Up until now, states and territories have been responsible for establishing their own framework for behaviour support and restrictive practice oversight in the disability services sector. These approaches vary widely and range from regulation through disability services legislation, broader legislative commitment, government policy, to codes of practice. They also employ a diverse range of definitions and reporting regimes. In 2014 Commonwealth, State and Territory Disability Ministers endorsed the National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Service Sector and agreed to move to a national approach on this issue. The National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (NDIS Rules) have now been released that set out NDIS provider obligations in relation to the use of restrictive practice. The use of seclusion, mechanical restraint, physical restraint, environmental restraint and chemical restraint are all regulated restrictive practices under the NDIS.
A key part of NDIS readiness is to understand the difference between the framework you have been operating in and your new regulatory environment. In preparation for our upcoming Quality and Safeguarding workshops we have been busy analysing the NDIS Rules and the behaviour oversight function of the NDIS Quality and Safeguarding Commission against existing state and territory regimes so we can better explore these differences with you.
Conceptualising the nuances between state and territory practices and the new national requirements has been no easy task and reinforces the need to streamline our approach.
Take a restrictive practice such as seclusion, the NDIS Rules state that seclusion ‘is the sole confinement of a person with disability in a room or a physical space at any hour of the day or night where voluntary exit is prevented, or not facilitated, or it is implied that voluntary exit is not permitted.’ Some differences we can see against the state and territory approaches include:
In QLD the current regulatory framework applies only to adults with a cognitive or intellectual disability whereas the NDIS rules apply to all NDIS participants.
Over in WA the current definition of seclusion is similar but some examples of psychosocial restraint could also fit the NDIS description of seclusion.
The ACT have recently introduced new legislation that means that seclusion will be regulated not just in disability services but also in education and child protection.
The NT regulatory framework appears to apply solely to seclusion at a facility operated by the Territory government.
NSW have adapted the NDIS definitions, which combine what they formerly differentiated as seclusion and exclusionary timeout.
TAS have what they call a personal restriction but in the absence of clear state guidelines about the practice of seclusion, it is difficult to anticipate the significance of the changes.
We are really pleased to see such strong commitment and leadership from the Commission in reducing and eliminating the use of restrictive practices. A move to a nationally consistent approach is no doubt a good thing, but there is considerable work to be done in educating ourselves and our staff about this newly regulated regime. Providers must be confident that they understand their obligations in an NDIS world. If you would like to join our workshop and have some specific questions relating to the use of restrictive practices and positive behaviour support we encourage you to send your questions here. We can’t promise to have all the answers but we will do our best to unpack these complexities, so we are all the more informed in this national approach.