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Practice Guide - March 2021
With the release of the Regulated Restrictive Practices Guide – October 2020, the NDIS Commission (the Commission) advised that a guide for children and young people would soon follow. True to its word, the new Regulated Restrictive Practices with Children and Young People with Disability Practice Guide – March 2021 (CYP Guide) has just been released.
The CYP Guide contains much of what we expected; for example, the legislative context, definitions of restrictive practices, the rights of children and young people and the role of behaviour support practitioners and implementing providers. However, there is also a good deal of new and clarifying information which will support improved practice and consistency and ultimately better outcomes for participants. There is also one big “bombshell” that has the potential to impact significantly on families – no spoiler alerts, just read on to find out!
Background
The CYP guide is based on the conditions outlined in the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 and has been developed “to acknowledge that children and young people with disability require special consideration and safeguarding in order to protect them from harm whilst actively promoting their development and upholding their legal and human rights.”
The CYP Guide states that while children and young people (0–18 years) make up 48% of all NDIS participants, only 12.2% of the behaviour support plans lodged during 2019/2020 related to children and young people. The Commission expresses the concern that the “data may suggest that the use of regulated restrictive practices with children and young people is being overlooked, ignored and/or minimised.”
Duty of Care and community norms
The CYP Guide devotes a good deal of attention to the considerations of duty of care and community norms in supporting children and young people with disability to determine whether the support being provided can be considered a regulated restrictive practice. There is also extensive discussion of “child-proofing” practices which can be used to keep children and young people safe.
Examples include restraining a three-year-old in a pram versus restraining a ten-year-old in a wheelchair so they don’t run away and using bed rails so a toddler does not fall out of bed versus using bed rails to prevent a young person from getting out of bed. The CYP Guide reminds us that determining what constitutes a restrictive practice for a given child or young person must be made on a case-by-case basis and that “duty of care” is not an automatic free pass. When considering the use of a restrictive practice, the usual rules apply: Is it the least restrictive option available? Is it proportionate to the potential risk of harm? Is the support being provided within a positive behaviour support framework which promotes the child’s development and their right to take reasonable risks?
The CYP Guide also provides some useful commentary on how the use of prohibited practices or the misuse of regulated restrictive practices may constitute abuse or neglect. Implementing providers and behaviour support practitioners must ensure they are operating according to the National Principles for Child Safe Organisations and are alert to their responsibilities in relation to child protection reporting.
Restrictive practices and parenting practices
It comes a fair way through the CYP Guide; however, this is where the real gold is. For the first time, the Commission explicitly deals with the use of restrictive practices in families and the role of behaviour support practitioners and implementing providers supporting these families.
The CYP Guide makes it clear that the Commission “does not regulate families and their use of restrictive practices. Rather the role of the NDIS Commission is to safeguard participants by regulating NDIS providers delivering NDIS funded supports across all environments, including the family home.”
The CYP Guide acknowledges the complex intersection of parenting practices and restrictive practices and that “families generally do what they believe is in the best interests of children”.
In circumstances where families are using restrictive practices, behaviour support practitioners must work collaboratively with children, young people and their families and carers to:
- Understand and respect their unique circumstances, culture, beliefs, goals and wishes
- Understand and address the purpose of the behaviours of concern
- Identify and implement least restrictive alternatives and support the reduction and elimination of restrictive practices
- Provide education about what constitutes a restrictive practice and the associated risks
- Develop and implement evidence-informed strategies that promote quality of life
- Provide timely, responsive, appropriate and accessible information and resources as relevant
- Refer families to support services (e.g., Carer Gateway if needed) to ensure they have access to the support they need in order to carry out their caring role safely and effectively
- Document the advice provided (including any cautions against using a restrictive practice).
Reporting requirements
The CYP guide makes it clear that families have no reporting obligations to the Commission and, from what you have read above, the Commission is also clear that it does not regulate families using restrictive practices; however, this is where it gets a little murky and, if we are honest, we think deliberately so… (drum roll please…):
“It is a condition of registration that NDIS funded specialist behaviour support providers lodge behaviour support plans containing regulated restrictive practices with the NDIS Commission. This is required even if the practice is only used by family or by other mainstream services not funded under the NDIS.”
So, what this long-awaited clarity tells us is that the Commission respects the autonomy of families, will not regulate them or make them report on use of restrictive practices (let’s face it – how would it enforce that anyway?) but will lean on providers it registers to make them hand over that information.
This requirement is a significant departure from practice – both in terms of the expectations of the Commission to date and what we know was happening in States and Territories prior to the introduction of the Commission. Given that, it is a little bit curious that the Commission has not highlighted this significant change to families but rather buries it on page 24 of the CYP Guide and places the onus on behaviour support practitioners to inform families.
A number of behaviour support practitioners we have spoken to are extremely uncomfortable about this. They view it as an invasion of privacy and feel that families will be unwilling to consent to behaviour support practitioners being prepared for this purpose alone. Behaviour support providers acting ethically will inform families of these new requirements, and while the Commission states the behaviour support plans will be closed following lodgement, there is a risk that some families may disengage from supports rather than have this information reported.
When we put this to the Commission, their response did not shed much light or deviate from the position in the CYP Guide. The response reinforced the practice standards and reminded us that behaviour support plans should be developed regardless of the presence or absence of restrictive practices and that all behaviour support plans should be developed collaboratively with participants, family and supporters to explore alternative strategies and least restrictive options. None of this can (or should) be argued with; however, the dilemma is that disability systems that have long steered clear of what happens in family homes now want a sneak peek and are willing to use their regulatory powers to take a look!
