NDIS support service fined $1.9m after ‘tragic’ choking death

Inadequate training was found culpable for the “terrible” choking incident that claimed the life of an intellectually disabled man back in 2020.

Valmar Support Services, which operated a residential group home in Hemmings Crescent, Richardson, caring for National Disability Insurance Scheme (NDIS) participants, has been found liable for 24 total breaches in relation to participant safety, leading to a $1,916,250 penalty.

At the Hemmings Crescent group home, which Valmar support workers operated out of, resided a number of participants, including three men with intellectual disabilities who were known by the support service to have difficulties with consuming both food and drink. These difficulties added a heightened risk of choking, which was documented by Valmar.

Despite this known detail of these three participants, none of the support workers who cared for them had any formal training with respect to the choking risk. According to Justice Elizabeth Raper, due to this inadequate training, Valmar increased the risk that the three men would choke on their food.

This negligence culminated in a “terrible” event occurring back in May 2020. One of the participants, a 47-year-old man, choked and collapsed while consuming food that had been prepared for him, leading to his “tragic” passing three days later.

At the time, the management plan that was put in place to ensure a choking event wouldn’t occur was found to have not been complied with. It was found by the Federal Court that the way the toasted salami sandwich was prepared by the support workers was not in line with the management plan as it wasn’t soft or moist.

In review, Raper J found that “Valmar did not provide the level of support they were required to provide under the NDIS, leading to very grave and tragic circumstances where one of the residents died.”

Along with this finding, Her Honour noted 24 total breaches made by Valmar, which led to a penalty of $1,916,250 against the support service – the highest-ever penalty imposed on an NDIS provider.

The penalty seeks to deter Valmar and other support services from committing similar contraventions that can lead to these “tragic” incidents. It also ensures that providers are both upholding and promoting the health, safety and wellbeing of persons with disability who are under the NDIS.

Valmar agreed that considering all the variables and facts, the penalty sought was, in fact, appropriate. However, Raper J stated that “reluctantly it is my view the agreed penalty is within the range of what could be considered an appropriate penalty, but is at the very lowest possible end of the range”.

“Whilst the single civil penalty sought was agreed between the parties following mediation, I am not bound to accept it,” Her Honour said.