Quality and safeguarding measures under the Framework

In addition to setting out an overarching architecture for quality and safeguards in the NDIS, the Framework identifies a range of strategies and measures under each of the domains, which have been implemented to varying degrees since its release.

We will further consider and seek feedback on these specific strategies and measures in our ongoing work on quality and safeguards in the NDIS. However, in undertaking a review of the Framework, we have heard and identified several key themes relating to quality and safeguarding strategies and measures.

The balance of quality and safeguarding measures

The Framework envisaged that measures would interact and work together to promote quality and safeguards, with a balance between developmental, preventative and corrective initiatives. It also assumed a balance between the management of risk on an individual basis (supported by developmental strategies to build the capability of participants) and systemic risk (supported by preventative and corrective measures to identify and respond to risk).

This balance of strategies is important in enacting many of the objects and principles outlined in the NDIS Act 2013 – including enabling people with disability to exercise choice and control and participate fully in their social and economic life; as well as protecting and preventing people with disability from experiencing harm.

However, these principles are sometimes in tension – measures to reduce the risk of harm for some participants may reduce choice for others; and lack of effort in one domain may lead to an overreliance on other domains. There are clearly different views about whether the implementation of the Framework to date has found the most appropriate balance in quality and safeguarding strategies.

We have heard and identified:

• The focus of quality and safeguarding strategies to date has been heavily weighted towards preventative and corrective measures focused on providers and workers. Preventative measures include the NDIS Code of Conduct, the NDIS Practice Standards, provider registration requirements, regulation of restrictive practices, and worker screening requirements. Corrective measures include the NDIS Commission’s complaints and reportable incidents function, compliance and infringement notices, enforceable undertakings, civil penalties, and the suspension and revocation of provider registration.
• At the same time, the unanticipated growth of the unregistered provider market has reduced the impact of preventative strategies and shifted responsibility for management of quality and safeguards back to participants without a corresponding investment in developmental strategies that support participants to make informed decisions about risk.
• There has been insufficient focus on developmental safeguards to support individuals in the NDIS, including participant capacity building, the provision of information, the development of natural safeguards (such as family, supporters and community), and initiatives focused on supported decision-making and advocacy.
• Similarly, there has been insufficient focus on developmental strategies to improve the quality and performance of providers and workers.

The approach to participant safeguards, choice and control

The Framework starts from a presumption that participants have the capacity to make decisions and exercise choice and control, consistent with the objects and principles in the NDIS Act 2013 – including that “people with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals, and the planning and delivery of their supports”.

The Framework recognises that participants will have varying degrees of readiness to take control of their supports, and that participants may need support to build their knowledge, skills and confidence to practically exercise choice and control.

However, it is not clear that implementation of the Framework has sufficiently focused on supporting participants to exercise choice and control and engage in the dignity of risk – which requires people to be supported to take informed risks to improve the quality of their lives.

We have heard and identified:

• Participants take on differing degrees of risk and responsibility for their own safeguarding, depending on how their plans are managed and whether they use registered or unregistered providers.
  • For many participants, the right to take on varying degrees of risk and to choose to be responsible for their own safeguarding is a personal choice.
  • Many participants also seek a balance between risk and the value that they place in being able to manage their own plans, accessing a broad range of providers, many of which are unregistered.
  • However, it is not clear that these risks and responsibilities are always well understood by all participants who take on these risks.
• Around 60% of adult participants have conditions that could affect their decision-making capacity, such as acquired brain injury, intellectual disability or cognitive impairment, psychosocial disability or other episodic or degenerative disabilities. In addition, 42% of participants are aged less than 15 years and will likely need support to be heard in decision-making (NDIA 2022). This means that many participants may need support to adequately self-advocate and manage risk. However, there has been insufficient focus on developmental measures targeted to individuals, which means it is not clear that participants are receiving sufficient support to build their capacity and capability to exercise choice and engage with and manage risks.
• The unregistered segment of the market is subject to less regulatory oversight than many other human services sectors, and many participants using unregistered providers believe that there are more safeguards in place than actually apply. However, the use of registered providers does not guarantee effective safeguards and quality supports, and participants still need capacity building and support to ensure their safety.
• There are opportunities for intermediaries to play a greater and more clearly defined role in identifying risk, monitoring safeguards, building the capability of participants and supporting participants to manage risk.
• A greater focus on natural safeguards is required, as part of a greater focus on the developmental domain. This could include considering the role natural safeguards play in supporting participant choice and control; and implementing measures to build these safeguards.

The approach to quality

The Framework is clear that it seeks to promote quality, as well as ensuring effective safeguards. Building quality and best practice is identified as an objective to be supported by both developmental and preventative measures.

However, it is not clear that implementation of the Framework has focused on promoting quality to the extent originally envisaged. Instead, the implementation of the Framework has tended to focus on establishing and enforcing minimum safety standards through preventative and corrective measures focused on providers and workers.

We have heard and identified:

• There has been limited focus given by the NDIS Commission to supporting and encouraging providers and workers to engage in continuous quality improvement, including the promotion of quality through measures in the preventative domain. Similarly, many providers have given limited attention to listening and responding to participants and reflecting on complaints and serious incidents to improve quality and safeguards.
• Participants lack access to information required to understand the quality of supports available, and therefore to choose quality supports that are fit for their needs.
• There are mixed views on the extent to which policy and regulation should seek to drive improvements in quality, as opposed to setting and ensuring compliance with minimum safety standards.
• Consideration should also be given to how the NDIS Commission as a regulator should lead strategies to promote a positive culture of quality, or whether these roles should be performed by different organisations.

The approach to provider and worker regulation

The Framework established an overarching strategy for the regulation of providers and workers, aimed at ensuring national consistency in regulation. Progress has been made in this regard, with the establishment of the NDIS Commission, the NDIS Code of Conduct, and arrangements for provider registration and worker screening.

A key feature of NDIS provider and worker regulation is that while all providers and workers are bound by the NDIS Code of Conduct and subject to the NDIS Commission’s complaints process, not all providers are registered and subject to the NDIS Practice Standards, and not all workers are required to undergo an NDIS Worker Screening Check. The growth of the unregistered provider market, relative to what was envisaged when the Framework was developed, raises questions about how risk is being managed for participants in this market.

We have heard and identified:

• There are mixed views on provider and worker regulation:
  • Some argue that more providers should be registered (and more workers should undergo worker screening) due to the risk profile of the services they provide. Others argue that the unregistered provider market plays a highly valued role in enabling participant choice and control and offering flexibility for participants in how, and where, they access the services they want.
  • Some providers argue that current regulatory requirements lack proportionality and effectiveness, in some cases are duplicative and costly, and may act as a disincentive to providers entering or remaining in the market.
  • Regulatory and other similar requirements can sometimes pose a barrier to providers delivering better services. For example, unregistered providers argue that not being subject to the service definitions in the NDIS Pricing Arrangements and Price Limits gives them freedom to be more innovative and to invest in quality improvements.
  • In some instances, there are shortages in service provision. There should be a balance between ensuring regulatory approaches support market entry and quality service delivery, while protecting participants who are at risk in thin markets.
  • Registered providers raise concerns about the lack of a ‘level playing field’ between registered and unregistered providers, with registered providers feeling that they are more highly scrutinised than unregistered providers and that incentives to operate as an unregistered provider undermine quality and safeguards for participants.
• Some argue that the regulatory approach of the NDIS Commission should be more proactive in identifying and addressing potential concerns about risks to participants, rather than waiting for complaints and reportable incidents.
  • However, it is also noted that the NDIS Commission’s lack of visibility of unregistered providers, amongst other factors, is a barrier to more proactive identification of issues.