ABC Investigations/By Anne Connolly and Ninah Kopel
- In short: Former judge Jennifer Boland found the NDIS Quality and Safeguards Commission failed to take action to close a program that was unlawfully restraining children with disabilities.
- The review was set up in September last year after Four Corners aired footage of a teenager being held face down on the floor by six workers.
- What's next? An investigation by the commission into Irabina remains open and could result in further action being taken against it.
A damning review has found the NDIS Quality and Safeguards Commission failed to close a controversial program that put children with disabilities at risk of death despite reports from officials and families that it was using prohibited restraints, including pinning children to the ground face-down.
The review, was established after Four Corners revealed in September last year that Melbourne's Irabina Autism Services was unlawfully restraining children with autism and intellectual disabilities as part of a controversial therapy it had imported from the US.
Former judge Jennifer Boland was asked to review the NDIS Commission's regulatory response, ultimately finding multiple failures to act which meant the program remained open, putting children "at risk of death or serious harm and infringed human rights".
The ABC obtained shocking CCTV footage of a non-verbal teenager with an intellectual disability being held face-down on the floor by six workers.
Eighteen children aged, on average, between 10 and 14 were kept in small, windowless rooms for hours on end as part of Irabina's "Severe Behaviour Program". If they had an "uncontrolled behaviour", staff wearing headgear and sometimes other protective equipment, would restrain them by pinning them to the ground.
The review found that concerns about the Severe Behaviour Program were expressed "shortly after commencement" in 2019 by numerous reputable bodies such as the National Disability Insurance Agency, the Victorian Senior Practitioner and Behaviour Support Officers.
The program continued to operate until April 2022.
The review also found the NDIS Commission had received more than a dozen complaints from families and workers about Irabina Autism Services but "in many instances, complainants have not received a response at all, or in a timely manner".
NDIS Commission officers only visited the site once and failed to take any regulatory action beyond educating the provider.
Acting NDIS commissioner apologises to families and children
NDIS Commissioner Tracey Mackey told Four Corners the commission had shut down the Severe Behaviour program when it found out the provider was using prohibited restraints on children.
However, the review says that it was Irabina that closed the Severe Behaviour Program in April 2022 after a state regulator, the Victorian Senior Practitioner, did an audit and found it had breached registration conditions.
Victoria has since made it a criminal offence to use prohibited restraints such as those used at Irabina.
Ms Mackey resigned in February, just days before the Boland review was completed.
Tracy Mackey resigned as NDIS Quality and Safeguards Commissioner in February.(Four Corners: Mat Marsic, file photo)
The acting NDIS Commissioner, Michael Phelan, apologised to the families and children "for the systemic factors that – despite the best efforts of individual NDIS Commission staff at the time – let people with disability down" and said the review delivered some "incredibly tough but important lessons for the NDIS Commission".
Disability Discrimination Commissioner Rosemary Kayess said the NDIS Commission should be working towards eliminating the use of restrictive practices rather than mandating their use on people with disability.
"It's really quite damning the way that we can accept the use of restrictive practices in the disability space," she said.
"It is not something that would be accepted in any other situation but in disability, we seem to be able to, as a community, say, it's OK to authorise the use of violence against people as a means of treatment."
Disability Discrimination Commissioner Rosemary Kayess.(ABC News: Ninah Kopel)
Families still in the dark about what happened to children
Petra Chard's son Jadon attended the Severe Behaviour Program in 2020 when he was 14. His mother filmed how he was restrained by workers at their home as part of his therapy.
Although pleased the review had exposed the failures of the NDIS Commission, Ms Chard said families are still in the dark about what happened to their children.
"The review looks at all of the regulatory processes within the commission but we still don't have any answers for the children and their families," she said.
"Where is the investigation into what the children went through? And their families?"
Jadon Chard with his mother Petra.(Four Corners: Mat Marsic)
The NDIS Commission is continuing to investigate Irabina and may take further regulatory action however it's unclear whether families will be interviewed as part of that process.
After the Four Corners broadcast, the NDIS Commission banned two executives — Irabina's former CEO Deb Goldfinch and her daughter — from working in the sector.
Former Irabina Autism Services CEO Deb Goldfinch was banned from working in the NDIS along with her daughter after the Four Corners program went to air.(Supplied)
However, Ms Boland said that, as far as she's aware, "no investigation to date has been instituted in respect of any other Irabina staff including behaviour support practitioners who may still be working in the disability sector to assess their suitability to do so".
Ms Chard said it is "absolutely horrific that workers that perpetrated these practices are still working in the industry".
"I think that is an absolute shame on the NDIS."
Even though the Severe Behaviour Program was shut down, the review found that restrictive practices continued elsewhere at Irabina, which Irabina said was due "to the difficulty in shifting the culture of some behaviour support therapists".
'They were psyching themselves up, like a boxing match'
Emily Dive's son Lachlan, who has autism and ADHD, attended the Severe Behaviour Program at Irabina for two and a half years starting from age 11. However, she said nobody from the NDIS Commission or the review had contacted her about what she witnessed and the impact of the program on her son.
Ms Dive says she was desperate for help to cope with Lachlan's behaviours.
"I was led to believe that the professionals at all levels were using best practice and that the risks to Lachlan were minimised," she said.
"NDIS funded approximately $1.3 million for Lachlan to attend the program and I question why due diligence didn't occur to ensure the program was appropriate, safe, and value for money."
Lachlan Murrell with his mother, Emily Dive.(Supplied)
She says Irabina told her it was safer to have Lachlan restrained by multiple carers and that she witnessed her son being restrained several times by between four and six workers.
"I could see the team (of carers), it looked like they were psyching themselves up, like a boxing match," she said.
Lachlan's mother could see what was happening from the observation room through a one-way mirror and says the episode was also filmed.
"They were telling me this is what has to be done, that this will help Lachlan," she said.
"I'm embarrassed that I put my faith and trust into an organisation to deliver what was deemed a necessary treatment," she said.
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The review found that "there did not appear to be any rigorous investigation of either the efficacy of the program or the experience or expertise of those implementing the program" which was described as being delivered "at exorbitant cost".
Ms Boland said families who have children with a severe disability such as those who participated in the Severe Behaviours Program, "were faced with enormous physical, financial and emotional challenges in sourcing suitable programs for their children and ensuring their best interests were met."
Ms Dive said that now that the review had confirmed that human rights were breached, she was seeking further advice about possibly taking legal action.
Not issuing infringement notice was 'key regulatory failure'
The NDIS Commission released a nine-page summary of Ms Boland's report, which runs to more than 70 pages. The summary has sections redacted, including parts of the executive summary and recommendations, with the commission saying it is for privacy reasons.
Ms Boland said underfunding, a shortage of staff and a poor IT system contributed to the mistakes made in dealing with Irabina.
The acting NDIS Commissioner, Michael Phelan , said many of the practices detailed in the review that led to the delays and failures by the commission to act against Irabina no longer exist.
In October 2021, plans were in place to issue an infringement notice to Irabina following "a thorough investigation of the significant complaints concerning prohibited restrictive practices" but it didn't happen.
Ms Boland said that failure to proceed was the "key regulatory failure of the commission".
"If issued, an Infringement Notice may have resulted in the earlier cessation of the Severe Behaviour Program".