NDIS service providers facing court – Part 2
In the light of the recent price guide and the rhetoric that quality will suffer, we are going to continue our analysis of the current litigation against NDIS Service Providers (part 1 available here) We have to remain vigilant on the quality and safeguarding mechanisms we are implementing. We must think about how we can achieve better quality outcomes with less financial impost. The longevity of our organisations and more importantly the people receiving supports depend on it.
NDIS service provider #2
Ms KL was a young (28-year-old) Indigenous Australian woman, who lived with her Family in Orange NSW. On 2 February 2022, KL sustained burns to 35 to 40% of her body while receiving bathing support services from Organisation 2. Tragically, five days after this bath, KL passed away in Hospital. The medical records refer to her death as being caused by burns.
KL had Cornelia de Lange Syndrome, intellectual disability and other health conditions. She could have difficulty regulating her temperature, was prone to eczema, had minimal subcutaneous fat and muscle, and her skin became infected from time to time. She was small in stature, unable to independently mobilise herself, and non-verbal (but could be vocal).
KL had been receiving services from Organisation 2 for over 11 years. The services changed over the years, but in prior this horrific incident she was receiving:
- Personal care and bathing support (started April 2021)
- Community access and day program support between 9:00 am to 3:00 pm Monday through Friday and 10:00 am to 4:00 pm on Saturday for a period of 10 weeks,
- Respite support.
- Domestic assistance.
Organisation 2 provided bathing support to KL, without incident, 80 times. Each occasion had two workers were present.
To support KL, Organisation 2 had the following documents:
(a) a “Safe Work Client Manual Handling Plan” dated 25 May 2016;
(b) a “Client Risk Profile” dated 5 April 2017; and
(c) an “Interim Behaviour Support Plan” dated November 2021
None of the risk assessments identified risks arising during bathing supports, specifically the risk that water can be hot and someone may get burnt. Therefore, they were deemed not adequate to manage the risk present.
On the day in question, one of the workers ran the hot water tap in the bath then added cold water for approximately 1–2 minutes. She then scooped her bare hand in the bath water (closer to the tap than the side of the bath) to check the temperature. She considered the temperature to be fine and did not observe steam coming off of the water.
Taking this into account, the courts found that whilst Organisation 2 did provide some training and competency assessment to staff, it was not adequate. The competency question was too vague as it did not specify that the correct water temperature of the bath or shower is up to a maximum of 40 degrees Celsius.
Organisation 2 was fined $1.8 million for their failing to meet the NDIS Act.
As the provider of a training and competency assessment tool, this case gave me pause. How complex were the questions we were asking staff? Did it really identify if they had learnt something or were they just going with the obvious answer? We have now changed all of our questions to ensure you can have confidence that you team have LEARNT and not just completed your online learning. I urge you to review your learning management system and make an assessment. IF something bad occurred in your service, are you confident that you have trained staff well?
The second area of pause for service providers with this case, is that it wasn’t the absence of support documentation that they were fined for. It was the absences of documenting a single risk. I have always taken the view with disability service risk assessments that if it is a risk for a member of the general public then standard precautions apply and it does not need to be documented. Admittedly, in KL’s case, she had additional needs which increased the risk of hot water burns, so I hope I would of addressed it. But once again, Providers need to review their risk assessments to ensure they have appropriate measures in place for all risks relating to their service provision. That final part is critical as you will spend forever risk assessing if you haven’t clearly defined the services being receive.
NDIS service provider #3
Mr G. had an intellectual disability, tuberous sclerosis, epilepsy, adenoma sebaceum and obstructive sleep apnoea. He died on 17 March 2023, when he was 38 years-old, having been hit by motor vehicle after leaving his supported independent living residence alone some time after one am. Despite two to one active support, he was able to leave without the knowledge of the two support workers with him that night. It is alleged that one support workers had fallen asleep whilst the other heard the back door open but did not investigate further
The Allegation from the commission is; “It is alleged that Organisation 3 failed to provide supports and services in a safe and competent manner with due care and skill, resulting in harm causing death,” It is also alleged that the service provider was restricting Mr G’s access to Pepsi and television and that this was likely a trigger for Mr G.to engage in harmful behaviours.
The judgement handed down on 26 June 2024, allows the NDIS Quality and safeguards commission to continue to investigate this incident with the view of further court proceedings, despite the provider going into liquidation. The reasons for this judgment were:
- In the public interest of compliance to the NDIS Act
- Protecting and promoting the interests of NDIS Participants generally
- Promoting the deterrence of conduct which contravenes the NDIS Act
- Vindicating a public right that has been breeched
- Addressing particular conduct that may have contravened the NDIS Act.
The Judge is quoted as stating “the respondent’s alleged failure to provide services to Mr G.in accordance with the conditions of its registration as a NDIS provider caused harm of the utmost seriousness to a person of disability who, by virtue of his disabilities, required protection from harm”.
The last part of the sentence concerns me as it re-shapes the duty of care Vs dignity of risk debate. All humans should be protected from harm by others. Vulnerable people like those with disability, older people or children, require a higher threshold and coaching to support successfully approaching possible danger. But to simply state because of disability you require protection from harm, I think it minimises the rights and autonomy of the person with disability.
We still don’t know a lot of the details of this case as it hasn’t been fully presented to the courts, However, services providers should take note:
- Unauthorised use of restrictive practices WILL be prosecuted, particularly if the person has come to harm. Even if there isn’t clear linkage between the two
- As a service provider, how do you ensure your staff are not being restrictive in the way they provide daily supports.
- As a service provider, how do you ensure staff efficiently do the job they are paid to do. As an investigator and HR Exec, I have conducted hundreds of reviews into staff sleeping on shift. And that only the ones that have been found out.
The nature of community living means that SIL services are going to be spread out. You are not going to have supervision at all moments and people do dumb stuff.
This case demonstrates the challenges of distant service provision. The SCHADS award (and the NDIS) advocate that support work does not require high education or special skills. We are entrusting this working group to deliver effective supports, often unsupervised. The nature of this is unlikely to change. But, I have long advocated for a “don’t be a dickhead policy” and been wisely advised against it. However, there is something to be said for providing all staff with directions on what a reasonable days work looks like for example, do not fall asleep whilst on shift. This then needs to be supplemented with training for the frontline employee to enhance their understanding and training for the leaders, to identify behaviour slippage and correct (AND Document) before its too late.
The underlying theme to these cases is that in Human Services, things are going wrong far more often than they should and the consequences are devastating. Not just for the families of MA, KL and Mr G. and others like them, but I would imagine the staff involved will also carry the burden of the impact of their ineffectiveness.
It is easy to vilify the providers involved, but the root cause of these tragedies is far more complex and multifaceted. To help you sleep at night, we can assist you to do a full orgainsational risk assessment. One that is tailored to you and the needs of the people receiving your services. We will balance these against you fair work and safe work risks for supporting your team. We will then work with you to identify streamlined ways to continue to identify and mitigate risks in your service delivery.
With all the chaos and noise in the sector right now, the one guarantee we have for the future is that good quality and safe supports are critical to doing business in the disability sector.
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