Reforming Queensland’s authorisation framework for the use of restrictive practices in NDIS and disability service settings

Why is it important?

People with disability are the natural authorities for their own lives and have the right to make decisions about matters that affect them, including in relation to the use of restrictive practices.

The regulation of restrictive practices should make provision for supported decision-making, and the active engagement of affected people in the authorisation process, including:

• recognising the presumption of capacity for decision making and requirement for consent where a person has capacity
• ensuring appropriate supports and consultation opportunities are incorporated in the process of determining if restrictive practices are required, to ensure the person and their interests are captured
• actively incorporating the person, their wishes and interests in the preparation of Positive Behaviour Support Plans
• ensuring the person's interests and wishes are represented in decisions that must be made on their behalf, and
• providing for opportunities to review decisions made to authorise the use of restrictive practices.

What do our current laws say?

Statement about use of restrictive practices

The DSA provides that if a relevant service provider is considering using restrictive practices in relation to an adult with an intellectual or cognitive disability, then the relevant service provider must give a statement—the Model Statement—in the approved form to the following persons about the use of restrictive practices generally:

• the adult, and
• a person with sufficient and continuing interest in the adult (an interested person).

The Model Statement must detail:

• why the relevant service provider is considering using restrictive practices in relation to the adult
• how the adult and the interested person can be involved and express their views in relation to the use of restrictive practices
• who decides whether restrictive practices will be used in relation to the adult
• how the adult and the interested person can make a complaint about, or seek review of, the use of restrictive practices, and
• that Disability Services, in accordance with the Disability Services Regulation 2017, will be collecting information regarding the use of restrictive practices in relation to the adult.

Also, the relevant service provider must explain the Model Statement to the adult:

• in the language or way the adult is most likely to understand, and
• in a way that has appropriate regard to the adult’s age, culture, disability and communication ability.

The purpose of this provision is to ensure that the adult, family members and others in the adult's support network who have ongoing involvement in the adult's life are aware of:

• why the relevant service provider is considering a restrictive practice might be necessary
• how they can be involved in planning and decision making and express their views
• who will make the decision whether or not to authorise the restrictive practice, and
• what are the review and redress avenues, should the person be dissatisfied with the process or decision.

Consultation

There are a number of decisions and processes where, under the DSA, the Chief Executive must consult with a range of people before making a decision.

These decisions and processes include:

• deciding to conduct a multidisciplinary assessment
• deciding to develop a positive behaviour support plan (where containment and seclusion are proposed)
• development of the positive behaviour support plan (where containment and seclusion are proposed), and
• deciding whether a plan should be changed.

Similarly, there are a number of processes where the relevant service provider must consult with a range of people. These include:

• conducting an assessment of the adult
• conducting a risk assessment of the adult (where a respite or community access services is the only provider), and
• development of a positive behaviour support plan, or
• development of a respite/community access plan.

The people who must be consulted, have their views considered and be given the opportunity to participate in the development of plans for the adult include:

• the adult
• if the adult has a guardian or informal decision-maker—the guardian or informal decision maker
• each relevant service provider providing disability services involving the use of restrictive practice/s to the adult
• if the adult is subject to a forensic order, treatment support order or treatment authority under the Mental Health Act 2016—the authorised psychiatrist responsible for treatment of the adult under that Act
• if the adult is a forensic disability client—a senior practitioner responsible for the care and support of the adult under the Forensic Disability Act 2011, and
• any other person considered to be integral to the decision or process. For example, for chemical restraint, the adult’s treating doctor must be consulted.

Consultation and engagement with all the people who have an ongoing involvement in the adult’s life ensures the adult and their family and friends are given an opportunity to participate in the development of strategies for the care and support of the adult.

Review
There are opportunities for the review of decisions made internally within government under the DSA, and externally by QCAT.

Internally reviewable decisions

• a decision by the chief executive that a multidisciplinary assessment will not be conducted, and
• a decision by the chief executive that a positive behaviour support plan will not be developed.

Externally reviewable decision by QCAT

• authorisation decisions for the use of containment or seclusion, and
• the appointment of a guardian for restrictive practices.

Other important information

NDIS (Restrictive Practices and Behaviour Support) Rules 2018 (Cth)

The Rules include conditions in relation to how behaviour support plans containing a restrictive practice must be developed.

These include that, in developing and reviewing a behaviour support plan for a person with disability, the specialist behaviour support provider must take all reasonable steps to:

• consult with the person with disability, and
• consult with the person with disability’s family, carers, guardian or other relevant person.

In addition, when consulting, the specialist behaviour support provider must provide details of the intention to include a restrictive practice in the behaviour support plan, in an appropriately accessible format, to:

• the person with disability subject to the plan, and
• the person with disability’s family, carers, guardian or other relevant person

Other jurisdictions

In Victoria, the Senior Practitioner may approve the use of seclusion, physical restraint or mechanical restraint, and an Authorised Program Officer (appointed by an NDIS provider) may authorise the use of other types of restrictive practices.

An Authorised Program Officer must ensure that an independent person is available to explain to an NDIS participant:

• the proposed use of restrictive practices on the NDIS participant, and
• that the NDIS participant may seek, as the case requires:
  • a review of the Authorised Program Officer's decision to authorise the use of restrictive practices, or
  • a joint review of the Authorised Program Officer's decision to authorise the use of regulated restrictive practices and the Senior Practitioner's decision to approve the use of regulated restrictive practices.

If the independent person considers that -

• the NDIS participant is not able to understand the proposal to use the restrictive practices, and
• the requirements of Part 6B of the Disability Services Act 2006 (VIC) or the relevant requirements of the NDIS Act 2013 (Cth) or the Rules are not being complied with

- the independent person may report the matter to the Public Advocate or the Senior Practitioner.

An independent person assisting the NDIS participant must not:

• be a disability service provider or an NDIS provider for the NDIS participant
• be a representative of a disability service provider or an NDIS provider for the NDIS participant
• have any interest in a disability service provider or an NDIS provider for the NDIS participant, or
• have any responsibility in relation to the development or review of the NDIS participants' NDIS behaviour support plan.