Practices that restrict a person’s freedom (restrictive practices) are common in the disability sector, but their use and misuse can give rise to significant risks to the health and wellbeing of vulnerable people, breaches of human rights, litigation and reputational damage. While the use of restrictive practices is authorised in limited circumstances, recent data from the NDIS Commission demonstrates that over 1,000,000 instances of unauthorised restrictive practices occurred between 2020-2021.*
Given the prevalence and risk associated with restricted practices, it is critical that registered disability service providers understand and comply with their obligations in relation to regulated restrictive practices. This is particularly the case for where it is a condition of their registration with the National Disability Insurance Scheme (NDIS).
We note that this article is focused on registered disability service providers (Providers), as non-registered disability service providers must not provide services to participants or consumers which are regulated restrictive practices. Regardless of registration, non-registered disability service providers must comply with the NDIS Code of Conduct and ensure they provide safe and high-quality services.
What is a restrictive practice?
The National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) defines a restrictive practice as ‘any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with disability’. The primary purpose of a restrictive practice is to protect the restricted person, or other people, from harm. The National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (NDIS Rules), sets out five categories of restrictive practices that are regulated by the NDIS Commission:
- Seclusion: the confinement of a person to a room or a physical space;
- Chemical restraint: the use of medication or chemical substance for the primary purpose of influencing a person’s behaviour, such as medication to sedate a person;
- Mechanical restraint: the use of a device to prevent or restrict a person’s movement for the primary purpose of influencing a person’s behaviour, such as removing a communication device;
- Physical restraint: the use of physical force to prevent or restrict movement of a person’s body for the primary purpose of influencing their behaviour, such as holding a person down; and
- Environmental restraint: restricting a person’s free access to their environment, including items or activities, such as locking the door to a backyard area.
The use of restrictive practices for people with disability is highly regulated because of the risk that the practices pose. As the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission) has recently heard, restrictive practices can cause serious physical and psychological harm, including trauma, fear, shame, and loss of dignity. Restrictive practices can also reinforce power differentials and lead to a loss in autonomy.
The NDIS Rules set out conditions for the use of restrictive practices, which Providers must be aware of. These conditions include that the use of a restrictive practice must be:
- clearly identified in a person’s behaviour support plan;
- authorised according to any state or territory-based authorisation requirements;
- used as a ‘last resort’ mechanism in response to risk of harm, after consideration of other strategies;
- the least restrictive response available in the circumstances, and must be proportionate to the risk of harm posed; and
- used for the shortest possible duration to ensure the safety of the person or others.
When engaging in a restrictive practice, Providers should also consider:
- their reporting and record-keeping obligations;
- strategies for reducing or eliminating the use of restrictive practices over time;
- implementing practices that are trauma-informed;
- communicating the intention to use a restrictive practice, in a manner that is appropriate for the individual and their family;
- conducting a comprehensive risk assessment prior to implementing restrictive practices;
- collaboration with other professionals, including support workers and medical and allied health providers;
- the particular needs and circumstances of the person with disability, including culture, religion, beliefs, sexuality, linguistic circumstances, and gender; and
- conducting regular reviews of restrictive practices to ensure they are conducted properly and to gauge whether they remain necessary.
Key Takeaways for Providers
The Disability Royal Commission recently heard submissions from Providers and advocacy bodies, who identified key drivers for the inappropriate use of restrictive practices. Notably, the Royal Commission heard that excessive use of restrictive practices is often linked to low staff to client ratios, a lack of staff support, deficiencies in supervision, and insufficient resources and funding.
In light of the themes emerging from those hearings, Providers should consider the following actions to limit the use and misuse of restrictive practices:
- educate people with disabilities about their rights and what constitutes a restrictive practice;
- engage with people with disabilities, and their families and carers, to better understand their needs;
- improve training within the workforce in positive behaviour support and person-centred care;
- ensure staff understand and uphold the human rights of people with disability; and
- ensure appropriate workforce planning so that staffing profiles adequately reflect and address the needs of people with disability, and potential risks.
Reporting
The Rules provide for rigorous reporting requirements in relation to the use of restrictive practices, which are a condition of a Provider’s ongoing registration with the NDIS.
Where a restrictive practice has been authorised, and is part of a person’s behaviour support plan, the Provider needs to report each use of that restrictive practice to the NDIS Commission on a monthly basis.
Where a restrictive practice is used but has not been authorised for the person, the Provider is required to report each use of the restrictive practice to the NDIS Commission as a Reportable Incident. This includes where the use of the restrictive practice is a once-off in response to an emergency, and where the use of the restrictive practice is ongoing but has not been authorised or is not included in the person’s behaviour support plan.
Record keeping
The Rules also provide for stringent record-keeping requirements, as conditions of a Provider’s ongoing registration with the NDIS. Where a restrictive practice is used, a Provider must record and maintain the following information for seven years from the day the record is made:
- a description of the use of the regulated restrictive practice, including why the restrictive practice was used, what the impact of that practice was, whether there was any injury caused, and whether the use of the practice was a reportable incident;
- a description of the behaviour of the person with disability that lead to the use of the regulated restrictive practice;
- the time, date and place at which the use of the regulated restrictive practice started and ended;
- the names and contact details of the people involved in the use of the regulated restrictive practice, and of any witnesses;
- the actions taken in response to the use of the regulated restrictive practice;
- what other less restrictive options were considered or used before using the regulated restrictive practice; and
- the actions taken leading up to the use of the regulated restrictive practice, including any strategies used to prevent the need for the use of the practice.
Investigations
For a Provider to comply with its reporting and record keeping obligations, it may also be required to conduct an investigation into incidents and allegations of restrictive practices being used.
Providers who breach their obligations
Providers who breach their obligations risk losing their NDIS registration, and may face significant public scrutiny. Importantly, an organisation’s failure to comply with its obligations places people with disability at risk of harm and abuse.
Providers may also be liable for any harm or injury caused by their staff, and should take great care to provide staff with appropriate training and resources to ensure the safety and wellbeing of both their workforce and their clients.
How we can help
If your organisation would like assistance with understanding its obligations under the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018, the Moores Safeguarding team can assist. Our team is well-equipped to provide advice, draft and review policies, and respond to concerns.
Moores has expertise in harm prevention and mitigation for organisations working with vulnerable people. Moores can also conduct independent investigations, with a trauma-informed approach, to ensure that concerns are properly responded to, and to ensure the safety, well-being, and dignity of vulnerable people.
Contact us
Please contact us for more detailed and tailored help.
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*NDIS Quality and Safeguards Commission, Unauthorised uses of restrictive practices in the National Disability Insurance Scheme, January 2022.