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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QCAT to review administrative decisions only
Why is it important?
An important safeguard is that any decision made in relation to the use of restrictive practices under Queensland's authorisation framework is accountable and can be reviewed on its merits. The Queensland Civil and Administrative Tribunal (QCAT) is Queensland's established body for merits review of administrative decisions.
If the proposal to streamline the authorisation process for restrictive practices is accepted, QCAT's role could be recast away from approving the use of restrictive practices and toward reviewing decisions by the primary decision-maker. This would:
- align with the national principles for nationally consistent restrictive practices authorisation arrangements, in particular principle 8 (which requires that primary decisions be reviewable)
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reflect a streamlined, simpler and more transparent approach.
What do our current laws say?
QCAT's role
Currently, QCAT is responsible for approving the use of containment or seclusion. In certain circumstances, QCAT may also make an interim order in relation to containment or seclusion without hearing and deciding the proceeding or otherwise complying with the requirements of the DSA for a period of no more than 3 months.
Internally reviewable decisions
Under the DSA, a decision by the chief executive that a multidisciplinary assessment will not be conducted or a positive behaviour support plan will not be developed may, on application by an interested person, be internally reviewed by the chief executive. Within 28 days of an application being received, Disability Services will either confirm, amend or substitute another decision for the original decision.
An interested person may be:
- the relevant service provider
- the adult, or
- a guardian or informal decision maker for the adult who was consulted by the Principal Clinician when making the decision.
Reviews by QCAT
Authorisation decisions
Under the DSA, a containment or seclusion approval has effect for the period stated in the order, but the period cannot exceed 12 months. QCAT may review an approval which includes containment or seclusion at any time on its own initiative or following an application from certain persons, including the adult, interested person for the adult, the public guardian, the relevant service provider or the chief executive to determine whether a restrictive practice is still needed.
Appointment of a guardian for restrictive practices
Under the GAA, the appointment of a guardian for restrictive practices has effect for the period stated in the order, but the period cannot exceed two years. QCAT may review the appointment of a guardian for restrictive practices at any time on its own initiative or following an application from certain persons, including the adult, an interested person for the adult, the public guardian, the relevant service provider or the chief executive.
Other important information
Other jurisdictions
In Victoria, the Victorian Civil and Administrative Tribunal (VCAT) has the following role in relation to reviewable decisions:
- an NDIS participant may apply to VCAT for review of the Authorised Program Officer's decision to authorise the use of a restrictive practice
- if an Authorised Program Officer authorises the use of a regulated restrictive practice on an NDIS participant and that use also requires additional approval by the Senior Practitioner, the NDIS participant may apply to VCAT for a joint review of the decision to authorise the use and the decision to approve the use
- a registered NDIS provider may apply to VCAT for review of a decision by the Senior Practitioner not to approve the use of a regulated restrictive practice
- a registered NDIS provider may apply to VCAT for a review of a decision by the Senior Practitioner to refuse the appointment of an Authorised Program Officer, or a decision to revoke the appointment of an Authorised Program Officer.
Ideas for reform
K. Allow relevant persons to apply to QCAT for review of a decision made under Queensland’s authorisation framework.
These decisions could include:
- authorisation of restrictive practices by an Authorised Program Officer (or similar role), or
QCAT would no longer be responsible for appointing guardians for restrictive practice matters. Instead, QCAT's role would be refocused toward reviewing decisions made under Queensland’s authorisation framework which – if the proposal to streamline the authorisation process for restrictive practices is accepted – would involve reviewing decisions made by the Authorised Program Officer or Senior Practitioner.
The exact nature of the decisions that would be reviewable by QCAT would depend on the authorisation regime and the types of restrictive practices which could be authorised by different entities and roles.
One option is for QCAT to retain the approval of containment. In this case, QCAT would review the approval at regular intervals or certain persons could continue to apply for a review at any time. If an authorised program type officer or senior practitioner figure authorises/ approves containment, then this decision would be reviewable by QCAT.
Issues to consider
The types of authorisation decisions that should be considered reviewable decisions and the applicable time periods attached to reviews.
Disability Services will need to work closely with QCAT to ensure capacity to perform this function within appropriate timeframes.<
L. Allow providers to apply to QCAT for a review of a decision to refuse the appointment, or revocation, of an Authorised Program Officer (or similar role).
These decisions could include:
- A decision by the Senior Practitioner (or similar role) to not appoint an Authorised Program Officer, and
- A decision to revoke the appointment of an Authorised Program Officer by the Senior Practitioner (or similar role).
If a role similar to an ‘Authorised Program Officer’ is created, an NDIS provider could apply to the Senior Practitioner for approval to appoint an Authorised Program Officer.
The Senior Practitioner could consider the application, including the mandatory criteria the proposed Authorised Program Officer must meet, and approve the appointment of the Authorised Program Officer if the Senior Practitioner considers it appropriate.
The Senior Practitioner could also revoke the appointment of an Authorised Program Officer if the Senior Practitioner considers it appropriate.
The Senior Practitioner would need to inform the NDIS Commissioner of the decision to refuse the approval of an Authorised Program Officer, or revoke the appointment of an Authorised Program Officer.
Issues to consider
It is important to consider whether an NDIS provider should be able to apply to QCAT to review a decision by the Senior Practitioner to:
- refuse an application for approval of an appointment of an Authorised Program Officer (or similar role), or
- revoke the appointment of an Authorised Program Officer (or similar role).
