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Safeguards against Restrictive Practices

29 April 2021

The Disability Inclusion (Restrictive Practices - NDIS) Amendment Bill is before the Legislative Council. The Bill’s objective is to protect and improve the rights of people with a disability under the National Disability Insurance Scheme (NDIS) who may be subject to restrictive practices. Restrictive practices include seclusion and chemical, mechanical and physical restraints.

John Darley MLC has been supporting the Government’s Bill on the necessary changes to the Disability Inclusion Act 2018 to protect NDIS recipients from avoidable restrictive practices. However, he requires the Government, in this term, to bring before Parliament further legislation to safeguard other vulnerable groups including the aged with their in-home care services and in residential care.

The use of restrictive practices impacts on basic human rights and needs to be kept to an absolute minimum, and be a last resort, reflected in this Bill and similar legislation in other States. However, last resort use of restrictive practices is much broader than NDIS recipients and their providers.

Residents in residential care facilities also need strong safeguards against practices that violate their rights and best interests. Management of residents in residential care, where relevant, must also have the protection of a positive behaviour support plan that minimises the use of restrictive practices with the protection of legislation. Of particular relevance, in the existing Bill confined to NDIS providers, is the note that the use of restrictive practices is not authorised for “punishment or for the convenience of others; or to address inadequate levels of staffing, equipment or facilities.” This has applicability in aged care facilities and delivery of services in the home. South Australia has had tragic history in both. Hopefully, extending legislation to aged care will lead to outcomes of higher staffing levels, including 24 hour nursing, and address community concern and disquiet about the level of control over practices and quality of care in all residential care facilities and in-home services.

Similarly, care of children with special needs in schools or management of patients in health facilities need use of restrictive practices avoided wherever possible.

The Government is investigating legislation that will have a broader application and is strongly encouraged to move as quickly as possible.

Professor Richard Bruggemann, SA Senior Australian of the Year 2021, has provided advice to governments on disability services, legislation, inclusion and rights and been part of the special taskforce investigating the recent tragic death of Ann Marie Smith. Professor Bruggemann’s extensive experience has led him to the view that South Australia should have broader legislation on restrictive practices, citing legislation enacted in the ACT in 2018 which covers children in schools, under the guardianship of the Minister, and in the Youth Justice System, and will soon include older citizens in Aged Care Facilities.

There is considerable merit in the argument that overarching legislation, to cover all relevant vulnerable groups, who may be subject to restrictive practices, should be under the jurisdiction and oversight of the Attorney-General. In her role as chief law officer, control over restrictive practices seems to sensibly lie with her rather than the service and delivery agencies.

The whole community has had a taste of restrictions necessary arising from the pandemic. The Attorney-General has already shown commendable leadership in setting up legislative arrangements to regulate the use of restrictive practices for people who lack capacity in the COVID-19 Emergency Response Act, 2020. The Act balances the need for safety with a regard for rights.

John looks forward to all-party and cross-bench support for these necessary expanded reforms.