Action by the NDIS Commissioner that NDIS Providers must be aware of

Failures, like those alleged by the NDIS Commission in these proceedings, will not be tolerated.

The Disability Royal Commission

This week, the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with a Disability (the Disability Royal Commission) held its 20th public hearing since it commenced in April 2019. The Disability Royal Commission was established following widespread reports of violence, abuse and neglect of people with a disability. The focus of the Disability Royal Commission is to investigate:

  • how to prevent people with a disability being subjected to abuse, violence, neglect and exploitation;
  • best practice in reporting, investigating and responding to abuse, violence, neglect and exploitation; and
  • promoting a more inclusive society, where people with a disability are supported to live independent lives without abuse, violence, neglect and exploitation.

The Disability Royal Commission has been preceded by other relevant Royal Commissions examining the treatment of other vulnerable Australians, including The Royal Commission into Institutional Responses to Child Sexual Abuse and the Royal Commission into Aged Care, Quality and Safety. These public inquiries have examined factors and failures leading to the abuse and substandard care of vulnerable Australians, and inadequate responses to risk and harm in relation to children and the elderly. The findings of these Royal Commissions have led to fundamental systemic reform in child safety and the aged care sector across the country.

We expect that the findings of the Disability Royal Commission will have a similar impact on systemic reform in the disability sector leading to the protection of people with a disability from harm. The Disability Royal Commission has released 6 monthly interim reports, with the next report to be published in February 2022.

So what legal obligations currently exist to protect people with a disability from harm?

The National Disability Insurance Scheme Act 2013 is the Act which provides the guidelines as to how NDIS Providers should act. If your organisation is registered as an NDIS provider, it must comply with the NDIS Act. NDIS providers must provide adequate support and services to customers in a safe and competent manner with care and skill.

The NDIS Commission was established on 1 July 2018 and all states transitioned to the new national quality and safeguarding arrangements by 1 July 2020. The NDIS Commission is the national regulator of supports and services provided to people with a disability who participate in the National Disability Insurance Scheme (NDIS). The NDIS Commission has strong regulatory and compliance powers under Commonwealth Law where suspected breaches of a provider’s obligations under the NDIS Act, including the NDIS Code of Conduct and the NDIS Practice Standards, are identified.

These powers include seeking civil penalties when a provider has failed to deliver supports and services in a safe and competent manner, with care and skill.

Recent action by the NDIS Commissioner

On 2 December 2021, the Commissioner of the NDIS Quality and Safeguards Commission launched legal action against NDIS provider Australian Foundation for Disability (Afford) following the death of a resident Merna Aprem. The Originating Application and a Concise Statement have been filed in the Federal Court of Australia against Afford, and sets out the horrific circumstances and alleged failings by Afford, that led to the death of Merna Aprem.

The Concise Statement reveals that Merna Aprem was a 20 year old woman living in the Woodbine Residential Home run by Afford. She had a diagnosis of Epilepsy, Autism Spectrum Disorder and a moderate to severe intellectual disability. Afford was aware of the diagnoses and was also aware that Merna Aprem was required to be supervised when bathing due to the ongoing risk of seizures.

On 23rd of May 2019, Merna Aprem was found face down and surrounded by vomit in the bath. Paramedics were unable to revive her and she died at the scene. Neither of Merna’s carers were aware that she had a diagnosis of Epilepsy. Among other matters raised in the Concise Statement, the Epilepsy Management Plan held by Afford was incomplete, including the notable omission addressing the risk of bathing and showering, which was left blank.

The Concise Statement alleges that Afford contravened Sections 73J and 73V of the NDIS Act by failing to:

  • (a) provide supports and services to Ms Aprem in a safe and competent manner, with care and skill; and
  • (b) comply with the requirement that Ms Aprem be able to access supports in a safe environment which was appropriate to her needs.

The current Acting NDIS Quality and Safeguards Commissioner Samantha Taylor asserted that “NDIS Providers have very clear obligations. Failures, like those alleged by the NDIS Commission in these proceedings, will not be tolerated. The NDIS Commission will take action when providers do not meet their obligations”.

This is the first legal action that the NDIS Commission has taken to hold an organisation accountable for failing to provide proper care under the NDIS Act and it is clear from the commentary surrounding the case that it will not be the last.

What can organisations do now to ensure they are providing supports and services in a safe and competent manner?

The legislation requires that there is a positive obligation on NDIS providers to provide supports and services to customers in a safe and competent manner, with care and skill.

Organisations must act now to ensure that they are not only compliant with the mandated legislation but providing best practice to ensure a safe environment. Some of the steps organisations can take now to review their current practices and procedures include:

  • Review Compliance with the NDIS Practice Standards on a frequent basis, including after any complaint or incident is reported;
  • Ensuring staff comply with the NDIS Code of Conduct and support employees to meet their obligations under the Code and ensure operations are consistent with the Code;
  • Have an effective complaints management system which is easily accessible and with a focus on the empowerment of people with a disability and their families, carers and support persons;
  • reduce barriers to complaints by recognising the fundamental differences and vulnerabilities of each person and their need for quality care and safety;
  • responding to complaints and incidents in a trauma informed manner, ensuring that efficient procedures are followed and proper record keeping is kept;
  • ensuring proper screening and management of staff and properly addressing any performance concerns;
  • reviewing policies and procedures to ensure that all staff and customers understand their obligations within the organisation, that the organisation is committed to a safety and quality and staff are training accordingly.

How we can help?

It is important to understand that the safety of vulnerable people is everyone’s responsibility. Organisations must do all things necessary to identify risks and provide supports and services in a safe and competent manner, with care and skill.

Moores can support organisations to fulfil their obligations under the NDIS Act and respond effectively to complaints and incidents. We not only focus on compliance, we support organisations to prepare and operate with best practice.

If you would like to discuss how this applies to your organisation please contact us for more information. We can assist with training, review and audits of current systems and operations, reviews of policies and procedures, and assistance with complaints management and quality improvement. We will also be able to point you in the direction of leading industry resources.

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