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

This consultation is about possible options for reshaping part 6 of the Disability Services Act 2006 (DSA), which provides an authorising framework for the use of restrictive practices in NDIS and disability service settings. Consideration of the use of any restrictive practices in other service settings (for example, health facilities, residential aged care facilities, schools, early childhood education services, or the Forensic Disability Service) is out of scope.

On 24 July 2020, the then Disability Reform Council (now the Disability Reform Ministers Meeting) agreed to the draft national principles to guide the development of nationally consistent restrictive practices authorisation arrangements. Queensland has provided in-principle support for these principles, noting that significant work still remains to explore what they mean for Queensland.

This consultation asks for your feedback on how particular aspects of Queensland’s authorisation framework could be designed to ensure streamlined operation under the NDIS. The ideas for reform included in this consultation are ideas only at this stage, and your input will help shape the future design of Queensland’s authorisation framework.

Ideas for reform are listed below. By clicking on the button for any of the ideas, you will find information about that idea and questions seeking your feedback.

On 1 July 2019, the National Disability Insurance Scheme (NDIS) commenced full scheme operation in Queensland. The NDIS represents a fundamental change to how supports for people with disability are funded and delivered across Australia.

Under the National Disability Insurance Scheme Act 2013 (the NDIS Act), the NDIS Quality and Safeguards Commission (the NDIS Commission) has a behaviour support function to provide leadership in behaviour support and in the reduction and elimination of the use of restrictive practices by NDIS providers. This includes overseeing the use of behaviour support and restrictive practices, and assisting states and territories to develop a regulatory framework, including in relation to nationally consistent minimum standards for restrictive practices.

In recognition of the high level of safeguards achieved by the Queensland authorisation framework, minimal changes were made to that framework as part of Queensland’s transition to full scheme NDIS from 1 July 2019. The main change was that while Queensland remained responsible for the authorisation of restrictive practices in relation to NDIS participants, the NDIS Commission became responsible for all other aspects of the regulatory framework. Existing safeguards were maintained for specialist disability services provided outside the NDIS.

Under the DSA currently, the chief executive of Disability Services is solely responsible for conducting multidisciplinary assessments, and for developing and changing positive behaviour support plans, which involve containment or seclusion.

The Ministerial review found that these responsibilities should be removed to enable non-government service providers to also undertake these functions. This would better align with the NDIS principle of choice and control for people with disability and the draft national principles for restrictive practices authorisation, and would bring Queensland into line with arrangements in other jurisdictions. It would also appropriately recognise and support the increasing capacity of the market to undertake these functions.

The Ministerial review found that the practices of locking gates, doors or windows in response to a skills deficit—which are currently defined under the DSA as not being restrictive practices and are subject to a policy-based safeguarding framework—should instead be defined and regulated as restrictive practices. This would ensure the same level of safeguards apply to these practices as to other types of restrictive practices, and would achieve greater national consistency (given that these practices are considered restrictive practices under the relevant Commonwealth legislation).

This finding is consistent with the findings of the independent review. The regulation of the practices of locking gates, doors or windows in response to a skills deficit is also considered in more detail in subsequent sections of the consultation paper.

Complaints handling function

The Ministerial review found the regulation making powers at section 32A of the DSA, which allow service providers to be brought in or out of scope of Disability Services' complaints handling function in relation to the delivery of disability services, should be removed. The powers were included to ensure all relevant disability services were covered by either Disability Services' or the NDIS Commission's complaints handling functions, and that there were no circumstances in which a consumer did not have a formal avenue of complaint. However, these powers are unnecessary as all relevant service providers are already adequately covered.

Application of Queensland's restrictive practices framework

The Ministerial review found section 140 of the DSA should be amended to clarify that Queensland's restrictive practices framework (under part 6 of the DSA) only applies to disability supports and services provided by registered NDIS providers under an NDIS participant's plan, or funded or provided by Disability Services. The intention of section 140 of the DSA is to ensure that the restrictive practices framework applies to the provision of these supports and services, even if the service provider also uses other funds or resources to provide particular disability services. It is not intended that the DSA cover the field relating to the use of restrictive practices in other service settings, such as health and mental health services and schools.

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.

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)

• 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.

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.

Why is it important?

The purpose of carefully regulating the use of restrictive practices is to reduce, and ultimately to eliminate, their use. Where there are certain types of restrictive practices whose use is never justified or necessary, the law should make it clear that use of these practices is prohibited.

What do our current laws say?

The Disability Services Act 2006 (DSA) does not prohibit any type of restrictive practices. However, the DSA only permits the use of restrictive practices if it is in response to the adult’s behaviour that causes harm to the adult or others, and does not allow the use of a restrictive practice in a punitive manner or in response to behaviour that does not cause harm to the adult or others. The use of any restrictive practices is therefore not permitted under the DSA unless the use is necessary to protect the person restrained or others from harm.

Other important information

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

The Rules set out the conditions of registration that apply to all registered NDIS providers who use restrictive practices in the course of delivering NDIS supports. These conditions include requiring that restrictive practices not be used where the relevant state and territory prohibits such use.

Other jurisdictions

Most states and territories prohibit certain types of restrictive practices generally, as well as those prohibited just in relation to children or young people (under 18 years of age). For example, the following practices are prohibited in certain jurisdictions:

• aversion (any practice or action that may be experienced by a person as noxious, unpleasant or painful)
• overcorrection (any practice where the response to an event is disproportionate to the event itself)
• misuse of medication (where medication is administered to a person, contrary to the instructions of the prescriber, for the purpose of influencing the person's behaviour, mood or arousal levels)
• denial of key needs (any practice to prevent a person's access to basic needs or personal supports)
• use of prone or supine restraint (subduing a person by forcing them into a face-down or face-up position)
• basket holds (subduing a person by wrapping one's arm or arms around their upper and/or lower body)
• practices for the purpose of harassment or vilification or actions that are unethical, degrading or demeaning to a person or may be perceived by the person or the person's guardian as harassment or vilification
• practices or actions which limit or deny access or participation to community, culture and language, including the denial of access to interpreters, and
• in relation to a person under the age of 18 years – seclusion.

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.

Why is it important?

Aligning Queensland’s restrictive practice definitions with those in the Rules would set clear and consistent expectations for registered NDIS providers in relation to the provision of disability supports to NDIS participants, and the application of authorisation processes where the use of restrictive practices may be required.

What do our current laws say?

Part 6 of the DSA applies to adults with an intellectual or cognitive disability, meaning an adult with a disability who has a condition attributable to an intellectual or cognitive impairment, or a combination of the impairments.

The DSA regulates the following types of restrictive practices:

• containment: means physically preventing the free exit of the adult from premises, other than by secluding the adult, in response to the adult’s behaviour of harm. This may include locking doors, windows or gates, however it is not considered containment if an adult has a lack of road safety skills and a door is locked to prevent them wandering close to a road.
• seclusion: means physically confining the adult alone, in a room or area from which free exit is prevented, in response to the adult’s behaviour of harm.
• chemical restraint: means the use of medication for the primary purpose of controlling the adult’s behaviour of harm. This does not include using medication for treating a diagnosed mental illness or physical condition.
• physical restraint: means the use of any part of another person’s body to restrict the free movement of the adult in response to the adult’s behaviour of harm.
• mechanical restraint: means the use of a device to either restrict the free movement of an adult in response to the adult’s behaviour of harm, or to prevent or reduce self-injurious behaviour.
• restricted access: means restricting the adult’s access to an object, for example a kitchen drawer with knives, in response to the adult’s behaviour of harm.

The practice of locking of gates, doors and windows to prevent physical harm being caused to an adult with a skills deficit (for example, an adult with an intellectual or cognitive disability who cannot leave the premises unsupervised because he or she lacks road safety skills) is not within the definition of a ‘restrictive practice’ for the purposes of Part 6 of the DSA. However, the practice is still regulated under Part 8, Division 2 of the DSA to ensure protection of a person’s rights and liberties.

The DSA outlines who is the appropriate decision-maker for the authorisation of restrictive practices, which is different for different forms of restrictive practices (this is discussed in more detail in section 4.4). The DSA also includes the requirement that authorisation is dependent on a compliant positive behaviour support plan being in place. A positive behaviour support plan must be reviewed at least once every 12 months. This timeframe mirrors the Rules and is not proposed to be changed.

Other important information

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

The Rules apply to regulated restrictive practices which includes seclusion and chemical, mechanical, physical and environmental restraint. The key difference between the Rules and Queensland’s authorisation framework is the definition of environmental restraint under the Rules.

Under the Rules, environmental restraint means a person’s free access to all parts of their environment, including items or activities, is restricted. This broad definition encompasses both containment and restricted access as defined in the DSA.

In addition, the locking of gates, doors and windows in all circumstances is considered a restrictive practice within the definition of environmental restraint under the Rules. Unlike under Queensland’s framework, there are no unique provisions that apply where gates, doors and/or windows are locked to prevent physical harm being caused to an adult with a skills deficit.

Why is it important?

If streamlining the authorisation process for restrictive practices involved the creation of a new role of Senior Practitioner (or a similar role), the requirement for the Senior Practitioner to publish information on the performance of their functions will make it is possible to focus on what the evidence shows in Queensland, and to use this to directly inform policy and practice and to drive system-wide improvements.

What do our current laws say?

The chief executive of Disability Services currently has the following prescribed functions under the DSA:

• (a) conducting multidisciplinary assessments for the proposed use of containment or seclusion;
• (b) the development of positive behaviour supports plans that include containment or seclusion; and
• (c) providing short-term approvals for the use of restrictive practices other than containment or seclusion.

The chief executive does not currently publish information on the performance of these functions.

One idea put forward by this paper is the establishment of the role of a Senior Practitioner (or similar role) in Queensland. A Senior Practitioner (or similar role) could perform many of the authorising functions currently performed by the chief executive, the Public Guardian and QCAT.

Other important information

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

Under the NDIS Act, the NDIS Commissioner’s behaviour support functions include:

• overseeing the use of behaviour support and restrictive practices, including by collecting, analysing and disseminating data and other information relating to the use of behaviour supports and restrictive practices by NDIS providers, and
• undertaking and publishing research to inform the development and evaluation of the use of behaviour supports and to develop strategies to encourage the reduction and elimination of restrictive practices by NDIS providers.

Other jurisdictions

In Victoria, the Senior Practitioner role was established in 2006 through the enactment of the Disability Act 2006 (Vic).

Victoria has collected long-term population-level data on the use of restrictive interventions and behaviour support plans over 14 years.

This has enabled investigations into what has changed over time, and what factors have affected these changes. For example, in Victoria people with autism are more likely to be restrained over the long term (for periods over at least three years) with antipsychotic medication than people without autism.