An NDIS provider will pay the largest ever penalty of its kind over the death of an intellectually disabled man, who choked on a toasted salami and cheese sandwich.
The man died in May 2020, three days after being fed by workers at a residential home operated by Valmar Support Services in the Canberra suburb of Richardson.
The disability and aged care provider admitted numerous shortcomings, including improperly trained staff, after being pursued by the NDIS Quality and Safeguards Commissioner in the Federal Court.
She noted the penalty was low given the seriousness of the breaches and their fatal results, saying the court was likely to impose a much higher fine next time over similar conduct.
The judge described the resident’s death as a terrible event.
“Valmar did not provide the level of supports they were required to provide under the NDIS, leading to very grave and tragic circumstances where one of the residents died,” she said in her judgment.
The man was non-verbal, with an intellectual disability, autism, type 2 diabetes and Prader-Willi syndrome, a genetic disorder linked to an excessive appetite.
Dietary and meal-time management plans prepared for the man recommended cutting soft or moist food up into small pieces.
“It’s important that I’m supervised when eating, as sometimes I force food into my mouth too fast and a choking hazard is present,” his quick-reference guide read.
Valmar and 13 inadequately trained staff placed two other residents in danger of choking by failing to include information provided by dieticians in their eating and drinking plans, Justice Raper said.
The firm had not upheld the fundamental purpose of the NDIS scheme, which was to provide high quality support services, she found.
“Such services cannot be provided if the workers who provide them are given no training,” the judge wrote.
“The whole scheme fails.”
There was a need to send a clear message to Valmar and other disability support providers about the consequences of a failure to train, audit or supervise compliance with dietary plans, the judge said.
In imposing the penalty – which had been agreed by the NDIS commissioner and Valmar – she noted the firm had no prior breaches of the same type and it had taken steps to improve its training, assessments and compliance.
The NDIS commission says it’s the biggest civil penalty imposed for the death of an NDIS participant
Commissioner Louise Glanville said the regulatory body would take strong action against providers who did not provide safe services and support to those with disabilities.
“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,” she said.
“Failure to meet these obligations is unacceptable and, in cases like this, will result in substantial penalties for providers.”
Valmar has not responded to a request for comment.
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