Linda Burney (Barton, Australian Labor Party, Shadow Minister for Families and Social Services) Share this | Hansard source

I rise to support the National Disability Insurance Scheme Amendment (Strengthening Banning Orders) Bill 2020. I move:

That all words after "That" be omitted with a view to substituting the following words:

"whilst not declining to give the bill a second reading, the House calls on the Government to:

(1)take responsibility for all 'deaths by neglect' within the National Disability Insurance Scheme, which is a Federal Government program; and

(2)immediately respond to the report to the NDIS Quality and Safeguards Commissioner by Alan Robertson SC into the adequacy of the regulation of the supports and services provided to Ms Ann-Marie Smith, who died on 6 April 2020".

The amendment is moved on behalf of the member for Maribyrnong, who is unable to attend this sitting of parliament. In moving this amendment, I stand with the member for Maribyrnong in stating that it is impossible to overstate the seriousness of this issue and that the government must put in place the safeguards needed to protect Australians who are accessing the NDIS, and I stress how serious the situation is.

This bill has its origin in the tragic death of Adelaide woman Ann-Marie Smith. It is a partial response to the shortcomings in the system that led to Ann-Marie's death. And when I say 'partial response', the emphasis should be on 'partial'. There is nothing inappropriate about the changes proposed, but they are largely peripheral to the reform and the bolder action that needs to be taken to prevent further, similar lonely deaths of Australians with disabilities. To properly illustrate just how peripheral these changes are, I need to discuss the sad details of Ann-Marie's passing.

Ann-Marie Smith had cerebral palsy. She lived alone and she relied on a carer for all her needs. She was an NDIS participant and her package entitled her to six hours of support a day. She was 54 years old when she died on 6 April. Some details of her death and last days and weeks remain unclear. But this is what we do know. She had been confined to a cane chair for 24 hours a day for more than a year. The chair had become her toilet. It is unimaginable.

On 5 April, Ann-Marie's carer attended her home and, finding her unresponsive, called for an ambulance. At the Royal Adelaide Hospital, she had major surgery to remove the rotting flesh and severe pressure sores she had on her body. She went into palliative care and died the next day. The pain must have been unimaginable. Ann-Marie died of severe septic shock, multi-organ failure, severe pressure sores, malnutrition and issues connected to her cerebral palsy. The police referred to her death as having occurred in disgusting and degrading circumstances. Only upon admission to hospital and a complaint made by the attending doctors to the health authorities were any alarms triggered about the NDIS participant's care or lack of it. Unfortunately for Ann-Marie, it was too late.

There has been a characteristic lack of transparency about the authorities' actions in this case from the NDIS minister, Stuart Robert. We should safely assume that, on the day of Ann-Marie's death, when the Health and Community Services Complaints Commissioner was notified, Mr Robert was also notified. Despite this, the case was not made public until the police probe triggered media reports more than a month later, in mid-May. It took a week after that for the NDIS watchdog, the NDIS Quality and Safeguards Commission, to sanction the company, the NDIS provider, that was being paid for Ann-Marie's care. The penalty—a measly $12,600 fine. It's insulting, it's disrespectful and it's pathetic.

The South Australian government launched a state inquiry, but the minister refused to launch a national equivalent, despite another death by neglect in a house in New South Wales of another NDIS participant. I tend to think the quality and safeguards commission, the so-called watchdog, would have been happy to leave it at that. But, under pressure to do something, Minister Robert said the NDIS Quality and Safeguards Commission would look into Ann-Marie's case. This amounted to Stuart Robert suggesting the watchdog look into her case, where the watchdog's own neglect and inaction played a starring role. If the watchdog had done its job, this provider and carer would not have been able to neglect Ann-Marie to her death. She would have experienced a living hell—an absolute living hell.

On 25 May, Labor and the member for Maribyrnong publicly pointed out the unworkable conflict of Mr Robert's solution and demanded an independent inquiry. The next day the watchdog announced that an independent former judge would be reviewing what happened, not the watchdog. This was some progress. It is not the national inquiry we need, though, and it is no comfort to the loved ones of another NDIS participant, David Harris, who was found in his Parramatta apartment after he passed away after being unilaterally kicked out of the NDIS. Mr Harris died in his home after his NDIS supports were cut off because he missed a review meeting, and he was not found for months after his death.

In the immediate aftermath of Ann-Marie's death, the provider was happy for all the blame to be hung on the carer who worked for them. Initially Stuart Robert's disability watchdog, the NDIS Quality and Safeguards Commission, was also happy for the provider to be given a small fine and to leave it at that. Sadly, the real disability watchdog work in this case has been left to the South Australian Police, and they only got called in after the tragedy had already occurred. Following the public scandal, the outcry, and the strong work of the police, the disability watchdog had a longer think about it, and eventually deregistered the provider. And now we have this bill.

The bill allows for the banning of a carer from further NDIS work in a situation where the carer is no longer employed by the NDIS provider. It is a worthy change, but it would not have prevented Ann-Marie's carer from neglecting her because, at that point, she was an employee. I note that the carer currently has bigger things to worry about. She's in home detention, awaiting trial, charged with manslaughter. That is because, as noted in this case, the conscientious authority has been the South Australian Police.

It's taken six months for this government to bring forward these minor legislative changes to a second reading. In that time, the South Australian Police have investigated, got a brief of evidence together and charged the carer. How sad that the ultimate authority looking out for people with disability is not the disability watchdog; it is the police—it takes a crime for anyone to take notice.

The other proposed change in this bill would allow the pre-emptive banning of a person from disability work due to their actions in an adjacent, non-disability area. This would have caught out Ann-Marie's carer, because she had previously been banned from Domiciliary Care, South Australia, due to accusations of theft. This change would, of course, have prevented Ann-Marie's specific carer from neglecting her, but it would not prevent another carer from doing the same and being tolerated or encouraged to do so by a substantive provider not held accountable by the watchdog.

A cynic might suggest it's the NDIS minister's attempt to appear to be a man of action and to appear to be doing something so that Ms Smith and others may not have seemed to have died in vain. Even now, this bill does not even amount to shutting the gate after the horse has bolted. These changes alone will not prevent future abuse, neglect, pain and possible death. These changes just make things a little better. These changes are painting the gate after the horse has bolted. These legislative changes presuppose that the determinative cause of Ms Smith's death was that a good watchdog had its hands tied, and these changes will untie them.

The sad truth, though, is that we have a disability watchdog that is not performing its role and a seven-year-old government turning a blind eye. The second the circumstances of Ms Smith's demise came to light, the NDIS minister, Stuart Robert, should have come down on the NDIS Quality and Safeguards Commission like a thunderbolt. In short, the minister should be making his commission do its job. Instead, through exercises like this one, the minister is doing the opposite of that. He is actually providing cover to the watchdog, which has been found sleeping.

Why won't the minister demand the NDIS Quality and Safeguards Commission get out there to keep providers and workers accountable? Who knows. Perhaps he thinks it will be expensive. Perhaps he plans to turn the whole thing into an app, as the digital innovator that he thinks he is. Or perhaps he doesn't care about the disability portfolio.

This brings me to another sad truth: when it comes to portfolios involving vulnerable Australians such as aged care and disability, the Australian people get the dregs of Morrison's ministry. Why do we have to wait for tragedies for these portfolios to be treated seriously and for them to be elevated to people who can do the job?

As a reaction to Ms Smith's death, this bill is, frankly, underwhelmingly disrespectful. At the risk of mixing animal metaphors, the elephant in the room here is this government's watchdog and its failure to perform its role. All institutions can tend towards entropy. The fault lies at the minister's feet, firstly, for allowing this to happen and, secondly, after the alarm had been sounded by these deaths, in failing to demand anything be done differently.

This watchdog has powers and resources to do its job well. No doubt there are many hardworking, well-intentioned people there. By their own account, the watchdog, the NDIS commission, already has broad powers. A media release of the commission dated 21 May states:

The NDIS Commission has broad powers to take compliance and enforcement action when NDIS providers are found not to have met their obligations under the NDIS Act 2013.

Yet this watchdog has only ever issued one fine to a provider—the one given to Integrity Care over Ann-Marie's death—despite more than 8,000 complaints in the last two years.

Providers routinely fail to report disability deaths to the watchdog in a timely manner, and there is seemingly little consequence. This government funds the executive of the watchdog to jet around, but does not ask them to do unannounced spot checks on the industry to keep everyone safe. Their own independent review of Ms Smith's death, conducted by Alan Robertson SC, made a series of sensible recommendations, including proactive spot checks, community visitation and that more than one carer be responsible for a vulnerable person with a disability. This was the review initiated under the watch of Stuart Roberts, yet there has been nothing but deathly silence from the minister as to whether the government accepts them.

In closing, I say that death by neglect of NDIS participants in their homes reveals a real need for the government to provide an NDIS watchdog that is willing to use its teeth. An overwhelming majority of carers and providers do the right thing. They do a great job in trying circumstances. All we ask of the watchdog is that it keep an eye on the sector and weed out the bad ones who do not do the right thing, and that it to do that before they do a great amount of harm.

Labor will support this legislation, though it would likely have made little difference in the deaths of Ms Smith and Mr Harris. A common link in all these cases is a lack of an active watchdog supervising the NDIS and performing active quality control, including unannounced spot checks on providers and the carers working for them. Under the hapless reign of Minister Stuart Robert and after seven years of Liberal mismanagement of the NDIS, the commission is acting more like a purse puppy than a watchdog. The commission has still not launched an inquiry into the death of Mr Harris. It is an outrage. Putting the watchdog to work is the real action required by this government to prevent further disability tragedies. As my second reading amendment, I move:

That all words after "That" be omitted with a view to substituting the following words:

"whilst not declining to give the bill a second reading, the House calls on the Government to:

(1)take responsibility for all 'deaths by neglect' within the National Disability Insurance Scheme, which is a Federal Government program; and

(2)immediately respond to the report to the NDIS Quality and Safeguards Commissioner by Alan Robertson SC into the adequacy of the regulation of the supports and services provided to Ms Ann-Marie Smith, who died on 6 April 2020".

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