The use of restrictive practices in Australia

8.5          Restrictive practices involve the use of interventions by carers and service providers that have the effect of limiting the rights or freedom of movement of a person with disability, with the primary purpose of protecting the person or others from harm. These include restraint (chemical, mechanical, social or physical) and seclusion.[5]

8.6          Persons with disability who display ‘challenging behaviour’ or ‘behaviours of concern’ may be subjected to restrictive practices or medical intervention in a variety of contexts, including: supported accommodation and group homes; residential aged care facilities; rehabilitation centres; mental health facilities; hospitals; prisons; and schools.[6]

8.7          The limited available data from the Victorian Office of the Senior Practitioner accords with the international research that an estimated 10–15% of persons with disability will show ‘behaviours of concern’ and between 44–80% of them will be administered a form of chemical restraint in response to the behaviour.[7]

8.8          The Office of the Senior Practitioner found chemical restraint to be the most commonly used form of restraint.[8] Chemical restraint is reportedly widely used on people with dementia. The Department of Health and Ageing told the Senate Inquiry into dementia that the use of drugs in dementia is higher than would be expected on clinical grounds alone:

In February 2013 [the drug utilisation subcommittee] found that there is a high and inappropriate utilisation of antipsychotics in the elderly, especially in the case of two drugs: quetiapine and olanzapine, which are prescribed at a rate inconsistent with the age-specific prevalence of bipolar disease.[9]

8.9          Between 50–60% of people presenting challenging behavior in the United Kingdom are subjected to physical restraint;[10]those with multiple impairments and complex support needs may experience much higher levels of restrictive practices.

8.10       Surveillance may, in some circumstances, amount to a restrictive practice. The Office of the Public Advocate (Qld) reported that, in a census survey of 861 disability accommodation sites in 2013, 13% of them used some form of electronic monitoring of their residents. The majority of the residents subject to audio or visual surveillance had an intellectual disability and the reasons for surveillance included monitoring of the residents’ health, the desire to safeguard residents from accidental harm, and the residents’ challenging behaviours and self-harming behaviours.[11]

Improper use of restrictive practices

8.11       While restrictive practices are used in circumstances to protect from harm the person with disability or others around them, there are concerns that such practices can also be imposed as a ‘means of coercion, discipline, convenience, or retaliation by staff, family members or others providing support’.[12]

8.12       Many stakeholders raised systemic issues across various sectors which result in inappropriate or overuse of restrictive practices.[13] A key explanation for the use of restrictive practices may be the lack of resources for positive behaviour management and multi-disciplinary interventions to ‘challenging behaviours’. Such behaviours may be better understood as a ‘legitimate response to difficult environments and situations’ or ‘adaptive behaviours to maladaptive environments’.[14]

8.13       As the Chief Executive Officer (CEO) of Alzheimer’s Australia explained to the Senate Inquiry into dementia,[15] it is important to look beyond behaviours to understand the reasons for them:

I think the secret to dementia care is actually very simple, and that is to look at the cause of a person’s symptoms and not to respond to the symptoms themselves. If somebody is violent, they are not being violent because they are a nasty person. They are being violent because they are frustrated. They feel no purpose in life … They do not know where they are. They feel disoriented. They may feel very depressed. They may be suffering psychosis. They may be losing their words. They may not be able to communicate. You put all those things together and think of how you would react and then you can start to translate it into your own behaviours.[16]

8.14       There is also evidence that what constitutes a restrictive practice is contested, which may result in inadvertent and misguided use of restrictive practices. A representative of the Royal Australian College of General Practitioners told the Senate Inquiry into dementia:

Many facilities have a locked dementia unit so people cannot actually get out, where there might be a busy road or something like that. For the night people may be put in a low bed that is a little bit difficult to get out of so that they cannot wander easily. It is not actually a restraint as such but it does provide a physical barrier to wandering. So there are some things like that that do not feel anything like being tied up but that do minimise behaviour that might cause that resident some harm.[17]

8.15       In contrast, Caxton Legal Centre described a similar scenario in a dementia unit as a clear instance of restrictive practices, submitting a case involving ‘Mrs H’, a woman in her mid-70s and of a culturally and linguistically diverse background, who called the centre to complain that she had been misdiagnosed with Alzheimer’s disease and had spent 10 months in ‘prison’.[18]

8.16       High level definitions in the National Framework have set out the agreed understanding of restrictive practices and clarify that a restraint need not be physical, mechanical or chemical, but can also be psychosocial and involve the use of ‘power-control’ strategies.[19] A case study submitted by Justice Connect illustrated this point:

An older man was frustrated with a rehabilitation facility that would not allow him to return home in circumstances where his children did not support his desire to do so. The man’s capacity was not impaired, but the facility was concerned about their duty of care. The man was told that if he attempted to leave the facility, the police would be called.[20]

Australia’s international obligations

8.17       Australia, as a State Party, has obligations under the United Nations Convention on the Rights of Persons with Disabilities[21] (CRPD) and the United Nations Convention against Torture.[22]

8.18       The Australian Civil Society Response, as part of Australia’s appearance before the United Nations Committee on the Rights of Persons with Disabilities (UNCRPD) in 2013, expressed concern that persons with disabilities, especially cognitive impairment and psychosocial disability, are ‘routinely subjected to unregulated and under-regulated behaviour modification or restrictive practices such as chemical, mechanical and physical restraint and seclusion’.[23]

8.19       Following this report, the UNCRPD recommended that Australia

take immediate steps to end such practices, including by establishing an independent national preventive mechanism to monitor places of detention—such as mental health facilities, special schools, hospitals, disability justice centres and prisons—in order to ensure that persons with disabilities, including psychosocial disabilities, are not subjected to intrusive medical interventions.[24]

8.20       Article 12 of the CRPD protects the right of persons with disabilities to have equal recognition before the law. Articles 14, 15 and 16 provide their right to liberty and security of person, freedom from torture or cruel, inhuman or degrading treatment or punishment and freedom from exploitation, violence and abuse.

8.21       Stakeholders suggested that some forms of restrictive practices could even amount to torture.[25] Australia is a party to the United Nations Convention against Torture[26] and also a signatory to the Optional Protocol on the Convention against Torture (OPCAT).[27] However, Australia has not yet ratified the OPCAT which requires States to establish a national system of inspections of all places of detention to ensure compliance with the Convention against Torture.[28]

8.22       A national approach to restrictive practices that includes monitoring of detention and other deprivations of liberty could assist in meeting Australia’s obligations under OPCAT, if it were to ratify the agreement.

8.23       The Offices of the Public Advocate (South Australia and Victoria) (OPA (SA and Vic)) noted the omission of detention as a restrictive practice from the National Framework.[29] Stakeholders emphasised that disability accommodation with locked doors—where people cannot leave unless they are escorted—should be considered places of detention.[30] Arguably, detention constitutes a criminal offence or otherwise fits within the high level definition of ‘seclusion’ in the National Framework as the sole confinement of a person with disability in a room or physical space at any hour of the day or night where voluntary exit is prevented, implied, or not facilitated.[31]

8.24       The ALRC considers that a national approach should clarify the circumstances under which detention would be a crime or restrictive practice. The ALRC commends the existing Victorian[32] and South Australian[33] models, which prevent restrictions on people’s liberty or freedom of movement, as useful in informing a national approach to restrictive practices that explicitly addresses detention in schools, residential treatment facilities and correctional institutions.

8.25       The People with Disability Australia and Disability Rights Research Collaboration proposed that ‘a national dialogue’ with people with disability and their representatives be held to consider all issues relating to the ‘use of and protection from restrictive practices’.[34] Such a dialogue would include examination of the relationship between restrictive practices and torture, Australian’s international obligations under OPCAT and the utilisation of evidence of restrictive practices administered on children with disability that may be produced in the Royal Commission into Institutional Responses to Child Sexual Abuse.[35] Noting the dearth of empirical studies of the views of people with disability and family carers, the joint submission contended that a nationally consistent framework on restrictive practices must be shaped by their lived experiences.[36]

A patchwork of existing laws and policies

8.26       Stakeholders expressed significant concerns about the unregulated use of restrictive practices[37] and were supportive of the ALRC’s proposal for national reform.[38]

8.27       Regulation of restrictive practices occurs at a state and territory level under disability services and mental health legislation, and under a range of policy directives, statements and guidance materials. There is substantial discrepancy in the regulation of restrictive practices across jurisdictions, and the numerous frameworks ‘conspire to make the legal framework in this area exceedingly complex’.[39]

8.28       Robust regulation that applies specifically to restrictive practices occurs in Victoria, Queensland and Tasmania through disability services legislation.[40] The approach in other jurisdictions includes policy-based frameworks, voluntary codes of practice, and regulation as an aspect of guardianship .[41]

8.29       In the context of the mental health system, Victoria and Queensland have detailed provisions relating to restrictive practices, combined with minimum standard guidelines[42] and a policy statement.[43] Legislative provisions are less prescriptive in other jurisdictions.[44] In NSW, the use of restrictive practices is regulated by a lengthy policy directive.[45] Mental health legislation is an area of ongoing review and reform, with implications for the regulation of restrictive practices.[46]

8.30       Since March 2014, there is also a national agenda for consistency and standardisation in the regulation of restrictive practices in the form of the National Framework. The National Framework represents a united commitment ‘to the high-level guiding principles and implementation of the core strategies to reduce the use of restrictive practices in the disability service sector’.[47]

8.31       The National Framework is intended to work within existing legislative arrangements to establish minimum standards in relation to the regulation of restrictive practices. It embodies the agreement by all jurisdictions that, by 2018, all disability service providers with NDIS funding will implement six core strategies to reduce the use of restrictive practices.[48] The COAG Disability Reform Council indicated that these core strategies will guide governments in the development of national quality and safeguards system for the NDIS.[49] Until such a system is developed, state and territory quality assurance and safeguards frameworks will apply.[50]

8.32       The NDIS system will be underpinned by the revised National Standards for Disability Services.[51] It is expected that, from 2018, this national system will govern the use of restrictive practices affecting NDIS participants to ensure their access to disability services is in accordance with human rights principles.

8.33       There are also relevant guidelines at a national level including those issued by the Royal Australian and New Zealand College of Psychiatrists,[52] the Australian Psychological Association,[53] Alzheimer’s Australia[54] and the Australian Government Department of Health with respect to aged care.[55]

8.34       The complex web of state, territory and national laws, policies, codes and guidelines has been much criticised. The OPA (SA and Vic) described the existing regulatory efforts as being ‘piecemeal’ across the country and insufficient ‘to protect and promote the rights of people who are subject to restrictive interventions’.[56]

8.35       However, recent initiatives at a national level—the National Framework; the development of a national quality and safeguards system for the NDIS; the National Seclusion and Restraint Project[57] and an Australian Research Council Linkage Project[58]—provide a timely opportunity to inform and ground a uniform approach to regulating restrictive practices that applies in a broader range of settings than just the disability sector.