodic review of behaviour support plans containing a restrictive practice, provider reporting on use of restrictive practices, reporting client assessments and individual/positive behaviour support plans––should be used to assess whether restrictive practices are still needed, and consider possible alternatives. Data is also important to determine what factors are effective in reducing or eliminating the use of restrictive practices. Workforce development: key needs include understanding positive behaviour support and functional behaviour assessment, and skills for trauma informed practice, risk assessment, de-escalation, and alternatives to restrictive practices. Use within disability services of restraint and seclusion reduction tools: use of evidence-based assessment tools, emergency management plans and other strategies integrated into each individual’s positive behaviour support plan. Debriefing and practice review: disability service providers should undertake regular review processes of their use of restrictive practices to identify areas for practice and systemic improvement.
While jurisdictions have all agreed to the national framework, they have different approaches to regulating the use of restrictive practices and use different definitions. Some have included provisions to regulate the use of restrictive practices in their disability services legislation (Queensland, Victoria, Tasmania, the Northern Territory and South Australia45). Others set out high-level principles and objectives in legislation, which are relevant to but do not specifically address the use of restrictive practices (Australian Capital Territory, New South Wales and Western Australia), and include specific requirements in policy (New South Wales) or a code
45 In South Australia, the use of restrictive practices for people with mental incapacity is regulated by the Guardianship and Administration Act and the Disability Services Act provides that relevant funded providers must have in place appropriate safeguarding policies and procedures, including for the use of restrictive practices.
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of practice (Western Australia).46 Aside from authorisation arrangements, Queensland, Victoria and Tasmania have introduced reporting requirements around the use of restrictive practices and South Australia is in the process of developing reporting guidelines. Victoria, Queensland and Tasmania also have senior practitioners with statutory functions that include developing guidelines and investigating the use of restrictive practices. Government officials with statutory powers perform a similar role in Queensland.
What’s needed to ensure the reduction and elimination of restrictive practices and uphold the human rights of people with disability A range of protections will be available to safeguard the rights of participants with behaviours of concern. These requirements will ensure that restrictive practices are used only as a last resort, are the least restrictive option available and are in proportion to the risk posed by the behaviour. They will require NDIS registered providers to ensure the delivery of supports to people at risk of requiring the use of a restrictive practice aligns with current best practice and meets all registration requirements. Relevant registration requirements would include obtaining approval to include a restrictive practice in a behaviour support plan (consistent with state or territory law), working collaboratively with the person with disability, their guardian and positive behaviour support practitioners, and reporting on the use of restrictive practices to the senior practitioner.
While approval arrangements for including a restrictive practice in a behaviour support plan can have an important role in managing potential conflicts of interest, there are varying views about how this could be best achieved. In line with the national Framework, approaches for reducing the use of restrictive practices need to focus on how people with complex behavioural needs can be supported in a way that makes the use of restrictive practices unnecessary.
The Parliament of Victoria’s Family and Community Development Committee’s (2016) Final
Report on the Inquiry into Abuse in Disability Services suggested there should be national oversight of restrictive practices by a senior practitioner function, but recommended this function sit within an independent oversight body. The Committee’s interim report (2015) recommended that guardianship powers, including those relating to consent and substitute decision-making, should continue to be administered at the state and territory level.
The Parliament of Australia’s Senate Standing Committee on Community Affairs (2015)
Report on the Inquiry into Abuse and Neglect against People with Disability in Institutional and Residential Settings also identified the need for national oversight and regulation.
While most people are not intending to cause people with disability harm or distress, there are differing levels of understanding of restrictive practices and the quality of behavioural assessments and positive behaviour support plans is inconsistent. Workplace culture can also be a significant factor when an organisation does not frequently review its use of restrictive practices to evaluate whether their use is appropriate for the situation, the opportunity is
46 In jurisdictions where the use of a restrictive practice for a person with disability is not regulated by disability services legislation, other laws––such as mental health legislation, guardianship and administration legislation, the criminal law and the common law––may apply in relation to the use of restrictive practices.
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missed for workers to learn more effective strategies and feel supported in their role. External oversight of restrictive practices and the development of a national reporting system will give providers feedback on the areas they should focus on improving. This will help identify how they can better support staff to improve outcomes for participants with behaviours of concern.
Available data suggests that the use of restrictive practices in Australia remains high when compared with rates reported internationally, such as in the United Kingdom.47 Regulation is important to work towards the goal of reduction and elimination of restrictive practices, but will need to be complemented by investment in education and prevention by senior clinicians.
A comprehensive approach to achieve the goal of reducing and eliminating restrictive practices would include:
addressing the underlying causes of behaviours of concern by understanding the function of the behaviour, including by ensuring that participants are given the opportunity and support they need to exercise genuine choice and control ensuring that the will and preferences of participants are taken into account in decisions that affect them, including through supported decision-making a legislative framework that governs the use of restrictive practices building a skilled positive behaviour support workforce to conduct behavioural assessments, develop behaviour support plans in consultation with the person and others who know them well, and work with participants, families and providers to implement plans supporting providers to adopt best practice approaches to positive behaviour support and ensuring they have access to specialist expertise, guidance and educational resources when needed overseeing providers supporting people with a positive behaviour support plan, when it includes the use of a restrictive practice overseeing the use of restrictive practices through provider reporting, and regularly analysing data on use to identify and address systemic issues and assess the success of strategies to reduce use of restrictive practices.
This comprehensive approach will best ensure that Australia meets its commitments under the UN Convention on the Rights of Persons with Disabilities and that the rights of people with disability are protected.
47 Emerson, E. (2002) ‘The prevalence of use of reactive management strategies in community-based services in the UK’ in D. Allen (Ed.), Ethical approaches to physical interventions (pp. 15-28). Kidderminster: BILD. As referenced in Australian Psychological Society’s Evidence-based guidelines to reduce the need for restrictive practices in the disability sector.
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Illustrative quotes from the consultation
While the national Framework references and outlines the importance of protecting the human rights of people with disability in line with the CRPD, there are limitations. There is still a focus on when and how to authorise restrictive practices rather than seeking to prevent their use, or identify and address the environmental factors that may cause an individual to behave in ways that are considered ‘challenging’. [Women with Disabilities Australia and People with Disability Australia, submission]
One key need is a strong workforce of behaviour support practitioners. The NDIS should establish clear criteria for what professional qualifications and competencies are required to be a behaviour support practitioner and a workforce development plan to ensure that there is an adequate supply of competent practitioners. One of the required competencies should be in person centred active support. [NSW Council for Intellectual Disability, submission] As a manager (reporting on use) it then gave me legitimacy to ask those questions of my staff to enhance their practice…I can go to the data and I can say this house or this particular shift or this particular worker seems to have an overuse of this particular restrictive practice compared to when a different worker is on. [Provider, Brisbane, meeting]
Mandatory reporting is required but the key element is education and training because reporting doesn’t necessarily reflect use. You shouldn’t create a deterrent for reporting but use it as way of identifying the need for education and training. [Provider, Australian Capital Territory, meeting]
How it will work The approach to reducing and eliminating the use of restrictive practices in the NDIS through functional behaviour assessment and positive behaviour support will have specific requirements for:
positive behaviour support practitioners (who conduct functional behavioural assessments, develop the positive behaviour support plan, provide guidance and training to other providers to implement participants’ positive behaviour support plans and monitor the implementation of those plans), and other providers who indicate their scope of service is likely to include participants with behaviours of concern. These participants require a functional behavioural assessment and the development of a positive behaviour support plan containing a restrictive practice.
Legislative framework: the NDIS Quality and Safeguarding Framework will include a legislative framework which:
defines the practices that are covered by the rules and explicitly prohibits certain practices sets out circumstances and conditions that must be met before a provider can use a restrictive practice, including obtaining approval, and ensures that the wishes of affected individuals are understood and reflected in positive behaviour support plans establishes an NDIS senior practitioner with statutory powers to provide practice leadership; follow-up with the relevant positive behaviour support practitioner and the registrar in response to incidents or concerns; make directions and recommendations; and has the power to proactively examine current practice in behaviour support and the use of restrictive practices
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sets competency standards for practitioners who will undertake positive behaviour support assessments, develop positive behaviour support plans, and provide positive behaviour support advice and training to underscore the implementation of these plans sets standards and other requirements for providers offering supports to individuals who require a positive behaviour support plan that includes a restrictive practice mandates transparency and accountability through provider reporting on the use of restrictive practices, and monitoring and review of this data by the provider, the relevant positive behaviour support practitioner and the NDIS senior practitioner prohibits any NDIS-funded provider from using a restriction contrary to the legislation, and enables necessary information sharing.
Identifying participants who need positive behaviour support: local area coordinators, NDIA planners and support coordinators will have a role in identifying participants with complex behaviour support needs and referring them to a positive behaviour support practitioner for assessment. Behaviour support needs may be identified at any point during the plan development, implementation or review stage. The senior practitioner will have a role in educating and providing guidance to local area coordinators, NDIA planners and support coordinators. This will assist those in planning and coordination roles to identify participants with complex behaviour support needs (or changing behaviour support needs) and appropriately refer them to a positive behaviour support practitioner for assessment or review.
Authorisation: Commonwealth legislation will set out the key principles around the use of restrictive practices, including that the intervention is the least restrictive response available, is used only as a last resort, and that the risk posed by the proposed intervention is in proportion to the risk of harm posed by the behaviour of concern. Relevant state and territory legislation will specify the conditions that must be met for the use of a restrictive practice to be approved in a positive behaviour support plan. This means that at a minimum, a decision to include a restrictive practice in a positive behaviour support plan must be consistent with state and territory legislation around the approval process. States and territories may enact (or amend) separate laws that provide mechanisms for seeking approval to include restrictive practices in a behaviour support plan. As states and territories have differing laws around what constitutes approval to include restrictive practices in a behaviour support plan when an individual is unable to consent on their own behalf, the requirement could include approval given by a:
person who has been granted general legal guardianship or enduring power of attorney by a state or territory guardianship body for a participant person who has been specifically appointed as a guardian in respect to restrictive practice matters, for example, the public guardian (or equivalent) state or territory administrative tribunal, or a legally authorised person with responsibility for approving the inclusion of a restrictive practice in a positive behaviour support plan.
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National consistency is a key element of the NDIS Quality and Safeguarding Framework and is something that should also apply across jurisdictions’ approval arrangements. However, given the highly complex interactions between Commonwealth, state and territory legislation and the coverage of this legislation in terms of other service sectors in jurisdictions, it is unlikely this will be achievable in the timeframe required for full scheme. Instead, the aim will be for jurisdictions to continue (and make amendments as necessary), or review their current arrangements for full scheme, with a view to working towards national consistency over time.
Irrespective of the method for seeking approval to include a restrictive practice in a behaviour support plan, Commonwealth legislation will require that:
a functional behaviour assessment has been undertaken by a positive behaviour support practitioner, and a positive behaviour support plan has been developed (with the exception of certain environmental restrictions) any restriction is clearly intended to assure the wellbeing and safety of the participant and others around them (for example, restrictions such as the routine use of medication to control behaviour, prescribed in the absence of any identified/diagnosed medical illness or condition for which that medication is typically prescribed), will be closely monitored. Monitoring this type of restraint is necessary, as it can be detrimental to reducing and eliminating use of restrictive practices. This is because it can remove the incentive for a provider to implement positive behaviour support strategies to address the behaviours of concern, since the behaviours become masked by ongoing chemical restraint alternative strategies have been considered and the proposed restriction is the least restrictive option, and is evidence-based and proportionate in terms of the behaviour of concern it is seeking to address approval to include a restrictive practice in a behaviour support plan has been obtained. It is likely the senior practitioner will provide guidance on what constitutes approval under state and territory law, and a review of the positive behaviour support plan has been scheduled for no more than 12 months after its development, with additional review points as required in response to changing needs.
NDIS senior practitioner: an NDIS senior practitioner will be established to provide clinical leadership in positive behaviour support, and reducing and eliminating the use of restrictive practices in the NDIS by:
building registered providers’ capability in positive behaviour support developing and updating policy and guidance materials that reflect current best practice working with the registrar to specify the requirements to become a registered provider in behaviour support, or a registered positive behaviour support practitioner implementing a framework for evaluating and building the competency of positive behaviour support practitioners and providing clinical governance and leadership to registered positive behaviour support practitioners receiving provider reports on instances of use and types of restrictive practices, and using this to inform actions to improve practice and reduce the use of restrictive practices
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reviewing serious incident reports involving the unplanned or unapproved use of a restrictive practice or that suggest unmet behaviour support needs following up on reports of inappropriate use of a restrictive practice developing and implementing a systemic approach to early intervention and prevention in behaviour support reporting annually to disability ministers on the use of restrictive practices, including policy issues and recommendations, and providing regular advice, reports and briefings recommendations to the NDIA on operational matters.
Positive behaviour support practitioners: an approved positive behaviour support practitioner, funded through participants’ plans, will assess participants identified as having complex behaviour support needs. The practitioner will then use the information from the assessment, together with information from other sources (including the participant, family and key providers), to develop a positive behaviour support plan. They will also have a monitoring role to ensure that the positive behaviour support plan is being implemented correctly and is achieving its intended outcomes.
Positive behaviour support practitioners will have a critical role in improving outcomes for participants with complex behaviour support needs, and helping to reduce or eliminate the use of restrictive practices. The senior practitioner will maintain a competency framework for positive behaviour support practitioners and provide clinical leadership and oversight to ensure practitioners have the appropriate skills and knowledge to perform their role effectively and consistently across the system.
Tables 1 sets out the possible competency requirements for positive behaviour support practitioners.48
Table 1. Three key elements of positive behaviour competency
Element Positive behaviour support practitioners: summary of competencies
Facilitation and development The practitioner’s role is to conduct a functional behavioural of a high-quality support assessment and to develop a positive behaviour support plan. environment that is As well, they will oversee and support the plan’s responsive to individual implementation and advise on what changes the provider needs could make to better meet the participant’s needs (see description of subsequent elements below).
48 Paley, Nankervis & Lambrick (2015), Competency framework for delivering positive behaviour support planning. Provided to the Department of Social Services in March 2016 as part of work towards reducing and eliminating restrictive practices in the NDIS. Adapted from the work of the Positive Behavioural Support Coalition UK (2015). Positive behavioural support: a competence framework, (still under development).
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Conducting functional Practitioner is able to demonstrate knowledge, experience behavioural assessment and and skills to conduct person-centred behavioural developing positive assessments, behavioural risk assessments, functional behaviour support plans analysis, systems analysis, develop positive behaviour support (context, triggers, risk plans and provide oversight, advice and feedback to provider assessment, identification of staff and families with responsibility for implementing the potential strategies for strategies contained in positive behaviour support plans. responding etc.) Practitioner seeks input from the participant, family members and other important parties, and has skills to assess and evaluate level of risk relative to response, and quality of life (including quality of family life). Implementing, monitoring Practitioner has the ability and skills to interpret behavioural and reviewing positive information from provider’s reporting and recording and is behaviour support plan and able to monitor, provide feedback and guidance and review evaluating its effectiveness and make adjustments to positive behaviour support plans in accordance with the most current evidence-based practice. This will include amending risk assessments to reflect any increase or decrease in risk posed by the behaviours of concern. Practitioner has the ability to contribute to short-term and long-term planning as part of a whole-team approach and can provide specialist advice and training in behaviour support to staff (and families) responsible for implementing the strategies contained in the positive behaviour support plan.
State and territory experts have indicated there is a shortage of positive behaviour support practitioners with both the relevant formal qualifications and the subject matter expertise to meet the competency standards. It is likely there will be a need for transitional arrangements until formal qualifications in behaviour support become more common. These arrangements are likely to be necessary both in the lead up to and, for some time beyond, full scheme implementation.
Transitional arrangements would, for example, allow suitably skilled and experienced individuals without formal qualifications in behaviour support to be included on an interim register of positive behaviour support practitioners. All individuals (with or without formal qualifications) wishing to be included on an interim register of positive behaviour support practitioners would need to demonstrate an appropriate level of skill, knowledge, experience and expertise in behavioural assessment, and the development and implementation of positive behaviour support plans (for example, through on-the-job experience and training). There would be an expectation that approved practitioners engage in ongoing professional development opportunities, and practitioners would be encouraged to enrol in formal professional training and tertiary courses in behaviour support as these become more available.
Providers: providers have a key role in developing plans that include restrictive practice, as this can help to support the appropriate implementation of a behaviour support plan, which is key to the reduction of restrictive practice over time. To be registered to provide
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behaviour support, NDIS funded providers with a role in implementing the strategies contained in positive behaviour support plans that are likely to include the use of a restrictive practice will need to meet quality assurance requirements and be certified against an additional NDIS practice standard module that includes the provision of behaviour support. Table 2 sets out possible competency requirements for providers.
Table 2. Three key elements of positive behaviour support competency
Element Provider staff (support workers, supervisors and managers): summary of competencies Facilitation and development Social factors are being addressed. Provider is implementing of a high-quality support strategies to increase community participation, expand the participant’s social network, and address any complexenvironment (responsive to dynamics in the home environment etc.individual needs) Health needs that may be contributing to behaviours of concern are appropriately managed (underlying mental health needs, such as anxiety or depression are addressed, medications provided on time, participants supported to attend medical appointments and timely advice sought from health professionals when required). Environmental factors are addressed wherever possible: – Participants feel safe and the physical environment promotes good physical and mental health and wellbeing. – Staff ratios are appropriate for the level of support required to meet the individual needs of the participants in the service. – Restrictive practices are only used as a least restrictive, last resort intervention.
Contributing to the Staff have the knowledge to work effectively with the
functional behavioural practitioner (whether the practitioner is external to the service or directly employed by the service), including toassessment and development provide relevant information and insights to inform theof positive behaviour assessment process and development of a positive behaviour support plans (context, support plan, and encourages input from the participant, triggers, risk assessment, family members and other important parties. identification of potential strategies for responding etc.)
Implementation, monitoring Support workers responsible for implementing the strategies and review of positive in the positive behaviour support plan are provided with the behaviour support plan and knowledge and skills to perform this role effectively and are evaluation of its supported by management and co-workers to implement effectiveness positive behaviour support plans and to support participants developing positive behaviours. Skills are developed and maintained for providing appropriate oversight, management and supervision of teams of support workers implementing positive behaviour support plans. Staffing levels are consistent with the level of support
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Element Provider staff (support workers, supervisors and managers): summary of competencies required by the people accessing the service and adjusted when necessary to support implementation of the strategies contained in the positive behaviour support plan. The organisation implements relevant governance systems for practice oversight, monitoring and continuous improvement in behaviour support service provision.
Information indicating provider non-compliance with the law and associated registration requirements regarding positive behaviour support and the use of restrictive practices may suggest a need for an educative or regulatory response. This information may be obtained through:
provider reporting on their use of restrictive practices quality assurance audits reports or concerns raised by a participant’s behaviour support practitioner complaints and serious incident reporting community visitor scheme reports reports of concern from advocates and others, and linkages with state or territory arrangements for approving the use of a restrictive practice in a behaviour support plan.
There will be a risk management strategy for providers in this segment of the market that are granted provisional registration while they are working towards full certification. The senior practitioner or the registrar could more proactively oversee providers that have no previous experience providing positive behaviour support, or intervene if evidence emerges that the provider may be using questionable practices. Positive behaviour support practitioners could follow up more regularly with the participants whose behaviour support plans they oversee, until the provider gained full certification. The senior practitioner could also contact positive behaviour support practitioners working with these providers, so any issues that arise during this provisional period can be promptly addressed.
Reporting: providers supporting participants with a positive behaviour support plan that is likely to include the use of a restrictive practice will need to report on the use of those practices. Reporting will be at the end of each month through an online reporting system. Providers may be required to report: – Restrictive practices that are ongoing (e.g. chemical restraint with a daily fixed dose). These will only need to be reported once when approved in a behaviour support plan and will not need to be re-entered as part of the monthly reporting unless there has been a change (e.g. dosage change, or the restrictive practice is no longer needed). – Restrictive practices that are ‘unscheduled’—that is, where there is no set timeframe for when a situation will arise that requires the use of the restrictive practice. These will need to be reported as part of the monthly reporting on a per-occasion basis (e.g. physical restraint, seclusion, chemical restraint prescribed on an ‘as needed’ basis, also known as PRN medication).
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– Occasions when the use of an unauthorised restrictive practice is defined as a serious incident because it was not part of the participant’s behaviour support plan, because there is no plan in place, or because the intervention itself was dangerous or inconsistent with the conditions specified in the participant’s plan and in the legislation and registration requirements. These would also need to be reported as part of serious incident reporting.
To enable the data to be used to support a reduction in the use of restrictive practices and improve practice, the reporting system would be developed to provide the:
provider with access to aggregated site or organisational level and individual (participant) data reports relating to their use of restrictive practices positive behaviour support practitioner with access to individual level information for the individuals they are supporting senior practitioner with access to information on use from the individual level through to the systemic level.
Self-managing participants:
The majority of participants at risk of being subject to restrictive practices are unlikely to be assessed as able to manage their own plan. However, risks may arise for these participants when someone (for example, a family member) is appointed to manage the plan on their behalf. The most significant risk lies with unregistered providers being used that are not subject to the proposed registration and oversight arrangements for positive behaviour support and restrictive practices, and who may not have the right skills to support people with complex behaviour support needs. Participants at risk of being subject to restrictive practices are likely to have limited ability to raise concerns about their treatment and will be reliant on others for support to assert their rights, yet they will be the people impacted most severely if things go wrong.
On this basis, providers will be required to be registered where the supports they offer are directly relevant to the implementation of the positive behaviour support plan and associated legislative requirements. Where the supports are not related to the behaviour supports (e.g. transport), or are regulated by other means (e.g. registered allied health professionals), it will remain the decision of the participant, their family and the NDIA about whether to self-manage those supports or if additional supports may be needed for a participant to safely engage with a range of providers (registered and unregistered) and implement their plan (for example, decision-making supports).
Linkages: while the senior practitioner will have access to serious incident reports relating to the use of a restrictive practice via the data information system, the NDIS complaints commissioner will also be able to refer other serious incidents that relate to inappropriate or unauthorised use of a restrictive practice, or that indicate unmet behaviour support needs to the NDIS senior practitioner. Additionally, the NDIS registrar will be able to refer issues relating to the quality of behaviour support to the senior practitioner.
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In cases of serious non-compliance, or failure to address identified issues, the senior practitioner can recommend that the NDIS registrar take compliance action, including to suspend or revoke a behaviour support practitioner’s (or another relevant provider’s) registration when there are sufficient concerns about their competency or adherence to the legislation.
Information sharing and collaboration between the NDIA and the senior practitioner will also assist in driving best practice in positive behaviour support with the aim of reducing and eliminating the use of restrictive practices for participants in the NDIS.
Intersection with mental health: in the mental health system, there is a distinguishable separation between community and clinical (acute and sub-acute) services. If a person cannot be adequately supported in a community setting, they will be stepped up into a clinical setting. Because of this approach, seclusion and restraint is viewed in mental health as a clinical intervention that should therefore only occur in a clinical setting. As a result, the use of restrictive practices in a community setting typically only occurs in an emergency situation and would usually trigger a review by a mental health clinician about whether the person should be moved into a sub-acute or acute clinical support setting. A provider supporting people with psychosocial disability under the NDIS will still be expected to meet all requirements that are relevant to their service scope. There may be a number of isolated cases involving participants with high behaviour support needs in which the interaction between the NDIS and the mental health system becomes more complex, requiring clear coordination and agreement on roles and responsibilities.
Currently state and territory-funded mental health services have a range of documented policies and protocols for use of restrictive practices. State and territory mental health legislation includes specific requirements related to use of these interventions. The Model Mental Health Legislation, funded under the National Mental Health Strategy for use by states and territories when reviewing their mental health legislation, includes model clauses on seclusion and restraint.49
Use of positive behaviour support for children, and the intersection with education: the proposed assessment, positive behaviour support planning and oversight arrangements would only apply to children in situations where the child (participant) is being provided with supports funded through the NDIS. This means that a personal care worker funded by the NDIS to support a child who requires assistance with mealtimes and continence at school, for example, would be considered in-scope for the purposes of the proposed arrangements for reporting and monitoring positive behaviour support. However, the education system is responsible for regulating the use of restraint in schools. This means that teachers employed by the school and teacher’s aids employed to support the child’s educational needs would only be subject to regulatory arrangements prescribed by the relevant education department.
49 The National safety priorities in mental health: a national plan for reducing harm, accessed 7 April 2016 http://www.health.gov.au/internet/publications/publishing.nsf/Content/mental-pubs-n-safety-toc~mental-pubs-n-safety 3~mental-pubs-n-safety-3-use
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A ‘respite’ or community access service funded by the NDIA to support a child participant would be in-scope for the proposed assessment, positive behaviour support planning and oversight arrangements. However, education providers are responsible for implementing state-based regulation governing the use of restraint in schools. This means that teachers employed by a school and teacher’s aids employed to support the child’s educational needs while at school are subject to regulatory arrangements prescribed by the relevant state legislation. In addition, jurisdictions have separate (including legislative) requirements relating to behaviour management for children accessing disability supports to ensure compliance with child protection and child services legislation. It will be the responsibility of the senior practitioner to ensure the quality and safeguarding arrangements for which they hold statutory responsibility are consistent with state and territory child protection and child services legislation.
State and territory regulation usually specifies when and how restraint should and should not be used, as well as what action should be taken following use of a restraint (e.g. debrief and reporting). State and territory governments are in the process of examining the information provided from recent inquiries covering the use of restrictive practices on children with disability in schools.
Intersection with the justice system: the justice system regulates the use of restraint and containment in accordance with criminal law and other legislation, and guidelines developed within each jurisdiction. Authorisation for the use of restrictive practices in this context may fall under Supreme Court Orders (via the justice system) where the person is unfit to plead under the Criminal Code and requires full-time supervision. Working arrangements are in place between the justice system and the NDIA to address the majority of intersection issues. However, there may be a number of cases involving participants with high behaviour support needs in which the interaction between the two systems becomes more complex. This may require coordination involvement and advice of experts from both systems.
Intersection with health: the health system has its own requirements relating to the use of a restraint that may be necessary to provide treatment. Health practitioners are required to adhere to practice requirements that are set by their relevant professional boards, as well as the operational requirements in relevant Commonwealth, state and territory legislation. It is possible that intersections may arise, for example, when an NDIS funded worker is required to take a participant to a medical appointment and that support worker may be expected to use a form of restraint for the treatment to be provided. However, these intersections should be adequately managed through participants’ positive behaviour support plans and the provision of guidance by the senior practitioner on how NDIS funded workers should respond in such situations.
4.2.2 Ensuring provider safety and quality
The context The rights of participants to choose and move between providers will help to drive quality improvement and innovation in the market. However, this will not be sufficient to ensure the
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safety and quality of supports and meet governments’ duty of care obligations. This is why the Productivity Commission’s inquiry into Disability Care and Support identified the need for rules for providers, monitoring of compliance and action to address breaches, including possible punitive measures.
A number of factors point to the need for a robust system of provider regulation, particularly as the NDIS market is still developing. These include:
risks associated with any substantial injection of government funding into a system variations in providers’ capability in terms of quality and safeguards the limited competition and likely capacity shortages given the system needs to expand rapidly the need for participants to develop the skills, capability and experience to take control of their supports and become ‘active consumers the need for information about provider quality to inform decision-making a power imbalance that can exist between providers and people with disability heightened risk of abuse, neglect and exploitation faced by some people with disability the inherent risk involved in some types of supports (due to the effects of the support, the personal contact involved of the environment in which the support occurs), and dependence on certain types of supports for daily living.
As a broader range of providers are likely to enter the NDIS market, there is a need to consider what regulation requirements should apply to providers of different types of supports, to take account of provider size and to recognise the other forms of regulation that certain types of providers must already comply with. There is also a need to focus on capability building and continuous improvement. The bar for entry into the market should not be set so high that it would prevent growth and create unnecessary red tape, nor so low that it would enable workers and providers who would pose an unacceptable risk to participants to enter and operate.
Current policy In most jurisdictions, quality and safeguarding requirements for providers of specialist disability supports are managed through the terms and conditions in funding agreements. Some additional requirements are also set out in state and territory legislation.
All jurisdictions require that funded providers comply with the National Standards for Disability Services or state-specific standards that have been mapped to these (see box 7).
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Box 7: The National Standards for Disability Services
The National Standards for Disability Services, agreed by governments in 2013, are intended to promote a nationally consistent approach to improving the quality of services. They focus on rights and outcomes for people with disability. There are six standards.
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Rights: the service promotes individual rights to choice and controlee, freedom of expression and decision-making, and actively prevents abuse, harm, neglect and violence.
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Participation and inclusion: the service works with individuals and families, friends and carers to promote opportunities for meaningful participation and active inclusion in society.
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Individual outcomes: services and supports are assessed, planned, delivered and reviewed to build on individual strengths and enable individuals to reach their goals.
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Feedback and complaints: regular feedback is sought and used to inform individual and organisation-wide service reviews and improvement.
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Service access: the service manages access, commencement and leaving a service in a transparent, fair, equal and responsive way.
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Service management: the service has effective and accountable service management and leadership to maximise outcomes for individuals.
In most cases, providers must demonstrate compliance through an independent quality assurance or quality evaluation process. This generally involves self-assessment, independent assessment and performance reporting. As assessments differ, providers who work across different jurisdictions must demonstrate compliance with requirements in each jurisdiction. Additionally, providers who work across sectors (for example, child care or aged care) must demonstrate compliance with multiple sets of quality standards, which have overlapping elements.
Currently, providers must apply to the NDIA to become registered providers of NDIS supports. Their application needs to explain the types of support they wish to provide, the areas in which they wish to provide them, their experience, qualifications or professional registrations (where relevant), and details of the processes they have in place to ensure a quality service. The chief executive officer of the NDIA (or delegate) then assesses whether the provider meets the criteria set out in the NDIS Act 2013 and NDIS Rules. For the types of supports that must, by law, be provided by a person with certain qualifications (such as a psychologist or physiotherapist) or some other form of license, providers must demonstrate workers have this qualification or license. Depending on the type of support they plan to offer, providers may also need to provide evidence that they are financially viable, their workers have undergone national police checks, that they have risk management and complaints processes in place, suitable facilities and equipment, insurance and relevant licences, and that they comply with relevant practice standards.
As the NDIS market develops, new services and supports will emerge. In the case of specialist disability accommodation, work is underway to develop rules and policy for this type of support. The NDIS Quality and Safeguards Framework will need to consider the risks and opportunities of this segment of the market, including appropriate quality assurance mechanisms described below.
Registered providers must comply with all laws that apply in the jurisdictions in which they operate and in line with the NDIA Terms of Business for Registered Support Providers (which
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include having a complaints process and reporting serious incidents). During the transition period, registered providers must also comply with state and territory quality requirements.
What’s needed to ensure a range of quality services for participants? There is a need for providers of more complex supports to demonstrate compliance with the National Standards for Disability Services through independent quality assurance arrangements based on NDIS practice standards. This would give a level of assurance that providers deliver supports in line with the standards principles of the NDIS, have effective risk management and governance processes, are sustainable, and commit to continuous improvement. A national system could also help to reduce compliance costs for providers working across multiple jurisdictions, while mutual recognition of compliance with equivalent standards (wherever possible), could reduce compliance costs for providers working across multiple sectors. Additionally, the development of a national system would provide an opportunity to strengthen the focus on understanding participant outcomes in quality assurance systems.
It will be necessary to tier registration requirements in proportion to the potential risks posed by the supports the provider offers and the needs of the participants they support. Targeting the highest requirements to the highest risk situations will provide the right balance. It will prevent unscrupulous providers from entering the market, but will not hinder the development of a diverse provider market or increase the cost of delivering supports to an unsustainable level.
A registrar will also be needed with the power to enter and inspect premises, access relevant documents, commence inquiries and investigations when it considers they are warranted, and to make binding decisions and impose sanctions and fines. A market monitoring role would also help to identify and address issues with thin markets, market failure or predatory pricing.
Experience in other market-based systems suggests the market monitoring role should include providers of difficult-to-replace supports and those with a dominant market share. When the UK moved to a market-based system for social services, the failure of a large provider created significant difficulties for service users and government authorities. In the Australian early childhood education and care sector, the failure of a large provider had a similar effect. The purpose of the monitoring role would not be to protect failing businesses, but to ensure that providers of key supports are operating with prudent governance and not putting participants at risk of unplanned service withdrawal.
The registrar would also need to have a role in ensuring that the NDIS workforce has the right attitudes, knowledge and skills (through provider registration and quality assurance) to deliver services in an increasingly client centred and market driven environment.
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Illustrative quotes from the consultation
…probably in the last 10 years I think there’s been improvement in the sector and that’s because we’ve had legislation which has had a strong human rights framework and we’ve also had external quality accreditation, so I think that has pushed people to actually review what they do and to have transparency. I think in terms of our quality auditing there’s a big focus on talking to our consumers and looking at our consumer feedback. So it’s about how that quality process is done. But I think we’ve made really important gains in the last 10 years and there is a risk that we’re actually going to lose that”. [Supplier, Geelong, supplier meeting]
[What would be a low risk situation?] Taking someone to the gym, because you’re in the community, there are people there. Particularly if you don’t have really severe disabilities, it’s not like you’re going to be there on your own. However, if you were providing personal care to someone or you are a specialised driving instructor and you are on your own, then there should be a higher level of regulation and stuff involved because there is that higher level of risk. I also think that police checks and stuff should be mandatory, particularly if you’re going to be on your own, just to provide that safety net. [Person with disability, Newcastle, public meeting]
How it will work To ensure the provision of safe and quality services and the development of an effective NDIS market, an NDIS registrar will be established, all providers will be required to comply with an NDIS code of conduct, and providers of certain types of supports will be required to meet additional quality and competency standards. Registration requirements will be proportionate to both the risk inherent in the service delivery model, and the scale of the organisation. This is described in Box 8.
NDIS registrar: the NDIS registrar will be responsible for:
informing participants about the NDIS code of conduct and provider quality and competency standards (including worker competency for specific types of services) informing providers of their obligations and assisting them to comply registering providers designing broad policy settings for worker screening including determining scope, information to be considered and a decision making framework (see 3.2.1) reporting to the Minister and publically on their priorities and activities managing the NDIS practice standards and certification scheme and reviewing these with input from participants, industry stakeholders, the NDIA and other government partners monitoring compliance and taking action when providers fail to meet requirements referring matters to other relevant authorities, when required monitoring market capacity, diversity and maturity, and working collaboratively with providers to build market capability, and identifying and monitoring providers carrying significant risk in terms of their financial viability and governance (prudential) arrangements to prevent providers of difficult-to replace supports from putting participants at risk of unplanned service withdrawal.
Tiered requirements for providers: all providers, whether registered or not, will be required to comply with applicable Commonwealth, state and territory laws, the NDIS code of conduct, and the NDIS complaints resolution process. All providers wishing to become registered will be required to participate in a verification or certification process.
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Certification requirements will apply for providers who wish to deliver higher risk support types, as outlined in Figure 3. These requirements will be set out in a modular set of NDIS practice standards with core practice standards and specific practice standards. There will be a clear line of sight between the NDIS code of conduct, the NDIS practice standards and the National Standards for Disability Services. Key standards, such as participant rights, will be reflected in both the code of conduct and the practice standards. The practice standards will also reflect the National Standards for Mental Health Services for providers specialising in mental health services.
All providers delivering higher-risk supports will be required to gain third party quality assurance certification against the core practice standards. These will cover risk management, expected qualifications and competencies for employees, complaints systems, and effective and inclusive governance.
Specific practice standard modules will apply to providers of more complex supports, including:
positive behaviour support for practitioners responsible for conducting behavioural assessments and developing positive behaviour support plans providers responsible for implementing positive behaviour support plans that are likely to include the use of a restrictive practice providers delivering complex support plan coordination early childhood supports providers delivering high intensity daily personal activities providers delivering supports for people with complex needs, including health needs, and providers of specialist disability accommodation.
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Figure 3 sets out how registration requirements would be tiered.
Figure 3 Tiered provider requirements
Lower-risk supports Higher-risk supports
Provider types: e.g. cleaning company (more Provider types: large organisation than five employees). undertaking range of higher risk supports, Requirements: can choose verification of including personal care, behaviour support or individual employees or certification of accommodation. organisation. The latter will be more efficient Requirements: quality assurance certification
Larger (lower cost and address employee turnover). focused on compliance with practice standards
providers and management of risks, including governance and internal quality systems. Requirements tailored to scope of supports offered.
Smaller Provider types: e.g. sole operator doing Provider types: e.g. sole operator offering
providers gardening, cleaning; allied health higher risk supports.
professionals registered with AHPRA or that Requirements: proportionate quality have full membership of a recognised assurance certification tailored to scope of professional association, where relevant to supports. Includes: competence, training, their scope of practice. experience and understanding of risks. Requirements: verification of insurance, Certification evidence requirements qualifications, employee screening. proportionate to the size of the organisation.
Mutual recognition: requirements will be streamlined for providers that can demonstrate compliance with existing comparable standards. Providers that are registered with AHPRA or have full membership of a recognised professional association (including those in Schedule 1 of the Health Insurance (Allied Health Services) Determination 2014) will not need to meet additional certification requirements unless they are intending to provide one of the types of support that require highly specialised skills and experience.
There will also be mutual recognition of similar accreditation arrangements (such as for aged care and other community services), which will streamline requirements for providers working across different sectors.
Verification process: registered providers whose service model is deemed to be low risk will only undergo a simple, periodic verification process. Typically, providers of everyday services that are used by the general public––such as a gardening or domestic cleaning service––will fall into this category.
An NDIS appointed verifier will be responsible for checking provider credentials. The verification process will confirm:
the provider’s identity (ABN, personal identity and/or identity of legal entity) that workers delivering supports for which they are required by law to have professional qualifications, registration or licensing, meet these requirements
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when an allied health professional’s qualifications are not directly linked to the service, testing of recency of practice that the provider has adequate insurance for the scope and nature of the service they are offering that there is an internal complaints and serious incident reporting management system in place, and that workers have undergone relevant screening.
This approach is intended to place the least burden on providers of supports that pose a lesser risk for participants and to the NDIS as a whole. Providers of these of these types of services can choose to undergo quality assurance certification if they view it as beneficial for marketing their service as NDIS certified.
Quality assurance certification process: providers delivering higher-risk supports or supporting participants at heightened risk will undergo quality assurance certification.
Audits against the NDIS practice standards will be undertaken by trained third party auditors, accredited by an auditing body. The audit process will include a range of techniques to assess compliance, including document reviews, observations during site visits, and assessing performance based on the lived experience of participants (captured through conversations with participants and families and observation). The audit methodology will be tailored to the size of the provider––a smaller sample of participants will be involved in smaller providers. The NDIS registrar will have overall responsibility for ensuring that assessment methods used are not unduly onerous, that they focus on real risk, and that they incorporate participant perspectives on quality and outcomes.
Providers will select an auditor from the approved list. Auditors will be required to notify the NDIS registrar of any major non-compliance concerns discovered in the audit so that these can be addressed and systemic issues identified. For minor matters, the auditor will work with providers to develop an improvement plan that sets timeframes for addressing gaps appropriate to the risk posed by non-compliance.
Providers will generally need to be re-certified every three years. However, the review cycle can be shortened for providers with a history of serious non-compliance. Conversely, it can be extended if the NDIS registrar is satisfied that a provider has an established track record in effectively managing quality and safety.
Overview of provider registration: Figure 4 sets out how provider registration will be applied in full scheme. It shows how providers will be triaged into the verification or certification process and the requirements they will need to meet.
Providers that are already certified under an existing scheme (including state and territory schemes) will not be required to seek certification until their existing certification expires. New providers that are required to undergo certification will receive provisional registration pending their full certification within 12 months, unless their initial self-assessment identifies that they pose an unacceptable risk to participants.
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Figure 4. Provider registration, verification and certification processes
Verification Re-verification
Provider supplies Provider is NDIS appointed Provider is Provider credentials required proposing to verifier checks Provider meets approved and able re-verified to information (e.g. deliver supports provider requirements to deliver supports confirm ongoing about insurance, deemed to be credentials in the categories compliance every worker credentials) low risk specified in their 12 months
registration Triaging of applications by
NDIS Registrar
Certification Re-certification
Provider is Provider completes Provisional
proposing to self-assessment registration for
deliver supports against Core new providers Provider deemed to be
Standards successfully Provider is Annual surveillance higher risk
completes approved and able audits and
certification to deliver supports recertification every Relevant NDIS
within 12 in the categories three years to Provider completes Practice Provider is also months of self- specified in their confirm ongoing self-assessment Standards are proposing to assessment registration compliance against Core met
deliver specialist Standards and supports relevant Specific
Practice Standards
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The scenarios in Box 8 illustrate how the requirements will apply to different types of providers.
Box 8: Provider scenarios Scenario 1: the online intermediary
Proposed scope of practice: I run a website that links people who require social care with people in their local area. If they claim certain qualifications (for example, that they are a registered nurse, have a first aid certificate or a driver’s license) I will verify that before I put them up on the site. I also verify identity and check that workers have obtained a police check or a working with vulnerable people check, depending on what is required in the state they live. Workers can charge what they like; my share is 10 per cent of what they are paid. All financial transactions operate through the website.
Assessment: you are a non-financial intermediary, although money moves through your website from the people you match to workers, you are not a funds holder and do not directly supervise the quality or competency of workers on your website. In this case, the NDIS registrar will not register your organisation. Workers on your website have the option of registering in their own right. If they do so, they have the right to be paid directly by the NDIA when their client has agreed that the NDIA will hold his or her plan funds. Otherwise, your organisation and the affiliate workers are unable to register, but will be able to offer services for participants who self-manage their plan or have hired a financial manager to do so on their behalf.
The non-financial intermediary and all individually registered workers will be subject to the NDIS code of conduct and the individually registered workers will be expected to report serious incidents to the complaints commissioner. If the non-financial intermediary or any individually registered workers breach the code, the NDIS complaints commissioner could issue an order prohibiting the worker (or the non-financial intermediary as an organisation) from direct or indirect receipt of income through the NDIS.
Scenario 2: general self-employed disability worker
Proposed scope of practice: I provide domestic and social participation services and will also help with personal care depending on the person and their needs. I have registered with an online site.
Assessment: if you wish to be a registered provider you will need meet the verification requirements, e.g. to have your own ABN, provide evidence of your insurances, and undergo background checking (working with children checks or working with vulnerable persons checks).
You will also be required to comply with the NDIS code of conduct.
Scenario 3: Allied health professional (AHPRA registered)
Proposed scope of practice: I’m a registered physiotherapist and will be applying to practice as a sole trader to provide general physiotherapy services. Assessment: you are providing a service that is already regulated by AHPRA and the Physiotherapy Board of Australia. You will need to provide the NDIS registrar with your AHPRA registration number, a copy of your professional indemnity insurance and personal liability insurance and a copy of your working with children check (or number) or working with vulnerable persons check. These credentials and your identity will be verified. Every 12 months you will be asked to re-verify your insurance and provide evidence that your AHPRA membership remains current. You will also be required to comply with the NDIS code of conduct. This will not diminish your responsibilities under state and territory child protection legislative requirements if providing supports to children.
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Scenario 4: Allied health professional (non-APHRA registered)
Proposed scope of practice: I’m a university trained speech therapist and a full member of Speech Pathology Australia. I will be practicing as a sole trader.
Assessment: you are providing a service that is already self-regulated by a recognised industry body. You will need to provide the NDIS registrar with details of your membership of Speech Pathology Australia, a copy of your professional indemnity insurance and personal liability insurance, and a copy of working with children check (or number) or working with vulnerable persons check.
The NDIS appointed verifier will check your identity and matching credentials then issue advice to the registrar.
Every 12 months you will be asked to re-verify your insurance and provide evidence that your membership of Speech Pathology Australia remains current. You will also be required to comply with the NDIS code of conduct. This will not diminish your responsibilities under state and territory child protection legislative requirements, or legal obligations relating to professionals, such as requirements for health practitioners registered with the Allied Health Practitioner Regulation Agency and requirements to meet the code of conduct for unregistered health practitioners.
Scenario 5: an organisation with a broad scope of service, including personal care, which may require clinical skills
Proposed scope of practice: I run a medium-sized service. I employ a mix of disability workers who we train in house and some nurses and allied health practitioners. We support people who have severe physical disabilities and require high levels of personal care, at home or while accessing activities in the community. Our workers will also help with some housework, but we sub-contract garden maintenance and cleaning services. When we do that we take responsibility for supervision of the sub-contractors.
Assessment: there are two steps to registration in this scenario. You are providing a complex service in which you are employing others to undertake tasks of a personal or high-risk nature in an unsupervised context or the participant’s home. Some of the people you support may be vulnerable because of physical or social reasons or both.
The first step is that the owner or CEO would conduct a self-assessment in a form approved by the NDIS registrar, which will confirm which modules your organisation needs certification against. You can choose your own auditor from a panel of auditors trained in the NDIS practice standards. Your auditor will check your self-assessment to ensure you have necessary systems in place for planning and controlling for the risks that you routinely encounter and that you are providing participants with the quality of outcomes they expect. You will also need to demonstrate that you assess potential vulnerability and work with participants to appropriately manage risks. The auditor will advise the NDIS registrar if they consider that you are meeting the standards. If you are not meeting one or more of the standards, the auditor will advise whether this can be remedied over the course of the certification process or whether there is too high a risk and this must be remedied before you are given provisional registration.
You will receive a copy of the NDIS code of conduct, which you are required to discuss with your workers. Both your organisation and your workers will be required to comply with the NDIS code of conduct and all other Commonwealth, state and territory legislative requirements relevant to your service.
If the auditor recommends that you receive provisional registration, the NDIS registrar may include you on the panel of approved providers to undertake the activities specified in your scope of service. You will then have 12 months to achieve certification against the NDIS practice standards relevant to your scope of service. Because you are providing a broad range of services, including personal care, and your workers are in a position of significant responsibility, you will be assessed against the core
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standards and additional specific practice standard modules. As part of the independent assessment process, the auditor will talk to your workers and interview a sample of participants (and their families, if appropriate) to ask them about their experiences. The number of people they need to talk to will depend on how many participants you support. The auditor will also check with the NDIS complaints commissioner to see if there have been complaints or serious incident reports about your organisation and what has happened as a result of those complaints and incidents.
Once you have been certified, there will be two 12-monthly follow-up audits (in years two and three. At the end of the three-year period, you will need to start the certification cycle again.
What happens when an issue with a provider is identified: risk-responsive regulatory systems for disability services typically include the kinds of regulatory responses set out in Figure 5.
Figure 5. Levels of regulatory engagement
Source: ACT Human Services Registrar.
The NDIS registrar will have a range of compliance powers to use in response to the information it receives, including from the complaints commissioner and senior practitioner. The response will depend on the seriousness of the issue, the appropriateness of the provider’s response and the degree of future risk the situation poses. Deregistration will be the last resort.
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Educate and persuade: the primary approach will be to educate, advise and encourage providers to improve practice. This may include general provision of best practice guides and training, including publishing guidance materials that include examples of good and poor practice. Investigate, inspect, conciliate and examine: when a specific problem arises, for example in relation to an audit finding or a serious incident report, the registrar will be able to take more targeted action. This may include requiring compliance reporting proportionate to risk or one-off regulatory action, such as a formal investigation or audit of compliance. Notice of non-compliance/infringement, compensation and enforceable undertakings: when the registrar identifies non-compliance with a relevant NDIS practice standard, they may give the provider a written warning. Depending on the nature of the issue, the provider may then commit to complying in future, undertake training or implement a system to remedy the situation, make restitution/pay compensation, or take other appropriate action. Binding instructions and public warnings: when the situation is more serious, a provider will be required to comply with instructions and could suspended or ‘named and shamed’. Cancellation of registration/exclusion notice: when the situation warrants it, the registrar will be able to formally notify the provider of the intent to cancel their registration or, in the case of unregistered providers found to have breached the code of conduct, issue an exclusion notice that would preclude them providing NDIS funded supports. The provider would be able to make representations before a final decision was made. The Productivity Commission’s inquiry into Disability Care and Support suggested that consideration should be given to a range of other penalties, including redress orders and fines. The ACCC for example, can seek civil and criminal penalties as well as injunctions. Civil pecuniary penalties: a civil penalty is a financial penalty and is designed to deter the person and others from breaching the law. A penalty may only be imposed by the court once it has found that the organisation has breached the law at the civil standard of proof (i.e. on the balance of probabilities). Under Australian Consumer Law for example, a person who is found to have made false or misleading representations may be liable to pay a civil penalty of up to $1.1 million for companies and $220,000 for individuals. In the NDIS context, civil penalties might be appropriate, for example, for failure to report a serious incident or engaging in retribution against a whistle-blower. Criminal convictions and fines: referral pathways for criminal action, for example, if a provider seriously harmed a participant in ways amounting to assault or criminal negligence, or engaged in fraud.
The registrar’s powers would also extend to prohibiting specific practices, such as commissions paid by providers for new business, as well as powers to examine practices already prohibited. This could include for example anti-competitive practices prohibited under the Australian Consumer Law.
Market oversight: the registrar will gather intelligence on the capacity and performance of the market through provider registration, quality assurance and NDIA market data. The patterns of complaints and serious incidents reported to the NDIS complaints
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commissioner will also be considered. The registrar’s market oversight role will also include scrutiny powers relating to providers of difficult-to-replace supports, and providers with a dominant share of the market in a particular location or service type. Rapid expansion or contraction of market share will be tracked as an indicator of changing risk.
The registrar will base the decision that a provider of difficult-to-replace supports needs to be monitored on a range of criteria, including the providers’ scope, speciality of supports provided, geographical reach and risk of the support type. When monitoring is required, the registrar will develop compliance requirements proportionate to the risks the provider is managing. In most cases, this will include provision of standard reporting information already commonly required under contractual funding arrangements. Depending on the nature of the risks involved, this may include financial reporting, reporting on significant governance changes and developing a plan for continuity of service if the provider fails.
Linkages: provider registration will work alongside other elements of the regulatory system. The NDIS complaints commissioner will be able to notify the NDIS registrar of provider non-compliance with the code of conduct. The registrar will be able to refer issues related to the quality of behaviour supports and the use of restrictive practices to the NDIS senior practitioner. The registrar will also be able to make referrals to the Australian Competition and Consumer Commission when it identifies issues related to competition and compliance with Australian Consumer Law and to other state-based bodies as appropriate.
4.3 Corrective
4.3.1 Investigating non-compliance with the code of conduct
The context The vast majority of providers and workers operate in a safe, competent and ethical manner. However, a small proportion may present a serious risk to participants or may operate outside the boundaries of acceptable conduct. To ensure the safety and quality of supports within the emerging NDIS market, it will be important that minimum expectations are set and providers and workers who are not able to meet these are excluded from the NDIS market.
A statutory code of conduct is a mechanism used in some sectors to promote safe and ethical service delivery. It can have both a preventative effect (by clearly setting out expectations of providers) and a corrective effect (by providing a mechanism for excluding providers who engage in unacceptable conduct from the NDIS market). Most codes include a mix of positive statements about duties of practitioners, obligations and prohibitions and positive statements of rights.
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Current policy There is not currently a code of conduct for funded disability services or workers in the sector. Instead, as noted above, all jurisdictions require that funded providers comply with the National Standards for Disability Services or state-specific standards that have been mapped to these.
Some professionals working with people with disability (for example, allied health professionals) also need to comply with a code of conduct for their profession. In some sectors, codes of conduct supplement professional registration requirements. In others, individuals do not need to demonstrate compliance upfront: the code comes into play when a complaint is made or when other evidence indicates a possible breach of the code.
The National code of conduct for (unregistered) Health Workers, agreed by the Council of Australian Governments in April 2015, provides an example of a negative licensing model targeted at individual workers. Box 9 summarises the main provisions of the code. Anyone can make a complaint about a breach of the code. Health complaints entities that administer the code regulation regime have ‘own motion’ powers to initiate an investigation of a possible breach, with or without a complaint. State and territory complaints bodies can issue prohibition orders that bar people who have breached the code. Failure to comply with a prohibition order is a criminal offence.
Box 9: Key provisions in the National Code of Conduct for (unregistered) Health Workers
The code covers the following topics:
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Health care workers to provide services in a safe and ethical manner.
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Health care workers to obtain consent.
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Appropriate conduct in relation to treatment advice.
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Health care workers to report concerns about the conduct of other health care workers.
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Health care workers to take appropriate action in response to adverse events.
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Health care workers to adopt standard precautions for infection control.
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Health care workers diagnosed with infectious medical conditions.
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Health care workers not to make claims to cure certain serious illnesses.
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Health care workers not to misinform their clients.
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Health care workers not to practise under the influence of alcohol or unlawful substances.
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Health care workers with certain mental or physical impairment (that could place clients at risk of harm).
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Health care workers not to financially exploit clients.
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Health care workers not to engage in sexual misconduct.
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Health care workers to comply with relevant privacy laws.
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Health care workers to keep appropriate records.
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Health care workers to be covered by appropriate insurance.
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Health care workers to display code and other information. What’s needed to ensure safe and quality supports for NDIS participants In the consultation, many stakeholders noted a need to set out minimum expectations for all providers of NDIS-funded supports. As it would not be appropriate to require all providers to
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undergo quality assurance, a code of conduct that applies to all providers and workers delivering NDIS-funded supports will help to ensure the quality and safety of all NDIS-funded supports. The code would provide a means of ensuring that sole traders are required to meet standards that will be dealt with by the employer in a larger organisation (for example, a requirement to come to work in a fit state, not impaired by drugs or alcohol). It could also assist self-managing participants using unregistered providers to take action if something goes wrong.
A code of conduct will help to set expectations for providers and individual workers, shape the behaviour and culture of organisations and workers, and empower consumers in relation to their rights. It will also enable providers and workers who commit an unacceptable breach of the code to be excluded from the NDIS market.
Stakeholders’ suggestions for what should be included in a code of conduct were generally consistent with the National Standards for Disability Services. These included prohibiting behaviours that may cause harm, respecting people with disability, listening to and being guided by what a person wants, and respecting people’s right to privacy. Stakeholders also identified the need to address the possibility of behaviours that may not constitute a crime, but which should never be acceptable in the NDIS, such as harsh, rough, exploitative or otherwise unethical treatment; depriving a person of food, sleep or basic needs; bullying, intimidation, or vengeful or deceptive behaviour in response to a complaint or incident.
How it will work: the NDIS code of conduct will be enacted in legislation.
Who must comply: it will apply to all providers, whether or not they are registered with the NDIS registrar, and all workers delivering NDIS-funded supports, whether they are operating as sole traders or employed by registered providers, including contractors, sub-contractors or agents.
Workers who are required to comply with an existing professional code of conduct (for example, the National Code of Conduct for Health Care Workers) will also be required to comply with the NDIS code of conduct, but cooperative arrangements will be developed with other relevant bodies in relation to enforcement. This will ensure a consistent definition of acceptable practice in the NDIS, with minimum additional burden on workers.
What will it cover: there will be a clear line of sight between the code of conduct, the NDIS practice standards and the National Standards for Disability Services. The code of conduct (to be developed) will cover:
the rights of people with disability to be treated with respect; to freedom from discrimination, coercion, harassment and exploitation; to dignity and independence; to be consulted on all matters affecting them; to give informed consent; and to privacy unacceptable behaviour by organisations, including prohibiting providers making false or misleading claims, or claiming to be authorised to provide supports that are outside of
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their approved scope of practice, or support for which there is no evidence of effectiveness, and unacceptable behaviour by individuals such as neglect, financial or sexual exploitation, harsh or rough treatment, depriving a person of food, sleep or basic needs, bullying, intimidation, vengeful behaviour in response to a complaint, or coming to work affected by drugs or alcohol.
Box 10 provides an indication of the statements an NDIS code of conduct could include. There will be a need for further consultation around the development of the code.
Box 10: Indicative elements of an NDIS code of conduct
Workers and providers should:
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Respect the rights and dignity of all NDIS participants, including their right to choice and control and to take reasonable risks.
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Provide supports in a safe and ethical manner with reasonable care and skill.
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Not make false or misleading claims or misinform participants.
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Respect the privacy of participants and comply with relevant privacy laws.
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Take into account the needs, values, and beliefs of different cultural, religious and ethnic groups.
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Communicate in a form, language and manner that enables the participant to understand the information provided and make known their preferences.
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Provide an accessible, fair and impartial complaints and disputes process that allows grievances concerning the support to be raised and resolved.
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Not practise under the influence of alcohol or unlawful substances.
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Not financially exploit clients in any way.
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Not engage in sexual activity, consensual or non-consensual, with a participant to who you are proving supports.
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Keep appropriate records and implement reporting and investigation procedures for serious incidents.
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Offer reasonable supervision and take reasonable steps to ensure staff are competent and supported to perform their role.
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Maintain adequate personal and professional liability insurance appropriate to the risks associated with your practice.
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Display the code of conduct or make it available to participants. How non-compliance will be identified: providers will not be required to demonstrate compliance with the code of conduct, instead potential breaches of the code of conduct will be investigated. As participants may not feel confident to use the complaints process, breaches may also be identified through a range of other avenues including serious incident reporting; the quality assurance process; advice from advocates, community visitors or health professionals; or other public reports.
How non-compliance would be addressed: generally, the NDIS complaints commissioner will be responsible for triaging cases, but both the commissioner and the registrar will be able to identify breaches, initiate their own motion investigations, obtain information from a number of sources and refer cases to each other. Coordination between the commissioner and registrar will ensure their efforts are not duplicated.
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When a potential breach of the code is identified, an initial assessment will determine the appropriate response (see table 3).
Table 3. Triaging approach
Initial triage Regulator role TIER 1: inquiries able to be resolved at initial Provide information or advice, referral to contact. appropriate help. TIER 2: issues that should be referred back to Tracking to ensure issues are successfully resolved providers or to an alternative regulatory agency and take action if necessary. to handle (professional registration body etc.). TIER 3: quick resolution of one-off service related Complaints commissioner will handle. May need issues (including minor breaches) unable to be some investigation or other intervention to help resolved between participant and provider. resolve. Primarily issues related to service quality. TIER 4: service related issues that may raise wider Complaints commissioner will handle. A more issues, for example, common complaints across in-depth investigation may be needed to provide the sector, provider with a high number of best practice guidance to the sector, develop a complaints/ incidents. new practice measure, etc.
TIER 5: possible serious breach of the code of The complaints commissioner will handle initial conduct. assessment.
TIER 6: cases where deregistration, exclusion The complaints commissioner will refer the matter from sector or other serious penalties may be to the registrar for appropriate action or to the warranted, including binding instructions to worker screening function and employers. ensure issues are satisfactorily addressed.
When a provider or worker is found to have breached the code, the NDIS registrar will be able to take a range of actions as appropriate to the breach, including education, advice and, if necessary, imposing conditions on their operation, issuing public warnings, or prohibiting them from providing NDIS-funded supports. It will be an offence to continue to operate despite being deregistered or subject to an exclusion order.
Linkages: the orientation module (which certain workers will need to undertake) will cover the NDIS code of conduct.
Information on individual worker misconduct relevant to working with children or people with disability will be passed from the complaints commissioner to the relevant screening unit for consideration.
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- Glossary of key terms
Agency The National Disability Insurance Scheme Launch
Transition Agency (also NDIA)
Approved restrictive practice A restrictive practice that is used by a provider in relation to a participant, following a process through which the provider has sought, and obtained, formal permission to have the restrictive practice included in the participant’s positive behaviour support plan, through the relevant state or territory approval process. (See also ‘restrictive practice’; ‘unapproved restrictive practice’).
Behaviours of concern Behaviours of such intensity, frequency or duration that the physical safety of the person or others is likely to be placed in serious jeopardy, or behaviour which is likely to seriously limit the use of, or result in, the person being denied access to ordinary community facilities.
Binding instructions An order issued by a relevant regulatory entity with statutory power that requires a provider to undertake particular actions. Actions could involve orders that staff complete training, through to suspension of service delivery while a range of other required actions are being implemented.
Capability (individual) Understanding, skills and knowledge which enable individuals to exercise choice and control, and to participate in the community.
Continuous improvement Ongoing, conscious efforts to identify opportunities to improve service provision, learn from problems that arise, and implement positive changes to operational and governance processes. The aim is to enhance safe, high quality provision of supports to participants.
Corrective measures Actions under the NDIS Quality and Safeguarding Framework that providers and governments need to take to respond to incidents or service failures after these have occurred.
Decision making supports Activities, strategies and other supports (such as appropriate use of communication supports) designed to maximise participants’ ability to exercise
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choice and control and to facilitate more opportunities for a participant to engage in decision-making in their everyday lives.
Developmental measures Actions which enable people to use their own judgement and resources, and contribute to building credible, robust information and exchange systems that allow NDIS participants to seek and share knowledge.
Disability-aware communities Communities that accept, value and support the participation of people with disability.
Disability Reform Council The Council of Australian Governments Disability
Reform Council oversees the trial and implementation of the NDIS. It consists of Commonwealth, state and territory ministers with responsibility for disability policy and supports.
NDIS participant plan The plan approved by the agency CEO which contains the participant’s statement of goals and aspirations and statement of participant supports.
Local area coordinators Local area coordinator roles work with people with disability to improve participation and inclusion. They can be directly employed by NDIA or contracted such as in Tasmania.
Mainstream services Goods, services supports and assistance available for the general community which lie outside funding in the NDIS, including, for example, hospitals, doctors, schools, housing, transport and aged-care services.
Mutual recognition (of quality Aims to identify opportunities for reducing standards) inefficiencies and market-entry barriers by recognising areas where a provider has already demonstrated meeting standards through another service system, where those particular standards (and the methodology for assessing against them) have been formally recognised as satisfactorily aligning with the NDIS Practice Standards.
NDIA The National Disability Insurance Scheme Launch
Transition Agency (NDIA) is an independent statutory agency established under the National Disability Insurance Scheme Act 2013 whose role is to implement the National Disability Insurance
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Scheme.
NDIS National Disability Insurance Scheme.
NDIS funded supports Products and services which are funded by the NDIA (the Agency) under a NDIS participant plan.
NDIS Market The competitive marketplace that aims to be responsive to participants’ needs and facilitates participants being able to seek and receive high quality supports from providers through the NDIS.
Participant A person with a disability who has been assessed by the NDIA as meeting the eligibility criteria to become a participant in the NDIS.
Plan Intermediary A role which provides support to a participant to implement one or more components of their plan.
Planner A person employed by the NDIA to assist a person with disability through the planning process and in the development of an individual support plan.
Plan Nominee A person approved by the NDIA to undertake all activities that a participant would undertake under the NDIS, including the preparation, review or replacement of the participant’s plan; and/or the management of the funding for supports in the participant’s plan; with the exception of any acts relating to the plan for which the NDIA has ruled must be done by the participant personally.
Positive behaviour support A range of proactive strategies implemented to identify and address the underlying causes of behaviours of concern through an individual functional behavioural assessment and development of a positive behaviour support plan. Positive behaviour support strategies may include implementing changes to the environment and psychological interventions such as cognitive behavioural therapy.
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Positive behaviour support plan A positive behaviour support plan for a person (PBSP) with an intellectual or cognitive disability is a plan that describes the strategies to be used to: (a) meet that person’s needs (b) support that person’s development of skills (c) maximise opportunities through which that person can improve their quality of life (d) reduce the intensity, frequency and duration of behaviour that causes harm to the person or others. The plan should also specify the conditions under which restrictive practices (if required) may be used.
Positive behaviour support Someone who has been approved as an NDIS practitioner registered provider to provide complex behaviour supports to NDIS participants. Will have to demonstrate the ability to meet competency requirements relating to the development, implementation, review and monitoring of the positive behaviour support plan.
Preventative measures Actions under the NDIS Quality and Safeguarding Framework designed to prevent harm being caused to people with disability.
Proportionate to risk This means any regulatory arrangements implemented under the NDIS Quality and Safeguarding Framework that are appropriate based on the risk to participants associated with the service or support type.
Provider See ‘registered’ and ‘unregistered’ provider definitions.
Quality The extent to which a support being delivered by a provider is able to meet or exceed a participant’s needs and expectations; and the extent to which that provider is meeting or exceeding the relevant NDIS requirements as implemented under the scheme’s quality and safeguarding arrangements.
Quality certification Involves a formal recognition from an independent auditing body (certified in accordance with the relevant NDIS requirements) that a provider has demonstrated the ability to meet or exceed specified standards.
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Registered provider A person or organisation registered with the NDIS to provide supports to participants or to manage the funding for supports for participants.
Registration Providers of supports need to apply and be approved by the chief executive officer of the NDIA to be registered with the NDIA, in accordance with the requirements set out in the National Disability Insurance Scheme Act 2013.
Regulatory arrangements Requirements designed to improve the safety and quality of support delivery that may include a combination of policies, registration, legislation, worker screening, supervision and development and monitoring and reporting.
Responsive regulation An approach to regulation that applies a regulatory response to an incident or issue that is in proportion to its impact on participants and implications for the NDIS market. Typically involves a hierarchy of responses, ranging from education and advice, through to deregistration and sanctions.
Restrictive practice Any intervention which restricts the rights or freedom of movement of a person with disability who displays behaviours of concern, where the primary purpose of that intervention is to protect them, or others, from harm. It is a last resort intervention that occurs in the context of a positive behaviour support plan and should be used in proportion to the risk posed by the behaviour it is intended to address (see also ‘approved restrictive practice’ and ‘unapproved restrictive practice’).
Risk-based See ‘Proportionate to risk’.
Risk to participants Risk to participants is principally about the potential of supports to cause harm or be unsafe in some way.
Safeguarding Actions designed to protect the rights of people to be safe from the risk of harm, abuse and neglect, while maximising the choice and control they have over their lives.
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Scheme The National Disability Insurance Scheme
Self-managing Refers to a participant who chooses to be responsible for finding and arranging their supports, making payments to their chosen providers and managing their plan expenditure in accordance with the provisions of the National Disability Insurance Scheme Act 2013.
Serious incident An event which threatens the safety of participants or others, or that involves an act of fraud. Some jurisdictions use the term ‘client incident’ or ‘critical incident’.
Support coordinator A role providing participants with more targeted support to coordinate, implement and manage their NDIS plan, where this has been identified as a need for the individual participant and approved by the NDIA.
Supported decision-making A range of processes to support individuals to exercise their legal capacity and make their will and preferences known – see also “Decision making supports”.
Supports Different forms of assistance offered to a person with disability to enhance their quality of life and assist them to meet their goals. Supports can include, for example, personal care or transport, as well as activities of the NDIA provided in relation to a participant such as local coordination and referral.
Unapproved restrictive practice A restrictive practice that is used by a provider in relation to a participant when approval (through the relevant state or territory approval process) has not been obtained to include it in the participant’s positive behaviour support plan. This is classified as a serious incident for reporting purposes.
Unregistered provider A provider supports an NDIS participant, but is not registered as an NDIS provider.
Verification Involves an independent check that a provider seeking to obtain or retain registration meets the defined criteria relevant to their scope of service. May include, for example, verifying that insurance is current and appropriate to the service offering;
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and that staff have appropriate qualifications pertaining to their intended service offering, where professional qualifications are required.
Worker screening Involves arrangements for deciding whether an individual worker (or prospective worker) will pose an unacceptable risk to people receiving a service.
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Attachment B
Compliance and
Enforcement
Policy
V2.0 – June 2019
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PO Box 210, Penrith NSW 2750.
Copyright
© Commonwealth of Australia 2019
The NDIS Quality and Safeguards Commission encourages the dissemination and exchange of information provided in this policy. The material in this policy is licensed under a Creative Commons Attribution 4.0 International licence, with the exception of: the Commonwealth Coat of Arms the NDIS Quality and Safeguards Commission logo
any third party material any material protected by a trademark any illustration, diagram, photograph or graphic over which the NDIS Quality and Safeguards Commission does not hold copyright, but which may be part of or contained within this policy.
More information on this CC BY licence is set out at the creative commons website: www.creativecommons.org. Enquiries about this licence and any use of this policy can be sent to: communications@ndiscommission.gov.au
Attribution
Use of all or part of these guidelines must include the following attribution:
© Commonwealth of Australia 2019
Using the Commonwealth Coat of Arms
Terms of use for the Coat of Arms are available at this website: https://www.pmc.gov.au/government/commonwealth-coat-arms
Important notice
The information in this policy is for general guidance only. It does not constitute legal or other professional advice, and should not be relied on as a statement of a law in any jurisdiction. You should obtain professional advice if you have any specific concern.
The NDIS Quality and Safeguards Commission has made every reasonable effort to provide current and accurate information, but it does not make any guarantees regarding the accuracy, currency or completeness of that information.
Parties wishing to re-publish or otherwise use the information in this policy must check this information for currency and accuracy prior to publication. This should be done prior to each publication edition, as NDIS Quality and Safeguards Commission guidance and relevant legislation may change. Any queries should be addressed to communications@ndiscommission.gov.au
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Table of contents
Table of contents ii
Compliance and enforcement 1
Regulatory framework 1
Human Rights 2
Procedural fairness 2
Compliance and enforcement strategy 2
The compliance pyramid 3
Educate and persuade 4
Investigations 5
Compliance notices 6
Enforceable undertakings 6
Injunctions 7
Infringement notices 7
Civil penalties 7
Vary, suspend or revoke registration 8
Banning orders 9
Reviewable decisions 9
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Compliance and enforcement
Monitoring and compliance is important to the NDIS Quality and Safeguards Commission’s work as a regulator. It is one of the ways that the NDIS Commission can encourage best practice among NDIS providers and manage risk to NDIS participants.
The NDIS Commission will work with NDIS providers to help them comply with the new quality and safeguards requirements, including through education and training about their obligations.
The NDIS Commission will monitor registered providers for compliance with the conditions of their registration. Most registered providers must undergo a periodic audit that assesses their performance against the NDIS Practice Standards.
By knowing more about what happens in the NDIS marketplace, the NDIS Commission can work to support ongoing improvement.
The NDIS Commission will also investigate complaints and reports of non-compliance with the NDIS Practice Standards, Code of Conduct and other quality and safeguards requirements where they apply.
The NDIS Commission has the power to investigate any matters relating to registered and unregistered providers and workers. It can impose penalties, including, in the most serious cases, banning workers, de-registering providers and seeking civil penalties.
In determining its response to non-compliance, the NDIS Commission and Commissioner considers a range of factors including:
the impact of non-compliance on the person with disability, and the broader community
whether there is any immediate or ongoing risk to the well-being of the NDIS participant
the seriousness of any non-compliance and the actual or potential harm or consequences
how far below acceptable standards the conduct falls and the extent to which the person contributed to the risk, including whether it was intentional, reckless, negligent or a mistake
potential to return the provider to full compliance, and as soon as possible.
Regulatory framework
The NDIS Commission’s regulatory powers and functions are set out in the National Disability Insurance Scheme Act 2013 (the Act) and associated Rules.
These functions are developmental, preventive and corrective, and target individuals, the workforce and providers to:
strengthen and build capacity
prevent harm and improve the quality of services
resolve problems and provide oversight.
1
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Non-compliance may be handled using a mix of tools including education, capacity building and development for people with disability (and their NDIS providers and workers), complaints handling, compliance and enforcement functions and related powers.
The NDIS Commission will take a responsive and proportionate approach to regulation, applying the strongest actions to the most serious issues and breaches.
Human Rights
The NDIS Commission will undertake its regulatory functions in accordance with the Act and with due regard to the United Nations Convention on the Rights of Persons with Disabilities (the Convention).
The NDIS Commission aims to uphold the rights of people with disability, as part of Australia’s commitment to the Convention, to prevent exploitation, violence and abuse of people with disability. The NDIS Commission achieves this through:
balancing the need to provide appropriate protections, with the need to enable people with disability to exercise choice and control
focussing on building the capacity of people with disability, their families and carers to make informed decisions about NDIS providers and pursue concerns or complaints
supporting a responsive and effective NDIS market for disability supports and services.
Procedural fairness
In exercising compliance, investigation and enforcement powers, the NDIS Commission will adhere to the requirements of procedural fairness which means:
the Commissioner and staff of the NDIS Commission will avoid actual and perceived conflicts of interest and act in an impartial and objective manner
affording a person an opportunity to be heard before making a decision affecting their interests.
Compliance and enforcement strategy
The NDIS Commission aims to achieve a balance between supporting people with disability to make informed choices, while also promoting high quality supports and services with appropriate safeguards to support the development of a responsive and effective NDIS market.
To achieve these objectives, the NDIS Commission will engage the following integrated strategies:
encourage compliance with the law by educating and informing providers, participants and others about their rights and responsibilities under the Act
work with other agencies to implement these strategies, including through coordinated approaches and appropriate referrals
analyse emerging risks to identify potential market risks to inform compliance and enforcement measures, and identify priorities for regulation
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enforce the law, including through the use of administrative action and by initiating formal enforcement proceedings where that is necessary and appropriate.
If the NDIS Commission has concerns that an NDIS provider may not be complying with legislative requirements, or may become unable to comply, the initial focus of the NDIS Commission’s approach, where appropriate, is to engage with the NDIS provider to support compliance.
Relevant considerations for the NDIS Commission in determining what, if any, further actions are to be taken will include: whether the provider has an understanding of the problem; whether the provider demonstrates a willingness to act to address the problem; whether the provider has a history of non compliance; whether the non-compliance appears to be serious or systemic.
The compliance pyramid
A wide range of tools, methods and powers are available to the NDIS Commission. The actions to be taken will be determined on a case by case basis, including:
the seriousness of the issue
the appropriateness of the person’s response
the likelihood of further harm.
The compliance and enforcement actions available to the NDIS Commission are:
administrative (these actions include education, formal warning letters, complaints resolution, compliance notices, infringement notices, revoking registration, and bans) or court-based (these actions include injunctions, taking action to enforce an undertaking, and civil penalties).
Administrative measures may enable earlier resolution than court action, and may also lend themselves to achievement of appropriate and timely outcomes that are in the participant’s, provider’s and/or public interest.
Information gathering, inquiry and monitoring powers will be used to help prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services.
A monitoring activity, such as a site visit or regular contact with people working in the NDIS market, may assess compliance with the Act generally or may target particular responsibilities or obligations. This will help the NDIS Commission to make decisions about any further regulatory actions or support that may be necessary.
The Ayres & Braithwaite regulatory pyramid1 helps to illustrate how the NDIS Commission works to support participants’ choice and control and to support a responsive and effective NDIS market.
1 I. Ayres and J. Braithwaite (1992) Responsive Regulation: Transcending the Deregulation Debate. New York: Oxford University
Press. http://johnbraithwaite.com/monographs/
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Figure 1: Compliance Pyramid
The pyramid helps to show how the NDIS Commission takes a responsive and proportionate approach to regulation, applying the strongest actions to the most serious issues and breaches. It also demonstrates the ability to escalate actions if an initial response does not achieve the intended outcome.
Some actions or regulatory tools are alternatives, while others are used in combination. Using a range of tools from the base of the pyramid may often achieve compliance fairly quickly without needing to escalate to more serious enforcement action, if appropriate. However, it is also open to the NDIS Commission to proceed directly with the strongest actions in a particular case.
Educate and persuade
The primary approach to achieving ongoing compliance and building the capacity of the sector is to educate, advise and encourage NDIS providers and workers to identify and understand their obligations and improve their practice.
Measures may include practical advice to improve outcomes, targeted education and outreach activities, engaging with the regulated community at the earliest possible stage, and providing timely information and advice through the NDIS Commission website, social media, and information sessions.
Such measures help to:
raise awareness of the benefits of compliance, and the various measures that will be taken to address non-compliance
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remove barriers to compliance, such as lack of awareness about obligations, confusion with other regulators, or particular accessibility needs
promote the objects of the Act, Practice Standards and NDIS Code of Conduct
support a reduction in restrictive practices
reduce the risk that people will inadvertently take action that constitutes a breach.
Having provided advice or guidance to achieve compliance and being satisfied a provider has taken timely and satisfactory steps to remedy a breach, the NDIS Commission may decide to take no further action.
If a provider is not making timely progress to rectify non-compliance the NDIS Commission will consider what additional action may be required to ensure the provider meets their responsibilities.
Investigations
The NDIS Commission will work with NDIS providers to support compliance with the new quality and safeguards requirements, including through education and training about their obligations.
The NDIS Commission may also investigate complaints and reports of non-compliance with the NDIS Practice Standards, NDIS Code of Conduct and other legislative requirements. The NDIS Commission can commence an own motion investigation into any matter relating to compliance by registered and unregistered providers and workers.
The NDIS Commission can exercise monitoring investigation powers (under Part 2 of the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act) to check compliance with the Act or whether any information provided pursuant to the Act is correct. Broader investigation powers under Part 3 of the Regulatory Powers Act can be used where there is a suspicion that there has been non compliance with any civil penalty or offence provision.
The NDIS Commission’s information gathering powers under section 55A of the Act can be utilised regardless of whether or not there has been non-compliance in accordance with the functions of the NDIS Commission.
An investigation is the process of seeking information about alleged, apparent or potential non compliance, and may support, precede or follow other action taken by the NDIS Commission.
NDIS Commission staff follow the Australian Government Investigations Standards and a range of other statutory requirements and policies, including:
Regulatory Powers Act
Prosecution Policy of the Commonwealth
Guidelines on Disclosure to CDPP by Investigative Agencies
Legal Services Directions under the Judiciary Act 1903
Australian Public Service (APS) values and APS Code of Conduct
Australian and New Zealand Risk Management Standards (AS/NZ ISO 31000:2009)
Crimes Act 1914
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Compliance notices
A compliance notice is a direction to a provider to do specified things or refrain from doing specified things where the NDIS Commission believes or suspects that there has been non-compliance with the Act.
Where there is a history of non-compliance or of the provider failing to co-operate and engage with the NDIS Commission, or where the non-compliance poses a significant risk to the health, safety and wellbeing of people with disability, a compliance notice may not be appropriate.
A compliance notice:
must briefly set out the non-compliance or suspected non-compliance together with the action to be taken by the provider
must also set out a reasonable time for the provider to take remedial action to rectify the non compliance
may also require the provider to produce evidence of the action taken to address the non compliance.
Failure to comply with the requirements of a compliance notice may result in a civil penalty.
Enforceable undertakings
An enforceable undertaking is a legally binding agreement that may be entered into as an outcome of compliance activity, a complaints resolution process, such as conciliation, or as an alternative to civil penalty proceedings.
An enforceable undertaking is a written agreement committing the provider to a specific action (or inaction) in order to prevent, or respond to, the contravention of a provision of the Act. It provides an opportunity for significant improvement and/or reform to occur. An enforceable undertaking can be entered into in relation to a contravention or alleged contravention of the Act.
Undertakings provide a remedy other than financial sanctions, such as those that may be applied as a result of civil penalty proceedings. The NDIS Commission is able to apply to the Federal Court to have the undertaking enforced. The court may make any order it sees fit, including orders that the provider comply with the undertaking or pay a pecuniary penalty.
The availability of an enforceable undertaking in connection with a contravention will involve consideration of a number of factors, including:
the nature and extent of a contravention
the quality of the remedial action proposed and the extent to which it achieves measurable improvements for the safety of people with disability;
the person’s capacity and willingness to meet the undertaking
the likelihood that the enforceable undertaking will deliver real benefits to people with disability, the NDIS market or community beyond that which would normally be expected of a provider.
An enforceable undertaking will generally not be accepted in circumstances where there has been a serious contravention causing harm to a person with disability.
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Injunctions
An injunction can be used to compel a person to take certain action, or to refrain from taking certain action.
The NDIS Commission may seek an injunction from a court where:
there is a serious risk to the health, safety or wellbeing of people with disability that has not been remedied
other mechanisms available to the NDIS Commission have not resulted, or are not likely to result, in compliance being secured.
Injunctions may be used to restrain a provider from contravening a provision of the Act, or to compel compliance with a provision of the Act. Injunctions can be sought from a court to prevent conduct, require a provider to engage in certain conduct whether or not the specified conduct is occurring, has occurred in the past, or is likely to give rise to an imminent danger to people with disability.
This ensures that a court can prevent or require conduct to uphold the purposes of the Act without having to wait for non-compliance to occur.
Infringement notices
The NDIS Commission may give a person an infringement notice in response to an alleged breach of a civil penalty provision of the Act and as an alternative to taking court action. An infringement notice gives a person a chance to avoid court action over an alleged contravention by paying the penalty stated in the notice.
Paying an infringement notice is not an admission of liability. Payment of the penalty within the time specified means that court proceedings seeking a civil penalty cannot be brought against the person in relation to the alleged contravention.
If the person given an infringement notice chooses not to pay the penalty, then the NDIS Commission may bring court proceedings to have the court order the person to pay a financial penalty (which may be a greater amount than that stated in the infringement notice).
See the NDIS Commission’s Infringement notice policy.
Civil penalties
A civil penalty is a financial penalty imposed by a court. Civil penalties are not criminal matters and do not result in a person being convicted of an offence. The aim of civil penalties is to deter people from breaching the law. The sections of the Act which carry a civil penalty for non-compliance are as follows:
Table 1 - Civil Penalty Provisions
Requirement Maximum Penalty Units
Registered NDIS providers must comply with conditions of 250 units (individual) registration 1250 units (corporation)
Failure to comply with NDIS Code of Conduct 250 units (individual) 1250 (corporation)
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Requirement Maximum Penalty Units
Requirement to be a registered NDIS provider 250 units (individual) 1250 (corporation)
False or misleading information or documents in application to 60 units (individual) become a registered provider 300 (corporation)
Record keeping by registered NDIS providers (because it is a 250 units(individual) condition of registration) 1250 (corporation)
Record keeping by former registered NDIS providers 60 units (individual) 300 (corporation)
Victimisation of a person who discloses information (whistle- 500 units (individual) blower) prohibited 2500 (corporation)
Failure to comply with a compliance notice 60 units (individual) 300 (corporation)
A person engages in conduct that breaches a banning order made 1000 units (individual) against that person 5000 (corporation)
The maximum penalty units (as set out in the table) applicable to each provision demonstrate the seriousness of the breach. Where the person who has breached a civil penalty provision is a body corporate the maximum penalty payable is 5 times the prescribed penalty units. Currently, one penalty unit equals $210.
Any conduct that is ancillary to the contravention of a civil penalty provision is taken to be a contravention of the provision. Ancillary conduct includes any attempt to contravene a provision, aiding or inducing a contravention of a civil penalty provision, or conspiracy to contravene a civil penalty provision.
A provider is responsible for the actions of any of its workers in relation to the contravention of a civil penalty provision.
Vary, suspend or revoke registration
The NDIS Commission may decide to vary, suspend or revoke a provider’s registration in order to deal with inappropriate conduct or practices. Such action is a protective measure and may be undertaken even where steps have been taken to remedy a contravention or where a provider has otherwise been the subject of more formal compliance action.
The NDIS Commission may vary the registration of a registered NDIS provider at the NDIS Commission’s own initiative at any time. Possible variations to a registered NDIS provider’s registration include:
imposing, varying or revoking conditions to which the registration is subject
reducing the period for which the registration is in force
placing limits on the supports or services the provider is authorised to provide.
As the variation, suspension or revocation of a provider’s registration may have serious consequences for people with disability and the provider, the NDIS Commission will balance these considerations with the paramount need to prevent harm to people with disability when making a decision.
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Banning orders
The NDIS Commission may make a banning order that prohibits or restricts specified activities by a provider or a person employed or otherwise engaged by a provider.
A banning order is one of the most serious regulatory responses to prevent a person from providing supports or services in the NDIS market. It is intended to apply to an NDIS provider or person employed or otherwise engaged by an NDIS provider in circumstances where it is the most appropriate regulatory option available to prevent people with disability from experiencing harm arising from poor quality or unsafe services provided under the NDIS. The civil penalty in relation to this provision of the Act is therefore substantial, to indicate the serious nature of non-compliance with a banning order.
A banning order may only be made, in accordance with natural justice principles, where the person has been given an opportunity to make submissions to the Commissioner on the matter, except in the following circumstances:
where there is immediate danger to the health, safety or wellbeing of a person with disability
where the NDIS Commission has revoked the registration of the NDIS provider.
Where the NDIS Commission is satisfied that it is appropriate to do so, it may vary or revoke a banning order. This may be done on the NDIS Commission’s own initiative or on application by the person against whom the order was made.
Reviewable decisions
A person can seek review of certain types of decisions if they are directly affected by the decision. When the NDIS Commission undertakes this review, it is known as an internal review.
An internal review must be undertaken by an officer of the NDIS Commission who was not involved in making the original decision.
A request for review may be made to the NDIS Commission by:
sending or delivering a written request by mail or email
making an oral request, in person or by phone, or other means to the Commissioner.
A person affected by a decision who is not satisfied with the outcome of an internal review may apply for the decision to be reviewed by the Administrative Appeals Tribunal (AAT).
The decision stays in place until and unless another decision is made. However, a person may request that the AAT make an order staying or otherwise affecting the implementation of the decision.
Table 2 - Decisions Subject to Review
Decision Section
A decision to refuse to register a person as a registered NDIS provider s 73E
A decision to impose conditions to which a person’s registration as a registered NDIS s 73G provider is subject
A decision to vary, or refuse to vary, the registration of a registered NDIS provider s 73L
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Decision Section
A decision to suspend the registration of a registered NDIS provider s 73N
Aa decision to revoke, or not to revoke, the registration of a person as a registered s 73P NDIS provider
Aa decision to give a compliance notice to an NDIS provider s 73ZM
A decision to make a banning order s 73ZN
A decision to vary, or to refuse to vary or revoke, a banning order s 73ZO
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Attachment C
Positive Behaviour Support
Capability Framework
For NDIS providers and behaviour support practitioners
June 2019
attachment page 118
Suggested Citation
NDIS Quality and Safeguards Commission (2019). Positive behaviour support capability framework: For NDIS providers and behaviour support practitioners. Penrith, Australia: NDIS Quality and Safeguards Commission.
Available: https://www.ndiscommission.gov.au/pbscapabilityframework
This document was prepared by the Centre for Disability Studies, an affiliate of the University of
Sydney for the National Disability Insurance Scheme (NDIS) Quality and Safeguards Commission
(April 2019).
Authors
Clinical Professor Vivienne Riches, Centre for Disability Studies
Ms Laura Hogan, Centre for Disability Studies
Ms Sarah Wagstaff, Centre for Disability Studies
Ms Sharon Brandford (Consultant to Centre for Disability Studies)
Acknowledgements
The Positive Behaviour Support Capability Framework was developed in consultation with people with a lived experience of cognitive impairment and representatives from peak bodies including Inclusion Australia, New South Wales Council for Intellectual Disability (NSW CID) (VALID), and the Community Living Association. An international and national reference group of subject matter experts (listed below) were also involved in the development of this framework.
Feedback from consultations and focus groups held in March 2019 was incorporated into the Positive Behaviour Support Capability Framework. It included input from representatives of the
States and Territories’ Behaviour Support Working Group, Senior Practitioners Leadership Group,
Australian Government Department of Social Services Policy Branch, National Disability Services
(NDS) service provider members from all states and territories, and Allied Health Professions Australia (AHPA).
Subject Matter Experts
Name Title
Mr Peter Conway Manager Independent Specialists
FACS Central Restrictive Practices Team, Disability Services
New South Wales Department of Family and Community Services
New South Wales
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Name Title
Ms Nicola Crates Executive General Manager
Practice Innovation and Service Development
Oakdale Enterprises
Tasmania
Professor Leanne Dowse Director Establishment, Disability Innovation Institute
Chair, Intellectual Disability Behaviour Support
School of Social Sciences
University of New South Wales
New South Wales
Mr Brent Hayward PhD Candidate
Melbourne Graduate School of Education
The University of Melbourne
Victoria
Dr Frank Lambrick Senior Practitioner
Office of Professional Practice
Community Services Operations Division
Department of Health and Human Services
Victoria
Professor Keith McVilly Professor of Disability and Inclusion
School of Social and Political Sciences
The University of Melbourne
Victoria
Professor Karen Nankervis School of Education, The University of Queensland, and
Executive Director and Chair
Centre of Excellence for Clinical Innovation and Behaviour Support
Disability Services Department of Communities
Child Safety and Disability Services
Queensland
Mr Douglas Payne Senior Manager/ Manager Behaviour Support
The Benevolent Society, Illawarra and Shoalhaven
New South Wales
Mr Matthew Spicer Psychologist, MAPS, Practice Leader
Possibility
Tasmania
Clinical Associate Professor Acting Senior Practitioner
Lynne Webber Office of Professional Practice
Community Services Operations Division
Department of Health and Human Services
Victoria
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Contents
The Positive Behaviour Support Capability Framework …………………………………………………… 5
Context …………………………………………………………………………………………………………………………….. 5
Introduction ……………………………………………………………………………………………………………………… 5
Acknowledgements …………………………………………………………………………………………………………… 6
Purpose ……………………………………………………………………………………………………………………………. 7
Legislative Context …………………………………………………………………………………………………………….. 7
Who Is the PBS Capability Framework For? ………………………………………………………………………….. 8
Positive Behaviour Support in a Team ………………………………………………………………………………… 11
Other Stakeholders ………………………………………………………………………………………………………….. 11
The Capability Domains …………………………………………………………………………………………….. 13
Principles and Values ……………………………………………………………………………………………………….. 14
The PBS Capability Framework …………………………………………………………………………………… 15
- Interim Response …………………………………………………………………………………………………. 16
- Functional Assessment ………………………………………………………………………………………….. 19
- Planning ………………………………………………………………………………………………………………. 23
- Implementation ……………………………………………………………………………………………………. 27
- Know it Works ……………………………………………………………………………………………………… 30
- Restrictive Practice ……………………………………………………………………………………………….. 33
- Continuing Professional Development and Supervision …………………………………………….. 37 References ………………………………………………………………………………………………………………. 40
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The Positive Behaviour Support Capability Framework
Context
The National Disability Insurance Scheme Quality and Safeguards Commission (NDIS Commission) is
committed to developing and implementing a Positive Behaviour Support Capability Framework (PBS Capability Framework) that is consistent with the intent of the law in its behaviour support function. The PBS Capability Framework guides the NDIS Commission’s work on behaviour support capability and is used to consider the suitability of behaviour support practitioners to deliver specialist behaviour support services.
The PBS Capability Framework satisfies section 181H of the National Disability Insurance Scheme Act 2013 (Cth) that states:
The NDIS Commissioner’s behaviour support function is to provide leadership in relation to behaviour support, and in the reduction and elimination of the use of restrictive practices, by NDIS providers, including by:
(a) building capability in the development of behaviour support through:
i. developing and implementing a competency framework for registered NDIS providers whose registration includes the provision of behaviour support assessments and developing behaviour support plans; and
ii. assessing the skills and experience of such providers against the competency framework.
Introduction
The PBS Capability Framework outlines the capabilities required of individuals providing behaviour support under the National Disability Insurance Scheme (NDIS). The PBS Capability Framework has been produced by the NDIS Commission using best practice positive behaviour support (PBS) as its guidance.
For the purposes of this document, PBS will be defined using the definition adopted in the National framework for reducing and eliminating the use of restrictive practices in the disability services sector (Australian Government, 2014, p. 4), that states:
Positive behaviour support is the term used to describe the integration of the contemporary ideology of disability service provision with the clinical framework of applied behaviour analysis. Positive behaviour supports are supported by evidence encompassing strategies and methods that aim to increase the person’s quality of life and reduce challenging behaviour (Source note: Carr, et al., 2002; Singer & Wang, 2009).
Using the above definition of PBS, the PBS Capability Framework aims to establish expectations of best practice behaviour support for NDIS participants. This includes practitioners with values, knowledge and skills aligned to the PBS Capability Framework; professional progression and recognition for practitioners; and the appropriate safeguards for all relevant stakeholders. It is acknowledged that the NDIS has led to unprecedented sector change, which has impacted significantly on the behaviour support workforce across Australia. In response to these challenges,
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the NDIS Commission aims to strengthen the workforce and support its growth and capacity by articulating the capabilities to provide PBS under the NDIS.
By articulating capabilities, the PBS Capability Framework does not outline minimum years of practice, qualifications, training or professional development required to be a behaviour support practitioner; nor does it provide guidance on how practitioners can maintain registration with their professional accreditation body, if applicable. Rather, the PBS Capability Framework is designed to raise the standard of practice for the delivery of behaviour support services and encourage NDIS providers to work incrementally towards excellence.
The NDIS Commission acknowledges the complexity of providing high-quality PBS and uses a tiered approach to capture the breadth and depth of practitioner skills and knowledge. The PBS Capability Framework is designed to support providers, practitioners and organisations to acquire capabilities at incremental levels. The ultimate goal of the PBS Capability Framework is to build a highly skilled and capable workforce that focuses on improving the wellbeing and quality of life of people with disability who require behaviour support services.
Acknowledgements
The development of the PBS Capability Framework was informed by considering information from a range of sources. This included a review of previous work completed on a draft competency framework (Birgden, 2018) and literature review; consultation with the States and Territories’ Behaviour Support Working Group (2018a, 2018b); and feedback from peak disability organisations in 2017-18.
Additional consultation occurred with key stakeholders with subject matter expertise, peak bodies and people with lived experience of cognitive impairment as identified by the NDIS Commission in
- The NDIS Commission thanks key stakeholders who participated in the consultations for this framework. The consultations that occurred in 2019 provided consensus for the guiding principles and values on which the PBS Capability Framework has been built. The views of people with lived experience and peak bodies also highlighted the need for practitioners to demonstrate these principles and values by listening to and valuing the voices of people with disability, and using empathy, interpersonal skills and teamwork.
The NDIS Commission also recognises the following significant documents that were used in the conceptualisation and development of the PBS Capability Framework:
National framework for reducing and eliminating the use of restrictive practices in the disability services sector (Australian Government, 2014)
Service standards 2016/2017. Supplementary module 2 — Behaviour support [Unpublished] (Nankervis, Lambrick, & Koelink, 2017)
National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules
2018 (Australian Government, 2018a)
National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules
2018 (Australian Government, 2018b)
National Disability Insurance Scheme (Quality Indicators) Guidelines 2018 (Australian Government, 2018c)
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Challenging behaviour and learning disabilities: Prevention and interventions for people with learning disabilities whose behaviour challenges (National Institute for Health and Care Excellence, 2015)
Positive Behaviour Support: A scoping review of best practice frameworks (NDIS Quality and
Safeguards Commission, 2018)
Positive Behavioural Support: A competence framework (Positive Behavioural Support Coalition UK, 2015).
Purpose
The purpose of the PBS Capability Framework is to:
Define the principles and values base of PBS
Define the key capability domains of best practice PBS in the NDIS context that is person centred and rights-based
Embed a clear commitment to the reduction and elimination of restrictive practices and a focus on proactive practice
Maintain and develop the existing workforce by providing a framework for capability development and career progression
Outline expectations for supervision and continuing professional development within the behaviour support context.
Legislative Context
Underpinning the PBS Capability Framework is the NDIS Act 2013 (Cth), which supports the United Nations (2006) Convention on the Rights of Persons with Disabilities (CRPD) (Chan, French, & Webber, 2011). As such, it is expected that all behaviour support practitioners will be familiar with its general obligations (Articles 3 to 9) and particularly mindful of their obligations under Articles 12, 13, 14, 16, 19, 21 and 26.
Article 12: Equal recognition as a person before the law. This article recognises the right to protection from abuse through support to work on legal and financial issues; that rights and choices are respected; and that support is given to make decisions without coercion.
Article 13: The right to justice.
Article 14: The right to liberty and security. This article recognises the importance of protection against the removal of liberty illegally and without reason, and to protections under the law if liberty is taken away.
Article 16: Freedom from exploitation, violence and abuse. This article is the most direct link with the Australian Government’s (2014) commitment to the reduction and elimination of restrictive practices, and is supported by a Zero Tolerance Framework (National Disability Services, 2016; 2018).
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Article 19: Living independently and being included in the community. This article covers people making choices about where they live, who they live with, and the supports they seek to be part of the community.
Article 21: Freedom of expression and opinion, and access to information. This article is about the right to say what one thinks through the type of communication that a person chooses.
Article 26: Habilitation and rehabilitation. This article covers actions that make it possible for people with disability to enjoy maximum independence, full abilities, and be involved in all aspects of life.
In addition to the CRPD, it is expected that behaviour support practitioners will have a thorough understanding of the,
NDIS (Provider Registration and Practice Standards) Rules 2018, the NDIS (Restrictive Practices and Behaviour Support) Rules 2018 and the NDIS (Quality Indicators) Guidelines 2018 under the NDIS Act 2013 (Cth), and other relevant national laws
Relevant state and territory laws and policies.
As the PBS Capability Framework is a national document, practitioners are expected to apply the capabilities outlined below within their own state or territory laws and policies. This includes meeting legal obligations within state and territory requirements to obtain consent for service provision and the use of restrictive practices and consultation with the NDIS participant, their family, carers, guardian or other relevant person.
Who Is the PBS Capability Framework For?
The PBS Capability Framework is for behaviour support practitioners who intend to register in their own right as sole practitioners under registration group 0110 (specialist behaviour support), or behaviour support practitioners who will be working for, or be engaged by, a registered 0110 service provider. These practitioners need to be considered suitable by the NDIS Commission to deliver specialist positive behaviour support as an NDIS behaviour support practitioner (NDIS Guidelines, Australian Government, 2018c). According to the NDIS Rules, an NDIS behaviour support practitioner can “undertake behaviour support assessments (including functional behaviour assessments) and … develop behaviour support plans that may contain the use of restrictive practices” (Australian Government, 2018b, p.3).
There are four levels of behaviour support practitioners within the PBS Capability Framework. These levels articulate the capabilities of a core practitioner through to recognising the expertise of highly experienced and specialist practitioners. Figure 1 demonstrates the progression pathway for practitioners through the framework.
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Core Practitioner
Proficient
Practitioner
Advanced Specialist
Practitioner Practitioner
Figure 1: Progression pathway for NDIS behaviour support practitioners through
the PBS Capability Framework
Behaviour Support Practitioner Levels
Practitioner levels within this framework are defined as follows.
- Core: This level describes the expectations of an entry-level behaviour support practitioner. The core practitioner is expected to:
Recall, understand and apply concepts relating to disability and PBS in general circumstances
Have a core understanding of other models of practice which are complementary to PBS (e.g., environmental enrichment, person-centred active support)
Access and actively participate in supervision and supervised practice (a core practitioner works under the supervision of practitioner rated as proficient or above).
Note: Independently recommending restrictive practices is outside of the scope of a core practitioner and must be done under supervision (see the PBS Capability Framework).
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- Proficient: In addition to meeting the core capabilities, a proficient practitioner is expected to: Analyse and evaluate information
Evaluate the quality of behaviour support plans
Constructively promote PBS across the organisation
Access and actively participate in supervision to build on behaviour support knowledge and skills (from an advanced or specialist practitioner)
Provide and participate in peer supervision with another proficient practitioner (if relevant to their supervision schedule)
Supervise a core practitioner (if the proficient practitioner has the skills and knowledge base to do so).
- Advanced: An advanced practitioner has advanced skills across all levels of the PBS Capability Framework. An advanced practitioner is expected to:
Synthesise and integrate information from a range of sources
Demonstrate high-level critical thinking and analytical skills to make effective decisions in complex situations
Demonstrate high-level knowledge of and skills in areas covered by the PBS Capability Framework and in fields that complement the PBS approach
Shape strategic thinking in PBS
Achieve results in system change that enhances the rights of persons with disability
Provide practice leadership across settings and interactions with stakeholders
Use knowledge and practical skills gained through further study and/or extensive practical experience to provide specialist behaviour support as part of an interdisciplinary team working in complex contexts
Access and participate in supervision as the supervisee (including peer supervision with another advanced practitioner)
Supervise other practitioners at all levels
Have the skills to perform in a managerial or practice leadership position.
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- Specialist: A specialist practitioner is recognised for their area of specialisation in or relevant to PBS, in addition to a level of proficiency. Areas of specialisation may include, but are not limited to:
A practice speciality (e.g., forensic, trauma-informed practice, augmentative and alternative communication)
Dual diagnosis (e.g., intellectual disability and mental health)
A specific population or cultural group
A specific age group or transition point.
In addition to their area of specialisation, a specialist practitioner is expected to:
Have the skills and ability to provide supervision and support to other behaviour support practitioners in their area of expertise
Access and participate in supervision as the supervisee (including peer supervision with another specialist practitioner).
Positive Behaviour Support in a Team
Behaviour support practitioners will work in a range of settings, team structures and geographical locations. If the behaviour support needs of a participant are not complex, then a positive behaviour support plan may be implemented by a sole practitioner who leads and coordinates a team that includes the person with disability and their key support people.
If the behaviour support needs of a participant are complex, then a positive behaviour support plan may be implemented by an interdisciplinary team of professionals, the person with disability and their support network. Additionally, some behaviour support practitioners may work in situations where PBS is implemented across an organisation, or where there are different tiers of practitioners who are involved at different stages depending on the complexity of the case. Regardless of the context, it is fundamentally important that a behaviour support practitioner has a clear understanding of the functions and responsibilities of their role and has the supports in place to provide high-quality and accountable service delivery.
Other Stakeholders
The PBS Capability Framework recognises that there are numerous stakeholders who are key contacts for the behaviour support practitioner and central to effective positive behaviour support. The PBS Capability Framework is not designed to articulate the roles and expectations of these team members specifically, but will refer to these stakeholders when engagement with them is a skill required of behaviour support practitioners. These stakeholders include:
The person: In the PBS Capability Framework, this term is used to refer to the person with disability (participant) whose behaviours of concern are the target of NDIS support.
Implementer: This term is inclusive of anyone who would be involved in the implementation and monitoring of a behaviour support plan, including disability support workers, family and carers. This role may at times extend to other roles, such as teachers or volunteers.
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Service providers: These are organisations registered to provide services under the NDIS.
Others: These may be co-residents or other people with whom the person and their support networks may be in contact.
Professionals: This may include a range of disability and mainstream specialists who support the person with disability who has complex needs. They may include professionals with backgrounds in medicine, psychiatry, education, allied health or justice.
While family members are included as implementers, a person’s family members will take on a range of roles when providing behaviour support. The nuances of this situation do not perfectly align with the expectations of an implementer as outlined in the PBS Capability Framework.
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The Capability Domains
The PBS Capability Framework describes seven key domains, all of which draw from a central core of principles and values. The domains are:
- Interim Response
- Functional Assessment
- Planning
- Implementation
- Know it Works
- Reduce and Eliminate Restrictive Practice
- Continuing Professional Development and Supervision.
Interim
Response
Continuing
Professional Functional
Development Assessment
and Supervision
Principles
Reduce and and
Eliminate
Planning
Restrictive
Practice Values
Know it Works Implementation
Figure 2: The PBS Capability Framework
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Principles and Values
Central to the PBS Capability Framework are its values and principles.
Values
Respect, protect and fulfil human rights, through meeting obligations under the United Nations’ Convention on the Rights of Persons with Disabilities (CRPD)
Person-centred approaches
Strengths-based approaches to increase capacity of individuals, families and carers
A holistic approach (recognising the connections between a person’s physical, emotional, spiritual and family wellbeing)
Recognise the importance of mainstream (e.g., medical, justice and education systems) and specialist disability services, and their roles in the team supporting with the person
Respect for the person’s ‘voice’
Full participation of people with disability as citizens in their communities
Collaboration as recognition of the value of teamwork
Transparency and openness
Principles
Legally and ethically sound practice
Culturally competent practice
Reflective practice
Evidence-based practice and data-driven decision-making
Recognition that behaviours of concern are often the result of interactions between the person and their environment, and may be affected by multiple factors
Acknowledgement of a lifespan perspective and that as people grow and develop, they face different challenges
Commitment to the principles of supported decision-making.
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The PBS Capability Framework
The person with disability who is receiving positive behaviour support remains at the centre for every part of the PBS Capability Framework. The values and principles above underpin the entire PBS Capability Framework and show how positive behaviour support is practised.
There is a brief explanation or definition for each capability domain as well as a framework structured into three main areas: behaviour support practitioner knowledge, behaviour support practitioner skills, and service provider and implementing provider considerations. Provider considerations refer to capabilities that ensure behaviour support plans are effectively implemented.
Service provider and implementing provider considerations are not exhaustive but rather guide behaviour support practitioners as to what should be in place to support them in their role. The providers’ considerations across the PBS Capability Framework are taken from existing NDIS practice standards and quality indicators; they are not additional requirements (see Australian Government, 2018a, 2018b, 2018c).
The knowledge and skills in each domain are divided into two sections. The first section includes the skills and knowledge capabilities that are considered core to being a behaviour support practitioner. The second section includes capabilities that would be expected of a practitioner rated as proficient or above.
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- Interim Response Under the NDIS (Restrictive Practices and Behaviour Support) Rules 2018, any person with an immediate need for a behaviour support plan receives an interim behaviour support plan that minimises the risk to the person and others. An interim behaviour support plan that includes provision for the use of a regulated restrictive practice must be developed within one month of the specialist behaviour support provider being engaged (NDIS Rules, Australian Government, 2018b, p. 12).
People with behaviours of concern may experience periods where their behaviours place them or others at risk of harm. It is important for behaviour support practitioners to be aware of this. Practitioners need to focus on protecting the person and others, with the aim of minimising and eliminating the risk of harm. In the case where an interim behaviour support plan being developed contains regulated restrictive practices, a comprehensive behaviour support plan must be developed within six months of the specialist behaviour support provider being engaged to develop the plan (NDIS Rules, Australian Government, 2018b, p. 12).
If a behaviour support practitioner is working with a new person where an interim response is the first need, they should have the skills and knowledge to provide this support. If these skills fall outside of their scope of practice, then a practitioner rated as proficient or above needs to provide supervision (see the capability domain, Continuing Professional Development and Supervision).
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Knowledge: Interim Response Skills: Interim Response SERVICE PROVIDER AND IMPLEMENTING
PROVIDER CONSIDERATIONS ACROSS ALL
CORE BEHAVIOUR SUPPORT PRACTITIONER PRACTITIONER LEVELS
Understand behaviours may occur that cause Gather and document appropriate Recruit and retain appropriately skilled
immediate risk of harm to the person or authorisation and consents where required behaviour support practitioners and
others by state or territory laws and policies implementers
Know high-risk behaviours need to be Evaluate the risk posed by the behaviour to Ensure all staff have the skills to provide
managed safely and effectively using the the person and others effective supports for people with complex
least restrictive options needs and behaviours of concern Consult with the person, their family, carers,
Know high-risk situations and environments guardian or other relevant person Review procedures and policies using interim
can be identified (including antecedents, behaviour support plans to reduce the Communicate clearly and effectively with
triggers) immediate risk and likelihood of crisis relevant parties to gather information and
incidents Know how and why interim responses will be provide direction
unique to the person Help the behaviour support practitioner to Collaborate with team members
conduct an initial risk assessment Be aware that interim risk management may Record and report accurately
include restrictive practices Provide support for immediate review by a
Identify any existing data that might provide medical professional if required Understand the consequences of
insight into the situation
unauthorised use of restrictive practices Ensure that all staff understand restrictive
Provide guidance on protective actions practices and the consequences of Understand legal and ethical expectations
related to environment, setting and unauthorised use circumstances Ensure staff are released to attend training in
Coach those implementing a behaviour the implementation of an interim behaviour
support plan with the assistance of a support plan supervisor Have a mechanism in place to record and
Seek professional support from a supervisor review incident reports and collect other
initial data as necessary
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Knowledge: Interim Response Skills: Interim Response SERVICE PROVIDER AND IMPLEMENTING
PROVIDER CONSIDERATIONS ACROSS ALL
PROFICIENT OR ABOVE BEHAVIOUR SUPPORT PRACTITIONER PRACTITIONER LEVELS
Know a range of de-escalation techniques Develop an individualised immediate Facilitate debriefing for involved parties (if a
response plan critical or serious incident has occurred) Be aware of the implications of using
restrictive practices as a response Use a range of strategies that can be safely Ensure inclusion of key parties (including the
adjusted once full assessment and planning person) in post-incident reviews Have a working knowledge of authorisation
concludes and reporting requirements for restrictive
practices relevant to state or territory laws Document and implement ethical reactive
and policies strategies Seek professional support as required Work collaboratively with the relevant stakeholders (including emergency services when required) Train those implementing a behaviour support plan in its effective implementation
See: NDIS (Provider Registration and Practice Standards) Rules 2018: Schedule 1, Core Module; Schedule 3, Module 2 Specialist Behaviour Support, section 9; Schedule 4, Module 2A Implementing Behaviour Support Plans, section 10 (Australian Government, 2018a) NDIS (Restrictive Practices and Behaviour Support) Rules 2018: Part 2, Division 2, sections 11, 12 and 13; Part 3, Division 2, section 19 (Australian Government, 2018b) NDIS (Quality Indicators) Guidelines 2018: Part 2, Core Module; Part 4, Module 2 Specialist Behaviour Support, section 44; Part 5, Module 2A Implementing Behaviour Support Plans, section 54 (Australian Government, 2018c).
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- Functional Assessment A behaviour support assessment, including a functional behaviour assessment, must be undertaken before a comprehensive behaviour support plan is developed for an NDIS participant, whether or not restrictive practices are included in the plan (NDIS Rules; Australian Government, 2018b, p. 13).
A functional behaviour assessment informs function-based interventions (Gore, et al., 2013). It should result in a common understanding of the person, their support needs and the function of the behaviour. To commence, there is a period of pre-assessment that involves gathering data and clarifying presenting information.
The functional behaviour assessment should always identify the strengths of the person, their will and preference for important elements of their life, and the person’s environmental context (e.g., physical, interpersonal, internal). Consent or consultation (as required by relevant state or territory laws and policies) must be obtained before the assessment begins, and the person must remain at the centre of the assessment. When the presenting behaviours are complex, the functional behaviour assessment should be interdisciplinary to allow for an integrated formulation as to why the behaviours of concern are occurring.
Knowledge: Functional Assessment Skills: Functional Assessment SERVICE PROVIDER AND IMPLEMENTING
PROVIDER CONSIDERATIONS ACROSS ALL
CORE BEHAVIOUR SUPPORT PRACTITIONER PRACTITIONER LEVELS
Understand the values, policy and legislative Place the person at the centre of the Support the person to contribute to the
context in which PBS occurs functional assessment and establish support assessment
to keep them there Understand that behaviours happen for a Facilitate and enable the practitioner (and
reason and serve a purpose Conduct a respectful and responsive team where relevant) to conduct
assessment that considers the diversity of a information-gathering for the assessment Know the common functions of behaviours
person’s culture Identify key stakeholders for the practitioner Understand the difference between what the
Involve the person, their family members, behaviour looks like and its function Support the practitioner to conduct an initial
carers, guardian and other relevant people in risk assessment the assessment
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Knowledge: Functional Assessment Skills: Functional Assessment SERVICE PROVIDER AND IMPLEMENTING
PROVIDER CONSIDERATIONS ACROSS ALL
CORE BEHAVIOUR SUPPORT PRACTITIONER PRACTITIONER LEVELS
Understand that assessment is focused Use communication and active listening skills Support the person to contribute to the
initially on improving quality of life and to develop rapport with the person and their assessment
secondly on reducing behaviours of concern team Facilitate and enable the practitioner (and
Understand the importance of obtaining Adapt assessment terminology and systems team where relevant) to conduct
baseline measures of: to the needs of the target audience information-gathering for the assessment
Current behaviour(s) of concern Assess the person’s abilities and needs Identify key stakeholders for the practitioner
(including frequency and intensity) Use observation skills Support the practitioner to conduct an initial
Quality of life risk assessment Use effective systems to collect data from a
Current use of restrictive practices variety of sources Ensure staff have the training and skills to
effectively participate in data collection Value the role of the service, staff, family Identify antecedents (setting events and
members or carers in developing or triggers) to behaviours of concern and Ensure staff are supported to collect data
maintaining behaviours factors that support quality of life and contribute to the development of a
functional assessment Understand that the complexity and duration Identify consequences that maintain a
of the functional assessment is dependent on behaviour Arrange medical reviews as required
the severity, impact, frequency and duration Identify and describe the behaviour in a way
of the behaviour that is observable and measurable
Understand the importance of data-driven Analyse the relationship between the person
decision-making and their environment
Understand life-course events Produce an assessment report
Seek professional support as required
NDIS Quality and Safeguards Commission attachment page 137 20
Knowledge: Functional Assessment Skills: Functional Assessment SERVICE PROVIDER AND IMPLEMENTING
PROVIDER CONSIDERATIONS ACROSS ALL
PROFICIENT OR ABOVE BEHAVIOUR SUPPORT PRACTITIONER PRACTITIONER LEVELS
Recognise assessment is a flexible and Establish a developmental history
continuing process – factors that trigger and Analyse any current or previous
maintain behaviour may change over time interventions including reactive strategies
Know the importance of assessments being Consider physical or mental health problems,
regularly reviewed including the effect of medications and sleep
Understand the impact of behaviours on the Analyse other considerations such as a
person and their support networks history of trauma, sensory processing, social
Be conversant with a range of functional and interpersonal history
assessment tools Analyse the relationship between the person
Understand the strengths and weaknesses of and their environment
various data collection methods and Identify enablers and barriers to quality of
importance of selecting the appropriate life, including understanding the protective method for the behaviour in question value of friendships and family, and their
Understand the cultural context to contribution to safety
determine who to involve and the most Identify barriers to intervention
appropriate mechanism for assessment Lead an interdisciplinary assessment of Understand the impact of monetary and complex behaviour physical resources Construct a model of understanding that Note: See the capability domain, Restrictive explains the functions of behaviours Practices, if a behaviour support plan includes
the use of regulated restrictive practices. Refer on when the requirements fall outside
of the scope of behaviour support
NDIS Quality and Safeguards Commission attachment page 138 21
Knowledge: Functional Assessment Skills: Functional Assessment SERVICE PROVIDER AND IMPLEMENTING
PROVIDER CONSIDERATIONS ACROSS ALL
PROFICIENT OR ABOVE BEHAVIOUR SUPPORT PRACTITIONER PRACTITIONER LEVELS
Collaborate with non-disability specific or mainstream services as required (including medical professionals) Assess and regularly review areas of risk to the person or others Identify the use of restrictive practices Conduct a comprehensive functional assessment and produce an assessment report that includes recommended actions and strategies Undertake an assessment review if there is a significant change in behaviour
See:
NDIS (Provider Registration and Practice Standards) Rules 2018: Schedule 1, Core Module; Schedule 3, Module 2 Specialist Behaviour Support, section 3; Schedule 4, Module 2A Implementing Behaviour Support Plans, section 5 (Australian Government, 2018a)
NDIS (Restrictive Practices and Behaviour Support) Rules 2018: Part 3, Division 2, sections 20 and 22 (Australian Government, 2018b)
NDIS (Quality Indicators) Guidelines 2018: Part 2, Core Module; Part 4, Module 2 Specialist Behaviour Support, section 40; Part 5, Module 2A Implementing Behaviour Support Plans, section 49 (Australian Government, 2018c).
NDIS Quality and Safeguards Commission attachment page 139 22
- Planning In the PBS Capability Framework, planning refers to the development of a person-centred, evidence-informed positive behaviour support plan that is based on a shared understanding of the function of behaviours.
A comprehensive plan must be proactive, reflect the person’s individual needs, improve their quality of life and support their progress towards positive change. There are some skills that are included in the core section of the capability domain that will be demonstrated through supervision, depending on the skill level of the core practitioner.
Knowledge: Planning Skills: Planning SERVICE PROVIDER AND IMPLEMENTING
PROVIDER CONSIDERATIONS ACROSS ALL
CORE BEHAVIOUR SUPPORT PRACTITIONER PRACTITIONER LEVELS
Understand that a behaviour support plan is Use data to inform a theoretical and ethically Enable systems and procedures that provide
based on knowledge from the functional sound behaviour support plan (under a safe, predictable and stable environment
assessment supervision as required) Be aware of environmental aspects that may
Identify who will read and use a behaviour Identify those responsible for implementing pose risk factors
support plan a behaviour support plan Provide supervision and support to those
Understand that a behaviour support plan Identify barriers to implementation responsible for implementing and monitoring
must be written so it suits its intended a behaviour support plan, including clarifying Collaborate and consult as required to
audience anything not understood develop strategies
Understand that a behaviour support plan Provide time and resources for staff to read Develop proactive strategies to improve the
must have both proactive and reactive and absorb each person’s behaviour support person’s quality of life components plan Develop strategies that aim to increase the Provide staff with reasonable supports and person’s skills, including communication, and adaptations to understand a behaviour the interaction skills of communication support plan and follow it correctly partners
NDIS Quality and Safeguards Commission attachment page 140 23
Knowledge: Planning Skills: Planning SERVICE PROVIDER AND IMPLEMENTING
PROVIDER CONSIDERATIONS ACROSS ALL
CORE BEHAVIOUR SUPPORT PRACTITIONER PRACTITIONER LEVELS
Develop necessary adaptations to a person’s environment and routine Write a behaviour support plan so it is easy to understand by those implementing it Include an escalation mechanism (under supervision as required) Develop data collection systems that are objective, understandable and useable by the key people Include a continuous cycle of monitoring
Knowledge: Planning Skills: Planning SERVICE PROVIDER AND IMPLEMENTING
PROVIDER CONSIDERATIONS ACROSS ALL
PROFICIENT OR ABOVE BEHAVIOUR SUPPORT PRACTITIONER PRACTITIONER LEVELS
Understand the importance of risk Include strategies that remove conditions
management likely to promote behaviours of concern including: Environmental modifications Active engagement through structured and meaningful daily activities
NDIS Quality and Safeguards Commission attachment page 141 24
Knowledge: Planning Skills: Planning SERVICE PROVIDER AND IMPLEMENTING
PROVIDER CONSIDERATIONS ACROSS ALL
PROFICIENT OR ABOVE BEHAVIOUR SUPPORT PRACTITIONER PRACTITIONER LEVELS
Include strategies for replacement behaviours Include preventative strategies such as relaxation, distraction and diversion Include reactive strategies when behaviours are not preventable Minimise or eliminate the use of restrictive practices Develop a behaviour support plan according to the literacy and communication needs of the target audience Develop a behaviour support plan that is compatible with the ability and resources of the implementers Develop a behaviour support plan that is supported by data that measures how accurately it is implemented Clearly articulate responsibilities and timeframes
NDIS Quality and Safeguards Commission attachment page 142 25
See:
NDIS (Provider Registration and Practice Standards) Rules 2018: Schedule 1, Core Module; Schedule 3, Module 2 Specialist Behaviour Support, section 5; Schedule 4, Module 2A Implementing Behaviour Support Plans, section 5 (Australian Government, 2018a)
NDIS (Restrictive Practices and Behaviour Support) Rules 2018: Part 3, Division 2, sections 18 to 24 (Australian Government, 2018b)
NDIS (Quality Indicators) Guidelines 2018: Part 2, Core Module; Part 4, Module 2 Specialist Behaviour Support, section 40; Part 5, Module 2A Implementing Behaviour Support Plans, section 49 (Australian Government, 2018c).
NDIS Quality and Safeguards Commission attachment page 143 26
- Implementation Implementation is about putting a behaviour support plan into action. It involves providing tailored support and training so a plan is implemented effectively.
Implementers include anyone who may be involved in the implementation and monitoring of a plan, such as disability support workers, family and carers. This role may at times extend to other roles, such as teachers or volunteers. Implementation should be approached in partnership with the person, their support network and other relevant professionals. As part of implementation, provisions must be made to increase the capacity of the person and improve their quality of life.
Knowledge: Implementation Skills: Implementation SERVICE PROVIDER AND IMPLEMENTING
PROVIDER CONSIDERATIONS ACROSS ALL
CORE BEHAVIOUR SUPPORT PRACTITIONER PRACTITIONER LEVELS
Understand the importance of individualised Provide individually tailored education and Ensure staff supporting the person have good
implementation of a behaviour support plan training to those who are implementing a links with community
behaviour support plan Understand how implementation approaches Provide clear expectations of staff that a key
can vary for a person across different stages Consider the capacity of the person at the component of their role is to identify and
of life centre of a behaviour support plan and their develop meaningful activities for each person
role in implementation throughout the day Consider the people to include in
implementation Support implementers to incorporate Lead and monitor the implementation of a
strategies into daily support plans and other behaviour support plan Understand that functioning and resilient
relevant support documents teams are likely to increase the consistency Provide resources to support implementation
of implementation Support implementation across different Provide staff with ongoing training,
environments and contexts supervision and support in the
Provide feedback to implementers on implementation of a behaviour support plan
implementation and model alternatives
NDIS Quality and Safeguards Commission attachment page 144 27
Knowledge: Implementation Skills: Implementation SERVICE PROVIDER AND IMPLEMENTING
PROVIDER CONSIDERATIONS ACROSS ALL
CORE BEHAVIOUR SUPPORT PRACTITIONER PRACTITIONER LEVELS
Support those implementing a behaviour Use performance management systems to
support plan to use the recommended data ensure staff are using strategies outlined in a collection systems behaviour support plan
Promote least restrictive practices Provide critical incident debriefing for all
involved parties when necessary
Knowledge: Implementation Skills: Implementation SERVICE PROVIDER AND IMPLEMENTING
PROVIDER CONSIDERATIONS ACROSS ALL
PROFICIENT OR ABOVE BEHAVIOUR SUPPORT PRACTITIONER PRACTITIONER LEVELS
Understand the critical people to include in Provide education and training to an
implementation across diverse cultural interdisciplinary team
contexts Address barriers to implementation
Know different methods of giving feedback Identify the resilience, capacity and
Be aware of complex team dynamics and sustainability of implementers and make
know strategies to manage these effectively appropriate adjustments to a behaviour support plan to take these into consideration Understand the importance of incident
debriefing practice Provide implementers with information on
ethical reactive strategies Provide implementers with information on risks and consequences of non-compliance with implementation
NDIS Quality and Safeguards Commission attachment page 145 28
Knowledge: Implementation Skills: Implementation SERVICE PROVIDER AND IMPLEMENTING
PROVIDER CONSIDERATIONS ACROSS ALL
PROFICIENT OR ABOVE BEHAVIOUR SUPPORT PRACTITIONER PRACTITIONER LEVELS
Train implementers in escalation mechanism and emergency response plans Identify appropriate methods of feedback for those implementing a behaviour support plan Facilitate team building to enable successful implementation of a behaviour support plan Adjust a behaviour support plan as required Identify incident debriefing supports available to implementers Provide training on facilitating critical incident debriefing to appropriate members of the implementing team if required
See:
NDIS (Provider Registration and Practice Standards) Rules 2018: Schedule 1, Core Module; Schedule 3, Module 2 Specialist Behaviour Support, section 6; Schedule 4, Module 2A Implementing Behaviour Support Plans, section 6 (Australian Government, 2018a)
NDIS (Restrictive Practices and Behaviour Support) Rules 2018: Part 3, Division 2, section 21 (Australian Government, 2018b)
NDIS (Quality Indicators) Guidelines 2018: Part 2, Core Module; Part 4, Module 2 Specialist Behaviour Support, section 41; Part 5, Module 2A Implementing Behaviour Support Plans, section 50 (Australian Government, 2018c).
NDIS Quality and Safeguards Commission attachment page 146 29
-
Know it Works An important part of evidence-based practice is systematic monitoring and evaluation. This ensures ethical and accountable practice that meets the needs of the person. Effective monitoring and evaluation includes the capacity to distinguish between the effectiveness of a behaviour support plan and the effectiveness of its implementation. A behaviour support plan is a live document where results are incorporated, reviewed and updated.
Knowledge: Know it Works Skills: Know it Works SERVICE PROVIDER AND IMPLEMENTING
PROVIDER CONSIDERATIONS ACROSS ALL
CORE BEHAVIOUR SUPPORT PRACTITIONER PRACTITIONER LEVELS
Understand the rationale of a behaviour Re-assess the situation Support staff to collect ongoing data to
support plan and its uses evaluate the effectiveness of a behaviour Review adherence to implementation
support plan Understand the importance of continuous Use data collected by implementers to
review and methods to conduct reviews Provide information on how consistently
monitor the implementation of a behaviour
staff are implementing a behaviour support Maintain professional learning to keep support plan (compared to baseline) in a
plan that may be affecting evaluative data abreast of current knowledge of best whole-of-life context, and provide feedback
practice to implementers Support the person and other key people to
contribute to a behaviour support plan’s Know the indicators to include and how and Reflect on external factors that may impact
evaluation and review meetings when to check the effectiveness of a on the efficacy of PBS
behaviour support plan Use the person’s outcomes as performance Build and utilise collaborative partnerships to
indicators evaluate a behaviour support plan
Ensure mechanisms are in place to collect Coordinate a formal review meeting
and report on incident report data Inform changes to a behaviour support plan as required Track progress of a behaviour support plan using the indicators of effectiveness
NDIS Quality and Safeguards Commission attachment page 147 30
Knowledge: Know it Works Skills: Know it Works SERVICE PROVIDER AND IMPLEMENTING
PROVIDER CONSIDERATIONS ACROSS ALL
CORE BEHAVIOUR SUPPORT PRACTITIONER PRACTITIONER LEVELS
Possess a depth of understanding about Have robust and effective ways to measure
systematic monitoring and evaluation and evaluate the outcomes of agreed goals
Identify the reasoning behind what is and Review the resilience, capacity and
what is not working in a behaviour support sustainability of those implementing a plan behaviour support plan Coordinate team participation in review if appropriate Identify sources of information to verify a behaviour support plan’s effectiveness within the cultural context Use data to explain the reason(s) behind a behaviour support plan’s effectiveness Use an evidence-based tool to evaluate the quality of a behaviour support plan, such as the BIP-QEII Apply and interpret measures that capture an increase in behaviours or use of restrictive practice, or decrease in quality of life Implement a range of strategies that address any efficacy limitations of implementation
- BIP-QEII (formerly known as BSP-QEII; see McVilly, Webber, Paris & Sharp, 2012). NDIS Quality and Safeguards Commission attachment page 148 31
See:
NDIS (Provider Registration and Practice Standards) Rules 2018: Schedule 1, Core Module; Schedule 3, Module 2 Specialist Behaviour Support, section 7; Schedule 4, Module 2A Implementing Behaviour Support Plans, sections 7 and 8 (Australian Government, 2018a)
NDIS (Restrictive Practices and Behaviour Support) Rules 2018: Part 3, Division 2, section 21 (Australian Government, 2018b)
NDIS (Quality Indicators) Guidelines 2018: Part 2, Core Module; Part 4, Module 2 Specialist Behaviour Support, section 42; Part 5, Module 2A Implementing Behaviour Support Plans, sections 51 and 52 (Australian Government, 2018c).
NDIS Quality and Safeguards Commission attachment page 149 32
- Restrictive Practice A restrictive practice is defined in the National framework for reducing and eliminating the use of restrictive practices in the disability service sector as being “any practice or intervention that has the effect of restricting rights or freedom of movement or a person with disability, with the primary purpose of protecting the person or others from harm” (Australian Government, 2014, p. 4).
Behaviour support practitioners may encounter existing restrictive practices being used with a person or may be required to recommend a time-limited restrictive practice (with fade-out strategies) as an option of last resort in an interim or comprehensive behaviour support plan. This section details the knowledge and skills in the use of restrictive practices that a behaviour support practitioner must demonstrate to comply with the NDIS Act (2013) (Cth)
Note: It is expected that a core practitioner would have a depth of knowledge regarding restrictive practice; however, the inclusion of regulated restrictive practices in a person’s behaviour support plan is a skill set associated with a behaviour support practitioner who is rated proficient or above.
Knowledge: Restrictive Practice Skills: Restrictive Practice SERVICE PROVIDER AND IMPLEMENTING
PROVIDER CONSIDERATIONS ACROSS ALL
CORE BEHAVIOUR SUPPORT PRACTITIONER PRACTITIONER LEVELS
Understand that the use of a restrictive Consult with the person and/or obtain Report any emergency or unauthorised
practice must be authorised according to the consent (as required by relevant state or restrictive practice to the NDIS Commission
relevant state or territory laws and policies territory laws and policies) and undertake a review of the incident
(Australian Government, 2018c) Understand that regulated restrictive Only prescribe a restrictive practice under
practices include seclusion, and chemical, the direct supervision of a practitioner who is Ensure appropriate policies and procedures
mechanical, physical and environment rated proficient or above are in place
restraints Understand that a restrictive practice can represent serious human rights violations
NDIS Quality and Safeguards Commission attachment page 150 33
Knowledge: Restrictive Practice Skills: Restrictive Practice SERVICE PROVIDER AND IMPLEMENTING
PROVIDER CONSIDERATIONS ACROSS ALL
CORE BEHAVIOUR SUPPORT PRACTITIONER PRACTITIONER LEVELS
Understand the national framework on Ensure restrictive practice is only used as
restrictive practices (Australian Government, part of a behaviour support plan developed
-
by, or under the direct supervision of, a
behaviour support practitioner who is rated Understand that a restrictive practice is an proficient or above option of last resort, occurs in limited
circumstances, should be used for the Check that any restrictive practice used is the
shortest period of time and is the least least restrictive response possible in the restrictive option available circumstances, that it reduces the risk of harm to the person or others, and is used for Understand that a restrictive practice must the shortest possible time to ensure the be used with a behaviour support plan safety of the person or others Understand relevant state and territory laws Follow state or territory laws and policies for and policies regarding authorisation and the authorisation to use a restrictive practice consent to the use of regulated restricted
practices Lodge a behaviour support plan and the
authorisation evidence for regulated Understand that some restrictive practices restrictive practice with the NDIS are prohibited in some states and territories Commission and comply with monthly
Understand that the use of a restrictive reporting requirements
practice can only be in response to risk of harm to the person or others Understand that a behaviour support plan that includes restrictive practices, it must be lodged with the NDIS Commission
NDIS Quality and Safeguards Commission attachment page 151 34
Knowledge: Restrictive Practice Skills: Restrictive Practice SERVICE PROVIDER AND IMPLEMENTING
PROVIDER CONSIDERATIONS ACROSS ALL
CORE BEHAVIOUR SUPPORT PRACTITIONER PRACTITIONER LEVELS
Understand the Zero tolerance framework (National Disability Services, 2018) and associated resources
Knowledge: Restrictive Practice Skills: Restrictive Practice SERVICE PROVIDER AND IMPLEMENTING
PROVIDER CONSIDERATIONS ACROSS ALL
PROFICIENT OR ABOVE BEHAVIOUR SUPPORT PRACTITIONER PRACTITIONER LEVELS
Understand that restrictive practices must be Work with the person, their informal
in proportion to the potential consequences supports and service provider to develop a of the risk of harm behaviour support plan that is based on a functional behaviour assessment Provide a statement of intent to use a restrictive practice to the person and their support networks in an accessible format, as required in the NDIS (Restrictive Practices and Behaviour Support) Rules 2018 Ensure a behaviour support plan contains outcomes-focused, person-centred and proactive strategies that address the person’s needs and behaviours of concern
NDIS Quality and Safeguards Commission attachment page 152 35
Knowledge: Restrictive Practice Skills: Restrictive Practice SERVICE PROVIDER AND IMPLEMENTING
PROVIDER CONSIDERATIONS ACROSS ALL
PROFICIENT OR ABOVE BEHAVIOUR SUPPORT PRACTITIONER PRACTITIONER LEVELS
Design a staged behaviour support plan of fading strategies to reduce or eliminate the use of restrictive practices over time Lodge a behaviour support plan with restrictive practices with the NDIS Commission for the practices to be monitored Supervise a core practitioner Implement strategies that can be removed through shaping, fading and the like
See:
NDIS (Provider Registration and Practice Standards) Rules 2018: Schedule 1, Core Module; Schedule 3, Module 2 Specialist Behaviour Support, sections 4 and 8; Schedule 4, Module 2A Implementing Behaviour Support Plans, sections 4, 7 to 9 (Australian Government, 2018a)
NDIS (Restrictive Practices and Behaviour Support) Rules 2018: Part 2, Division 2, sections 8 to 15; Part 3, Division 2, sections 18 to 24 (Australian Government, 2018b)
NDIS (Quality Indicators) Guidelines 2018: Part 2, Core Module; Part 4, Module 2 Specialist Behaviour Support, sections 39 and 43; Part 5, Module 2A Implementing Behaviour Support Plans, sections 48, 51 and 53 (Australian Government, 2018c).
NDIS Quality and Safeguards Commission attachment page 153 36
- Continuing Professional Development and Supervision Continuing Professional Development (CPD) is a commitment to maintain, improve and broaden personal and professional knowledge, expertise and competence. Ongoing CPD is key for behaviour support practitioners to ensure their practice reflects current best practice.
In addition to CPD, the NDIS Commission recognises supervision as a fundamental mechanism for strengthening practice and building capability of the behaviour support workforce. Under the PBS Capability Framework, it is expected that behaviour support practitioners at all levels receive supervision. Supervision is a term used differently across the range of settings in which behaviour support practitioners will be working and thus may be provided in a mix of modalities.
Supervision is used to develop a behaviour support practitioner’s knowledge, skills, confidence, competence and professionalism. A behaviour support practitioner should be able to show that they have received supervision. Depending on the level of the behaviour support practitioner, supervision may be:
Direct professional supervision provided by a behaviour support practitioner with a higher level of skill and knowledge Peer supervision focused on reflective practice Managerial supervision Supervision that is mandated or recommended by professional registration bodies.
NDIS Quality and Safeguards Commission attachment page 154 37
Knowledge: CPD and Supervision Skills: CPD and Supervision SERVICE PROVIDER AND IMPLEMENTING
PROVIDER CONSIDERATIONS ACROSS ALL
CORE BEHAVIOUR SUPPORT PRACTITIONER PRACTITIONER LEVELS
Understand the importance of self-directed, Set professional development goals Encourage a culture of continuous
lifelong learning, including a commitment to improvement of the workforce, including Conduct an annual professional development
ongoing professional development supervision and professional development plan that is regularly reviewed and updated
planning Understand the importance of behaviour (which includes goals related to skills and
skills training knowledge within this framework) Create policies and procedures which
establish aims, structures and processes for Understand the importance of incorporating Participate in supervision to identify personal
supervision learning from supervision into practice and professional goals and take steps to
achieve them Provide access to (internal or external) staff
who can provide high-quality behaviour Prioritise, prepare for and engage actively in
support supervision supervision
Allow staff time to engage in supervision Openly express and discuss expectations and
needs related to supervision Clearly articulate the modalities of
supervision available to staff (including any Openly identify and discuss practice issues
compulsory components) which are challenging, and skills and
knowledge that need developing Provide clear information about professional
development opportunities for staff, Work to develop trust in the supervision
including compulsory training, time relationship allowances to attend professional
Take responsibility for seeking help when development and any budgetary
required considerations Regularly review the supervision relationship and provide honest feedback
NDIS Quality and Safeguards Commission attachment page 155 38
Knowledge: CPD and Supervision Skills: CPD and Supervision SERVICE PROVIDER AND IMPLEMENTING
PROVIDER CONSIDERATIONS ACROSS ALL
PROFICIENT OR ABOVE BEHAVIOUR SUPPORT PRACTITIONER PRACTITIONER LEVELS
Understand the relevant skills to be a Facilitate a culturally safe and respectful
supervisor environment
Maintain up-to-date knowledge of the Set expectations of supervision relationships
regulatory context and evidence-based Allocate time to develop trust and rapport
practice with supervisee Use a supervision contract Maintain supervision documentation Provide supervision in the agreed format Be available (as agreed) for support between formal supervision sessions, especially for newer behaviour support practitioners Provide timely, specific and constructive feedback Evaluate the effectiveness of supervision Facilitate reflective practice Use debriefing sessions as part of supervision Share knowledge of the regulatory context and evidence-based practice with supervisees
See: NDIS (Quality Indicators) Guidelines 2018: Part 2, Core Module; Part 4, Module 2 Specialist Behaviour Support, section 38; Part 5, Module 2A Implementing Behaviour Support Plans, sections 47 and 50 (Australian Government, 2018c).
NDIS Quality and Safeguards Commission attachment page 156 39
References
Australian Government. (2014). National framework for reducing and eliminating the use of restrictive practices in the disability service sector. Retrieved from <https://www.dss.gov.au/sites/default/files/documents/04_2014/national_fraemwork_rest ricitive_practices_0.pdf>.
Australian Government. (2018a). National Disability Insurance Scheme (Provider Registration and
Practice Standards) Rules 2018. Retrieved from
https://www.legislation.gov.au/Details/F2018L00631.
Australian Government. (2018b). National Disability Insurance Scheme (Restrictive Practices and
Behaviour Support) Rules 2018. Retrieved from
https://www.legislation.gov.au/Details/F2018L00632.
Australian Government. (2018c). National Disability Insurance Scheme (Quality Indicators) Guidelines
- Retrieved from https://www.legislation.gov.au/Details/F2018N00041.
Australian Government. (2013). National Disability Insurance Scheme Act 2013 (Cth). Retrieved from
https://www.legislation.gov.au/Details/C2013A00020.
Birgden, A. (2018). NDIS Quality and Safeguards Commission behaviour support competency framework: Version 1. [Draft May 2018]. Document contracted by the Australian
Government Department of Social Services, Quality and Safeguards Policy Branch, Canberra,
ACT.
Carr, E.G., Dunlap, G., Horner, R.H., Koegel, R.L., Turnbull, A.P., Sailor, W., et al. (2002). Positive Behaviour Support: evolution of an applied science. Journal of Positive Behaviour Interventions, 4(1), 4–16. https://doi.org/10.1177/109830070200400102.
Chan, J., French, P., & Webber, L. (2011). Positive behavioural support and the UNCRPD. International Journal of Positive Behavioural Support, 1(1), 7–13.
Gore, N.J., McGill, P., Toogood, S., Allen, D., Hughes, J.C., Baker, P., et al. (2013). Definition and scope for positive behavioural support. International Journal of Positive Behavioural Support, 3(2), 14–23.
McVilly, K., Webber, L., Paris M., & Sharp, G. (2012). Reliability and utility of the Behaviour Support Plan Quality Evaluation tool (BSP-QEII) for auditing and quality development in services for adults with intellectual disability and challenging behaviour. Journal of Intellectual Disability Research, 57(8), 716–27. https://doi.org/10.1111/j.1365-2788.2012.01603.x.
Nankervis, K., Lambrick, F., & Koelink, A. (2017). Service standards 2016/2017. Supplementary module 2 — Behaviour support. [Unpublished].
National Disability Services. (2016). Speaking up about safety: Perspectives of people with disability on personal safety at home, in the community and in disability services. Retrieved from https://www.nds.org.au/resources/zero-tolerance.
National Disability Services. (2018). Zero tolerance framework. Retrieved from https://www.nds.org.au/resources/zero-tolerance.
NDIS Quality and Safeguards Commission attachment page 157 40
National Institute for Health and Care Excellence (NICE). (2015). Challenging behaviour and learning disabilities: Prevention and interventions for people with learning disabilities whose behaviour challenges. Retrieved from https://www.nice.org.uk/guidance/ng11.
NDIS Quality and Safeguards Commission. (2018). Positive Behaviour Support: A scoping review of best practice frameworks. Internal document developed by NDIS Commission Behaviour Support Research Team, Penrith, NSW.
Positive Behavioural Support (PBS) Coalition UK. (2015). Positive Behavioural Support: A competence framework. Retrieved from <www.pbsacademy.org.uk>.
Singer, G.H., & Wang, M. (2009). The intellectual roots of positive behavior support and their implications for its development. In Handbook of positive behavior support (pp. 17–46). Springer, Boston, MA.
States and Territories’ Behaviour Support Working Group. (2018a). Draft competency assessment methodology. [Internal draft document based on consultation with working group members and collated by DSS Quality and Safeguards Policy Branch].
States and Territories’ Behaviour Support Working Group. (2018b). Feedback on the behaviour support competency framework and responses from Dr A. Birgden and NDIS Commission national behaviour support team. [Internal documents based on feedback collated by Commonwealth DSS Quality and Safeguards Policy Branch from meetings and correspondence from working group members].
NDIS Quality and Safeguards Commission attachment page 158 41
Attachment D
Information sharing principles
State and territory governments and the Commonwealth have agreed through the Council of Australian Governments (COAG) to support people with disability and provide leadership for a community wide shift in attitudes to improve the lives of all people with disability. All governments have a role in upholding the principles underpinning the NDIS, as outlined in the NDIS Quality and Safeguarding Framework and bilateral agreements for the transition of quality and safeguards arrangements.
The following principles will inform the approach to sharing information:
Principle One:
- All parties commit to working together to support the lawful exchange of information necessary for the NDIS Commission and state or territory bodies to effectively regulate NDIS providers and ensure the health, safety and wellbeing of NDIS participants including through: o good faith negotiations o open and honest identification of information about risk o operational implications including existing working arrangements with other regulatory bodies o timely and accurate exchange of information.
Principle Two:
- The transition of quality and safeguarding functions to the NDIS Commission provides all parties with an opportunity to review interactions between existing and future service systems to ensure consistent quality and safeguarding arrangements for NDIS participants and providers into the future, including: o early advice and raising potential gaps, opportunities or concerns o relevant bodies have the opportunity to contribute to the transition process o taking a whole-of-government approach to work together and effectively across organisational boundaries o the ongoing and proactive sharing of information held by the NDIS Commission, that is appropriate and relevant to share with state and territory agencies.
Principle Three:
- All parties commit to achieving clarity in the transition of roles and responsibilities to ensure that people with disability receiving supports or services under the NDIS are not disadvantaged throughout the process.
Principle Four
-
All parties commit to working collaboratively to mitigate and respond to known, emerging and unexpected risks to NDIS participants and providers including through: o early advice about concerns o effective and timely communication and exchange of information between relevant bodies.
NDIS Quality and Safeguards Commission 1 attachment page 159
E
Attachment
1Commission
160 Attachment page
-Safeguards 42 and attachmentQuality Submission
NDIS
•
What are the responsibilities of Registration under registered providers? the NDIS The NDIS Commission’s regulatory framework establishes ongoing Commission obligations for registered NDIS providers.
As a registered NDIS provider, you must:
The NDIS Quality and Safeguards This document will provide you with comply with the NDIS Practice Standards
Commission (NDIS Commission) an overview of the requirements comply with the NDIS Code of Conduct and support workersoversees a single, national of registration and also step you to meet its requirementsregistration and regulatory system through the process of applying
for individuals, partnerships and for or renewing your registration have an in-house complaints management and resolution system,
organisations that provide NDIS with the NDIS Commission. and support participants to make a complaint
services and supports. have an in-house incident management system,This system sets a consistent and notify the NDIS Commission of reportable incidentsapproach to quality across Australia
to ensure that all NDIS participants comply with the worker screening requirements have access to safe, high-quality meet behaviour support requirements (if applicable), including supports and services. reporting restrictive practices to the NDIS Commission comply with any additional conditions imposed by the NDIS Commission at the time of registration.
All workers of registered NDIS providers must complete the ’Quality,
For further information on the registration process, Safety and You' worker orientation e-learning module.a visit the NDIS Commission website.
attachment page 161
1Commission
162 Attachment page
-Safeguards 42 and attachmentQuality Submission
NDIS
1Commission
163 Attachment page
-Safeguards 42 and attachmentQuality Submission
NDIS
1Commission
164 Attachment page
-Safeguards 42 and attachmentQuality Submission
NDIS
1Commission
165 Attachment page
-Safeguards 42 and attachmentQuality Submission
NDIS
1Commission
166 Attachment page
-Safeguards 42 and attachmentQuality Submission
NDIS
1Commission
167 Attachment page
-Safeguards 42 and attachmentQuality Submission
NDIS
Attachment F
Comparison of NDIS Commission regulation to Allied Health Professional Regulation for Individuals delivering allied health supports and services
Australian Health Practitioner NDIS Quality and Safeguards
Regulation Agency (AHPRA) Commission (NQSC)
Role Implements the National Regulates the NDIS market in
Registration and Accreditation accordance with the NDIS Act
Scheme (NRAS) for health 2013
professionals
Focus of regulation Verifies the qualifications and Assesses the quality of supports
capacity to practice of and services to NDIS participants, individual health professionals meeting minimum practice standards designed to protect and prevent harm
Matters considered in registration:
Suitability Suitability of the individual: Suitability of key personnel:
• criminal history • criminal history
• previous registration • banning orders
performance • indicatable offences
• current suspensions or • insolvency
cancellations • adverse findings or
enforcement action by a government body, including national regulators such as
ASIC and ACCC
Standards • Continuing professional • Recognition of professional
development and evidence regulation (e.g. AHPRA), and the individual is actively current insurances
practicing • Existence of: complaint
• Maintaining professional management and system;
indemnity insurances incident management system;
• English language proficiency worker screening clearances,
• Criminal history and Risk management
attachment page 168
Means of • Self-reported by the • Self-reported by the
assessment practitioner practitioner
• National board assesses • Desk top audit by certified
information provided audit body
- NDIS Commission assesses information provided
attachment page 169
Attachment G
ACTIVITY REPORT
1 July 2019 to 31 December 2019
From 1 July 2020, the NDIS Commission operates in all Australian states and territories except Western Australia. The NDIS Commission will commence in WA from 1 December 2020.
attachment page 170
NDIS Quality and Safeguards Commission Complaints were received from: Activity Report: 1 July 2019 to 31 December 2019
- Participants across Australia The NDIS Commission regulates NDIS supports and services to NDIS participants in all states and territories other than WA where the NDIS Commission will commence from 1 December 2020.
All Participants exc.WA
326,746
- Participant numbers are 1 December 2020 from the NDIA Q2 report as at 31 December 2019 3) Engagement
We have a contact centre and education function to support people to make a complaint, receive information or access education.
The NDIS Commission’s 1800 035 544 contact
- Complaints number received over 51,000 calls and over The NDIS Commission manages complaints in connection to services delivered by NDIS 16,000 emails from participants and providers. providers and their workers. Anyone can make a complaint to the NDIS Commission about an NDIS support or service. The NDIS Code of Conduct puts obligations on workers supporting NDIS participants. Complaints received during the period were in the following categories. Providers are required to support workers to complete the NDIS Commission’s Worker Orientation Module, which was launched in May 2019. By 31 December 2019:
Provider
practice During the period 1 July 2019 to 31 December 2019, 51% we received 2,022 complaints.
Provider
policies and Worker
procedures conduct or Alleged
capability abuse and 20% neglect 17% 12%
attachment page 171
- Registration Organisations and individuals Registered service providers include all sizes of organisations and businesses, from sole traders to large companies and not-for-profits.
Five specialised Service Groups
providers registered across the five specialised service groups 7,942
Five most popular registration groups
New & Renewal Applications Received
Providers must reapply to maintain
Providers must be registered to deliver Providers previously registered with the their registration. Providers can also
supports and services to participants whose NDIA transferred to the NDIS Commission choose to let their registration lapse,
plans are managed by the NDIA. Providers when the Commission started in each for example, if they have not been
must also be registered to deliver certain state and territory. actively supporting NDIS participants.
support types to any participant: specialist disability accommodation, behaviour New providers are regularly support, and implementing regulated entering the NDIS market through restrictive practices. the new NDIS Commission arrangements.
attachment page 172
- Reportable Incidents Reportable Incidents NDIS providers notified the NDIS Commission of 69,397 reportable incidents
Registered providers are required to report certain incidents or allegations to the NDIS The number of reports received does not correlate to the number of actual instances of Commission that occur in connection with the provision of NDIS supports and services. harm to a person with disability. The Commission monitors the management of incidents by providers to determine Reports include multiple notifications of the same matter, allegations of incidents and whether they are meeting their obligations to keep participants safe. where incidents occurred but harm to the person was avoided.
Reportable Incidents by category
A significant number of incidents that are reported to the NDIS Commission involve the use of restrictive practices on people with disability which have not been authorised by state and territory authorities, or where plans to promote positive behaviour supports are not in place for that person.
Reports of unauthorised use of restrictive practices
The increase in reports since the Commission’s first year relates to: See graph below for a
breakdown of the types of • Coverage across 5 new jurisdictions from
these unauthorised uses of 1 July 2019 restrictive practices.
-
Increasing reporting compliance by NDIS registered providers 1,102 • The requirement to report each instance
incidents reported to the of an unauthorised restrictive practice in jurisdictions where no authorisation
NDIS Commission were also mechanism exists reported by providers to Police
Repeat reports
Providers are required to report every instance of a restrictive practice, including each use until a behaviour support plan is lodged.
These relate to 2,436 participants supported by 340 providers
attachment page 173
-
Behaviour Support 2,998 3,782 Behaviour Support (up 223% LODGED
Practitioners since 1 July 2018) Behaviour Support Plans
(since 1 July 2018) (since 1 July 2018)
The NDIS Commission oversees behaviour support practitioners and providers who use behaviour support strategies and restrictive practices involving NDIS participants. The NDIS Commission also provides best practice advice to practitioners, providers and participants on positive behaviour support strategies. To inform that work, the NDIS Commission reviews provider reports on the use of restrictive practices and responds to the unauthorised use of restrictive practices reported through the NDIS Commission’s reportable incident function.
attachment page 174
Attachment H (NSW)
NSW URP letter [NSW: all RPs can be authorised] Full name Address 1 Address 2 City and postcode
Dear [XXX]
Unauthorised uses of restrictive practices – request to provide information and requirement to demonstrate compliance
I am writing to you because you have notified the NDIS Quality and Safeguards Commission (NDIS Commission) that you have used one or more restrictive practices in relation to one or more participants in New South Wales in the period from July 2019 to June 2020, in circumstances where:
-
the use is not in accordance with an authorisation and there is an authorisation process in relation to the use of the restrictive practice; and/or
-
the use in not in accordance with a behaviour support plan for the NDIS participant. As you know, use of a restrictive practice in either or both of these circumstances is a reportable incident under section 73Z(4) of the National Disability Insurance Scheme Act 2013 and sections 16(3) and (4) of the National Disability Insurance Scheme (Incident Management and Reportable Incidents) Rules 2018.
In February 2020, the NDIS Commission released its activity report for the six months from July to December 2019.1 This activity report showed a significant increase in the number of reportable incidents, particularly reportable incidents involving the unauthorised use of restrictive practices. There were 65,398 reports of the unauthorised use of restrictive practices in the six months from July to December 2019.
It is clear from the data already available to me that there has been a further significant increase in the number of reports of the unauthorised use of restrictive practices in 2020.
As you know, the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Restrictive Practices and Behaviour Support Rules) require that, where a registered NDIS provider uses a regulated restrictive practice:2
- if the use is not a single emergency use, it must be authorised in accordance with any applicable State or Territory authorisation process;3 and
1 https://www.ndiscommission.gov.au/sites/default/files/documents/2020-06/l1591-ndis-6-month-activity-report-jul-dec-2019-june-2020.pdf. 2 Regulated restrictive practice is defined in section 6 of the Restrictive Practices and Behaviour Support Rules. 3 See section 9 of the Restrictive Practices and Behaviour Support Rules. T 1800 035 544 PO Box 210
Penrith NSW 2750
attachment page 175 www.ndiscommission.gov.au
- if the use will, or is likely to, continue (ongoing use), it must be in accordance with a behaviour support plan or, if it is not, the provider must take all reasonable steps to facilitate the development of a behaviour support plan.4
I regard the effectiveness of the NDIS Commission’s oversight of restrictive practices as critical to my performance of my core function to uphold the rights of, and promote the health, safety and wellbeing, of people with disability. Restrictive practices have the effect of restricting the rights or freedom of movement of a person with disability. Requiring that restrictive practices be used only where they are authorised and in accordance with behaviour support plans that meet the requirements of the Restrictive Practices and Behaviour Support Rules is an important safeguarding mechanism for NDIS participants.
It is also important for the performance of my behaviour support function5 that the NDIS Commission’s oversight of the use of restrictive practices can occur, to the fullest extent possible, under the Restrictive Practices and Behaviour Support Rules instead of in response to notifications of reportable incidents involving the use of unauthorised restrictive practices.
The NDIS Commission has had jurisdiction in New South Wales and South Australia for two years. However, there continues to be significant – and indeed increasing – reporting of the unauthorised use of restrictive practices in these two jurisdictions. This is particularly concerning when the requirements in relation to authorisation and behaviour support plans have applied throughout this period of nearly two years and the special arrangements for transition to the jurisdiction of the NDIS Commission expired on or before 30 June 2019.6
I appreciate that many registered NDIS providers have had to focus on COVID-19 over the last few months and that this may have resulted in effort being diverted from other areas of activity. However, the situation in Australia has improved and restrictions are being eased. Certainly, I do not consider that the current situation gives any reason for the NDIS Commission to delay taking action in relation to unauthorised uses restrictive practices.
To date, the NDIS Commission has focused on educating registered NDIS providers about the requirements in relation to restrictive practices and has worked with registered NDIS providers to support and encourage them to obtain required authorisations and facilitate the development of required behaviour support plans.
I wish to make it very clear to all registered NDIS providers in New South Wales and South Australia who are reporting unauthorised uses of restrictive practices that the NDIS Commission is now escalating its compliance activity in relation to the unauthorised use of restrictive practices to ensure that registered NDIS providers meet their responsibilities.
I am accordingly requiring you, as a condition of your registration, in relation to the unauthorised uses of restrictive practices in New South Wales that you have notified to the NDIS Commission in the period from July 2019 to June 2020, to identify and provide specified information in relation to:
- uses that are single emergency uses and are not ongoing uses;
- uses that are now authorised and covered by a behaviour support plan;
- uses in respect of which you are otherwise not pursuing authorisation or a behaviour support plan; 4 See sections 10, 11, 12 and 13 of the Restrictive Practices and Behaviour Support Rules. 5 The Commissioner’s behaviour support function is set out in section 181H of the National Disability Insurance Scheme Act 2013. 6 See sections 26 and 27 of the Restrictive Practices and Behaviour Support Rules.
2 attachment page 176
-
uses in respect of which you cannot obtain an authorisation or for which you cannot facilitate the development of a behaviour support plan because the participant’s plan does not include funding for behaviour support;
-
uses in respect of which you cannot obtain an authorisation or for which you cannot facilitate the development of a behaviour support plan because you cannot find a specialist behaviour support provider or NDIS behaviour support practitioner who is available to develop a behaviour support plan;
-
uses to which section 11 of the Restrictive Practices and Behaviour Support Rules applies (where the use is authorised but is not in accordance with a behaviour support plan); and
-
uses to which section 12 of the Restrictive Practices and Behaviour Support Rules applies (where the use is not authorised or in accordance with a behaviour support plan),
as set out in the enclosed notice headed ‘REQUEST FOR INFORMATION – UNAUTHORISED USE OF RESTRICTIVE PRACTICES’.
The NDIS Commission recognises that the absence of behaviour support funding in an NDIS participant’s plan or the unavailability of a specialist behaviour support practitioner may impede a registered NDIS provider’s ability to obtain authorisation or to facilitate the development of a behaviour support plan, and this is reflected in this notice.
You will see that this notice requires you to provide the requested information by 31 July 2020.
I am also requiring you, as a condition of your registration, in relation to the uses to which sections 11 or 12 of the Restrictive Practices and Behaviour Support Rules apply, to demonstrate your compliance with sections 11 and 12 of the Restrictive Practices and Behaviour Support Rules, as set out in the enclosed
notices headed ‘REQUIREMENT TO DEMONSTRATE COMPLIANCE – SECTION 11’ and ‘REQUIREMENT TO
DEMONSTRATE COMPLIANCE – SECTION 12’.
You will also see that these notices require you to demonstrate compliance by 30 September 2020.
I enclose a diagram giving a visual outline of the requirements of the notices.
This is an escalation of the NDIS Commission’s compliance activity in relation to the unauthorised use of restrictive practices, and I encourage you to recognise it as such. I note that the NDIS Commission has a wide range of compliance and enforcement actions available to it, which are outlined in the Compliance and Enforcement Policy published on the NDIS Commission’s website.
In light of this compliance activity, if the NDIS Commission has given you permission to report the unauthorised use of a routine chemical, environmental or mechanical restraint on a weekly basis, you are no longer required to provide three-monthly updates on the steps you have taken to obtain authorisation or to facilitate the development of a behaviour support plan in relation to that use. However, you must continue to submit weekly reports notifying the NDIS Commission of each unauthorised use of the relevant restrictive practices.
Yours sincerely
Graeme Head AO
Commissioner
6 July 2020
3 attachment page 177
Dear Registered NDIS Provider,
REQUEST FOR INFORMATION – UNAUTHORISED USE OF RESTRICTIVE
PRACTICES (NSW)
Under section 73F(2)(i) of the National Disability Insurance Scheme Act 2013 (NDIS Act) it is a condition of your registration as a registered NDIS provider that you give to the Commissioner of the NDIS Quality and Safeguards Commission (NDIS Commission), on request, information specified in the request within the period specified.
I am writing to you because you are a registered NDIS provider who has notified the NDIS Commission in the period from 1 July 2019 to 30 June 2020 of one or more reportable incidents involving the unauthorised use of a restrictive practice in New South Wales (NSW).
Request for information
In my capacity as NDIS Quality and Safeguards Commissioner, I request that you give me the following information in relation to the unauthorised uses of a restrictive practice in NSW that you notified to the NDIS Commission in the period from 1 July 2019 to 30 June 2020 (the URPs).
URPs reported weekly
If the NDIS Commission has given you permission to report the unauthorised use of a routine chemical, environmental or mechanical restraint in relation to an NDIS participant on a weekly basis, you can provide information once for all of the uses (from the first use through to the uses reported weekly) under the single reportable incident ID you use for the weekly reports.
Allocation to categories A to G
I request that you allocate each of the URPs to the first category in the following list which applied to the URP as at the end of 30 June 2020.
(a) Category A: Single emergency use Include each URP that was:
-
a single emergency use, such that it is not required to be authorised in accordance with any applicable State or Territory authorisation process;1 and
-
not, or was not likely to be, a continuing use (ongoing use), such that it is not required to be in accordance with a behaviour support plan.2 (b) Category B: Now authorised and covered by a behaviour support plan Include each URP that, as at 30 June 2020, was both authorised and covered by a behaviour support plan.
1 See section 9 of the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Restrictive Practices and Behaviour Support Rules). 2 See sections 10, 11, 12 and 13 of the Restrictive Practices and Behaviour Support Rules. T 1800 035 544 PO Box 210
Penrith NSW 2750
attachment page 178 www.ndiscommission.gov.au
(c) Category C: Otherwise not pursuing authorisation or behaviour support plan Include each URP in respect of which, as at 30 June 2020, for any reason (other than those in categories A and B), you are not pursuing authorisation (if required) or a behaviour support plan. For example, if you no longer provide supports to the participant. (d) Category D: No behaviour support funding Include each URP for which you cannot obtain an authorisation or for which you cannot facilitate the development of a behaviour support plan because the participant’s plan does not include funding for behaviour support. (e) Category E: No behaviour support provider or practitioner available Include each URP for which you cannot obtain an authorisation or for which you cannot facilitate the development of a behaviour support plan because you cannot find a specialist behaviour support provider or NDIS behaviour support practitioner who is available to develop a behaviour support plan. (f) Category F: Authorisation but no behaviour support plan – section 11 Include each URP to which section 11 of the National Disability Insurance Scheme (Restrictive
Practices and Behaviour Support) Rules 2018 (Restrictive Practices and Behaviour Support Rules)
applies. (g) Category G: No behaviour support plan or authorisation – section 12 Include each URP to which section 12 of the Restrictive Practices and Behaviour Support Rules applies.
Additional information for categories A to E
In addition to allocating each of the URPs to one of categories A to G, I request information for each URP allocated to categories A to E as follows:
(a) For each URP allocated to Category A: Single Emergency Use, provide the following information:
-
Reportable incident ID
-
Incident date
-
Participant name (impacted person)
-
Type of restrictive practice (seclusion, chemical restraint, mechanical restraint, physical restraint, environmental restraint)
-
Has the provider used this type of restrictive practice in relation to this participant again since the use in this reportable incident? (Yes/No) (b) For each URP allocated to Category B: Now authorised and covered by a behaviour support plan, provide the following information:
-
Reportable incident ID
-
Incident date
-
Participant name (impacted person)
-
Type of restrictive practice (seclusion, chemical restraint, mechanical restraint, physical restraint, environmental restraint)
-
Behaviour support plan ID (c) For each URP allocated to Category C: Otherwise not pursuing authorisation or behaviour support plan, provide the following information:
-
Reportable incident ID
-
Incident date T 1800 035 544 PO Box 210
Penrith NSW 2750
attachment page 179 www.ndiscommission.gov.au
-
Participant name (impacted person)
-
Type of restrictive practice (seclusion, chemical restraint, mechanical restraint, physical restraint, environmental restraint)
-
Reason for not pursuing authorisation or behaviour support plan (d) For each URP allocated to Category D: No behaviour support funding, provide the following information:
-
Reportable incident ID
-
Incident date
-
Participant name (impacted person)
-
Type of restrictive practice (seclusion, chemical restraint, mechanical restraint, physical restraint, environmental restraint)
-
Has the provider taken any steps to seek behaviour support funding (Yes/No)
-
If Yes, summarise steps taken (e) For each URP allocated to Category E: No behaviour support provider or practitioner available, provide the following information:
-
Reportable incident ID
-
Incident date
-
Participant name (impacted person)
-
Type of restrictive practice (seclusion, chemical restraint, mechanical restraint, physical restraint, environmental restraint)
-
Has the provider taken any steps to facilitate the engagement of specialist behaviour support provider or NDIS behaviour support practitioner to develop a behaviour support plan (Yes/No)
-
If Yes, summarise steps taken Providing the information
Please provide the requested information by completing tabs A to G of the enclosed spreadsheet.
Your response to this request for information should be approved by a member of your organisation’s key personnel, and submitted to the NDIS Commission by email to by 31 July 2020.
It is a condition of your registration as an NDIS provider that you comply with this request for information. Please note that it is a contravention of the NDIS Act to breach a condition of your registration. A contravention may attract civil penalties up to a maximum of $52,500 for individuals, and up to a maximum of $262,500 for a body corporate.
If you have any questions about this request for information please send your query to: or call 1800 035 544.
Yours sincerely
Graeme Head AO
Commissioner
6 July 2020
T 1800 035 544 PO Box 210
Penrith NSW 2750
attachment page 180 www.ndiscommission.gov.au
Dear Registered NDIS Provider,
REQUIREMENT TO DEMONSTRATE COMPLIANCE – SECTION 11
Use of restrictive practice in accordance with an authorisation but not a behaviour support plan (NSW)
Under section 11(3) of the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Restrictive Practices and Behaviour Support Rules) it is a condition of your registration as a registered NDIS provider that you agree to demonstrate compliance with section 11(2) of the Restrictive Practices and Behaviour Support Rules if required to do so by the Commissioner of the NDIS Quality and Safeguards Commission (Commissioner).
I am writing to you because you are a registered NDIS provider who has notified the NDIS Commission in the period from 1 July 2019 to 30 June 2020 of one or more reportable incidents involving the unauthorised use of a restrictive practice in New South Wales.
The Restrictive Practices and Behaviour Support Rules require that, where a registered NDIS provider uses a regulated restrictive practice:1
-
if the use is not a single emergency use, it must be authorised in accordance with any applicable State or Territory authorisation process;2 and
-
if the use will, or is likely to, continue (ongoing use), it must be in accordance with a behaviour support plan or, if it is not, the provider must take all reasonable steps to facilitate the development of a behaviour support plan.3
Section 11 of the Restrictive Practices and Behaviour Support Rules applies if the use of the restrictive practice:
- is authorised in accordance with the State or Territory authorisation process;
- is not in accordance with a behaviour support plan for the participant; and
- will, or is likely to, continue (ongoing use). In these circumstances – authorisation, no behaviour support plan and ongoing use – section 11(2) of the Restrictive Practices and Behaviour Support Rules provides:
The registration of the registered NDIS provider is subject to the condition that the provider must:
1 Regulated restrictive practice is defined in section 6 of the Restrictive Practices and Behaviour Support Rules. 2 See section 9 of the Restrictive Practices and Behaviour Support Rules. 3 See sections 10, 11, 12 and 13 of the Restrictive Practices and Behaviour Support Rules.
T 1800 035 544 PO Box 210
Penrith NSW 2750
attachment page 181 www.ndiscommission.gov.au
(a) take all reasonable steps to facilitate the development of an interim behaviour support plan for the person with disability by a specialist behaviour support provider that covers the use of the practice within 1 month after the first use of the regulated restrictive practice; and
(b) take all reasonable steps to facilitate the development of a comprehensive behaviour support plan for the person with disability by a specialist behaviour support provider that covers the use of the practice within 6 months after the first use of the regulated restrictive practice.
Requirement to demonstrate compliance
In my capacity as Commissioner, in accordance with section 11(3) of the Restrictive Practices and Behaviour Support Rules, I require you to demonstrate compliance with section 11(2) of the Restrictive Practices and Behaviour Support Rules in respect of each of the unauthorised uses of a restrictive practice in New South Wales that you included in Category F: Authorisation but no behaviour support plan – section 11 in response to my request for information under section 73F(2)(i) of the National Disability Insurance Scheme Act (2013) issued on the same date as this notice by completing the return attached to this letter.
If the NDIS Commission has given you permission to report the unauthorised use of a routine chemical, environmental or mechanical restraint in relation to an NDIS participant on a weekly basis, you can demonstrate compliance with section 11(2) once for all of the uses (from the first use through to the uses reported weekly) under the single reportable incident ID.
You may wish to provide the same information to demonstrate compliance in relation to more than one unauthorised use if:
-
you have reported unauthorised uses of different restrictive practices in respect of the same participant; or
-
you have used the same restrictive practice multiple times in respect of the same participant but you have not been given permission to report the unauthorised use on a weekly basis.
You may do this by providing the information in full for the first relevant unauthorised use in your return and then cross-referencing to the reportable incident ID for that first relevant unauthorised use in any subsequent relevant unauthorised use (for example, insert “See [reportable incident ID]” in the spreadsheet against the second and any subsequent uses).
Responding to this requirement to demonstrate compliance
Your response to this requirement that you demonstrate compliance with section 11(2) of the Restrictive Practices and Behaviour Support Rules should be approved by a member of your organisation’s key personnel, and submitted to the NDIS Commission by email to by 30 September 2020.
It is a condition of your registration as an NDIS provider that you comply with this request for information. Please note that it is a contravention of the NDIS Act to breach a condition of your registration. A contravention may attract civil penalties up to a maximum of $52,500 for individuals, and up to a maximum of $262,500 for a body corporate.
T 1800 035 544 PO Box 210
Penrith NSW 2750
attachment page 182 www.ndiscommission.gov.au
If you have any questions about this request for information please send your query to: or call 1800 035 544.
Yours sincerely
Graeme Head AO
Commissioner
6 July 2020
T 1800 035 544 PO Box 210
Penrith NSW 2750
attachment page 183 www.ndiscommission.gov.au
Dear Registered NDIS Provider,
REQUIREMENT TO DEMONSTRATE COMPLIANCE – SECTION 12
Use of restrictive practice other than in accordance with a behaviour support plan or authorisation (NSW)
Under section 12(3) of the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Restrictive Practices and Behaviour Support Rules) it is a condition of your registration as a registered NDIS provider that you agree to demonstrate compliance with section 12(2) of the Restrictive Practices and Behaviour Support Rules if required to do so by the Commissioner of the NDIS Quality and Safeguards Commission (Commissioner).
I am writing to you because you are a registered NDIS provider who has notified the NDIS Commission in the period from 1 July 2019 to 30 June 2020 of one or more reportable incidents involving the unauthorised use of a restrictive practice in New South Wales.
The Restrictive Practices and Behaviour Support Rules require that, where a registered NDIS provider uses a regulated restrictive practice:1
-
if the use is not a single emergency use, it must be authorised in accordance with any applicable State or Territory authorisation process;2 and
-
if the use will, or is likely to, continue (ongoing use), it must be in accordance with a behaviour support plan or, if it is not, the provider must take all reasonable steps to facilitate the development of a behaviour support plan.3
Section 12 of the Restrictive Practices and Behaviour Support Rules applies if the use of the restrictive practice:
- is not in accordance with a behaviour support plan for the participant;
- is required to be authorised in accordance with the State or Territory authorisation process;
- is not authorised; and
- will, or is likely to, continue (ongoing use). In these circumstances – no behaviour support plan, no authorisation, and ongoing use – section 12(2) of the Restrictive Practices and Behaviour Support Rules provides:
The registration of the registered NDIS provider is subject to the condition that the provider must:
1 Regulated restrictive practice is defined in section 6 of the Restrictive Practices and Behaviour Support Rules. 2 See section 9 of the Restrictive Practices and Behaviour Support Rules. 3 See sections 10, 11, 12 and 13 of the Restrictive Practices and Behaviour Support Rules.
T 1800 035 544 PO Box 210
Penrith NSW 2750
attachment page 184 www.ndiscommission.gov.au
(a) obtain authorisation (however described) for the ongoing use of the regulated restrictive practice from the relevant State or Territory as soon as reasonably practicable; and
(b) lodge evidence of that authorisation with the Commissioner as soon as reasonably practicable after it is received; and
(c) take all reasonable steps to facilitate the development of an interim behaviour support plan for the person with disability by a specialist behaviour support provider that covers the use of the practice within 1 month after the first use of the regulated restrictive practice; and
(b) take all reasonable steps to facilitate the development of a comprehensive behaviour support plan for the person with disability by a specialist behaviour support provider that covers the use of the practice within 6 months after the first use of the regulated restrictive practice.
Requirement to demonstrate compliance
In my capacity as Commissioner, in accordance with section 12(3) of the Restrictive Practices and Behaviour Support Rules, I require you to demonstrate compliance with section 12(2) of the Restrictive Practices and Behaviour Support Rules in respect of each of the unauthorised uses of a restrictive practice in New South Wales that you included in Category G: No behaviour support plan or authorisation – section 12 in response to my request for information under section 73F(2)(i) of the National Disability Insurance Scheme Act (2013) issued on the same date as this notice by completing the return attached to this letter.
If the NDIS Commission has given you permission to report the unauthorised use of a routine chemical, environmental or mechanical restraint on a weekly basis, you can demonstrate compliance with section 12(2) once for all of the uses (both the first use and the subsequent uses reported weekly) under the single reportable incident ID.
You may wish to provide the same information to demonstrate compliance in relation to more than one unauthorised use if:
-
you have reported unauthorised uses of different restrictive practices in respect of the same participant; or
-
you have used the same restrictive practice multiple times in respect of the same participant but you have not been given permission to report the unauthorised use on a weekly basis.
You may do this by providing the information in full for the first relevant unauthorised use in your return and then cross-referencing to the reportable incident ID for that first relevant unauthorised use in any subsequent relevant unauthorised use (for example, insert “See [reportable incident ID]” in the spreadsheet against the second and any subsequent uses).
Responding to this requirement to demonstrate compliance
Your response to this requirement that you demonstrate compliance with section 12(2) of the Restrictive Practices and Behaviour Support Rules should be approved by a member of your organisation’s key personnel, and submitted to the NDIS Commission by email to by 30 September 2020.
T 1800 035 544 PO Box 210
Penrith NSW 2750
attachment page 185 Email www.ndiscommission.gov.au
It is a condition of your registration as an NDIS provider that you comply with this request for information. Please note that it is a contravention of the NDIS Act to breach a condition of your registration. A contravention may attract civil penalties up to a maximum of $52,500 for individuals, and up to a maximum of $262,500 for a body corporate.
If you have any questions about this request for information please send your query to: or call 1800 035 544.
Yours sincerely
Graeme Head AO
Commissioner
6 July 2020
T 1800 035 544 PO Box 210
Penrith NSW 2750
attachment page 186 Email www.ndiscommission.gov.au
Attachment H (SA)
SA URP letter [SA: not all RPs require authorisation] Full name
Address
City and postcode
Dear [XXX]
Unauthorised uses of restrictive practices – request to provide information and requirement to demonstrate compliance
I am writing to you because you have notified the NDIS Quality and Safeguards Commission (NDIS Commission) that you have used one or more restrictive practices in relation to one or more participants in South Australia in the period from July 2019 to June 2020, in circumstances where:
-
the use is not in accordance with an authorisation and there is an authorisation process in relation to the use of the restrictive practice; and/or
-
the use in not in accordance with a behaviour support plan for the NDIS participant. As you know, use of a restrictive practice in either or both of these circumstances is a reportable incident under section 73Z(4) of the National Disability Insurance Scheme Act 2013 and sections 16(3) and (4) of the National Disability Insurance Scheme (Incident Management and Reportable Incidents) Rules 2018.
In February 2020, the NDIS Commission released its activity report for the six months from July to December 2019.1 This activity report showed a significant increase in the number of reportable incidents, particularly reportable incidents involving the unauthorised use of restrictive practices. There were 65,398 reports of the unauthorised use of restrictive practices in the six months from July to December 2019.
It is clear from the data already available to me that there has been a further significant increase in the number of reports of the unauthorised use of restrictive practices in 2020.
As you know, the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Restrictive Practices and Behaviour Support Rules) require that, where a registered NDIS provider uses a regulated restrictive practice:2
- if the use is not a single emergency use, it must be authorised in accordance with any applicable State or Territory authorisation process;3 and
1 https://www.ndiscommission.gov.au/sites/default/files/documents/2020-06/l1591-ndis-6-month-activity-report-jul-dec-2019-june-2020.pdf. 2 Regulated restrictive practice is defined in section 6 of the Restrictive Practices and Behaviour Support Rules. 3 See section 9 of the Restrictive Practices and Behaviour Support Rules.
T 1800 035 544 PO Box 210
Penrith NSW 2750
attachment page 187 www.ndiscommission.gov.au
- if the use will, or is likely to, continue (ongoing use), it must be in accordance with a behaviour support plan or, if it is not, the provider must take all reasonable steps to facilitate the development of a behaviour support plan.4
I regard the effectiveness of the NDIS Commission’s oversight of restrictive practices as critical to my performance of my core function to uphold the rights of, and promote the health, safety and wellbeing, of people with disability. Restrictive practices have the effect of restricting the rights or freedom of movement of a person with disability. Requiring that restrictive practices be used only where they are authorised and in accordance with behaviour support plans that meet the requirements of the Restrictive Practices and Behaviour Support Rules is an important safeguarding mechanism for NDIS participants.
It is also important for the performance of my behaviour support function5 that the NDIS Commission’s oversight of the use of restrictive practices can occur, to the fullest extent possible, under the Restrictive Practices and Behaviour Support Rules instead of in response to notifications of reportable incidents involving the use of unauthorised restrictive practices.
The NDIS Commission has had jurisdiction in New South Wales and South Australia for two years. However, there continues to be significant – and indeed increasing – reporting of the unauthorised use of restrictive practices in these two jurisdictions. This is particularly concerning when the requirements in relation to authorisation and behaviour support plans have applied throughout this period of nearly two years and the special arrangements for transition to the jurisdiction of the NDIS Commission expired on or before 30 June 2019.6
I appreciate that many registered NDIS providers have had to focus on COVID-19 over the last few months and that this may have resulted in effort being diverted from other areas of activity. However, the situation in Australia has improved and restrictions are being eased. Certainly, I do not consider that the current situation gives any reason for the NDIS Commission to delay taking action in relation to unauthorised uses restrictive practices.
To date, the NDIS Commission has focused on educating registered NDIS providers about the requirements in relation to restrictive practices and has worked with registered NDIS providers to support and encourage them to obtain required authorisations and facilitate the development of required behaviour support plans.
I wish to make it very clear to all registered NDIS providers in New South Wales and South Australia who are reporting unauthorised uses of restrictive practices that the NDIS Commission is now escalating its compliance activity in relation to the unauthorised use of restrictive practices to ensure that registered NDIS providers meet their responsibilities.
I am accordingly requiring you, as a condition of your registration, in relation to the unauthorised uses of restrictive practices in South Australia that you have notified to the NDIS Commission in the period from July 2019 to June 2020, to identify and provide specified information in relation to:
4 See sections 10, 11, 12 and 13 of the Restrictive Practices and Behaviour Support Rules. 5 The Commissioner’s behaviour support function is set out in section 181H of the National Disability Insurance Scheme Act 2013. 6 See sections 26 and 27 of the Restrictive Practices and Behaviour Support Rules.
2 attachment page 188
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uses that are single emergency uses and are not ongoing uses;
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uses that are now authorised (if required) and covered by a behaviour support plan;
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uses in respect of which you are otherwise not pursuing authorisation or a behaviour support plan;
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uses in respect of which you cannot obtain an authorisation or for which you cannot facilitate the development of a behaviour support plan because the participant’s plan does not include funding for behaviour support;
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uses in respect of which you cannot obtain an authorisation or for which you cannot facilitate the development of a behaviour support plan because you cannot find a specialist behaviour support provider or NDIS behaviour support practitioner who is available to develop a behaviour support plan;
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uses to which section 11 of the Restrictive Practices and Behaviour Support Rules applies (where the use is authorised but is not in accordance with a behaviour support plan);
-
uses to which section 12 of the Restrictive Practices and Behaviour Support Rules applies (where the use is not authorised or in accordance with a behaviour support plan); and
-
uses to which section 13 of the Restrictive Practices and Behaviour Support Rules applies (where the use is not in accordance with a behaviour support plan and authorisation is not required),
as set out in the enclosed notice headed ‘REQUEST FOR INFORMATION – UNAUTHORISED USE OF RESTRICTIVE PRACTICES’.
The NDIS Commission recognises that the absence of behaviour support funding in an NDIS participant’s plan or the unavailability of a specialist behaviour support practitioner may impede a registered NDIS provider’s ability to obtain authorisation or to facilitate the development of a behaviour support plan, and this is reflected in this notice.
You will see that this notice requires you to provide the requested information by 31 July 2020.
I am also requiring you, as a condition of your registration, in relation to the uses to which sections 11, 12 or 13 of the Restrictive Practices and Behaviour Support Rules apply, to demonstrate your compliance with sections 11, 12 and 13 of the Restrictive Practices and Behaviour Support Rules, as set out in the enclosed notices headed ‘REQUIREMENT TO DEMONSTRATE COMPLIANCE – SECTION 11’,
‘REQUIREMENT TO DEMONSTRATE COMPLIANCE – SECTION 12’ and ‘REQUIREMENT TO
DEMONSTRATE COMPLIANCE – SECTION 13’.
You will also see that these notices require you to demonstrate compliance by 30 September 2020.
I enclose a diagram giving a visual outline of the requirements of the notices.
This is an escalation of the NDIS Commission’s compliance activity in relation to the unauthorised use of restrictive practices, and I encourage you to recognise it as such. I note that the NDIS Commission has a wide range of compliance and enforcement actions available to it, which are outlined in the Compliance and Enforcement Policy published on the NDIS Commission’s website.
In light of this compliance activity, if the NDIS Commission has given you permission to report the unauthorised use of a routine chemical, environmental or mechanical restraint on a weekly basis, you are no longer required to provide three-monthly updates on the steps you have taken to obtain authorisation or to facilitate the development of a behaviour support plan in relation to that use.
3 attachment page 189
However, you must continue to submit weekly reports notifying the NDIS Commission of each unauthorised use of the relevant restrictive practices.
Yours sincerely
Graeme Head AO
Commissioner
6 July 2020
4 attachment page 190
Dear Registered NDIS Provider,
REQUEST FOR INFORMATION – UNAUTHORISED USE OF RESTRICTIVE
PRACTICES (South Australia)
Under section 73F(2)(i) of the National Disability Insurance Scheme Act 2013 (NDIS Act) it is a condition of your registration as a registered NDIS provider that you give to the Commissioner of the NDIS Quality and Safeguards Commission (NDIS Commission), on request, information specified in the request within the period specified.
I am writing to you because you are a registered NDIS provider who has notified the NDIS Commission in the period from 1 July 2019 to 30 June 2020 of one or more reportable incidents involving the unauthorised use of a restrictive practice in South Australia.
Request for information
In my capacity as NDIS Quality and Safeguards Commissioner, I request that you give me the following information in relation to the unauthorised uses of a restrictive practice in South Australia that you notified to the NDIS Commission in the period from 1 July 2019 to 30 June 2020 (the URPs).
URPs reported weekly
If the NDIS Commission has given you permission to report the unauthorised use of a routine chemical, environmental or mechanical restraint in relation to an NDIS participant on a weekly basis, you can provide information once for all of the uses (from the first use through to the uses reported weekly) under the single reportable incident ID you use for the weekly reports.
Allocation to categories A to H
I request that you allocate each of the URPs to the first category in the following list which applied to the URP as at the end of 30 June 2020.
(a) Category A: Single emergency use Include each URP that was:
-
a single emergency use, such that it is not required to be authorised in accordance with any applicable State or Territory authorisation process;1 and
-
not, or was not likely to be, a continuing use (ongoing use), such that it is not required to be in accordance with a behaviour support plan.2
1 See section 9 of the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Restrictive Practices and Behaviour Support Rules). 2 See sections 10, 11, 12 and 13 of the Restrictive Practices and Behaviour Support Rules.
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(b) Category B: Now authorised (if required) and covered by a behaviour support plan Include each URP that, as at 30 June 2020, was both authorised (if it is required to be authorised) and covered by a behaviour support plan. (c) Category C: Otherwise not pursuing authorisation or behaviour support plan Include each URP in respect of which, as at 30 June 2020, for any reason (other than those in categories A and B), you are not pursuing authorisation (if required) or a behaviour support plan. For example, if you no longer provide supports to the participant. (d) Category D: No behaviour support funding Include each URP for which you cannot obtain an authorisation or for which you cannot facilitate the development of a behaviour support plan because the participant’s plan does not include funding for behaviour support. (e) Category E: No behaviour support provider or practitioner available Include each URP for which you cannot obtain an authorisation or for which you cannot facilitate the development of a behaviour support plan because you cannot find a specialist behaviour support provider or NDIS behaviour support practitioner who is available to develop a behaviour support plan. (f) Category F: Authorisation but no behaviour support plan – section 11 Include each URP to which section 11 of the National Disability Insurance Scheme (Restrictive
Practices and Behaviour Support) Rules 2018 (Restrictive Practices and Behaviour Support Rules)
applies. (g) Category G: No behaviour support plan or authorisation – section 12 Include each URP to which section 12 of the Restrictive Practices and Behaviour Support Rules applies. (h) Category H: No behaviour support plan and authorisation not required – section 13 Include each URP to which section 13 of the Restrictive Practices and Behaviour Support Rules applies.
Additional information for categories A to E
In addition to allocating each of the URPs to one of categories A to H, I request information for each URP allocated to categories A to E as follows:
(a) For each URP allocated to Category A: Single Emergency Use, provide the following information:
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Reportable incident ID
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Incident date
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Participant name (impacted person)
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Type of restrictive practice (seclusion, chemical restraint, mechanical restraint, physical restraint, environmental restraint)
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Has the provider used this type of restrictive practice in relation to this participant again since the use in this reportable incident? (Yes/No) (b) For each URP allocated to Category B: Now authorised (if required) and covered by a behaviour support plan, provide the following information:
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Reportable incident ID
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Incident date
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Participant name (impacted person) T 1800 035 544 PO Box 210
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Type of restrictive practice (seclusion, chemical restraint, mechanical restraint, physical restraint, environmental restraint)
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Behaviour support plan ID (c) For each URP allocated to Category C: Otherwise not pursuing authorisation or behaviour support plan, provide the following information:
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Reportable incident ID
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Incident date
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Participant name (impacted person)
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Type of restrictive practice (seclusion, chemical restraint, mechanical restraint, physical restraint, environmental restraint)
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Reason for not pursuing authorisation or behaviour support plan (d) For each URP allocated to Category D: No behaviour support funding, provide the following information:
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Reportable incident ID
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Incident date
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Participant name (impacted person)
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Type of restrictive practice (seclusion, chemical restraint, mechanical restraint, physical restraint, environmental restraint)
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Has the provider taken any steps to seek behaviour support funding (Yes/No)
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If Yes, summarise steps taken (e) For each URP allocated to Category E: No behaviour support provider or practitioner available, provide the following information:
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Reportable incident ID
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Incident date
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Participant name (impacted person)
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Type of restrictive practice (seclusion, chemical restraint, mechanical restraint, physical restraint, environmental restraint)
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Has the provider taken any steps to facilitate the engagement of specialist behaviour support provider or NDIS behaviour support practitioner to develop a behaviour support plan (Yes/No)
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If Yes, summarise steps taken Providing the information
Please provide the requested information by completing tabs A to H of the enclosed spreadsheet.
Your response to this request for information should be approved by a member of your organisation’s key personnel, and submitted to the NDIS Commission by email to by 31 July 2020.
It is a condition of your registration as an NDIS provider that you comply with this request for information. Please note that it is a contravention of the NDIS Act to breach a condition of your registration. A contravention may attract civil penalties up to a maximum of $52,500 for individuals, and up to a maximum of $262,500 for a body corporate.
T 1800 035 544 PO Box 210
Penrith NSW 2750
attachment page 193 www.ndiscommission.gov.au
If you have any questions about this request for information please send your query to: or call 1800 035 544.
Yours sincerely
Graeme Head AO
Commissioner
6 July 2020
T 1800 035 544 PO Box 210
Penrith NSW 2750
attachment page 194 www.ndiscommission.gov.au
Dear Registered NDIS Provider,
REQUIREMENT TO DEMONSTRATE COMPLIANCE – SECTION 11
Use of restrictive practice in accordance with an authorisation but not a behaviour support plan (South Australia)
Under section 11(3) of the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Restrictive Practices and Behaviour Support Rules) it is a condition of your registration as a registered NDIS provider that you agree to demonstrate compliance with section 11(2) of the Restrictive Practices and Behaviour Support Rules if required to do so by the Commissioner of the NDIS Quality and Safeguards Commission (Commissioner).
I am writing to you because you are a registered NDIS provider who has notified the NDIS Commission in the period from 1 July 2019 to 30 June 2020 of one or more reportable incidents involving the unauthorised use of a restrictive practice in South Australia.
The Restrictive Practices and Behaviour Support Rules require that, where a registered NDIS provider uses a regulated restrictive practice:1
-
if the use is not a single emergency use, it must be authorised in accordance with any applicable State or Territory authorisation process;2 and
-
if the use will, or is likely to, continue (ongoing use), it must be in accordance with a behaviour support plan or, if it is not, the provider must take all reasonable steps to facilitate the development of a behaviour support plan.3
Section 11 of the Restrictive Practices and Behaviour Support Rules applies if the use of the restrictive practice:
- is authorised in accordance with the State or Territory authorisation process;
- is not in accordance with a behaviour support plan for the participant; and
- will, or is likely to, continue (ongoing use). In these circumstances – authorisation, no behaviour support plan and ongoing use – section 11(2) of the Restrictive Practices and Behaviour Support Rules provides:
The registration of the registered NDIS provider is subject to the condition that the provider must:
1 Regulated restrictive practice is defined in section 6 of the Restrictive Practices and Behaviour Support Rules. 2 See section 9 of the Restrictive Practices and Behaviour Support Rules. 3 See sections 10, 11, 12 and 13 of the Restrictive Practices and Behaviour Support Rules.
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(a) take all reasonable steps to facilitate the development of an interim behaviour support plan for the person with disability by a specialist behaviour support provider that covers the use of the practice within 1 month after the first use of the regulated restrictive practice; and
(b) take all reasonable steps to facilitate the development of a comprehensive behaviour support plan for the person with disability by a specialist behaviour support provider that covers the use of the practice within 6 months after the first use of the regulated restrictive practice.
Requirement to demonstrate compliance
In my capacity as Commissioner, in accordance with section 11(3) of the Restrictive Practices and Behaviour Support Rules, I require you to demonstrate compliance with section 11(2) of the Restrictive Practices and Behaviour Support Rules in respect of each of the unauthorised uses of a restrictive practice in South Australia that you included in Category F: Authorisation but no behaviour support plan – section 11 in response to my request for information under section 73F(2)(i) of the National Disability Insurance Scheme Act (2013) issued on the same date as this notice by completing the return attached to this letter.
If the NDIS Commission has given you permission to report the unauthorised use of a routine chemical, environmental or mechanical restraint in relation to an NDIS participant on a weekly basis, you can demonstrate compliance with section 11(2) once for all of the uses (from the first use through to the uses reported weekly) under the single reportable incident ID.
You may wish to provide the same information to demonstrate compliance in relation to more than one unauthorised use if:
-
you have reported unauthorised uses of different restrictive practices in respect of the same participant; or
-
you have used the same restrictive practice multiple times in respect of the same participant but you have not been given permission to report the unauthorised use on a weekly basis.
You may do this by providing the information in full for the first relevant unauthorised use in your return and then cross-referencing to the reportable incident ID for that first relevant unauthorised use in any subsequent relevant unauthorised use (for example, insert “See [reportable incident ID]” in the spreadsheet against the second and any subsequent uses).
Responding to this requirement to demonstrate compliance
Your response to this requirement that you demonstrate compliance with section 11(2) of the Restrictive Practices and Behaviour Support Rules should be approved by a member of your organisation’s key personnel, and submitted to the NDIS Commission by email to by 30 September 2020.
It is a condition of your registration as an NDIS provider that you comply with this request for information. Please note that it is a contravention of the NDIS Act to breach a condition of your registration. A contravention may attract civil penalties up to a maximum of $52,500 for individuals, and up to a maximum of $262,500 for a body corporate.
T 1800 035 544 PO Box 210
Penrith NSW 2750
attachment page 196 www.ndiscommission.gov.au
If you have any questions about this request for information please send your query to: or call 1800 035 544.
Yours sincerely
Graeme Head AO
Commissioner
6 July 2020
T 1800 035 544 PO Box 210
Penrith NSW 2750
attachment page 197 www.ndiscommission.gov.au
Dear Registered NDIS Provider,
REQUIREMENT TO DEMONSTRATE COMPLIANCE – SECTION 12
Use of restrictive practice other than in accordance with a behaviour support plan or authorisation (South Australia)
Under section 12(3) of the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Restrictive Practices and Behaviour Support Rules) it is a condition of your registration as a registered NDIS provider that you agree to demonstrate compliance with section 12(2) of the Restrictive Practices and Behaviour Support Rules if required to do so by the Commissioner of the NDIS Quality and Safeguards Commission (Commissioner).
I am writing to you because you are a registered NDIS provider who has notified the NDIS Commission in the period from 1 July 2019 to 30 June 2020 of one or more reportable incidents involving the unauthorised use of a restrictive practice in South Australia.
The Restrictive Practices and Behaviour Support Rules require that, where a registered NDIS provider uses a regulated restrictive practice:1
-
if the use is not a single emergency use, it must be authorised in accordance with any applicable State or Territory authorisation process;2 and
-
if the use will, or is likely to, continue (ongoing use), it must be in accordance with a behaviour support plan or, if it is not, the provider must take all reasonable steps to facilitate the development of a behaviour support plan.3
Section 12 of the Restrictive Practices and Behaviour Support Rules applies if the use of the restrictive practice:
- is not in accordance with a behaviour support plan for the participant;
- is required to be authorised in accordance with the State or Territory authorisation process;
- is not authorised; and
- will, or is likely to, continue (ongoing use). In these circumstances – no behaviour support plan, no authorisation, and ongoing use – section 12(2) of the Restrictive Practices and Behaviour Support Rules provides:
The registration of the registered NDIS provider is subject to the condition that the provider must:
1 Regulated restrictive practice is defined in section 6 of the Restrictive Practices and Behaviour Support Rules. 2 See section 9 of the Restrictive Practices and Behaviour Support Rules. 3 See sections 10, 11, 12 and 13 of the Restrictive Practices and Behaviour Support Rules. T 1800 035 544 PO Box 210
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(a) obtain authorisation (however described) for the ongoing use of the regulated restrictive practice from the relevant State or Territory as soon as reasonably practicable; and
(b) lodge evidence of that authorisation with the Commissioner as soon as reasonably practicable after it is received; and
(c) take all reasonable steps to facilitate the development of an interim behaviour support plan for the person with disability by a specialist behaviour support provider that covers the use of the practice within 1 month after the first use of the regulated restrictive practice; and
(b) take all reasonable steps to facilitate the development of a comprehensive behaviour support plan for the person with disability by a specialist behaviour support provider that covers the use of the practice within 6 months after the first use of the regulated restrictive practice.
Requirement to demonstrate compliance
In my capacity as Commissioner, in accordance with section 12(3) of the Restrictive Practices and Behaviour Support Rules, I require you to demonstrate compliance with section 12(2) of the Restrictive Practices and Behaviour Support Rules in respect of each of the unauthorised uses of a restrictive practice in South Australia that you included in Category G: No behaviour support plan or authorisation – section 12 in response to my request for information under section 73F(2)(i) of the National Disability Insurance Scheme Act (2013) issued on the same date as this notice by completing the return attached to this letter.
If the NDIS Commission has given you permission to report the unauthorised use of a routine chemical, environmental or mechanical restraint on a weekly basis, you can demonstrate compliance with section 12(2) once for all of the uses (both the first use and the subsequent uses reported weekly) under the single reportable incident ID.
You may wish to provide the same information to demonstrate compliance in relation to more than one unauthorised use if:
-
you have reported unauthorised uses of different restrictive practices in respect of the same participant; or
-
you have used the same restrictive practice multiple times in respect of the same participant but you have not been given permission to report the unauthorised use on a weekly basis.
You may do this by providing the information in full for the first relevant unauthorised use in your return and then cross-referencing to the reportable incident ID for that first relevant unauthorised use in any subsequent relevant unauthorised use (for example, insert “See [reportable incident ID]” in the spreadsheet against the second and any subsequent uses).
Responding to this requirement to demonstrate compliance
Your response to this requirement that you demonstrate compliance with section 12(2) of the Restrictive Practices and Behaviour Support Rules should be approved by a member of your organisation’s key personnel, and submitted to the NDIS Commission by email to by 30 September 2020.
T 1800 035 544 PO Box 210
Penrith NSW 2750
attachment page 199 www.ndiscommission.gov.au
It is a condition of your registration as an NDIS provider that you comply with this request for information. Please note that it is a contravention of the NDIS Act to breach a condition of your registration. A contravention may attract civil penalties up to a maximum of $52,500 for individuals, and up to a maximum of $262,500 for a body corporate.
If you have any questions about this request for information please send your query to: or call 1800 035 544.
Yours sincerely
Graeme Head AO
Commissioner
6 July 2020
T 1800 035 544 PO Box 210
Penrith NSW 2750
attachment page 200 www.ndiscommission.gov.au
Dear Registered NDIS Provider,
REQUIREMENT TO DEMONSTRATE COMPLIANCE – SECTION 13
Use of restrictive practice other than in accordance with a behaviour support plan, authorisation not required (South Australia)
Under section 13(3) of the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Restrictive Practices and Behaviour Support Rules) it is a condition of your registration as a registered NDIS provider that you agree to demonstrate compliance with section 13(2) of the Restrictive Practices and Behaviour Support Rules if required to do so by the Commissioner of the NDIS Quality and Safeguards Commission (Commissioner).
I am writing to you because you are a registered NDIS provider who has notified the NDIS Commission in the period from 1 July 2019 to 30 June 2020 of one or more reportable incidents involving the unauthorised use of a restrictive practice in South Australia.
The Restrictive Practices and Behaviour Support Rules require that, where a registered NDIS provider uses a regulated restrictive practice:1
-
if the use is not a single emergency use, it must be authorised in accordance with any applicable State or Territory authorisation process;2 and
-
if the use will, or is likely to, continue (ongoing use), it must be in accordance with a behaviour support plan or, if it is not, the provider must take all reasonable steps to facilitate the development of a behaviour support plan.3
Section 13 of the Restrictive Practices and Behaviour Support Rules applies if the use of the restrictive practice:
-
is not in accordance with a behaviour support plan for the participant;
-
is not required to be authorised in accordance with the State or Territory authorisation process; and
-
will, or is likely to, continue (ongoing use). In these circumstances – no behaviour support plan, authorisation not required, and ongoing use – section 12(2) of the Restrictive Practices and Behaviour Support Rules provides:
The registration of the registered NDIS provider is subject to the condition that the provider will:
1 Regulated restrictive practice is defined in section 6 of the Restrictive Practices and Behaviour Support Rules. 2 See section 9 of the Restrictive Practices and Behaviour Support Rules. 3 See sections 10, 11, 12 and 13 of the Restrictive Practices and Behaviour Support Rules.
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(a) take all reasonable steps to facilitate the development of an interim behaviour support plan for the person with disability by a specialist behaviour support provider that covers the use of the practice within 1 month after the first use of the regulated restrictive practice;
(b) take all reasonable steps to facilitate the development of a comprehensive behaviour support plan for the person with disability by a specialist behaviour support provider that covers the use of the practice within 6 months after the first use of the regulated restrictive practice.
Requirement to demonstrate compliance
In my capacity as Commissioner, in accordance with section 13(3) of the Restrictive Practices and Behaviour Support Rules, I require you to demonstrate compliance with section 13(2) of the Restrictive Practices and Behaviour Support Rules in respect of each of the unauthorised uses of a restrictive practice in South Australia that you included in Category H: No behaviour support plan and authorisation not required – section 13 in response to my request for information under section 73F(2)(i) of the National Disability Insurance Scheme Act (2013) issued on the same date as this notice by completing the return attached to this letter.
If the NDIS Commission has given you permission to report the unauthorised use of a routine chemical, environmental or mechanical restraint on a weekly basis, you can demonstrate compliance with section 13(2) once for all of the uses (both the first use and the subsequent uses reported weekly) under the single reportable incident ID.
You may wish to provide the same information to demonstrate compliance in relation to more than one unauthorised use if:
-
you have reported unauthorised uses of different restrictive practices in respect of the same participant; or
-
you have used the same restrictive practice multiple times in respect of the same participant but you have not been given permission to report the unauthorised use on a weekly basis.
You may do this by providing the information in full for the first relevant unauthorised use in your return and then cross-referencing to the reportable incident ID for that first relevant unauthorised use in any subsequent relevant unauthorised use (for example, insert “See [reportable incident ID]” in the spreadsheet against the second and any subsequent uses).
Responding to this requirement to demonstrate compliance
Your response to this requirement that you demonstrate compliance with section 13(2) of the Restrictive Practices and Behaviour Support Rules should be approved by a member of your organisation’s key personnel, and submitted to the NDIS Commission by email to by 30 September 2020.
It is a condition of your registration as an NDIS provider that you comply with this request for information. Please note that it is a contravention of the NDIS Act to breach a condition of your registration. A contravention may attract civil penalties up to a maximum of $52,500 for individuals, and up to a maximum of $262,500 for a body corporate.
T 1800 035 544 PO Box 210
Penrith NSW 2750
attachment page 202 www.ndiscommission.gov.au
If you have any questions about this request for information please send your query to: or call 1800 035 544.
Yours sincerely
Graeme Head AO
Commissioner
6 July 2020
T 1800 035 544 PO Box 210
Penrith NSW 2750
attachment page 203 www.ndiscommission.gov.au
Attachment I
Dear Registered NDIS Provider
Unauthorised uses of restrictive practices – escalation of compliance activity
I am writing to you because you have notified the NDIS Quality and Safeguards Commission (NDIS Commission) that you have used one or more restrictive practices in relation to one or more NDIS participants in the period from July 2019 to June 2020, in circumstances where:
-
the use is not in accordance with an authorisation and there is an authorisation process in relation to the use of the restrictive practice; and/or
-
the use in not in accordance with a behaviour support plan for the NDIS participant. As you know, use of a restrictive practice in either or both of these circumstances is a reportable incident under section 73Z(4) of the National Disability Insurance Scheme Act 2013 and sections 16(3) and (4) of the National Disability Insurance Scheme (Incident Management and Reportable Incidents) Rules 2018.
In February 2020, the NDIS Commission released its activity report for the six months from July to December 2019.1 This activity report showed a significant increase in the number of reportable incidents, particularly reportable incidents involving the unauthorised use of restrictive practices. There were 65,398 reports of the unauthorised use of restrictive practices in the six months from July to December 2019.
It is clear from the data already available to me that there has been a further significant increase in the number of reports of the unauthorised use of restrictive practices in 2020.
As you know, the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Restrictive Practices and Behaviour Support Rules) require that, where a registered NDIS provider uses a regulated restrictive practice:2
-
if the use is not a single emergency use, it must be authorised in accordance with any applicable State or Territory authorisation process;3 and
-
if the use will, or is likely to, continue (ongoing use), it must be in accordance with a behaviour support plan or, if it is not, the provider must take all reasonable steps to facilitate the development of a behaviour support plan.4
1 https://www.ndiscommission.gov.au/sites/default/files/documents/2020-06/l1591-ndis-6-month-activity-report-jul-dec-2019-june-2020.pdf. 2 Regulated restrictive practice is defined in section 6 of the Restrictive Practices and Behaviour Support Rules. 3 See section 9 of the Restrictive Practices and Behaviour Support Rules. 4 See sections 10, 11, 12 and 13 of the Restrictive Practices and Behaviour Support Rules. T 1800 035 544 PO Box 210
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I regard the effectiveness of the NDIS Commission’s oversight of restrictive practices as critical to my performance of my core function to uphold the rights of, and promote the health, safety and wellbeing, of people with disability. Restrictive practices have the effect of restricting the rights or freedom of movement of a person with disability. Requiring that restrictive practices be used only where they are authorised and in accordance with behaviour support plans that meet the requirements of the Restrictive Practices and Behaviour Support Rules is an important safeguarding mechanism for NDIS participants.
It is also important for the performance of my behaviour support function5 that the NDIS Commission’s oversight of the use of restrictive practices can occur, to the fullest extent possible, under the Restrictive Practices and Behaviour Support Rules instead of in response to notifications of reportable incidents involving the use of unauthorised restrictive practices.
To date, the NDIS Commission has focused on educating registered NDIS providers about the requirements in relation to restrictive practices and has worked with registered NDIS providers to support and encourage them to obtain required authorisations and facilitate the development of required behaviour support plans.
I wish to make it very clear to all registered NDIS providers who are reporting unauthorised uses of restrictive practices that the NDIS Commission is now escalating its compliance activity in relation to the unauthorised use of restrictive practices to ensure that registered NDIS providers meet their responsibilities.
I have recently issued notices to all registered NDIS providers in New South Wales and South Australia who have reported unauthorised uses of restrictive practices in the period from July 2019 to June 2020 requesting that they give me specified information in relation to the unauthorised uses of restrictive practices they have reported to the NDIS Commission. I have also issued notices to them requiring them to demonstrate their compliance with the relevant provisions of the Restrictive Practices and Behaviour Support Rules.
The NDIS Commission has had jurisdiction in New South Wales and South Australia for nearly two years, and it is for this reason that the compliance action is focused on these States first. However, the NDIS Commission intends to undertake similar compliance action in relation to unauthorised uses of restrictive practices in Victoria, Queensland, Tasmania, the Australian Capital Territory and the Northern Territory later this year.
This is an escalation of the NDIS Commission’s compliance activity in relation to the unauthorised use of restrictive practices, and I encourage you to recognise it as such. I urge you to make good use of the next few months to ensure that you are complying with all your obligations as a registered NDIS provider in relation to the use of restrictive practices.
Yours sincerely
Graeme Head AO
Commissioner
8 July 2020
5 The Commissioner’s behaviour support function is set out in section 181H of the National Disability Insurance Scheme Act 2013.
2 attachment page 205
Attachment J
DRAFT Principles for Nationally Consistent Authorisation of Restrictive
Practices
The principles build on the commitment of all governments to national consistency in restrictive practice regulation under the National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Services Sector (2014) and the NDIS Quality and Safeguarding Framework (2016). They also align with Australia’s commitments through the UN Convention on the Rights of Persons with Disabilities to uphold the rights of people with disability.
In accordance with the roles and responsibilities set out in the NDIS Quality and Safeguarding Framework, the NDIS Quality and Safeguards Commission is responsible for delivering nationally consistent and responsive regulation of all NDIS support and services.
The NDIS Commission’s statutory function includes oversight and regulation of the use of behaviour supports in the NDIS including the planning for those supports as part of a positive behaviour support strategy, and oversight of the implementation of restrictive practices in NDIS.
Under the Framework, States and Territories are responsible for legislative and policy frameworks that authorise the use of restrictive practices in the NDIS.
The principles are outcomes focussed and allow for flexibility in implementation while setting a high bar for restrictive practice regulation at a national level.
They reflect the various roles of the Commonwealth through the NDIS Commission, and States and Territories.
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Authorisation arrangements for the use of restrictive practices on people with disability are provided for in legislation and support the reduction and elimination of restrictive practices as agreed by all Australian Governments
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Authorisation arrangements, and the systems surrounding them, should be designed to support positive outcomes for people with disability who are subject to restrictive practices with the objective or reducing and ultimately eliminating those practices
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People with disability who are subject to restrictive practices have the same protections and rights to be free from abuse, neglect and exploitation regardless of their disability, age and where they live
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People with disability and their support networks are actively supported in the decision-making process about the use of restrictive practices, and alternative practices that may improve outcomes for the person with disability through the reduction of their use
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Authorisation decisions made under state and territory regulatory frameworks are informed by independent advice from experts with relevant training, skills and experience in positive behaviour support and restrictive practices
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Authorisation frameworks should ensure that any conflicts of interest between key parties involved in decision making on the use of restrictive practices, being people with disability, their support networks, and service providers are effectively mitigated
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Authorisation arrangements promote independence and dignity of risk while also considering the interests and protection of rights of the person with disability
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Decisions made on the use of restrictive practices are able to be reviewed if required through relevant state or territory mechanisms
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Authorisation arrangements are streamlined and take into account the impact of administrative burden on providers enabling resources to be focused on quality service delivery to people with disability
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Commonwealth state and territory governments will continue to work together to apply these principles in practice, using the NDIS governance arrangements to monitor progress in achieving national consistency
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