What should a ‘nationally consistent risk-based

quality assurance approach’ for the NDIS involve?

Presentation to Community Work Conference

29 July 2015

John Chesterman, Manager Policy and Education

1. Introduction

OPA is an independent statutory authority with the following key

functions:

• adult guardian of last resort

• investigates applications to Vic. Civil and Administrative Tribunal

• coordinates 5 volunteer programs

» Community Visitors Program

» Independent Third Person Program

» Community Guardianship Program

» Supported Decision-Making Program

» Corrections Independent Support Officers

• advocates (individual and systemic)

• provides an advice service

• delivers community education

Today’s talk

1. Introduction

2. Who is making NDIS decisions when participants have cognitive impairments?

3. The transition to a nationally-consistent safeguards framework

Launch and rollout of NDIS

‘On 1 July 2013, the NDIS began in Tasmania for young people aged 15-24, in South

Australia for children aged six and under (on 1 July 2014), and in the Barwon area of Victoria

and the Hunter area in New South Wales for people up to age 65.’

‘From 1 July 2014 the NDIS commenced across the ACT, the Barkly region of Northern

Territory, and in the Perth Hills area of Western Australia.’

‘Roll-out of the full scheme in New South Wales, Victoria, Queensland, South Australia,

Tasmania, the ACT and the Northern Territory will commence progressively from July 2016.’

‘The National Disability Insurance Scheme (NDIS) will be in the Nepean Blue Mountains area

from 1 July 2015 for children and young people aged 17 years and under.’

Source NDIA ‘Our sites’: http://www.ndis.gov.au/about-us/our-sites

Launch of NDIS

Source: Every Australian Counts: http://www.everyaustraliancounts.com.au/about-ndis/rollout/

NDIS – at the start of 2015

• 13,610 participants had approved plans

• ‘Average annualised package cost’ (excluding Stockton and Colanda): $34,900

• Distribution shows small number of people with high costs: ‘only 11% of

participants have an annualised package cost over $100,000, but these

participants account for 52% of total committed supports.’

Source: NDIA, ‘7th Quarterly Report to COAG Disability Reform Council’, 31 March 2015, pp. 19, 23, 24.

Primary disability of participants

NDIA, ‘7th Quarterly Report to COAG Disability Reform Council’, 31 March 2015 , p.29.

Primary disability of participants

NDIA, ‘7th Quarterly Report to COAG Disability Reform Council’, 31 March 2015 , p.29.

Productivity Commission modelling on support needs

Productivity Commission, Disability Care and Support Inquiry Report, 2011, vol. 2, p. 755

What has been funded?

NDIA, ‘7th Quarterly Report to COAG Disability Reform Council’, 31 March 2015, p. 33

OPA (Vic)’s involvement

• Community Visitors conduct visits in Barwon launch site

• Many meetings with NDIA

• OPA Advocate Guardians have acted as advocates for 28 participants in

shared supported accommodation

• OPA Advocate Guardians have acted as advocates for 31 participants at

Colanda (the only residential institution in the launch site)

• OPA has been guardian for 9 NDIS participants

• OPA released a discussion paper on ‘Guardianship and the NDIS’

• OPA has developed a ‘decision-making tree’ in relation to supported and

substitute decision making and the NDIS

• An evaluation of OPA’s NDIS advocacy has recently begun

2. Who is making NDIS decisions

when participants have cognitive impairments?

• One of the key principles underpinning the United Nations Convention on the

Rights of Persons with Disabilities concerns supported decision making, which

can be defined as the requirement that people with disabilities be supported to

play as great a role as possible in making and implementing the decisions that

affect them.

• There is reference in the NDIS Act to supported decision making

» e.g. section 80(4) of the Act suggests the Rules may require nominees

‘to support decision-making by the participant personally’.

» The NDIS (Nominee) Rules (cl. 3.3) provide that appointments of

nominees should occur ‘only when it is not possible for participants to

be assisted to make decisions for themselves’.

2. Who is making NDIS decisions

when participants have cognitive impairments?

Convention on the Rights of Persons with Disabilities

UN Committee on the Rights of Persons with Disabilities, General Comment

No. 1 (2014), Article 12, 11 April (par. 24):

‘State parties’ obligation to replace substitute decision-making regimes by

supported decision-making requires both the abolition of substitute decision-

making regimes and the development of supported decision-making alternatives.

The development of supported decision-making systems in parallel with the

maintenance of substitute decision-making regimes is not sufficient to comply with

article 12 of the Convention.’

2. Who is making NDIS decisions

when participants have cognitive impairments?

The underlying philosophy of the NDIS is one of ‘consumer choice’. NDIS

participation gives rise to new choices.

• How are people being supported to make choices?

• To what extent are substitute decision makers (including nominees under

federal law, and guardians and administrators under state and territory laws)

being appointed in order to enable NDIS choices to be made?

When should a substitute decision maker be appointed for an NDIS participant?

• Our response: When participation in the NDIS presents a choice about a

significant matter that the person is unable with support to make themselves

and where no less restrictive alternative to the appointment exists

e.g. a participant with a significant cognitive impairment who has no family or

other informal supporters, has the opportunity to move to new

accommodation, and lacks capacity to make a decision about moving.

OPA (Vic)’s ‘Guardianship and the NDIS’ discussion paper

Role of nominees

• Sometimes it will be important to have a nominee (or other substitute decision

maker). In addition to making decisions, nominees can have an important role

in monitoring the implementation of a participant’s plan.

Differences between nominees and guardians

• ‘The duties of state and territory substitute decision makers do not align with

that of Commonwealth appointed plan nominees, for example:

» The role of a plan nominee does not delineate between a support

function and a substitute function …’

Australian Law Reform Commission

Equality, Capacity and Disability in Commonwealth Laws, Final Report, 2014.

Recommendation 5–2: ‘The National Disability Insurance Scheme Act 2013 (Cth)

and NDIS Rules should be amended to include provisions dealing with supporters

consistent with the Commonwealth decision-making model.’

Recommendation 5–3: ‘The National Disability Insurance Scheme Act 2013 (Cth)

and NDIS Rules should be amended to include provisions dealing with

representatives consistent with the Commonwealth decision-making model.’

3. Transition to a nationally-consistent safeguards framework

COAG Agreement 2012

‘The existing Victorian quality assurance and safeguards framework … will apply in

the Barwon launch site as it applies to the relevant new and existing funded client

support programs for the launch subject to further development of and transition to

a nationally consistent risk-based quality assurance approach in the longer term

that does not diminish Victoria’s existing quality assurance system and

safeguards.’

Intergovernmental Agreement for the NDIS Launch, Schedule B (bilateral agreement Commonwealth

and Victoria), par. 15.

3. Transition to a nationally-consistent safeguards framework

At State level in Victoria, our safeguards framework includes:

• Community Visitors

• Disability Services Commissioner

• Senior Practitioner

• Protections contained in a range of legislative provisions, including in the:

» Disability Act

» Guardianship and Administration Act

» Mental Health Act

» Supported Residential Services (Private Proprietors) Act

» Charter of Human Rights and Responsibilities Act

What should be contained in ‘a nationally consistent risk-based quality assurance

approach’?

3. Transition to a nationally-consistent safeguards framework

• Challenge in developing nationally consistent safeguards:

» Should not lower safeguards in any jurisdiction

» Should maintain, at a minimum, and ideally improve current protections

• National consistency is not easily achieved when significantly different

protections exist throughout the country. For example:

» Does national consistency require all jurisdictions to create the

equivalent of a Senior Practitioner (or even the appointment of a

national Senior Practitioner) to monitor restrictive interventions?

» Or does national consistency (which is different to national sameness)

require something broader, such as a requirement that restrictive

interventions be authorised by an external agency?

3. Transition to a nationally-consistent safeguards framework

OPA (Vic) has sought 5 key elements in relation to people with cognitive

impairments and mental ill health:

1. Supporting personal choice

• support needs to be provided for decision making

• guardianship should not routinely be used for participants

• usage of the NDIS nominee provisions needs to be closely monitored

2. Advocacy support

3. Clear complaints mechanism – at national level makes sense

4. On-site monitoring – e.g. OPA (Vic’s) Community Visitors (as recommended by

the Productivity Commission)

5. Investigations of situations of concern – broader investigation power for OPA

(Vic) and equivalents in other jurisdictions (where this power is not already

held)

3. Transition to a nationally-consistent safeguards framework

• Proposal for a National Disability Insurance Scheme Quality and Safeguarding

Framework, consultation paper prepared by NDIS Senior Officials Working

Group (for the Disability Reform Council (COAG)), February 2015

• Consultation period has now closed

• We are awaiting a decision by COAG Ministers about the framework

Proposal for a National Disability Insurance Scheme

Quality and Safeguarding Framework

Five elements of the proposed quality and safeguarding framework:

1. ‘NDIA provider registration’

2. ‘Systems for handling complaints’

3. ‘Ensuring staff are safe to work with participants’

4. ‘Safeguards for participants who manage their own plans’

5. ‘Reducing and eliminating restrictive practices in NDIS funded supports’

Proposal for a National Disability Insurance Scheme

Quality and Safeguarding Framework

‘NDIA provider registration’ (4 options)

• ‘basic registration requirements’

• ‘additional registration conditions’

• ‘mandated independent quality evaluation requirements’

• ‘mandated participation in an external quality assurance system’

Proposal for a National Disability Insurance Scheme

Quality and Safeguarding Framework

‘Systems for handling complaints’

• ‘How important is it to have an NDIS complaints system that is independent

from providers of supports?’

• ‘Should an NDIS complaints system apply only to disability-related supports

funded by the NDIS, to all funded supports, or to all disability services

regardless of whether they are funded by the NDIS?’

• ‘What powers should a complaints body have?’

• ‘Should there be community visitor schemes in the NDIS and, if so, what

should their role be?’

Complaints: additional considerations

• How will people be supported and encouraged to complain?

» Note the success of the Victorian Disability Services Commissioner’s

‘It’s OK to complain’ core message.

• Usual market protection mechanisms (including complaints and survey-based

monitoring) do not apply in the same way to the provision of services to people with

significant cognitive impairments.

• Monitoring general wellbeing can only be done by visiting the person.

Complaints: additional considerations

• The Productivity Commission called for Community Visitors to be one aspect of

the monitoring provided by the National Disability Insurance Agency, and

suggested that OPA’s Community Visitors scheme should be the model for

jurisdictions that don’t have an existing community visitors scheme (Disability

Care and Support Inquiry Report, vol. 1, pp. 81, 509).

• Key here is our Community Visitors program’s:

» Use of volunteers

» Production of an annual report

• The advantages of Community Visitors is that they:

» Are independent of service providers

» Visit regularly and get to know individuals and communication styles

Complaints: additional considerations

• There may be a need to specify in federal legislation that Community Visitors

can visit when:

» NDIS funds are used for accommodation purposes, and

» The provision of accommodation and support are connected and both

are managed by, or on behalf of, a disability service provider.

Proposal for a National Disability Insurance Scheme

Quality and Safeguarding Framework

‘Ensuring staff are safe to work with participants’

• ‘Who should make the decision about whether employees are safe to work

with people with disability?’

• ‘How much information about a person’s history is required to ensure they are

safe to work with people with disability?’

• 4 options:

» ‘risk management by employers’

» ‘requirement for referee checks for all roles and police checks for

certain employee roles’

» ‘working with vulnerable people clearances’

» ‘create a barred persons list’

Proposal for a National Disability Insurance Scheme

Quality and Safeguarding Framework

‘Reducing … restrictive practices’

• ‘Who should decide when restrictive practices can be used?’

• 4 options

» ‘a voluntary code of practice’

» ‘substitute decision makers must be formally appointed guardians’

» ‘providers would be authorised to make decisions under specific

conditions’

» ‘restrictive practices could only be authorised by an independent

decision maker’

Proposal for a National Disability Insurance Scheme

Quality and Safeguarding Framework

What’s not there?

There is no detailed discussion in the safeguarding framework paper about:

• Supported and substitute decision making

» how people can be supported to make their own choices

» when substitute decision makers (nominees under federal law,

guardians/administrators under state/territory laws) should be

appointed

• Advocacy support

• Investigating situations of concern

Advocacy

Access to advocacy support will be increasingly important as:

• individuals will retain greater control over decision making and

• some will require assistance to negotiate an ever-more complex service

system

Investigating situations of concern

In addition to the existence of a formal complaints mechanism, who should

investigate situations of concern (including allegations of wrongdoing and

instances of neglect)?

• This is probably best organised at the state/territory level

• In Victoria the Office of the Public Advocate is the best placed to do this

News just to hand: The Oval Project

In a recent and exciting development, the National Disability Insurance Agency

has agreed to fund a new volunteer supported decision-making program that will

involve participants in the NDIS. The program (The Oval Project) will be a

partnership between the advocacy organisation Valid and the Office of the Public

Advocate (Vic) and will match up to 60 NDIS participants with 30 volunteer

decision-making supporters. The project will run for 12 months.

Conclusion

• It’s important for us to think about how the consumer choice philosophy that underpins

the NDIS is working in practice for people with cognitive impairments

» How are people being supported to make decisions?

» When are decisions (formally or informally) being made for, rather than by,

participants?

• We are at a critical time in the development of the national safeguarding framework

• I hope this has given you a flavour of the debate that exists around the various

safeguarding mechanisms that might be adopted

Thank you