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What the delay to nationally consistent worker screening means?
In early July, the NDIS Quality and Safeguards Commission (the NDIS Commission) announced a further delay to the introduction of nationally-consistent worker screening arrangements for the NDIS, now due to commence on 1 February 2021. Given the challenges of COVID-19 in 2020, this seems like a reasonable proposition – we’ve all been extra busy just trying to keep the lights on. However, given the gaps in the current arrangements for worker screening, a further delay increases the risk that people with disability may unknowingly be exposed to workers already deemed to be “excluded”.
“How can that be?” – I hear you ask. Before we go there, let us recap a little first.
Where are things at right now?
Registered NDIS providers in all states and territories (except for Western Australia) have responsibilities and obligations in relation to screening their workers under the NDIS Commission. These are set out in the NDIS (Practice Standards – Worker Screening) Rules 2018. As part of the NDIS (Practice Standards – Worker Screening) Amendment Rules 2020 interim arrangements are in place in each State and Territory.
While the interim arrangements differ in each State and Territory, the NDIS Commission requires all registered providers to identify which roles and jobs need a check. These “risk assessed” roles: include:
- Key personnel (for example: the CEO)
- Roles where normal duties include the delivery of direct supports to a person with disability (for example: accommodation direct support staff and other services and supports); and
- Roles for which the normal duties are likely to include more than incidental contact with people with disability (for example: reception services at an ADE).
What does the future promise?
DSC has previously written about the merits of the NDIS National Worker Screening Check.
The NDIS Worker Screening Check, when fully implemented, will enable participants, families, registered and non-registered providers to have the information needed to consider whether a prospective worker poses an unacceptable risk to a person with a disability. Information considered is said to include:
- Convictions (including spent and quashed convictions)
- Other police/ court information (including current or pending charges)
- Apprehended Violence Orders
- Child Protection Orders
- Child protection information
- International police checks for those who have worked overseas (when feasible)
- Workplace misconduct (which comes to light through complaints and serious incident reporting).
Using this information, the NDIS Commission will make a determination regarding the suitability of workers, and whether to grant a worker clearance. Screening will be based on a national approach and a screened worker will be able to deliver services in any State or Territory without having to undergo multiple checks.
The NDIS Worker Screening Check will be accompanied by an NDIS Worker Screening Database that will:
- Include a register of cleared and excluded workers from all states and territories
- Support National monitoring of criminal history records for all workers
- Enable NDIS providers across the country to verify worker clearances from one place
- Assist NDIS providers with record-keeping requirements.
Importantly, while the new NDIS Worker Screening Check continues to impose obligations on registered providers, for the first time in many jurisdictions, it will allow self-managed participants and non-registered providers access to the same information as registered providers to enable them to make fully informed decisions about the workers they choose to employ.
What are the risks between now and then?
The most significant gap in the current arrangements relates to the ability for self-managed participants and non-registered providers to access the information they need to ensure their chosen worker does not pose an unacceptable risk.
Self-managed-participants and non-registered-providers can request that prospective workers present current and valid National and International police checks, and a clearance for working with children (different in each State and Territory). However, currently, in a number of states, self-managed participants are not able to apply to State and Territory based Worker Screening Units (however described) to determine if a prospective worker has already been deemed “excluded”.
Generally, Worker Screening Units have access to information from workplaces (such as the outcome of investigations), that may fit into the into the category of “workplace misconduct”, and in many cases, it could be argued that this is the most critical information of all.
So why is “workplace misconduct” information so critical? It is well established that people with disability are subject to far to higher rates of abuse, neglect, violence and exploitation than other members of the community. We also know that there are many barriers to people with disability accessing justice following abuse or neglect. People with a disability have reported not being taken seriously by police, and that the lack of understanding of disability by police means people with disability often feel intimated by the justice process.[1] People with an intellectual or cognitive disability, or those with communication impairments are unlikely to be able to provide the evidence needed to access justice. In many organisations, a workplace investigation and action under conduct and disciplinary policies is the only mechanism available to exclude workers found to have acted inappropriately.
Currently in both Victoria and Queensland, arrangements preclude non-registered providers and self-managed participants from accessing information through Worker Screening Units that may have considered workplace misconduct information to exclude a worker. For example:
- In Victoria, the Disability Worker Exclusion Scheme (DWES) holds the names of all workers deemed “excluded” from working with people with a disability. To access the information contained on the DWES database and seek a clearance for a prospective worker, you must provide your NDIS Registration Number.
- In Queensland, “Yellow Cards” are available to workers cleared to work with people with a disability. Given that applications can only be lodged by the service provider, self-managed participants cannot request clearance from a prospective worker.
- Another benefit of these schemes is that by linking the employer to individual workers it enables them to monitor ongoing suitability (not just a snapshot in time) and receive notifications when there is a change to a worker’s suitability status.
Where to next?
DSC continues to welcome any move by the NDIS Commission intended to strengthen the quality and safeguards framework supporting people with a disability, however the gaps identified in the current arrangements mean the greater the delay, the greater the risk to many people with disability.
[1] Disability Access to Justice Research Consortium Scoping Paper – Research needs in access to justice for people with disability in Australia and New Zealand, Feb 2018
