The State Government has transferred responsibility for the funding and regulation of disability services to the Commonwealth and the NDIS. It is, however, responsible for those specific tasks left to it under the Bilateral Agreement between the Commonwealth and South Australia 2018 such as the screening of workers, the authorisation of restrictive practices and Community Visitor Scheme (CVS) arrangements. Full transition has now occurred, although the State is still a limited service provider under the NDIS, especially in group home accommodation and there are many people with psychosocial disability yet to enter the NDIS in SA. A number of NDIS participants have expressed to us the view that they have been abandoned by the State government in the transfer to the NDIS. NDIS participants in SA are still residents and citizens and can reasonably expect support from mainstream agencies. The Disability Inclusion Act 2018 addressed this issue.
Since 1 July 2018 quality and safeguarding has been the responsibility of the Commission with the exception of the Department of Human Services (DHS) accommodation services which are in-kind and are not covered by the Commission. However, DHS accommodation services have a number of state-based safeguarding mechanisms including the DHS Incident Management Unit, the DHS Integrated Incident Management reporting system and DHS Internal Audit.
Having timely access to health care is crucial to preventing, treating and managing health conditions. There is much evidence that people with disabilities do not get a good deal from the health system, notwithstanding some excellent initiatives like the Centre for Disability Health. There is also considerable evidence that people with disabilities have a reduced life expectancy due to poor health monitoring and screening. Vulnerable individuals need to have regular health review. Currently all people who have an intellectual disability are eligible for a prolonged health assessment under the Commonwealth Department of Health, Medicare Benefits Schedule (MBS)-Item 707. Undertaking an annual health review with a general practitioner who is trusted and known to the person will lead to the best possible outcomes. Using the MBS prolonged health assessment will provide sufficient time (60 minutes) to collect a comprehensive patient history and undertake a thorough examination of the person’s medical condition and physical, psychological and social function. Providing a comprehensive health care management plan including necessary interventions and referrals (for example, visiting nursing services) will lead to positive outcomes. The annual health check will also include regular checks for people depending on their vulnerability and health needs.
The MedsCheck service involves the provision of an in-pharmacy one-to-one discussion between a pharmacist and a patient to improve the quality use of medicines. This service is funded via the Community Pharmacy Agreement and does not require a doctor’s referral. The Homes Medication Review is intended to maximise an individual patient’s benefit from their medication regime, and prevent medication related problems through a team approach, involving a referral from the person’s General Practitioner to an accredited pharmacist. The Home Medication Review is supported through the Medicare Benefits Schedule item 900.
Accessing health care is the responsibility of the individual with support as required but where a vulnerable person does not wish to take up the offer of a check that should be a further alert to vulnerability and followed up with the individual by the support coordinator.
Many people with a disability do not get supported to go to medical appointments in the first place, and, if they do, they are treated for their behaviour, not the underlying cause.
Where a person is vulnerable because of health issues, their NDIS plan should include coordination (not provision) of their health care. There is a need for our health system, both medical services, funded by the Commonwealth and hospital services, provided by the state government, to improve their access for people with disabilities. This has recently been the focus of work undertaken by the Department of Health and Wellbeing and the Health Performance Council.
At present, the lack of coordinated health supports means that some health interventions for people with disabilities occur as crises undertaken by the South Australian Ambulance Service. Its CEO, David Place, is reported to have said (Advertiser 3 June 2020) that “one-third of calls involved chronic complex cases responsible for two-thirds of ramping time.” This is not only a highly inefficient way to provide health care; it is demeaning and life-threatening for the individual. A highly qualified retired health professional reports that, in the absence of coordinated health care, her niece has to regularly attend hospital by ambulance to receive even basic health services.
Safeguarding Gap 9
Regular health checks are not routinely made available to all vulnerable NDIS participants and their NDIS plan does not routinely include coordination of their health care.
The Adult Safeguarding Unit (ASU), located in the Office for Ageing Well (OFAW), has a strong focus on safeguarding the rights of adults at risk of abuse. This is established under the Ageing and Adult Safeguarding Act 1995 and, for the first three years of operation, has a remit of adults aged 65 years and over, and 50 years and over for Aboriginal and Torres Strait Islander people.
The key functions include:
- responding to reports of suspected or actual abuse of adults who may be vulnerable
- providing support to safeguard the rights of adults experiencing abuse, tailored to their needs, wishes and circumstances
- raising community awareness of strategies to safeguard the rights of adults who may be at risk of abuse.
Whilst reporting to the ASU is voluntary, once a report of actual or suspected abuse is received, the ASU has a statutory responsibility to respond. The ASU has a range of information gathering powers to enable them to investigate reports of serious abuse effectively. However, in most cases the consent of the adult at risk is sought before any safeguarding action is taken. The role of the ASU is not as a regulatory agency nor to punish perpetrators, but to work positively with and for the adult at risk of abuse to facilitate safeguarding support, whilst preserving the relationships that are important to them. The remit of the ASU is slated to extend to all vulnerable adults in 2022. However, in view of current concerns about the potential vulnerability of many younger adults, particularly those with disabilities, consideration needs to be given to how this can be brought forward to ensure that those who are at risk of abuse can access appropriate safeguarding support.
The National Disability Abuse and Neglect Hotline already exists but is not well known. This is a service that will take a report of abuse or neglect and triage to the relevant Commonwealth or State agencies for investigation and follow-up.
In expanding the remit of the ASU to include younger adults at risk of abuse, appropriate relationships must be established with relevant other agencies, including the National Disability Abuse and Neglect Hotline and the Commission. This will ensure that appropriate information sharing and multi-agency collaboration can occur to enable effective response pathways and safeguarding support to be put in place, in line with the person’s wishes and circumstances.
Safeguarding Gap 10
There is currently no State agency to report abuse and neglect of vulnerable adults under 65 years of age.
For its first three years of operation, the Adult Safeguarding Unit only has the legal remit to respond to reports of abuse and neglect of vulnerable adults aged over 65. Extending the reporting of abuse and neglect to vulnerable adults under 65 will require an extensive promotional campaign including the elements of prevention, for example, "it’s alright to knock and ask if I am okay”.
All registered providers of disability services under the NDIS are required to ensure all staff working with people with disabilities are appropriately screened. Failure to abide by this renders a service provider in breach of their registration requirements. However, where a participant chooses to self-manage or plan-manage, they can use non-registered providers and there is no obligation for these providers to have screening checks on their workers. This is clearly a situation where the NDIS considers the individual is making their choices and taking personal responsibility if things go wrong.
Under the Bilateral Agreement between the Commonwealth and South Australia 2018, the State is responsible for screening of people working with vulnerable people — the screening uses information available from police records, court appearances and personnel records of agencies, but so long as a person can pass these requirement they are cleared to work in the industry, but that does not guarantee that they are safe to be allowed to work with vulnerable people. It merely screens out people whose track record makes them un-safe for working with vulnerable people. The Department of Child Protection uses enhanced screening of workers in residential care, involving psychological testing. This is a matter that warrants further consideration, but enhanced screening is one mechanism among a number, for example, rigour in staff selection, training and supervision.
The screening system is only as good as the information supplied and acted on. There is a particular problem when it comes to Commonwealth agencies, for example, the Commission, sharing information with the State so that the screening unit can be appraised of all relevant information when making a screening determination. It also appears, in a number of instances, that the Commission has not readily shared critical information with the NDIA.
The availability of critical information from State authorities, for example, SAPOL also requires review. Clearly, when SAPOL is investigating a criminal matter, and before charges are laid, it may not be in a position to divulge that information to others e.g. the DHS Screening Unit. Clearly a service provider or care worker who is under investigation by SAPOL may pose a risk to NDIS participants but that risk is not known to the Screening Unit.
Safeguarding Gap 11
The DHS Screening Unit is not quickly and fully provided with relevant information by the Commission, the NDIA and some State agencies, compromising the availability of information on an individual worker that might affect their suitability to work with people with disabilities.
Community Visitor Scheme
The National Disability Insurance Scheme Act 2013 gives compliance and enforcement powers for disability services to the Commission, including strong monitoring and investigative functions. The Commission can, and does, when alerted through a relevant notification, make unannounced and short-notice visits to disability services to inspect and assess quality and safety issues and respond to complaints or information of concern. In addition, NDIS providers may contract an independent auditor (registered with the Commission for that purpose) to conduct an independent visit and audit of their premises. Also, initiatives like Quality Checkers provide a system of internal audit of services at the request of service providers.
The State no longer has a funding relationship with non-government agencies and the State needs to work within its responsibilities rather than venture into the domain of the Commonwealth. The future role of the CVS has to accommodate the roles and functions of the NDIA and of the Commission under the Commonwealth’s NDIS Act 2013.
Under current arrangements, the South Australian CVS has the power to visit DHS-run accommodation services. It also has the ability to visit people who are NDIS participants and under the guardianship of the Public Advocate. As constructed under Regulations under the Disability Services Act 1993, the disability CVS did not have statutory power to enter the private home of a person with a disability. Coercive powers to enter private homes is also a significant human rights issue. If such powers for a visitation scheme was to be seriously considered, people with disabilities should be first consulted.
Once you have the power to go into people’s homes you don’t know where that could go.
The State and territory framework of CVS should be retained as a contributory function to the NDIS Framework. They should play an independent role whilst contributing to the intelligence available to the NDIS Commission. It is important the CVS is formally recognised within the NDIS Framework so that the safety net for vulnerable people is not lost (especially in the context of the risks of transition in the next two to five years.) This interface could be effected through structured communications to and from, agreed reports that can be consolidated nationally, consistent definitions, possibly opportunities for the NDIS Commission to request CVS look at an issue of concern. The risks of this approach rather than a national scheme are that there could be variable commitment and inconsistencies which could impact on NDIS participants and providers. The recommendations that CVS collaborate to achieve greater consistency and alignment of approaches address this risk in part.
West Wood Spice 2018
There is general acceptance that the CVS has great merit in that it provides more eyes to observe what is happening in a potentially vulnerable person’s life. The disability CVS has been in existence since 2013 and uses screened and trained volunteers to undertake the visits.
The State Opposition’s Bill for the CVS has been referred to the Task Force for consideration. A revised scheme needs to consider legal responsibilities between the State and Commonwealth as well as the scope and capacity of the scheme. The South Australian Government has received advice from the Crown Solicitor on this issue. Having considered this advice, the state’s view is that the NDIS Act has “covered the field” in the area of quality and safeguards and that constitutional issues would arise if the state were to legislate to provide those powers to a CVS in relation to NDIS funded services. The view is further held that coercive powers to compel the production of information, or require corrective measures by a service provider, could ultimately become invalid.
The Task Force has undertaken an analysis of CVS (or related) arrangements in each of the 6 jurisdictions that operate a CVS (see Section 9.9).
The common view of people consulted is that the CVS is a valuable part of the safeguarding environment.
There is merit in having a community visitor scheme that empowers visitors to visit potentially vulnerable people in all group homes, all supported residential facilities and all day options programs, whether state-run or NGO-run. There is also value in a visitor going into a person’s own home by invitation.
The cleanest and best way to achieve this would be for the Commission to add a national CVS to its suite of functions. The Commission should be making many more unannounced visits to service sites and needs to improve their responsiveness to notifications of adverse events or participants at risk. The CVS as part of the Commission’s range of functions would be a vehicle to achieve these tasks and it is hoped that this will soon be recognised at a national level through reviews currently underway.
However, in view of the current expressed intention of the Commonwealth not to fund a national CVS, but to accommodate State/Territory CVS programs, any conflict between State and Commonwealth legislation on this issue needs to be addressed. A formal agreement between the Commonwealth and/or the NDIS Commission and the State about the operation of the State CVS within the NDIS context could be developed if there is commitment by both parties. This could include an amendment to Commonwealth law; a delegation from the Commission; a rule made by the Commission for state-run CV Schemes; or a national CVS under the Commission.
Expert legal advice should be sought on how to resolve the legal conflict and then South Australia should work with the Commonwealth to create a scheme that is compatible with state and federal laws and able to provide well-being checks on potentially vulnerable people and provide intelligence to the Commission for the purpose of its monitoring and investigation functions.
Any agreement needs to cover the powers of the CVS, the definition of visitable sites and the nature of the visits, the reporting of matters of concern to the Commission (rather than the State Minister) and the sharing of information held by the Commission on visitable sites. Also, a scheme could be established that provides social connection visits to NDIS participants. If an agreement between the State and the Commonwealth is feasible adequate resources and capacity will be needed to deliver any agreed arrangements.
In the interim, the South Australian Government should affirm its commitment to CVS visiting services for which it has responsibility:
- Mental Health Treatment Centres and Authorised Community Mental Health Facilities under the Mental Health Act 2009
- State Government DHS Disability Accommodation Services
- Public Advocate clients who are participants of the NDIS.
In this context the South Australian Government could also consider CVS visits Supported Residential Facilities covered by the South Australian Supported Residential Facilities Act, 1993
Safeguarding Gap 12
The commencement of the NDIS Quality and Safeguards Commissions on 1 July 2018 in South Australia has created issues with the scope of the Community Visitor Scheme.
Capacity Development and Advocacy
Addressing the ways that the NDIA and the Commission operate only deals with matters that are under their immediate control. Both are bureaucratic behemoths, ill-suited to managing individual idiosyncratic concerns. The citizen feels very small when dealing with these large agencies no matter how hard they try to be user-friendly.
The participant or their family needs a “go-to” person in the system. We have identified, in the absence of a case manager or social worker, that the support coordinator is the closest thing to exercising this role. When it comes to individual capacity building, the NDIS has not made best use of Local Area Coordination and the Information, Linkage and Capacity Building (ILC) grants program. LAC has been side-tracked into plan development, a role they weren’t designed for and this has resulted in less community access information for people with disabilities. The ILC program administers grants that are designed to build the capacity of both individuals and communities but the only mechanism is time-limited grants to applicant agencies. The logic is to support projects that try new ideas and develop new approaches which are expected to be self-sustaining. There is no recognition that capacity building of individuals is an ongoing task – there are always new individuals needing this support.
The ILC grants are meant to target the building of the capacity of society to include people with disabilities and also the capacity of individuals to engage with society and exercise their choices in life and to take control.
At the state level, the Disability Inclusion Act 2018 requires all government departments, instrumentalities, and local councils to have Disability Access and Inclusion Plans (DAIPs). The government is currently consulting on the state disability inclusion plan which provides guidance to departments around creating their own DAIP. The plan is a mechanism to build the capacity of society to be more accessible and inclusive of people with disabilities but there is also a need to increase the capacity of the individual to develop confidence and knowledge of their rights.
Many people we have spoken to have said that they have tried to make use of advocacy agencies, but they are fully booked and usually cannot help or can only help on a superficial basis. It may well be asked why advocacy is necessary when the NDIS and the Commission offer an array of personnel all tasked with assisting the individual to get what they need from the NDIS.
In practice, the participant often feels confused and disempowered before this system and needs “a friend who is on their side”.
Safeguarding Gap 13
State and local government agencies have not yet invested sufficiently in achieving the goals of the Disability Inclusion Act 2018.
Access and inclusion mean that the person with a disability better connects to others and is likely much less at risk of abuse or neglect. The Disability Inclusion Act is the State’s way of furthering the National Disability Strategy.
Safeguarding Gap 14
The State has not invested in individual advocacy to assist people with disabilities to navigate the service system and the community.Page last updated : 09 Oct 2020