SA Introduces Disability Inclusion (Restrictive Practices - NDIS) Amendment Bill 2021

Thursday 18 March 2021 @ 2.17 p.m. | Judiciary, Legal Profession & Procedure | Legal Research

The Disability Inclusion (Restrictive Practices - NDIS) Amendment Bill 2021 (SA) (the Bill) was introduced into the South Australian Legislative Council on 4 March 2021 by the Minister for Human Services, J M Lensink (MLC). In general terms, the Bill proposes to amend the Disability Inclusion Act 2018 (SA) to protect and improve the rights of South Australians with disability under the National Disability Insurance Scheme (the NDIS) who may be subject to the use of restrictive practices. The Bill also creates a new regime for the authorisation of the use of restrictive practices under the NDIS and supplements the existing legislative framework for NDIS participants.

According to the Minister, the changes proposed by the Bill will better protect vulenerable people:

“South Australia’s new scheme for the authorisation of restrictive practices will better protect the safety, welfare and dignity of some of the most vulnerable people in our community, . . .”

"[The Bill] will provide robust protection for NDIS participants of all ages, while allowing NDIS providers to fulfil their duty of care to staff and ensure participants are not at risk of harm to themselves or others."

Restrictive Practices

The "restrictive practices" addressed by the Bill are any practice or intervention that has the effect of restricting the rights or freedom of movement of a person, with the primary purpose of protecting the person or others from harm. The Bill attempts to address concerns that restrictive practices are often a first response for people with behaviours of concern, while current policy now recognises that restrictive practices can present serious human rights infringements.

The proposed changes aim to ensure that restrictive practices such as the use of "restraint and seclusion", are used only as a "last resort" and in accordance with individual behaviour support plans. The amendments proposed by the Bill are to:

  • Provide for the establishment of an NDIS Restrictive Practice Authorisation regime for South Australians with disability.
  • Create a streamlined legislative framework that provides greater protection and safeguards for NDIS participants.
  • Ensure restrictive practices such as physical restraint and seclusion are used only as a last resort.
  • Enable SA to comply with the national principles for restrictive practices authorisation.

The Current Position

Currently in SA, restrictive practices are regulated by a suite of legislation which includes the Mental Health Act 2009 (SA), the South Australian Civil and Administrative Tribunal Act 2013 (SACAT), the Advance Care Directives Act 2013 (SA), the Consent to Medical Treatment and Palliative Care Act 1995 (SA) and the Guardianship and Administration Act 1993 (SA). According to the Minister: 

"A preliminary assessment of the national principles indicates that there are gaps in our current system...  The Bill establishes a more simplified framework and will provide appropriate safeguards against unlawful use of restrictive practices. Under the existing legislative framework, South Australia uses a guardianship model to regulate restrictive practices, which gives a guardian the power to consent to restrictive practices, unless there is use of force or detention, in which case additional powers must be approved through application to the South Australian Civil and Administrative Tribunal (SACAT)." 

In her second reading speech, the Minister said all Australian governments have been working with the NDIS Quality and Safeguards Commission to develop a regulatory framework in relation to restrictive practices in line with the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) and the national principles for restrictive practices authorisation (the national principles) supported at the disability ministers' meeting on 24 July 2020 as "a key milestone in the path to national consistency". Other jurisdictions have enacted new legislation that complements the requirements of the NDIS Act and align with the national principles. 

Feedback to DHS on the Draft Version of the Bill

Key themes identified in the submissions received for the Draft - Disability Inclusion (Restrictive Practices-NDIS) Amendment Bill: Consultation Report, compiled by the SA Department of Human Services (DHS), include:

  • Consent was a key theme raised - whether people with disability should be consulted or required to consent to the use of restrictive practices. Views differed between if this should occur through a behaviour support plan development or the authorisation process. As a result the Bill has been  strengthened to include the requirement that: "the behaviour support plan was prepared in consultation with the prescribed person". Regulations and guidelines will further detail who will be consulted with in the development of the behaviour support plan.
  • The authority to authorise Restrictive Practices raised no issues for providers regarding the appointment of an authorised program officer to authorise restrictive practices. Advocates and peak bodies, however, raised it as a potential conflict of interest. The area will be further addressed as part of the development and implementation of the regulations, policy and guidelines which will clearly articulate a quality process in addition to review and appeal mechanisms.
  • Level 1 and Level 2 Terminology – There were differing views relating to the terminology. Some respondents said all restrictive practices are intrusive, and some called for stronger safeguards for higher risk practices including use of force only to be authorised by the South Australian Civil and Administrative Tribunal (SACAT). Others suggested a matrix approach as some practices are highly intrusive but low risk or low intrusiveness but high risk. 
  • South Australian Civil and Administrative Tribunal (SACAT) – Some respondents still did not understand SACAT’s role in the new legislative framework.
  • With respect to training the feedback suggested the Senior Authorising Officer should educate and train people with disability, family, carers or guardians in restrictive practices and people with disability should be engaged to support the training of staff/students. 
  • With respect to the scope of the Bill it was thought the authorisation process should encompass non-NDIS participants and providers, namely, schools, hospitals, youth justice.
  • The majority of respondents stated the Senior Authorising Officer and Authorised Program Officers must be skilled and have significant experience with feedback indicating the benefit of knowledge of disability services and experience in the field, tertiary education, working knowledge of law and human rights, person-centred and senior level management experience.
  • With respect to a Senior Authorising Officer a few respondents commented on the use of the term "Senior Authorising Officer", claiming it was not in line with other states who have a "senior practitioner" and believe that this will set SA back. DHS did not believe the title would impact the influence of the position and the role in SA differs as they are not the "senior practitioner for the state", with the role in other jurisdictions authorising restrictive practices in multiple environments, that is, not only for NDIS providers or the senior practitioner for the NDIS.

Operation of the Legislation

A media release by the Minister states that the SA Government is to use $5.8 million over a four year period to establish a new regulatory scheme and "restrictive practice authorisation unit" as part of the DHS to oversee the regulation required under the proposed Bill.  The funding would provide training for registered NDIS providers, as well as regular onsite assistance to ensure providers comply with the proposed new regulations. The scheme proposed by the Bill will authorise two levels of restrictive practices:

  • Low-level restrictive practices which include “environmental restraints” such as, locking cupboards, and would be authorised by an approved officer employed by a NDIS service provider.
  • High-level restrictive practices which are more intrusive and include physical restraints and seclusion and would only be able to be authorised by a DHS approved officer.

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