Reduction and elimination in the use of restrictive practices

Efforts across governments have not made sufficient progress in reducing and eliminating the use of restrictive practices

Restrictive practices are practices or interventions that restrict the freedom of movement or rights of a person with disability.²⁶⁰ Restrictive practices are often used in response to behaviours displayed by a person with disability that others interpret as posing a risk, either to the person with disability or other people around them.²⁶¹ There is a long history of people with disability - particularly people with Autism, intellectual disability and psychosocial disability - being subject to restrictive practices, with little regard for the rights and dignity of the person against whom they are being used.²⁶² We have heard that these practices have become entrenched in some settings and that providers often use restrictive practices out of convenience or habit.²⁶³

Data collected gives a picture of the widespread routine use of restrictive practices. In the 2021-22 financial year alone, over 1.4 million individual instances of unauthorised restrictive practices were reported.²⁶⁶This is a shocking and unacceptable statistic. In addition, the number of participants subjected to regulated restrictive practices overall continues to grow, with 12,717 participants reported in April to June 2023 (around 2.1 per cent of all participants).²⁶⁷

There are several types of restrictive practices reflected in this data, with chemical restraint and environmental restraint the most commonly used.

Figure 15: Types of regulated restrictive practices²⁶⁸

All Australian governments have agreed to principles and strategies to encourage the reduction and elimination of these practices, in line with their obligations under the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD).²⁶⁹ This includes the 2014 National Framework for Reducing and Eliminating Restrictive Practices in the Disability Service Sector and the 2020 Principles for Nationally Consistent Authorisation of Restrictive Practices.²⁷⁰ In addition, all Australian governments have also agreed on a national list of prohibited practices, which are types of restrictive practices that are harmful and should never be used against a person (including specific forms of physical restraint, as well as punitive and aversive strategies).²⁷¹

In the NDIS, efforts have been led by the NDIS Quality and Safeguards Commission (NDIS Commission) in partnership with state and territory authorities. The key regulatory strategy for reducing and eliminating restrictive practices in the NDIS is the requirement for providers to have all use of restrictive practices authorised in accordance with state and territory requirements and documented in a behaviour support plan produced by an approved behaviour support practitioner and lodged with the NDIS Commission. The intention of this approach is to focus efforts on the development of non-restrictive approaches to understanding, preventing and responding to behaviours of concern.²⁷²

More data has been made available on the use of these practices than ever before, and guidance and resources to improve the delivery of behaviour support that reduces or eliminates the use of restrictive practices have been created.

Despite these efforts, the use of restrictive practices, and particularly unauthorised use, remains persistently and disturbingly high. This persistent use of restrictive practices represents continued breaches of human rights for people with disability and is unacceptable. The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission) has also emphasised the need for action to reduce and eliminate restrictive practices, including by improving the legal framework for authorising these practices and improving access to behaviour support planning.²⁷³ We agree and feel additional steps can be taken to meaningfully reduce the use of these practices.

All governments have responsibilities for regulating and monitoring restrictive practices. In practice, however, there remains limited consistency, coordination and collaboration in the system. For example, state and territory agencies have raised concerns about insufficient sharing of information from the NDIS Commission.²⁷⁴ Providers have also identified challenges with duplicative reporting requirements.

In addition, some jurisdictions have failed to implement nationally agreed approaches. For example, the Principles for Nationally Consistent Authorisation of Restrictive Practices (the Principles) set out the respective functions of the NDIS Commission and state and territory authorities in the authorisation and monitoring of restrictive practices.²⁷⁶ However, the Principles have not yet been fully implemented by states and territories and the authorisation practices of each state and territory continue to differ and are not always aligned to best practice.²⁷⁷ Currently, authorisation processes in only four states and territories are considered to be fully aligned with the Principles.²⁷⁸Furthermore, while the Senior Practitioner model is recognised as the best practice approach for the authorisation of restrictive practices,²⁷⁹ this approach has only been implemented (or is in the process of being implemented) in four states and territories.

This inconsistency and slow progress on implementation create further risks for people with disability already at significant risk of violence, abuse, neglect, exploitation and poorer quality of life. It has also led to confusion for providers and behaviour support practitioners.

Similarly, since the Disability Reform Council agreed a national list of prohibited practices in December 2019,²⁸⁰ states and territories have made varying progress towards prohibiting these practices.²⁸¹ This has left too many participants unprotected against practices that are recognised as harmful.

Corrective actions are focused too heavily on reporting compliance over deterrence. The NDIS Commission has developed reporting mechanisms for the use of restrictive practices by registered NDIS providers. However, regulatory action has focused on raising awareness and collecting reports of unauthorised restrictive practice use, rather than taking compliance action against the ongoing use of restrictive practices.

We have also heard particular concerns about certain interventions and practices that may be harmful to people with disability or have significant risks of unintended consequences (such as some interventions and practices under Applied Behavioural Analysis). We have heard concerns that these interventions and practices may not be neurodiversity affirming, strengths based or consistent with the human rights principles underpinning the NDIS; and that there is a limited evidence base for their safety and cost effectiveness. We note some of these interventions and practices may already be considered prohibited practices (for example, punitive strategies involving punishment) - reinforcing the need for rapid action to legislatively prohibit these practices, consistent with the existing agreement.

There are ongoing concerns about the low quality of many behaviour support plans

A behaviour support plan (BSP) is a document prepared in consultation with a person with disability, their family, carers, and other support people to address the needs of a person identified as having complex behaviours of concern. The aim of behaviour support is to reduce and eliminate restrictive practices.

We have heard consistent concerns around the quality of BSPs for NDIS participants. In 2022, the NDIS Commission undertook a review of 2,744 BSPs submitted between 1 July 2020 and 31 December 2021.²⁸² This found 80 per cent of BSPs were scored as “underdeveloped” or “weak” overall. The national median score fell in the weak range. BSPs scored particularly poorly in domains related to building a participant’s capacity to proactively prevent the behaviour from emerging. We have also heard significant concerns that many BSPs are not being written in a way that supports their implementation.

A good quality BSP is associated with improved outcomes, better quality of life and reduced use of restrictive practices. A poor quality BSP can perpetuate poor outcomes, low quality of life and greater use of restrictive practices.

Inadequate funding for BSP development and implementation is also contributing to poor outcomes, and ultimately a lack of progress in reducing and eliminating restrictive practices. The current funding approach for the development and implementation of BSPs involves participants being allocated funding as part of their NDIS plans. However, this approach is not timely or responsive to urgent safeguarding issues, as a full plan review is needed to enable access to funding for a BSP (if one is not already in place). This does not reflect the regulatory obligations on a provider to seek the development of a BSP regardless of whether it has been funded in the participant’s plan. We have heard that there is a high degree of variability in terms of funding allocated in plans for behaviour support, and that there is often insufficient funding available to train staff on how to implement BSPs. We have also heard concerns that the process of developing a BSP is outside the control of providers, and so unauthorised restrictive practices may be employed while waiting for a participant to receive behaviour support funding or for a behaviour support practitioner to be available.²⁸⁴

In addition, both BSPs and other actions must take into account environmental factors that impact the need for restrictive practices to be used. For example, inappropriate dwelling design or residents in a shared house who have needs for very different living arrangements can add to the need for more intensive restrictive practices and behaviour support. These situations point to the need for more appropriate housing and so form part of our recommendations on home and living (see Recommendations 8 and 9).

Providers continue to use restrictive practices for a range of reasons, and need more support to shift their approach

Participants, families and carers have told us a continued overreliance on restrictive practices by NDIS providers and workers leaves people with disability at significant risk of harm. By normalising the violation of participants’ rights, this can undermine the ability of both people with disability and workers to recognise and respond to violence.²⁸⁵

We have heard particular concern around restrictive practices becoming entrenched in congregate care settings, such as group homes.²⁸⁶ There is a perception that providers often use restrictive practices out of convenience, because it is what they have always done, or under the guise of participant or staff safety.²⁸⁷ Submissions from providers left the impression that more emphasis is placed on authorisation of and reporting on restrictive practices, instead of prioritising reduction and elimination.

We acknowledge the significant efforts required by behaviour support practitioners, providers and workers to move away from historical practices of restriction in disability services. However, we strongly believe providers must take responsibility for the reduction and elimination of restrictive practices. It is critical that all providers build a positive rights-based culture and ensure they have the capability and strategies needed to reduce and eliminate the use of restrictive practices.²⁸⁸ The NDIA through reasonable and necessary supports and funding approaches for 24/7 living supports, Navigators and Shared Support Facilitators also have important roles to play in ensuring appropriate living arrangements (see Recommendations 4 and 8).