Decoding the Code of Conduct

From 1 July 2018 a new NDIS Code of Conduct was introduced as part of the NDIS Quality and Safeguarding Framework. The Code sets out expectations for safe and ethical services and supports for both NDIS providers and workers. So what do you need to know?

Why do we need a Code of Conduct?

Like all things quality and safeguarding let’s start with a bit of background. Throughout the NDIS Quality and Safeguarding Framework 2016 consultation, stakeholders voiced the need to set out minimum expectations for all providers of NDIS-funded supports. The Framework reflects on how a statutory code of conduct promoting safe and ethical service can have both preventative and corrective effect. This is done by clearly setting expectations of providers whilst having a mechanism for excluding those using unacceptable practices from the NDIS market. Not every NDIS provider will undergo quality audits, so a mandatory code of conduct helps to benchmark the quality and safety expectations for all. This means that issues relating to safety and quality can be dealt with, regardless of organisation size or whether or not a provider is registered. It also prohibits harmful behaviours that may not constitute a crime, but are unacceptable in the NDIS, such as exploitative and unethical practices.

What does the Code of Conduct say?

The NDIS (Code of Conduct) Rules 2018 require that people working in the NDIS must:

act with respect for individual rights to freedom of expression, self-determination and decision-making in accordance with applicable laws and conventions
respect the privacy of people with disability
provide supports and services in a safe and competent manner, with care and skill
act with integrity, honesty and transparency
promptly take steps to raise and act on concerns about matters that may impact the quality and safety of supports and services provided to people with disability
take all reasonable steps to prevent and respond to all forms of violence against, and exploitation, neglect and abuse of, people with disability
take all reasonable steps to prevent and respond to sexual misconduct.

Who needs to adhere to the Code of Conduct?

The Code of Conduct applies to:

Registered NDIS providers and their employees
Unregistered NDIS providers and their employees
Community partners of the NDIA – LAC and ECEI providers
Providers delivering information, linkages, and capacity building (ILC) activities
Providers delivering Commonwealth Continuity of Support Programme services for people over the age of 65
NDIS Commission employees.

What can providers and workers do to ensure they comply with the Code of Conduct?

NDIS providers are expected to take all reasonable steps to support its workers in meeting their obligations under the Code and the NDIS Commission provides a range of resources to help providers spread the word. The NDIS Code of Conduct Guidance for NDIS Providers explores each standard, giving a number of illustrative case studies. So if you aren’t sure how a code standard relates to your organisation, consider taking a look at this document. Here is an example provided of a breach of the act with integrity, honesty and transparency standard.

Scenario: As part of her NDIS Plan, Tamina has funding to purchase a new powered wheelchair to replace her old one which is outdated and has a battery malfunction. Tamina visits a wheelchair supplier and talks to a sales representative about her needs. Tamina uses her wheelchair almost exclusively indoors or on paved outdoor surfaces, but the sales representative suggests that she may be interested in a four wheel driven wheelchair with larger tyres which gives additional traction, stability and comfort on uneven surfaces such as at parks or dirt walking tracks. He notes that for this week only this particular model is 20% off, which makes it only a couple of hundred dollars more expensive than the entry level model that Tamina had been looking at and as such is excellent value-for-money. Tamina is unsure whether she really needs such an elaborate model, and says she’ll go away and think about her options.

Tamina then receives follow-up phone calls from the sales representative three times over the following week asking if she’s made up her mind and reminding her that this special offer ends in only a few days. Tamina feels pressured and talks to her Local Area Coordinator.

The Local Area Coordinator encourages Tamina to raise her concerns with the NDIS Commission, who investigate further and find that the incident may constitute unconscionable conduct and refer the matter to the Australian Competition and Consumer Commission (ACCC) for further investigation and action.

Source: NDIS Commission Code of Conduct Guidance for NDIS Providers, 2019 p. 22.

The NDIS Commission also provides guidance for Workers in the NDIS Code of Conduct Guidance for Workers. Providers can use these scenarios in training, staff meetings and procedures so workers can start to apply these standards in practice.

The NDIS Worker Orientation Module also provides an overview of the Code of Conduct from the Participant’s perspective. It only takes 90 minutes and a certificate of completion can be used as evidence if working for multiple providers. It is mandatory for registered providers, so embed it in your induction system and develop a system to track completion. Unregistered providers might also consider completion to ensure the same baseline knowledge of their obligations under the Code of Conduct.

What happens if someone breaches the Code of Conduct?

That really depends on the breach. It is important to recognise that anyone can make a complaint to the NDIS Commission about a breach of the Code (and other quality and safeguarding concerns). The NDIS Commission has the power to investigate any matters relating to registered and unregistered providers and workers. It can impose penalties, including banning workers, de-registering providers and seeking civil penalties. In determining its response, the NDIS Commission considers a range of factors including:

the impact on the Participant and the broader community
whether there is any immediate or ongoing risk to the well-being of the Participant
the seriousness of any non-compliance and the actual or potential harm or consequences
how far below acceptable standards the conduct falls and the extent to which the provider/worker contributed to the risk (such as whether it was intentional, reckless, negligent or a mistake)
potential to return the provider to full compliance, and as soon as possible.

Non-compliance can be addressed through a range of measures, the NDIS Commission says it takes a responsive and proportionate approach to regulation by applying the strongest actions to the most serious issues and breaches. There are currently 18 Banning Orders, two Compliance notices, three Suspensions of Registration, one Revocation of Registration and three Re-Registration Refusals published on the Commission’s website. Failure to comply with the NDIS Code of Conduct can also result in significant civil penalties – the current maximum penalty for an individual is $52,500 and $262,500 for a corporation (NDIS Commission Compliance and Enforcement Policy, NDIS Commission Infringement Notice Policy, 2019).

BUT we really don’t want to end on that note. Whilst it is important to be aware of the NDIS Commission’s regulatory powers, this should not be treated as merely a compliance exercise. A more critical focus should be on supporting workers to understand and uphold people’s human rights and empowering them to take steps to keep people safe. The NDIS Code of Conduct is a great place to start having these candid conversations that will ultimately improve the quality and safety of services. There are a number of resources to help you with these discussions, so get started today.