NDIS provider fined $2 million after client died from choking

The highest civil penalty ever imposed on an NDIS provider has been handed to a South East NSW-based not-for-profit, after one of its clients died from choking in Canberra.

Valmar Support Services Limited was fined a total of $1,916,250 by the Federal Court of Australia on Wednesday (22 January) after contravening numerous sections of the National Disability Insurance Scheme (NDIS) Act 2013.

Justice Elizabeth Raper said it failed to ensure 13 workers had the training to provide mealtime support to three NDIS participants known to be at risk of choking.

Valmar operated a residential group home on Hemmings Crescent in Richardson, ACT, between 2016 and 2020 where the three participants lived, Justice Raper said.

Each of the three, all men aged in their 40s, had intellectual disabilities and were known to be at risk of choking when they had food or drink.

On 14 May 2020, one of the men choked on a toasted salami and cheese sandwich that was prepared and given to him by a Valmar support worker.

He died three days later and his cause of death was recorded as choking on food.

Valmar had known he was at risk from choking since 2008, Justice Raper said.

“Valmar also exposed [the other two participants] to considerable risk of harm over a long period,” she said.

Justice Raper said the essence of the complaint was that “Valmar failed to train its employees at all as to how to safely feed these men with known risks of choking”.

“It is not a case where there was some but inadequate training undertaken, rather none at all. There is no explanation for this. There cannot be,” she said.

“The entire scheme centres around the provision of high-quality support services. Such services cannot be provided, if the workers who provide them, are given no training. The whole scheme fails.

“The seriousness of this failing cannot be understated. It is from this fundamental failure, that a number of the other contraventions arose.”

On Thursday (23 January), NDIS Quality and Safeguards Commissioner Louise Glanville welcomed the $1.9 million penalty and said it was the highest-ever civil penalty imposed on an NDIS provider.

She said in the most serious cases like this, the commission would take strong action against providers who failed to provide safe services and support for people with disability under the NDIS.

“The participant’s death is a tragedy that could have been prevented had appropriate procedures and staff training been in place,” Ms Glanville said.

“NDIS participants put their trust in providers to deliver safe and high-quality supports. We urge all NDIS providers to understand their legal obligations to ensure delivery of a high standard of services and supports.

“As the NDIS regulator, we will forcefully uphold the rights of people with disability to ensure they are provided safe and high-quality services and supports. Failure to meet these obligations is unacceptable and, in cases like this, will result in substantial penalties for providers.”

Justice Raper said Valmar accepted it committed 24 contraventions of the NDIS Act.

Valmar is a not-for-profit organisation that has its registered office in Tumut, NSW and works across the ACT and South East NSW.

In a statement released on Thursday, it said it was “deeply saddened by this incident”.

“We fully accept the penalty handed down by the NDIS Quality and Safeguards Commission,” Valmar said.

“Following this tragedy, we provided the victim’s family with compassion, support, and care. At the time, we made psychological support available to clients and affected staff.

“We have run a thorough audit of all processes and procedures related to food management and rolled out renewed extensive staff training in client swallowing and dysphasia.”