How the NDIS approaches participant safeguarding

Safeguards are ‘actions designed to protect the rights of people to be safe from the risk of harm, abuse and neglect, while maximising the choice and control they have over their lives.’^[9] Safeguards can be both formal and natural, and can be categorised as developmental, preventative and corrective measures.^[10]

In the NDIS, safeguarding is everyone’s business.

Types of safeguards

Formal safeguards are rules and the actions that are taken by organisations with formal responsibility for the safety of people with disability. In the NDIS, these include:

• the NDIS Code of Conduct, applied to all providers and workers
• NDIS provider registration requirements and the NDIS Practice Standards
• NDIS worker screening requirements
• complaints processes and investigation and monitoring of reportable incidents;
• provider systems and procedures to ensure safety
• worker training and education
• funded advocacy programs (e.g. the National Disability Advocacy Program)
• formal outreach (e.g. Community Visitor Schemes in some states and territories)
• funded support coordination
• disability discrimination and consumer protection laws
• guardianship.

Natural safeguards (also called informal safeguards) are actions and features that are part of people’s day-to-day lives and that support them to live safely. These include:

• things that help people with disability to make informed decisions such as accessible information, or training to build their confidence and skills
• a trusted network of people to support, look out for and possibly help advocate for the participant, such as family and community networks
• civil society organisations and paid advisers who support people with disability.

The NDIS Quality and Safeguarding Framework also talks about developmental, preventative and corrective safeguarding measures.

• Developmental measures strengthen the capability of people with disability, workers and providers to reduce the risk of harm and promote quality.
• Preventative measures proactively regulate providers and workers to reduce the risk of harm and promote quality.
• Corrective measures resolve problems, enable improvements to be identified and avoid the same problems recurring.

These different types of safeguards work together to promote the safety of participants. Natural safeguards help people to understand and exercise their rights, and support their communities to protect their rights. Formal safeguards set up mechanisms to create safer environments and to take action where rights are violated. When people have good natural safeguards, they are able to manage risk more effectively themselves and are also able to engage earlier and more effectively with formal safeguards where the need arises.

Responsibilities for participant safeguarding

• Participants self-advocate about how supports are delivered and raise concerns about supports and services.
• Families, carers and community may support participants to engage with NDIS supports, and advocate for quality and safety for participants when required.
• Providers, intermediaries and workers deliver safe and quality supports to participants, both direct supports and intermediary services, including engagement with participants about what supports are delivered and how; and raise and act on concerns about the quality and safety of supports.
• National Disability Insurance Agency (NDIA) assesses risks to participants throughout the NDIS planning pathway to determine the reasonable and necessary supports that a person needs; ensures the quality of plans and reasonable and necessary funding for supports and services, including to mitigate risk; and supports informed decision-making and capability development of participants.
• NDIS Quality and Safeguards Commission (NDIS Commission) regulates the NDIS provider and worker market to reduce risk to participants, drive quality in the delivery of supports and exercise market oversight; responds to and investigates complaints and incidents; regulates the use of restrictive practices; and promotes positive behaviour support strategies to reduce and eliminate restrictive practices. In order to deliver its regulatory functions, the NDIS Commission also has a role in directly supporting participants to uphold their rights to safe and quality supports.
• Australian Government Department of Social Services (DSS) advises on policy and legislative frameworks for the NDIS (including quality and safeguarding policy), and funds advocacy services and other programs including the Information, Linkages and Capacity Building (ILC) program.
• State and territory governments implement worker screening arrangements, authorise restrictive practices, manage guardianship arrangements, manage community visitors schemes (where available), ensure quality and safety in the delivery and regulation of mainstream services (such as hospitals and schools), and operate protective and corrective arrangements, such as emergency services, police, and family services. States and territories also have a role to play in the regulation of state or territory funded disability supports outside of the NDIS.

Recent developments

A number of changes have been made in recent years to improve the safeguarding of participants. Some of these changes have been targeted to supporting participants at higher risk and were made in response to issues identified through previous reviews and inquiries, most prominently the ‘Robertson Review’ into the circumstances relating to the death of Ms Ann-Marie Smith.^[11] Key recent changes include:

• Changes to the NDIS Act 2013 to strengthen the banning order powers of the NDIS Commission, and provide greater clarity about the compliance and enforcement and provider registration provisions.
• A new approach to identifying at-risk participants by both the NDIA and the NDIS Commission, including NDIA officers conducting participant welfare checks, NDIS Commission officers visiting providers to monitor compliance, and joint protocols that detail how the two agencies will work together on shared matters.
• Improved sharing of information between the NDIS Commission and the NDIA where necessary to keep someone safe.
• Introduction of new quality standards on specific areas of identified risk, such as disaster and emergency response and meal time management.
• New conditions that require registered NDIS providers to make sure they have good oversight and protections in place where a person is being supported in their own home by a single provider.
• Provisions for plans to be varied when participants need emergency funding.^[12]

In addition, under Australia’s Disability Strategy 2021-31 , the Australian Government published a Safety Targeted Action Plan . The Safety Targeted Action Plan sets out the key actions governments will take to enable people with disability to receive high quality and safe services. Several key actions under the Safety Targeted Action Plan are specific to the NDIS, including work to ‘develop a framework based on factors that create, contribute to, or reduce the risk of harm and enable proactive safeguards for participants’.^[13]

The research agenda for the National Disability Research Partnership will also look at a range of issues linked to this topic, including research into how capacity for self-advocacy can be further developed among people with disability.^[14] It will be important for the NDIS to learn from these initiatives.

The NDIA has also recently developed two new policies on Participant Safeguarding and Supported Decision-Making.^[15] The NDIA worked with members of the community, including people with disability, to co-design different elements of these policies. The Participant Safeguarding Policy sets out four focus areas for action: proactive and individualised approach to identifying, assessing and managing risks; developing the workforce and capability of people with disability; working with people with disability to proactively develop safeguards; and effective corrective measures in response to incidents.