ACT Senior Practitioner for the elimination and reduction of restrictive practices
On 2 August 2018, the ACT Legislative Assembly passed the Senior Practitioner Act 2018 (the Act), which will come into effect on 1 September 2018. The legislation provides a formal framework for the reduction and elimination of restrictive practices by service providers in the ACT. It also provides the powers and functions of the Senior Practitioner.
What will the ACT Senior Practitioner do?
Mandy Donley has been appointed as the ACT’s inaugural Senior Practitioner, commencing in the role on 5 July 2018. The Senior Practitioner holds an executive position in the ACT Government.
The Senior Practitioner Act 2018 enables greater protection from the unnecessary use of restrictive practices by establishing a formal protection and oversight mechanism for the ACT. It enshrines the principle that providers should only use restrictive practices in very limited circumstances – as a last resort, in the least restrictive way and for the shortest period possible in the circumstances.
The intent of the legislation is not to enable the use of restrictive practices, it is to provide a formal framework for the reduction and elimination of restrictive practices by providers in the ACT.
The Act also provides an operational structure for the Senior Practitioner which reaffirms and strengthens the rights and responsibilities of vulnerable people and which recognises that this requires support across the government sector and within the community.
Under the Act, all uses of a restrictive practice must be reported to the Senior Practitioner.
The Senior Practitioner will help to guide decisions and provide education to foster positive alternatives to restrictive practices, which preserve a person’s rights and freedoms.
Use of a restrictive practice by a service provider is only permissible if used in a way that is consistent with a positive behaviour support plan for the person. The positive behaviour support plan must be approved by a registered behaviour support panel and registered by the Senior Practitioner.
Functions and powers of the Senior Practitioner
Under the Act, the Senior Practitioner has the following functions:
- To promote the reduction and elimination of the use of restrictive practices by providers to the greatest extent possible;
- To ensure, to the greatest extent possible, that the rights of people who may be subject to restrictive practices are protected;
- To develop guidelines and standards on the use of restrictive practices;
- To disseminate information, provide education, and give advice about restrictive practices and the rights of people who may be subject to them;
- To give directions to providers about the use of restrictive practices under positive behaviour support plans;
- To develop links and access to professionals, professional bodies and academic institutions for the purpose of promoting knowledge and training in restrictive practices;
- To carry out research and provide information on best practice options to providers;
- To undertake any other function as directed, in writing, by the Director-General, Community Services Directorate (CSD), or any other function given to the Senior Practitioner under the Act or another territory law.
The Senior Practitioner also has powers to:
- Receive complaints about anything done by a provider in relation to a positive behaviour support plan that permits the use of a restrictive practice, or about the use of a restrictive practice by a provider;
- Conduct investigations, either in response to a complaint or on their own initiative, where restrictive practices are a concern; and
- Issue a direction to a provider if, after investigating a complaint, the Senior Practitioner is satisfied on reasonable grounds that action needs to be taken in relation to a positive behaviour support plan and/or use of a restrictive practice.
Part 8 of the Act includes two offences, which will take effect from 1 July 2019. This will coincide with the start of the NDIS Quality and Safeguarding Framework in the ACT, and will give providers time to get ready to meet their legal responsibilities.
Delaying operation of the offence provisions will ensure the Senior Practitioner has time to engage, educate and work through implementation issues with service providers and people affected by the legislation.
Reporting of restrictive practices
Under the Act, all uses of a restrictive practice must be reported to the Senior Practitioner.
Information about reporting can be accessed on the Senior Practitioner website, at http://www.communityservices.act.gov.au/home/quality-complaints-and-regulation/senior-practitioner
What is a restrictive practice?
‘Restrictive practice’ means a practice that is used to restrict the rights or freedom of movement of a person for the primary purpose of protecting the person or others from harm.
It includes the following:
- chemical restraint;
- environmental restraint;
- mechanical restraint;
- physical restraint;
- verbal directions, or gestural conduct, of a coercive nature.
However, it does not include reasonable action taken to monitor and protect a child from harm; or
- holding a child’s hand while crossing a road
- fencing around a primary school
- a practice prescribed by regulation not to be a restrictive practice.
Who will the Senior Practitioner Act 2018 apply to?
The Act is specifically aimed at regulating the use of restrictive practices by service providers.
‘Providers’ are defined under the Act as persons or other entities who provide any of the following services to another person:
- care and protection of children;
- a service prescribed by regulation.
The legislation protects the rights of all individuals in the above settings, not just those with a disability.
The influence and leadership of the Senior Practitioner will also drive cultural change across all sectors where restrictive practices may be an issue.
Who will not be impacted by the Senior Practitioner legislation?
It is important to note that the Bill is aimed at regulating the use of restrictive practices by service providers. It does not apply to close family members or informal carers for the person, or an exempt entity.
The Bill makes specific exemptions for persons receiving care under the Mental Health Act 2015 (to the extent that Act applies), Mental Health (Secure Facilities) Act 2016 and those in custodial or prison detention (including the Bimberi Youth Justice Centre). This is due to existing oversight arrangements specific to those settings.
Health services are not included in the definition of provider and will not be included in the oversight.
Safeguarding Human Rights
The Act supports the ACT Government’s commitment to improving the lives of all people who are vulnerable and potentially subject to restrictive practices, as well as upholding their human rights.
The Human Rights Act 2004 says that rights can only be limited where the limitations are reasonable and demonstrably justifiable in a free and democratic society. The Senior Practitioner Act safeguards a number of human rights, including:
- Right to freedom of movement
- Protection from torture, inhuman or degrading treatment
- Protection of the family and children
Generally, restrictive practices will only be justifiable as a limit on human rights where there is an immediate risk to safety and the action taken is the least restrictive approach.
The Senior Practitioner will maintain links with the ACT Human Rights Commission to ensure there is always a high threshold for the use of any restrictive practice in the ACT.
Any restrictive practices identified that fall outside of the Senior Practitioner’s role will be reported to the relevant authority.
ACT Government’s experience in the provision of disability services led to the commencement of work on the oversight of restrictive practices in the ACT in 2012-13. The ACT work was broadened in 2015 to consider the inclusion of education services following an incident regarding the use of a restrictive practice in a school which led to widespread concern at the oversight of and support to those delivering services to people with complex and challenging behaviours.
Plans to establish an ACT Senior Practitioner have been informed by extensive community consultation. Between November 2016 and June 2017, consultants JFA Purple Orange heard from more than 70 key stakeholders about how an ACT Senior Practitioner might operate. Valuable feedback was provided by individual community members, as well as representatives of peak bodies, advocacy groups, service provider organisations, government and statutory agencies.
Further consultation occurred with those groups on the powers that should support the role, in February and March 2018. Key stakeholders have welcomed the Senior Practitioner providing greater clarity as to when the use of restrictive practices is authorised.
The legislation is compatible with the ACT’s commitments under the National Disability Insurance Scheme (NDIS) Quality and Safeguarding Framework and the National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Sector.
For more information, contact the Community Services Directorate on 133 427.
The ACT Government is committed to making its information, services, events and venues, accessible to as many people as possible.
If you have difficulty reading a standard printed document and would like to receive this publication in an alternative format – such as large print or audio – please telephone (02) 6207 0334.
If English is not your first language and you require the translating and interpreting services – please telephone 131 450.
If you are deaf or hearing impaired and require the Text telephone (TTY) Service, phone 133 677 then ask for 133 427.