NDIS service providers facing court

The NDIS continues to be uncertain and turbulent. NDIS Providers are rallying for an increase to the price guide and the reintroduction of complex payments. But in my view, this isn’t the biggest crocodile in the water. It’s quite possibly the baby with the mumma lurking behind. The big croc in my opinion is the current litigation against NDIS Service Providers.

This article goes into detail about the untimely and tragic deaths of people with disability whist receiving supports. The focus of this article is to use publicly available information to look into the actions taken by the service providers and apply it to what is likely common practice, without retraumatising organisations or individuals connected to these cases. At no point do I intend to minimise the loss of these individuals but want to use their tragic story to create positive change for the future.

We also need to note that court rulings form precedent and precents becomes law. So lets dive into what we should know and apply to our services:

1. Organisation 1 (case study in this week’s blog) – Death in care, seizure management
2. Organisation 2 (case study in next week’s blog) – Death in care, bathing support
3. Organisation 3 (case study in next week’s blog) – Death in care, inattentive supervision

Organisation 1

The NDIS Participant (M) was nearly 21 years old. She loved Star Wars and 1980s hits. M had epilepsy and autism was receiving supported independent living from Afford. M sadly passed away on 23 May 2019 when she drowned in a bathtub. There were three residents at home and two staff, but neither of the staff were aware that M had epilepsy. M was left in the bath, unsupervised for approximately 25 minutes.

The courts found that Organsiation 1 failed to provide supports to M in a safe and competent manner. Specifically, they didn’t

1. Develop and implement adequate measures within the Epilepsy Management Plan specifically bathing or showering.
2. Develop an action plan to address the risks posed by M’s epilepsy, including the risks associated with having a seizure whilst bathing.
3. Ensure that M was adequately supervised, or adequate alternative risk management procedures were in place, whilst bathing on 23 May 2019.
4. Document M’s diagnoses and support needs in client records.
5. Take adequate steps to ensure that the support workers responsible for providing supports and services were made aware of any or all of the following:
   1. M was diagnosed with epilepsy.
   2. M could experience seizures.
   3. The terms of M’s Epilepsy management tool and/or Comprehensive Health Assessment Tool.
   4. Measures required to address the risks posed by M’s epilepsy whilst bathing, including a bathroom door with an internally lockable doorknob which could not be unlocked from the outside.

The Organisationshas owned their failings in this case, but I suspect the “failings’ are far more common in practice. How often, in this current staffing crisis have you placed an unoriented worker with a new NDIS Participant? Are any of your support plans out of date? How have you confirmed that staff are not only aware of their existence, but understand the steps they need to follow.

In essence, Organisation 1 did not follow their own procedures.

1. They had a buddy list checklist for new staff to demonstrate they had been shown how to provide supports with care and skill, this was not completed.
2. Their epilepsy policy identified steps to support a client with epilepsy whilst bathing, this was not followed.
3. They had risk assessment tools, but they were not completed correctly.
4. They had supported M to gain an epilepsy management plan and comprehensive health assessment, but did not complete the prompts within those documents to ensure she stayed safe

Organisation 1 was ordered to pay civil penalties to the Commonwealth totaling $400,000.

The Judges finding, which you can review here in detail  Commissioner of the NDIS Quality and Safeguards Commission v Australian Foundation for Disability [2023] FCA 629 (fedcourt.gov.au) states: “Organisation 1 had in place policies and procedures in respect of epilepsy and seizure management does not mitigate the conduct, as these matters did not prevent the patent failures occurring in this case. There is no point having such procedures and policies if they are not complied with”.

Which then begs the question, as an Executive, can you recall the different directives in your policies? If you can’t, how do you expect a frontline support worker to.

Policies need to be the foundation of a good organisation.  They set out how the organisation intends to meet legislation and regulation, but too often this is viewed primarily as an administrative task. Orgs buy off the shelf policies (which I support as a start, but then they need to be reviewed and adapted for your organisations size and complexity) or senior leaders state that its someone else’s role to develop that. The NDIS Quality Audit process was always designed to test HOW organisation embed their policy and procedures, but that’s an article for another day. I challenge executives to review their policies and procedures. How many pages are there? How many 3 syllable words are used. How many long sentences are there. Many support workers have limited education or may be from a non-english speaking background. This creates a bigger challenge for service providers.

We have seen huge successes with implementing our simple read work instructions. It’s a step up in terms of complexity from an easy read, but captures all the tasks that support workers are likely to encounter in their daily operations. It is done in simple English with images linking to the systems and tools used by the organisation.

Organisation 1 was precedent setting for the sector as it was the first provider that the NDIS Quality and Safeguards Commission brought civil proceedings against, learn from this sad example and don’t follow their mistakes. Next week we will be looking into the Organisation 2 and 3’s court findings.

When read together, these documents paint a bleak picture for organisations who rely on the “this is how we do it here and it worked so don’t change it” approach.

 

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