What we can – and cannot - learn from the NDIS Commission’s first Annual Report

The first Annual Report of the NDIS Commission was released on Thursday. What can – and can’t – we learn from the Report? Is the Australian community getting value for money from the $30.4 million we pay for the Commission? (Incidentally, the Report discloses that the Commissioner, Graeme Head, gets an annual remuneration package of $585,000, so the community can rightly have high expectations of his role and his organisation.)

In reviewing the Report, let me acknowledge several things upfront.

• Many people with disability are dying preventable deaths, are seriously injured or experience abuse. 
• A national system of regulation is needed, and it is pleasing that the new national system overcomes many of the deficiencies in the previous State and Territory regimes.
• The Commission is very new, and its first year operated in only two States (NSW and South Australia) and it was busy building its systems and practice.

So back to my starting question: what can we learn from the Report? It many ways, the Report is the fluff one expects from Government agencies. The implied key messages are: we’re new and its early days; we’ve been very, very busy; everything is going swimmingly; the design of the quality and safeguarding system is just great; and, everyone deserves congratulations, especially our sponsoring Department, which designed the quality and safeguarding regime. The Report's profiles of the Commission’s executive members confirm that they are well-qualified for their roles as government regulators.

Some important stats

The Report contains two pages of useful infographics for the first year, covering NSW and SA. The first is base data on participants and providers:

The second is the more meaty one on restrictive practices, complaints, and reportable incidents.

? Commonwealth of Australia (National Disability Insurance Scheme Quality and Safeguards Commission) 2019.

Clearly, the reports of alleged abuse and neglect, of 1,925 allegations from just two states in one year, are alarming. Equally, the 353 deaths (from any cause), 641 known serious injuries, and 1,618 instances of the unauthorised use of restrictive practices are disturbing. 

If you go to the body of the Report, there is one further statistic of particular interest. Of the 1,422 complaints to the Commission, 47 per cent were handled within six weeks. Of course, this means that 53 per cent were not. (Compare that to the Commission’s own expectations of providers for timely resolution of complaints.)

What you can’t figure out from the Report

Of course, the figures on reported serious incidents are concerning, but they cover alleged incidents and the Report does not disclose how many of those alleged incidents have been validated following investigation.

The statistics on deaths do not reveal how many were from natural causes and how many might have been prevented.

The statistics on alleged abuse don’t tell us anything about who the alleged abuser was: a worker, family member, or another person with disability.

And, because of the Parliament’s design of the reporting scheme, there is no information on injuries to or even deaths of support workers, and the causes. If you don’t collect statistics on a phenomenon, then it is likely to be ignored.

If we are truly to improve quality and safeguarding, then we need to build learning by individuals, organisations and the sector. There is nothing you can learn from reading the Report about the nature of the serious injuries or preventable deaths, or lessons for preventing abuse. To be fair, the Commission does plan to build its analytical capacity. (And let's hope that the planning extends to a deep and extensive program of learning and development, and that Government does not continue to dump all the responsibilities on providers while still controlling the pricing mechanisms and its underlying assumptions.)

Further, you can’t get much of a sense of the Commission’s actions in relation to compliance. Yes, there is the statutory scheme and the Commission's policies on compliance and enforcement and infringement notices. On the Commission’s website there is a compliance register, but it gives no details of the actual infringements.

How is the Commission really going?

I wish to highlight three issues that go to the Commission’s ability to impact on quality and safeguarding.

• Demand exceeding capacity? The word on the street is that the Commission might be struggling to cope with demand given its resources. This might be the reason for its performance in relation to complaints. The Commission has recently come in for criticism in relation to its handling of one complaint about unexplained injuries. There are other areas where providers are telling me that the Commission is slow to respond.
• How big a problem is the unauthorised use of restrictive practices? Some 1,618 cases of unauthorised use of a restrictive practices are reported. Restrictive practices can involve unwarranted limitations on people with disability exercising their human rights. But they can also be essential – at least for a limited time – in keeping people safe. There are numerous reasons why restrictive practices have to be used when their use is not authorised. First, the NDIA might have forgotten to include funding for behaviour support planning (which is essential in the authorisation process) in the person’s NDIS plan. Second, there are major shortages of behaviour support practitioners in many (most?) locations, which means that practitioners often have long wait lists. Third, in order for the restrictive practices to be authorised, everything needs to be fall in synch: for example, guardians have to be available to give consent if the person cannot give their own. So the unauthorised use of restrictive practices can be a byproduct of system design, not necessarily because of poor practice by providers.
• According to the Commission's Report, the NDIA does not exist. Okay, I admit that’s an exaggeration: there are 21 references to the Agency or NDIA in the Report. All but one of those references is in an administrative context, such as transferring registration of providers from the NDIA to the Commission. The one exception is the one we are most interested in: the Commission's functions include “providing advice or recommendations to the NDIA or the NDIA Board in relation to the performance of the NDIA’s functions” that impact on quality and safeguarding. Given that the NDIA and individual NDIA officers make critical decisions that affect the safety of people with disability and the amount and quality of support provided, there needs to be at least some transparency about this interaction between the Commission and the Agency. The need for this transparency is strengthened by the fact that, while providers and their staff can be subject to very large civil penalties, there is no similar accountability for the NDIA or its staff.

In summary, there is little we can learn from the Commission’s Annual Report that we did not know already. Hopefully, the opportunity to learn from the Commission's work will improve across time. While the Commission is undoubtedly having a positive impact on quality and safeguarding, there is so much more that it, providers and the community need to do.