Conflict of Interest in the Provider Business Models with Michael Perkins

For a deeper understanding of these topics, consider attending NDIS Reforms, Compliance and Governance Concerns in a Changing Landscape, where Michael Perkins shares his expertise.

How can service providers with guardianship roles ensure they avoid conflicts of interest while managing their clients' affairs?

What are the key differences between coercion and coercive control, and how can service providers recognise and prevent these behaviours in their practices?

The key difference between coercion and coercive control lies in the degree and pattern of behaviour.

In New South Wales, both coercion and coercive control can constitute abusive conduct and are subject to criminal penalties.

It is important if provider relationships with their client is to mitigate this risk, that they have clear processes to give the participant or their personal representatives advocate information and time to consider the options provided and make an informed choice. 

To mitigate the risk of such behaviours in provider-client relationships, service providers must establish clear processes that ensure participants, or their personal representatives, have access to information, sufficient time to consider their options, and the ability to make informed decisions.

This requires thorough documentation of the service relationship, including the structure and steps involved in onboarding an NDIS participant. In this regard, case management obligations in the NDIS sector share similarities with those in other professions, such as law, healthcare, and allied health.

Can a service provider contract out of fiduciary responsibility to a client?

It is challenging to conceive a scenario where a service provider could fully contract out of fiduciary responsibility, given the compliance and regulatory obligations imposed on NDIS providers by the NDIS Act and the Quality and Safeguards Commission.
That said, fiduciary and non-fiduciary relationships can exist currently in service provider and NDIS participant relationships. 

It is one of the commercial outcomes of contract management for NDIS service providers that they identify the processes by which they mitigate fiduciary responsibility and establish the objective decision-making competence of the NDIS participants with whom they work and their legal personal representatives.

How should a service provider approach obtain informed consent from a NDIS participant?

To obtain informed consent from an NDIS participant, service providers must carefully assess the participant’s decision-making competence.

It is important to have regard to the provisions of the United Nations convention of the Rights of People with Disabilities and the Australian Decision Making Principles, for all Australians including those with disabilities. 

It is important to consider the provisions of the United Nations Convention on the Rights of Peoples with Disabilities and the Australian Decision-Making Principles, which apply to all Australians, including those with disabilities.

The conclusion of this reflection is that relying solely on the assumption of legal capacity when you are on notice of a disability, is fraught with danger. Once you are on notice of a disability, it is necessary to resolve the decision-making of competence of the person with whom you are contracting. 

If there is doubt about the decision-making competence of the NDIS participant, it is important to establish a relationship with their personal representative including plan nominees. 

It is then essential to address any potential conflicts of interest and establish clear management processes between the appointed plan nominee and the participant’s attorney, guardian, or other legal decision-maker, depending on the Australian legal jurisdiction in which the participant resides.

These issues will be examined in greater detail at the Legalwise NDIS Conference, with Michael Perkins presenting on the topic "Conflict of Interest in Provider Business Models." 

The fundamental approach to mitigating conflicts of interest when working with NDIS providers or participants is also applicable to other sectors, such as healthcare, professional services, and aged care.

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