New Restrictive Practice Laws for NDIS Providers in SA


South Australia has introduced new laws that will regulate the use of restrictive practices by NDIS providers.

Disability Inclusion (Restrictive Practices – NDIS) Amendment Bill 2021 (SA)

This article applies to registered NDIS providers and will likely amend the SA – Disability Services topic.

Please be advised that the Disability Inclusion (Restrictive Practices – NDIS) Amendment Bill 2021 (SA) (the Bill) passed Parliament on 11 May 2021 and received Royal Assent on 20 May 2021. The Bill proposes to amend the Disability Inclusion Act 2018 (SA) (the Act).

Background

The Bill applies to a registered NDIS provider who uses, or is likely to use, restrictive practices in the course of delivering NDIS supports or services to an NDIS participant (including children). A restrictive practice is any practice or intervention that has the effect of restricting the rights or freedom of movement of a person, with the primary purpose of protecting the person or others from harm.

Under section 23G, the Bill aims to provide the strongest safeguards for NDIS participants and will help ensure any restrictive intervention is consistent with the NDIS Rules and is only used as:

  • a last resort, and
  • when there is a risk of harm to the person or others, and
  • if the use is the least restrictive way of ensuring the safety of the person or others, for the shortest amount of time, and
  • is proportionate to the potential negative consequence, and
  • the use is in accordance with a NDIS behaviour support plan, and
  • its use is not used a punishment, for the convenience of others or to address inadequate staffing, equipment or facilities.

The following persons are prescribed NDIS providers:

  • a registered NDIS provider who uses, or is reasonably likely to use, restrictive practices in the course of delivering NDIS supports to an NDIS participant;
  • any other registered NDIS provider, or registered NDIS provider of a class, prescribed by the regulations for the purposes of this paragraph;
  • any other person, or person of a class, prescribed by the regulations for the purposes of this paragraph (being a person who provides services to NDIS participants but is not a registered NDIS provider).

Authorised Program Officer may authorise use of level 1 restrictive practices

Under 23N of the Bill, an Authorised Program Officer may authorise the prescribed NDIS provider to use level 1 restrictive practices in relation to a prescribed person who then must then comply with the restrictive practices guidelines.

A prescribed NDIS provider who uses level 1 restrictive practices in relation to a prescribed person pursuant to an authorisation under this section must, in accordance with any requirements set out in the regulations, cause a written notice in respect of the use of restrictive practices to be given to:

  • In the case of a prescribed person who is a child, a parent or guardian of the prescribed person; or
  • In the case of a prescribed person who has a guardian or substitute decision maker, the guardian or substitute decision maker (as the case requires) and the prescribed person; or
  • In any other case, the prescribed person.

Level 1 restrictive practice means a restrictive practice (not being a restrictive practice consisting of or involving the detention of a person) declared by the regulations to be a level 1 restrictive practice.

Prescribed persons means an NDIS participant, a person who receives NDIS supports, any other person, or person of a class, prescribed by the regulations.

Restrictive practices guidelines means the restrictive practices guidelines published by the Minister under section 23H of the Bill.

Authorisation of use of level 1 or 2 restrictive practices by Senior Authorising Officer

Under 23O of the Bill, the Senior Authorising Officer may, on an application under this section or on the Senior Authorising Officer’s own motion, authorise a prescribed NDIS provider to use level 1 or 2 restrictive practices, or level 1 or 2 restrictive practices of a specified kind, (or both) in relation to a specified prescribed person in which prescribed NDIS provider must, in using level 1 or 2 restrictive practices comply with the restrictive practices guidelines.

A prescribed NDIS provider who uses level 1 or 2 restrictive practices in relation to a prescribed person pursuant to an authorisation under this section must, in accordance with any requirements set out in the regulations, cause a written notice in respect of the use of restrictive practices to be given to the same persons under section 23N of the Bill.

Level 2 restrictive practice means a restrictive practice, or combination of restrictive practices, (not being a restrictive practice consisting of or involving the detention of a person) declared by the regulations to be a level 2 restrictive practice.

Senior Authorising Officer may require information from other persons

Under section 23R of the Bill, the Senior Authorising Officer may, by notice in writing, require a specified person (whether or not the person is a prescribed NDIS provider) to provide information relating to a specified person as may be in the person’s possession which the Senior Authorising Officer reasonably requires.

A person to whom a notice is given must provide the information to the Senior Authorising Officer in the manner, and within the period, specified in the notice. A person who refuses or fails to comply with a notice is guilty of an offence, attracting a maximum penalty of $5,000.

Offence to hinder or obstruct Senior Authorising Officer etc

Under 23ZB of the Bill, a person who hinders or obstructs the Senior Authorising Officer or an Authorised Program Officer in the course of performing a function or exercising a power under this Part 2 of the Bill is guilty of an offence.

A person who hinders or obstructs a prescribed NDIS provider in relation to the use of restrictive practices under this Part 2 of the Bill is guilty of an offence. This does not apply to a prescribed person in relation to whom the Senior Authorising Officer or an Authorised Program Officer is performing a function or exercising a power, or restrictive practices are to be used (as the case requires). Both offences attract a maximum penalty of $5,000.

False or misleading statements

Under section 23ZC of the Bill, a person must not make a statement knowing that it is false or misleading in a material particular (whether by reason of the inclusion or omission of a particular) in information provided under Part 2 of the Bill. This offence attracts a maximum penalty of $10,000.


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