Compulsory information gathering processes
The National Disability Insurance Scheme Quality and Safeguards Commission (Commission) receives information from a range of sources including through complaints made by or on behalf of participants, reportable incident notifications or Commonwealth, State or Territory government departments and agencies.
When the Commission receives information that indicates possible non-compliance by a NDIS provider, it may decide to make preliminary inquiries to determine whether and how to respond.
Those inquiries may be informal requests for information to be provided voluntarily, or formal compulsory requests, which a provider must comply with unless it has a proper reason not to.
There are a range of compulsory information gathering processes available to the Commission. They include:
Requiring a provider to prepare and provide a detailed report about one or more reportable incidents.
Requiring a provider to carry out an internal investigation in relation to an incident and to provide a report on the investigation to the Commissioner.
Requiring a provider to engage a qualified, independent expert at the provider’s expense to carry out an investigation in relation to an incident and to provide a report on the investigation to the Commissioner.
Requiring a provider to produce information or documents or requiring a person to appear before a specified Commission officer to answer questions.
A failure to comply with the latter requirement, without a reasonable excuse, is an offence and carries a significant penalty of 30 penalty units. The maximum penalty for a corporation is up to five times that amount.
The circumstances that might qualify as a reasonable excuse are limited but include where:
Giving the information or producing the document might tend to incriminate the person or expose them to a penalty.
There is an ‘emergency situation’ which means compliance is not possible.
There is ‘unavoidable delay’ in compliance.
A person may also resist giving information or producing documents to the Commission if the information or the documents are subject to legal professional privilege.
What is legal professional privilege?
Legal professional privilege may be relied on by a person to resist giving information or producing documents to the Commission if doing so would reveal confidential communications between the provider and its lawyer that were made for the dominant purpose of giving or obtaining legal advice, or for use in litigation or regulatory investigations or proceedings.
The rules about legal professional privilege are strict and hinge on principles relating to:
the confidentiality of the document or communication
whether it was prepared or made for a privileged purpose
whether that purpose was the dominant purpose for which it was prepared or made.
Disputes often arise about whether these requirements are satisfied for a given document or communication, and the courts have frequently been asked to rule on whether a document or communication is covered by legal professional privilege.
Providers who are required to carry out an investigation and report to the Commissioner or who receive a compulsory notice requiring them to give information or produce documents should:
Ensure they have appropriate processes and procedures in place to maintain legal professional privilege.
Consider whether the information, documents or communications they propose to produce to the Commissioner are subject to legal professional privilege before producing them.
Our article has useful guidance on the principles that apply to legal professional privilege claims.
What’s next
Given the Commission’s stance on non-compliance, providers should be prepared for:
continued regulatory action
the possibility of lengthy investigations into potential non-compliance, including compulsory notice processes
more severe regulatory responses, where serious non-compliance is substantiated (for example, civil penalty proceedings).
What you should do now
NDIS providers must be ready to respond appropriately to regulatory action commenced by the Commission and, where available, to claim legal professional privilege. This includes ensuring communications prepared for a privileged purpose attract legal professional privilege, and that systems and controls are in place to prevent privilege from being lost.
Providers should:
Review their processes and procedures for managing internal information, documents, communications and other records.
Review their processes and procedures for managing internal and external communications and know when to involve their legal team or external lawyers.
Have processes and procedures in place for responding to regulatory action commenced by the Commission (or another Australian regulator).
Be ready to implement structures to protect valid claims for legal professional privilege.
If you receive a request for information or documents from the Commission, seek legal advice immediately before responding.
If you are or have been subject to an investigation by the Commission and have already provided copies of communications or documents and are concerned about whether privilege has been lost, or if you have any other questions about the investigation process, contact us.
Read our NDIS in focus series:
Part one: Priorities and penalties – what providers need to know.
Part two: Regulatory priorities, restrictive practices and reporting requirements.
Read our recent case update on the Federal Court’s decision requiring Oak Tasmania to pay a pecuniary penalty of $1.1 million for contraventions of the NDIS Act.