88 The National Disability Insurance Scheme (NDIS) supports people with a ‘permanent and significant disability’. A person must be under the age of 65 at the time they seek to become a participant in the NDIS. However, if a person is already in the NDIS when they turn 65, they may elect to remain in the NDIS or enter the aged care framework.
89 Participants can access information and referrals to services, as well as individualised plans and supports. The National Disability Insurance Agency (NDIA) works with a participant to develop a plan. It considers the extent to which families, carers and informal networks may reasonably be expected to assist. However, risks to the participant’s wellbeing, and the impact on a participant’s level of independence will be taken into account in evaluating whether informal carers may reasonably be relied upon.
Safeguards and protections
90 The Australian Government, in collaboration with the NDIA and state and territory governments, is working towards a national quality and safeguards framework that would enable people with a disability to live free from abuse, neglect and exploitation. In the interim, the NDIA uses existing state and territory quality and safeguarding frameworks in making decisions relating to the registration of service providers. Each of the existing quality and safeguarding frameworks requires that serious incidents are reported. These include physical assault and inappropriate behaviour or inadequate care by caregivers or staff. However, unlike in aged care, there is no legislative requirement to report alleged or suspected assaults.
91 Additionally, in discussing the making of a plan with a participant, NDIA staff and contractors are required to take into account a person’s ‘vulnerability’ (including whether they are at risk of elder abuse). For instance, where a participant is identified as ‘vulnerable’, a shorter timeframe may be set for review of a participant’s plan, or arrangements may be put in place for regular contact between the NDIA and the participant. In short, an approach which facilitates jointly identifying and exploring risk is encouraged. Operational guidelines also set out the responsibilities of NDIA staff when they suspect or receive information about abuse, neglect or exploitation. The NDIA’s primary role is to report abuse, neglect or exploitation to responsible state and territory authorities. NDIA staff will also consider whether there are any implications for the participant’s plan.
Nominees under the NDIS
92 Supported decision-makers are provided for under the National Disability Insurance Scheme Act 2013 (Cth). Under this scheme, participants can access individualised plans and funding for access to support services. A ‘plan nominee’ can act on behalf of the participant in relation to the making, review or replacement of an individualised plan, or the management of funding for supports under the plan. A ‘correspondence nominee’ can act on behalf of the participant in other matters.
93 There are a number of safeguards relating to nominee appointments under the NDIS. Nominees must only be appointed when it is not possible for participants to be assisted to make decisions for themselves. A nominee must act in accordance with the wishes of the participant. Nominees may be appointed by the participant, or on the initiative of the CEO of the NDIA. The instrument may impose limits on what a nominee can do under the appointment, and may also specify that it is valid for a limited time, or until a specified event occurs. Where a nominee is appointed on the initiative of the CEO, the nominee may only act if they consider the participant is not capable to do so.
94 A plan nominee must, when required by a notice from the CEO, give the NDIA a statement relating to the disposal of monies paid to the nominee on behalf of the participant. A failure to provide the statement is an offence.
95 The scheme also provides that the CEO may suspend or cancel the appointment of a nominee where there are reasonable grounds to believe the nominee has caused, or is likely to cause, physical, mental or financial harm to the participant.
96 The ALRC is interested in comment on whether participants in the NDIS are experiencing elder abuse, and whether the safeguards and protections provided under the scheme are a useful model to protect against elder abuse.
Question 22 What evidence exists of elder abuse being experienced by participants in the National Disability Insurance Scheme?
Question 23 Are the safeguards and protections provided under the National Disability Insurance Scheme a useful model to protect against elder abuse?