Proposal 8–1 The Australian Government and the Council of Australian Governments should facilitate the development of a national or nationally consistent approach to the regulation of restrictive practices. In developing such an approach, the following should be considered:
(a) the need for regulation in relation to the use of restrictive practices in a range of sectors, including disability services and aged care;
(b) the application of the National Decision-Making Principles; and
(c) the provision of mechanisms for supported decision-making in relation to consent to the use of restrictive practices.
8.27 While not making a specific proposal about the exact form any national or nationally consistent approach should take, the ALRC considers that in developing such an approach, a number of key issues should be considered.
8.28 In order to be effective, the regulation of restrictive practices needs to cover the use of restrictive practices in a range of settings. This is particularly important given that people with disability may be subjected to restrictive practices in a variety of contexts, including: supported accommodation and group homes; residential aged care facilities; mental health facilities; hospitals; prisons; and schools. Broad application of any national or nationally consistent approach would address one of the key shortcomings of current approaches to restrictive practices, including the National Framework, which is limited to the disability services context.
8.29 A key additional area of Commonwealth law to which a national or nationally consistent approach should apply is aged care. Concerns about restrictive practices in aged care were highlighted by a number of stakeholders. For example, the Office of the Public Advocate (Vic), highlighted concern about ‘the high use of restrictive interventions on residents of aged care facilities’ and stated that it ‘would like to see greater regulation and on-site auditing of this practice’. Similarly, in March 2014, the Senate Community Affairs References Committee recommended (in the context of aged care), that ‘the Commonwealth develop, in consultation with dementia advocates and service providers, guidelines for the recording and reporting on the use of all forms of restraints in residential facilities’.
Encouraging supported decision-making
8.30 The ALRC proposes that any national or nationally consistent approach to the regulation of restrictive practices should reflect the National Decision-Making Principles and make provision for supported decision-making.
8.31 While limited to disability services, the National Framework incorporates guiding principles, including reference to a ‘Person-Centred Focus’ which states that
people with disability (with the support of their guardians or advocates where required) are the natural authorities for their own lives and processes that recognise this authority in decision making, choice and control should guide the design and provision of services.
8.32 The National Framework also provides for ‘maximum respect for a person’s autonomy, including’:
i. recognising the presumption of capacity for decision making;
ii. seeking a person’s consent and participation in decision making (with support if necessary) prior to making a substitute decision on their behalf; and
iii. engaging the appropriate decision maker and seeking consent where appropriate, where a decision must be made on behalf of a person.
8.33 The corresponding core strategy states that one of the key implementation areas is the ‘availability of tools to assist people with disability and their guardians or advocates (where appropriate) to participate in decision making’.
8.34 The ALRC considers that the National Framework provides a useful starting point for the potential application of the National Decision-Making Principles and supported decision-making in the context of restrictive practices.
8.35 People with disability have the right to make decisions about matters which affect their life, including in relation to the use of restrictive practices. As a result, any national approach must ensure that decisions about, and consent to, restrictive practices are ultimately those of the person on whom the practice is being used. In circumstances where the person requires decision-making support there should be provision for decision-making which incorporates a person-centred focus and provides for supported decision-making. For example, a person may require support to make decisions about, or consent to, the use of restrictive practices under a behaviour support plan. In the context of aged care, it may be necessary for a representative who has been appointed to fully support the person in relation to restrictive practices-related decisions, including expressing or constructing the will and preferences of the person with disability, or considering the human rights relevant to the situation.
8.36 Importantly, in Chapter 10, the ALRC proposes review of state and territory guardianship, mental health and disability services legislation—the key legislation under which restrictive practices are currently regulated. One aim of such review, in ensuring legislation is consistent with the National Decision-Making Principles, would be to encourage supported decision-making, and a shift from an objective best interests test to one relating to will, preferences and rights. As a result, in circumstances where a decision in relation to restrictive practices is made at a state or territory level by a substitute decision-maker, such as a guardian, ideally they should have regard to the will, preferences and rights of the person with impaired decision-making ability.
8.37 Finally, consistent with the Safeguards Guidelines under the National Decision-Making Principles, restrictive practices must be least restrictive of the person’s human rights; appealable; and subject to regular, independent and impartial monitoring and review.
8.38 This approach is consistent with that recommended by a number of stakeholders. NACLC, for example, expressed its support for the proposed National Framework but suggested that it could be strengthened by reference to guiding principles. PIAC submitted that any national or nationally consistent approach should ensure that restrictive practices:
are only implemented as a last resort; are implemented for the least amount of time possible; are recorded, monitored and reviewed; have tight safeguards in place that are focused on minimising risk to staff, patients, carers and family; and are undertaken with a focus on ensuring decency, humanity and respect at all stages.
8.39 A number of stakeholders raised systemic issues in relation to the use and regulation of restrictive practices, including: the lack of facilities and resources; positive behaviour management; the role of psychologists and others in mitigation of ‘challenging behaviours’ and multi-disciplinary interventions; the need for education, awareness raising and training of relevant staff; the need for penalties and criminal sanction; and the need for a national approach to data collection. While these concerns are important, the issues do not related directly to concepts of legal capacity or decision-making ability and the ALRC does not intend to make proposals in these areas.
See, eg, Disability Discrimination Legal Service, Submission 55 attachment 1. See also P French, J Dardel and S Price-Kelly, ‘Rights Denied: Towards a National Policy Agenda about Abuse, Neglect and Exploitation of Persons with Cognitive Impairment’  People with Disability Australia.
See, eg, National Association of Community Legal Centres and Others, Submission 78; Children with Disability Australia, Submission 68; Central Australian Legal Aid Service, Submission 48; Public Interest Advocacy Centre, Submission 41; Office of the Public Advocate (Vic), Submission 06; Office of the Public Advocate (Qld), Submission 05.
In relation to aged care, see, eg, John Chesterman, ‘The Future of Adult Guardianship in Federal Australia’ (2013) 66 Australian Social Work 26.
Office of the Public Advocate (Vic), Submission 06; Office of the Public Advocate (Qld), Submission 05.
Senate Committee on Community Affairs, Parliament of Australia, Care and Management of Younger and Older Australians Living with Dementia and Behavioural and Psychiatric Symptoms of Dementia (2014) rec 14.
Australian Government, National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Service Sector, (2014) 7.
For prior consideration of the role of state and territory appointed decision-makers in relation to restrictive practices, see, eg, Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012); P French, J Dardel and S Price-Kelly, above n 37; Michael Williams, John Chesterman and Richard Laufer, above n 5.
National Association of Community Legal Centres and Others, Submission 78.
Public Interest Advocacy Centre, Submission 41. See also: Senate Committee on Community Affairs, Parliament of Australia, Care and Management of Younger and Older Australians Living with Dementia and Behavioural and Psychiatric Symptoms of Dementia (2014) recs 14, 15.
See, eg, NMHCCF and MHCA, Submission 81; Australian Psychological Society, Submission 60; Disability Discrimination Legal Service, Submission 55; Central Australian Legal Aid Service, Submission 48; Physical Disability Council of NSW, Submission 32. See also: National Mental Health Commission, ‘A Contributing Life, the 2013 National Report Card on Mental Health and Suicide Prevention’ (2013).