Last updated 15 February 2019
Some adults with an intellectual or cognitive impairment can exhibit behaviours that place themselves or others at risk of harm. To manage these risks in a way that ensures people are safe, restrictions are sometimes necessary. This is known as restrictive practices.
Queensland’s restrictive practices scheme is established under pt 6 of the Disability Services Act 2006 (Qld) (Disability Services Act) and ch 5B of the Guardianship and Administration Act 2000 (Qld). This regime seeks to ensure that restrictive practices used by service providers take account of the adult’s human rights and are the least restrictive ways of safeguarding them and others. The legislation applies only to:
- adults 18 years or over, who have an intellectual or cognitive disability and
- are at risk of harming themselves or others and who receive services from government-provided and/or government-funded disability service providers.
It does not apply to families, or private or non-funded organisations.
The introduction of the National Disability Insurance Scheme (NDIS) saw the Commonwealth Government play a major role in providing funding for people with disability. The National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) is the instrument for the implementation and oversight of restrictive practices used with adults who are participants of the scheme.
The rules are intended to support participants to be informed purchasers and consumers of NDIS supports and services, and to live free from abuse, neglect, violence and exploitation and are overseen by the NDIS Quality and Safeguards Commission (NDIS Commission).
The rules provide compatible requirements with state legislation and requires the lodgement of behaviour support plans with the NDIS Commission.
What is a restrictive practice?
Containment means to physically prevent the free exit of the adult from the place where the adult receives disability services, other than by seclusion. However the adult is not contained if the adult has a skills deficit and cannot safely exit the premises without supervision, and the adult’s free exit from the place is prevented by the locking of gates, doors or windows.
Seclusion means to physically confine the adult alone, at any time of the day or night, in a room or area from which free exit is prevented.
Chemical restraint means using medication for the primary purpose of controlling the adult’s behaviour. Using medication to treat a diagnosed mental illness or medical condition is not chemical restraint.
Physical restraint means using any part of another person’s body to restrict the adult’s movement for the primary purpose of controlling the adult’s behaviour.
Mechanical restraint means using a device to restrict movement of the adult or preventing or reducing the adult injuring themselves, for the primary purpose of controlling the adult’s behaviour.
Restricting access to objects
Restricting access to objects means restricting the adult’s access to an object to prevent the adult using the object to cause themselves or others harm.
Before gaining general approval to use restrictive practices, disability service providers must complete an assessment of the person and develop a positive behaviour support plan, which is designed to encourage positive behaviour. Family members, guardians, advocates and healthcare professionals should be consulted as part of this process.
Section 150 of the Disability Services Act provides that positive behaviour support plans must specify for each restrictive practice:
- why the restrictive practice is to be used in the circumstances
- how it is the least restrictive arrangement
- the procedure for using the restrictive practice
- the measures to ensure the adult is receiving proper care and treatment and is safeguarded
- the positive and negative effects of using the restrictive practice
- how often the arrangement will be reviewed.
For each particular restrictive practice, there may be further requirements that the support plan must include.
The use of seclusion and containment as well as other restrictive practices used in combination with seclusion and containment must be approved by the Queensland Civil and Administrative Tribunal (QCAT). Restrictive practice guardians can approve/consent to:
- chemical, physical and mechanical restraint
- restricting access to objects.
If there is no restrictive practice guardian, an informal decision maker can only approve restricting access to objects.
The decision maker must be satisfied that the restrictive practice is necessary and that it is the least restrictive way to keep the adult or others safe. Approvals last for a maximum of 12 months, after which time they are reviewed by QCAT to determine whether they are still necessary. However, QCAT can review the arrangements at any time.
Where there is immediate and serious risk of the person harming themselves or others, short-term approvals for the use of restrictive practices can be made for periods of up to six months.
The Public Guardian approves the short-term use of containment and seclusion. Approvals for short-term use of chemical, mechanical or physical restraints and restrictions to access are made by the person’s restrictive practice guardian or, in their absence, the Chief Executive of the Department of Health.
The legislation grants immunity to relevant disability service providers and individuals acting on their behalf in relation to restrictive practices, provided they have complied with the statutory requirements set out in pt 6 of the Disability Services Act.
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