DSC’s Annual NDIS Conference 2024

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Quality & Safeguarding

Ground-breaking report into restrictive practices

Jessica Quilty

The Disability Royal Commission has published a new Research Report titled Restrictive Practices: A Pathway to Elimination. It’s a sobering piece of research that challenges the bedrock of Australia’s restrictive practices regime, calling for an end to what it calls the 'legally authorised and/or socially and professionally sanctioned violence that targets people with disability’ (p.17).

About the research

The report, compiled by researchers from the University of Melbourne, University of Sydney and University of Technology Sydney paints a bleak picture of Australia’s approach to restrictive practices. The research examined restrictive practices across a broad range of settings including guardianship, mental health, aged care, education, out of home care, group homes, employment and justice. However, this article focuses on the key findings considered most relevant to the NDIS context.

The research was informed by academic and grey literature, input from an Expert Advisory Group (comprising Disabled People’s Organisations) and the experiences and rights of people with disability. It also considered input from legal, medical and health professionals and service providers, with the highest priority given to people with disability - particularly those who have experienced restrictive practices.

Defining restrictive practices

There are a range of definitions used for restrictive practices across different settings. For the purposes of this report, the authors have coined their own piercing definition:

‘Restrictive practices are legally authorised and/or socially and professionally sanctioned violence that targets people with disability on a discriminatory basis and are at odds with the human rights of people with disability. Restrictive practices include, but are not limited to, chemical, mechanical, physical and environmental restraint and seclusion, guardianship, forced sterilisation, menstrual suppression and anti-libidinal medication, financial management, involuntary mental health treatment, and other non-consensual or coercive interventions said to be undertaken for protective, behavioural or medical reasons’ (p17).

Human rights

The report found that restrictive practices are at odds with international human rights obligations, and they strip people with disability of their dignity. People who have experienced restrictive practices reported effects such as suffering, pain, harm, violation, abandonment, neglect, fear, disempowerment, humiliation, punishment and lifelong trauma.

Reduction and elimination progress

Despite commitment from the Commonwealth, States and Territories to the National Framework for Reducing and Elimination of Restrictive Practices in the Disability Sector in 2014 very little progress, if any, has been reported. The researchers reviewed various high-level frameworks and practice documents that inform and guide the use of restrictive practices in the NDIS. This included the NDIS Quality and Safeguarding Framework, NDIS (Restrictive Practices and Behaviour Support) Rules 2018, the Regulated Restrictive Practices Guide and the Positive Behaviour Support Capability Framework. The review revealed a noticeable absence in targets to reduce and eliminate restrictive practices.

The report states that the NDIS Quality and Safeguards Commission (NDIS Commission) has shown no success in reducing the unauthorised use of restrictive practices. In fact, unauthorised restrictive practices (or at least their reports) have only continued to increase under the NDIS Commission. Moreover, the way the NDIS Commission intends to reduce unauthorised restrictive practices is through compliance activity that focusses on making unauthorised use = authorised. This is done by requiring providers to seek authorisation, engage a behaviour support practitioner to write a behaviour support plan and ongoing reporting. Researchers claim that this approach is unlikely to achieve reduction and elimination. Firstly, because reduction and elimination is not the primary target of the compliance activity, and secondly it does not address the key drivers of restrictive practice use.

The ecological system of restrictive practices

The report identifies that ‘restrictive practices take shape in an ecological system of violence, coercion and control’ (p.5) underpinned by the following interconnected drivers and enablers.

Individual: Restrictive practices are considered a necessary response to an individual’s perceived ‘behaviours of concern’. However, the research argues that these behaviours are better understood as both adaptive behaviours to maladaptive environments and communication of distress, protest and resistance. These occur in a context where others (such as service providers) are given the right to interpret these behaviour as ‘dangerous, frightening, distressing or annoying’.

Relationships: The report claims that restrictive practices break down trusting relationships between people with disability and those who are there to support them, further entrenching unequal power dynamics.

Institutional: The evidence overwhelming shows that people are most at risk of restrictive practices when they are in segregated and congregated settings. Restrictive practices thrive in places with entrenched lack of choice and autonomy, veiled by institutional cultures of silence. Furthermore, organisations with a culture of blame and risk management appear to increase staff preoccupation with risk and perceived behaviours of concern.

Other factors include a misunderstanding of duty of care and fear of liability, under resourcing, and work health and safety concerns being prioritised over the rights of people with disability. Worryingly, the research suggests that people who have worked in their role for longer are actually more likely to use restrictive practices and resist change than those with less experience.

Societal: The report argues that ableist views position people with disability as having unequal rights. There are no consequences for staff who use restrictive practices because they are permitted and regulated under law and policy. This permission further enforces the unequal power dynamics between people with disability and service providers. The researchers go so far as to claim that law is a core enabler of restrictive practices. It does not hold those who use them to account and denies redress to those who are subjected to them.

Within the NDIS context, the researchers have scrutinised what they call an ‘authorisation’ approach to restrictive practices, namely based on regulation, monitoring and positive behaviour support (PBS). The report questions the validity of each of these elements.

Positive behaviour support (PBS)

PBS underpins the current approach to behaviour support and restrictive practices in the NDIS. However, the research found that it has a mixed and inconclusive evidence base. Studies conducted on the effectiveness of PBS have largely been through small sample sizes and the strength, accuracy and integrity said to be questionable. Where studies have found positive outcomes what appears to have changed is the quality of the environment and service provided to the person. Positive outcomes have been reported when staff are non-confrontational and consistent in their communication. When they don’t impinge on a person’s autonomy, listen and act upon their wishes and support them to engage in meaningful activities.

Another criticism of the reliance on PBS, is that it centres around the quality of behaviour support plans. However, several studies have found plans are often poor quality.

Staff training

Concerns were raised that within the NDIS, restrictive practices are carried out by staff, authorised by organisations, with minimal requirements for training. These practices occur in closed environments with low levels of public scrutiny, and minimal monitoring. However, even if training is provided, its effectiveness is challenged by this research.

The research found that when staff are trained in how to use restrictive practices, they are actually more likely to use them. This may be because staff do not acquire the intended skills or they are incorrectly, indiscriminately or ineffectively used. Other studies suggest the training has little to no effect because the staff are committed to the mindset that restrictive practices are necessary and training only reinforces that belief.

While training in PBS can be useful in terms of staff understanding what the person might be communicating through their behaviour, the researchers found little evidence to support the connection between staff training and the improved quality of life of people with disability.

The training that was viewed favourably, was trauma-informed support. A 2018 study demonstrating a 99% decrease in restraint frequency when staff were flexible, treated their clients with kindness and respect and let go of having the ‘upper hand.’

Where to from here?

The research concludes that the current approach lacks targets and progress indicators. It relies heavily on regulation, PBS and workforce training, yet there is little evidence to suggest these strategies will address the individual, relationship, institutional and societal drivers of restrictive practices. These include segregation, workplace concerns, under-resourcing, attitudes and law. In particular, the legal authorisation and regulation of restrictive practices is thought to be a key enabler of their use. We await to hear the NDIS Commission’s formal response to these findings, but rumour has it they are not in complete agreement.

The detailed report makes a compelling case for an overhaul of the current approach and includes an 8-point action plan to eliminate restrictive practices. In summary, this includes:

  • Prohibiting restrictive practices (ending their legal authorisation)

  • Changing attitudes and norms (supporting awareness raising to address discriminatory attitudes and norms)

  • Acknowledging and addressing historical injustices (public acknowledgment and truth telling)

  • Deinstitutionalisation and desegregation

  • Recognising autonomy and leadership of people disability (supporting people to exercise their legal capacity)

  • Utilising trauma informed support

  • Adequately resourcing independent living and full inclusion

  • Providing a redress scheme for victims-survivors.

This is just a snapshot of the some of the findings, there is much more to read. Find the full 347 page report and detailed recommendations on the Royal Commission’s website.

Author

Jessica Quilty

Jess is our in-house QA geek. Although she doesn’t talk like one. Over the past 20 years she has worked in the sector across a broad range of roles from frontline to policy. Jess is a strong advocate for designing quality and safeguarding systems that work on the ground. She takes a thorou...

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