1. Read ss.4, 5, 60(2)(e), 61 to 68, and 91 of the National Disability Insurance Scheme Act 2013
(NDIS Act).
2. People with disability have the same right as other members of Australian society to respect for their worth, privacy and dignity and to live free from abuse, neglect and exploitation.
See ss.4(6) and 4(10) of the NDIS Act .
3. In regards to children with disability, the best interests of the child are paramount, and full consideration should be given to the need to protect the child from harm.
See s.5(f) of the NDIS Act .
4. The National Disability Insurance Agency (NDIA) is responsible for delivering the National Disability
Insurance Scheme (NDIS). The NDIS is designed to enhance the quality of life and increase economic and social participation for people with disability.
5. The Intergovernmental Agreement on the National Disability Insurance Scheme Launch ( IGA ), and each of the bilateral agreements between the Australian Government and host jurisdictions appended to the IGA, provide that existing state or territory based quality assurance and safeguards frameworks will continue to apply in each jurisdiction during the trial phase of the NDIS.
6. The IGA and bilateral agreements contemplate that during the trial phase of the NDIS the
Australian Government and host jurisdictions will work to develop and transition to a nationally consistent approach to quality assurance and safeguards.
7. Under the state and territory legislation that establishes existing quality assurance and safeguards frameworks various state and territory government agencies have responsibility for the administration of quality assurance and safeguards including in respect of responses to abuse, neglect and exploitation.
8. The NDIA recognises the need to work cooperatively with the state and territory agencies that are responsible for the prevention of abuse, neglect and exploitation.
9. The NDIA recognises that people with disability (including children) can be particularly vulnerable to harm. Types of harm include abuse, neglect and exploitation. While working with potential
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participants, participants, their families and carers, NDIA staff may encounter circumstances or obtain information about abuse, neglect or exploitation.
10. This Operational Guideline deals with the roles and responsibilities of NDIA staff when they suspect or receive information about abuse, neglect or exploitation including the role of NDIA staff in providing information to state and territory agencies.
11. This Operational Guideline is designed to assist staff of the NDIA to determine the necessary and appropriate action to be taken when they suspect or obtain information which may indicate that a person with disability is subject to abuse, neglect or exploitation. It deals with: a. What abuse, neglect or exploitation involves, b. The necessary and appropriate action to reduce the opportunity for abuse, neglect or exploitation during the planning process, and c. The necessary and appropriate response to abuse, neglect or exploitation.
12. This Operational Guideline also deals with the need for NDIA staff to comply with legislation and policies that apply to the recording, using and disclosing of ‘protected information’.
13. In each state and territory a number of agencies have functions and powers under state or territory legislation that deal with cases of actual or suspected abuse, neglect and exploitation. For example, state and territory police and child protection agencies. The NDIA recognises the need to work with these agencies and to make referrals to them in appropriate cases.
14. The NDIA also recognises that various state and territory legislation imposes on officers of state and territory agencies mandatory reporting obligations, which require those officers to report certain matters and information to the police or other agencies in certain circumstances. For example, state and territory child protection legislation in most jurisdictions imposes such obligations.
15. NDIA staff also have responsibility of ensuring the appropriate escalation within the NDIA of information which may indicate that a person with disability may have been, is, or may in the future be subject to abuse, neglect or exploitation. The information is to be brought to the attention of an appropriately senior officer consistent with the nature and seriousness of the information. If in doubt, staff are to bring the information to the attention of the most senior officer available without delay.
16. The necessary and appropriate action will depend on the particular circumstances of each case and no two cases will be the same. Cases of abuse, neglect and exploitation may often involve unclear facts, several people and complex circumstances. NDIA staff are to exercise judgement in determining the necessary and appropriate action to be taken in any particular case and are to be guided by this Operational Guideline. If in doubt, staff are to seek assistance from a manager without delay, or if that is not possible, respond without delay. Each trial site has established critical incident protocols. These reflect the Quality and Safeguards framework in that state or territory.
NDIA staff are to adhere to the critical incident protocol that is relevant to the trial site where the person with disability is residing.
17. Staff are to recognise that the NDIS Act does not give staff the legal authority or power to do what would otherwise be unlawful. For example, to take a person’s property, to enter premises or to detain or touch a person without consent.
18. The NDIA’s primary role is to report to the responsible state and territory authorities if there are cases or suspected cases of abuse, neglect or exploitation. The NDIA will then consider any implications for the participant’s NDIS plan (having regard to the scope of the NDIA legislation and the obligations of other service systems as agreed by Governments).
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19. Abuse may involve physical, sexual, emotional/psychological or financial abuse or a combination of these.
20. Neglect relates to the failure to provide adequate care, such as food, shelter, stimulation, clothing, medical or dental care.
21. Exploitation is taking advantage of the vulnerability of a person with a disability in order to use them, or their resources, for another’s profit or advantage.
22. NDIA staff will encounter a range of information which may indicate that a person with disability is subject to abuse, neglect or exploitation.
23. The information could take a number of forms, from information provided during a phone call, to physical evidence of abuse observed during a meeting with the NDIA. The information may be directly from the person with disability or be from another person and about what they saw or what they heard someone else say (hearsay). There may be several pieces of information which support the same conclusion or there may be several pieces of contradictory information.
24. The information may relate to a serious form of abuse, neglect or exploitation. The information may be of abuse, neglect or exploitation in the past, the present or the potential for future abuse, neglect or exploitation.
25. Whenever a staff member obtains information which may indicate that a person with disability may be subject to abuse, neglect or exploitation the staff member is required to make a judgement about the necessary and appropriate action to identify whether abuse, neglect or exploitation has taken place, is taking place or may take place in the future.
26. The staff member is not responsible for conducting an investigation into the truth or otherwise of the information or the alleged abuse, neglect or exploitation. The staff member is responsible for responding promptly to gather and record the information obtained by the
NDIA about the alleged abuse, neglect or exploitation.
27. In every case it is critical that the staff member, without delay, takes the necessary and appropriate action to identify whether abuse, neglect or exploitation has taken place, is taking place or is likely to take place in the future. The instructions in the relevant critical incident protocol must be referred to at all times. This Operational Guideline cannot describe all of the circumstances that will be faced by staff members but some general guiding principles to determining the necessary and appropriate action are: a. Where the information is unclear or weak – an immediate discussion with a manager and further investigation of the information and circumstances. b. Where the information is clearer or there is more information – an immediate discussion with a manager and the collection and recording of the information, including its source, records of conversation and any documents. This may lead to a referral to a state or territory agency. c. Where the information is clear, uncontradicted and supported from a number of sources - an immediate discussion with a manager, recording of the information and an immediate response, including by referral to a state or territory agency.
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28. In some circumstances information indicating serious abuse, neglect or exploitation will require no further identification of the abuse, neglect or exploitation and immediate action may be able to be taken to respond to the information (see below).
29. To form a belief that there is a serious threat to a person’s life, health or safety and that the disclosure of protected information is necessary requires careful consideration and judgement.
What is required is that a person believes that there is sufficient material to allow the person to form a belief, on reasonable grounds, that: a. There is a serious threat to a person’s life, health or safety, and b. The disclosure of the information is necessary to prevent or lessen the serious threat to an individual’s life, health or safety .
30. Whenever a staff member is required to make a judgement about the necessary and appropriate action to respond to the abuse, neglect or exploitation that may have taken place, may be taking place or is likely to take place in the future this judgement is to be made in consultation with a manager, unless it is not possible because of the urgency of the circumstances.
31. This Operational Guideline cannot describe all of the circumstances that will be faced by staff members but the action required to respond to the abuse, neglect or exploitation may involve: a. An immediate response – an immediate action or actions to deal with the information of abuse, neglect or exploitation, and b. A later review and adjustment of NDIA arrangements for the participant. This may include reviewing the plan, plan management arrangements, nominee arrangements, local area coordinator arrangements and service provider arrangements.
32. The immediate response may include: a. Action within the law to ensure the immediate safety of the participant, b. An immediate acknowledgement of the information and reassurance of the participant, c. In consultation with a manager, identifying the immediate safety concerns and the appropriate agencies to support the person, investigate the information and advocate for the person’s best interests. This could include police, child protection agencies or the relevant adult guardianship board.
33. In each state and territory a number of agencies have functions and powers under state or territory legislation that deal with cases of abuse, neglect and exploitation. For example, the police and child protection authorities.
34. NDIA staff members, in consultation with a manager, may consider that it is necessary and appropriate to refer information to an agency outside the NDIA. The NDIA expects that when there is information which may indicate that a serious incident of physical or sexual abuse has occurred, or may occur, the information would promptly be referred to all appropriate agencies. For example, to the police, medical care, a domestic violence or sexual assault service or a child protection agency.
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35. NDIA staff are to act in accordance with the incident management procedures agreed with state and territory bodies for each trial site. In each site there are delegates responsible for making referrals to agencies. Staff are to clearly document all actions taken including timing and contact names, any follow up actions and ensure that any action or referrals do not compromise any investigation by the police or external agencies.
36. Where the person involved is a participant, staff will respond promptly to a need for any additional formal supports following an incidence of abuse, neglect or exploitation. NDIA staff will address these needs through crisis responses and/or time-limited additional resources in order to, at a minimum, maintain existing supports agreed in the participant’s plan as well as providing any additional supports that are required. This may involve a prompt review of the plan including providing alternate care arrangements where the participant cannot safely return to their usual residence and supports.
37. Where NDIA staff have taken action in response to suspected abuse, neglect or exploitation of a person (for example, making a referral to another agency), and the person has a legal representative, such as a guardian, the person and his or her representative are to be informed as soon as possible in the circumstances. If lawful and appropriate to do so, family members, nominees and other people significant to the person are to be informed as soon as practicable in the circumstances.
38. The advice to the family, representatives, or other relevant persons is not to take place if it would be
unlawful (see the section below titled ‘Disclosing information’), present an unacceptable risk to the
participant or compromise an investigation by the police or external agencies.
39. In all their dealings with participants, potential participants and their families and carers, NDIA staff and contractors are to consider a person’s vulnerability and take appropriate steps to take account of that vulnerability in any dealings, making decisions and developing relationships. For example, if a person has a cognitive disability it is important to take account of the person’s particular v ulnerability during the assessment and planning process and when reviewing the participant’s plan. The plan should include supports that support the participant to participate in the process, respond to the participant’s needs and enable positive engagement with risk.
See Operational Guidelines
– Planning and Assessment – Risks and Safeguards
.
40. A delegate may determine that a nominee be appointed where there is suspected abuse, neglect or exploitation of a participant. Before appointing a nominee, the NDIS Act and National Disability
Insurance Scheme (Nominees) Rules 2013 (Nominees Rules) require delegates to consult with a number of people, consider a number of matters and have regard to a number of things. For example, where the delegate has asked the person to answer any questions or provide any information in relation to the possible appointment of that person as a nominee (including requesting the person to consent to the release of information concerning their criminal history or to disclose any conflict of interest in relation to the person and the participant) consideration must be given to: a. Any answers or information that have been provided by the person, and
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b. Any refusal by the person to provide answers or information.
41. Importantly, a nominee must have a willingness and ability to act in the best interests of the participant.
See ss.86 to 88 of the NDIS Act and Operational Guideline – Nominees – Duties and Removal of Nominees .
42. The planner should also consider appropriate monitoring of these arrangements, which may include the involvement of an NDIA staff member (such as a local area coordinator or plan support coordinator) , and formal supports that specifically build the participant’s ability to develop healthy personal relationships and decision making skills.
See Operational Guideline – Monitoring and Review of a Participant’s Plan – Review of the Plan .
43. In addition to an immediate response, the action required to respond to the abuse, neglect or exploitation will often involve a review and adjustment of NDIA arrangements for the participant.
44. The adjustment of NDIA arrangements for the participant will take place through a review of the participant’s plan. The NDIA expects that the participant’s plan will be reviewed promptly in all cases and, in particular, when a review of the plan is appropriate to safeguard the participant from further unacceptable risk.
See Operational Guideline – Monitoring and Review of a Participant’s Plan – Review of the Plan .
45. In addition to the matters set out in the Operational Guideline – Monitoring and Review of a
Participant’s Plan – Review of the Plan delegates are to consider the following matters in relation to abuse, neglect or exploitation: a. NDIA staff are to continue to support the participant to review the appropriateness of supports and safeguards in the plan and assist in accessing supports from other schemes that may be appropriate. b. The new plan may need to provide additional formal supports or a crisis response with timelimited additional resources. For example, new residential arrangements. The plan should consider whether existing supports need to be maintained and whether additional supports such as coordination of complex supports or specific capacity-building supports are reasonable and necessary.
See Operational Guideline – Planning and Assessment – Risks and Safeguards . c. The delegate may need to consider whether plan management arrangements need to be varied so that they do not present an unreasonable risk to the participant.
See s.44(2) of the NDIS Act and Operational Guideline – Planning and Assessment – The Plan Management Decision. d. The delegate may suspend the appointment of a person as a nominee of a participant if the delegate has reasonable grounds to believe that the person has caused, or is likely to cause, physical, mental or financial harm to the participant.
See ss.91(1) and (2) of the NDIS Act and Operational Guideline
– Nominees – Duties and Removal of Nominee
. e. A delegate may consider that it is necessary to consider the appointment of a new or different nominee. For example, to assist in the management of the risk of abuse, neglect or exploitation of a participant. A nominee can only be appointed in accordance with the NDIS
Act and the Nominees Rules .
See ss.86 to 88 of the NDIS Act and Operational Guideline
– Nominees – Appointing a Nominee
.
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46. The delegate is expected to put in place appropriate monitoring of these arrangements, which may include the involvement of an NDIA staff member (such as a local area coordinator or plan support coordinator) and formal supports that specifically build the participant’s ability to develop healthy personal relationships and decision-making skills.
See Operational Guideline – Monitoring and Review of a Participant’s Plan – Review of the Plan .
47. The arrangements for the provision of services and the use of particular service providers may also require review. Complaints and feedback information, including in relation to state or territory quality assurance systems, may assist the delegate.
48. Every NDIA staff member is required to comply with the provisions in the NDIS Act that deal with
‘protected information’ and the provisions of the Privacy Act 1988 (Privacy Act) which deal with
‘personal information’ and ‘sensitive information’.
49. The protected information and privacy provisions in the NDIS Act are enforced by criminal offences in the Act that attract a penalty of up to two years imprisonment and the provisions of the Privacy
Act are enforced by the Privacy Commissioner and the sanctions that can be imposed include the payment of compensation.
See Operational Guideline
– Information Handling – Overview
.
50. However, the NDIS Act contains a number of mechanisms that specifically deal with the disclosure of protected information.
51. One such mechanism is that the NDIS Act authorises the disclosure of protected information to people outside the NDIA when a delegate, who is an officer of the NDIA, makes a decision to disclose the protected information in certain circumstances. For example, to the police.
See ss.66(1)(a) and 66(1)(b) of the NDIS Act .
52. The NDIA Act also expressly allows for the disclosure of protected information when a person believes, on reasonable grounds, that the disclosure of the information is necessary to prevent or lessen a serious threat to an individual’s life, health or safety.
See s.60(2)(e) of the NDIS Act .
53. Staff members are required to comply with the requirements of the legislation when considering the disclosure of protected information and, when practicable, requests for disclosure of protected information are to be referred to the Privacy Contact Officer for action.
54. If the urgent disclosure of protected information is necessary to prevent or lessen a serious threat to an individual’s life, health or safety the staff member of the NDIA is to carefully consider the matter and proceed with the urgency required by the circumstances.
55. The staff member is to take all appropriate steps to ensure the matter is carefully considered and the correct judgement is made. For example, if time permits discuss the matter with the most senior staff member available and seek the assistance of the Privacy Contact Officer .
56. If something has occurred which is serious or urgent and time does not permit consultation with the
Privacy Contact Officer beforehand, the NDIA officer should alert relevant authorities of the situation and then notify the NDIA Privacy Contact Officer afterward.
See Operational Guideline – Information Handling – Threats to Life, Health or Safety .
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57. The NDIA recognises the importance of ensuring staff are suitable to work with people with disability.
58. The NDIA has a system in place to maintain up to date and appropriate checks on staff in the NDIA including police checks on commencing employment and requirement to declare any current or potential conflict of interest or criminal charges.
59. The NDIA investigates all allegations that a staff member is involved, or may be involved, in abuse, neglect or exploitation of any person. Whenever a staff member obtains information which may indicate that an NDIA staff member is involved, or may be involved, in abuse, neglect or exploitation of any person, the staff member who obtains the information is to report immediately the information to their senior executive manager who will report to the NDIA’s Chief Financial
Officer in accordance with the NDIA’s complaints management policy.
60. Staff are to document clearly all information and be careful not to compromise any investigation by the NDIA, police or external agencies.
61. The NDIA aims to influence the improvement of system level responses in relevant
Commonwealth, state and territory legislative and operational frameworks that prevent abuse, neglect and exploitation.
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