Important documents
Reforming Queensland’s authorisation framework for the use of restrictive practices in NDIS and disability service settings
Consultation Closed
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More streamlined authorisation process for restrictive practices
Why is it important?
If the proposal to expand the scope of Queensland’s authorisation framework to include all NDIS participants is accepted, it will be necessary to also consider Queensland’s predominately guardianship-based authorisation framework. This framework reflects that the existing scope only includes adults with an intellectual or cognitive disability, and is not appropriate where persons have capacity and do not require a guardian to make decisions on their behalf. The framework is also not appropriate for children.
Stakeholders have also suggested that the current framework is also generally very complex and difficult to understand and negotiate, particularly for new NDIS providers.
A more streamlined authorisation process for restrictive practices would:
- align with the national principles for nationally consistent restrictive practices authorisation arrangements, in particular principle 9
- move away from a model where guardians make authorisation decisions for the use of restrictive practices (which may not be consistent with principle 6)
- reflect a simpler and more transparent approach, and
- allow the disability service sector to have a single point of accountability for restrictive practice authorisation decisions.
What do our current laws say?
Queensland's legislative framework provides a multi-step authorisation process, depending on the type of authorisation sought and restrictive practice.
Key features include:
- QCAT is responsible for approving the use of containment and/or seclusion
- a person's guardian (who can include the Public Guardian, if appointed) for restrictive practice matter (general) is responsible for approving the use of chemical, mechanical or physical restraint, and restricted access to objects
- for restricting access, if there is no guardian for a restrictive practice (general) matter for the adult—an informal decision-maker for the adult may provide approval
- the Public Guardian is responsible for short term approvals for containment and/or seclusion
- the chief executive of Disability Services is responsible for providing short term approvals for the use of physical, mechanical or chemical restraint, and restricting access.
The chief executive of the Disability Services also has the following functions:
- deciding whether multidisciplinary assessments for the use of containment or seclusion will be conducted, and
- developing and changing positive behaviour support plans that include the use of containment or seclusion.
Other important information
NDIS (Restrictive Practices and Behaviour Support) Rules 2018 (Cth)
The Rules refer to a state or territory authorisation process (however described) in relation to the use of a regulated restrictive practice, and require providers seeking to use a restrictive practice to obtain an authorisation through the state or territory process.
Under the Rules, an NDIS behaviour support practitioner can undertake behaviour support assessments (including functional behavioural assessments) and develop behaviour support plans that contain a restrictive practice.
Other jurisdictions
Other states and territories generally have more streamlined authorisation frameworks. For example, in Victoria, an Authorised Program Officer (appointed by an NDIS provider) may authorise the use of restrictive practices. Additional approval for the use of seclusion, mechanical and physical restraints must be obtained from Victoria’s Senior Practitioner. Similarly, in the Northern Territory, an NDIS provider may apply to the Northern Territory’s Senior Practitioner for an authorisation or interim authorisation for the use of restrictive practices.
Unlike Queensland, no other jurisdiction prescribes that in certain circumstances multidisciplinary assessments or positive behaviour support plans can only be developed by the chief executive (or equivalent). Instead, there is a general focus across other jurisdictions on the Senior Practitioner undertaking functions such as:
- providing high-level authoritative advice in relation to contemporary clinical practice developments occurring at national or international levels in relation to the safe application, elimination or reduction of restrictive practices
- developing guidelines to support NDIS providers in relation to the use of restrictive practices
- authorising the use of some or all forms of restrictive practices, and approving the appointment of officers or panels (including officers or panels located in service providers) which are empowered in select circumstances to approve certain forms of restrictive practices
- developing links and access to professionals, professional bodies and academic institutions for the purpose of facilitating knowledge and training in clinical practice for persons working with persons with a disability
- building capacity in the disability service sector through increasing the level of awareness and understanding of restrictive practices within the sector, and
- undertaking research into restrictive practices and providing information on practice options to disability service providers and registered NDIS providers.
Ideas for reform
H. Assessment to be done, and behaviour support plans developed, in accordance with the Rules.
This would involve removing the current legislative requirement that only the chief executive of Disability Services can: (a) determine whether a multidisciplinary assessment will be conducted; and (b) develop and change positive behaviour support plans including containment and/or seclusion.
Assessments and the development of plans would be conducted in accordance with the Rules, which permit both of these functions to be undertaken by an NDIS behaviour support practitioner (which can be the registered NDIS provider).
Issues to consider
Disability Services will need to work closely with the NDIS Quality and Safeguards Commission and service providers to ensure the market’s readiness and capacity to perform this function and any conflicts of interest that may arise.
I. Creation of two new roles:
- An Authorised Program Officer (or similar) role, responsible for authorising the use of selected restrictive practices which have been delegated by the Senior Practitioner.
- A Senior Practitioner (or similar) role, responsible for authorising the use of all other restrictive practices.
The Senior Practitioner could be a highly qualified and experienced clinician appointed by the government under legislation to administer the restrictive practices framework.
An Authorised Program Officer could be a clinician with certain qualifications and experience, as determined by the Senior Practitioner, who is appointed by a registered NDIS provider and approved by the Senior Practitioner. An Authorised Program Officer could then be responsible for authorising the use of delegated restrictive practices for specified periods of time. In some instances, an Authorised Program Officer could make a preliminary decision for the use of a restrictive practice, which would then require approval from the Senior Practitioner or QCAT (if QCAT retains its current authorising function).
If Queensland adopts the definitions of restrictive practices as defined under the Rules, the types of restrictive practices will be:
- seclusion
- chemical restraint
- mechanical restraint
- physical restraint, and
- environmental restraint (which encompasses containment , restricted access to objects as currently defined the DSA, and the locking of gates, doors and windows).
Issues to consider
Level of authorisation for the use of restrictive practices - Consideration is required of the following matters:
- What types of restrictive practices an Authorised Program Officer could authorise for use on their own authority.
- What types of restrictive practices an Authorised Program Officer could make a preliminary authorisation decision for, but with that decision then required to be approved by the Senior Practitioner (or QCAT, if QCAT retains its current authorising function).
- The length of time (up to a maximum of 12 months) for which an Authorised Program Officer could make an authorisation decision on their own authority (including either an interim or general approval).
- Whether there are any restrictive practices that only the Senior Practitioner (or QCAT) could authorise.
Containment - A further issue to consider is the authorisation/approval that is appropriate for the use of containment. While the Rules include containment as a type of ‘environmental restraint’, it is very different than other types of environmental restraints. Containment has a significant impact on a person’s rights and liberties, and should only be used with appropriate safeguards. There are a number of options for the authorisation of containment, including authorisation by:
- QCAT
- the Senior Practitioner
- an Authorised Program Officer, with that decision then required to be approved by the Senior Practitioner, or
- an Authorised Program Officer.
Independence of Authorised Program Officers - A key issue to consider is what safeguards should apply to ensure Authorised Program Officers are reasonably independent from the registered NDIS provider by which they are appointed or engaged. These safeguards could include, for example, that:
- an Authorised Program Officer must have specified clinical qualifications and experience, as determined by the Senior Practitioner
- the appointment of an Authorised Program Officer must be approved and periodically reviewed by the Senior Practitioner
- Authorised Programs Officers must not be involved in the preparation of Behaviour Support Plans, and
- all Authorised Program Officer decisions must be notified to the Senior Practitioner, who would then have powers to audit or monitor performance.
- Finally, the capacity of the market in Queensland to take on the Authorised Program Officer function would be another consideration.
J. Including research and education as mandatory functions of the Senior Practitioner.
This could increase the level of awareness and understanding of restrictive practices within the sector, and contribute to the reduction (and ultimately in many instances to the elimination) of the use of restrictive practices.
Issues to consider
It is important that the functions of the Senior Practitioner do not duplicate the functions of the NDIS Commissioner.
