Preventing the Sexual Abuse of Adults with a Disability

Vince Scopelliti - Wednesday, September 12, 2018

Sexual abuse of people with a disability is a crime that unfortunately is often misunderstood, undetected and ultimately overlooked by organisations. Individuals with a disability are often uniquely vulnerable to sexual and other forms of abuse and deserve both strong protection and swift action in relation to any such allegations. 

Organisations responsible for the care of people with a disability are entrusted with the tasks of fully understanding the signs of sexual abuse, dealing with disclosures, and putting in place robust procedures for prevention and action.

the issue of consent

For organisations or individuals who care for a person with a disability, it can at times be difficult to ascertain the presence or absence of consent to sexual activity, particularly where the person accused is a spouse, partner or other close companion.

Part of this uncertainty is tied to society's historical myth that people with a disability are inherently non-sexual. Yet at the other end of the spectrum is the very real potential for sexual exploitation and abuse of people with a disability. Navigating the difficult issue of consent to sexual activity in these contexts requires a nuanced approach to each individual allegation. 

The above-mentioned nuanced approach only applies to adults with a disability. When children with a disability are concerned, the standard rule applies that children under the age of consent are unable to consent.

signs of abuse

In some cases, the individual with a disability will be able to quickly and clearly articulate their complaint of sexual abuse in care. 

However, just as each person with a disability is unique, so are the types and complexities of presenting issues. This can create challenges for those seeking to prevent and/or investigate sexual abuse allegations. For example, verbal or intellectual capacity issues can reduce the ability of carers and others to absorb the gravity of a situation. 

There are some key signs however that a person with a disability might be the victim of sexual abuse. Sudden changes in behaviour, temperament or activities can often raise the alarm. This could involve exhibiting fear towards an individual, acting out sexually or becoming uncharacteristically aggressive. 

Physical signs can include restraint marks, facial bruising or blood in the genital area. There are many more signs - some quite subtle - that a person with a disability has been subjected to sexual abuse. 

It is crucial that all staff and family members are aware of these and are prepared to take swift and appropriate action to further the matter. Further, investigators require utmost sensitivity and diligence during any investigation. 

Disclosure of abuse

Unfortunately, it is both the subtle, insidious and complex nature of sexual abuse of people with a disability that can prevent or delay the disclosure of the crime in question. The person with the disability may be hampered in their attempts to disclose - either by the nature of their disability or a lack of concern shown by those around them. Staff caring for the individual must therefore be trained and supported in the key steps needed to swiftly and effectively report any suspicions of sexual abuse against vulnerable individuals.

The organisations role

Organisations that are entrusted with the care of persons with a disability have a number of distinct obligations when it comes to the prevention and reporting of sexual abuse. At the heart of these requirements lies an ethic of care that embraces the right of all individuals to live free from harm. 

This inherently includes provision of care services that respect, protect and enhance the lifestyles of people with a disability. Moving outwards from this are legislative and policy requirements for management and professionals working in the care environment, as well as health and safety constraints that protect the welfare of all involved in disability care contexts. 

Yet perhaps the most important role for organisations is the development of robust policies and procedures designed to prevent, detect and act upon complaints of sexual abuse. Training all staff, family, clients and relevant community members in the content and application of these resources is essential to the welfare of those in care environments.  

If concerns have been raised in your organisation and you would like to conduct an investigation into the allegations, contact WISE today. Alternatively if your organisation requires a safe, secure environment to report concerns or complaints, WISE has a Confidential Whistleblower Hotline (Grapevine), enabling insightful management of complaints and the ability to bring about real cultural change and reduce risk. 

How Medical Evidence Supports an Unbiased Investigation

Vince Scopelliti - Wednesday, November 01, 2017

When claims of abuse in care come to light, strong emotions can arise for all concerned. It is not surprising that when an unexplained injury is uncovered, family members, care staff, and employers will want immediate answers. 

However, it is vital that employers maintain clear thinking and remain objective when investigating allegations of abuse in care. 

Engaging an external workplace investigator can be helpful in maintaining neutrality, and conducting a detailed, unbiased investigation. Medical evidence is also highly relevant in these situations as it is collected in a scientific manner, without bias towards a particular party.

zero bias when investigating assaults 

In emotionally charged situations, family and friends may understandably demand immediate answers about the cause of a loved one's unexplained injury. When abuse appears to have occurred against a vulnerable individual, it is a disturbing thought for all involved. 

Workplace investigators understand that despite - or perhaps because of - such high emotions, the investigation must be coordinated and managed with an extremely steady hand. 

An experienced investigator will be acutely aware of the rules of evidence and how important the accurate collection and management of the evidence will become, should the matter be taken on review. Accordingly, from the very start of an investigation, it is understood that all information, statements, workplace documents, interviews and clinical data is to be gathered with a view to fairness, objectivity and clarity.

assessing medical evidence

Family members of the vulnerable person affected by the unexplained injury may not be aware of the detail of the circumstances of the injury. 

Factors such as the site of an unexplained injury, medical history and medications, client age, frailty and demographics, unique aspects of accommodation and access, care routines, staffing variables and medical documentation - to name a few - will all form part of the complex medical evidence matrix when evidence is being assessed. 

Delays in getting the victim medically examined or a delay in reporting incidents can often mean that the medical expert may need to rely on descriptions provided by witnesses or photographs taken of the injury. This will significantly diminish the quality of the medical evidence. Poor quality photographs and descriptions will make it even more difficult to obtain any reliable medical evidence. 

The standard of proof in investigations such as these is on the balance of probabilities. The case of Briginshaw v Briginshaw (1938) 60 CLR 336 is generally regarded as authority for the idea that on the balance of probabilities, if a finding is likely to produce grave consequences, the evidence should be of high probative value.

In cases of alleged assaults in care, professional investigators will ensure that all evidence - medical and general - is collected and reported on with utmost care. This approach ensures that irrelevant factors are not given weight. 

When the medical evidence is combined with overall procedural fairness across the investigation, the resulting investigative report into an alleged assault will be of high quality and robust in terms of the weighing of the evidence and findings.

    why an impartial investigation is important

    When investigating abuse in care, the standard of evidence obtained is a crucial factor. By including sound medical evidence, the investigator brings an unbiased and highly detailed viewpoint to the allegations of assault. This expertise can mean the difference between a fair and objective investigative report and one that is tinged by the emotionally charged nature of the situation. 

    Should the matter be taken on review, the court will apply the 'reasonable person test' to the facts and evidence available. If the investigation is not fair, clear and comprehensive, then the court may find the resulting report does not meet this standard. 

    If your organisation requires a workplace investigation into an unexplained injury, our team can assist with either full or supported investigation services. WISE are highly experienced in the complexities of investigating unexplained injuries in care settings, including the assessment of medical evidence.

    Grooming, or an Error in Judgment?

    Vince Scopelliti - Wednesday, October 18, 2017

    No employer likes to think that one of their staff members might deal inappropriately with a client, or even could possibly commit a criminal act. But all employers need to be aware of the potential for professional boundaries to be crossed in these ways. This is particularly important for organisations that work directly with vulnerable members of society, including children, the elderly, and the disabled 

    We take a look at when certain behaviours might be deemed to be significant errors of judgment, or in the worst-case scenario, grooming.

    The definitions 

    In NSW, the Child Protection (Working with Children) Act 2012 sets out the requirements for people who work with children. It defines misconduct involving children to include the action of 'grooming'. 

    Similarly, Section 25A (1) of the Ombudsman Act 1974 (NSW) considers 'reportable conduct' to include: 

    • Any sexual offence or misconduct committed against, with or in the presence of a child, including child pornography. Grooming, sexually explicit comments and other overtly sexual behaviour, as well as crossing professional boundaries are included in the definition of sexual misconduct. 
    • Any assault, ill-treatment or neglect of a child.
    • Any behaviour, which causes psychological harm to a child, even if the child agreed to that behaviour. 

    In NSW, the offence of grooming is set out in Section 66EB of the Crimes Act 1900. It is defined as behaviour by an adult who exposes a child to indecent material or provides a child with an intoxicating substance with the intention of making it easier to procure the child for unlawful sexual activity. 

    A child is defined as being under the age of 16, however the maximum penalty for the offence of grooming is higher (up to 12 years), if the child is under 14. This is very similar to the definition contained in the Commonwealth Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010

    By contrast, in Victoria the Crimes Amendment (Grooming) Act 2014 defines grooming as 'predatory conduct' engaged in to prepare a child for participation in sexual activity at a later time. What is relevant in Victoria is the intention in the interaction. 

    For example, even if nothing sexual is ever explicitly discussed or implied, shown or raised, the conduct can still be considered 'grooming' if the person befriends a child or their parent with the intended, hidden purpose of later pursuing sexual activity. 

    grooming children - examples of common behaviours

    Specific instances of grooming are likely to differ depending on the circumstances, but examples could include:

    • Creating a belief in a child or group of children that they are in a special relationship with the 'groomer', whether by participating in particularly adult conversation or providing 'special' gifts or activities. 
    • Permitting testing of boundaries, such as engaging in adult or inappropriate behaviours, including jokes, sexual displays or nudity in front of a child. 
    • Establishing an inappropriate relationship outside of work, including inappropriate or excessive text, email or social media contact, or developing unnecessary and close friendships with family members. 
    • Targeting children who are particularly vulnerable due to disability, history of trauma or previous emotional, physical or sexual abuse.  

    a case in point

    A recent decision of the Victorian County Court highlights some of the difficulties in determining whether behaviour constitutes grooming, or simply a person creating a bond because they want to help out a vulnerable child. 

    In this case, reported by The Age, a troubled student was mentored by a teacher in his mid-20's There was never any sexual contact between them, but the teacher provided numerous gifts and engaged in regular excursions with the pre-teen boy, eventually turning into 'sleepovers'.

    The accounts of the boy suggest that the sleepovers included physical contact and sexual discussion, which was completely denied by the teacher. Although the teacher was ultimately acquitted of charges, his life and livelihood were destroyed.  

    gROOMING THE ELDERLY - FINANCIAL ABUSE

    Another, less well-known example of grooming involves a specific type of behaviour, by carers or medical staff, towards elderly patients. These actions are designed to foster unnaturally close relationships between the caregiver and the client, with the intention of obtaining financial gain. This could occur through:

    • Traditional theft, such as taking money or items from a client's room.
    • Misusing financial information, such as PIN numbers or cheque books, to take out unauthorised funds. 
    • In extreme cases, procuring powers of attorney, or ensuring inclusion into wills in order to obtain a significant portion or the entirety of a financial estate. 

    THE DIFFERENCE BETWEEN GROOMING AND AN ERROR IN JUDGMENT

    A finding that behaviour constitutes grooming, as opposed to a simple error of judgment, is likely to depend on the intention and the degree of the wrongdoing. Circumstances, which could contribute towards a finding of grooming include:

    • Whether an action is a 'once off' or a repeated pattern. For example, one ill-considered movie outing between a teacher and a student, or a series of meetings outside school hours. 
    • Whether there is any ulterior motive, particularly a sexual one, or if a decision was simply made rashly.
    • Whether the person in a position of authority intentionally pursued or sought out a relationship with the vulnerable person. 
    • Whether there may be a reasonable alternative explanation for the behaviour.
    • Whether there was a request/coercion for the vulnerable person to keep any aspect of the relationship secret.
    • Whether there was repeated conduct despite previous warnings from supervisors/managers. 

    why codes of conduct are important

    If your organisation works with vulnerable persons such as children, specific Codes of Conduct, which set out the professional boundaries expected between staff and clients, and the consequences for any breach of these, can be very useful. 

    If you require assistance drafting a Code of Conduct, which meets all of your organisation's needs, or have received a complaint that professional boundaries may have been crossed in your workplace and need to undertake a workplace investigation, contact WISE Workplace. We offer full or supported investigation services and can also assist with investigation training, awareness training.

    Codes of Conduct and Different Professions

    Vince Scopelliti - Wednesday, October 04, 2017

    A Code of Conduct sets out the 'golden rules' or guidelines in which employers and industry bodies codify acceptable standards of behaviour in the workplace. 

    Individual businesses can develop their own Codes of Conduct applicable to their specific interests. Many professional bodies also implement standardised Codes of Conduct covering behaviour which is perceived as being a particular risk within that type of industry. 

    Why is a code of conduct important?   

    A Code of Conduct provides employees with clear parameters for what is appropriate and inappropriate at work. 

    The precise content of a Code of Conduct depends on the nature of the industry or business to which it applies. For example, the legal industry imposes strict requirements on confidentiality and integrity, which may be unnecessary in other industries. 

    One important aspect of a Code of Conduct is ensuring specific guidelines are in place regarding professional distance and potential conflicts of interest that may arise, whether actual or perceived. 

    Acceptable behaviour under these guidelines is likely to differ significantly depending on what is appropriate within a certain profession. For example, while a general practitioner or a physical therapist needs to have physical contact with their clients and patients in order to perform their duties, there is a completely different expectation on teachers, where specific types of physical contact can be inappropriate, in breach of the Code of Conduct or can even constitute reportable conduct. 

    The Code of Conduct should also address complaints handling and the specific disciplinary response for conflicts of interest and other breaches of the Code.

    dealing with vulnerable persons and a 'special class' of clients

    In addition to avoiding the more obviously inappropriate behaviours such as perceived sexual or excessive physical contact, professional Codes of Conduct have regard to the type of clients or customers their adherents are likely to encounter. 

    In the spheres of nursing, teaching, social work and psychology, practitioners will almost inevitably deal with vulnerable people. Indeed, the nature of the work and the clients' vulnerabilities may mean that they form inappropriate attachments or relationships with professional staff. Guidelines for dealing with these types of situations, including appropriate reporting requirements and the potential for independent observers to be used, are necessary parts of the Code of Conduct for these professions. 

    In a similar vein, aged care, legal or financial service providers must ensure that there cannot be any misconception of inappropriate behaviour constituting potential financial abuse or conflict of interest, such as putting undue and improper pressure on a client to make a financial bequest or confer a financial advantage.

    Abuse of power

    Explicit Codes of Conduct governing conflicts of interest and biased behaviour are vital in professions that are open to abuse of power. For example, there is considerable potential for corruption, fraud and conflicts of interest to arise in the case of staff employed in Local Government or in procurement, public servants and police officers. 

    a case in point

    David Luke Cottrell and NSW Police [2017] NSWIRComm1030 is a recent example of a breach of a Code of Conduct by a police officer, which ultimately resulted in his dismissal. Constable Cottrell was dismissed from his position after he received payments for tipping off a local tow truck driver about the location of motor vehicle accidents. In essence, Constable Cottrell was passing on confidential information and in doing so, directly created a conflict of interest for himself, and also provided an unfair commercial advantage to the tow truck operator. 

    Given that by the very nature of their work, police officers ought to be paragons of moral behaviour, this arrangement clearly breached appropriate professional ethics. This was notwithstanding the police officer's argument in response to his dismissal that he was trying to be 'effective' by clearing accident sites and did not realise that the leaked information was controversial. 

    Ultimately, it was held that he had breached the appropriate Code of Conduct by failing to meet the expected high standards of behaviour of a police officer, and did not appreciate the gravity of his misconduct, failed to protect the confidentiality of information and did not carry out his duties impartially.

    Determining whether a breach has occurred

    Conflicts of interest and inappropriate behaviour can occur inadvertently, and are not always a result of intentional wrongdoing. For this reason, it's important that Codes of Conduct are effectively communicated to staff, and that the penalties for breaches of the code are clearly defined. 

    If you suspect that one of your employees may have breached an applicable Code of Conduct, it will become necessary for you to conduct a workplace investigation. WISE Workplace can provide full or supported investigation services to assist you in determining whether any breaches have occurred. 

    To find out more about professional distance and conflicts of interest, check out our series on this topic. 

    Professional Distance and Conflict of Interest at Work

    Vince Scopelliti - Wednesday, September 20, 2017

    During the seventies and eighties, organisations started to realise that the improper use of power and authority and undeclared and/or ineffectively managed conflicts of interest, posed a significant risk to their integrity and public trust. 

    The requirement for ethical business dealings focuses the spotlight on conflicts of interests and the factors involved in creating the perception of conflicts of interest in the workplace. 

    It can be difficult to maintain a suitable professional distance with colleagues, subordinates and suppliers, particularly if a significant friendships have been formed outside the workplace. There is an increased risk when managers, employees and co-workers communicate on social media. Employers must also be vigilant about the risks of inappropriate levels of professional distance with clients or colleagues, especially in circumstances where such behaviour may lead to, or can be perceived as, grooming of vulnerable persons. 

    When it comes to conflicts of interest, it is best to completely avoid any behaviour, which may result in the creation of a real or perceived conflict of interest. For this reason, many professions address this specifically in their Codes of Conduct or may draft specific conflict of interest policies, which set out expected and appropriate standards of behaviour. 

    In our planned six-part series we'll unpack the key elements of professional distance and conflict of interest, from maintaining professional boundaries to determining the difference between a lapse of judgement and grooming. 

    breaching professional boundaries   

    According to Dr. Anna Corbo Crehan, from the Centre for Applied Philosophy and Public Ethics at the University of Melbourne, questions of professional distance occur when two or more people involved in a professional relationship also have an additional relationship, such as one based on love, attraction, friendship or family. "So then, professional distance is the space a professional must keep between their professional relationship with another, and any other relationship they have with that person. By keeping this space, a professional can fulfil their professional and personal obligations, and be seen to do so, in a way that is impartial and/or non-exploitative in regard to the other in the relationship", she says. 

    Breaching professional boundaries can also refer to the failure to manage conflicts of interest. A particularly close relationship between co-workers, especially those involving persons in a position of authority, may create the perception (whether real or imagined) of inappropriate work-related benefits or advantages being bestowed on a close associate because of the friendship. 

    The most common types of conflict of interest are financial, such as where a monetary advantage is bestowed or a financial saving made, and personal, where a clear benefit is provided to the recipient such as a promotion or an opportunity for advancement or training and development. 

    The best way to avoid perceived conflicts of interest is by maintaining clear professional boundaries, especially by those in a position of power, such as employers, supervisors, managers, or instructors. In extreme circumstances it may be prudent to completely avoid forming any relationships with colleagues outside of work.

    codes of conduct and different professions 

    Many professions abide by specific Codes of Conduct, which set out and govern acceptable standards of behaviour in their specific industry and provide comprehensive guidelines as to what is considered appropriately maintained levels of professional distance in that industry. 

    For example, an inappropriate level of closeness may mean one thing in the context of a school teacher, and another thing in the context of a physical therapist. Professions such as nursing, teaching and social work need to have an additional emphasis on protecting vulnerable persons (such as children, the elderly, the disabled, of the mentally ill) from unscrupulous persons of the effects of inappropriately close relationships. 

    In other professions, such as aged care or legal services, it is vital that professional distance is maintained to avoid any perception (whether actual or imagined) of financial abuse and conflicts of interest, when a client confers excessive financial benefits on the service provider. 

    One recent example of a breach of an industry specific Code of Conduct involved a police officer who sold confidential information and provided accident locations to a tow truck driver, who gained a financial advantage from arriving on the scene ahead of competitors. 

    On many occasions, a failure to maintain an appropriate professional distance occurs inadvertently or without any intentional wrongdoing. While it is beneficial for colleagues to develop good relationships with their co-workers, it is important for all employees to be able to maintain a perception of professional distance so that it does not appear as though they are incapable of making impartial business related decisions. 

    professional distance and social media 

    In the modern workplace, social media has become a virtually omnipresent phenomenon. With the advent of many different types of social media platforms, including LinkedIn and Facebook, there are many opportunities for workers to remain connected. 

    Most employers recognise that social media is a platform that is both complimentary to, and additional to, other methods of communication and engagement used by them. Most employers also understand the beneficial networking functions of social media, particularly in the case of LinkedIn, however there is a far greater risk of boundaries being crossed or lines being blurred when communicating through social media. 

    There can be particular difficulties in utilising social media when dealing with vulnerable people such as students, the disabled or persons with mental health issues. As a general rule, it is inappropriate for work colleagues or employers to share overly personal information or material on social media. Most workplaces have a clearly set-out social media policy. It is important that employees are made aware of its contents and application and are encouraged to use social media in a responsible, reasonable and ethical manner, in accordance with the employer's Code of Conduct. 

    Broadly, if content is critical of a colleague, affects his/her reputation, is personal, hurtful, potentially embarrassing to a co-worker, or otherwise inappropriate, it could easily breach the requirements of professional distance.   

    determining grooming, or an error of judgement. 

    An important aspect of maintaining professional distance involves taking steps to avoid situations where it could be perceived that 'grooming' is taking place. This is essential not just in the context of children, but other people who are deemed to be vulnerable, including the elderly, those with disabilities, or those involved in situations where there is a power imbalance. 

    The act of grooming is a criminal offence in many Australian states. It is a term which generally refers to deliberate and sustained contact with a vulnerable person in order to obtain their trust and prepare them to participate in the groomer's intended purpose, which may be sexually, financially or otherwise motivated. 

    As a responsible employer, if somebody reports concerns about potential grooming, or you observe the possibility of such behaviour occurring, it is important that a workplace investigation is conducted to determine whether the contact is in fact grooming, or merely represents a lapse in judgement.

    Dealing with a breach of boundaries 

    The best litmus test when assessing appropriate levels of professional distance between managers and employees, between co-workers or between employees and clients, is whether there could, in the view of a reasonable person, be a perception of inappropriate behaviour, conflict of interest, favouritism, nepotism, or even grooming. 

    If there is any possibility that such assumptions could be made, then it is likely that professional boundaries are being crossed. 

    If you have doubts regarding a potential conflict of interest or breach of professional distance, then it is best to get an impartial third party to investigate. Our services include full and supported workplace investigations and training. Contact WISE Workplace today to find out how we can best be of assistance.

    Complaints Management Under the NDIS

    Vince Scopelliti - Wednesday, August 09, 2017

    The National Disability Insurance Scheme (NDIS) was introduced in mid-2013 to facilitate a support system for disabled Australians. In many ways, this has begun to streamline and simplify the process whereby many thousands of Australians under the age of 65, who have sustained a permanent and residual disability, are able to access healthcare services. But what happens when the system goes wrong and complaints need to be made about behaviour occurring within the purview of the scheme?  

    REGULATORY FUNCTIONS OF THE NDIS

    Broadly, the NDIS is governed by the National Disability Insurance Scheme Act 2013 (Cth). It is administered by the National Disability Insurance Agency (NDIA), which holds all funds in a single pool, manages funds, administers access and approves the payment of support packages. The NDIA Board, which is advised by the National Disability Insurance Scheme Independent Advisor Council, ensures the strategic direction and general performance of the NDIA. 

    The NDIS Quality and Safeguarding Framework has been set up to ensure a nationally uniform approach as to how participants of the scheme will be assisted and supported. 

    The NDIS Complaints Commissioner, the NDIS Registrar and the Senior Practitioner hold important roles in the complaints process under the NDIS.

    Providers who wish to operate within the NDIS must:

    • Comply with all state and federal laws
    • Participate with the NDIS Code of Conduct
    • Engage in the NDIS Resolution Process

    mandatory reporting regime

    In NSW, the Disability Inclusion Act 2014 requires mandatory reporting for serious incidents of abuse or neglect of the disabled in the supported group accommodation setting. If this is suspected, an investigation must take place. 

    Any such serious incidents must be reported to the NSW Ombudsman within 30 days of the incident occurring. 

    In Victoria, The Department of Health and Human Services has developed a new Client Incident Management System (CIMS) to improve the safety and wellbeing of clients. In addition, they have recently established a Reportable Conduct Scheme (RCS) under the Child Wellbeing and Safety Act 2005 to improve on how organisations prevent and respond to allegations of abuse. This came into effect on 1 July 2017. 

    According to the NDIS Quality and Safeguarding Framework (released 9 December 2016), once the NDIS has been rolled out and takes effect, registered providers must notify all 'serious incidents' to the NDIS Complaints Commissioner.

    These include: 

    • Fraud-related incidents
    • Alleged physical or sexual assault by an employee against a resident or scheme participant, or by one participant against another while both are in the care of a provider
    • Obvious neglect
    • Serious unexplained injury
    • The death of a scheme participant (This must be notified regardless of how the participant died)
    • Unauthorised use of restrictive practices

    It is particularly important for employers to monitor staff to ensure that they are compliant with their obligations under the NDIS, and other legal frameworks.

    How the ndis complaints procedure works

    Generally speaking, any complaints regarding providers of NDIS-funded support systems go directly to the Commissioner, who triages cases and makes an assessment of who should deal further with the complaint. 

    The Commissioner will also:

    • Investigate serious incident reports
    • Review breaches of the NDIS Code of Conduct

    In order to undertake this role, the Commissioner has commensurate powers of investigation and information-sharing with appropriate industry bodies. 

    In the event that the Commissioner does not wish to hear a matter, the NDIS Registrar is empowered to hear matters related to non-compliance of requisite standards by providers under the NDIS. 

    Finally, the Senior Practitioner is entitled to hear matters relating to:  

    • Inappropriate or unauthorised use of a restrictive practice
    • Unmet disability support needs. 
    The Commissioner is also entitled to refer matters to such external agencies as considered necessary, including the police, the Australian Health Practitioners Regulatory Agency (AHPRA) or other relevant regulatory bodies. 

    Individual participants of the NDIS who are self-managed can make complaints about providers directly to the Commissioner. This complaint mechanism can be utilised even if the provider is not directly registered with the NDIS. Further, complaints may be made to other industry bodies, such as AHPRA or industry-specific organisations. 

    The ability to make a complaint is also not limited to recipients of services under the NDIS - any person can make a complaint about an action taken by a NDIS provider. 

    A separate complaint process is required if a scheme participant is concerned about decisions made by the NDIA (as opposed to inappropriate behaviour being engaged in by a service provider). 

    WHAT ARE PROVIDERS REQUIRED TO DO?

    It is a requirement for NDIS providers to have in place an effective internal complaints management scheme, and they must commit to maintaining a detailed schedule of complaints received and responses proffered, specifically in order to assist the Commissioner if necessary. 

    Employees who report inappropriate behaviour or otherwise raise concerns about their workplace to the Commissioner are entitled to whistleblower protections as enshrined in the relevant legislation.

    WHAT HAPPENS IF A PROVIDER ISN'T COMPLIANT? 

    In the event that employers or providers of NDIS-related services are not complying with the applicable Code of Conduct, the Commissioner, or the Registrar can step in to review the provider's adequacy. 

    In addition to assessing providers against adherence to the Code of Conduct, the Commissioner will consider whether providers have duly complied with mandatory reporting requirements, or have otherwise had complaints made against them. 

    If either the Registrar or the Commissioner determines that a breach has occurred, the provider may be required to undergo additional education and training, operate subject to various conditions, or in the worst circumstances, be excluded from participation in the NDIS. 

    It is essential for providers of services under the NDIS to have a strong complaints management focus in order to ensure ongoing compliance with the requirements of the NDIS and NDIA. If your organisation has received a complaint of disability abuse or other concerns relating to your management and implementation of the NDIS, and you require assistance with a workplace investigation, contact us