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Last year, ABC’s Four Corners program aired a disturbing Investigation into Irabina Autism Services showing children with autism and intellectual disabilities being unlawfully pinned to the ground as part of a controversial therapy funded by the NDIS. Following the broadcast, the then NDIS Commissioner Tracy Mackey appointed former judge, the Hon Jennifer Boland AM, to conduct an independent review into the NDIS Commission’s handling of the case. The review investigated the NDIS Commission’s response to reportable incidents, complaints and restrictive practices relating to Irabina Autism Services. The NDIS Commission has recently published a redacted overview of the findings entitled - Overview Report of the Boland Review, but says it will not publish the full report as it contains protected information.
The document is a convoluted read. But never fear. We have done the hard yards to distill the key points for you.
Background
Irabina Autism Services operated programs for children and young people with autism in Victoria including a “Severe Behaviours Program”. The program which commenced in 2019, was modeled on a USA program conducted by the Marcus Autism Center. The program employed the use of restrictive practices such as seclusion as well as high risk, prohibited physical restraints. Complaints were made about Irabina to the NDIS Commission from as early as October 2020. The use of unauthorised restrictive practices also came to the attention of the Commission earlier that same year. Yet Irabina’s use of prohibited restrictive practices continued until mid 2021, with the Severe Behaviours Program in operation until 2022.
Review findings
System problems
Many complaints about Irabina were not responded to in a timely manner, which left families feeling unsupported. The review found some of these communication delays to be unacceptable. While the NDIS Commission had received 13 complaints about Irabina, it appears the status of a complaint across departments was poorly captured. The Commission’s Operating System has separate modules for complaints, incidents, compliance, and investigations. So, while a complaint might be marked as closed by one branch member when it was escalated to another department in the Commission, it was not actually a closed matter. The Commission’s inadequate and dual IT systems were found to cause both duplication and fragmentation in reporting and responding to matters.
Staffing issues
The review found that the NDIS Commission’s teams had insufficient staffing to ensure providers comply with the Act and Rules. There was also significant staff turnover. The NDIS Commission Victorian Behaviour Support team was said to have been comprised of just 3 people. The situation was made more difficult by the restrictions imposed by the COVID19 pandemic.
Failure to issue an infringement
The review found that while an investigation was conducted into Irabina, for unknown reasons the investigator's recommendation to issue an infringement notice was never implemented. The review describes the NDIS Commission’s failure to issue an infringement notice in October 2021, as the key regulatory failure. Had the infringement notice been issued, it may have resulted in the Severe Behaviours Program being shut down sooner. The Victorian Senior Practitioner also supplied the Commission with a damning report into Irabina in July 2022, which was said to warrant regulatory action and potential banning orders. However, the responsible officer did not act on this information.
Expertise and efficacy
The report raised concerns about the lack of rigorous investigation into the efficacy of the Severe Behaviours Program and the expertise of those who implemented it. It says the program placed participants at risk of death or serious harm and infringed human rights. Going forward, Boland recommends that programs for autistic children and young persons should be carefully evaluated for clinical efficacy and safety. Currently, people delivering specialist behaviour support services are assessed against a Capability Framework rather than being required to hold formal qualifications, meaning many practitioners are not regulated by AHPRA. The review calls for further scrutiny on who is delivering these high risk supports and recommends such programs should be subject to evidence-based assessment before being eligible to receive funding through the NDIS. This would safeguard participants from enrolling in unsuitable programs or programs administered by unqualified people.
Better support for families needed
The report acknowledges that families of children and young persons that participated in the Severe Behaviours Program face enormous physical, financial and emotional challenges in sourcing suitable programs for their children. It says improved and timely access to the Commission when an issue arises was a priority for them. The report says consideration should be given to a parent/carers user group to facilitate communication between parents and the Commission.
Official Visitors
The report suggests the NDIS Commission consider the feasibility of establishing an Official Visitor program (also known as Community Visiting). This isn’t the first time this has been recommended. A review was conducted into an NDIS Community Visiting Scheme back in 2018, and was more recently recommended by the Disability Royal Commission.
What action has been taken?
Irabina ceased using prohibited restraints and changed management after its internal review in June 2021. It also ceased the Severe Behaviours Program in about April 2022 following receipt of the Victorian Senior Practitioner’s audit report.
Temporary Banning orders were executed against two Irabina executives in September 2023, these were replaced by permanent banning orders in December 2023. This permanently prohibits them from being involved in the provision of supports or services to NDIS participants.
Victorian legislation now makes engaging in a prohibited restraint a criminal offence and gives the Victorian Senior Practitioner authority to bring proceedings for breaches of the Disability Act.
The NDIS Commission has received additional funding to employ more staff and is said to be progressing “a new policy proposal” for a fit for purpose IT system. Behaviour support staff and others have improved delegation to be able to play a more active role in following up or issuing infringement or compliance notices.
A Complaints Function Advisory Group has also been established, which includes lived expertise. It has reportedly led to significant change to the complaint model, including improved accessibility and timeliness in complaint response.
Although steps have now been taken to issue banning orders to two Irabina executives, Boland says she is not aware of any other investigation into other Irabina staff. These include behaviour support practitioners who may still be working in the disability sector. It should be noted that the NDIS Commission is still actively investigating Irabina, to determine whether further regulatory action should be taken against the provider and its former key personnel. Though it is unclear whether this will extend to assessing the suitability of former Irabina practitioners.
The NDIS Commission response
The NDIS Commission accepted the findings of the report and acknowledged its handling of matters has not always met community expectations. This has been attributed to the Commission’s immature system, processes and under-resourcing during its establishment years which has led to a fragmented approach to regulating providers.
Acting NDIS Quality and Safeguards Commissioner Michael Phelan remarked that “The Boland report delivers some incredibly tough but important lessons for the NDIS Commission and attributes the inadequacy of the regulatory response – at least substantially – to inadequate resourcing, staffing levels, information technology and record keeping systems.
While it is noted in the report at paragraph 40 that ‘many of the structural and other impediments which led to the delays and failures to act against Irabina no longer exist’, I still believe that we can do better.”
Commissioner Phelan said that the NDIS Commission would immediately adopt all of the recommendations from the Boland Report.
Read the full response here.
