Important documents
Reforming Queensland’s authorisation framework for the use of restrictive practices in NDIS and disability service settings
Consultation Closed
-
Expanding the scope of Queensland’s authorisation framework to apply to all NDIS participants
Why is it important?
Expanding the scope of Queensland’s authorisation framework to apply to all NDIS participants would have a number of significant benefits. These include that it would:
- align with the principles for nationally consistent restrictive practices authorisation arrangements, in particular principle 3, which requires that people with disability who are subject to restrictive practices have the same protections and rights
- have regard to the human rights of all NDIS participants who are subject to restrictive practices
- maximise safeguards for all NDIS participants, and
- ensure transparency and accountability at the state level in relation to the use of restrictive practices.
What do our current laws say?
Part 6 of the DSA (which provides for Queensland’s restrictive practices authorisation framework) only applies to adults with an intellectual or cognitive disability.
Other important information
NDIS (Restrictive Practices and Behaviour Support) Rules 2018 (Cth)
The Rules set out conditions of registration that apply to all registered NDIS providers who use regulated restrictive practices in the course of delivering NDIS supports or services to a person with disability. This includes an adult or child with any type of disability who receives NDIS supports or services from a registered NDIS provider.
The practical implications are that where a registered NDIS provider does not have to seek authorisation from Queensland to use restrictive practices, they must still develop a behaviour support plan and report on the use of restrictive practices to the NDIS Commissioner if they are using restrictive practices regulated under the NDIS Quality and Safeguarding Framework.
Other jurisdictions
In all other states and territories in Australia, the relevant authorisation framework extends to all NDIS participants. This makes Queensland unique, in that Queensland’s current authorisation framework only applies to NDIS participants who are adults with an intellectual or cognitive disability.
Ideas for reform
A. Expand Queensland’s authorisation framework to include all adult NDIS participants.
Queensland’s authorisation framework could apply to all adult NDIS participants, regardless of the person’s disability.
Issues to consider
Queensland’s existing authorisation framework is a guardianship-based model for decision-making, which reflects its current application to adults with an intellectual or cognitive disability only and who consequently lack decision-making capacity.
Expansion of scope to a broader cohort of adults with disability would require a new authorisation framework that recognises the presumption of decision-making capacity. This presumption recognises that an adult who has capacity to make decisions may choose not to consent to the use of restrictive practices.
B. Expand Queensland’s authorisation framework to include all child NDIS participants.
Queensland’s authorisation framework could also apply to NDIS participants who are children.
Issues to consider
A child is a person who is under 18 years of age. Children cannot consent to restrictive practices. There may be certain types of restrictive practices which may be used on adults, but which are never suitable for use on children. For example, seclusion.
Where a person with authority to act for a child does not consent to the use of restrictive practices with that child, the use of restrictive practices may not be able to be authorised.
