National Disability Insurance Scheme Amendment (Improving Supports for At Risk Participants) Bill 2021

19 October 2021

The National Disability Insurance Scheme Amendment (Improving Supports for At Risk Participants) Bill 2021 has its origins in the tragic and preventable death of Ann-Marie Smith, who died of neglect on 6 April last year. The wilful neglect, suffering and appalling death of this South Australian shocked all of us. Ann-Marie, a NDIS participant, was neglected by those paid to care for her, in ways that are totally unimaginable. It's hard to comprehend that cruelty so vile could be inflicted on someone so vulnerable. Ann-Marie was a person deserving of respect, yet she was mistreated in such a callous way. She spent the last year of her life in an almost sedentary state, living in putrid conditions in a cane chair, totally wasting away. She died of severe septic shock, multiple organ failure and issues connected with her cerebral palsy. Many of her cherished personal belongings went missing. Large loans were taken out in her name, and her car racked up over $2,000 worth of traffic fines, even though she couldn't drive. There was no aspect of her life that wasn't used or abused.

The person who was meant to provide care for Ms Smith was responsible for her death and finally pleaded guilty to manslaughter. The maximum penalty for manslaughter in South Australia is life imprisonment, and nothing less than the maximum sentence would be appropriate in these circumstances. Earlier this year, Ann-Marie's NDIS provider, Integrity Care SA, was banned from operating and had its registration revoked because of a number of contraventions of the NDIS Act. That prevented the organisation from providing services through the NDIS. Recently, one of the three directors of Integrity Care SA, Ms Amy-June Collins, was banned for life from working in the disability services industry. All three directors remain under investigation by the South Australia Police major crimes detectives. All of them completely failed in their responsibility to provide oversight and proper care for Ann-Marie.

The NDIS was only made aware of Ms Smith's appalling death on 20 April, a fortnight after she died, which was a breach of the act by the provider. For that breach, Integrity Care SA was only fined a paltry $12,600. So much of the system failed Ms Smith. Following her death, the NDIS Quality and Safeguards Commission appointed former Federal Court judge Alan Robertson to conduct an independent review of the safeguard failures which contributed to Ann-Marie's death. This was after the South Australian government launched its own review into safeguarding gaps in the system, and pressure was exerted on the former minister, who had preferred an internal review. The Robertson review was completed on 31 August last year, some 14 months ago. It made 10 recommendations, of which the government now seeks to legislate just five.

It has been over 18 months since Ann-Marie passed away and it has taken too long to legislate to prevent further deaths. The recommendations in this legislation are an acknowledgement that the current oversight of at-risk NDIS participants is failing them. However, two key recommendations remain unlegislated and require urgent action by government. These are recommendation (3), which is that 'for each vulnerable NDIS participant, there should be a specific person with overall responsibility for that participant's safety and wellbeing'; and recommendation (4), which is that consideration should be given to the NDIS Quality and Safeguards Commission 'establishing its own equivalent to state- and territory-based community visitor schemes to provide for individual face-to-face contact with vulnerable NDIS participants'. Now, these are vital recommendations that need to be implemented.

In a letter tabled by Minister Reynolds in response to questions I asked in question time on these recommendations, she stated: 'These involve complex Commonwealth state policy issues, are being considered through the review of the NDIS Quality and Safeguarding Framework due to commence by the end of the year.' It is astounding that consideration of these recommendations will not occur until the end of the year—and action on them could still take years.

A critical issue in Ms Smith's case was that she was isolated except for her so-called carer and that she became invisible to everybody but one person, who wilfully neglected her. No-one else was specifically and personally responsible for her safety and wellbeing. It is vital that case managers be introduced into the NDIS who have overall responsibility for at-risk cases.

Similarly, it is crucial that a nationally consistent community visitor scheme be implemented as a matter of urgency. Alan Robertson SC said in his review:

… there is a place for a Community Visitor Scheme because it can be that extra pair of eyes of somebody coming in and being able to talk to individuals about how things are going in their lives and having some kind of external input. Then the community visitor can refer any matters of concern to the appropriate investigating authority.

He added:

The advantage of the NDIS Commission having this function in relation to NDIS participants is that the result would be national and uniform in circumstances where two of the States and Territories do not have a Community Visitor Scheme, and as between those jurisdictions which do have such a scheme there is some variation.

These measures are about reducing the risk of having a single point of contact and about creating systemic changes so that what happened to Ms Smith can never happen again. Her death was tragic, and, tragically, it is not the only death which has arisen from NDIS mismanagement and through those who prey on people with a disability. This bill proposes to address some safeguarding issues but, regrettably, not all of them. It is time for this to change.

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