Restrictive practices and the role of OPG
Presentation transcript
Welcome to this presentation on restrictive practices.
In this session, we'll explain what restrictive practices are, why they matter, the legislation that governs them, how decisions are made, and when and how restrictive practices apply.
We'll define the types of restrictive practices, explain the roles of different decision makers, and clarify the difference between short term approvals and ongoing consent.
We'll also address chemical restraint versus health care decisions, discuss some common challenges, and highlight the safeguards and protections in place.
Although we acknowledge there is a range of restrictive practices, we focus on restrictive practices in Queensland that require authorisation as defined in the Disability Services Act 2006.
But first, we begin by acknowledging the Traditional Custodians of the lands across Queensland. We pay our respects to Elders past, present and emerging, and recognise their continuing connection to land, waters and culture.
The legislative framework for restrictive practices is complex.
The Public Guardian Act 2014 establishes our role, the Guardianship and Administration Act 2000, and the Disability Services Act 2006 provide the main requirements around consent and approvals.
At a national level, the NDIS (the Restrictive Practices and Behavior Support Rules) 2018 also apply.
The Human Rights Act 2019 overlays everything we do, requiring us to actively protect and promote human rights.
What are restrictive practices?
Restrictive practices are measures used to prevent a person from causing physical harm to themselves or others.
They limit a person's freedom so the law strictly controls how and when they can be used.
They are only to be used as a last resort after all other safe and less restrictive strategies have been tried and found not to work.
Safeguards are central to this system, and the Queensland Civil and Administrative Tribunal reviews authorisations regularly.
The Office of the Public Guardian provides oversight and complaints mechanisms are available for any concerns.
The Human Rights Act 2019 requires that dignity, participation and independence are promoted.
Transparency and accountability have built into the framework, ensuring that restrictive practices are never used lightly or without scrutiny.
It is important to note the differences between the National Disability Insurance Scheme and Queensland's Disability Services Act, as there is often confusion around the two.
The NDIS rules apply across Australia and focus on NDIS participants.
In Queensland, the Disability Services Act 2006 still applies to some funded disability services, meaning some providers must meet both sets of rules.
Both systems share the same goal: to reduce the use of restrictive practices and ensure any use is carefully justified, documented and reviewed.
NDIS defines restrictive practices as any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with disability.
Under the NDIS rules 2018, certain restrictive practices are subject to regulation.
These regulated restrictive practices include seclusion, chemical restraint, mechanical restraint, physical restraint and environmental restraint.
Queensland's Disability Services Act applies to adults over 18, or with an advanced appointment under section 13A of the Guardianship and Administration Act 2000, who: have an intellectual or cognitive disability, and are receiving a disability service from a funded service provider, and have behavior that represents a risk of harm to themselves or others.
Outside these criteria, restrictive practices legislation does not apply.
Under this act, a restrictive practice includes any of the below practices used to respond to the behavior of an adult with an intellectual or cognitive disability that causes harm to themselves or others.
Containing or secluding the adult, using chemical, mechanical or physical restraint on the adult, and restricting access to the adult.
Harm to a person may include: physical harm to the person, or a serious risk of physical harm to the person, or damage to property involving a serious risk of physical harm to the person.
To contain an adult with an intellectual or cognitive disability means to physically prevent the free exit of the adult from premises where the adult receives disability services other than by secluding the adult in response to the adult's behavior that causes harm to the adult or others.
However, the adult is not contained if the adult is an adult with a skills deficit under part 8, division 2, and the adult's free exit from the premises is prevented by the locking of gates, doors or windows under that part.
To seclude an adult with an intellectual or cognitive disability means to physically confine the adult alone, at any time of the day or night, in a room or area from which free exit is prevented in response to the adult's behavior that causes harm to the adult or others.
Chemical restraint means the use of medication for the primary purpose of controlling the adult's behavior in response to the adult's behavior that causes harm to the adult or others.
However, the following are not chemical restraint:
Using medication for the proper treatment of a diagnosed mental illness or physical condition.
Using medication, for example, a sedative prescribed by a medical practitioner to facilitate or enable the adult to receive a single instance of healthcare under the Guardianship Administration Act 2000.
To remove any doubt, it is declared that an intellectual or cognitive disability is not a physical condition, and it's critical to distinguish between health care and chemical restraint.
When medication is prescribed for the proper treatment of an illness or condition, it is a health care decision.
When medication is prescribed primarily to control behavior, it is considered chemical restraint.
Different consent pathways apply and service providers must be clear about the purpose of the medication.
Physical restraint means the use, for the primary purpose of controlling the adult's behavior, or any part of another person's body to restrict the free movement of the adult in response to the adult's behavior that causes harm to the adult or others.
Physical restraint can include blocks, holds, deflects, redirection, hair-pull releases, and many more.
Restricted access to objects is restricting the adult's access at a place where the adult usually receives disability services to an object in response to the adult's behavior that causes harm to the adult or others.
To prevent the adult using the object to cause harm to the adult or others.
Examples can include sharps, forks, glass, and china, pantry, fridge and freezer, and electrical items, but this list is not exhaustive.
It is important to note that restrictive practice laws under the Disability Services Act do not apply to hospitals or health services.
In those settings, care is guided by clinical policy and the Mental Health Act, when relevant.
As an example, Queensland Health have their own policies for physical restraint, mechanical restraint and seclusion.
For guardians.
They can consent to health care, but cannot authorise the use of force.
If reasonable force is needed to deliver care that has been lawfully consented to, that decision rests with the health provider, as outlined in section 75 of the Guardianship Administration Act, 2000.
Several decision makers have roles in restrictive practices.
The Public Guardian can approve some practices, the Queensland Civil and Administrative Tribunal has authority for certain approvals, an appointed guardian, a private guardian, or the Public Guardian can make decisions in some circumstances and informal decision makers may approve in other circumstances.
For example, restricted access to objects only.
To understand who is the decision maker and in which context, it is best to first understand whether short term approval or full approval or authorisation is needed for the restrictive practice.
Short term approvals last up for up to 6 months, and full approvals last up to 12 months.
For short term approvals, the Public Guardian can improve containment and seclusion.
Department of Family, Seniors, Disability Services and Child Safety can authorise mechanical, physical and chemical restraint, and restricted access to objects approval.
For ongoing consent beyond 6 months, only the Queensland Civil and Administrative Tribunal, or guardian, has the authority to authorise use.
For physical, mechanical, and chemical restraint, and restricted access to objects, only a Queensland Civil and Administrative Tribunal appointed guardian, private or the Public Guardian can approve this.
A guardian or informal decision maker can approve restricted access to objects beyond 6 months.
When guardians at the Office of the Public Guardian consider a request to approve restrictive practices, we follow a variety of frameworks and policies.
These include the structured decision making framework, the Human Rights framework, the Guardianship Restrictive Practices framework, and the Office of the Public Guardian's Restrictive Practices Policy.
When making decisions, we assess whether the proposed action is necessary, proportionate and in the person's best interests.
We also consider the person's wishes, preferences and views, and may involve key supports where possible.
Before consenting, we assess risks, benefits and alternatives.
The goal is always to protect the person's rights while maintaining their safety and wellbeing.
It's important to note that we can't make a restrictive practices decision without a Positive Behavior Support Plan - more on that soon.
To apply for short term approval to use containment and or seclusion, you must be a disability services provider.
You must also be seeking the restrictive practice on an adult with impaired decision making ability, who has an intellectual or cognitive impairment.
To access the form, visit the 'Apply for approval to use restrictive practices on people with disability' page on the Office of the Public Guardian's website.
Navigate to the 'Short term approval to use containment and/or seclusion' section and download the application form.
Once completed, the form can be emailed to publicguardian@publicguardian.qld.gov.au.
After you email the form, please ensure you also apply to the Queensland Civil and Administrative Tribunal for a containment and or seclusion and other restrictive practices hearing as soon as possible.
You also need to engage with the Department of Family, Seniors, Disability Services and Child Safety.
If you have any questions, you can call us on 1300 653 187.
For chemical restraint, it's important to provide detailed information about the medication.
This includes the name of the medication, the frequency and dosage of administration, and evidence of past administration.
For example, you'll need to include information about how often the medication has been used in the past and the outcomes observed.
Additionally, health monitoring is a key component.
You'll need to provide observations of any side effects the adult has experienced, as well as the results of any relevant health checks.
This ensures that the medication is being used safely and effectively.
Finally, it's important to include the views of all relevant stakeholders such as health professionals, family members and carers regarding the use of chemical restraint.
This helps to ensure that the decision is well informed and considers the perspectives of those who know the adult best.
For mechanical restraint, you'll need to provide a detailed description of the device being used.
This includes evidence that the device is standard, accredited, or designed by an appropriate professional, such as an occupational therapist.
You'll also need to include information about the maximum duration of use per instance, and the frequency of use per 24 hour period.
It's important to justify why the proposed duration and frequency are the least restrictive options available.
For physical restraint, you'll need to provide a clear description, or even a diagram of the physical restraint techniques that will be used.
Similar to mechanical restraint, you'll need to provide evidence that these techniques are standard, accredited, or designed by an appropriate professional.
Additionally, you'll need to include information about the training provided to support staff on the use of physical restraint.
For both types of restraint, you must include a reduction or elimination plan.
This plan should detail how support staff will test whether the restraint is still necessary, and how it can be reduced or eliminated over time.
These requirements ensure that the use of mechanical or physical restraint is carefully considered, justified, and monitored to protect the adult's safety and dignity.
Finally, let's discuss the requirements for applications involving restricted access to objects or 'RATO'.
When applying for short term approval to restrict access to objects, it's important to include a thorough risk assessment.
This assessment should identify the specific objects that need to be restricted and explain the risks associated with those objects.
For example, if the adult is at risk of harming themselves or others with a particular object, this should be clearly documented.
You'll also need to provide a justification for why restricted access is necessary to ensure safety.
This includes explaining why other, less restrictive options are not appropriate or effective in managing the risks.
As with other restrictive practices, a reduction or elimination plan is required.
This plan should outline how support staff will test whether the restriction can be reduced or eliminated over time.
This ensures that the use of RATO is regularly reviewed and adjusted as needed to minimise its impact on the adult's rights and freedom.
By including all of this information in your application, you'll help ensure that the Public Guardian has the necessary details to make an informed decision about the use of restricted access to objects.
When working together with the Office of the Public Guardian, communication is key.
Please feel free to ask us questions at any time.
If we are appointed as an adult's guardian, please contact us early in the appointment.
If we aren't appointed as the adult's guardian, we can still provide information to ensure the adult's rights are protected.
If you need more information around the NDIS Quality and Safeguards Commission and Restrictive Practices, you can visit their website at www.ndiscommission.gov.au.
If you would like more information about the Department of Families, Seniors, Disability Services and Child Safety's involvement in restrictive practices, you can visit their website at www.families.qld.gov.au.
If you have any concerns for the rights and interests of an adult where the Public Guardian is appointed, then please contact us immediately and email is best.
We welcome feedback to improve our practice.
Thank you for taking the time to watch this presentation on restrictive practices.
For more information, please contact the Office of the Public Guardian by phone, email or you can visit our website.
We have lots of information and resources on our website, including factsheets, forms (including the short term approval form), training resources and links to restrictive practices, policies and frameworks to help service providers and decision makers understand restrictive practices.
If you would like to make a complaint about a restrictive practice being used or anything else, please call us or email the complaints team via the address listed on this slide.
Thank you.