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Submission to the Royal
Commission into Violence,
Abuse, Neglect and Exploitation
of People with Disability
•
'e ding a u Iity· . • .- - - - community services
Australian Community Industry Alliance
Written by Associate Professor Nicole Brooke
Australian Community Industry Alliance • ACN 1 53 423 799
P 02 9264 7197
E contact@acia.net.auaetaleading quality in w www.acia.net.au
Level 13, 465 Victoria Avenue, Chatswood NSW 2067community services
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Contents
- Introduction
- Australian Community Industry Alliance
- Australian Community Industry Standard
- Summary of Recommendations
- Key Concerns
- Disability and National Disability Insurance Scheme (NDIS)
- Standards
- Workforce
- COVID Management
- 2 Dignity of Risk
- 2 Reasonable Risks Concepts
- 3 Supported Independent Living
- Operational Risks
- References
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Introduction
Australian Community Industry Alliance (ACIA) welcomes the opportunity to provide this Submission to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability.
Australian Community Industry Alliance
ACIA is the only peak body in Australia representing aged care, disability and community care focused on quality management in care and service provision. ACIA is the national peak body representing community care and support providers, including private, not-for-profit, and charitable organisations. Nationally ACIA represents over 100 provider organisations, which collectively employ more than 1 50,000 FTE workers and supports more than 35,000 clients. ACIA also supports the disability and aged care sectors and works with government departments and authorities, including: State Disability Agencies such as Department of Family and Community Services,
Ageing Disability and Home Care NSW, Department of Health Human Services Victoria
and Disability Services QLD
iCare NSW includes: Lifetime Care and Support Authority, Workers Insurance, Dust
Diseases Care, Self-Insurance, and Builders Warranty.
Lifetime Support Authority South Australia
Motor Industry Accidents Board, Tasmania
Transport Accident Commission Victoria
Workers Compensations Schemes in multiple states
Representation at the National Aged Care Alliance
Department of Health
Department of Social Services
ACIA’s vision is for community care and support industry known and respected as a provider of quality services. To achieve this vision, ACIA provides education, resources, and support to the industry and develops and administers its own quality standard and scheme (endorsed by the Joint Accreditation System for Australia and New Zealand JAS-ANZ). ACIA seeks to be involved in the future development of policy and service reform, by bringing to the discussion our experience and expertise, including: Membership of over 100 provider organisations and individuals nationally, representing around 150,000 FTE workers and 140,000 clients; Membership across the disability, community care and aged care sectors; Specific expertise in the delivery of support to people living at home or in supported and shared accommodation arrangements; Lengthy provider experience of delivering individualised support according to the wishes of the individual in line with their funding; Experience in compensable and business markets; Experience in the development, implementation, and administration of quality certification systems that meets the national standards for disability services and home and community care standards (for example, the ACIMSS 2008, ACIS 2013, ACIS 2018 and now ACIS 4.0); Advocate on aged care, community care and disability issues; Expert representative on national committees representing our member issues; We have a proven track record of engaging positively with reform processes and working collaboratively with governments, providers, consumers, and interested stakeholders.
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Australian Community Industry Standard
Australian Community Industry Alliance (ACIA) also operates under the framework of JAS-ANZ (similarly to NDIS), the Australian Community Industry Standard (ACIS). ACIS has been operating across disability, home care, insurance and private or unfunded clients in Australia since 2008. ACIS has recently released its fourth edition of this based on a consolidation of the recent 22 sector reports on issues and challenges in the sectors, including Royal Commission findings (both interim and final). ACIS Providers are representative across all states and territories. ACIS certified organisations that have certified over the last three years include; 60,000 clients and 45,000 staff across home care, disability and community.
Profile of AC/5 Providers: I
4:5 provides provide community access, personal care, domestic I services, social support, medication management, catheter care, wound management, bowel management and enteral feeding.
3:5 provide positive behaviour management and 1 :3 engage t t t t t
with restrictive practices.
More than 4:5 providers have clients with brain and spinal injury, mental health, autism, cognitive impairment t t t t t 1 :2 ACIS provides are additionally credentialed against NDIS Standards t t t t t
Figure 1: % of services provided by and types of clients of AC/5 Provides t t
Types of Clients % of Services Provided
Social Support I I Physical Disability I I
I I I I I Personal Care or... Spinal Injury
I I I I I Transport Assistance I I I Ventilator Dependent
Respite Care I I I I I , Dementia
Gardening and Home ... I I
I I I Mental Health Clinical Supports I I I I I I Intellectual Disability Palliative Care
I I I I I Autism I I Housework or ... I I I I I I Community Access Aged Care
I I I I I I Nursing Services ABI
0% 20% 40% 60% 80% 100% 0% 20% 40% 60% 80% 100%
■Yes ■No ■Yes ■No
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ACIS 4.0 meets contemporary and evidenced based needs across aged care, community care and disability. ACIS is split into 5 core areas which are proportionality reviewed against the providers scope and service provision. These Core areas are:
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Rights & responsibilities
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Corporate Governance
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Clinical Governance
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Service Delivery
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Service Environment Then additional modules are included in the three-year certification and annual surveillance reviews, where the provide undertakes these areas. These include: I
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Complex Physical Supports a. Medication Management b. Wound Management I C. Catheter Management d. Complex Bowel Management e. Enteral Feeding and Management f. Advanced Airway and Suctioning Management g. Ventilator Care and Management h. Subcutaneous Injections i. Brain and Spinal Injury management j. Palliative Care and Pain Management k. Diabetic Management I. Bariatric Management m. Oncology Management n. Altered Nutrition and Dysphagia
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Complex Behavioural Support a. Positive Behavioural Support b. Complex Cognitive Impairment Support
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Mental Health Support
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Assistive Technology Following a comprehensive mapping activity, ACIS 4.0 shows alignment to 50% of NDIS and another 50% to Aged Care Act as indicated in Figure 2.
Figure 2: Mapping of AC/5 to ND/5 and Aged Care Act
ACIS4.0 NDIS Standards Aged Care Standards
Rights & Responsibilities O Increased human rights e
Corporate Governance e e
Clinical Governance • New standard O Increased governance
Service Delivery e e
.. . Service Environment • Inc. new.. requirements . e
Add. Physical Support O Increased scope O Increased scope • • New cognitive imp. std Add. Behav. Support O e
Add. Mental Health New standard • New standard e
Add. Assistive Technology New standard New standard e e
TEAM: RN +1 2 (o_o_o RN*) 2 (no _o BJ'.l)
DURATION: lyr* 1.5 years 3 years
• Similar Standard O Largely Similar • New Standard
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Thank you for the opportunity to consider our response to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. ACIA absolutely supports and recognises the importance and value of the NDIS to support people with disabilities to have choice and control, greater independence and improved quality of life in order to support a meaningful and enriching engagement in the community.
Summary of Recommendations
Australian Community Industry Alliance recommends the following:
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NDIS standards should be dramatically reviewed to greater safeguard against the needs of their vulnerable participants by aligning NDIS standards to ACIS 4.0;
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NDIS and NDIA governance and leadership lacks transparency, contemporary data and strategy to adequately support this population and sector;
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The findings of various committees and hearings have not been considered, heard not actioned and this suggests negligence from an advocacy and representation position.
e Reform NDIS Commission and get foundations in place, including complaints systems, business intelligence, root cause analysis, risk prediction markers, develop case mix parameters to support estimates of predicition of funding and services, and transparency or safeguarding systems
e Increase funding to support the actual care needs of these vulnerable clients, their goals and support the actual intent of the system which includes support to family and carers to engage with the community in a meaningful manner.
e All workers and providers of care need to be registered and held to the same standards.
e Have people on federal and state leadership committees that understand the operations of the sector rather than those that only know policy and politics.
e Ongoing measures in alignment with ACIS direction should consider the needs and initiatives including;
|. | Standards around assistive technology
ll. | Home modification guidelines and measures for consistent implementation
Ill. | Requirements of all supporting providers and non providers supporting
participants IV. Mental health support for carers and participants
V. — Increased accessibility for respite services VI. Review of SIL environments to ensure these are adequately funded and managed against best practice approaches Vil. Plans should have additional and flexible monies allocated in the circumstances
that allow for urgent changes and unexpected needs
Vill. |= NDIS standards should be modelled to ACIS
IX. Clinical governance needs to be added as a matter of priority to NDIS requirements of providers;
X. — NDIS auditors need regular training and development to support consistent auditing and reporting.
Xl. | NDIS needs to improve its governance and leadership approaches to ensure
that changes are planned and well communicated in alignment with the intention of the NDIS.
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XII. Complex care needs of participants needs need to be better addressed by the modules to ensure adequate provisions are in place to safeguard these needs including bariatric, pain management, palliation, acquired brain injury and advanced airway management.
Whilst the NDIS has not seen this as a remit to further consider, unregulated providers shouldhave at least a minimum check of worker screening, insurances, training, safeguarding, I reporting and policies to ensure the adequate supports are in place to protect participants. Currently participants who are self managing or accessing un-registered providers are unsure and far from informed of all the checks they need to complete. I There should be a three tired certification process:
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Verification for low risk, low engagement supports. Things that should be removed here include community nursing and medication management.
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Low risk certification in its current form for low risk high engagement activities. Currently mid terms which are often being extended out to 2.5 years now instead of 18 months, only review governance and a smaller sampling.
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High risk certification where providers are reviewed against all modules every 18 months to capture the high risk arears they are involved in which includes SIL, SDA, high intensity supports, behaviour management etc.
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Key Concerns
Disability and National Disability Insurance Scheme (NDIS)
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1:2 staff say the best thing about working in this sector are the clients themselves and 1:3 say it is the ability to make a difference.
These staff are paid less than staff that pack the shelves in the supermarket or uber drivers.
1:2 providers say lack of funding to meet the participant needs is the single biggest issue effecting the sector and 1:3 state that the workforce lack the skill and capability to effectively meet the needs of the sector.
Earlier this year 1:3 shifts across the sector couldn’t be filled because there wasn’t enough staff to fill these shifts — people don’t want to work in underpaid, highly administrative, under appreciated sectors.
Registered Nurses don’t want to work in this sector, as when they consider their requirements by the APHRA regulator find that they cant satisfactorily undertake their due diligence and duty of care to adequately supervise and coordinate care with such complex and unwell clients,
95% of Providers say that the NDIS is not adequately supporting the needs of people with disabilities.
It is reported that at least 1:2 NDIS participants are getting services from non Approved Providers and not realising all the checks and requirements that need to occur for each worker that performs NDIS services — insurances, training, reporting, worker screening. When asked - the sector identifies this is such a risk 99% of people said that all workers need these credentials checked and audited to ensure that participants are safeguarded. The NDIS doesn’t want to touch this subject saying the 1 page code of conduct covers this enough but it doesn’t.
Members feedback is that 99% say it is too high risk and that all workers providing services need to be verified or certified. No one fails verification it can just take up to 2 years for them to get all their paperwork in order. 4:5 say that all should have full certification undertaken.
NDIS Worker screening is taking longer than 3 months in some states before workers I can even start working. 2:3 is taking longer than 4 weeks. 16% taking longer than 8 i weeks. Now being told VIC is taking 4 months. fj ACIA supports that we need a restraint free approach (chemical and physical) for our participants but with more than 1 million unauthorised restrictive practices reported just last year and expected doubling next year, we must do more. Ifa restraint is in place then a behaviour support plan must be implemented, however only 10% of these i actually talk to the client and carers so how are these user friendly and effective. The {il NDIS Commission said, that’s the Providers job to fix it but often there is no funding for it.
1:3 Providers report there is insufficient funds to meet the participant needs. Our members are reporting that plans are being reduced up to 60% on each review, with an average reduction on plans around 18%. This is significantly impacting on the ability of Providers to deliver against the participants goals. Plans are being reduced despite
expert advice from health professionals and those of the direct needs and wishes of ti participants. How can an expert in the field who deems that the person can not be safely transferred without the use of a hoist be refused the purchase or hire of an appropriate hoist and told to make do, forcing staff to work in unsafe environments, risk injuring the participant and having catastrophic outcomes, all of which was recommended by an expert? There are constant examples of were experts in the field are not supported to reflect the needs of a participant with no reasonable response or justification, aside from an administrative position of cost saving.
We remain concerned about the level of experience and capability of support coordinators and plan managers. We recommend that those roles need to be assessed within the standards framework as a registration group for support coordination.
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Behaviour support practitioners - only 10% actually communicating with clients and providers before developing these making them impossible to achieve. They are also transcribing illegally all the medications onto the plan.
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Clients have no responsibility to disclose all issues including restraints, medications, diagnoses to help planners make informed decisions
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the NDIS Fraud taskforce is looking at compliance with providers and participants, however it carefully needs to review self managed plans as we have a direct example of where carers of a person with disabilities pays another family carer $110,000 annually to provide supports for their family member who doesn’t provide the services at all and the other family does this in reverse. They are simply paying themselves to provide the
care. • RNs role to supervise and delegate medication management in community is void of I
their legal responsibilities as clients and families take on responsibility but technically they are working under the indirect supervision of an RN.
• To do medication management you only need verification - checks of policies and a PD I of an RN, no competency check - medications can include any type of medication
including inhaled morphine, cytotoxic medications, injections etc.
- No benchmarking but clients can refuse to disclose
- General issues report we consider the- processes, timelines, and overall management It continues to demonstrate a lack of timely ■■■■■■■
information, lack of advocacy, inconsistencies in findings and at a cost both in time and money for both NDIS and participants that is incongruent with the intent of the NDIS and the Act to which it is founded against. We implore the committee to pursue some reasonable and timely responses to the actions ■■■■■of the AAT. Support needs to be funded for participants to access advocacy assistance when undertaking or considering appeals processes due to the stress and challenges that this process delivers. ACIA supports greater transparency around KPls for AAT. o Additional support is needed given the distress that is endured during these processes, without due regard for the challenges and life changing needs that occurring despite the legislative barriers that are imposed. o A 21 % of appeals suggest a mismanagement of issues and poor management o An 18 week average resolution is not conducive to the needs of the community of reflective of the intent of the process.
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The intent of the NDIS is as defined in its operational guidelines: o The NDIS is a new way of providing individualised support for people with disability, their families and carers. The NDIS will provide all Australians with a permanent and significant disability, aged under 65, with the reasonable and necessary supports they need to live an ordinary life. Eligible people, known as participants, are given a plan of supports which is developed and tailored to their individual needs. A plan could include informal supports that a person receives through family, friends, mainstream or other community services. If required, the NDIS will also fund reasonable and necessary supports that help participants achieve their goals. Not all people with disability will become NDIS participants. Only those who meet the access criteria will become a participant and receive an individualised plan. However, the NDIS can provide people with disability, their families and carers support through information, linkages and capacity building by connecting people to the mainstream community (NDIS, 2019).
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We would suggest that packages are largely not focused on providing information, linkages or building capacity - rather just the bare basics.
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Personal care workers proposal regarding 2 people is not required, other are for more at risk. The root cause issues are - governance, leadership, professional boundaries and supervision.
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Midterm auditing needs to include all elements and include sampling otherwise we are note adequately listening to the clients feedback. Currently the commission has removed all sampling from midterm assessments and auditors are only allowed to look at governance elements. This is highly at risk for our participants. NDIS is moving midterm assessmetns out to 2.5 years and recertificatiosn out to 4 years. Therefore no
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participants or staff are being used to triangulate and validate providers safeguarding and practices for up to 4 years. This is far from acceptable. All standards and sampling must be included in midterm assessments.
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The Productivity Commission Report (2011 b) found that the disability system was underfunded, unfair, fragmented and inefficient and gave people with disability, their families and carers little choice and no certainty of access to appropriate supports - NO
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The National Disability Strategy (2011 a) sort to improve the accessibility of mainstream services for people with disability will complement specialist disability services and programmes currently provided by Commonwealth, state and territory governments, including those provided through the NDIS. - NO
The inquiry into NDIS Planning (Tune, 2019) recommended 42 recommendations of long I standing issues that remain yet to be addressed:
Are we achieving this? NO I • Major inconsistencies in plan funding between participants with the same disability
type;
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Plans not including funding for particular supports for the reason that a participant already has informal supports, despite the participant stating that they have no informal supports;
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Plans not including funding for particular supports for the reason that these should be available in another service system, such as health, without the NOIA first checking to determine whether the supports are indeed available and the participant is eligible for them;
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Planner errors, including listing the wrong disability type on participant plans;
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The experience, expertise and qualifications of planners;
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Planners ignoring or changing expert recommendations from allied health professionals about the supports appropriate for a particular participant;
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The planning process for particular cohorts, including participants with psychosocial disability, Aboriginal and Torres Strait Islander people with disability, children and young people, and participants in custodial settings;
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Issues with external appeals to the Administrative Appeals Tribunal (AAT), and allegations that the NOIA was not offering participants new plans ; and
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Problems with communication from and by the NOIA, including slow or non-existing responses to queries, and participants not being invited to their own planning meetings. The Joint standing committee on NDIS produced a report on NDIS Workforce (Australian Government, 2021 ), yet none of these recommendations have been implemented.
Are we achieving this? NO
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Increasing NDIS workforce data collection
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Consulting NDIS workers and other key stakeholders in all NDIS pricing review processes
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Improving employment opportunities for people with disability and Aboriginal and Torres Strait Islander people within the workforce
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Addressing the funding and resourcing implications of new training and upskilling initiatives
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Increasing student placement opportunities within the workforce
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Developing clear and measurable outcomes for the initiatives in the NDIS National Workforce Plan 2021-2025; and
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Developing a comprehensive consultation strategy for the implementation of measures under the Workforce Plan.
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Standards
We would like to see the committee consider the current Australian Community IndustryStandard (ACIS) as an exemplar in the care and service provision of people with disabilitiesalong with those who are frail and elderly. It goes above the NDIS standards and identifies thegaps in the NDIS standards around governance, clinical governance, complex physical care,cognitive impairment, person centred approaches, mental health and assistive technology. Thestandards lack contemporary evidenced based approaches as evidenced in ACIS where clinicalgovernance should be a core and proportionally assessed module for providers providing care, /which then enables registration groups of community nursing, medication management andother high intensity supports considered as an additional element. Currently medicationmanagement is considered under verification and if we consider that psychotropic medicationuseage is estimated to be as high as 70% in the cohort of persons with a disability and Ipolypharmacy where nine or more medications are in place, could be as high as 65%, this is asignificantly concerning area that needs higher supervision and monitoring. Furthermore, /examples of cytotoxic (oncology) medications are being administered by support workers withno understanding of the issues around waste management, management of spills and issues ofstaff safety and health that is required.
Whilst the death of the participant in South Australia was a tragedy, it is concerning that theNDIS is considering a narrow and insular approach around ensuring all personal care isundertaken by two staff to reduce this risk. This is far from the root cause analysis of thisproblem. There are many areas of service provision that should be included in this area,including SIL accommodation, high intensity supports, therapy, community nursing and daytherapy programs. The issue is fundamentally based on improving the governance andworkforce capability / supervision that occurs including regular assessments and reviews.
NDIS standards and scheme requirements are largely flawed. They are not contemporary, riskbased and nor do they adequately cover the governance and clinical governance needs of thesector. I would strongly encourage you to consider reviewing ACIS 4.0. ACIA providestransparency of all reports, engaged in supervision and education of auditors to ensurecontemporary and relevant knowledge of scheme requirements and standards, as well andsupporting providers through their weaknesses. It is almost impossible to get a direct answerout of the Commission, there is rarely positions that they have shown -with goodplanning, data that is evidenced based and root cause focused to inform strategic approachesin management. There is a largely autocratic approach to NDIS management rather than co-design or engagement based approaches with decisions made and consultation follows toensure due process. I would encourage a more proactive approach with the learnings of ACIAto how to provide standards across multiple sectors, work with providers and auditors throughtransformation and develop against trends and client acuity patterns. As an example;complaints in NDIS are largely not risk managed, don't facilitate engagement with providersand participants, rarely provide direction and there is little to no analysis of trends and themesto inform improvements and strategy.
Workforce
Workforce issues as presented in earlier information presented remains a core issue for theNDIS sector, both the workforce capability and shortage. Current strategies, along with theuntimely and unprecedented pandemic has left the current workforce fatigued and withered innumbers. There must be a focused and supported strategy to consider supports in this area asit cant be left to providers only. The SCHADs award changes are further going to reduce thecapacity of providers to provide the choice and control that participants want along with havingany ability to provide a viable business. This must be considered a priority.
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COVID Management
Whilst we acknowledge the additional supports for COVID vaccinations for people with disabilities, there has been considerable issues around choice and control for people with disabilities in relation to COVID testing and compliance. As it was a directive for people working with people with disabilities to have their vaccinations, this was not implemented across self managed participants who chose unregistered providers. Furthermore, on a daily basis providers were struggling with participants who refused to get tested for COVID despite having symptoms and staff getting vaccinated. Providers tried to risk mange the situation as /best as possible however as participants exercised their choice and control in these cases it was impossible to manage them in most cases, with them refusing to wear masks, refusing to let staff enter their houses with PPE and other similar situations. This provided positions were even at the beginning of the year there were periods that organisations have 40-50% of shifts being unable to be filled.
Dignity of Risk
Dignity of risk supports the rights of clients “to make their own decisions about their care and services, as well as the right to take risks (Commonwealth of Australia, 2021, p. 8)”. It is further defined by Ibrahim and Davis (2013, p. 1) as the “principle of allowing an individual the dignity afforded by risk-taking, with subsequent enhancement of personal growth and quality of life”. Dignity of risk presents one of the most challenging and evolving areas in aged care and disability provision due to the express nature of the legislation to enable and support the concept, however with growing demands on duty of care, ensuring the safety of others and governance requirements, it only but provides a blurry and indeed challenging space for those in the sector to unpack. Despite this evolution, this right for self-determination is inherently in the right of all individuals. It is undertaken throughout the course of ones life, so one may further consider what right does a provider or decision maker have to influence, restrict, or impede an individual’s choices of an individual regardless of their physical, cognitive or other impairment. It is highly regarded that clients need choice. This negotiation with clients and key stakeholders in order to improve clients independence and autonomy, involves engaging the person and providing informed consent. Whilst choice is often about giving a voice to the needs and wants of a client, it additionally acknowledges the rights and outcome of the decisions may come with mistakes and learnings. Engaging conversations about choice requires informed discussion and documented acknowledgment of the levels of risk one is prepared to participate. Ultimately, this supports an increased person centred approach of care and service provision. It furthermore, engages in a value add approach to the needs and values of a person relevant to the stage of life they are experiencing. Dignity of risk does not remain theoretical anymore, rather it is strongly embedded now in a number of key legislative documents and guidelines. One of the key areas in duty of care are ensuring providers have well documented and clear processes for clients choosing to take risks, either in their daily care and service provision or more specific activities that they wish to engage with. By ensuring that there is informed consent, reasonable safeguards in place and supervision where able, risks can be minimised to optimise the outcome of both the client and the provider. Within the Aged Care Act (“Aged Care Act.,” 1997), standard 3(c) states that “each consumer is supported to exercise choice and independence”, further described in (i) “to make decisions about their own care and the way care and services are delivered”. The Standards Guidelines elaborate on this to say that each person “as much as possible that decisions are made by the consumers themselves” (Commonwealth of Australia, 2021, p. 18). It voices the acknowledgement that clients are recognised and indeed respect, as an expert in their own care, lifestyle, choices and experiences. While such policy sets out a clear agenda for clients residing in aged care facilities and the community, it does little to assist providers manage the daily risk issues that are present. The Aged Care Quality and Safety Commission has not supported the sector to raise awareness of dignity of risk issues, rather left this in the hands of the provider to navigate. Whilst common law provides support legally, the negotiation on risks to mitigate falls, minimise episodes of aspiration, support the wishes of
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clients to smoke despite non adherance to risk assessments and in the interests of naming a few, wander the streets at the risk of getting lost or injured. This policy directive goes a long way to supporting the choices or clients, however the sector is concurrently micromanaged by its reporting on restraints, falls, wounds and utilsiation of psychotropic medications.
In 2008, the United Nations Convention on the Rights of Persons with Disabilities, Article 19, acknowledged the right of the individual to make choices about their life. The National Disability Insurance Scheme (NDIS) (“NDIS Act,” 2013) acknowledged dignity of risk as a critical part of a person with a disability’s right to choice and control. It states that a person with a disability “should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports (“NDIS Act,” 2013, p. 6)”. It ensures that the participants’ support plan must include any unreasonable risks (Section 44 (2)a), furthermore acknowledging the responsibility of the CEO to manage such risks. The NDIS Commission as a part of their Quality Standards, verifies through the certification processes that “each participant’s right to dignity of risk in decision making is supported… to make informed choices about… the risks and the options under consideration (Commonwealth of Australia, 2020, p. 6)’. However, yet again there is a long way to go to supporting the sector to support participants where restraint is demanded by family for safety, or where a person in a group home needs to be restricted from leaving the house for their safety, or the manual handling practice requests of the family are inconsistent with provider expectations, medication administration is provided in a unique manner for the needs of the child with disability, or the cost of adequate supervision of a participant is not covered by the NDIS.
The concept of duty of care invariably is linked to dignity of risk. The overall intent of duty of care is making all reasonable and foreseeable efforts to ensure the client does not come to harm. However, there has been reasonable principles within common law that give a person the right to self-autonomy and an innate right to determine how they shall live. It provides precedence for the client to make reasonable and informed risks to the choices that may impact on their life. As set out in the aged care standards, providers need to ensure a balanced approach to managing risks and respecting the rights of the client (Commonwealth of Australia, 2021). The Disability Services Act (2006) Queensland Section 19 (3) acknowledges that persons with disabilities “have the same rights as others.” In its disability framework, it responds to this issue by stating that providers have ensured dignity of risk is considered (Queensland Government). However, it has a long way to go on support this concept of dignity of risk, as do is in the other states, including; Disability Act (2006) Victoria, Disability Inclusion
Act (2018) South Australia, Disability Services Act (2011) Tasmania, Disability Services Act
(1993) Western Australia, and Disability Services Act (1993) Northern Territory.
Dignity of risk, whilst explicit in its intent and meaning, challenges both the sector and the community at large. A review of dignity of risk provides context to the challenges existing in this domain. The primary challenge is that whilst there is common law precedence for clients taking risk, this isnt as well presented in relevant legisation. There is no doubt in the policy direction that dignity of risk is critical to support the choice and control of clients, as with the inevitable journey of life there comes risk, and without risk taking there is no dignity.
Reasonable Risks Concepts
In acknowledgement of a devastating outcome for one participant noting the influence and power behind these recommendations. In comparison across NDIS, aged care and community care predominantly there is only one worker in a setting, even in residential care, at one time. And the review of vulnerability often comes out of an adverse incident or following a duration of period were dependence and therapeutic relationship occurs. Infrequently would a single assessment or ongoing reviews, and often these can be undertaken via telehealth options or phone and it would be difficult to establish the parameters of a truly vulnerable person. This may include; domestic violence, neglect that is not transparent, restraint (family initiated or worker required), physical deterioration with unreasonable medical review due to the disability, frailty or complexity of the disability including behaviours.
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Reasonably, personal care is only one aspect of where vulnerability is an exposed risk. There is possibly more exposure in clinical care where technical equipment is available and can be used against a worker, or preparation of meals where knives are accessible, or social support where they are in settings that may be unsupervised and lack phone coverage despite the risk assessment. Where this concept is implemented and given that our members indicate that in January alone 30-40% of shifts were unfilled due to staff vacancies; how would this play out in delivery of personal care which is an essential element of care provision and a second worker isn’t able to be found or doesn’t turn up, then the vulnerable person is left more exposed. Many of our members have provided direct examples of where having two staff has not eliminated the risks, especially related to grooming type behaviours and neglect. / The NDIS is proposing to impose a requirement that they only have 30 days to impose this requirements, and agreements need to be adjusted to support changes, rosters need to be /developed, staff need to be recruited and trained, would they need to be of a certain level of qualification given the issues qualifications concurrently, and given the SCHADS award changes there are further limits on broken shifts which is reducing the choices and rights of participants. Given the dignity of risk example, could a participant refuse to have two people? What if two people cant safely and practically move within a bathroom or a room to support their manual handling needs and the safety of the participant?
Supported Independent Living
Supported Independent Living (SIL) accommodation offers considerable risks to participants where there is only one worker, often shared due to funding limitations between multiple participants and / or houses. These are often highly vulnerable workers due to the bespoke needs of the clients whilst being under the supervision of only one worker at a time, however again funding limits this option. Many SIL operators will monopolise the day and evening supports without giving other options and choices available due to cost minimisation. Further to SIL accommodation the SIL participant usually pays 0-80% of their pensions to the Service Provider to run the house however there is no choice or control, nor transparency and accountability to how these funds are spent, let alone validation that it is meeting the needs and choices of these participants. SIL accommodation should be considered for those under 18 years of age in bespoke settings rather than combining children and adults. Often families are unable to support the needs of children safely in a home environment safely and the participants are highly vulnerable in these environments. This often leaves the families only option to relinquish care to family services in order to support the needs of these participants with is completely against the vision and aim of NDIS and the legislation surrounding it. SIL accommodation should be considered for funding to support two workers being present, as it crosses through a variety of core support areas and risks for aggression, restraint and injury are considerably higher.
Operational Risks
Frontline leadership and supervision of workers are currently challenging the integrity of the standards. There are not enough support workers, these are gaps are not only due to COVID. The Standards should consider greater focus on frontline leadership as was supported in the NDIS frontline leadership initiative. There are purely not enough support workers available and credentialed / qualified to meet the needs of all participants.
NDIS should fund case management and / or case workers for vulnerable people where by they are funded to risk assess the issues at hand, guide a bespoke approach to risk and work closely to validate issues, work through communication with key stakeholders and put in place processes to safeguard these vulnerable participants and then monitor them.
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NDIS plans for participants in vulnerable communities including flooding and fires (but also extended for pandemics) should include adequate provisions for emergency funding and resources to support these participants.
NDIS and NDIA are currently focused on participants, however the intent of the legislation was also around their carers and families alongside supporting their communities. ACIA lacks any awareness of how this is being progressed.
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References
Aged Care Act., (1997).
Australian Government. (201 1a). 2070-2020 National Disability Strategy. Canberra Retrieved
from https://www.dss.gov.au/our-responsibilities/disability-and-carers/publications articles/policy-research/national-disability-strategy-20 10-2020
Australian Government. (201 1b). Disability Care and Support. Canberra Retrieved from https://www.pc.gov.au/inquiries/completed/disability-support/report
Australian Government. (2021). ND/S Workforce Final Report. Canberra Retrieved from
https://parlinfo.aph .gov.au/parllnfo/download/committees/reportjnt/O24621/toc pdf/N DISWorkforceFinalReport.pdf;fileType=application%2Fpdf
Commonwealth of Australia. (2020). NDIS Practice Standards: NDIS Practice Standards and
Quality Indicators. (3). Canberra: NDIS Retrieved from
https://www.ndiscommission.gov.au/sites/default/files/documents/20 1 9-1 2/ndis practice-standards-and-quality-indicators.pdf
Commonwealth of Australia. (2021). Guidance and Resources for Providers to support the Aged
Care Quality Standards Sydney: ACQSC Retrieved from
https://www.agedcarequality.gov.au/sites/default/files/media/Guidance %26 Resource_ V14.pdf
Ibrahim, J. E., & Davis, M. C. (2013). Impediments to applying the ‘dignity of risk’ principle in residential aged care services. Australas J Ageing, 3X3), 188-193. https://doi.org/10.1111/ajag.12014
National Disability Insurance Scheme Act 2013, Commonwealth of Australia, (2013). https://www.legislation.gov.au/Details/C20 1 3A00020
NDIS. (2019). Overview of the NDIS Operational Guideline - About the NDIS. NDIS. https://www.ndis.gov.au/about-us/operational-guidelines/overview-ndis-operational guideline/overview-ndis-operational-quideline-about ndis#:~:text=4.4.1 %20Objects%200f%20the%2ZONDIS%20Act%20The%20main,supp orts%20they%20need%20to%20live%20an%20ordinary%2Olife.
Queensland Government. Your Life Your Choice. Brisbane: Department of Communities, Child
Safety and Disability Services Retrieved from
https://www.qld.gov.au/ data/assets/pdf file/(0029/58682/ylyc-self-directed-support framework.pdf
Tune, D. (2019). Review of the NDIS Scheme Act 2013 - Removing Red Tape and Implementing
the NDIS Participant Service Guarantee Retrieved from
https://www.dss.gov.au/sites/default/files/documents/O1 2020/ndis-act-review-final accessibility-and-prepared-publishing 1.pdf
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