National Disability Insurance Scheme Amendment (Strengthening Banning Orders) Bill 2020

12 November 2020

I rise in support of the National Disability Insurance Scheme Amendment (Strengthening Banning Orders) Bill 2020. This bill has its origins in the death of South Australia NDIS participant Ann-Marie Smith. The wilful neglect, suffering and tragic death of Ann-Marie on 6 April this year left us all deeply shocked and reeling. To be clear, it was not her disability that killed her; it was the actions of her carer that killed her. The manner of her death was entirely preventable. Ms Smith had loving parents who made provisions for her. She was diagnosed with severe cerebral palsy and needed significant assistance for toileting and hygiene. Her house had been set up to enable her to be well looked after long after her parents' deaths. However, she had to rely on a carer for all of her needs following the death of her parents.

Ann-Marie died after being deposited in a woven cane chair in her living room for 24 hours a day for over a year. That cane chair operated as both her toilet and her bed. She 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's NDIS provider, Integrity Care SA, was banned in August from operating and had its NDIS registration revoked. That prevented the organisation providing services through the NDIS. The NDIS Quality and Safeguards Commission has not released the report that formed the basis of that action, except to say that it was because of 'a number of contraventions of the NDIS Act'. That would have to be a complete understatement.

This bill is only a partial response to the shortcomings in the system that led to Ann-Marie's death. And, whilst it has taken several months to be debated in the Senate, the better course would have been for the government to have waited until Alan Robertson SC had completed his review to properly legislate and fix the safeguarding gaps within the National Disability Insurance Scheme and the regulatory oversight highlighted in the review. The government has not chosen to do that. Instead, it has legislated minor changes which allow for the banning of a carer from further NDIS work, including in circumstances where the carer is no longer employed by the NDIS provider. While this change is welcome, it must be said that it would not have prevented Ann-Marie's carer from neglecting her, because the carer was at the time an employee of Integrity Care SA. This bill would allow the pre-emptive banning of a person from disability work because of their actions in an adjacent non-disability area, like aged care or child care. This would have caught out Ann-Marie's carer, because she had also been banned from Domiciliary Care SA due to allegations of theft. However, the measures in this bill do not go far enough. They do not implement the many recommendations made by Alan Robertson SC in his independent review, except for one of them, which extends banning orders to former providers by a further amendment the government moved to this bill in the other place.

The NDIS Quality and Safeguards Commission has a wide range of compliance and enforcement actions, including seeking injunctions and civil penalties, and revoking and issuing banning orders on a case-by-case basis. However, it is difficult to comprehend that, despite the NDIA receiving 8,000 complaints in the last two years, only 22 individual carers were banned, and only one fine—one fine!—was issued for $12,600, and that was to Integrity Care SA for failing to report Ann-Marie's death within the required 24-hour notification period. It's astounding that NDIS providers failed to do exactly what Integrity Care SA did on 200 separate occasions, yet none of them got a fine for the same breach. Significant issues also exist within the NDIA and the NDIS Quality and Safeguards Commission in relation to safeguarding the wellbeing of people with a disability and, particularly, vulnerable NDIS participants.

It must be said that the changes proposed in this bill alone will not prevent future abuse, neglect or worse. They just make it a little better with respect to banning orders. Alan Robertson SC was asked to identify what should have happened in relation to Ann-Marie's care and whether there were any failings on the part of the NDIS, and to make recommendations to prevent the neglect suffered by Ann-Marie happening to any other person with a disability. He highlighted many safeguarding gaps in a system meant to protect people with a disability. Sadly, the government has failed to respond to or implement the many important changes required.

I want to highlight two areas underscored in the independent review which seek to implement significant changes on how the NDIA and the NDIS commission work best for people with a disability, and which seek to safeguard against abuse and neglect. These are: 'No vulnerable NDIS participant should have a sole carer providing services in the participant's own home,' and the establishment of the commission's own community based visitor scheme similar to schemes currently operating in states and territories. The critical circumstance in Ann-Marie's case is that she became invisible and isolated from everyone except for her sole carer, the sole carer who now stands charged with manslaughter. Ann-Marie had no interaction with family, friends or neighbours for a long time and did not even have a GP visit. She was totally cut off from the world; she was completely dependent on her carer, and no-one was watching.

The South Australian Safeguarding Task Force established by the Marshall government following Ann-Marie's death said in its final report:

At least one of the extra pair of eyes seeing what is going on should come from proper supervision of support workers by the service provider agency, and ensuring that more than one support worker is involved, even if the participant only wants a single person whom they trust and respect.

If only Integrity Care SA had ensured that Ann-Marie had the extra pair of eyes looking out for her and someone else caring for her, the outcome could have been very different. I recognise the operational challenges faced by providers, even small providers, in requiring more than one carer for a vulnerable NDIS participant. However, these valid considerations must be weighted against the need to protect vulnerable participants from all forms of neglect and abuse. Ann-Marie's case brings this issue into sharp focus, and we must not lose sight of this.

The government also needs to legislate for a community based visitors scheme to be implemented by the commission as another mechanism that might guard against vulnerability. A community visitors scheme provides the kind of external input needed, with someone coming in and being able to talk to participants about how things are going in their lives. The community visitor could then refer matters of concern to the NDIS commission. A visitor for Ann-Marie was not available under the community visitors scheme in South Australia, because she was an NDIS participant and outside the scope of the scheme. Having the NDIS commission operate its own equivalent community visitor scheme is consistent with the commissioner's core function in the NDIS Act, section 181E(b):

… to develop a nationally consistent approach to managing quality and safeguards for people with disability receiving supports or services …

The advantage of the NDIS commission having such a scheme in relation to NDIS participants is to provide a national and uniform approach to safeguarding against abuse and neglect.

I want to make the point that being a person with a disability does not make you vulnerable, but we must protect against the circumstances which make all people vulnerable. To that end, I foreshadow my second reading amendment, which notes the recommendations made by the Hon. Alan Robertson, SC, in the Independent review of the adequacy of the regulation of the supports and services provided to Ms Ann-Marie Smith, an NDIS participant, who died on 6 April 2020—from abuse and neglect—and calls on the government to implement the recommendations in consultation with the disability sector, including the introduction of a national community visitor scheme. With those words, I commend the bill to the chamber.

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