Emerging problems with restrictive practices: considerations for registered disability service providers
Practices that restrict a person’s freedom (restrictive practices) are common in the disabled area, but their use and misuse can result in significant risks to the health and well-being of vulnerable individuals, human rights abuses, litigation and reputational damage. While the use of restrictive practices is permitted under certain circumstances, recent data from the NDIS Commission shows that over 1,000,000 instances of unauthorized restrictive practices occurred between 2020 and 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 applies in particular to cases where this is a condition of their registration with the National Invalidity Insurance Scheme (NDIS).
Please note that this article focuses on registered disability service providers (Offerer). Regardless of registration, unregistered disability service providers are required to comply with the NDIS Code of Conduct and ensure they are providing safe and quality services.
What is a restrictive practice?
That National Disability Insurance Act 2013 (Cth) (NDIS Law) defines a restrictive practice as “any practice or intervention which has the effect of restricting the rights or freedom of movement of a person with a disability”. The main purpose of a restrictive practice is to protect the restricted person or others from harm. That National Disability Insurance Scheme (Restrictive Practices and Behavioral Support) Rules 2018 (NDIS rules) establishes five categories of anti-competitive practices regulated by the NDIS Commission:
- Seclusion: the confinement of a person to a room or physical space;
- Chemical restraint: the use of drugs or chemical substances with the primary purpose of influencing a person’s behavior, such as B. Drugs to calm a person down;
- Mechanical fixation: the use of a device to prevent or restrict a person’s movement with the primary purpose of influencing a person’s behavior, such as B. the removal of a communication device;
- Physical restraint: the use of physical force to prevent or restrict the movement of a person’s body with the primary purpose of influencing their behavior, such as B. holding down a person; and
- Environmental Restriction: Restricting a person’s free access to their surroundings, including objects or activities, such as B. locking the door to a backyard area.
The use of restrictive practices for people with disabilities is heavily regulated because of the risk these practices pose. As the Royal Commission on Violence, Abuse, Neglect and Exploitation of Persons with Disabilities (Royal Disability Commission) recently heard, restrictive practices can cause severe physical and psychological harm, including trauma, fear, shame, and loss of dignity. Restrictive practices can also reinforce power differentials and lead to a loss of autonomy.
The NDIS rules set conditions for the use of restrictive practices that vendors need to be aware of. These conditions include the application of a restrictive practice got to be:
- uniquely identified in an individual’s behavior support plan;
- authorized pursuant to state or territory permitting requirements;
- used as a “last resort” in response to a risk of harm after considering other strategies;
- the least restrictive response in the circumstances, which must be proportionate to the risk of harm; and
- be used for as short a time as possible to ensure the safety of the person or others.
In engaging in a restrictive practice, providers should also consider the following:
- their reporting and record-keeping obligations;
- strategies to reduce or eliminate the use of restrictive practices over time;
- implementing practices that are trauma-informed;
- Communication of intent to apply a restrictive practice in a manner that is appropriate for the individual and their family;
- Conducting a comprehensive risk assessment before implementing restrictive practices;
- Collaborate with other professionals, including paramedics and medical and allied healthcare providers;
- the special needs and circumstances of the person with a disability, including culture, religion, belief, sexuality, language and gender; and
- Conducting periodic reviews of restrictive practices to ensure they are being carried out properly and to assess whether they are still required.
Key taking for vendors
The Disability Royal Commission recently heard submissions from providers and advocacy groups that identified important reasons for the inappropriate use of restrictive practices. In particular, the Royal Commission has heard that excessive use of restrictive practices is often related to low staff-to-client ratios, a lack of staff support, deficiencies in oversight and insufficient resources and funding.
Given the issues arising from these hearings, vendors should consider the following actions to limit the use and abuse of restrictive practices:
- educating 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 staff training in support of positive behavior and person-centred care;
- ensure that employees understand and uphold the human rights of persons with disabilities; and
- Ensuring appropriate staffing planning so that staffing profiles appropriately reflect and address the needs of people with disabilities and potential risks.
The rules impose strict reporting requirements regarding the use of restrictive practices, which are a condition of a provider’s ongoing registration with the NDIS.
When a restrictive practice has been approved and is part of an individual’s behavior support plan, the provider must report any use of that restrictive practice to the NDIS Commission on a monthly basis.
If a restrictive practice is applied but has not been approved for the individual, the provider is required to report any application of the restrictive practice to the NDIS Commission as a reportable incident. This includes when use of the restrictive practice is a one-off response to an emergency and when use of the restrictive practice is ongoing but not authorized or included in the person’s behavioral support plan.
The rules also provide for strict record-keeping requirements as a condition of a provider’s ongoing registration with the NDIS. If a restrictive practice is employed, a provider must record and retain the following information for seven years from the date of recording:
- a description of the use of the regulated restrictive practice, including the reasons for using the restrictive practice, the effects of that practice, whether injuries were caused, and whether using the practice was a reportable incident;
- a description of the person’s conduct that resulted in the use of the regulated restrictive practice;
- The time, date and place the application of the regulated restrictive practice began and ended;
- the names and contact details of those involved in the application of the regulated restrictive practice and any witnesses;
- the actions taken in response to the application of the regulated restrictive practice;
- what other less restrictive options were considered or used before the regulated restrictive practice was applied; and
- the actions that led to the use of the regulated restrictive practice, including any strategies used to prevent the need to use the practice.
In order for a vendor to comply with its reporting and record-keeping obligations, it may also be necessary to conduct an investigation into incidents and allegations of restrictive practices.
Providers who breach their obligations
Vendors who fail to meet their obligations risk losing their NDIS registration and may face significant public scrutiny. Importantly, an organization’s failure to meet its obligations puts people with disabilities at risk of harm and abuse.
Providers can also be held liable for any damage or injury caused by their employees and should take great care to provide staff with adequate training and resources to ensure the safety and welfare of both their employees and their customers guarantee.