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Restrictive practices by registered NDIS providers

In this section, the following definitions apply:

Restrictive practice is ‘any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with disability’ [NDIS Act s 9]. There are five restrictive practices subject to regulation [NDIS (RP) Rules r 6, DI Act s 23B(1)]:

  • Seclusion – keeping a participant alone in a room or area where they cannot leave (or think they cannot leave)
  • Chemical restraint – giving medication to a participant to change or control behaviour other than for the treatment of a diagnosed medical condition
  • Mechanical restraint – using a device to restrict or prevent a participant’s movement due to their behaviour
  • Physical restraint – using force on a participant or a part of the participant’s body to limit their movement
  • Environmental restraint – limiting a participant’s access to their environment, including items or activities

A registered NDIS provider may only use regulated restrictive practices in accord with a participant’s behaviour support plan [NDIS (RP) Rules r 10]. If there is no current behaviour support plan, the provider must take all reasonable steps to facilitate the development of a plan [NDIS (RP) Rules r 11 and 12] and report any unauthorised use of restrictive practices [NDIS Act s 73Z(4)].

The Restrictive Practices Authorisation Scheme in South Australia

From 30 May 2022, the use of restrictive practices on children and adults with disability in South Australia is limited and controlled by the Restrictive Practices Authorisation Scheme (the Scheme). The Scheme operates pursuant to:

  • The DI Act
  • The DI (RP) Regulations
  • The Restrictive Practices Guidelines (SA)
  • The NDIS Act
  • The NDIS (RP) Rules.

The Scheme applies to a person with a disability who is a NDIS participant receiving services or supports from a NDIS service provider [DI Act Part 6A, NDIS (RP) Rules r 9(2)]. It is managed by the Department of Human Services Restrictive Practices Unit.

The Scheme provides that authorisation must be obtained from the Restrictive Practices Unit in order for restrictive practices to be used for a particular participant, except in some emergency situations. It remains a requirement that restrictive practices are only used in accord with the behaviour support plan, if there is one [NDIS Restrictive Practices Rules s10(2)].

A prescribed NDIS provider may only use restrictive practices if there is no other way to minimise the risk of harm, or to prevent further harm, reasonably available in the circumstances [DI Act s 23M(2)]. Risk of harm includes:

  • causing or threatening to cause harm to the participant or another person, including physical and mental harm [DI Act s 23B(2)]
  • causing or threating to cause harm to property [DI (RP) Regulations reg 6(a)]
  • causing human biological material to come into contact with a person or object [DI (RP) Regulations reg 6(b)]

A person may use reasonable force in the course of using restrictive practices under the DI Act, however the use of force must be a last resort [DI Act s 23M(4)].

Restrictive practices may be used in relation to a NDIS participant without the consent of the participant, despite the refusal of the participant and even if the participant is a child [DI Act s 23M(5)-(6)]. The Restrictive Practices Guidelines (SA) require that a participant’s informed consent or refusal, and that of their guardians (if any), are to be considered and documented. They are also to be included in applications for authorisation (see Authorisation pursuant to the Scheme below).

Restrictive practices cannot be used, or authorised to be used, on a participant [DI Act s 23M(1)]:

  • As a punishment or for the convenience of others; or
  • To address inadequate levels of staffing, equipment or facilities.

Some restrictive practices are prohibited entirely [DI (RP) Regulations reg 8].

Detention, directing where someone will live or whether someone can leave a premises or part of a premises (even with prior approval), cannot be authorised by the Scheme and remains the jurisdiction of the South Australian Civil and Administrative Tribunal SACAT. However, confinement in an emergency situation for not more than two hours and for the purpose of de-escalation or self-regulation may not constitute detention under the Scheme [DI (RP) Regulations reg 7].

The Scheme does not limit the operation of orders made, or able to be made, pursuant to other legislation, such as the Guardianship and Administration Act 1993 (SA), the Mental Health Act 2009 (SA), the Advance Care Directives Act 2013 (SA) or the Children and Young People (Safety) Act 2017 (SA) [DI Act s 23F(3)].

Authorisation pursuant to the Scheme

Authorisation under the Scheme can be provided by:

  • The Senior Authorising Officer appointed by the Chief Executive – for level 1 and level 2 restrictive practices [DI Act s 23O]
  • Authorised Program Officers appointed by the Senior Authorising Officer in respect of prescribed NDIS providers (being a member of staff of a NDIS provider) [DI Act s 23L] – for level 1 restrictive practices used by that particular NDIS provider [DI Act s 23N]

Level 1 and level 2 restrictive practices are defined in regulations 4 and 5 of the DI (RP) Regulations.

A Scheme authorisation can only be made on the belief on reasonable grounds that [DI Act s23N and 23O]:

  • The participant is displaying behaviour that constitutes a risk of harm (to persons or property)
  • The use of the proposed restrictive practices is necessary to minimise the risk of harm (or prevent further harm being caused)
  • The participant has a behaviour support plan which was prepared in consultation with the participant
  • The use of the proposed restrictive practices was contemplated by, or is consistent with, the behaviour support plan

The authorisation must be in writing and set out the kinds of restrictive practices authorised to be used and any conditions or limitations on their use [DI Act ss 23N and 23O]. The authorisation must be lodged with the Commission (NDIS RP Rules rr 9 and 10).

If restrictive practices are used in shared residential settings, the impact on others living at the home must be reduced where possible (for example, by providing keys or access codes to other residents who do not require such restrictive practices [Restrictive Practices Guidelines (SA)].

A prescribed NDIS provider using, or attempting to use, authorised level 1 or level 2 restrictive practices has the authority to follow a participant, and to search a participant’s clothing or possessions for anything that may cause harm to the participant or others or to property (and to retain such items) [DI Act s 23N(5) and 23O(6)].

It is an offence to hinder or obstruct a prescribed NDIS provider in relation to the use of restrictive practices. The maximum penalty is $5,000 [DI Act s 23ZB].

Authorisation of level 1 or level 2 restrictive practices can be revoked by the Senior Authorising Officer [DI Act s 23P].

Review of Scheme decisions

Decisions of Authorised Program Officers and prescribed NDIS providers regarding restrictive practices can be reviewed by the Senior Authorising Officer [DI Act s 23Y].

Decisions of the Senior Authorising Officer can be reviewed by the South Australian Civil and Administrative Tribunal (SACAT) [DI Act s 23Z]. Applications can be made by the participant or the participant’s family members, guardian, nominated advocate or prescribed NDIS provider [DI (RP) Regulations reg 14].

Applications for review must be made within 30 days of the date of the decision.

Restrictive practice reporting

The use of regulated restrictive practices must be reported to the Commission if:

  • There was no authorisation under the Scheme for such use [NDIS Act s 73Z(4)]; or
  • There was authorisation under the Scheme but the use was not in accordance with a behaviour support plan for the participant [National Disability Insurance Scheme (Incident Management and Reportable Incidents) Rules 2018 r 16(3)].

A NDIS provider must report the incident to the Commission within five days [National Disability Insurance Scheme (Incident Management and Reportable Incidents) Rules 2018 r 5].

Registered NDIS providers using regulated restrictive practices must provide a monthly report to the Commission on such use in NDIS funded services [NDIS (RP) Rules r 14]. Providers are required to maintain records to support their reports [NDIS (RP) Rules r 15].

Restrictive practices by registered NDIS providers  :  Last Revised: Thu May 26th 2022
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.