The Use of Restrictive Practices in the Disability Sector
A restrictive practice is defined under Section 9 of the National Disability Insurance Scheme Act 2013 (Cth) as ‘any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with a disability’. Restrictive practices are most commonly used within the aged care and disability sectors. Restrictive practices have also been used against children and other vulnerable people as a way of managing behaviours.
This article provides an overview of restrictive practices in the disability sector, canvassing what a restrictive practice is, when restrictive practices are allowable and requirements on persons who engage in restrictive practices. Restrictive practices should not be implemented without the relevant rules and regulations being adhered to. Practitioners working within the disability sector should also be familiar with the Regulated Restrictive Practices Guide and ensure that restrictive practices are used only when required. The safety and wellbeing of the person must always be paramount when engaging in any action, including restrictive practices.
Learnings from the disability sector should also be considered when working with children and vulnerable people including in the aged care sectors, schools and hospitals.
What are Restrictive Practices?
The National Disability Insurance Scheme (NDIS) has identified five different types of restrictive practices which can be implemented only if the person is a risk to themselves or others.
The five types of restrictive practices are:
- Chemical restraint: The use a chemical substance or medication for the purpose of influencing a person’s behaviour
- Mechanical restraint: The use of a device which either, restricts, prevents or subdues a participant’s movement
- Physical restraint: An action or use of physical force to restrict, prevent or subdue the participant’s movement of their body
- Environmental restraint: This restricts a person’s free access to their environment.
- Seclusion: The sole confinement of a participant in a room or physical space, where voluntary exit is not permitted or prevented.
Each of these practices are subject to oversight and regulation in which organisations and people working within the disability sector must adhere to.
When are Restrictive Practices Able to Be Used?
Providers should not be using restrictive practices as a common tool to manage complex behaviours of participants with a disability. A restrictive practice can be considered if the participant’s behaviour is placing themselves or others at risk of harm.
Before a provider uses a restrictive practice, they should consider alternative options to manage the participant’s behaviour. These options should be explored amongst the participants’ wider care team where the appropriate professionals can holistically look at what is causing the change in the participants behaviour.
In the event a provider does use a restrictive practice, the various NDIS legislative instruments provide more detail as to when restrictive practices can and should be used. The most important considerations include:
- Restrictive practices should be used as a last resort to minimise any potential harm to the person with a disability or others.
- The response or action used should be the least restrictive.
- Restrictive practices should be used with a minimal timeframe, with a date listed for review.
- The restrictive practice must be added to the participants behavioural support plan. In doing so, the participant’s Behavioural Support Practitioner should be consulted and support that the recommended restrictive practice be implemented.
What Reporting Obligations Exist When a Restrictive Practice is Inappropriately Used?
Restrictive practices are a significant and serious action undertaken that limits a person’s human rights and freedom of movement. Implementing a restrictive practice, where there has been no authorisation to do so, is a reportable incident. This means that an unauthorised use of a restricted practice must be reported to the NDIS Quality and Safeguards Commission (NDIS Commissioner) within 5 business days of its implementation.
To comply with its duty of care, there is an onus on disability providers to ensure that their staff are trained in the appropriate use of restrictive practices. Along with ensuring that policies on restrictive practices are readily available and ensuring staff comply with any policies implemented. Policies should also outline how a staff member should respond if they believe that a person has misused a restrictive practice.
Without having the above practices in place, there is a risk that participants will be subject to prolonged use of a restrictive practice or worst case a misuse of the practice. People with disabilities are vulnerable members of our society and family members are relying on the system to ensure that they are being treated fairly and that their rights are being protected.
What Happens If a Staff Member Uses a Restrictive Practice When They Were Not Permitted to Do So?
If a restrictive practice has been authorised, then its use needs to be detailed in the participants Behavioural Support Plan (BSP). Organisations need to ensure that their staff members are familiar with the participant’s BSP, especially if the BSP has been updated to include the use of a restrictive practice.
In the event a staff member uses a restrictive practice which is not listed in the participants BSP, the incident must be reported to the NDIS Commissioner and subject to an internal investigation which may impact upon a person’s employment and ability to continue working with vulnerable people. Any person may make a report to the NDIS Commissioner, including other staff members who witness the misuse of a restrictive practice, family members or members of the public.
Investigating the Use of Restrictive Practice
The key function of the NDIS Commissioner is to ‘monitor the use of restrictive practices within the NDIS with the aim of reducing and eliminating these practices’. Once a complaint has been made to the NDIS Commissioner, the NDIS Commissioner will have oversight of the organisations’ compliance with restrictive practice and ensure that the concerns are properly investigated and responded to.
How Can Safe Space Legal Help?
The team at Safe Space Legal has extensive experience working with organisations in the disability sector, to support and strengthen their safeguarding practices and ensure organisations are meeting their legal obligations when working with people with disability. We work with organisations across Australia and frequently conduct independent safeguarding investigations.
Safe Space Legal offers holistic safeguarding services including:
- Developing safeguarding policies, procedures and complaints-handling processes;
- Delivering safeguarding training to ensure organisations are aware of their obligations and sector-specific requirements;
- Conducting trauma-informed specialist safeguarding investigations into allegations of violence, abuse, neglect and exploitation in the disability sector;
- Providing expert advice on safeguarding compliance and systemic issues;
- Conducting root cause analyses of critical incidents and crisis management;
- Providing sound legal advice on risk mitigation; and
- Completing policy and implementation audits to ensure compliance with legislative obligations.
Contact office@safespacelegal.com.au or call (03) 9124 7321 to organise a complementary discussion in relation to your organisation’s child safety and safeguarding needs