Changes to the Regulation of Restrictive Practices in the ACT


The Senior Practitioner Act 2018 (ACT) has been amended to broaden the circumstances in which workers are permitted to use restrictive practices (e.g. restraints) to include where there is a risk of imminent harm to the person or others.

This alert applies to organisations that provide education, disability or care and protection of children services and will likely amend the ACT – Restrictive Practices module.

Senior Practitioner Amendment Bill 2019 (ACT)

Please be advised that the Senior Practitioner Amendment Bill 2019 (ACT) (the Bill) was passed on 4 June 2019 and was notified on 14 June 2019. The provisions, besides sections 9, 10 and 11 (amendments to the offence provisions), commenced on 15 June 2019. Sections 9, 10 and 11 of the Bill are set to commence on 1 July 2020.

The Bill amends the Senior Practitioner Act 2018 (the Act).

Background

The Act regulates the use of restrictive practices by organisations that provide education, disability or care and protection of children services. Since the Act’s implementation in September 2018, a number of issues have been identified, the Bill aims to resolve these issues.

In particular, the Bill addresses the use of restrictive practices outside of a positive behaviour support plan and postpones the commencement for the offences under the Act from 1 July 2019 to 1 July 2020.

The key amendments implemented by the Bill are set out below.

Restrictive practices where imminent harm likely

Currently, the Act prohibits the use of all restrictive practices unless they are used in accordance with a registered positive behaviour support plan.

Restrictive practices mean a practice that is used to restrict the rights or freedom of a person for the primary purpose of protecting the person or others from harm and includes any of the following (which are further defined within the Act):

  • chemical restraints;
  • environmental restraints;
  • mechanical restraints;
  • physical restraints;
  • seclusion;
  • verbal directions, or gestural conduct of a coercive nature,

but does not include reasonable action taken to monitor and protect a child from harm.

A positive behaviour support plan is a plan for a person that describes the strategies to be used in supporting the person’s behaviour, including strategies to build on the person’s strengths and increase their life skills and reduce the intensity, frequency and duration of behaviour that causes harm to the person or others.

The Bill recognises that restrictive practices may be required to be used where imminent harm is likely, regardless of whether a registered positive behaviour plan is in place. Consequently, the Bill amends the Act to allow for the use of a restrictive practice on a person if:

  • the use is necessary to avoid imminent harm to the person or others; and
  • it is the least restrictive practice possible in the circumstances; and
  • if practicable, the use of restrictive practices is authorised by the person in charge of the provider.

Notification requirements

The Bill inserts section 10A into the Act that requires any provider who uses a restrictive practice without a registered positive behaviour support plan to give to the Senior Practitioner a report about the use of the restrictive practice within 5 days.

The report must address certain issues as detailed in section 10A of the Bill (i.e. the kind of restrictive practice used, for how long the restrictive practice was used, etc.).

The Bill has amended section 46 of the Act to make a failure to comply with this notification requirement an offence which carries a penalty of 50 penalty units (currently $8,000 for an individual and $40,500 for a corporation). Section 46 of the Act is set to commence on 1 July 2020.

Other amendments

As mentioned above, the Bill postpones the commencement of the offences set out in Part 8 of the Act from 1 July 2019 to 1 July 2020.

The Bill also amends the meaning of chemical restraint to better align it with the National Disability Insurance Scheme National Quality and Safeguarding Framework.

 

Please click here to access the full Bill.

Contact

For further information please contact the Law Compliance team:

Phone: 1300 862 667

Email: info@lawcompliance.com.au