NDIS Informed Consent: What Providers Must Know About Consent to Services

What Is Informed Consent Under the NDIS?

Informed consent in the NDIS context means that a participant (or their authorised representative) has been given enough information to understand what they are agreeing to, has had the opportunity to ask questions and consider alternatives, and has voluntarily agreed to proceed. It is grounded in the NDIS Act 2013's principles of choice and control, the NDIS Code of Conduct's requirement for transparency, and the NDIS Practice Standards' expectations under Outcome 1.4 (Independence and Informed Choice).

The four elements that make consent "informed" are:

1. Adequate information — the participant has been told what they are consenting to, what the alternatives are, and what the potential consequences of consenting or not consenting might be
2. Understanding — the information was provided in a way the participant could comprehend, taking into account their communication needs, language, and cognitive capacity
3. Voluntariness — the participant made the decision freely, without coercion, pressure, or undue influence from the provider, family members, or anyone else
4. Capacity — the participant had the cognitive ability to understand the information, weigh the options, and communicate a decision at the time consent was given

If any one of these elements is absent, the consent is not valid. This applies regardless of whether a signed consent form exists — a signature obtained through pressure, without adequate explanation, or from a person who lacked capacity at the time of signing does not constitute informed consent.

Types of Consent: Verbal, Written, and Implied

Written Consent

Written consent involves the participant (or their authorised representative) signing a document that records what they are consenting to, the date, and any conditions or limitations on the consent. Written consent is the gold standard for audit purposes because it creates a clear, verifiable record. It should be obtained for all significant decisions, including:

• Consent to the service agreement (accepting supports from the provider)
• Consent to collect personal information
• Consent to share personal information with third parties
• Consent for photographs, videos, or audio recordings
• Consent to participate in research or quality improvement activities
• Consent for restrictive practices (where applicable and authorised)

Verbal Consent

Verbal consent is legally valid for routine, lower-risk decisions — such as a participant agreeing to a change in their daily schedule, agreeing to try a new activity, or agreeing to a support worker entering their room. However, verbal consent is harder to verify during an audit. Best practice is to record verbal consent in the participant's progress notes or file notes, including the date, time, what was discussed, what the participant agreed to, and who was present. Using the Notes Rewriter tool can help support workers document these consent conversations accurately and compliantly.

Implied Consent

Implied consent arises from the participant's actions rather than their words. For example, a participant who extends their arm for a blood pressure check is implying consent to that specific action. Implied consent is appropriate only for minor, routine aspects of support delivery where the participant's cooperation clearly indicates agreement. It should never be relied upon for significant decisions, information sharing, or any action that could affect the participant's rights or privacy.

Providers should be cautious about assuming implied consent. A participant who does not object is not necessarily consenting — they may not understand what is happening, may feel unable to object, or may not know they have the right to refuse. The NDIS Commission's position is that silence or passivity does not constitute consent.

Areas Where Consent Must Be Obtained

NDIS providers need to obtain consent across multiple areas of service delivery. The following table summarises the key consent requirements and the recommended documentation approach for each.

Capacity to Consent

The concept of capacity is central to informed consent, and it is one of the areas where NDIS providers most often make errors — either by assuming capacity exists when it may not, or by assuming capacity is absent when the participant could in fact make the decision with appropriate support.

The Presumption of Capacity

Under Australian common law and the guardianship legislation of every state and territory, all adults are presumed to have capacity unless there is evidence to the contrary. This means a provider cannot deny a participant the opportunity to make their own decisions simply because they have a particular diagnosis, intellectual disability, or communication difficulty. The starting point is always that the participant has capacity, and the burden of demonstrating otherwise falls on the person asserting incapacity.

Decision-Specific and Time-Specific

Capacity is not a global characteristic — it is decision-specific and time-specific. A participant may have capacity to make everyday decisions (what to eat, what to wear, when to go to bed) but lack capacity for more complex decisions (consenting to a surgical procedure, entering a binding financial agreement). A participant may also have fluctuating capacity — for example, a participant with acquired brain injury may have better capacity at certain times of day, or a participant with a mental health condition may have reduced capacity during periods of acute illness.

Assessing Capacity

When a provider has genuine concerns about a participant's capacity to make a specific decision, they should consider the following questions:

• Can the participant understand the information relevant to the decision when it is explained to them in an accessible way?
• Can the participant retain that information long enough to make a decision?
• Can the participant weigh up the information — considering the benefits, risks, and alternatives?
• Can the participant communicate their decision (by any means — verbal, written, gesture, AAC device)?

If the answer to all four questions is yes, the participant has capacity for that decision. If the answer to any question is no, the provider should consider whether supported decision-making could help the participant exercise their capacity before concluding that a substitute decision-maker is needed.

Who Can Assess Capacity?

For routine consent decisions, support workers and coordinators can form a reasonable view about capacity based on their knowledge of the participant and the guidance above. For complex or high-stakes decisions — such as whether a participant has capacity to consent to a service agreement, or whether a guardian should be appointed — a formal capacity assessment by a relevant professional (such as a psychologist, neuropsychologist, or geriatrician) may be appropriate. Providers should document the basis for their assessment of capacity in the participant's file.

Substitute Decision-Makers

Where a participant lacks capacity to make a particular decision and supported decision-making is not sufficient, a substitute decision-maker may need to be involved. Substitute decision-makers operate under different legal frameworks depending on their appointment type and the state or territory in which the participant lives.

Types of Substitute Decision-Makers

Provider Obligations When Working with Substitute Decision-Makers

When a substitute decision-maker is involved, providers must:

• Verify their authority — obtain and file a copy of the guardianship order, nominee appointment, or power of attorney document
• Check the scope — ensure the substitute decision-maker has authority for the specific decision at hand (a financial guardian cannot consent to medical treatment)
• Still involve the participant — even where a substitute decision-maker has legal authority, the participant must be involved in the decision-making process to the greatest extent possible
• Document everything — record who gave consent, on what basis, what the participant's views were (if they expressed any), and any disagreement between the participant and the substitute decision-maker

Children and Consent

For NDIS participants under the age of 18, consent is generally provided by a parent or legal guardian. However, the NDIS framework — and broader Australian law — recognises that children's capacity to participate in decision-making develops progressively as they mature.

Parental Consent

Parents (or legal guardians) provide consent for NDIS supports for children. This includes signing the service agreement, consenting to information collection and sharing, and approving the support plan. Both parents generally have equal authority to consent, unless a family court order specifies otherwise.

Separated Parents

Where parents are separated or divorced, providers should clarify at the outset who has legal authority to consent to support arrangements. If a parenting order exists, the provider should obtain a copy and file it. If there is a dispute between parents about the child's supports, the provider should not take sides — they should seek guidance from their own legal adviser and, if necessary, pause the disputed aspect of support delivery until the dispute is resolved.

Gillick Competence

Australian law recognises the concept of "Gillick competence" (also called "mature minor" status), which allows children who are sufficiently mature and intelligent to provide their own consent to certain decisions — typically medical treatment, but the principle applies more broadly. As children receiving NDIS supports grow older, providers should progressively involve them in consent conversations, seek their views, and transition toward obtaining consent from the young person directly as they approach adulthood.

Transitioning to Adult Consent at 18

When a participant turns 18, parental consent authority ends unless a guardianship order or other legal arrangement is in place. Providers must plan for this transition well in advance — ideally beginning at age 16 or 17 — to ensure that new consent documentation is obtained from the participant directly (or from a newly appointed guardian or nominee) before or at the time they turn 18.

Consent for Photos and Recordings

Photographs, videos, and audio recordings of NDIS participants require separate, specific consent that cannot be bundled into a general consent form or service agreement. The NDIS Commission has been clear that consent for images and recordings must be purpose-specific, time-limited where appropriate, and revocable at any time.

What Must Be Specified

A photo/recording consent form should clearly state:

• What will be photographed or recorded (the participant, their artwork, their living space, etc.)
• The specific purpose (support planning, social media, marketing, incident documentation, etc.)
• Who will have access to the images or recordings
• How and where the images or recordings will be stored
• How long the images or recordings will be retained
• The participant's right to withdraw consent at any time
• What will happen if consent is withdrawn (images deleted, removed from publications, etc.)

Social Media Considerations

Many NDIS providers use social media to promote their services, share community activities, or celebrate participant achievements. While these intentions may be positive, posting photos or videos of participants on social media without proper consent is a serious privacy breach. Consent for social media use must be explicit, separate from any other consent, and must specify which platforms the images may appear on. Participants must be informed that once an image is posted on social media, it may be shared, downloaded, or screenshotted by others and may be difficult to fully remove.

Staff Personal Devices

Support workers should never take photos or recordings of participants on their personal devices unless this is explicitly authorised by the provider's policy and the participant has consented. Many providers prohibit the use of personal devices for participant photos entirely, requiring all images to be taken on work-issued devices to maintain control over storage and access.

Ongoing Versus One-Time Consent

One of the most common misconceptions about consent in NDIS service delivery is that it is a one-time event — that once a participant signs a consent form at onboarding, the provider has consent for everything that follows. This is incorrect. Consent in the NDIS context is an ongoing process, and there are critical differences between one-time consent and ongoing consent.

One-Time Consent

One-time consent is appropriate for a specific, defined action — such as sharing a particular report with a particular third party, or taking a specific photograph for a specific purpose. Once the action is completed, the consent is spent. If the same action needs to occur again in the future, new consent should be obtained.

Ongoing Consent

Ongoing consent covers a continuing arrangement — such as consent to receive supports under a service agreement, or consent for the provider to share progress information with a support coordinator on an ongoing basis. Ongoing consent remains valid until it is withdrawn by the participant, the circumstances change materially, or the service agreement ends.

When to Re-Consent

Even where ongoing consent has been given, providers should re-confirm consent when:

• The participant's NDIS plan is reviewed or changed
• The service agreement is varied or renewed
• A new third party is added to the information-sharing arrangements
• The participant's circumstances change significantly (new diagnosis, change in living arrangements, change in capacity)
• A significant period of time has passed (best practice is to review consent annually)
• The participant (or their advocate) raises concerns about how their information is being used

Withdrawing Consent

Participants have the right to withdraw consent at any time, for any reason, without needing to justify their decision. This right is fundamental and cannot be restricted by the service agreement or any other document. When consent is withdrawn, the provider must act promptly.

What Withdrawal Looks Like

Withdrawal of consent may be communicated verbally, in writing, or through an advocate or nominee. It does not need to follow a formal process — if a participant says "I don't want you sharing my information with my family anymore," that is a withdrawal of consent, and the provider must act on it immediately.

Provider Obligations After Withdrawal

• Stop the action that consent was given for (e.g., stop sharing information with the specified third party)
• Document the withdrawal in the participant's file, including the date, what consent was withdrawn, and how the withdrawal was communicated
• Inform any third parties who were receiving information under the withdrawn consent that sharing has ceased
• Do not penalise the participant or reduce the quality of their supports because they withdrew consent

Limits on Withdrawal

While participants can withdraw consent for voluntary information sharing, they cannot withdraw consent for actions that are required by law. For example, a provider cannot stop reporting reportable incidents to the NDIS Commission because a participant asks them to — the reporting obligation is statutory and overrides participant consent. Similarly, if a court order requires the disclosure of information, the provider must comply regardless of the participant's consent.

Documenting Consent for Audit

Comprehensive consent documentation is one of the strongest indicators of a well-run NDIS service during an audit. Auditors will review participant files specifically looking for evidence that consent was obtained appropriately. Here is what they expect to find.

Consent Documentation Checklist

• Signed service agreement (consent to services) with dated signatures from both parties
• Signed Consent to Collect Information form
• Signed Consent to Share Information form specifying each third party
• Photo/recording consent form (if any images or recordings exist)
• Dignity of Risk Assessment forms (if applicable)
• Evidence that consent was obtained in an accessible format (Easy Read, interpreter, etc.) where needed
• File notes recording verbal consent for routine decisions
• Records of consent reviews (at least annually or when circumstances change)
• Records of any consent withdrawals and the actions taken
• Copies of guardianship orders, nominee appointments, or powers of attorney where a substitute decision-maker is involved

Common Audit Findings

The most common consent-related non-conformances in NDIS audits include:

• Missing consent forms — supports have commenced but no signed consent to collect information exists in the file
• Blanket consent — a single form covers "all information sharing" without specifying who information is being shared with or for what purpose
• Outdated consent — consent forms are several years old and have not been reviewed despite changes in the participant's plan or circumstances
• No accessibility evidence — consent was obtained from a participant with intellectual disability but there is no evidence that the information was provided in an accessible format
• Family consent without authority — consent was signed by a family member who has no formal legal authority to consent on the participant's behalf

Accurate progress note documentation is an essential complement to formal consent forms. When support workers note in their shift records that "participant agreed to..." or "participant was asked about... and declined," this creates contemporaneous evidence of ongoing consent in practice.