Safeguarding that is empowering and tailored to individuals, their service needs and environments

Role clarity and coordination in the safeguarding system is poor

The National Disability Insurance Agency (NDIA) and the NDIS Quality and Safeguards Commission (NDIS Commission) both have responsibilities to participants, including helping them take appropriate risks and supporting them with effective safeguards. Both agencies have developed a range of strategies, policies and approaches to support participants and meet Australia’s international obligations. Among these are the NDIA's recent Participant Safeguarding and Supported Decision-Making Policies, and a joint approach to identifying and supporting participants at risk.²²⁸

Nevertheless, poor coordination has resulted in both overlapping initiatives and gaps. Each agency has tended to focus on what it can do, instead of considering how the system as a whole can better support participants. As a result, it is not always clear what options participants have to seek support, and who is best placed to provide that support.

The development of the 2016 NDIS Quality and Safeguarding Framework (the Framework) was intended to provide an overarching strategy and clear roles for safeguarding across the NDIS.²³⁰ It envisioned that government agencies, providers, workers and natural supports (such as families, carers and communities) would provide a range of safeguards.

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”.²³¹ Safeguards can be formal (rules and actions taken by organisations with formal responsibility for the safety of people with disability) and natural (features of people’s day to day lives, like support from friends and family). The Framework envisioned three categories of safeguards:

• Developmental safeguards: Measures that strengthen the capability of people with disability, their families and supporters, workers and providers to reduce the risk of harm and promote quality (for example, education, training and information).
• Preventative safeguards: Measures that proactively regulate providers and workers to reduce the risk of harm and promote quality (for example, provider registration and worker screening).
• Corrective safeguards: Measures that resolve problems, enable improvements to be identified and avoid the same problems recurring (for example, complaints processes and compliance actions).

However, the Framework has not successfully promoted coordination amongst the multiple agencies and governments involved in the NDIS and their respective policies and initiatives, as well as the wider ecosystem of safeguarding initiatives. We have heard participants continue to struggle to identify the best service or agency to help them with the risks they face.²³² The Framework also focuses on quality and safeguarding for NDIS supports without addressing the broader disability support ecosystem. It was also developed to cover the period of transition to the full NDIS and so is out of date.

Current approaches to safeguarding do not effectively engage with participants to understand and address the risks they face

Risk and safety look different for everyone, and safeguarding must be tailored to the individual to be most effective. We have found that NDIS agencies do not always do enough to recognise the different ways people experience and engage with risks or effectively engage with participants about their experiences and needs. Further, sometimes participants may experience risks that are not well recognised by NDIS agencies as a risk to their safety, like the sudden absence of suitable services for participants to use to meet their day to day needs.

The NDIS has a range of mechanisms in place to monitor and respond to the safeguarding needs of participants. These mechanisms include the NDIA’s participant risk assessment, NDIA check-in calls with participants; the NDIS Commission’s complaints and investigation processes; information sharing between agencies, including state and territory agencies involved in safeguarding; and protocols developed in response to the Robertson Review into the circumstances relating to the death of Ms Ann-Marie Smith.²³³

These mechanisms are typically reactive, relying on participants and supporters raising issues. We have also heard participants are often unaware of risk assessment processes or have found the risk assessment and check-in calls confronting.²³⁴

Options to support and build capacity for participants to manage risk are limited

A range of safeguards are available to participants in their own communities as well as through the NDIS Commission and other government agencies. However, they often do not address the specific problems or risks participants may face when accessing supports, and do not do enough to build their capacity and natural safeguards to manage risks. For example, previous reports describing these issues have highlighted the complexity of existing safeguards and the need for more support for participants to build connections in their community. ²³⁶

Given the majority of adult participants in the NDIS have a cognitive disability, many would benefit from support for decision-making. In addition, 50 per cent of participants are children and may require additional support, especially as they move through the adolescent years towards adulthood.²³⁷

To meet these needs, the NDIS must offer a range of capacity building safeguards to support participants to make decisions and manage risks. The Framework envisioned a mix of developmental, preventative and corrective safeguards. However, in the rush to roll out the NDIS, the focus has almost exclusively been on regulatory arrangements - and there has been insufficient attention given to developmental supports such as capacity building and support to strengthen natural safeguards. As a result, these supports have been slow to emerge.²³⁸

States and territories have an important role to play in safeguarding, but their services are inconsistent and their role in the NDIS is unclear

The NDIS is not the only context in which people with disability may experience risk, or the only opportunity to support people in managing risk. Existing state and territory programs can help people experiencing higher risks get the support they need but are not nationally consistent or well-integrated with the NDIS.

Community Visitor Schemes (CVS) offer proactive, outreach-based safeguarding focused on supporting the wellbeing and upholding the rights of people with disability. However, inconsistent arrangements across the country cause confusion and gaps in support for participants, with only six states and territories delivering CVS that provide outreach to people with disability.²⁴⁰ The legislation for some CVS has not been updated to allow visits to sites in which disability supports are now more commonly delivered, such as home and community settings.²⁴¹ It is also sometimes unclear what distinct role CVS play relative to the role of the NDIS Commission.²⁴² There have also been reports of difficulties for CVS in collaborating with the NDIS Commission and identifying all of the participants whom they should be visiting, because of incomplete information sharing. This has limited their ability to effectively identify and respond to issues for participants.²⁴³

Adult Safeguarding Agencies (ASAs), as recommended by the Australian Law Reform Commission, are an emerging service offering that can deliver holistic, person-centred support for safety across programs and service systems (comparable to existing child protection systems).²⁴⁴ States and territories are at various stages in developing ASAs, with New South Wales and South Australia the furthest progressed towards implementing them.²⁴⁵ However, even in these jurisdictions, their roles, responsibilities and authority in the context of the NDIS remain unclear.