Draft proposal 3: Improved safeguards deployed on an individual basis

How does this currently work?

A range of safeguards are currently available in the NDIS. However, there has been limited investment into developing participants’ capacity to manage their safety, support for participants to understand the safeguards available, or support to build natural safeguards.

Existing safeguarding mechanisms include those in Figure 5.

In addition, DSS provides funding to organisations to deliver projects in the community that aim to benefit all Australians with disability, their families and carers through the ILC program. For example, ILC’s individual capacity building stream seeks to enable systemic, nationwide access to peer support, mentoring and other skills building for people with disability and their families and carers, playing a role in building safeguards for both participants and non-participants.  

There are also safeguards to support participants to make their own decisions (supported decision-making) or make a decision on behalf of the participant considering their will and preference (substitute decision-making).

The NDIS is complex to navigate, and some participants and supporters are uncertain about how to implement their plans, including how to choose providers to deliver supports and services. Participants express that while there are several options for substitute decision-making (for example, guardianship and plan nominees), there are limited supports to help them to make their own decisions and be heard. This may be a factor in observed increases in applications for guardianship of adults since the introduction of the NDIS, which is undesirable because it limits the participant’s rights and autonomy.^[44]

How could it change to work better?

As part of the participant-led process to understand risk and build safeguards described in proposal 2, we consider that all participants should be supported to identify and implement safeguards that will work for their circumstances, supported by accessible information made proactively available to them on:

• the range of safeguards available in the NDIS
• how they work
• what benefits each of them offers to support participants to manage risk and advocate for their rights.

A broad range of safeguards should be available to be deployed in different circumstances. We propose that two categories of safeguards be available to be deployed, based on individual circumstances:

• General safeguards: Safeguards that are available to all participants where they would benefit from them, and are routinely deployed – with a focus on building a participant’s capacity and strengthening their natural supports where needed.
• Targeted safeguards: Specialised safeguards that are available to those engaging with higher levels, or more complex types, of risk that cannot be adequately mitigated by general safeguards.

We think it is important that these initiatives focus first on capacity-building for participants, carers and families that supports participants to be safe not only when they engage with services and supports funded through their plan, but also when they engage with universal and/or mainstream services (that is, services that are not funded through their plans). In addition, safeguards should prioritise better integrating participants into their wider community, as being a recognised and valued part of their community is often the strongest safeguard available.^[45]

We note that these measures would be supplementary to the existing safeguards listed in Figure 4, and any further regulatory measures that may be incorporated over time. We also notes that many of these safeguards currently exist to varying degrees, however there is little information and support available to connect participants to them, and opportunities to improve them.

The list of safeguards will also need to be informed by the work being progressed under the Safety Targeted Action Plan and National Disability Research Partnership.

General safeguards

General safeguards that should be developed and/or improved include:

Capacity-building and strengthening natural safeguards

Examples of supports that could build capacity and natural safeguards for participants include:

• Accessible informational supports. For example:
  • The NDIS Commission could co-design with participants, families and carers a revised Participant Information Pack that provides information with the goal of building capacity to manage risk.^[46] This could cover topics such as participant rights in the NDIS; how NDIS supports, providers and workers are regulated, and what this means for participants; what to expect from providers, workers and intermediaries (such as support coordinators and plan managers); how to raise concerns and make complaints; how to access advocacy support; and how to access and use the Disability Gateway and Carer Gateway. The NDIS Commission and NDIA could then work together to ensure that every participant is provided with the information pack, and has the opportunity to ask questions or seek independent support to review the information and make decisions about safeguards.
  • Building on recent initiatives such as the Make It Known, Make It Better and Speak Up campaigns, the NDIS Commission could co-design other media with participants, such as scenario-based videos or theatre, that explore risk and safeguarding concepts, which participants could mirror in their lives.
• Connection to Disability Representative Organisations that operate capacity-building programs for people with disability.
• Assistance to build community connections. For example, connection to:
  • Organisations offering support to build social connections and community through initiatives like Circles of Support, Community Circles and Microboards;
  • Peer networks (both in-person and online), that offer shared discussion and mutual support, that the participant, their family and carers might be interested in connecting with; and
  • Social and community activities running in the participant’s area (such as sports or clubs), including support to access mainstream rather than disability-specific programs where the participant wishes to do so.

Support for decision-making

The NDIA has recently developed a new Supported Decision-Making policy that sets the foundation for better supporting participants to make their own decisions wherever possible. This includes through funding reasonable and necessary decision-making supports in participants’ plans.

Funding in plans and/or connections to a range of decision-making supports could be provided. Examples of decision-making supports that participants may consider accessing could include:

• Establishing a Circle of Support or Microboard (noting the broader informal support role that these types of supports can play in a participant’s life).
• Training to build their capacity to make decisions about their NDIS supports and services.
• Access to communication supports such as Auslan interpreters or equipment and technology.
• Training for carers or family to build their skills around supporting participants to make their own decisions. This could include learning about how to support participants in decision-making, or learning practical skills such as Auslan or other alternative methods of communication that would support them to communicate effectively with the participant.
• Trained facilitators or advocates to support them to be heard in decision-making processes.
• Life transition supports like mentoring, peer support or individual skill development.
• Support from intermediaries such as support coordinators (noting that it will also be important to build the capacity of support coordinators to act as decision-making supports).

Further work may be required to ensure these types of supports are available in the market for participants to access, including considering workforce capacity and best practice approaches.

We note that in addition to ensuring access to good options to support (rather than replace) participants in making their own decisions, there should also be efforts to simplify and streamline NDIS processes so that they are more straightforward, and the decisions participants need to make are clear and well-understood. Further, where substitute decision-making has been put in place, steps should be taken to ensure that the participant is still included in decisions made about them and that their will and preference is considered.

Improving information sharing to identify risk

We think that greater information sharing between government agencies, (including with states and territories) is essential to improve responsiveness to participant needs and provide opportunities for agencies that oversee the NDIS to act when information might indicate a change in risk faced by a participant. Current barriers to better sharing information need to be unblocked, as a matter of high priority.

For example, this could include sharing information based on a change of circumstance or application for a crisis payment submitted to Services Australia, or reports from a state or territory Community Visitor Scheme, ombudsman, health or law enforcement agency. There would need to be strong protections in place to ensure privacy (for example participants consenting to information sharing and that information shared is used for safeguarding purposes only). Participant consent would need to be informed by clear advice and support to make an informed decision.

We have heard, on the one hand, that people with disability want their personal information shared only for the right reasons; and, on the other hand, that some key agencies may be taking an excessively cautious approach to sharing information that is compromising effective safeguarding. We are interested in views on the balance between privacy considerations and effective information sharing to promote safeguarding.

In addition, improvements to the business intelligence and feedback systems of the NDIS Commission and NDIA could support these agencies to identify issues early, engage with participants and apply safeguards as needed. This could include drawing on complaints and reportable incidents to identify risks at the individual and system level.

Targeted safeguards

Targeted safeguards that should be developed and/or improved, to be used where participants need additional support, include:

Funding for supports to safely implement plans

In situations where participants may face significant risks to their safety and need more than general support to recognise or respond, funding could be included in plans for:

• Education on rights, risks and safety: funding for courses and training that help a participant and their carer(s), family or supporters to understand and protect their rights and manage risks facing the participant.
• Tailored information resources: funding for specific resources to be co-developed with a participant to support a participant to communicate about safety issues. Examples of tailored information resources could include a range of media suited to the needs of the participant, including using language specific to the participant, or pictures for eye gaze or picture boards.

Further work may be required to ensure these types of supports are available in the market for participants to access.

Support and advice to navigate the system and support safeguarding

The support that participants need to navigate the NDIS and make their own decisions about their supports and services exists on a spectrum of intensity from the provision of information to support for decision-making to formal advocacy services, depending on their circumstances. We see a need to ensure that participants whose circumstances necessitate it are able to access a range of more intensive advisory services to support safeguarding, particularly in navigating the system and implementing their plans. This type of support is likely to be especially relevant for participants who have limited or no access to family, friends and peers who can support them, and for participants living in certain settings such as supported accommodation. For such participants, access to advisory services could help them to navigate choices in service delivery to ensure their safety, or to resolve complex issues or complaints about service provision.

To some extent, advisory services are available for participants. For example:

• A participant’s plan may provide funding for a support coordinator to undertake activities such as connecting the participant to NDIS and other supports, brokering supports and services in line with the participant’s wishes, and building the participant’s capacity.
• Outside of the NDIS, the Australian Government and some state and territory governments fund independent individual advocacy that participants may access. Existing advocacy programs like the National Disability Advocacy Program (NDAP) have been reported to improve choice and control for over 58% of people with disability who use them.^[47]

We recognise that some participants would benefit from improved support in navigating choices and challenges in implementing their plans to ensure safeguarding. For example, this could include:

• Incorporating clearer and more explicit expectations for support coordinators to play a role in safeguarding participants who face more significant risks and who have more limited natural safeguards. This could be integrated with a broader focus on defining the role of intermediaries.
• Ensuring improved access to individual advocacy where it could assist participants in navigating choices and challenges, through referrals to advocacy services. This should be complemented by consideration of increased funding for the NDAP and state and territory advocacy programs.

It is important that these advisory services complement and incorporate any decision-making supports that the participant may need.

Clear point of contact and warm referrals

Participants and their supporters need a clear point of contact to raise issues about safeguarding. This initial contact when a participant needs help is critical in supporting them to be safe. Participants and their supporters must have a clear understanding of who to contact with an issue, and the people responding need to have the skills and training to effectively triage issues and refer participants to the right places in a timely manner so they get the right help when they need it.

In addition, warm referrals could be offered at various points in the system (for example, during planning and in conversations about risk and safeguards), where a participant, their carer(s) or family indicates that they may feel hesitant to reach out to an organisation or program they would likely benefit from (for example, the NDIS Commission, Disability Gateway or Carer Gateway). A warm referral is where direct support is provided to connect a participant to the organisation or program (for example, sitting with them and exploring a website together, or making a phone call with or for the participant). In some cases, this practice already takes place between the NDIA and the NDIS Commission.

Rapid approval pathway for funding for temporary supports critical to safety

We think that there would be value in a rapid approval pathway for requests relating to supports needed to aid a participant’s safeguarding in a temporary time of personal crisis such as the incapacitation of a primary carer or a situation involving family or domestic violence. This would involve both providing appropriate funding and working with the participant or their support coordinator (where applicable) to ensure they are appropriately supported to ensure their safety through the crisis period.

It would be important that this pathway is not solely reliant on participants or their supporters letting the NDIA know that they were in crisis. This could be supported by better information sharing between government agencies (including states and territories) to identify such circumstances and then active, timely outreach to participants and, where appropriate, plan nominees or other supporters.

We note that a rapid approval pathway may not be the appropriate approach in a time of community crisis, such as a natural disaster, where supports or services may not be available. A different approach wherein community disaster planning specifically includes plans for meeting the support needs of people with disability is likely to be more effective in these circumstances.

Outreach and visitation

Many reviews and inquiries over the years have identified a need for more proactive safeguards in the NDIS, in particular improved outreach and visitation to participants at heightened risk of harm. This includes reports by Westwood Spice in 2018, the 2020 Robertson Review and the 2021 Joint Standing Committee on the NDIS Inquiry into the NDIS Quality and Safeguards Commission.

These reviews agree that Community Visitor Schemes (CVS) support people with disability to uphold their human rights, support them with decision-making, and work to address violence and abuse in higher risk settings like supported accommodation. This reflects their importance as a safeguard to people with disability.

These reviews have consistently called for a ‘national’ outreach and visitation function, but have reached different conclusions on whether that means:

• A nationally-consistent service offering delivered by the states and territories through reforms to existing CVS; or
• The standing up of an Australian Government outreach and visitation function, delivered by the NDIS Commission.

However, there has been minimal discussion of what the explicit role and responsibilities of any outreach and visitation function would be. In order to understand who could most effectively deliver an outreach and visitation function, it needs to be clear whether the intention is to:

• Supplement social capital and natural safeguards by providing avenues to check on and promote the wellbeing of participants; or
• Ensure providers and workers adhere to regulatory requirements and obligations.

We note that six states and territories already provide CVS that align with the former (to varying degrees), and that the NDIS Commission already has the power to visit NDIS providers and ensure they are adhering to their obligations, either with permission or under warrant.

Both functions are important, but there is value in the separation of them. For example, the Westwood Spice Review noted the independence of CVS from regulators and complaints resolution roles as valuable, allowing issues to be raised by someone who does not have a stake in maintaining a particular policy or regulatory approach.^[48]

We consider that the role of any future outreach and visitation program should be focused on checking on and promoting the wellbeing of participants, particularly those with more limited personal and social capital and natural safeguards, and those in higher risk environments and circumstances such as people living in supported accommodation or living alone without good natural supports. This would be complemented by ongoing monitoring of provider compliance by the NDIS Commission.

We have formed the preliminary view that these outcomes are better delivered through improvements to CVS delivered by states and territories because:

• The CVS are an established function in six states and territories, with knowledge and connections that would be difficult to replicate.
• Current CVS can support participants with a range of issues, not just those related to the NDIS. Because CVS are not NDIS-specific, they are able to assist participants with issues that arise both within and outside of the NDIS system. For example, South Australia’s CVS reported helping people with disability living in public housing with numerous housing maintenance issues, while the Australian Capital Territory’s Official Visitors Scheme visits and monitors homelessness and prison services that may include NDIS participants.^[49] In this way, CVS provide an important safeguard that complements those already offered by the NDIA and NDIS Commission by focusing on participant wellbeing. A Commission-based program risks focussing on NDIS-based problems and solutions, rather than picking up the ‘multi-agency approach’ that has been identified as a key strength of current CVS.^[50]
• CVS do not only visit NDIS participants, and so would need to remain active regardless of whether any NDIS Commission-led function was established. Operating different CVS at different levels of government could lead to significant confusion, and leave gaps for people to fall through where another party is assumed to have oversight of an issue.
• The Westwood Spice Review highlighted the importance of the independence of CVS from regulators to ensure people can access support without any agenda or particular approach.^[51]

We acknowledge, however, that reform of the state and territory CVS is vital to enhance the role that CVS can perform as a safeguard for NDIS participants (as well as people with disability more broadly) and to better integrate CVS into the NDIS. Any reforms must be co-designed with people with disability who would be likely to be engaged with visitation and outreach services. Some examples of reform that we consider would need to happen include reforms to:

• Allow state and territory CVS to visit any site where NDIS-funded services are provided, including accommodation for people with disability. Consideration could be given to visiting participants in private homes or where they live alone (see below).
• Ensure that the focus of the CVS is on visiting participants to ensure their welfare and promote their rights, not on a provider’s compliance with requirements.
• Formalise and enhance the role of CVS in helping participants to develop capacity to raise issues and manage risks themselves.
• Enhance information sharing with the NDIA and NDIS Commission, including warm referrals from the NDIA during the planning process where direct outreach would be helpful, and considering opportunities to improve CVS visibility of the status of previously reported issues and their resolution.
• Ensure that CVS have strategies for ensuring outreach can be regularly undertaken, in a culturally safe way, in First Nations, CALD and remote communities where disability services are provided.
• Evaluate the strengths and weaknesses of the existing CVS models and develop a national community of practice to promote best practice approaches to CVS, which could support greater national consistency over time. This could consider issues like training, reporting and whether existing volunteer CVS programs should be professionalised. Greater national consistency in legislative settings, approaches and coverage across all states and territories would support participants to have confidence that this safeguard is available if needed, regardless of where they live.

It is also important to note that outreach and visitation does not operate in a vacuum. Other safeguards like capacity building, advocacy and supported decision-making will complement outreach and visitation functions so that the issues participants face can be picked up and addressed in a variety of ways.