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Conversations about whether we need to separate the delivery of different types of support to participants drift in and out of any discussion about the NDIS. The overall idea is we want to move away from closed systems, where there is less visibility and oversight of potential abuse and neglect. We want people to be able to make choices about one service, without breaking down their whole support system. On the other side of the coin there is another principle: choice and control should mean that people are able to make informed decisions about purchasing a range of supports from a single provider, even if it means additional risk.
One of the most interesting recommendations from the 2019 Tune Review was the suggestion that the NDIS Rules should make it clearer where it would be a conflict of interest for a provider to deliver both Support Coordination and other supports. The way this has been interpreted by many is the idea of a formal separation of Support Coordination and other supports. While there is a longstanding best practice precedent that someone employed as a Support Coordinator shouldn’t influence participants to purchase specific services (particularly from their own organisation), we know that sometimes this still happens. The suggestion these services should be completely separate throws up some interesting quality and safeguarding questions.
The Tune Review acknowledged that there are cases where it’s not practical or appropriate for Support Coordination and other funded services provided to be split - specifically for cultural reasons, in very thin markets or where there is a lack of choice. Nevertheless, the recommendation forces us to ask some pretty fundamental questions about conflict of interest:
- If it makes sense for Support Coordination, does it also make sense for other supports to be separate? The Joint Standing Committee Report on Supported Independent Living also recommended a separation of some service provision
- Where does choice and control balance with protecting participants from the conflict of interest of providers?
- Is a compliance model the best way for the NDIA and the Commission to achieve this, or would more education and support for participants be better?
- How can providers manage a potential Support Coordination conflict of interest in a positive and participant-centred way?
Managing conflicts
There is already some guidance and requirements for providers around conflict of interests, including in the Code of Conduct Guidance Material and several Practice Standards. Sometimes perceived or real conflict of interest is managed through robust policy and protocol, governance and business structures or through genuine engagement with participants and transparent working arrangements. But conflict comes in many flavours that it is often less easy to spot.
The practices of navigating conflict of interest in a market-driven Scheme are tricky, but the fundamental reasons of why we should are more simple. In the development of the Quality and Safeguarding Framework, the two most relevant principles were a human rights approach (upholding the rights and dignity of people with disability), and the presumption of capacity for people to exercise choice and control. At times there can be tension between these two concepts: safeguarding against exploitation whilst enabling participants to take informed risks and exercise choice.
Compliance vs Choice and control
The quality and safeguarding challenge is striking a delicate balance between a compliance approach from the Commission (mandating what services a provider can deliver) and honouring the fundamentals of choice and control. There are occasions where a person will choose to purchase services from the same organisation that delivers Support Coordination, for very good reasons. Is it appropriate to restrict that legitimate choice for the majority, in order to protect people from providers using Support Coordination in the wrong way? The vast majority of conflicts in service provision aren’t malicious, they are everyday people trying to do the right thing in a sometimes difficult situation. Any lines in the sand the Commission draws have to be managed, tracked and policed. And do we want a market with a mandated separation between Support Coordination and other service provision?
The Commission has a number of levers to pull to ensure the right things happen in the market. Compliance and enforcement are at one end of the spectrum, but an education and development approach is where longer-term transformation and benefits are going to come from. Using a strong compliance approach with registered providers to try and eliminate all risk of conflict of interest is unlikely to be a practical or appropriate response. While it might ease the immediate problem it doesn’t build on the foundations of the Framework, and get us to our end goals. Our ultimate aim is a market - and a world! - where providers understand why it’s not appropriate to treat people as captured participants with little genuine choice, and where participants have the knowledge, confidence and capacity to demand more. Perhaps then, applying a blanket compliance approach on who can deliver what services might not be the best path.
Even though we are in an environment of choice and control, providers still have huge amounts of power. Subtle reductions in the choice offered is one way that organisations (often unintentionally) increase vulnerability. This happens through increased dependency on the organisation or their services, curbed development of skills and knowledge of participants, and creating a closed system that can decrease the chances that a person resists or reports abuse. Having service delivery models and processes that are not structurally transparent is not very different to a pre-NDIS environment where choice was often limited. Whilst this separation may seem like a less favourable economic outcome for providers, genuine choice can keep people safer, potentially saving money in the long run on incidents, investigations and internal compliance measures.
Taking risks
Throughout the Tune Review, the value of Support Coordination shone through as an independent function that is vital to the success of the Scheme, for people to get the most out of their NDIS Plan and also set the foundation to progress as savvy consumers of NDIS and mainstream services in the future. An important part of Support Coordination is supporting people to make decisions about the risks they take in their lives. An NDIS Plan that is executed without taking informed, transparent and proportional risks is a missed opportunity for everyone. Those risks may include choosing services that have a real or perceived conflict of interest, if it can be managed appropriately.
There is no black and white in this: there are providers out there delivering Support Coordination which is of a fantastic quality, alongside delivering other NDIS supports. We also know of providers using Support Coordination to funnel people into other supports they deliver. Sometimes those other supports are great, sometimes not. Unfortunately it isn’t so easy to spot as “Support Coordination delivery + other service delivery = bad”, or “no Support Coordination with other services = good”. In practice, things are much more complex than that.
Practical steps for Providers
Providers can take matters into their own hands. The decision to deliver Support Coordination alongside other services should be discussed, modelled, considered, tested with draft scenarios and conflict of interest policies and documentation, and embedded in more structural separation like the ones in Sally’s article. The practical steps providers can take include:
- Making a decision in partnership with the participant to only deliver Support Coordination or only deliver other supports, not both. This can be based on what supports both parties agree can have most positive impact.
- Having a seperate line of management for Support Coordination, all the way up to the CEO or Board. This keeps decisions and visibility separate in most everyday situations.
- Clearly and explicitly declare the conflict of interest to the participant. This means talking about it and setting aside time to have a discussion, not burying it on page 14 of the Service Agreement.
- Documenting that you’ve offered a minimum number of other options to the participant, as well as documenting the reasons why the person picked your service(s).
- Staying away from ‘referral partners’, ‘preferred service delivery partners’, ‘approved service partners’, handshake agreements to recommend, or anything that might create the perception of reduced genuine choice.There are other best practice resources available on managing Conflict Of Interest, including from NSW Council Of Social Services (this resource is from 2017, and pre-dates the NDIS Commission). The recommendation from the Tune Review highlights how complex the issue is, how delicate the balancing act facing the NDIS Commission is, and how little precedent there is to guide us in this new area.
