Regulated Restrictive Practices: An Implementing Providers Perspective

People working within the disability space tell me, that they feel like they have been under a microscope the past few years. Providers are under continuous scrutiny from the:

• NDIS Quality and Safeguards Commission
• recently completed Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, and
• recent NDIS review, etc

While many elements of practice have been reviewed, exposed, and changes recommended, one of the most critically reviewed, has been provider use of regulated restrictive practices.

What Are Regulated Restrictive Practices?

Regulated Restrictive Practices are any practice that restrict the right or freedom of movement of a person with disability (NDIS Quality and Safeguards Commission, 2024).

Certain types of restrictive practices pose a significant risk of harm to participants and/or those using them, and as such the NDIS Quality and Safeguards Commission have categorised these practices as Regulated. By Regulated, they mean that their use requires oversight by the Commission to ensure appropriate assessment, appropriate review and strict implementation.

These categories are outlined in the NDIS Fact Sheet – Behaviour support and restrictive practices. Have a look for specific definitions, but broadly they include:

• Chemical Restraint
• Physical restraint
• Mechanical restraint
• Environmental Restraint
• Seclusion

How do we interpret what is and isn’t a Regulated Restrictive Practice?

In interpreting whether a practice constitutes as a restraint, the NDIS Commission takes into consideration what they call typical community standards. This accounts for practices that would reasonably be expected of a person of the same age, without a disability.

For example, a typical childhood practice of preventing young children under three from having access to small items that could be a choking hazard, is an example of a typical community standard.

The above definitions can be open to interpretation, but the NDIS Commission has provided several guides including examples that may be supportive. These include:

• The regulated Restrictive Practices Guide for Adults
• The Regulated Restrictive Practices Guide for Children and Young People
• Surveillance Technology Practice Guide
• Regulated Restrictive Practices – Safe Transportation Practice Guide

Implementing Provider Requirements

The above guides are helpful, in clarifying whether you have used a Restrictive Practice (RP). Why do you need to know this?

As an implementing provider, you are required to do the following:

• Report on any usage of restrictive practice that is not specifically included in an interim or comprehensive positive behaviour support plan, approved by the state (where relevant) as a reportable incident to the NDIS Commission: Notify us about a reportable incident
• Make every reasonable attempt to get a Registered Specialist Behaviour Support Practitioner working with the client, with an aim to have an interim plan completed within 4 weeks of the first RP usage: Implementing providers: Facilitating the development of behaviour support plans that include regulated restrictive practices
• Ensure that only registered providers, registered with the NDIA to provide positive behaviour support and use regulated restrictive practices, are using plans containing regulated restrictive practices: Registration requirements for the use of regulated restrictive practices

Ok, so all of that may feel fairly complicated…well the complication keeps going unfortunately.

The NDIS Quality and Safeguards Commission is a federal body, that regulates NDIS funded supports. They regulate implementing providers and behaviour support practitioners, but they do not specifically consent to or authorise the use of the regulated restrictive practices. That role falls on each individual state, and here’s the clincher, each state has different requirements and, in some instances, different definitions.

The nitty gritty details are outside the scope of this particular blog, so let’s focus on the most urgent things to be across:

1. Each state has its own processes and definitions. It is important to review your relevant state information to fully understand requirements. The best resources for each state are available below:
   • ACT: Restrictive practices and the law
   • NSW: Restrictive Practices Authorisation Portal
   • SA: SA Restrictive Practices Authorisation scheme
   • WA: Authorisation of restrictive practices
   • QLD: Positive Behaviour Support and Restrictive Practices
   • NT: Northern Territory National Disability Insurance Scheme Restrictive Practices Authorisation
   • TAS: Department of Premier and Cabinet – Restrictive Interventions in Service for People with Disability Procedure
2. Only plans that have gone through the required state-based process are authorised. Restrictive practices used as per an authorised plan are therefore authorised.
3. Providers are required to notify the NDIS Commission, and in ACT the state as well, of the restrictive practices that have been used for a participant each month. These reports occur within the participants behaviour support plan, in an online portal called PRODA.
4. Any use of restrictive practices that is not included in an authorised interim or comprehensive plan is unauthorised. This means that a reportable incident must be lodged to the NDIS Quality and Safeguards Commission within 5 business days of the restrictive practice use. In the ACT, reporting is also required to the State authorisers for unauthorised use.