National Quality Framework Review 2019 Commences

The Education Council has published details of the review (see previous blog post for background) and established a dedicated website. The Education Council is a subgroup of the Council of Australian Governments (COAG) made up of Education Ministers from around Australia. The NQF Review will be led by the Early Childhood Policy Group, of the Education Council, with representatives from each jurisdiction.

The Terms of Reference for this review, which outline the scope of the review as agreed by Education Council, include assessing whether the objectives of the NQF are being met (i.e. section 3, National Law) and will consider possible improvements to the system, including:

• The most appropriate governance arrangements for the National Quality Framework

• Whether fees should be more closely linked to the cost of regulatory services, in line with best practice guidelines for cost recovery

• Any changes required from the recommendations and referred matters from the Improving Quality in Family Day Care program of work commissioned by Education Council that require legislative and policy change;

• Any changes required from the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission), as they relate to the NQF and services regulated under the NQF;

• Issues emerging from the review of the Australian Children’s Education and Care Quality Authority(ACECQA), commissioned by Education Council, where they are more relevant to this review.

• Any further important or critical issues which may emerge from consultation with the sector, if agreed by Education Council.

A number of matters are out of scope, including the NQS, see the complete Terms of Reference for more details.

The time frame of the review is as follows:

• Phase 1 - public consultation and then development of policy options in response to issues identified in consultation and issues being considered by governments. This includes development of a Consultation Regulation Impact Statement (CRIS) by the end of 2019. The CRIS will be used for further consultation.

• Phase 2 - public consultation on the CRIS in the first half of 2020, and then development of a Decision Regulatory Impact Statement (DRIS) by the end of 2020. The DRIS will contain proposed options and the rationale behind the recommended options. The DRIS provides input to the final decisions and recommendations made by Education Council.

For the purposes of the public consultation phase, an issues paper has been developed which seeks input in a number of areas: approvals, operation of regulation, public awareness of service quality, and compliance and enforcement. Consultation is being sought through a questionnaire and consultation sessions. However, there does not appear to be any mechanism for written submissions, as is the case with most other reviews.

Coronial Inquest into Child Death in Queensland Family Day Care Service

Yesterday the Queensland Coroner's Court handed down its findings of an inquest into the death of a five month old child, Lucas Tran, in a Family Daycare Service in 2015. The finding of the Coroner was that:

On 18 November 2015 Lucas was being cared for by a Family Day Care Educator in her home. At some point in the morning he was put down to sleep. The sleeping environment included a partially erected porta cot, a loose towel covering him with no bed sheet, the door to the room was closed and there was limited ventilation on what was described as a warm day. There was at least a 30 minute period in which Lucas was not directly observed by his carer. When next observed he was unresponsive and despite CPR by his carer and QAS was unable to be revived. An autopsy examination found no pathology to explain death and the forensic pathologist came to an opinion the cause of death was Sudden Infant Death Syndrome Category II meaning that a degree of mechanical asphyxia cannot be determined with certainty. SIDS being a finding of exclusion, means that no one specific contributing factor can be identified. However, the extensive epidemiological studies conducted over many years has identified varying risk factors, and in this case some of the factors raised included that of safe sleeping practices, physical environment and supervision.

The full circumstances of the death are detailed in the written findings. However, the Coroner considered sleeping and supervision policies and practices, and made some very important comments:

Where this gets to in having an understanding of the circumstances of the death and how it related to the cause of death is of course not something that can be stated with any certainty due to the very nature of SIDS. As stated earlier the nature of making a finding of SIDS, being a finding of exclusion, means that no one specific contributing factor can be identified. However, the extensive epidemiological studies conducted over many years has identified varying risk factors, and in this case some of the factors raised included that of safe sleeping practices, sleep environment and supervision.
As a result, Red Nose recommendations, the Guidelines adopted in the Australian Children’s Education and Care Quality Authority’s Guide to the Education and Care Services, and MFDC [Moorooka Family Day Care] policies addressed certain issues concerning safe sleeping practices, environment and supervision. They were adopted for obvious reasons to reduce the risks. It does have to be recognised that even with all those risk factors removed Lucas’ death could still have occurred.
In respect to safe sleeping practices it is arguable a partially erected porta cot is by no means an optimal sleeping environment. The cot appears to comply with Australian standards but it is self-evident that if it is not completely erected then it does not comply with the standard. The instructions seem quite clear about this.
The fact I have found Lucas was partially covered in a towel and it seems likely there was no covering sheet on the mattress is but another factor raised about the adequacy of the sleeping environment.
It is also evident the conditions that day were at least warm and there was no observable cooling and ventilation was limited. The MDFC policy manual stated carers should monitor the temperature of the rest environment to ensure it is comfortable without becoming too hot or cold.
In relation to supervision the Australian Children’s Education and Care Quality Authority’s Guide to the Education and Care Services states that sleeping children should always be within sight and hearing distance so that educators can assess the child’s breathing and colour of their skin to ensure their safety and wellbeing. Although a specific time for monitoring is not stipulated in the National Laws the MDFC policy provides that carers should regularly monitor all children who are sleeping with specific attention to breathing patterns, and monitor all babies every 10 minutes.
There is some question about how optimal the induction Ms X [the educator] was provided when she commenced with MFDC was, or if she had ever read or absorbed the detail of the policy, but clearly she had the view that sleeping a child in a closed room with limited ventilation on a warm day and checking every 20 minutes was appropriate. On this occasion she left Lucas unobserved for at least 30 minutes.
It is not possible to say that any of the risk factors raised here and which were present were directly causal to Lucas’ death, as that is the nature of a SIDS diagnosis. What can be said is recommendations as to sleeping environment and supervision to reduce risk factors thought to have some connection to SIDS have been developed over many years for a reason and these polices were not applied in the tragic circumstances of Lucas’ death. (paras 216-223).

In addition, the Coroner made some very important recommendations in relation to changes to the National Law and Regulations:

The evidence of Ms O’Malley [Department of Education] brought up a number of issues that could be the subject of comment and recommendations.
Firstly, Ms O’Malley brought up an issue concerning the exchange of information from police during its investigation to the Department which could be relevant to decision-making of the Department. This issue was only first raised in her evidence so QPS have not been heard about the issue. On that basis I will be recommending that QPS and the Department consider implementing a Memorandum of Understanding or some other protocol regarding the sharing of information that may be relevant to each of their separate investigatory responsibilities. This is not limited to SIDS death but could encompass all investigations jointly involving Education and Police including consideration as to the extent of not only information sharing but also joint involvement in investigative strategies. For instance it may have been helpful for Departmental investigators to have been able to attend the scene on the day Lucas died to gather evidence relevant to their regulatory obligations.
Secondly, the issue concerning Family Day Care Educators still being able to provide day care services even though they do not have a Certificate III in Children’s Services and only having to show that they are actively working towards that qualification. The evidence supports a conclusion that in this instance the Family Day Care Educator was not actively working towards her Certificate III and may not have for some time or at least the evidence of progress was most unclear.
This issue is important because from the evidence of Ms X it is uncertain the extent to which she was aware of the up-to-date recommendations concerning SIDS risk factors and in particular monitoring of supervision times. Given it seems any induction by MFDC does not seem to have improved her awareness, having received training in the form of a Certificate III course may well have provided that awareness. If we are going to be serious about caring for children and infants, the least that should be expected is Family Day Care Educators have the basic training from a course such as a Certificate III.
I can understand why that regulation allowing Family Day Care Educators further time to obtain a Certificate III was necessary when the National Law commenced in 2012 but now that has been in place for some years, Ms O’Malley agrees that it should be prescribed in legislation that at this point in time Family Day Care Educators should hold a Certificate III before they commence caring for children in such a setting. Ms O’Malley pointed out that in South Australia there is a specific regulation to that effect. Whilst Queensland could also adopt a Queensland specific regulation to that effect Ms O’Malley stated there should also be consideration as to whether nationally that should also apply.
With respect to whom such recommendations should be made she referred to the Australian Children’s Education Quality Authority.
Submissions made by the Department noted that any changes to the National Law and the National Regulations require consultation and Ministerial Council approval. It was also noted a review of the National Quality Framework has recently begun and a discussion paper is currently being formulated. It was submitted that the appropriate approach was to refer the matters directly into the Ministerial Council for its consideration. I propose such a course.
Thirdly, I consider there is some value in making a specific recommendation about ensuring information about safe sleeping practices/SIDS and complaints mechanisms is given to parents, rather than just being described in a policy that is tucked away in an approved provider’s/educator’s induction materials and may never be seen by a parent.
If Lucas’ parents were given really detailed information about safe sleeping and how important safe sleep surfaces are, they may have been more alert to how Ms X was using the porta cot (that is, in a partially erect fashion) and taken some action to ensure Ms X was using it more safely. There is still a question of course as to whether that would have made any difference but it was a risk factor that was present for Lucas when he died.
Regarding complaints mechanisms, on Ms O’Malley’s evidence it is clear this is one way the regulator becomes aware of which Family Day Care Educators they need to more actively monitor, that is, when parents raise safety concerns. Parents naturally have a much greater vested interest in the safety of their children and are more likely to alert the regulator to those issues, if and when they observe any safety concerns relating to their child’s time spent at a Family Day Care Educator’s home.
I make the following recommendations:
1. That QPS and the Department consider implementing a Memorandum of Understanding or some other protocol regarding the sharing of information that may be relevant to each of their separate investigatory responsibilities, for incidents that arise within a child care environment.
2. That the Ministerial Council and the Australian Children’s Education Quality Authority consider changes to the National Law and the National Regulations to require all Family Day Care Educators to hold a Certificate III in Children’s Services before they commence caring for children.
3. That the Ministerial Council and the Australian Children’s Education Quality Authority consider changes to the National Law and the National Regulations to require information about safe sleeping practices/SIDS and complaints mechanisms be given to parents of children who attend Family Day Care.(paras. 224-234).

In relation to the regulatory response the Coroner noted that the
Department of Education, which regulates family day care services in Queensland, commenced an investigation into the Moorooka Family Day Care service after the death and visited the service where a number of breaches were identified (paras.174-5). The Department immediately suspended the service under section 73, National Law, as it was satisfied the health, safety and wellbeing of children in care were at immediate risk. Later the service was permitted to resume operations with conditions placed on its service approval.

ABC News Online also reported on this inquest.

NT Royal Commission into Institutional Responses to Child Sexual Abuse – first progress report

The Northern Territory Government has published its Royal Commission into Institutional Responses to Child Sexual Abuse – first progress report. It details a number of initiatives including development of a single Act to ensure the safety and wellbeing of children is at the centre of its reform agenda. The legislation will replace the Care and Protection of Children Act and the Youth Justice Act. The single Act will embed a common system wide set of values, principles and ways of working with children and families and reflect the National Child Safe Standards and include the review of the Working with Children Check.

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Latest Commonwealth Action Against Family Day Care Providers

The Commonwealth Minister of Education released a media release yesterday in relation to action taken in "cancelling the Child Care Subsidy provider approval for 21 dodgy day care operators." This follows an update to the Child Care Enforcement Action Register.

Serious Detrimental Action Against Person (Section 297(1), National Law): CEO of Department of Communities and Narula Holdings Pty Ltd

In a landmark case heard before the West Australian State Administrative Tribunal (WASAT), an order was made which gave effect to the terms of settlement in relation to a matter brought before the tribunal by the WA Regulator (Department of Communities) for contravention of section 51(8) and 297(1), National Law, by the approved provider, Narula Holdings Pty Ltd, operator of Little Peoples Place Early Learning Centre Evans Way.

The facts of the case are set out in the report of the case (in particular the attached agreed set of facts). In summary, while a Departmental authorised officer was at the service, an educator was collecting school aged children in the service's 12-seater bus. The educator was instructed by the service’s nominated supervisor to drive slowly and to “do laps” and “buy time” before returning to the service, as the authorised officer would know the service had contravened section 51(8) (breach of conditions of service approval), by having more than the number of children it was permitted to educate and care for, if the educator returned with the school-aged children. The educator returned the children to the service after receiving communication that the authorised officer had left the service. Some children had been on the bus for over an hour. The Department became aware of the circumstances above because of an educator’s protected disclosure under section 296. At a meeting between the directors of the approved provider and the educator, the directors asked the educator why she had made a report to the Department and expressed their concern about her position as an educator and that the trust between the educator and the directors was gone. Shortly after this meeting, the probationary educator was not provided with any further work at the approved provider's services. 

This case is particularly significant because it is the first reported case under the National Law where a person has been found to be in breach of section 297(1) of the National Law by taking serious detrimental action against an educator in reprisal for a protected disclosure. The Tribunal imposed a penalty of $16,100, being; $8,100 for the three breaches of section 51(8), and $8,000 for the breach of section 297(1). The approved provider was also ordered to pay a contribution toward the Department's legal costs in the amount of $2,000.

Reducing the Red Tape Around Childcare

I have written another opinion piece for The Sector website on childcare regulation. It has generated a bit of controversy on the topic of red tape. You can view the article via this link.
 

In addition, my book Australian Childcare Regulation is now available with a 10% discount using the code LULU10. You can order it via this link.

Defamation Case Against Childcare Service

The NSW District Court recently decided a case where it awarded a former educator damages of almost $240,000 against a service for the publication of defamatory comments about the educator in an email newsletter to parents. 

The case is a timely reminder to childcare services of the application and scope of defamation laws.

Queensland Regulatory Authority's Regulating for Quality Policy Document

The Department of Education, as the Queensland Regulatory Authority under the National Law, has published Regulating for Quality. The document clarifies how the Department regulates to reduce risk to children’s safety, drive voluntary service compliance and promote continuous quality improvement.