Records are a key indicator of compliance with law and regulations. Records are also one of the main sources of information relied on by auditors, tribunals and courts to verify that an individual has been cared for appropriately.

Still, record keeping and information management systems can often be overlooked. This is particularly the case when providers’ capacity and resources are stretched, and focus is directed on service delivery.

Registered NDIS providers are required to keep a range of records, including records about complaints and incident management. There are also a number of quality indicators under the Core Module of the NDIS Practice Standards which require documentation in order to demonstrate that the criteria for the indicator have been met. Indeed, it is arguable that some form of record is required for the majority of indicators under Division 2 (Governance and Operational Management) of Part 2 of National Disability Insurance Scheme (Quality Indicators Guidelines) 2018.

The process of writing a policy, or reviewing an existing policy, focuses attention on how regulatory requirements will be incorporated and reflected in the organisation. This is important, but conformity with the NDIS Practice Standards requires a provider (and a provider’s staff) to demonstrate how regulatory requirements are reflected in day-to-day practices. 

Typically, for policies relating to service provision, providers must develop and implement processes that support implementation of the policy, train staff on requirements and monitor that procedures are being followed.

Recognition that people with disability have the right to determine their own best interests is central to the NDIS. This includes the right to exercise choice and control and to be involved in decision-making processes that affect them and (where possible) make decisions for themselves. Providers are expected to support and empower clients to exercise choice and control and dignity of risk. 

Challenges arise where a client makes a decision that has, or is likely to have, adverse consequences or there is an insufficient time to support the person to make a decision themselves (i.e. during an emergency).

Providers must ensure that policies governing choice, control and decision-making are supported by processes and procedures that provide clear guidance on the indicators that a person may need assistance to make decisions, the different ways in which support to make decisions can be given (including the role of advocates) and when and how to involve substitute decision-makers.

Providers should consider strategies to build the capacity of staff to support client decision-making and if the client’s plan can be utilised to develop their decision-making abilities.

A restrictive practice is any intervention that has the effect of restrictive the rights or freedom of movement of a person with disability, with the primary purpose of protecting the person or others from harm (typically to manage challenging behaviours). They include the use of seclusion, as well as chemical, mechanical and physical restraint. Such practices can represent a serious infringement on basic rights to liberty and security.

The NDIS Quality and Safeguarding Framework aims to reduce and eventually eliminate the use of restrictive practices. 

Recent inquiries examining the care and safety of vulnerable persons (i.e. Aged Care Royal Commission, Disability Royal Commission, Oakden) have highlighted concerns about the use, and in particular the unauthorised use, of restrictive practices. However, while there is general acceptance that these practices encroach on human rights, knowledge as to what a restrictive practice is, when a behaviour support plan is required and processes for authorising restrictive practices varies.

Providers that use regulated restrictive practices when delivering supports should be aware of how positive behaviour support plans are developed and the process in their jurisdiction for obtaining authorisation to use a restrictive practice.

Providers must also ensure relevant staff are trained on the strategies to address the individual needs (and behaviours of concern) of clients they work with and that when a regulated restrictive practice is used, it is the least restrictive response in the circumstance and used for the shortest possible time.

This commentary is general in nature and provided for informational purposes only. It is not intended to be comprehensive and does not constitute legal advice.  You should seek legal or other professional advice or consult with the appropriate government authority if you are unsure about how the issues raised in this commentary apply to the circumstances of your business.