The team at D-Stress Solutions, our sister company, are diving into the latest NDIS General Issues report to find what participants and health organisations need to know in the second half of 2021.
Main points:
- Clear Liability for the quality of Independent Assessments and subsequent receipt of services left stranded between a triangle of entities.
- Independent Assessors will also be robbed of their right to legal indemnity protections by their employer.
- The Independent Assessment process is going to be a one-size-fits-all-script that the government will give assessors to read off of, removing the need for professional competency requirements.
- Personal Doctors, GPs, Psychiatrists, and other medical specialists, will be removed from the Assessment Process altogether.
- This means they are less likely to be able to attend court as witnesses if there is a dispute.
- The changes appear deliberately designed to disadvantage the legitimacy of claims for support based on psychosocial grounds.
A legal analysis by the team here at D-Stress Solutions, surveying publicly available information published by the NDIS, reveals upcoming changes to Australia’s Disability welfare scheme will categorically make it harder for Participants to prove damages in a Court of Law, where related to the quality and receipt of any disability services received.
In what information has been published by the NDIS so far regarding changes to the Independent Assessment process; all clear indication of ultimate liability protecting Australian participants is strategically left suspended in a grey area between Services Australia; the NDIA, and, commercial entities recognised as Independent Assessment providers.
By seeking to remove the requirement for official diagnosis paperwork to be witnessed during initial and repeat consultations, proponents of the NDIS are functionally removing the involvement of personal GPs and Doctors from the assessment process, as well as any other medical professionals — also making those documents less likely to be used as evidence in disputes, and hampering the ability of GPs to act as witnesses in court.
We interpret this will particularly limit the legal rights of participants presenting with psychosocial considerations, who often depend wholly and completely on diagnosis paperwork to provide legitimacy of a claim.
Too Many Cooks
We interpret also that this dilution of Liability across multiple bodies means any Participant who suffers harm by way of inappropriate decisions, made during any stage of the assessment or delivery process, is far less able to straightforwardly sustain a claim against any of the aforementioned bodies; or combination thereof.
Based on information published by the NDIS, we additionally flag our interpretation that from July, Services Australia will not be liable for the decisions of the NDIA; similarly, the NDIA will not be liable for the appropriate delivery of services (nor for acting or failing to act as directed by Services Australia,) and finally, Independent Assessors will not be held to any professional competency guarantees offered by medical or health training, where related to the wellness outcomes of the participating consumer.
We interpret these changes are deliberately designed to minimise the efficacy of negligence and unconscionable conduct claims, made against the NDIS, from 2022 onwards.
Tipped to Start in July, Maybe
According to what information is publicly available regarding the upcoming Independent Assessment changes to the NDIS, the new measures will begin to roll out from July 2021.
Taking Doctors out of the Process
The removal of diagnosis paperwork from the Independent Assessment process greatly diminishes the ability of Participants to rely on their own personal Doctors as secondary advocates, and the eligibility of those same Doctors to participate in Court matters involving their patient(s).
The Government’s decision to design a standardised questionnaire, to be used in every participating Assessor’s office across Australia, can easily be described in another way: the Government is simply handing Assessors scripts to read off of.
We interpret this will also diminish the ability of the Assessor to act autonomously at all, as well as infringing on their rights to access indemnity protections.
These changes also ensure that 3rd parties take on the labour of ensuring consistency across government communications, as currently seen in the requirements placed upon APM in the DES program.
Proposed Reforms Simply Spin
Simply, we don’t know yet what will stand in Court — however, it’s clear that executive and high-level proponents of the NDIS are greatly invested in minimising their exposure to risk.
This in itself does not consist of any illegality, but does further ratify the sense of uncertainty the Disability community currently feels ahead of July, Australia-wide.
By: D-Stress Solutions Managing Facilitator Jonathon Davidson
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