Introduction

Key messages

Participants have the same right as other members of the community to be safe, including when they use NDIS supports and services. We are looking at how the NDIS can better support participants to be safe. Many people have shared their thoughts, ideas and experiences of participant safeguarding with us and previous reviews and inquiries, including the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability.

This paper is focused on what we and other reviews have heard about how participant safeguarding can be improved, including outlining some ideas for change. It is our second step in considering quality and safeguards in the NDIS, following an issues paper on the NDIS Quality and Safeguarding Framework.

Overview

People with disability who participate in the NDIS (participants) have the same right as other members of the community to be safe, including when they use NDIS supports and services. Participants should also be supported and empowered to exercise choice and control, and to engage in the dignity of risk. For many people with disability, the NDIS has been leading to better, safer outcomes. However, for other people, the NDIS has not worked well enough to support them to be safe.

We will develop recommendations to better promote the safeguarding of participants. In doing so, we are considering submissions made to, and the findings from, previous reviews and inquiries that have looked at safeguarding – as well as monitoring relevant developments in active inquiries. This includes:

The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission) was established in April 2019. A range of issues relating to the safety of people with disability, including NDIS participants, have been identified through submissions and public hearings.
The Independent 'Robertson Review' into the circumstances relating to the death of Ms Ann-Marie Smith made recommendations to improve the safety of participants.
The Joint Standing Committee on the National Disability Insurance Scheme has conducted several relevant inquiries, including an inquiry into the NDIS Quality and Safeguards Commission in 2021. Submissions to this inquiry identified a number of issues related to the safeguarding of participants.
The NDIS Quality and Safeguards Commission's Own Motion Inquiry into Aspects of Supported Accommodation in the NDIS identified a range of safety issues.

Figure 1 gives examples of recent statements on safeguarding for people with disability:

Too compliance focused

Service systems focus their resources too narrowly on compliance and managerial approaches in responding to, instead of preventing, abuse…. It is essential to have preventative measures, to complement safeguards.

(Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, 2021)

Barriers to accessing safeguards

… individuals who experience, or are at risk of, violence, abuse, neglect and exploitation, face significant barriers to accessing and engaging with service systems designed to support them including those that take corrective action to address abuse and neglect. These barriers largely exist because these service systems often rely on individuals to seek out information, communicate and advocate for their needs, make informed decisions, and navigate within and across systems, to deliver services and supports effectively.

(Safety Targeted Action Plan, 2021)

People can be more and less vulnerable over time

… being vulnerable, or being at risk of harm or neglect, is not static: a person with a disability may become vulnerable or may be vulnerable at one point but cease to be vulnerable. It is also worth saying that being a person with a disability does not by any means make you vulnerable.

(Independent review into circumstances relating to the death of Ms Ann-Marie Smith, 2020)

Relationships are important

Seeking and sustaining 'right relationships' in communities and in services can centralise a high value on respecting the person and ensuring this is reflected in daily practice across services and bureaucracies. In the end, mentality (respect and high expectation) is more important than mechanisms.

(South Australian Minister's Disability Advisory Council, 2011)

Natural safeguards should be strengthened

A number of submitters emphasised the role of support networks and community inclusion to assist in ensuring people with disability are not subject to abuse or neglect… The committee recommends that the Australian Government specifically consider… in its review of the NDIS Quality and Safeguarding Framework how to improve access to and strengthen natural safeguards for all people with disability.

(Joint Standing Committee on the NDIS, 2021)

Planning is a key risk management tool

Effective planning is a key element of quality support in a person-centred system. Participants should be supported to identify and manage risk as they interact with the NDIS through access to the level of assistance they need to develop and implement their plans.

(NDIS Quality and Safeguarding Framework, 2016)

Figure 1: Examples from recent reports on safeguarding for people with disability^[1]

Purpose of this paper

We want to ensure that participants are safe, empowered and aware of their rights, and that all parts of the NDIS work effectively to promote this.

Many factors contribute to how participants experience safety, as shown in Figure 2.

Factors contributing to how participants experience quality, safe supports and services: Effective natural safeguards; Strong participant capacity; Robust, proportionate regulation, Accessible, inclusive communities; Quality service providers; Skilled stable workforce. — **Figure 2**: Examples of factors contributing to how participants experience safety

This paper focuses on the contribution of effective natural safeguards and strong participant capacity in how the NDIS can best promote the safety of participants, while supporting them to exercise choice and control and engage in the dignity of risk. This work will be complemented by other work across the review looking at these other factors.

This paper brings together what we have heard in our engagement to date, what has been said before in other reviews, and other observations we have made.

We have heard views on safeguarding arrangements for people with disability who are NDIS participants, as well as for people with disability in universal and mainstream services more broadly. This paper focuses on how the NDIS supports participants to be safe. We recognise these broader dimensions of safeguarding, and will also give consideration to interactions with safeguarding arrangements outside of the NDIS.

Our engagement to date, as well as other reviews and inquiries, suggest more needs to be done to support participants to be safe. This includes building capacity and natural safeguards to empower participants to recognise and manage potential risks to their safety wherever possible, and providing more intensive safeguarding support to participants who may face more significant risks of harm than others.

This paper also sets out draft proposals for change to better promote the safety of participants, drawing on what we have heard. It seeks ideas and feedback on these proposals to inform us in providing recommendations to governments.

A note on terminology

Having disability is not inherently risky, and we cannot assume the level of risk in a person's life simply by knowing that they have a disability. In many cases, risk arises due to the attitudes and behaviour of other people, and the failure of others to provide suitable supports and environments for people with disability to be safe.

We are conscious that terms such as 'risk', 'safety' and 'vulnerability' can have negative connotations for many people, and acknowledge that not everyone's experience is properly captured by these terms.

We choose to respectfully use these terms in this paper, recognising that a range of circumstances can create risks to the safety of people with disability. These risks have eventuated for some participants. We consider it important to have a conversation about how to support people with disability to make decisions about what risks are acceptable to them and how to manage those risks.

This paper is the second step in our conversations about quality and safeguards in the NDIS. The first step was a discussion on updating the NDIS Quality and Safeguarding Framework.

We will also look at other aspects of quality and safeguards, and provide opportunities for engagement on these areas. These include:

Regulatory approach: We will consider opportunities to ensure the regulation of providers, workers and intermediaries is effective, proportionate and risk-responsive. This will include considering the regulatory approach of the NDIS Quality and Safeguards Commission (NDIS Commission) and other Australian Government and, state and territory agencies that play roles in regulating for, or otherwise upholding, quality and safety in NDIS supports and services, as well as interactions with safeguarding arrangements for supports and services outside of the NDIS (mainstream and universal supports).
Restrictive practices: We will consider issues in relation to restrictive practices and Positive Behaviour Support, including opportunities to make meaningful progress on reducing and eliminating the use of restrictive practices.