MHCC Mental Health Rights Manual

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Chapter 13 Section G: Receiving Quality Services

Overview

The NDIS has potential to produce major benefits for people living with mental health conditions and psychosocial disability, their families and the broader community, but it also presents some potential risks.

The NDIS has developed a Quality and Safeguarding Framework to ensure that capability is built into this new market-based system, that the rights of people with disability are upheld, and the benefits of the NDIS are realised. Implementation of the Framework requires a consistent national approach to quality and safeguarding. In addition to advancing the rights of people with disability, the Framework is required to support choice and control in the NDIS by empowering individuals and driving quality improvement. Choice and control also mean that participants are able to make decisions about the level of risk they are prepared to take and have the tools and information they require to make informed judgements about the quality and suitability of providers.

Whilst maximising participants’ choice and control, quality and safeguarding mechanisms are necessary to ensure that people are not at risk of harm, abuse, neglect or exploitation. Quality and safeguards are the supports and instruments that are put in place to ensure the safety and wellbeing of people through delivery of high quality supports and services. In the NDIS, this means that registered service providers must meet quality standards set by the NDIS Quality and Safeguards Commission which promote the safety of people with disability, their families and carers, and their staff, in the provision of NDIS funded services.

The NDIS Quality and Safeguards Commission brings together various quality and safeguards functions under a single agency for the first time, with a suite of education and regulatory powers that apply across Australia. The aim is to improve consistency in regulation and registration for providers in different states and territories.

Quality and safeguarding arrangements ensure people with disability are:
  • Treated fairly and provided with disability supports, aids or equipment which are needed
  • Involved and included in their communities
  • Making their own choices about the services and support they need and who provides them
The NSW Government remains responsible for safeguarding people living with disability in other circumstances, including in home or community settings and in services funded by or under the control of NSW Government.

The NSW Ombudsman has a role in oversighting the quality and safeguards of people living with disability. They watch over most public sector and some private sector agencies in NSW. Their role is to make sure these agencies and their staff do their jobs properly and meet their responsibilities to the community. During the transition to the NDIS, the NSW Ombudsman has jurisdiction over both NSW government funded and NDIS funded services and supports to people with disability. This includes taking complaints about any services or supports that are funded through an NDIS participant’s plan – both registered and unregistered NDIS providers.

Most NDIS providers aim to provide quality supports and services to people living with disability, however problems and incidents of poor practice, abuse and harm can occur. People with disability have the right to complain about the services they receive, and complaints can play a vital role in strengthening the NDIS and improving the quality of supports and services provided under the NDIS.

This section will provide information about:

  • The NDIS Quality and Safeguards Commission
  • Service Standards and Guidelines
  • How to make a complaint and provide feedback about the NDIS
  • NDIS Plan Reviews

13G.1: NDIS Quality and Safeguards Commission

The NDIS Quality and Safeguards Commission (NDIS Commission) works to uphold the rights of people with disability. The functions of the Commission are to:

  • respond to concerns, complaints and reportable incidents, including abuse and neglect
  • promote the NDIS principles of choice and control, and work to empower participants to exercise their rights to access good quality services as informed, protected consumers – consistent with the UN Convention on the Rights of Persons with Disabilities
  • require NDIS providers to uphold participants' rights to be free from harm
  • register and regulate NDIS providers and oversee the new NDIS Code of Conduct and Practice Standards
  • provide guidance and best practice information to NDIS providers on how to comply with their registration responsibilities including how to provide culturally responsive and appropriate disability supports
  • monitor compliance against the NDIS Code of Conduct and Practice Standards including undertaking investigations and taking enforcement action
  • monitor the use of restrictive practices with the aim of reducing and eliminating such practices
  • design and implement nationally consistent NDIS worker screening
  • education, capacity building and development for people with disability, NDIS providers and workers
The NDIS Commission has developed the NDIS Quality and Safeguarding Framework which provides a nationally consistent approach to help empower and support NDIS participants to exercise choice and control, while ensuring appropriate safeguards are in place. It also establishes expectations for providers and their staff to deliver high quality supports.

The fundamental objectives of the NDIS Quality and Safeguarding Framework are to ensure that NDIS funded supports:
  • Uphold the rights of people with disability, including their rights as consumers
  • Facilitate informed decision-making by people with disability
  • Are effective in achieving person-centred outcomes for people with disability in ways that support and reflect their preferences and expectations
  • Are safe and fit for purpose
  • Allow participants to live free from abuse, violence, neglect and exploitation
  • Enable effective monitoring and responses to emerging issues as the NDIS develops
The Framework encompasses functions such as:
  • Advocacy services funded outside of the NDIS through government funded programs such as the National Disability Advocacy Program
  • Systems for detecting fraud and related issues associated with the responsibility for paying providers and verifying that supports have been delivered which remain the responsibility of the NDIA
  • Complaints about the NDIA, or NDIA-funded Local Area Coordinators, addressed through existing measures
  • Universal complaints and redress mechanisms – including Fair Trading, professional and industry bodies – which continue to be available to participants
  • Anti-discrimination and human rights legislation overseen by the Disability Discrimination and Human Rights Commissioners, which provide additional avenues for raising a complaint
Participants can raise concerns or complaints about the safety and quality of NDIS services with the NDIS Commission. The NDIS Commission will also be responsible for the registration and regulation of NDIS providers across Australia. This includes compliance monitoring and responding to allegations of abuse and neglect.

Participants in the NDIS who are self-managing their own packages may be selecting services that are not registered by the NDIS. In such circumstances they will be engaging with services and workers on the same basis as any other market contract and be subject to the risks of any commercial arrangement.

Section D.4.1 of this chapter describes in more detail circumstances where a person self-manages their plan.

The Framework also sets out requirements for registered NDIS providers in NSW to comply with:

  • A national provider registration system
  • The NDIS Practice Standards
  • An NDIS Code of Conduct which also applies to unregistered providers
  • A national worker screening system
  • A new complaints management and resolution system
  • New incident management requirements, including reportable incidents
  • Additional safeguards for behaviour support and restrictive practices

13G.1.1: Incident Management Requirements

The new incident management system described under the NDIS Quality and Safeguarding Framework, requires that all incidents which result in harm, or have the potential to cause harm to a person with disability while they are receiving supports or services must be recorded. Incidents which must be notified to the NDIS include the death, serious injury, sexual misconduct, abuse or neglect of a person with disability, as well as the unauthorised use of restrictive practices. These new arrangement do not replace existing obligations to report suspected crimes to the police and other relevant authorities.

13G.1.2: NDIS Restrictive Practices Authorisation

With the establishment of the NDIS Safeguards and Quality Commission in NSW from July 2018, NDIS registered service providers who use restrictive practices in the context of a Behaviour Support Plan (BSP) must have a Restrictive Practices Authorisation (RPA). The Restrictive Practices policy, guidelines, fact sheets, guidance, and a slide pack to walk you through the requirements as well as the application forms can be accessed through the following link.

13G.2: Service standards and guidelines

Every participant is different and will make decisions about the services they wish to receive based on their particular priorities and preferences, but in genera l they will be looking for providers that can demonstrate:

  • Expertise and experience in delivering their services,
  • Support or products the participant requires or has a preference for
  • Capacity to meet their individual/specific circumstances, needs and aspirations
  • Value for money
  • Ease of access (location and proximity to their home or workplace)

To minimise risk, enhance outcomes and maximise the social and economic participation of people living with disability, there are particular conditions required of providers such as: qualifications, processes and expertise. To become registered with the NDIS, service providers must be assessed by an approved quality auditor as meeting the standards and requirements as set by the NDIS Practice Standards and must continue to comply with these standards to remain registered.

Workers who are employed by unregistered service providers can also apply for the NDIS Worker Screening Check if they are delivering or are planning to deliver NDIS supports and services. Self-managing participants, unregistered NDIS providers and registered plan managers are strongly encouraged by the NDIS Quality and Safeguards Commission to make use of the NDIS worker screening process for workers they wish to engage with.

The NDIS (Provider Registration and Practice Standards) Rules 2018 outlines the standards relating to the rights of participants and the responsibilities of providers. It states that:

  • Each participant has the right to access supports that promote, uphold and respect their legal and human rights. Each participant is enabled to exercise informed choice and control. The provision of supports promotes, upholds and respects individuals’ rights to freedom of expression, self-determination and decision-making.
  • Each participant can access supports that respect their culture, diversity, values and beliefs.
  • Each participant can access supports that respect and protect their dignity and right to privacy.
  • Each participant is supported by the provider to make informed choices, exercise control and maximise their independence in relation to the supports provided
  • Each participant can access supports free from violence, abuse, neglect, exploitation or discrimination

The NDIS (Provider Registration and Practice Standards) Rules 2018 additionally ensures that:

  • Each participant’s support is overseen by robust governance and operational management systems relevant and proportionate to the size and scale of the provider and the scope and complexity of the supports being delivered
  • Risks to participants, workers and the provider are identified and managed
  • Each participant benefits from a quality management system that is relevant and proportionate to the size and scale of the provider and promotes continuous improvement of support delivery
  • Management of each participant’s information ensures that it is identifiable, accurately recorded, current and confidential; and each participant’s information is easily accessible to the participant and appropriately utilised by relevant workers
  • Each participant has knowledge of and access to the provider’s complaints management and resolution system; and complaints are welcomed, acknowledged, respected and well managed
  • Each participant is safeguarded by the provider’s incident management system, ensuring that incidents are acknowledged, responded to, well managed and learned from
  • Each participant’s support needs are met by workers who are competent in relation to their role, hold relevant qualifications and have relevant expertise and experience to provide person-centred support.
  • Each participant has access to timely and appropriate supports without interruption
Registered providers must notify the NDIA if they are in breach of any Commonwealth, State or Territory law, including any Commonwealth, State or Territory disability service standards. Registered providers must also notify the NDIA if they become subject to any investigation for breach of a Commonwealth, State or Territory law and/or quality and safeguard arrangements.

When you pay for a product or service, as an NDIS participant you have rights to a good service under the Australian Consumer Law. If you aren’t happy with the service you are receiving, you can contact the Australian Consumer Complaints Commission (ACCC).

Under Australian Consumer Law, your service provider is legally required to do the following:

  • Treat you fairly – which means working with you in a moral and ethical way
  • Sell safe products – includes taking responsibility for the safety of the goods supplied and sold; testing to detect any unsafe products; immediately notifying the ACCC of any serious injuries or deaths caused by the use of products you supply; and recalling products you have supplied which present a safety risk
NSW Fair Trading provides community education to consumers, service providers and the disability sector on awareness of consumer rights and protections including scam awareness, entering contracts, hiring services and how to complain.

A service agreement with your provider can also ensure that your standards of care are met, that the specific responsibilities of people who are party to the agreement are clearly outlined, and how you or your provider may change or end the service agreement is described.

All supports must be delivered in accordance with the service agreement created with the participant, and the provider must ensure that the participant is regularly provided with, or has access to details of services delivered, and the amount charged for those services. Service agreements must be consistent with the NDIS’s pricing arrangements, guidelines and the requirements of the A New Tax System (Goods and Service Tax) Act 1999 with regards to the application of the goods and services tax to its services. Service agreements must also include a time frame for the notice of termination of services by the provider. The minimum allowable notice period for this purpose must be no less than 14 days to ensure there is adequate time for the participant, their nominee, or the NDIA to find an alternative provider to deliver the required service. Participants are entitled to terminate a service agreement based on personal preferences or circumstances.

Section E.3
of this Chapter provides further information about service agreements.

Registered providers must adhere to the NDIS Price Guide or any other NDIA pricing arrangements and guidelines that are in force. Registered providers must confirm their prices to participants before delivering the selected service. Participants can change their minds and do not have to continue to engage with the services of the registered provider after their prices have been declared. Registered providers can only make a payment request (issue an invoice) once the service or support has been delivered or provided.

No other charges are to be added to the cost of the support, including credit card surcharges, or any other additional fees including late or cancellation fees. These requirements apply to all registered providers regardless of whether funding for the support is managed by the participant, managed by a registered provider, or managed by the NDIA.

A registered provider must keep full and accurate accounts and financial records of the supports delivered to NDIS participants, along with records of service agreements, for a period of no less than 5 years. Record keeping must also comply with all relevant statutes, regulations, by-laws and requirements of any Commonwealth, State, Territory or Local Authority.

13G.3: How to make a complaint and provide feedback about the NDIS?

Everyone interacting with the NDIS has the right to provide feedback or make a complaint. You can provide feedback or submit a complaint in person at a local NDIA office, by calling the NDIA support line, in writing, or using the online form on the NDIA website.

The NDIA aims to acknowledge your complaint within a small number of business days after receiving the complaint, and aim to have your complaint resolved within 21 days of receiving the complaint in whatever format.

The NDIA will need to contact organisation providing the service you are complaining about and inform them of the details of the complaint and ask for their response to the issue. Communication will be open and you will be informed of all the stages of the complaint process, and responses until the complaint has been resolved.

If you are unsatisfied with the outcome of the complaint resolution, there is the option to ask for an NDIA supervisor or manager to review how the complaint was addressed and handled. If this result is still unsatisfactory, you can contact the Commonwealth Ombudsman regarding an issue with the NDIA.

If you have a complaint about a product or service, including those provided by an NDIS provider, you can lodge a complaint with NSW Fair Trading.

The NSW Ombudsman remains responsible for any complaints regarding the Official Community Visitors Scheme as well as complaints regarding abuse and neglect in community settings.

To read more about the NSW Ombudsman click here.


Chapter 10 of this manual provides information regarding complaints mechanisms for mainstream mental health services. 

13G.3.1: Making a Complaint with the NDIS Quality and Safeguards Commission

The NDIS Commission can take complaints about:

  • Services or supports that were not delivered in a safe and respectful way
  • Services and supports that were not provided at a satisfactory standard
  • How an NDIS provider has responded to a complaint

Once you have lodged your complaint, the NDIS Commission will acknowledge the application and arrange a time to discuss the concerns raised with a NDIS Commission complaints resolution officer. This conversation may include:

  • The officer asking for additional information about the issue for clarity about the case
  • The officer seeking consent to speak to the NDIS participant to gain their perspective, if they working with someone making a complaint on behalf of a participant.

Sometimes a complaint may be referred to conciliation or investigation. A conciliation meeting helps people to understand the issues and reach agreement on how a complaint can be resolves. An investigation may be conducted if the issues raised in the complaint involve serious concerns or risks to people living with disability. If a complaint raises a serious compliance issue, the NDIS Commission has the power to take action.

13G.4: NDIS Plan Reviews

13G.4.1: Review of your NDIS plan

You will be contacted before your plan comes to an end to discuss a review of your plan. The review can be conducted face-to-face or over the phone, depending on which you would prefer. The review of your first NDIS plan will generally take place 12 months after your plan commenced, however it may be scheduled up to two years apart depending on your personal circumstances and goals. Reviewing your plan is an opportunity to check that the supports and services you are receiving are helping you to achieve your goals and measure your progress. At your review you will discuss:
  • What has worked well
  • What you have achieved
  • What goals or aspirations have not as yet been achieved
  • How and if your life has changed during the 12 months
  • Whether you have some newfound personal goals that you wish to address

Plan reviews will typically be conducted by an NDIA planner or with a Local Area Coordinator in your community. 

13G.4.2: Internal review of an NDIA decision

If you think an access decision made by the NDIA is wrong, or you are not happy with your NDIS funding, you can ask for an internal review of a decision. This needs to be done within 3 months of receiving the letter notifying you of their decision. Once you have submitted your request, the NDIA will decide to either uphold their original decision, overturn the decision, or change the decision. They will make the decision as soon as they have taken into account everything necessary to review the decision.

When requesting a review of your current NDIS funding, the NDIA will look at all of the funded supports in the plan, not just one of them. This helps to make sure there are no gaps in the plan.

If you’re not happy with the internal review, you can apply for a review by the Administrative Appeals Tribunal (AAT), which exists outside the NDIA.

13G.4.3: External review of an NDIA decision

You can make an application to the Administrative Appeals Tribunal (AAT) if you are not satisfied with a decision made by the NDIA in an internal review, within 28 days of receiving the result of your internal review. The AAT cannot review a decision until after an internal review with the NDIA has been completed.

The AAT website provides information about what kinds of decisions the AAT can review, how to apply, and how the review process works.

An AAT Contact Officer will contact you within 3 days of receiving your application to discuss your complaint. In most cases the AAT will then hold an informal meeting with you to discuss the possible avenues for resolution. If this meeting doesn’t produce a final outcome, the AAT will list the application for a conciliation whereby the AAT will work with you and the NDIA to help in reaching an agreement about how the issue can be settled. If the case is yet to be resolved in this setting, the AAT will conduct a hearing to make a final decision. If you feel uncomfortable attending a conciliation with the Agency and would like to gain a formal decision quickly, you are able to ask for a fast-track hearing at the initial case conference.

If you would like support throughout the complaint and review process of NDIS decisions with the AAT, the Australian Government funds services in every NDIS site to assist people with this free of charge. This is set up under NDIS Appeals, which allows people with disability access to a skilled disability advocate who acts as a support person, and access to funding for legal services if the subject contains complex legal issues, provided by Legal Aid Commissions. The appointed advocates are from the National Disability Advocacy Program (NDAP) and they can assist individuals with explaining the review process, the preparation of documents/evidence, offering advice and capacity building skills to help people better represent themselves, or attending the AAT meetings and hearing as a form of support.

For more information about the NDIS Appeals Supports and a list of the NDIS Appeals providers/disability advocacy agencies across Australia, follow this link.