7.1
This chapter sets out the evidence received in relation to the Commission's handling of reportable incidents.
7.2
Key concerns in relation to reportable incidents included:
that the reportable incidents framework should be strengthened; and
that providers may need more support to comply with reportable incident requirements.
Reportable incidents
7.3
Registered NDIS providers must maintain internal incident reporting systems, to ensure incidents are recorded and that providers take action to prevent recurrent incidents.
7.4
Registered providers must also report particular serious incidents or allegations to the Commission if these occur in connection with the provision of NDIS supports or services. These are:
the death of a person with disability; or
serious injury of a person with disability; or
abuse or neglect of a person with disability; or
unlawful sexual or physical contact with, or assault of, a person with disability; or
sexual misconduct committed against, or in the presence of a person with disability, including grooming of the person for sexual activity; or
the use of a restrictive practice in relation to a person with disability, other than where the use is in accordance with an authorisation (however described) of a state or territory in relation to the person.
7.5
The requirements in relation to timeframes for reporting and the types of information that must be provided to the Commission are set out in Rules made under the NDIS Act.
7.6
In its submission, the Commission noted that it reviews data about reportable incidents to identify 'systemic issues to be addressed, and report publicly on the trends and patterns in reportable incidents, and best practice strategies to improve the quality of supports and services and prevent harm to people with disability'. The Commission publishes data on reportable incidents in its activity reports.
Does the framework provide strong enough protections?
7.7
The committee heard that the reportable incidents framework may need additional measures to enable it to provide strong enough protections to ensure safe supports for people with disability. These included:
enabling the identification of systemic issues through reporting
expanding the types of incidents that must be reported
ensuring providers' internal systems are equipped to highlight serious incidents; and
requiring unregistered providers to report serious incidents.
7.8
The Victorian Office of the Public Advocate (Vic OPA) observed that reporting of incidents is not required to the same extent as has been implemented in Victoria. In particular, the Vic OPA noted that the Victorian framework (which in July 2020 was administered by the Victorian Department of Health and Human Services) defines ‘major impact’ incidents to include ‘a pattern of incidents related to one client which, when taken together, meet the [required] level of harm to a client. This may be the case even if each individual incident is a non-major impact incident’. The Vic OPA recommended that a similar provision be added to the provisions in the NDIS Act and Rules governing reportable incidents.
7.9
Stride Mental Health (Stride) indicated that the Reportable Incidents framework should be broadened so as to encourage the reporting of additional incidents and thereby increase the Commission’s ability to protect vulnerable participants and to improve the quality and safety of supports and services. Examples include:
where a participant has made a police report in relation to a matter, but the matter does not meet the current Reportable Incident criteria; and
critical incidents relating to the provision of psychosocial supports, such as where suicidal ideation or non-suicidal self-injury is observed.
7.10
The Queensland Public Advocate (Qld PA) noted that the Commission requires service providers to have an incident management system in place for identifying, assessing, recording and reporting incidents, and acknowledged that such a system will provide a great deal of information which will assist in safeguarding participants. However, incident management systems currently are not able to identify and report on ‘red flags’ for risk. The Qld PA submitted that auditing and monitoring processes should be reviewed to identify particular issues that may be ‘red flags’ which would trigger interventions, such as checking a person’s access to health services, and ensuring that providers introduce systems of oversight and reporting of incidents of neglect or harm.
7.11
The Vic OPA further submitted that community visitors be given access to providers' incident reports to assist in performing their quality assurance role and to enable community visitors to provide advice and guidance to providers on ways to improve their reporting practices.
7.12
The committee also heard that it was 'problematic' that incident reporting is only mandatory for registered providers. For example the Vic OPA was concerned that unregistered providers may not understand when they have implemented a restrictive practice and how to report its use.
7.13
Stride observed that not requiring unregistered providers to identify and report incidents is a potential gap for vulnerable cohorts, and that this is of increased significance due to increasing numbers of plan managed and self-managed participants. Stride recommended that the framework be expanded to include both registered and unregistered providers.
Commission approach to reportable incidents
7.14
The committee heard that the Commission's approach to reportable incidents demonstrated shortcomings similar to the issues with its approach to complaints. These included shortcomings in the Commission's approach to communicating with participants and providers about incidents.
7.15
Cara observed that while the best measure of the impact of an incident is often gained directly from the participant, the Commission may not contact participants or nominees following an incident. According to Cara, the Commission relies on evidence supplied by providers—even if this it is less effective to take this approach than to contact the participant or their nominee directly. Moreover, there appears to be little correlation between the nature of an incident, the impact on the participant, and the evidence sought by the Commission to justify the provider’s actions.
7.16
Autism Spectrum Australia (Aspect) submitted that in some cases, reportable incidents have not been investigated for months, and escalation of action to service providers has taken up to nine months. In addition, investigations into reportable incidents seem to be ‘focused on documents and compliance rather than providing practical, on the ground support to providers’.
7.17
The committee also heard varying reports in relation to the approach of Commission staff who work with reportable incidents. For example, CPSU reported that Commission staff who manage reportable incidents were expected to work on matters that required training and experience that had not been provided. Cara noted that it has received highly variable responses from the Commission in relation to reportable incidents, which suggest only limited understanding among the Commission’s staff of matters such as industrial requirements and procedural fairness principles.
7.18
However, Connectability Australia (Connectability) stated that, on the whole, the Reportable Incident division is ‘helpful and knowledgeable...[with] relevant sector experience’.
7.19
The Junction Works Limited (TJW) noted an instance where a junior officer from the Commission called and spoke to one of their staff in a threatening tone, asserting that TJW should have lodged a report in relation to a reportable incident relating to the neglect of a participant. However, according to TJW there was no neglect to report, and the staff member from the Commission had made assumptions based on potentially faulty third party information. The officer from the Commission also required TJW to lodge an incident via the Commission’s portal without first seeking information from TJW about the actual event.
7.20
To address incidents such as this, TJW recommended that:
the Commission seek clarifying information from providers prior to presenting third party information
Commission staff take a collaborative position with providers to ensure that communication channels remain constructive
the Commission establish a set of definitions around what it considers to be ‘serious injury’, ‘abuse’ and ‘neglect’; and
the Commission establish a triage process to enable providers to know whether an incident reaches the ‘reportable’ threshold.
Are providers supported to comply with the framework?
7.21
The committee heard that providers continue to face difficulty understanding the reportable incidents framework, including understanding which incidents must be reported, and that reporting requirements impose a significant administrative burden.
7.22
The types of issues reported were summarized by the Tasmanian Government:
The Commission is often reluctant to provide specific advice when requested (for example, a query around whether a particular event was a reportable incident) preferring to refer to generic information available on the Commission's website
The lodging of notifications is, at times, cumbersome and time consuming.
Providers have reported significant delays in receiving advice from the Commission about reportable incidents; and
Where incidents occur outside of NDIS support hours, further clarity is required on the role of the provider and the Commission.
Clarity as to the incidents that must be reported
7.23
The committee heard that there is a lack of clarity and consistency as to what is deemed an ‘incident’ within the Reportable Incidents framework, and as to when an incident reaches the threshold of being a ‘Reportable Incident’. Submitters and witnesses indicated that this can cause confusion for providers, and limits the Commission’s ability to effectively address issues associated with the quality and safety of supports and services.
7.24
For example, Stride observed that the Reportable Incidents Guidance requires the death of a participant to be reported by registered providers where the death occurs ‘in connection with NDIS supports’. According to Stride, the NDIS workforce has frequently queried the definition of ‘in connection with’ and has expressed concern that deciding whether the death of a participant meets this definition can be difficult. This is of particular concern to providers, which often have little information as to the circumstances of the death.
7.25
Stride asserted that the Commission has provided conflicting information following the submission of incidents that are deemed ‘reportable’ under the Reportable Incidents Guidance. Stride noted that the Commission has provided feedback that all incidents that occur outside of direct NDIS support are ‘out of jurisdiction’. According to Stride, this conflicts with guidance on the Commission’s website stating that Reportable Incidents include incidents that:
may not have occurred during provision of supports or services;
arise out of the provision, alteration or withdrawal of supports or services;
may not have occurred during the provision of supports but which are connected because they arose out of the provision of supports or services.
7.26
The Mental Health Community Coalition ACT noted that providers have raised concern that there is a lack of clarity and consistency around what is deemed an ‘incident’. It stated that the guidelines on the Commission’s website lack clarity around what is a reportable incident. Moreover, when contacting the Commission and talking to someone in person, ‘the answer changes, depending on who you talk to’.
7.27
Consultants Leighton Jay, Jessica Quilty and Ann Drieberg stated that the Commission’s effectiveness depends on providers reporting as required. However, given how convoluted existing guidance material and definitions are, this cannot be assured. For example, language around reportable incidents is unnecessarily complicated.
Administrative and technical issues
7.28
Cara submitted that the Commission’s approach to reportable incidents ‘suffers from inefficiency and duplication’. For example, some reportable incidents require immediate notification (in 24 hours), followed by further notification in five days. However, the Commission often contacts providers after an immediate notification requesting information that would be answered in the follow-up process. According to Cara, this approach causes ‘significant duplication and administrative burden’, as the same data is often requested by phone and in writing.
7.29
Cara also observed that the sharing of data and the requirement to manually enter data into the portal creates unnecessary administrative burden for providers. Cara suggested technological improvements that would allow data to be exported or imported directly to the Commission from providers and alleviate the need for manual data entry and reduce the duplication of entering data into provider Incident Management Systems and the Commission portal.
7.30
Connectability noted that when Reportable Incidents are closed, there is no notification sent to the provider, nor is there a closure date that is displayed on the portal, which means the provider only learns when reportable incidents are closed by checking the portal.
Commission view
7.31
The Commission told the committee in September 2021 that incident management and reporting was one of its priorities for compliance and enforcement in 2020-21. Specifically, the Commission had commenced compliance activity in relation to:
providers that were reporting the repeated unauthorised use of restrictive practices; and
educating registered NDIS providers and assessing their compliance with their obligations under the National Disability Insurance Scheme (Incident Management and Reportable Incident) Rules 2018.
7.32
The Commission also outlined a range of changes to complaints management and stated that a number of these also apply to how the Commission oversees providers’ responses to reportable incidents. These changes are also outlined above and include:
increased staffing (focussed on additional reportable incidents and complaints officers)
revised policies and procedures, including a reportable incidents manual
a revised approach to intake assessment and streaming of complaints and reportable incidents
intensive training of staff on the new policies, procedures and changes to the intake model; and
a new internal quality assurance process.
7.33
Recent amendments to the NDIS Act have also provided for the scope of the reportable incident framework to be expanded by allowing rules to prescribe other circumstances in which reportable incidents may have occurred which must be notified to the Commission.
Committee view
7.34
Evidence to the inquiry suggests that there are still aspects of the reportable incidents framework to be addressed in order to strike the right balance of ensuring the Commission is notified of serious incidents while ensuring providers are not subjected to unnecessary burdens and understand their obligations.
7.35
The committee considers that the reporting of serious incidents to the Commission could also be a valuable tool for monitoring systemic quality and safeguarding issues. The recent amendments to the NDIS Act that will allow Rules to specify additional types of incidents that must be notified to the Commission may allow these types of incidents to be captured going forward. The committee also notes that such a mechanism would be consistent with the Commission's recent compliance activity in relation to the use of unauthorised restrictive practices, which was informed by the incident reporting mechanism.
7.36
The committee recommends that the Quality and Safeguards Commissioner consider making rules under the National Disability Insurance Scheme Act 2013 to provide for incident reporting to identify systemic quality and safeguarding issues.
7.37
Concerns raised by providers in relation to reportable incidents echoed the more general concerns of providers about the Commission's approach to communication, and the committee refers in particular to its recommendations in Chapter 3 to ensure effective communication with providers.
7.38
The committee also welcomes the work that the Commission has undertaken to improve its policies and procedures in this area, and the education activities undertaken in relation to the rules governing reportable incidents. The Commission's evidence did not indicate, however, that the guidance for providers relating to the reportable incidents framework had been reviewed or updated, which was a significant concern outlined by some providers. In this respect, the committee notes that the Commission will be updating its website over the coming 12 months and encourages it to ensure that reportable incidents guidance is clarified and made more accessible in the course of this work.