DRC: Human Rights

Upholding the human rights of participants is a common theme that underpins the discussion and Recommendations published by the Disability Royal Commission (DRC). Whilst most of the human rights Recommendations are directed at the federal, state and territory governments, several Recommendations are related to human rights requirements for providers.

The United Nations’ Convention on the Rights of People with Disability (CRPD) is the foundation of the DRC’s investigation into the human rights of people with disability. The CRPD lays out Australia’s obligations in relation to the human rights of people with disability. There are eight guiding human rights principles that underlie the CRPD (the Human Rights Principles), as follows:

  1. Respect for inherent dignity, individual autonomy (including the freedom to make one’s own choices), and independence of persons;
  2. Non-discrimination;
  3. Full and effective participation and inclusion in society;
  4. Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
  5. Equality of opportunity;
  6. Accessibility;
  7. Equality between men and women; and
  8. Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.

The DRC found that the above Human Rights Principles were not adequately protected and upheld under Australian law or policy and practice.

The DRC's key human rights Recommendations

Recommendation 10.1 of the DRC final report suggests that the NDIS Quality and Safeguards Commission should develop a program to ensure that human rights are embedded in the design and delivery of each NDIS Provider’s services. The specifics of the program are not clear, however the final report suggests that the program will give regulators oversight of providers’ implementation of human rights policies and procedures.

Accompanying Recommendation 10.1 are several recommendations from Volume 4: Realising the human rights of people with disability. These Recommendations endorse the enactment of a disability rights act, which would enshrine the human rights of people with disability in Australian law.

The DRC made a distinction between actual and potential impacts on the human rights of people with disability.

Potential impacts

Potential impacts include identified risks to the legal and human rights of people with disability. Potential impacts should be identified and addressed before they happen. This can be dealt with through an organisation’s risk management system.

Actual Impacts

Actual impacts on human rights include breaches of a person’s human rights which have already happened. Addressing actual impacts may require remediation and should be dealt with as a priority.

Embedding human rights in service provision

Implementing policies and procedures related to human rights is an essential first step that NDIS Providers should take to stay ahead of new requirements stemming from the DRC. Implementation should include:

  • Assigning responsibility
    Ensure that responsibility for the organisation’s human rights impacts is assigned to a senior staff member or a committee.
  • Training
    The workforce should be made aware of their responsibilities in relation to human rights, and understand how they can ensure human rights are being upheld.
  • Assessment
    Assessing the organisation’s services and identifying the potential human rights impacts will help the organisation to prevent potential impacts from becoming actual impacts.
  • Monitoring and review
    The organisation should regularly review its performance in relation to human rights. Any breaches or impacts should be addressed as soon as possible.
  • Complaints and grievances
    Complaints, feedback and grievances in relation to human rights impacts should be taken very seriously and investigated as soon as possible by the organisation.

How BNG can help

We have developed a new Human Rights policy template to help providers stay on the front foot in relation to human rights. The policy template will help you understand the central principles of the CRPD and embed human rights in service delivery.

This blog post is the third in our series of posts on the Disability Royal Commission. You can see the other blog posts in the series here.

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DRC: Supported Decision-Making

Continuing our blog post series on the Disability Royal Commission’s Final Report, today we look at supported decision-making. This topic is a strong focus of Volume 6: Enabling autonomy and access, and reflects findings from several Public Hearings including Public Hearing 30 and Public Hearing 32. The recommendations target a move away from substitute decision-making in favour of supporting participants to make their own decisions wherever possible, increasing participant autonomy. 

The recommendations centre around legislative protections for supported decision-making, particularly advocating for the following supported decision-making principles in Recommendation 6.6: 

  • Principle 1 – Recognition of the equal right to make decisions  
  • Principle 2 – Presumption of decision-making ability 
  • Principle 3 – Respect for dignity and dignity of risk 
  • Principle 4 – Recognition of informal supporters and advocates 
  • Principle 5 – Access to support  
  • Principle 6 – Decisions directed by will and preferences 
  • Principle 7 – Inclusion of safeguards 
  • Principle 8 – Co-designed processes 
  • Principle 9 – Recognition of diversity 
  • Principle 10 – Cultural safety 

While the principles in their entirety haven’t yet been codified or integrated into the Practice Standards, they do act as guidance for best practice decision-making processes for providers. At present, there is some inconsistency between jurisdictions regarding the protections and approach to decision-making rights and capability. Some jurisdictions already have aspects of these principles in their existing legislation, whereas others do not.  

Implementation of the Recommendations of the DRC would therefore mean people with disability would maintain the same rights when it comes to making their own decisions regardless of where they live in Australia.  

Principle 1 - Recognition of the equal right to make decisions

The first principle affirms that every person has an equal right to make decisions. People living with disability should not be excluded from making decisions about their lives. Recognising this principle is central to the concept of supported decision-making, as it places the person at the centre of their own care, with support to exercise their right to make decisions, rather than others making decisions for them. 

Principle 2 – Presumption of decision-making ability

This principle sets out a base line assumption that everyone is capable of making their own decisions. A person should never be treated as if they’re incapable of making decisions – an inability to make a decision on one topic or area does not exclude a person from making other decisions. Having a disability cannot be the sole justification for determining that someone does not have decision-making ability. Instead, that assessment should be made based on the specific and unique circumstances of the decision being made and the person’s understanding of that decision and its consequences. A person’s disability should only be relevant in assessments where that disability impacts their ability to make or carry out decisions, and should never be an automatic exclusionary factor.  

Recommendation 6.7 focuses further on decision-making ability, endorsing legislative changes that change how capacity (or capability) assessments are undertaken, with the starting point for these assessments being an assumption that a person is capable, moving the burden of proof to those seeking to prove incapability, rather than the added burden on people with disability to prove that they are capable.  

Principle 3 – Respect for dignity and dignity of risk

A major part of the ability to make decisions is the right to make decisions that involve some level of risk. Where a person with disability understands the potential risks involved in making a decision, but elects to make that decision anyway, they should be able to make that choice in the same way any other person is allowed to. Supported decision-making processes should help people with disability to understand the potential risks involved in their decisions, and advise, but should not actively discourage particular choices simply because there may be a level of risk to the participant.  

Principle 4 – Recognition of informal supporters and advocates

This principle highlights the important role of informal supporters, advocates and the support network for people living with disability. In addition to formally recognised roles, where a person or group may be legally recognised as a supporter, others involved in a person’s life or care may also participate in the supported decision-making process.  

Principle 4 advocates that people in these categories should be acknowledged and respected. Strong informal support relationships may help avoid reliance on more complex formal supported decision-making arrangements, and avoid substituted decision-making. The involvement of people whom a participant knows and trusts may make it easier to convey support in a more tailored manner, and more effectively achieve positive outcomes. 

Principle 5 – Access to support

Whose responsibility is it to provide information to people requiring support? Recommendation 6.13 is that public advocates and public guardians should provide “information, education and training on supported decision-making to people requiring supported decision-making and their families, private supporters and representatives (present or prospective), disability service providers, public agencies, the judiciary, tribunal members and legal representatives”.  

The wide scope of this recommendation both highlights access to information as an integral aspect of decision-making, and indicates supported decision-making as best practice even outside support services.  

For providers, information and education may include accessibility aids such as Easy English or interpreted resources to help participants understand their rights, the decision-making process, and potential outcomes from each decision. These types of aids may also be useful additions for other areas of focus in the principles, particularly Principles 9 and 10 which focus on diversity and cultural safety. 

Principle 6 – Decisions directed by will and preferences

The DRC report asserts that “a principled approach to supported decision-making requires a person’s stated or perceived ‘will and preferences’ to be at the centre of decision-making“.  

This principle directs that, just as those without a disability are not required to rationalise their decisions or prove that their choice is in their best interests, people with disability should have the same rights to make decisions about their own life, even where the decision may not be the ‘best’ option.  

It’s important to understand that the will and preferences of an individual are those expressed or indicated by that individual, and this is not the same thing as an organisation’s view of what is in the ‘best interests’ of that person.  The ‘best interests’ approach should not be used, as it can override the choice of a participant, and take away their autonomy and right to dignity of risk.  

For situations where a participant may be unable to express their will or preferences, for example where they are medically incapable, non-verbal, or there is limited access to communication aids, processes should be in place to refer to what they want or would want, for example using care plans to record their choices in advance, using a care record to determine a pattern of choices they’ve made in previous situations, and their feedback about their care in those situations, or involving trusted support persons who can provide insight into what they would want.  

Principle 7 – Inclusion of safeguards

People living with disability may be at greater risk of abuse or undue influence when making decisions. Principle 7 highlights the importance of safeguards in supported decision-making processes, in recognition of the potential imbalance of power between participants and their supporters/representatives.  

Recommendations connected to the inclusion of safeguards include: 

  • Recommendation 6.9, which recommends decision-making representatives as a last resort and strict guidelines on represented decisions to protect the autonomy of participants, and  
  • Recommendations 6.35 and 6.36, concerning the elimination of restrictive practices, including as a method of coercion or to influence the behaviour of a person with disability.  

Principle 8 – Co-designed processes

Processes for supported decision-making should be designed with the input of various stakeholders who will be able to provide insight into their requirements for supported decision-making policies and procedures. That way, people with disability have the opportunity to share their lived experience, and how different approaches may impact their lives.  

Principle 8 specifically highlights the involvement of people with cognitive disability, their supporters and representative organisations in co-design, however best practice could also include the involvement of staff, and ensuring the group of people consulted reflects the diversity of the organisation and recipients of care. On an individual level, participants should also be given the opportunity to co-design their own experience with decision-making. 

Co-designing these systems should also be a continuous process. As the demographics of your organisation change, so too do the needs of participants.  So, feedback, complaints and consultation processes become a vital part of identifying areas of improvement, to ensure that the organisation’s supported decision-making processes still meet the needs of participants.

Principle 9 – Recognition of diversity

Principle 9 focuses on ensuring the diverse experiences, identities and needs of people with disability are considered and recognised. It is connected to Principle 10 (Cultural safety), but focuses more on the individual’s specific background, and how their varying needs and experiences intersect with one another.  

The principle recognises differing approaches may be necessary for different participants. Therefore, a flexible and adaptable approach to decision-making should be adopted for organisations to best respond to the diverse needs of their participants.  

Organisations should consider how they can tailor their existing processes to meet the different needs of each individual with disability.  For example, by giving participants with cognitive disability more time to make decisions so they can consider them in another environment, or access support to understand their decision options. Recommendations 6.1, 6.2 and 6.3 all connect to this principle, regarding the need for increased accessibility in information, resources and communication, particularly relating to Auslan interpreters, and access to interpreters more generally.  

Also included in this principle are mental health and trauma-informed care considerations, recognising that people with disability who are affected by mental health or have experienced trauma may require different support.  

Principle 10 – Cultural safety

Principle 10 places focus on First Nations people and culturally and linguistically diverse people with disability. In addition to addressing the diversity requirements of Principle 9, organisations should also evaluate the cultural safety and suitability of the service environment.  

Public Hearing 30 raised questions about the ways in which a person’s culture may impact their decision-making ability, and also how culture can act as a support in the decision-making process. Organisations should ensure that their supported decision-making processes and service environment are culturally safe, and sensitive to the cultural needs of each participant, maintaining connections to culture and community.  

One way for organisations to improve their cultural safety is by collaborating and connecting with local cultural organisations. Having an established network may support organisations by providing advice on culturally appropriate supported decision-making strategies, as well as providing access to people within a person’s cultural community who may act as informal supporters for that person when making decisions. 

Where to next?

Most of the reforms in the DRC recommendations are targeted at government level rather than provider level, but they do also indicate the direction of best practice for providers and possible next steps for reform.  

Current reform work in the Aged Care sector also has supported decision-making as a focus, reflecting a broad cross-sector scope and changing attitudes to decision-making. Recommendation 10.6 would codify supported decision-making in the National Disability Insurance Scheme (Quality Indicators for NDIS Practice Standards) Guidelines 2018 (Cth), codifying specific actions for providers.  

To aid providers in actioning their supported decision-making requirements, Recommendation 10.7 endorses a co-designed practice guide on supported decision-making for service providers that is consistent with the decision-making principles.  

Supported Decision-Making and SPP

In line with the increased focus on supported decision-making in both the DRC recommendations and the Aged Care sector, we’ve recently updated and expanded on our supported decision-making resources, including: 

  • Info: Supported Decision-Making (Easy English) 
  • Policy: Supported Decision-Making and Dignity of Risk 
  • Policy: Supported Decision-Making and Dignity of Risk (NDIS) 

Our Easy English resource in particular may be useful for providers to improve their communication around supported decision-making, particularly for providing information to those with increased communication barriers. 

Catch up on our previous DRC blog post entries:

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DRC: Complaints Management

Now that the Disability Royal Commission (DRC) has released its final report, we will be publishing some blog posts on a number of the report’s key themes.  

Our posts are intended to help providers understand the changes to the disability system that the DRC is recommending, so that they can consider whether they need to adjust or improve how they provide services.  It is also a great time for providers to  review their policies and procedures. Note that the Australian Government has not yet accepted the recommendations of the DRC, so they are subject to change further down the track.

This first post is about complaints management, and how providers can get on the front foot to ensure complaints processes are what they should be.

Complaints management principles

Recommendation 11.5 suggests that states and territories develop specific guidelines to help organisations implement complaint handling systems which are accessible and responsive to people with disability.

The DRC outlined ten core principles which the guidelines should reflect, which are:

  • creating a rights-focused complaints culture;
  • encouraging people with disability and others to speak up;
  • making adjustments to enable participation;
  • supporting the person with disability, their family and others in complaint processes;
  • respecting complexity, diversity and cultural difference;
  • providing clear information about how to complain, and multiple pathways to complain;
  • working respectfully and effectively alongside police;
  • conducting safe and inclusive investigations, that are trauma-informed;
  • providing tailored outcomes and redress; and
  • using complaints data to drive continuous improvement in service provision and complaint handling.

Barriers and accessibility in complaints and feedback

One of the key concerns outlined by the DRC was the lack of accessibility in complaints systems. They raised a series of concerns related to things such as:

  • inaccessible policies and processes,
  • a lack of options for raising concerns,
  • potential victimisation, and
  • fear of not being believed or treated or taken seriously, among other things.

To ensure that your organisation’s complaints management does not create barriers, regularly review your policies and procedures and check that they are in line with (and promote) the principles of natural justice.

It is also important to ensure that policies are well communicated and can be easily understood.  For example, adopting an Easy English complaints policies which addresses the communication needs of participants can assist in making your complaint handling processes easier to understand. 

Strengthening complaints systems

The Executive Summary of the DRC report contains recommendations for measures which NDIS Providers can implement to strengthen their existing complaints management systems, including the following:

  • Creating a dedicated complaints management team or individual
    This team or individual should be separate from those delivering services. Their primary role is to increase the engagement with participants and their support networks to ensure that complaints are addressed appropriately.
  • Prioritising complaints based on risk
    This involves assessing each complaint separately to determine its severity, and using a triage system to address complaints which have the most potential risk to participants.
  • Establishing lines of communication
    A common theme from the DRC’s investigation of complaints systems is confusion arising from lack of communication. This includes participants not knowing whom to contact, as well as not feeling comfortable to speak up.
  • Record keeping
    Strong record keeping practices, including documenting the conclusion and resolution of complaints, are central to good complaints management.
  • Organisational culture
    Developing a culture that encourages and welcomes feedback is essential to complaints management, and will help inform continuous improvement activities.

Responding to complaints

The DRC stressed the importance of adequately responding to complaints and concerns. Providers should acknowledge the complaint when it is made, and actively involve participants and their families in the investigation and resolution of a complaint.

Poor communication between service providers and participants can result in feelings of distrust and anxiety.

To address this, providers should communicate regularly with participants about the progress of their complaint and ensure that participants are aware of their rights in relation to complaints.

How we can help

We have a number of resources to help providers with complaints management:

  • Policy: Complaints Management
  • Info: Complaints Management
  • Policy: Complaints (Easy English)
  • Policy: Child Safe Complaints Management
  • Template: Complaints Register
  • Template: Complaints Information for Clients
  • Template: Complaint Process Tracking Form
  • Template: Complaint Submission Form
  • Template: Complaint Response Letter

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Latest from the Disability Royal Commission

The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (the DRC) is set to deliver its final report by 29 September 2023. Ahead of the final report, we’ve been tracking some of the common themes that have emerged from the latest Public Hearings, to identify likely recommendations that we might see in the final report.

Public Hearing 32 examined violence, abuse, neglect and exploitation of people with disability, and the role that provider policies and procedures play in safeguarding participants. Public Hearing 32 was the final time in the DRC’s process that service providers were examined, so it is a useful insight into the recommendations for providers that we might see in the final report.

There are some common themes throughout the Counsel Assisting submissions to Public Hearing 32 for which we have developed resources. Our resources will help providers to get on the front foot in terms of best practice service delivery.

Safeguarding

Preventing and responding to violence, abuse, neglect and exploitation of people with disability is not a new concept for NDIS providers, however Counsel Assisting submissions to the DRC identified a number of processes which should be implemented by providers to ensure that the rights of participants are upheld, including:

  • implementing proper recruitment, training and oversight processes to ensure that all workers understand and uphold the core rights of participants. This includes exercises such as conducting reference checks and querying gaps in employment history; and
  • implementing appropriate redress processes, including the important step of making apologies when redress is required.

Trauma–Informed Care

Public Hearing 32 introduced the concept of trauma-informed care to the disability sector, particularly in the context of cultural safety for Aboriginal and Torres Strait Islander participants. Providers should incorporate principles of trauma-informed care into all aspects of the organisation, recognising that everyone may have a history of trauma, and that everyone’s responses to trauma and needs arising from trauma will be different.

Establishing effective trauma-informed care procedures contributes both to a safer care environment for participants, and to care that is person-centred and tailored to the unique needs of each participant.

Supported Decision-Making

Supported decision-making is another area that has been closely examined by the DRC. Understanding each participant’s will and preferences was highlighted as central to supporting the decision-making process. Organisations should presume that every adult participant has the ability to make decisions that are directed by their will and preferences, unless there is evidence otherwise.  Organisations should implement processes to seek to understand and document each participant’s will and preferences, and then ensure that they and their families are actively involved in all decisions.

While it was not explicitly called for in the Counsel Assisting submissions, a clear emerging principle in this area is that substitute decision-making should be a last resort only.  An organisation’s supported decision-making processes should prioritise supported decision-making in partnership with the participant, and only utilise substitute decision-makers as a last resort, when someone is unable to assist in making a decision, or does not want to make a decision.

Human Rights & Dignity

Clearly understanding and protecting all participants’ human rights is an issue which has been consistently raised by Counsel Assisting submissions, and the DRC more broadly. Enshrining each participant’s human rights in policies and procedures is a core governance concept for NDIS Providers. The DRC has pointed out that, whilst providers should have a human rights policy, it is essential to ensure that the processes outlined in the policy are clearly communicated to, and understood by, all workers so that they are consistently implemented and followed in practice, throughout the organisation.

Co-design

Co-design was also a common theme throughout Public Hearing 32. There are some guiding principles of co-design which providers should follow, including:

  • Representation in the design process, particularly including people with lived experience and diverse cultural representation;
  • Effective leadership and acceptance of change;
  • Education and training for staff;
  • Empowering staff to make change;
  • Communication and information sharing to draw on the experiences and expertise of other providers; and
  • Monitoring, evaluation and continuous improvement.

For more information about co-design, see our blog post on the topic.

How we can help

We have developed and updated several resources to help you implement processes to address the above common themes. These resources include:

  • Policy: Safeguarding (Responding to Abuse);
  • Info: Safeguarding (Responding to Abuse);
  • Policy: Supported Decision-Making and Dignity of Risk (NDIS);
  • Policy: Supported Decision-Making and Dignity of Risk;
  • Policy: Trauma-Informed Care;
  • Policy: Trauma-Informed Care (Disability); and
  • Policy: Trauma-Informed Care (Child Safe).

We are also in the process of developing resources for:

  • Human rights and dignity of risk; and
  • Inclusive co-design.

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The new high intensity support skills descriptors

High Intensity Daily Personal Activities are the highest risk, and most personal in nature, of all supports delivered under the NDIS. To uphold the wellbeing of participants, providers who support participants with high intensity daily personal activities must ensure that workers who are not qualified health professionals have the necessary skills and knowledge to safely provide these supports.

In December 2022, the NDIS Quality and Safeguards Commission (the Commission) released revised skills descriptors for High Intensity Daily Personal Activities, outlining the skills and knowledge workers must have to deliver High Intensity Daily Personal Activities supports.

There are currently eight high intensity supports:

  • Complex Bowel Care;
  • Enteral Feeding Support;
  • Dysphagia Support;
  • Ventilator Support;
  • Tracheostomy Support;
  • Urinary Catheter Support;
  • Subcutaneous Injections; and
  • Complex Wound Care Support.

The revised skills descriptors

Each of the High Intensity Daily Personal Activities is supported by its own unique set of skills descriptors. The Commission’s document also lays out the context, scope and necessary training for each of the above supports.

Following the contextual information, the updated skills descriptors outline the behaviours which demonstrate the skills and knowledge each worker should possess. The skills and knowledge are divided into three segments representing a participant’s care journey: preparing to deliver supports, implementing the support plan, and reviewing the support.

Regulatory context

The revised skills descriptors provide more detailed guidance about the expectations of workers, and align with the requirements in Module 1 of the Practice Standards.

If your organisation provides High Intensity Daily Personal Activities supports, auditors may use the skills descriptors as guidance when performing a quality audit.

Who are the skills descriptors for?

The Commission has developed the skills descriptors for use by participants, auditors, providers, workers and trainers. For participants, they are useful for understanding the standard of care expected by the Commission, and using this information to assess their provider’s performance. For providers, workers and trainers the skills descriptors provide a standard by which skills and knowledge can be benchmarked.

How we can help

Following the release of the revised skills descriptors, we have developed a new self-assessment which providers can use to evaluate whether their workers have the adequate skills and knowledge to deliver High Intensity Daily Personal Activities supports. We’ve also updated our policy template to help providers ensure that their processes are aligned with the expectations of the skills descriptors.

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Looking back on 2022

The past year has been a time of significant change and challenge for the Australian community and health service sector. In addition to dealing with the ongoing impact of the COVID-19 pandemic, many areas were also affected by severe flooding. Meanwhile, the sector has also had to navigate a number of major regulatory changes. We acknowledge the resilience and dedication of our community and health service providers, to whom we are committed to providing services and resources to support them in their efforts. In this blog post, we will highlight some of the key areas we have focused on and look ahead to what’s to come in 2023.

Aged care

2022 has been a major year for aged care reform in Australia with key legislation introduced in July.  The Code of Conduct for Aged Care came into effect on December 1, 2022, and we have developed a self-assessment to help providers ensure they are meeting the requirements of this new code.

A series of governance requirements also commenced on December 1, and we have developed a suite of resources including policy templates and checklists to help providers get on top of these.

In addition, the Serious Incident Response Scheme (SIRS) was extended to home care and flexible care delivered in a home or community setting on December 1. In response, we published a new SIRS policy for home care providers. Looking to 2023, we will be developing new resources and assessment modules to help providers prepare for the revised Aged Care Quality Standards, which are currently in consultation draft form.

Disability services

In the disability sector, we developed guidance and a number of resources for the new NDIS emergency and disaster management standard. The emergency and disaster management standard has ongoing relevance, and our collection of resources, including an organisational emergency and disaster plan, and participant-specific risk assessment template, will help providers to implement the standard.

We’ve also developed resources to help providers publish policies in Easy English, which is an important tool for helping participants make informed choices and understand their rights. And we have provided information on the use of surveillance technology in this sector.

Child safe

In the area of child safety, we have developed self-assessments and provided updates on the implementation of child safe standards in each jurisdiction.

We have also looked at the National Quality Framework and discussed some upcoming changes to this framework, and we released a detailed self-assessment for the National Quality Standard.

ISO

We have released new self-assessments for the ISO standards, including ISO 45001: 2018 Occupational Health and Safety Management Systems, which can help providers to implement a best practice approach to occupational health and safety.

In 2023, we plan to extend our ISO offering, by releasing assessment modules for ISO 14001: 2015 – Environmental Management Systems and ISO 31000: 2018 – Risk Management.

Additionally, we have developed several new Towards Best Practice modules on topics such as Information Management and Privacy, to provide foundational guidance on good governance.

Until next year!

As the holiday season approaches, we would like to extend our best wishes to the NGO community. We are grateful to have had the opportunity to provide services and resources to support the important work you do. We are committed to delivering the best possible support to help you meet the various standards and regulations in your field, and we have a number of new self-assessments and resources in the works for the new year.

We hope you have a wonderful Christmas and holiday period, and we look forward to continuing to work with you in the new year. Happy holidays!

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Why your organisation should publish resources in Easy English

Many organisations can benefit from making key policies and procedures available in Easy English format. What is Easy English and why is it relevant for your organisation? Read on to find out.

What is Easy English?

Easy English is an accessible format, that uses images and simplified language to convey information. Easy English allows information to be understood by a broad range of audiences.

Easy English documents are particularly helpful for individuals with intellectual disability, but all kinds of organisations can benefit from introducing Easy English resources. The Easy English format is ideal for anyone who has difficulty reading and understanding written English, which can include people for whom English is a second language and people with lower literacy levels.

Why should your organisation develop Easy English resources?

Many service standards require key policies and documents to be made available to clients in a number of formats, and also require that clients understand their rights and responsibilities under these policies.

Making policies available online and in person is a great first step, however policies are often wordy and complex, meaning they are not truly accessible to clients with lower literacy levels. According to a 2011-12 study, around 44% of Australians have low levels of reading literacy. Creating Easy English versions of key policies and documents can help ensure that important information is available to everyone.

Tips for implementing Easy English materials

The Easy English writing style follows some important principles. Here are some key pointers to get you started:

  1. Keep sentences short.
  2. Try to explain one idea per sentence.
  3. Use everyday language and basic grammar.
  4. Use subheadings, bullet points and white space to break up the text.
  5. Use a simple font and layout.
  6. Use a large text size.
  7. Choose images that are easily understood and add meaning to each point.
  8. Include a definitions section for any complex words used in the document.

Some clients will be able to read and understand Easy English resources independently. Other clients may need some assistance from staff to read and understand the information.

How we can help

A number of Easy English policies and templates are available in the SPP Reading Room. These include:

  • Policy: Client Rights (Easy English)
  • Policy: Incidents (Easy English)
  • Policy: Incidents (Easy English) (NDIS)
  • Policy: Complaints (Easy English)
  • Policy: Privacy (Easy English)
  • Template: Emergency and Disaster Management Plan (Easy English)
  • Template: Child Rights (Child English)

Please contact us at team@bngonline.com.au, if you have suggestions or requests for Easy English resources you would like to see in the Reading Room.

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Surveillance technology and restrictive practices – what you need to know

The NDIS Quality and Safeguards Commission recently published a Practice Guide on the use of surveillance technology with respect to people with disability.

The Commission has observed that surveillance is commonly used, or proposed for use, for people with disability and in disability settings, primarily with the intention of ensuring safety, monitoring health, facilitating increased independence and preventing abuse and neglect.

However, there are a number of ethical and regulatory concerns associated with the use of surveillance technologies, thus prompting the Commission’s publication of the Practice Guide.

We’ve provided below an overview of the Commission’s guidance, as well as some important considerations for your organisation if you are thinking of using surveillance technology in your support settings.

What is ‘surveillance technology’?

Surveillance technology simply refers to any device which can record information about a person through electronic means. This can include:

  • CCTV cameras which capture audio and visual footage
  • Audio monitors
  • GPS devices which track a person’s location
  • Motion sensor alarms

When does use of surveillance technology facilitate the use of a restrictive practice?

While surveillance technology may be used by providers with the aim of preventing abuse and neglect, the Commission cites a number of studies which show limited evidence to support the effectiveness of the use of surveillance technology for this purpose.

Surveillance technology is not in and of itself a restrictive practice, however it may constitute a restrictive practice if its use has the effect of restricting the rights to freedom of movement of a person with a disability.

Under the NDIS Rules, the five regulated restrictive practices are seclusion, chemical restraint, environmental restraint, mechanical restraint, and physical restraint. The use of surveillance technology may be a regulated restrictive practice where it influences a person’s behaviour, stops them from accessing particular items or environments, or restricts their freedom of movement.

However, the use of surveillance technology is unlikely to constitute a regulated restrictive practice where it enables support or increases a person’s independence and freedom of movement.

The Commission provides as an example the use of a sound sensor that alerts staff when a person with disability who is at risk of falling and hurting themselves is getting out of bed. This would not be a regulated restrictive practice, as the device is being used to help staff to attend to the person and support them, and is therefore ‘enabling support’.

By contrast, if a sound sensor is installed on a fridge to alert staff to stop a person with disability from accessing food, this would constitute a regulated restrictive practice, as it is facilitating environmental restraint. Similarly, if an alarm is on a person’s door to alert a staff member to stop a person with disability from leaving their room, this would be a regulated restrictive practice, as it facilitates seclusion.

Providers should note that any use of surveillance technology that facilitates the use of a regulated restrictive practice must be clearly identified in a participant’s behaviour support plan, and authorised in accordance with relevant State or Territory requirements. See the Commission’s Regulated Restrictive Practices Guide for more information.

Right to privacy and meeting legal obligations

There are a number of ethical issues associated with the use of surveillance technology, not least the individual’s right to privacy.

Surveillance technology (CCTV in particular) can be very invasive and can compromise the personal privacy of a person with disability. The use of CCTV monitoring in a person’s bedroom is especially problematic and may give rise to criminal liability.

Legislation that must be considered in relation to surveillance technology includes State and Territory privacy laws, the UN Convention on the Rights of Persons with Disabilities and the NDIS Act 2013.

The NDIS Practice Standards also require that participants access supports that respect and protect their dignity and right to privacy. To meet the Privacy and Dignity Practice Standard, providers must:

  • Implement processes and practices that respect and protect the personal privacy and dignity of each participant.
  • Advise participants of confidentiality policies and ensure participants understand and agree to what personal information will be collected and why, including recorded material in audio and/or visual format.

Best practice considerations when using surveillance technology with people with disability

Human rights considerations should inform any usage of surveillance technology in the disability services context. Best practice usage of surveillance technology includes taking the following steps:

  • Adhering to any relevant privacy laws
  • Acting in the best interests of the individual, taking into account their preferences
  • Balancing safety and autonomy, including genuine involvement of the individual in discussions
  • Considering options for the individual to deactivate and reactivate the device, to allow them additional privacy, where possible
  • Considering who can access the recordings, where recordings are stored, and for how long
  • Considering the security of the surveillance technology in use
  • Regularly reviewing the use of surveillance technology to ensure it is the least intrusive option available
  • Where surveillance technology is facilitating the use of a regulated restrictive practice – ensuring it is thoroughly outlined in the participant’s behaviour support plan, and reviewed at least every 12 months, or as the participant’s circumstances change
  • Ensuring staff training goes beyond simple usage of the device, and includes legal and ethical considerations

Providers should be mindful that surveillance technology should never be used as a substitute for limited staffing or to save on costs; nor should it replace human contact, personal care or social interaction, leading to increased social isolation. Providers should also consider the limitations of surveillance technology, which can include faulty and unreliable devices, ineffective technology leading to delays in staff responses, and the potential for devices to be removed, damaged, forgotten or hacked.

For further detail on the matters discussed in the blog post, including a checklist for considering the use of surveillance technology, we suggest providers access the NDIS Quality and Safeguards Commission’s full Surveillance Technology Practice Guide.

For guidance on the NDIS Practice Standards, please access SPP/the NDS Quality Portal for self-assessments and helpful resources.

Access key resources on SPP.

The importance of a director’s work health and safety obligations

Following the death of Anne Marie Smith in 2020, two directors of a disability health service provider have recently been charged with criminal neglect and failure to comply with a health and safety duty of care. This tragic case has put a spotlight on the health and safety obligations of care providers and their directors.

Employers

Employers have a number of responsibilities regarding the duty of care they owe employees, visitors and others. SafeWork SA Executive Director, Martyn Campbell, speaking on the matter, said:

“…employers have a duty to provide a safe system of work to their workers, visitors and others who come into the workplace. This included Annie in this case. Her home became a workplace as soon as the carer entered it to do her work.”

It is important for providers to bear in mind the extent of their duty of care. Providers must ensure that where services are being delivered in homes, safe systems of work must still be followed, even though services may be out of the direct line of sight of the provider.

Directors

Directors, CEOs and governing body members of an organisation have an additional duty, known as the ‘due diligence’ requirement, to ensure that an organisation has work health and safety systems in place and that those systems are followed. In the case of Anne Marie Smith’s death, it is alleged the company directors failed in this duty.

The ‘due diligence’ requirement originates from section 27 of the model Work Health and Safety Act, which requires that officers of an organisation exercise due diligence to ensure that the organisation complies with work health and safety legislation.

Exercising due diligence involves:

  • acquiring up-to-date knowledge of WHS matters,
  • understanding the nature and risks of the operations of the organisation, and
  • ensuring the organisation uses appropriate resources to minimise WHS risks.

An officer must take an active and inquisitive role in WHS matters to satisfy their duty.

An ‘officer’ includes governing body directors and the secretary, as well as other people who make or take part in decisions which affect the whole organisation. People who sit on a governing body board or a committee on a voluntary basis are still regarded as officers.

The officer duty recognises that officers have corporate governance responsibilities and, through their decisions and behaviour, strongly influence the culture and accountability of the organisation. They can influence important decisions on the resources that will be made available for the purposes of WHS, and the policies that will be developed to support compliance by the organisation with the model Work Health and Safety Act.

How can Standards and Performance Pathways assist?

The officer duty is therefore an important responsibility of board and governing body members. We have developed a new self-assessment module in SPP to help governing body members and other officers ensure they are complying with their responsibilities under section 27 of the WHS Act.

The module guides officers through the key components of section 27(5) of the WHS Act and provides additional examples of ‘reasonable steps’ that may be taken when executing the duty. The module also details the kinds of resources, processes and procedures that officers will need to ensure their organisation has in place.

Review your obligations in SPP.