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Disability Services and Other Legislation Amendment Bill 2008
Disability Services and Other Legislation
Amendment Bill 2008
Explanatory Notes
Title of the Bill
Disability Services and Other Legislation Amendment Bill 2008.
General Outline
Objectives of the Bill
Purpose and general objective
The Bill will amend the Disability Services Act 2006 and the Guardianship
and Administration Act 2000, to create a legislative scheme to safeguard
the rights of adults with an intellectual or cognitive disability who have
`challenging behaviour' and where restrictive practices may be required to
manage their behaviour. The Bill aims to balance the rights of the adult
with the need to protect the rights of others to live and work free of violent
and other potentially damaging behaviour.
The scheme only applies to adults with an intellectual or cognitive
disability who are in receipt of disability services provided or funded by
Disability Services Queensland (DSQ).
The overall aim of the Bill is to drive service improvements to reduce or
eliminate the use of restrictive practices; promote positive behavioural
support; reduce the incidence of `challenging behaviour'; and improve the
quality of life for adults with an intellectual or cognitive disability.
In particular, restrictive practices are regulated in a way that:
� has regard to the human rights of the adult;
� is necessary for the safety of the adult or another and is the least
restrictive option of ensuring their safety;
� is independently authorised and reviewed; and
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Disability Services and Other Legislation Amendment Bill 2008
� used within a broader context of a positive behaviour support system,
focused on the adult's individual needs.
The provisions apply to adults who are supported to live in their
community; in addition, there are provisions that deal with the use of
restrictive practices:
� in a respite or community setting; and
� to respond in a short term way (for example, in an emergency), where
there is an immediate and serious risk of harm.
Transitional provisions are included to allow relevant service providers up
to 18 months to comply with the new requirements of the Bill.
Who the scheme applies to
The legislative scheme applies to protect adults with an intellectual or
cognitive disability and `challenging behaviour' who receive disability
services from non-government service providers funded by DSQ and/or
provided by DSQ (`a relevant service provider').
The term `challenging behaviour' is not defined in the Bill. It is a term to
describe behaviour of such intensity, frequency or duration that it places the
adult or another person at serious risk of harm; and is often characterised
by physical violence and/or serious property damage. Definitions which
describe this term include:
� `Culturally abnormal behaviour(s) of such intensity, frequency and
duration that the physical safety of the person or others is likely to be
placed in serious jeopardy, or behaviour which is likely to seriously
limit the use of or result in the person being denied access to ordinary
community facilities'.
(source: Emerson, E. Challenging Behaviour, Analysis and intervention in
people with severe intellectual disabilities. 2nd edition, Cambridge
University Press, 2001); or
� Behaviour of such intensity, frequency or duration as to threaten the
quality of life and/or the physical safety of the individual or others and
is likely to lead to responses that are restrictive, aversive or result in
exclusion.
(source: Challenging behaviour - a unified approach (June 2007) Royal
College of Psychiatrists, British Psychological Society and Royal College
of Speech and Language Therapists)
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Disability Services and Other Legislation Amendment Bill 2008
`Restrictive practices' are defined in the Bill to mean:
� Containing or secluding the adult;
� Using chemical, mechanical or physical restraint on the adult; and
� Restricting access of the adult.
Examples include:
� confining the adult to their room during a period of aggression to
prevent them hitting members of staff or co-tenants;
� administering medication prescribed to prevent the escalation of
aggressive behaviour; or
� restricting access to a kitchen pantry to prevent obsessional eating.
Reasons why the proposed legislation is necessary
Scope of legislation
A small proportion of adults with an intellectual or cognitive disability,
receiving disability services from a relevant service provider exhibit
`challenging behaviour'. In the course of caring for these adults, restrictive
practices may be used from time to time to prevent harm or a risk of harm
to the adult or another, such as support workers, family members,
co-tenants and members of the public.
These adults generally do not have the capacity to consent to decisions
around their care or treatment.
Legislative and policy environment
Restrictive practices constitute an infringement on the rights and liberties
of the individual concerned and are potentially unlawful.
In Queensland, there is no specific legislation which regulates the use of
restrictive practices in relation to adults with an intellectual or cognitive
disability. This lack of regulation leaves limited protection for the
individual against potential abuse or misuse of restrictive practices.
It also leaves service providers, and individuals acting on their behalf,
potentially exposed to civil or criminal actions such as assault or
deprivation of liberty. Whilst there could be cases where the application of
restrictive practices is justified at law, this would depend on the individual
circumstances. For example, if a person displays sudden violent behaviour
which is likely to cause harm to another person, then restraint using
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Disability Services and Other Legislation Amendment Bill 2008
reasonable force that is necessary to defend against the risk of harm to that
person may be used (see section 271 of the Criminal Code).
Report by the Honourable W J Carter QC (Challenging Behaviour and
Disability - a targeted response) (the Carter Report)
The proper and effective support of people with an intellectual or cognitive
disability with challenging behaviour has been an ongoing issue for the
disability sector.
In 2006, the Honourable W J Carter QC was appointed to investigate
options for a legislative and service response to adults with an intellectual
or cognitive disability who present with challenging behavior.
The Carter Report identified that there was a general over-reliance on the
use of restrictive practices in the disability sector. Criticism of the practices
included:
� restrictive practices may have been at odds with the human rights
principle and service delivery principles under the Disability
Services Act 2006; and in some cases open to challenge under the
law; and
� service responses may have been crisis or emergency driven
because of a lack of suitable accommodation; and service
responses may have failed to address the substantive causes of
challenging behaviour.
On 22 May 2007, a full copy of the Carter Report was released together
with a whole of Government response. Government supported in principle
all 24 recommendations, based on a theme of `fundamental process of
reform, renewal and regeneration'. Most of the recommendations relate to
the development of a new contemporary model for assessment and support
of adults with an intellectual or cognitive disability and challenging
behaviour.
Key features of the service model include:
� a Specialist Response Service - to undertake multi-disciplinary
assessments and develop positive behaviour support plans; and assist
disability service providers to comply with the legislation;
� a Mental Health Assessment and Outreach team - to provide mental
health expertise where adults may have dual diagnosis of an
intellectual or cognitive disability and a mental illness;
� development and recruitment of specialist staff;
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Disability Services and Other Legislation Amendment Bill 2008
� construction of purpose-built dwellings - to provide positive
environments where individualised support can be provided; and
� a new Centre of Excellence - which will lead research and provide
specialist knowledge and expertise in positive behaviour support.
Justice Carter's Report also recommended: A legislative framework which
will ensure that the use of any restrictive practice in the case of a person
with intellectual disability and challenging behaviour is independently
approved and properly regulated and which will provide adequate
legislative support as required (page 17 Carter Report).
The Bill underpins the new service model and implements those
recommendations of the Carter Report that recommend the development of
a legislative scheme. The Bill is based on the key principles of the Report.
How the objectives will be achieved
The Bill amends two existing Acts: (1) Disability Services Act 2006; and
(2) Guardianship and Administration Act 2000.
A new part (Part 10A) is created in the Disability Services Act 2006 for the
purpose of this scheme. Amendments to the Disability Services Act 2006
essentially:
� define restrictive practices and other important definitions for the
scheme;
� state who can apply to use restrictive practices; and
� outline in what circumstances restrictive practices can be applied
and to whom.
Amendments are also made to the Guardianship and Administration Act
2000 to complement the amendments to the Disability Services Act 2006.
The Guardianship and Administration Act 2000 establishes a system for
the substitute decision making for adults who have impaired
decision-making. Amongst other matters, it establishes the Guardianship
and Administration Tribunal (the Tribunal), Adult Guardian and provides
for the Tribunal to appoint guardians for the adult.
For the purpose of this scheme, a separate chapter (Chapter 5B) is included
in the Guardianship and Administration Act 2000 and essentially these
amendments provide for:
� the establishment of a new guardian for restrictive practice matters;
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Disability Services and Other Legislation Amendment Bill 2008
� a new power for the Tribunal to approve containment or seclusion
(and other restrictive practices if used with containment or seclusion);
� approval or consent by an independent decision-maker for the use of
restrictive practices; and
� decision-making criteria, and the processes for deciding applications.
Key principles
There are some key principles which underpin the Bill and must be
considered before a decision can be made about whether or not to use a
restrictive practice. These are:
(a) preventing harm (or a serious risk of harm) to the adult or
another;
(b) using the least restrictive option for ensuring the safety of the
adult or another as is possible in the circumstances;
(c) considering the human rights principle (including preventing
abuse, neglect or exploitation of the adult);
(d) safeguarding the rights and liberties of the adult with an
intellectual or cognitive disability;
(e) reducing or eliminating the use of restrictive practices; and
(f) focusing on development of the individual and enhancing their
quality of life.
Key components of Bill
The main scheme provides that before the use of any restrictive practice,
there are four main components: (a) Assessment (b) Positive Behaviour
Support Plan; (c) Consent/Approval; and (d) Review and Monitoring.
(a) Assessment
The main purpose of the assessment is to:
� identify the relevant behaviour which may cause harm to the adult or
others;
� gain a greater understanding of the person, their current and past
circumstances and their goals and aspirations;
� develop hypotheses for the reasons for the behaviour and the factors
contributing to it;
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Disability Services and Other Legislation Amendment Bill 2008
� make recommendations regarding strategies to meet the adult's needs
and reduce the behaviour (positive strategies);
� make recommendations regarding strategies to manage the adult's
behaviour (including the use of any restrictive practices, if required);
and
� establish a baseline measure of the adult's behaviour against which the
effectiveness of any subsequent intervention/s can be evaluated.
(b) Positive Behaviour Support Plan
A positive behaviour support plan is a core feature of the legislative and
service model. A positive behaviour support approach is based on the
assessment of the adult, the behaviour of concern, the environment and the
interaction of these. A positive behaviour support plan contains
intervention strategies that meet the person's needs, enhance their
capabilities and quality of life and reduces the occurrence of the behaviour
of concern.
It is a requirement that positive and proactive strategies must be
implemented in conjunction with restrictive practices. In addition,
strategies to reduce or eliminate the need for the use of the restrictive
practices must also be implemented.
The importance of a positive behaviour support plan is that it provides a
planned and multi-element approach to supporting the adult who is
exhibiting challenging behaviour.
Relevant parties, such as the adult, the guardian or informal decision-maker
for the adult, family members, advocates or key health care providers, are
consulted during the assessment and planning process.
(c) Consent or approval
Before any restrictive practice can be used, it must be independently
approved or consent obtained. Most decisions will be approved and/or
reviewed by the Tribunal. The type of approval/consent required will
depend on the type of restrictive practice proposed:
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Disability Services and Other Legislation Amendment Bill 2008
Restrictive Practice Approval/Consent
� containment or seclu- Guardianship and Administration Tribunal
sion
� chemical restraint Guardian for restrictive practice matters
� mechanical restraint appointed by the Tribunal
� physical restraint
� restricted access to Guardian for restrictive practice matters
objects or, if there is no guardian, an informal
decision-maker, such as family member or
close friend
If more than one type of restrictive practice is proposed, only one
authorisation process (the `highest' decision-maker and level of
assessment) is required for the adult. For example, if seclusion is proposed
as well as physical restraint - the relevant service provider must conduct a
multi-disciplinary assessment of the individual and develop a positive
behaviour support plan for the adult, which would include the use of both
seclusion and physical restraint. The Tribunal would then decide whether
or not to approve seclusion and/or physical restraint.
(d) Review and Monitoring
Restrictive practices must be regularly reviewed to ensure their continued
relevance and effectiveness; and must be monitored to ensure they are
being safely and properly implemented.
Any approval of restrictive practices must be time-limited (up to 12
months). This means that use of restrictive practices will be reviewed at
least every 12 months or at the end of an approval, whichever is sooner.
The type of review will depend on the type of restrictive practice proposed:
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Disability Services and Other Legislation Amendment Bill 2008
Restrictive Practice Review person/body
� containment or seclu- Guardianship & Administration Tribunal
sion
� chemical restraint Guardianship & Administration Tribunal
� mechanical restraint will review decisions of the guardian for
� physical restraint restrictive practice matters
� restricted access to Service provider, through guidance by
objects policy and procedures
If a guardian for restrictive practices
matters is appointed - review is by
Guardianship and Administration Tribunal
In addition, an `interested person' for the adult and certain others can apply
to the Tribunal for a review at any time. For the practice of restricted access
to objects, under the existing section 154 of the Guardianship and
Administration Act 2000, the Tribunal may ratify or approve an exercise of
power by an informal decision-maker. The Tribunal may also decide to
appoint a guardian for restrictive practice matters.
For the use of any restrictive practice, the positive behaviour support plan
must also include:
� the procedure for using the restrictive practice, including observations
and monitoring measures; and
� the intervals at which the restrictive practice will be reviewed - this is
guided by policy and procedures.
For monitoring and review purposes, a relevant service provider must also
keep certain records, as prescribed in the Disability Services Regulation
2006, about the use of restrictive practices. Monitoring of the scheme is
also achieved by:
� authorised officers appointed under the Disability Services Act 2006,
who may investigate non-compliance;
� an investigative function for the Adult Guardian; and
� an inquiry/complaint function for the Community Visitor Program -
the Bill requires a relevant service provider to notify the community
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Disability Services and Other Legislation Amendment Bill 2008
visitor program if restrictive practices have been approved/consented
to on a `visitable site'.
Additionally, section 233A of the Bill requires the legislative scheme as a
whole to be reviewed after 1 July 2011, in order to review the efficacy and
efficiency of the new provisions.
Some exceptions to the main scheme
The Bill includes special provisions for:
� respite/community access services (where either or both are the only
disability service accessed by the adult); and
� short term approval (for example, in emergency situations), where
there is an immediate and serious risk of harm to the adult or another.
Respite/community access services (where either or both are the only
disability service accessed by the adult):
This situation refers to those adults within the target group who only
receive a respite service and/or community access from DSQ or a DSQ
funded non-government service. These clients live with their families and
enter the DSQ system for short periods in order to receive respite and/or
community access services. They do not receive any other disability
service.
Consultation indicated that the requirements under the main scheme would
prove too onerous for these services and the likely unintended outcome is
that respite and community access service providers may consider it
unviable to provide respite or community access to adults who exhibit
challenging behaviour and their families, who are in most need of these
services.
The proposed amendments aim to maintain adequate safeguards for the
adult while providing flexibility for respite or community access services.
The main differences between these provisions and the main scheme relate
to:
� type of consent/approval (summarised in the table below);
� development of a `respite/community access plan' for the adult - this
plan is similar to a positive behaviour support plan but requires less
detail; and
� a special provision for the use of fixed (daily) dose chemical restraint
in a respite service only.
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Disability Services and Other Legislation Amendment Bill 2008
In summary, the proposed consent or approval process for the use of
restrictive practices in respite and/or community access services is:
Restrictive practice Approval/Consent
containment or seclusion � Guardian for restrictive practice
matters
� Decisions of the guardian are subject
to review by the Tribunal
chemical restraint � Guardian for restrictive practice
(generally) matters
� Decisions of the guardian are subject
to review by the Tribunal
fixed (daily) dose chemical � Consent of informal decision-maker
restraint in respite services
only
physical or mechanical � If no guardian for restrictive practice
restraint matters -informal decision-maker
restricted access to objects � If no guardian for restrictive practice
matters - informal decision-maker
Emergency (short-term approval):
At times it may be necessary for a service provider to respond to a critical
incident or adverse event where an unplanned response is required in order
to prevent an immediate and serious risk of harm to the adult or another
person. For example, the incident could involve an adult with an
intellectual/cognitive disability and `challenging behaviour' who, until
very recently, lived with their family at home, and had not received any
DSQ support or funding prior to coming into a service provided or funded
by DSQ. Alternatively, the incident could involve an adult in receipt of
DSQ support or DSQ funding who's behaviour has suddenly escalated into
`challenging behaviour'.
The Bill makes provisions to allow for short-term approval (up to three
months) to be sought where there is an immediate and serious risk of harm
to the adult or another person. Short term approvals can only be extended in
exceptional circumstances.
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Disability Services and Other Legislation Amendment Bill 2008
Short-term approvals can be given by the Adult Guardian or the Chief
Executive, DSQ, depending on the type of restrictive practice:
Restrictive Practice Approval/Consent Plan
(up to 3 months) (within 14 days of
any approval)
� containment or Adult Guardian `short-term plan' -
seclusion defined in Bill
� chemical Chief Executive, DSQ `short-term plan' -
restraint defined in Bill
� mechanical
restraint
� physical restraint
� restricted access
These provisions do not replace a `true' emergency where there is an
imminent risk of harm, where there is no time for an approval, and where
the service provider must respond urgently to a critical incident out of, for
example, necessity or a duty of care.
Locking of gates, doors and windows
The practice of locking gates, doors and windows occurs where the gates,
doors or windows are locked because that adult does not have the skills to
safely exit the premises without supervision.
This practice is not within the definition of a `restrictive practice' for the
purpose of this scheme, however, it is still regulated to ensure protection of
a person's rights and liberties. It is different to the practice of `containment'
where the purpose is to manage a person's `challenging behaviour', which
requires approval by the Guardianship and Administration Tribunal.
Application of the policy of locked gates, doors and windows is not a
substitute for containing or secluding an adult as a response to challenging
behaviour.
Under the Bill, a relevant service provider must keep and implement a
policy and procedure on the practice of locking gates, doors and windows.
The policy must be consistent with DSQ's policy and procedures.
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Disability Services and Other Legislation Amendment Bill 2008
Administrative cost to government implementation
Government has committed $113 million over four years from 2007-08 for
a staged implementation of the new service and legislative model.
This funding will be directed to meet costs for:
� implementation of the legislation, including informing key
stakeholders;
� additional workload for the Tribunal to process applications for
approval and review of containment or seclusion approvals; or the
appointment of guardians;
� additional workload for both the Office of the Adult Guardian and the
Community Visitor Program;
� new Specialist Response Service teams (located across regions);
� new Mental Health Assessment and Outreach Team; and
� new Centre for Excellence for positive behaviour support.
Consistency with fundamental legislative principles
� Legislative Standards Act 1992, section 4(2)(a) - whether legislation
has sufficient regards to the rights and liberties of individuals
1. Rights and liberties of persons whom restrictive practices may be used
(a) Using restrictive practices under the main scheme (ie. other than for
respite or community access services or if there is an immediate and
serious risk of harm)
Authorising restrictive practices under this scheme can be a significant
intrusion on the rights of the adult. However, it is considered the Bill
contains measures to limit the circumstances when restrictive practices
may be justified. It provides proper safeguards for the adult while taking
into account the need to protect the rights of others to live and work free of
violent and other potentially damaging behaviour.
The Bill authorises the use of a restrictive practice only if-
(a) it is necessary to protect the adult with an intellectual or
cognitive disability or another from harm;
(b) it is the least restrictive option to ensure the safety of the adult or
another; and overall in the best interests of the adult;
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Disability Services and Other Legislation Amendment Bill 2008
(c) the adult has been assessed by an appropriately qualified or
experienced person;
(d) a positive behaviour support plan has been developed for the
adult and the restrictive practice is used in accordance with the
plan (including implementing the positive strategies);
(e the use of practice has been approved by an independent decision
maker having regard to legislative criteria; and
(f) the approval for the use of the practice is time limited and
reviewed periodically.
For containment or seclusion, the service provider must also ensure the
adult's reasonable needs are met (for example, bedding and clothing; and
food and drink). In addition, service providers must keep and implement
policies about the use of restrictive practices that are consistent with
policies developed by DSQ. If a service provider does not comply with the
policy, an authorised officer, appointed under Disability Services Act 2006,
can investigate and enforce non-compliance.
� Protection from harm and least restrictive option ((a)(b))
In any decision to use restrictive practices, it must be demonstrated the
restrictive practice is necessary for the safety of the adult or another person;
and is the least restrictive option of ensuring their safety. `Harm' has a
limited definition.
� Assessment and development of a positive behaviour support plan ((c)
(d))
The pre-requisites of assessment and planning processes are critical before
any restrictive practices can be approved or used. Relevant parties, such as
the guardian, family member, advocate or key health care provider, are
consulted during this process. The assessment and planning process looks
at the causes of the adult's challenging behaviour and identifies strategies
to improve the adult's behaviour and their quality of life (see pages 6-7).
� Independent Decision-Maker ((e))
All decisions about the use of restrictive practices are made independent to
the service provider and are subject to strict legislative criteria. Most
decisions about restrictive practices will be made and/or reviewed by the
Tribunal (see pages 7-8). The Tribunal is a specialist body with extensive
experience and expertise in dealing with people with an intellectual or
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Disability Services and Other Legislation Amendment Bill 2008
cognitive disability. Any decision from the Tribunal can be appealed to the
Supreme Court.
For restricted access to objects; an informal decision-maker must consent
to the use of the practice. However, it is considered there are adequate
safeguards for the adult in this instance that are proportionate to the nature
of the restrictive practice:
� the informal decision-maker must consider strict legislative
criteria when making a decision to consent to the use of
restricting access;
� the service provider must review the use of restrictive practices at
least every 12 months;
� a person with sufficient interest in the adult who is not satisfied
with decisions made by the informal decision-maker could apply
to the Tribunal for the appointment of a guardian. If a guardian
was appointed, only the guardian could consent to the restricting
access; and
� under the existing Guardianship and Administration Act 2000
(section 154), a decision of the informal decision-maker can be
ratified or approved.
� Time limited approvals, monitoring and review and appeals ((f))
All approvals for restrictive practices are time-limited; and must be
reviewed at least once every 12 months. For most restrictive practices, the
Tribunal will conduct a formal review. An order by the Tribunal to approve
the use of containment or seclusion, or to appoint a guardian for other
restrictive practices, must not be for longer than 12 months; and must be
reviewed by the Tribunal at least once during its duration. Also, a party
interested in the welfare of the adult may apply to the Tribunal at any time
to review a decision of the Tribunal or guardian.
Monitoring of the scheme is also achieved by:
� requiring service providers to keep records on the use of
restrictive practices;
� authorised officers appointed under the Act, who may investigate
non-compliance;
� an investigative function for the Adult Guardian; and
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Disability Services and Other Legislation Amendment Bill 2008
� an inquiry/complaint function for the Community Visitor
Program.
The legislative scheme encourages and supports family members and other
interested parties to remain involved in the development of plans for the
adult and to participate in decision-making processes. Provision is also
made for family or others to apply to the Tribunal to be appointed as a
guardian to seek help and make representations about the use of restrictive
practices for an adult who is the subject of a containment or seclusion
approval.
(b) Using restrictive practices for respite or community access services
The Bill provides for a different regime for the limited circumstance if
restrictive practices are used in the course of providing respite or
community access services to an adult. This situation and justification for
the special provision was discussed on page 10.
For most restrictive practices (except for daily (fixed) dose medication in
respite), the key principles must still be followed:
� it is necessary to protect the adult with an intellectual or
cognitive disability or another from harm;
� it is the least restrictive option for ensuring the person's safey and
overall in the best interests of the adult;
� the use of practice has been approved by an independent decision
maker having regard to legislative criteria;
� the approval for the use of the practice is time limited and
reviewed periodically; and
� the use restrictive practice complies with policy and procedures.
The main differences relate to the type of consent or approval and type of
plan. The relevant service provider must develop a `respite/community
access plan' for the adult. This plan is similar to a positive behaviour
support plan but requires less detail.
There is also a special provision for the use of daily (fixed) dose
medication in a respite setting only - in this case, the service provider must
obtain the consent of an informal decision-maker and comply with a policy.
The reason for this exception is to allow for the continued use in respite of
daily (fixed) dose medication, which has already been prescribed by a
doctor; and where, often, the service provider is not in a position to know if
the medication is being used primarily for behaviour control.
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Disability Services and Other Legislation Amendment Bill 2008
A service provider of occasional respite care is not in a position to try and
influence the longer term management of behaviour for that adult and to
determine the least restrictive option. Adults receiving respite usually do so
for short periods only, and it would be impracticable to require a service
provider to assess and develop a plan for an adult who they only see
occasionally and for short periods. Service providers strongly indicated
during consultation that it may become unviable for them to continue to
provide respite if there were no lesser requirements for daily (fixed) dose
medication in respite.
(c) using restrictive practices if there is an immediate and serious risk of
harm (short term approvals)
The Bill also provides for a different regime for using restrictive practices
in situations involving an immediate and serious risk of harm. Short-term
approvals may be given by the Adult Guardian (for containment or
seclusion) or the Chief Executive of DSQ (for other restrictive practices).
At times it will be necessary for a service provider to respond in an
emergency situation and therefore it is considered necessary to have a
short-term approval process for emergency situations.
It is considered these short-term approval provisions provide adequate
safeguards for the adult by:
� requiring time-limited approvals (no longer than 3 months unless
exceptional circumstances);
� the decision-maker must consider legislative criteria;
� a short-term plan must be developed and provided to the
decision-maker (for approval) within 14 days of any short-term
approval decision;
� the approval can be subject to other conditions;
� if the Chief Executive makes a short-term approval, they must
notify the Adult Guardian and others consulted in the decision;
� any short-term approval can be reviewed by the Tribunal; and
� the community visitor program is notified of the approval (to
assist with their inquiry/complain function and reports on
restrictive practices).
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Disability Services and Other Legislation Amendment Bill 2008
2. Rights and liberties of individuals - locking of gates, doors and windows
The Bill provides for the practice of locking gates, doors and windows to
prevent physical harm being caused to an adult with a skills deficit (for
example, an adult who cannot leave the premises unsupervised because he
or she lacks road safety skills). This practice is not within the definition of
a `restrictive practice' for the purpose of this scheme. However, it is still
regulated to ensure protection of the adult. This practice impacts on the
adult's rights and liberties as they are effectively prevented from exiting the
premises at times. However, this impact must be balanced with the purpose
of the practice, which is to ensure the adult's safety. An adult with a skills
deficit is unable to exit the premises safely without supervision. Having
regard to this objective, it is considered the impact on the adult is
justifiable.
Also, the Bill provides immunity from liability for this practice. The
immunity extends beyond the adult with a skills deficit and allows the
locking of gates, doors and windows in relation to any other person living
at the premises. While this does impact on other co-residents, the extended
immunity is considered justifiable.
The adult with a skills deficit often lives with other residents in a
community setting with shared accommodation. The policy for shared
accommodation is to provide suitable accommodation, which allow adults
with similar physical, emotional, social and support needs to reside
together. Given this service environment, if the gates, doors or windows
are locked for the safety of the adult with a skills deficit, this may also
impact on the freedom of other clients living with that adult. The Bill takes
this into account by ensuring there are sufficient protections for the rights
of other residents living with the adult. In particular:
� the service provider must keep and implement a policy on the
practice - this policy must be consistent with DSQ's policy,
which will detail how to minimise the impact on other residents
(for example, by giving other residents a key activation device so
they can freely exit the premises);
� the policy must outline procedures which demonstrate the
practice is the least restrictive option for the adult with a skills
deficit - this would include making sure the doors were locked
for the shortest possible time; and
� to obtain the benefit of the immunity, the service provider must
(among other things) act honestly and without negligence and
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Disability Services and Other Legislation Amendment Bill 2008
take reasonable steps to minimise the impact of locking gates,
doors and windows on other people living with the adult with a
skills deficit. The immunity also makes it clear that this practice
cannot be used to effectively contain an adult with `challenging
behaviour' (this would require Tribunal approval).
By including the practice in legislation, it allows DSQ to regulate and
monitor the practice. Under the Disability Services Act 2006, an authorised
officer has powers to investigate and enforce non-compliance. This could
include the issuing of a compliance notice and/or cancellation or
suspension of funding.
3. Confidentiality provisions
The Bill enables the Adult Guardian to obtain information necessary to
make an informed decision as to whether to give a short-term approval to
use containment or seclusion. This provision could allow the Adult
Guardian to obtain confidential information about a person, however, is
considered justifiable as there are adequate safeguards to protect the
individual:
� the information that can be obtained is limited to that necessary
to make an informed decision; and
� the Adult Guardian is prevented from disclosing the information
under section 249 of the Guardianship and Administration Act
2000.
Also new provisions facilitate the disclosure of medical information by
certain health care providers for the purpose of assessments and
development of plans. This will allow a service provider to access
confidential information about the adult in some cases. Access to this
confidential information is important for the adult's best interests and
relevant for a comprehensive assessment of the adult; and to understand all
of the adult's needs and possible causes for their challenging behaviour.
The provisions are considered justifiable as they balance the need for this
information, with providing appropriate safeguards to prevent misuse of
this information. In particular:
� the information can only be obtained for a limited purpose; and
� the service provider is prevented from disclosing the information
other than in the limited circumstances prescribed in the Bill (for
example, to discharge a function under another law or for a
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Disability Services and Other Legislation Amendment Bill 2008
proceeding in a court or tribunal). It is an offence for the service
provider not to comply.
4. Transitional provisions
The Bill allows the service provider (and individuals acting on their behalf)
up to 18 months from commencement to comply with all of the new
requirements. The legislative scheme is about driving a culture of change
in the use of restrictive practices in the disability sector; and to effectively
implement the scheme, adequate provision must be made for:
� service providers to conduct an assessment and develop a
positive behaviour support plan for the adult - more complex
cases could take at least 3-4 months per adult;
� recruitment of specialist and skilled staff;
� service providers to develop policies and procedures about the
use of restrictive practices; and
� for the Tribunal to hear and decide applications for containment
and/or seclusion or appoint a guardian for other restrictive
practice matters.
In the meantime, service providers can lawfully use restrictive practices
provided they satisfy a number of requirements, aimed at protecting the
adult. These requirements include notification to DSQ if containment or
seclusion is being used; assessment of the adult within certain time periods
if there is no guardian appointed to approve restrictive practices; carrying
out of monitoring in relation to the use of the restrictive practice to ensure
the safety of the adult; and keeping and implementing policies in relation to
the use of the restrictive practice.
� Legislative Standards Act 1992, section 4(3)(a) - whether legislation
makes rights and liberties, or obligations, dependent on
administrative power only if the power is sufficiently defined and
subject to appropriate review
1. Approval to use restrictive practice given by the Tribunal or substitute
decision-maker (main scheme)
Approval to use restrictive practices will be made by the Tribunal (for
containment or seclusion), a guardian for restrictive practice matters
appointed by the Tribunal (for chemical, mechanical or physical restraint)
or an informal decision-maker (for restricting access, if there is no
guardian). All decisions are subject to strict legislative criteria.
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Disability Services and Other Legislation Amendment Bill 2008
The Tribunal will provide an oversight in relation to most restrictive
practices. The ability of the Tribunal to approve and review the use of
containment and seclusion; and review the decisions of guardians is not
considered to be the use of an administrative power affecting the rights and
liberties or obligations of an individual, given that the Tribunal is a
quasi-judicial body.
However, it may be considered that the extension of a guardian's power to
consent to the use of other restrictive practices is making the rights and
liberties or obligations of an adult dependent on administrative power. A
guardian is appointed by the Tribunal to make decisions for an adult with
impaired capacity and can make decisions for an adult that the adult does
not agree with. Decisions made by a guardian already impact upon the
rights and liberties of an adult but are justified on the basis that without a
guardian appointed, an adult's needs or interests will not be adequately met
or protected.
The proposed legislative scheme provides a transparent and open process
regarding the appointment of guardian and decisions made by a guardian.
The Tribunal is required to review a guardian's decisions at least every 12
months. Legislative criteria regulate how decisions by guardians are made
and there are internal and external processes available for the review of a
decision by a guardian. The power of a guardian is sufficiently defined and
is subject to appropriate review.
An informal decision maker will only be making decisions about restricted
access and their powers are also sufficiently defined and subject to
appropriate review, given the nature of the decisions (see page 15).
2. Short term approvals
Short-term approvals are given by either the Adult Guardian (for
containment or seclusion) or the Chief Executive of DSQ (for other
restrictive practices). The purpose of short-term approvals was explained
earlier (see page 11). It is considered that these provisions sufficiently
define the administrative power and provide appropriate review, including:
� the decision-maker must consider legislative criteria when
deciding a short-term approval, including deciding whether to
approve a short-term plan;
� there are time-limited approvals (they cannot be longer than 3
months unless there are exceptional circumstances);
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Disability Services and Other Legislation Amendment Bill 2008
� in deciding whether or not to make a short-term approval, the
decision-maker must consult with the adult, their guardian or
informal decision-maker;
� the adult or the guardian/informal decision-maker for the adult,
who was consulted, or the effected service provider, can apply to
the Tribunal to review any decision about a short-term approval
(to approve/refuse);
� if a short-term approval is given, the service provider must within
14 days of the approval, develop a `short-term plan' and provide
it to the decision-maker for approval;
� the decision not to approve a short-term plan can be reviewed by
the Tribunal; and
� if the Chief Executive makes a short-term approval, they must
notify the Adult Guardian and others consulted in the decision.
� Legislative Standards Act 1992, section 4(3)(g) - whether legislation
adversely affecting the rights and liberties, or impose obligations,
retrospectively
It is proposed to provide appropriate legal protection for disability service
providers who had applied restrictive practices prior to the commencement
of the legislation in certain circumstances.
The immunity relates to the use of restrictive practices at any time before
the amendment commences. The Minister for Disability Services provided
public notice of the intention to provide appropriate legal protection in
Parliament on 22 May 2007.
These provisions have been developed to address the current lack of clear
authority and transparent decision-making with regards to the use of
restrictive practices. As the Carter Report acknowledges, restrictive
practices can be a necessary strategy for managing challenging behaviour
in certain situations. It is considered the retrospective immunity provisions
provide appropriate safeguards to ensure a service provider would only get
the legal benefit of these provisions for the proper use of restrictive
practices. These provisions are not intended to condone those practices
which will always remain unlawful or to allow the use of restrictive
practices for punishment purposes.
A service provider will only receive legal protection if:
� they acted honestly and without negligence; and
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Disability Services and Other Legislation Amendment Bill 2008
� they demonstrated the restrictive practice was necessary for
safety and the least restrictive option; and
� within a reasonable time before using the restrictive practice,
they assessed the adult to identify the causes of their harmful
behaviour; and developed positive strategies to meet the adult's
needs; and
� they carried out monitoring in relation to the use of restrictive
practices.
� Legislative Standards Act 1992, section 4(3)(h)--whether legislation
confers immunity from proceeding or prosecution only with
adequate justification
Generally, the Bill provides for four types of immunities:
� retrospective immunity - for the use of restrictive practices before
the commencement of the Bill;
� transitional immunity - for the use of restrictive practices for 18
months from the commencement of the Bill;
� prospective immunity - for the use of restrictive practices after
the (18 month) transitional period; and
� immunity for locking of gates, doors and windows - for the
practice of locking, gates, doors and windows generally.
The aim of these immunity provisions is to clearly outline the
circumstances when restrictive practices may be lawfully applied; and they
provide legal certainty/guidance to staff and services as to when restrictive
practices may be justified. These immunity provisions only authorise
restrictive practices where it can be demonstrated, among other things, that
it is for the safety of the adult and overall in the individual's best interests.
1. Use of restrictive practices (prospective immunity)
The Bill confers prospective civil and criminal immunity on DSQ funded
and provided service providers who may use restrictive practices after the
commencement of the Bill (after the transitional period). The Bill also
confers similar immunity provisions on an individual who is acting for a
DSQ funded or provided service.
A DSQ funded or provided service provider is not criminally or civilly
liable for using restrictive practices if the service provider:
� act honestly and without negligence; and
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Disability Services and Other Legislation Amendment Bill 2008
� uses the restrictive practice in accordance with all of the
requirements under the Bill. This means that to lawfully use the
restrictive practice the service provider must comply with all of
the requirements outlined in the Bill. The use of restrictive
practices can only be authorised as part of an individualised
model of care and support and a positive behaviour support plan.
A similar immunity provision applies to an individual acting for the service
provider. The individual is not criminally or civilly liable for using the
restrictive practice if they:
� act honestly and without negligence; and
� use the restrictive practice in accordance with the relevant
consent or approval, or they reasonably believe they are acting in
compliance with the relevant consent or approval; and
� use the restrictive practice in compliance with the positive
behaviour support plan, or they reasonably believe they are
acting in compliance with the positive behaviour support plan.
For the reasons outlined in pages 13-16, it is considered that this immunity
is justified as there are sufficient safeguards to protect the adult.
2. Locking of gates, doors and windows immunity
For locking doors or windows a service provider is not civilly or criminally
liable for locking, gates, doors provided provided they:
� act honestly and without negligence; and
� keep and implement a policy (consistent with DSQ's policy) on
this practice;
� the gates, doors and windows are locked in compliance with the
policy; and
� the service provider takes reasonable steps to minimise the
impact of locking gates, doors and windows on a person living at
the premises.
A similar immunity provision applies for an individual acting for a service
provider provided they acted in compliance with, or reasonably believes
they are acting in compliance with, the provider's policy about the locking
of gates, doors and windows. For the reasons outlined above in pages 17
and 19 it is considered this immunity is justified as it provides appropriate
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Disability Services and Other Legislation Amendment Bill 2008
protections for the adult with a skills deficit, as well as other residents who
may live with that adult.
3. Giving confidential information to a guardian or informal
decision-maker
The Bill provides that a service provider is not criminally or civilly liable
or liable under an administration process or professional code of conduct
for the provision of confidential information to a substitute decision-maker.
This is justified as the Bill requires a service provider to give certain
confidential information to a substitute decision-maker to enable the
substitute decision-maker to make an informed decision about the use of
the restrictive practice by the service provider. Given that a service provider
may be subject to privacy laws or professional codes of conduct, the
service provider should be protected from providing that confidential
information to the substitute decision-maker.
Further, any information that is provided to a substitute decision-maker is
subject to a duty of confidentiality. A guardian is already subject to a duty
of confidentiality under the provisions of section 249 of the Guardianship
and Administration Act 2000. This Bill imposes a similar obligation on the
informal decision-maker when the informal decision-maker is required to
make a decision about a restrictive practice matter (section 80ZT).
� Legislative Standards Act 1992, section 4(4)(a) - whether legislation
allows the delegation of legislative power in appropriate cases to
appropriate persons
The Bill requires a service provider to keep and implement a policy on the
use of restrictive practices and this policy must be consistent with DSQ's
policy and procedures. These provisions delegate legislative power to DSQ
as DSQ's policy will state some requirements that a service provider must
comply with, as part of any immunity.
Requiring service providers to comply with a policy is considered
reasonable as the policy will include technical detail and is more practical
and flexible than legislation; and can easily be modified as circumstances
require. The Bill specifies matters that the policy must address and these
mainly relate to the proper implementation of restrictive practices (for
example how staff are skilled to use restrictive practices); and provide more
detail as to how the requirements in the Bill can be complied with (for
example when to conduct a review of a restrictive practice or how to
monitor restrictive practices).
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Disability Services and Other Legislation Amendment Bill 2008
In addition, service providers must ensure the policy is kept up to date and
easily accessible to staff, guardians, informal decision makers or advocates
for the adult.
Consultation
A total of 58 targeted consultation sessions on an exposure draft of the Bill
were held across the State, with separate sessions for service providers;
families and advocates; peak bodies, key government agencies, unions, and
DSQ staff. Up to 800 persons participated in the consultations which
occurred between October 2007 - January 2008 and 15 written
submissions were provided.
Consultation participants indicated their support for the key principles and
intent of the Bill. Broad support was provided for the development of a
legislative basis to regulate restrictive practices to:
� safeguard the rights of adults who exhibit challenging behaviour;
� require that, for a restrictive practice to be approved, it must be
demonstrated as the least restrictive practice;
� require that any use of restrictive practices be in the context of
positive behaviour support;
� recognise the important role of families and guardians in
decision-making;
� provide protections to service providers who comply with the
strict requirements;
� recognise a culture of change is needed to reduce the use of
restrictive practices; and
� acknowledge that a culture of change depends on an accessible,
responsive and highly skilled service infrastructure.
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Disability Services and Other Legislation Amendment Bill 2008
Notes On Provisions
Part 1 - Preliminary
Division 1 -Introduction
Short Title
provides that the short title of the Bill is the Disability Services and Other
Legislation Amendment Act 2008.
Commencement
provides that the Bill commences on a day to be fixed by proclamation.
Part 2 - Amendment of Disability Services Act
2006
Act amended in part 2
Clause 3 provides that this part amends the Disability Services Act 2006.
Amendment of s5 (Act does not affect other rights or remedies)
Clause 4 amends section 5 of the Disability Services Act 2006 and provides
that section 5 does not apply for sections 123ZZB, 123ZZC, 214C, 214D,
242 to 244 and 246. Section 5 provides that the Disability Services Act
2006 does not affect or limit a civil right or remedy. The effect of this
clause is that some sections in the Bill (listed above) provide protection
from any criminal or civil liability provided certain requirements under the
Bill are met.
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Disability Services and Other Legislation Amendment Bill 2008
Amendment of s 6 (Objects of Act)
Clause 5 amends section 6 of the Disability Services Act 2006 to reflect the
broad objects of this legislative scheme which is to safeguard the rights of
adults with an intellectual or cognitive disability including by regulating
the use of restrictive practices by funded service providers in relation to
those adults -
� where it is necessary to protect a person from harm; and
� with the aim of reducing or eliminating the need for use of restrictive
practices.
Importantly this scheme is not about authorising restrictive practices per se
but rather only authorising restrictive practices in limited circumstances,
where it can be justified as part of an individualised model of care and
support. The overall aim is to reduce or eliminate the reliance on restrictive
practices, promote positive behavioural support and improve the quality of
life for the adult.
Amendment of s 7 (How objects are mainly achieved)
Clause 6 amends section 7 to provide for how the objects of this scheme
will mainly be achieved by:
� stating requirements for when funded service providers may use
restrictive practices in relation to adults with an intellectual or
cognitive disability
Insertion of new pt 10A
Clause 7 inserts a new part (part 10A - Use of Restrictive Practices) into
the Disability Services Act 2006 for the purpose of this scheme.
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Disability Services and Other Legislation Amendment Bill 2008
Part 10A Use of restrictive practices
Division 1 Preliminary
123A Purpose of pt10A
New section 123A provides that the purpose of this part is to regulate the
use of restrictive practices by funded service providers in relation to adults
with an intellectual or cognitive disability, in a way that-
� has regard to the human rights of those adults; and
� safeguards them and others from harm; and
� maximises the opportunity for positive outcomes and aims to reduce
or eliminate the need for use of the restrictive practices; and
� ensures transparency and accountability in the use of the restrictive
practices.
123B Service providers to which pt 10A applies
Section 123B defines the scope of the scheme and provides that this part
applies to a funded service provider who provides disability services to an
adult with an intellectual or cognitive disability (a relevant service
provider).
Some of these terms are already defined in the Disability Services Act
2006:
� `funded service provider' is defined in section 14;
� `disability services' is defined in section 12;
� `disability' is defined in section 11.
The effect of this section is that the scheme only applies to:
� Adults;
� Who have an intellectual or cognitive disability and `challenging
behaviour'; and
� Who are receiving disability services from a `relevant service
provider'.
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Disability Services and Other Legislation Amendment Bill 2008
All of the above must be present for the scheme to apply.
1. Adult
Adult - means a person 18 years or older
2. Intellectual or cognitive disability
Adult with an intellectual or cognitive disability - is defined in new section
123E to mean an adult with a disability which is attributable to an
intellectual or cognitive impairment, or a combination of these
impairments. `Disability' is defined in section 11 of the Disability Services
Act 2006. However, the terms `intellectual disability' or `cognitive
disability' are not defined further in the Act.
The term includes adults who have an acquired brain injury, and adults who
have either an intellectual or cognitive disability and a diagnosed mental
illness (`dual diagnosis' adult);
3. Challenging behaviour
The term `challenging behaviour' is not defined in the Bill (see page 2) and
instead the Bill refers to the essence of challenging behaviour in referring
to:
� behaviour of such nature, intensity, frequency or duration that the
behaviour causes harm or is likely to cause harm to the adult or
others, such as staff, carers and co-tenants.
These adults have impaired decision-making capacity and are not able to
make decisions on their own regarding their care and support.
4. Relevant service provider
� A `relevant service provider' means DSQ as a service provider,
or a non-government service provider who receives funds
(wholly or partly) from DSQ to provide disability services. It
does not include another department receiving funds from DSQ.
Some examples of what is covered by the Bill are:
� Adult with an intellectual or cognitive disability living at home
but receiving community support service from DSQ - the
scheme applies to the DSQ service provider (and safeguards the
adult) while they are delivering the disability service to the adult.
It does not apply to the family member.
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Disability Services and Other Legislation Amendment Bill 2008
� Adult with an intellectual or cognitive disability residing in a
hostel but DSQ provides a residential support program - the
scheme applies to the DSQ worker while they are providing the
residential service to the adult. It does not apply to the owner or
manager of the hostel.
Some examples of what is not covered by the Bill are:
� Adult with an intellectual or cognitive disability living at home
being cared for by a family member (and not receiving a
disability service from DSQ or a funded non-government service
provider);
� Adult with an intellectual or cognitive disability residing in a
boarding house or hostel (and not receiving a disability service
from DSQ or a funded non-government service provider);
� Adult with an intellectual or cognitive disability when receiving a
service from Queensland Health (For example, a patient in a
Queensland Health residential care facility);
� Adults who have a disability other than an intellectual or
cognitive disability (For example, an adult who has a physical
disability, but no intellectual or cognitive disability);
� Children with a disability, including an intellectual or cognitive
disability, and who may or may not exhibit challenging
behaviour.
123C Principles for performing functions etc.
Section 123C provides that this section applies to a person, including a
relevant service provider, who performs a function, or exercises a power,
under this part; and that despite section 18, the person must have regard to
the human rights principle in performing the function or exercising the
power.
The human rights principle is that people with a disability have the same
human rights as other members of society and should be empowered to
exercise their rights. For other parts of the Disability Services Act 2006, it
says persons are `encouraged' to have regard to the human rights principle.
The effect of this section is that it requires any person (including a DSQ
provided or funded service) to consider the human rights principle when
performing a function or exercising a power for the purpose of this scheme.
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Disability Services and Other Legislation Amendment Bill 2008
123D Explanation of operation of pt 10A
The purpose of section 123D is to explain generally the circumstances in
which a relevant service provider may be authorised to use a restrictive
practice in relation to an adult with an intellectual or cognitive disability.
Restrictive practices can potentially amount to civil or criminal actions
such as assault or deprivation of liberty/false imprisonment. The Bill
allows a service provider, or a person acting on behalf of the service
provider, to lawfully use restrictive practices in limited circumstances. The
main requirements (not the only ones) are summarised in this section. This
section does not apply to the special provisions of respite/community
access services or short term approvals.
A relevant service provider is authorised to use a restrictive practice if it is:
� necessary to prevent harm to the adult or others;
� the least restrictive way of ensuring the safety of the adult or others;
� complies with the positive behaviour support plan for the adult (this
includes implementing the positive strategies); and
� applied in accordance with the relevant approval/consent:
(a) For containment and/or seclusion (and any other restrictive
practices if required in addition or containment and/or seclusion)
- approved by the Guardianship and Administration Tribunal;
(b) For chemical, physical or mechanical restraint (and restricted
access if required in addition) - consent of the guardian
appointed by the Tribunal for restrictive practice matters for the
adult;
(c) For restricted access - consent of an informal decision-maker (or
if there is a guardian for restrictive practice matters for the adult
- consent of the guardian).
Restrictive practices can only be approved alongside strategies for
increasing the adult's positive behaviour. This should lead to a reduction in
the need to use restrictive practices.
There are also special circumstances for services funded only to provide
respite and/or community access; and the use of restrictive practices in the
short-term (for example, because of an emergency, where there is an
immediate and serious risk of harm).
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Disability Services and Other Legislation Amendment Bill 2008
123E Definitions for pt 10A
Section 123E sets out key terms for the operation of the scheme. Some of
these terms are discussed below.
� Adult with an intellectual or cognitive disability - this was discussed
in section 123B.
� Chemical restraint (fixed dose) means chemical restraint using
medication that is administered at fixed intervals and times - this
definition is used for the purpose of daily or (fixed dose) medication
used in a respite service.
� Community access services - means disability services that are:
(a) community access services provided to an adult with an
intellectual or cognitive disability who only receives respite
services and/ or community access from a relevant service
provider; and
(b) funded as community access services by the department or the
Commonwealth.
This relates to the special provisions in the Bill relating to the use of
restrictive practices in a respite or community access setting. For the
purpose of these special provisions, a respite (or community access)
service must be a service that is funded by DSQ or the Commonwealth to
only provide respite and/or community access for the adult with an
intellectual or cognitive disability.
The terms `respite' and `community access' are not defined in the Bill or
the Disability Services Act 2006 - these are defined in the
Commonwealth-State/Territory Disability Agreement (CSTDA) and
associated guidelines. The CSTDA is the agreement between the
Commonwealth Government and States and Territories; and provides the
national framework for disability services and determines disability
funding.
The use of the defined term `relevant service provider' in subsection (a)
means that the respite or community access service must be receiving at
least partial CSTDA funding from DSQ for respite or community access
(i.e. if the service was solely funded by the Commonwealth for respite or
community access or by other State and Commonwealth program, it would
not be captured by these amendments).
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Disability Services and Other Legislation Amendment Bill 2008
� Containment or seclusion approval - is the term used in the Bill to
describe an order made by the Guardianship and Administration
Tribunal for the use of containment and/or seclusion (and other
restrictive practices if required in addition to containment and/or
seclusion). A containment or seclusion approval must not be longer
than 12 months (see clause 22, section 80Y).
� guardian for a restrictive practice (general) matter
� guardian for a restrictive practice matter
� guardian for a restrictive practice (respite) matter
These terms are defined to recognise a new matter for guardians appointed
by the Guardianship and Administration Tribunal for the purposes of this
scheme. Under the Bill, a guardian will be able to be appointed by the
Tribunal for the specific purpose of making decisions about restrictive
practices.
A `guardian for a restrictive practice (general) matter' is the term used to
define a guardian appointed by the Tribunal to decide whether or not to
consent to:
� physical restraint;
� mechanical restraint; or
� chemical restraint.
A `guardian for a restrictive practice (respite) matter' is the term used to
define a guardian appointed by the Tribunal for the special circumstance of
a respite and/or community service.
The term `guardian for a restrictive practice matter' is used in the Bill to
refer to a guardian who is appointed means a guardian for a restrictive
practice (general) matter, or a guardian for a restrictive practice (respite)
matter, for the adult.
These guardians can be appointed up to 12 months and must follow strict
legislative criteria when making decisions about the use of restrictive
practices. Their decisions are reviewed by the Guardianship and
Administration Tribunal (see clause 22, section 80ZD)
� Harm - the definition of harm is limited to mean physical harm or a
serious risk of physical harm to the adult or another. It also includes
damage to property where it involves a serious risk of physical harm
to the person.
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Disability Services and Other Legislation Amendment Bill 2008
A relevant service provider must demonstrate (among other things) that the
restrictive practice is necessary to prevent harm to the adult or another.
� Informal decision-maker - this is consistent with the definition of an
`informal decision-maker' in the Guardianship and Administration
Act 2000. An informal decision-maker is someone within the adult's
support network who makes decisions for adults without a formal
appointment. This includes a member of the adult's family, close
friends of the adult or another person the Tribunal decides. This does
not include a paid carer for the adult. Under the Bill, the informal
decision-maker can consent to the practice of restricted access, and
some other restrictive practices in the special provision for
respite/community access services.
� Least restrictive - for use of restrictive practice means the restrictive
practice must impose the minimum limits on the freedom of the adult
as is practicable in the circumstances. The term `practicable in the
circumstances' could take into account the environment and resources
of a particular service provider.
A relevant service provider must demonstrate (among other things) that the
restrictive practice is the least restrictive way of preventing harm to the
adult or another.
� Physical restraint - see page 36
� Positive behaviour support plan - is defined in section 123L.
Generally, any use of restrictive practices must be included in this
plan, which (among other things) details the procedures for restrictive
practices, as well as positive strategies for the adult.
� Respite or community access plan - is defined in section 123ZP and
is the plan required for the use of restrictive practices in a respite
and/or community access setting - it is similar to a positive behaviour
support plan but requires less detail.
� Respite services - means disability services that are:
(a) respite services provided to an adult with an intellectual or
cognitive disability who only receives respite services and/ or
community access from a relevant service provider; and
(b) funded as respite services by the department or the
Commonwealth.
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Disability Services and Other Legislation Amendment Bill 2008
This relates to the special provisions in the Bill relating to the use of
restrictive practices in a respite or community access setting. For the
purpose of these special provisions, a respite (or community access)
service must be a service that is funded by DSQ or the Commonwealth to
only provide respite and/or community access for the adult with an
intellectual or cognitive disability.
The terms `respite' and `community access' are not defined in the Bill or
the Disability Services Act 2006 - these are defined in the
Commonwealth-State/Territory Disability Agreement (CSTDA) and
associated guidelines. The CSTDA is the agreement between the
Commonwealth Government and States and Territories; and provides the
national framework for disability services and determines disability
funding.
The use of the defined term `relevant service provider' in subsection (a)
means that the respite or community access service must be receiving at
least partial CSTDA funding from DSQ for respite or community access
(i.e. if the service was solely funded by the Commonwealth for respite or
community access, or by any other state and Commonwealth program such
as Home and Community Care, it would not be captured by these
amendments).
� Restricting access - see further below.
� Restrictive practices means the following practices:
� containing or secluding the adult;
� using chemical, mechanical or physical restraint on the adult; and
� restricting access of the adult.
These terms are further defined in the Bill - some are defined in this
section and others are defined in separate sections. These definitions are
`threshold' definitions and are important to capture what practices will be
regulated by the Bill. If a service provider proposes to use one or more of
these restrictive practices, as defined in the Bill, they must comply with all
of the new requirements in the Bill before they can lawfully use the
practice.
The practice of locking, gates, doors and windows (discussed in clause 8)
is not considered a `restrictive practice' for the purpose of this scheme.
� Physical restraint - the definition is intended to cover the use of any
part of a person's body to prevent, restrict or subdue the movement of
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Disability Services and Other Legislation Amendment Bill 2008
the adult with an intellectual or cognitive disability for the primary
purpose of controlling the adult's behaviour.
Example of `physical restraint'
D is a young woman with an intellectual disability and autism spectrum
disorder . Certain stimuli or events can promote a severe and intense
reaction from her when they occur unexpectedly. In the past she has
repeatedly hit her fist against her face and head causing bleeding, a broken
nose and extensive scarring. Strategies for assisting D to self regulate her
response to these events and stimuli have been attempted, with mixed
success. When these preventative approaches are unsuccessful and D
begins hitting herself, support staff may hold D's arm and hand to her side
(with the minimum force necessary and calmly interacting with D) until the
unpleasant/fearful stimuli can be removed. This intervention prevents
further physical damage and trauma to D and provides an opportunity for D
to listen and respond to the staff's prompts to relax and calm down.
� Restricting access - means restricting the adult's access at a place
(where disability services are provided) to objects that may cause
harm to the adult or others.
Example of `restricted access'
F is a young adult with Prader-Willi syndrome and an intellectual
disability. The consequence of Prader-Willi is often an inability to regulate
the desire to eat. If given free access to food, F will eat to the point where
he is at risk of gorging or choking. On a number of occasions F consumed a
range of plastic food packaging requiring hospitalisation and surgery.
When staff are not present to monitor the situation, certain cupboards in the
kitchen are locked to reduce these risks. Other co-tenants have keys to
these cupboards to minimise the impact of this strategy on their rights. The
restricted access protects F's physical health and wellbeing and enables F
to engage in other activities without constantly seeking food.
� Seclude - means physically confining the person alone, at any time, of
the day or night, in a room or area from which free exit is prevented.
The important part of this definition (which distinguishes it from the
definition of `contain') is the element of isolation. Seclusion includes
the concept of `exclusionary time-out'.
Example of `seclude'
(B) is an adult with an intellectual disability and has episodes of
hitting/punching his co-tenants and staff and placing them at significant
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risk of harm. On several occasions, co-tenants have required medical care
as have several staff. Assessments have identified that B's challenging
behaviour is precipitated by anxiety. When observed to be anxious, support
staff instruct B in a range of relaxation exercises designed to reduce his
levels of agitation. On occasions, B's anxiety levels can continue to
escalate. In response, support staff direct B to an external court yard by
himself for a specified period of time until he has calmed down. During
this period of seclusion, B is unable to leave the area of his own accord.
The seclusion is effective in protecting co-tenants and staff from harm
while providing an opportunity for B to become calm.
� short-term approval - means an approval given for the use of
restrictive practices in an emergency (where there is immediate and
serious risk of harm). It is given by either the Adult Guardian or Chief
Executive of DSQ, depending on the type of restrictive practice.
� short-term plan - is defined in section 123ZM and describes the type
of plan required for a short-term approval.
� support network for an adult - is defined in the Guardianship and
Administration Act 2000 (schedule 4) and consists of the following
people:
� members of the adult's family;
� close friends of the adult; or
� other people the Guardianship and Administration Tribunal
decides provide support to the adult.
123F Meaning of chemical restraint
Section 123F defines chemical restraint - it is intended to cover the use of
medication to primarily control the person's behaviour, such as to sedate
the person. It is not intended to cover the use of medication to properly
treat a medical cause. The definition deals with the use of medication and
does not cover the prescription of medication. The Health (Drugs and
Poisons) Regulation 1996 covers the prescription and administration of
drugs that may be used as chemical restraint.
`Medication' is not defined in the Bill and takes its ordinary meaning and
includes prescription medicine, "off-label" prescription of medication, and
use of natural medicines. It also incudes the prescription of daily dose
medication and `PRN' medication (medication as and when needed).
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Disability Services and Other Legislation Amendment Bill 2008
What is covered by `chemical restraint'
The term `chemical restraint' means the use of medication for the primary
purpose of controlling the adult's behaviour. That is, if a drug has the dual
purpose of treating the person's health condition and controlling the
person's behaviour then it will only be considered `chemical restraint' if it
can be shown that the primary purpose was to control the person's
behaviour.
What is not covered by `chemical restraint'
However, the use of medication for the proper treatment of a diagnosed
mental illness or physical condition is not chemical restraint.
For example, a person has a diagnosed mental illness, as well as an
intellectual disability. The person's psychiatrist has prescribed
anti-psychotic medication for the proper treatment of the person's mental
illness. One of the effects of the medication is that the person's behaviour is
controlled. Because the medication is being used for the proper treatment
of a diagnosed mental illness, it is not chemical restraint.
`Diagnosed' for a mental illness or physical condition, means a doctor
confirms the adult has the illness or condition. To remove any doubt, an
intellectual or cognitive disability is not a physical condition. "Mental
illness' is defined in section 12 of the Mental Health Act 2000.
Example of `chemical restraint'
Person C has an acquired brain injury and is receiving a DSQ funded
accommodation service. C has a history of extensively damaging his home
including the destruction of furniture and fittings, windows, doors, walls,
and ceilings. During such an episode, C threw chairs and kitchen knives,
injuring cotenants and support staff, as well as C himself. Assessment has
identified a number of reliable `early warning' signs which occur prior to
an episode of property destruction. When support staff observe these
specific signs, C is administered medication prescribed by a psychiatrist
which, as a result of its sedative effects, reduces the escalation in his
behaviour. The medication de-escalates the behaviour, resulting in fewer
incidents and overall a safer and more stable living environment for all
residents.
123G Meaning of contain
Section 123G defines what is meant by `contain'- this definition is
important because it is intended to capture the situation where the free
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Disability Services and Other Legislation Amendment Bill 2008
movement of an adult with an intellectual or cognitive disability is
restricted in order to contain and control the impact and consequences of
managing the adult's `challenging behaviour'.
In the Bill, `contain' is distinguished from the practice of `locking of gates,
doors and windows'. The latter term is used to describe the situation where
the free movement of adults with an intellectual or cognitive disability is
restricted for the purpose of ensuring the adult's safety and providing a safe
environment. For example, a gate may be locked at times for someone with
no traffic awareness where it has been ascertained that the adult does not
have sufficient skills to enter safely onto a public roadway or footpath
without the support of a carer.
The distinction is important for immunity purposes but more importantly to
ensure that service providers do not use the practice of locking of gates,
doors and windows as an alternative to what is in fact `containment'.
Under the Bill, it will be lawful for a relevant service provider to lock gates,
doors and windows if they develop and implement policies and procedures
consistent with DSQ's policy and procedures on the locking of gates, doors
and windows (this is discussed in more detail in clause 8). For lawful use
of containment, the issues for managing the adult's behaviour are more
complex and the Bill requires a more rigorous authorisation and review
process, including a multi-disciplinary assessment of the adult and
approval and review by the Guardianship and Administration Tribunal.
What is covered by `contain'
`Contain' means physically preventing the free exit of the adult from
premises where the adult receives disability services. It does not include
`secluding' the adult, which has a separate definition.
What is not covered by `contain'
The adult is not contained if--
� the adult is an adult with a skills deficit (see clause 8 - new part 15,
division 1A); and
� the adult's free exit from the premises is prevented by the locking of
gates, doors or windows under that part.
`Premises' is defined in the Disability Services Act 2006 (schedule 7) to
include:
� a building or other structure; and
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Disability Services and Other Legislation Amendment Bill 2008
� a part of a building or other structure; and
� a vehicle; and
� a caravan.
Section 123G of the Bill extends this definition, for the purposes of
defining `contain', to include the land around a building or other structure.
The modified definition then goes on to exclude a vehicle - this is to
prevent the locking of person in a vehicle to be captured as containment.
Example of `contain'
Person A has an intellectual disability who enjoys outings in the
community. He has road safety skills and knows the local community. A
has a history of unprovoked assaults on members of the public when in the
community without staff support. These assaults have required medical
services and have led to police involvement. Several assaults have resulted
in members of the public being hospitalised. When A displays the
recognisable early signs of wishing to leave the house unaccompanied (eg.
vocalisations and pacing near the front gate), the perimeter gates of the
yard are locked. The containment prevents A from accessing the
community unaccompanied and assaulting members of the public.
123H Meaning of mechanical restraint
Section 123H defines `mechanical restraint' to mean the use, for the
primary purpose of controlling the adult's behaviour, of a device to either -
(a) restrict the free movement of the adult; or
(b) prevent or reduce self injurious behaviour.
Subsection (b) is added to capture the use of mechanical devices which
might not be considered restrictive to the adult but are used to prevent
self-injurious behaviour. For example - the use of head gear to prevent an
adult, who repeatedly hits their head against a wall for sensory purposes,
from injuring themselves.
What could be considered `mechanical restraint'
Examples of devices which may be used to control a person's behaviour
include:
� a bodysuit - for example, to prevent sexualised behaviour;
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Disability Services and Other Legislation Amendment Bill 2008
� a splint - for example, to prevent the adult from suffocating by
constantly placing their hand down their throat;
� headgear or another device placed over the head or face;
� a harness or strap; or
� mittens or gloves (example below).
Example of `mechanical restraint'
E is a 31 year old woman with an intellectual disability. She periodically
attends a DSQ provided respite service. E displays a form of self injurious
behaviour where she will pick the skin off her hands and arms. This has
resulted in bleeding, serious infections requiring medical attention and
irreversible damage to E's skin. When E begins to engage in the behaviour,
support staff apply cotton mittens secured around her wrists to prevent
serious injury. While the restraint is in use staff engage E in conversation
and quiet activity until the attempts to pick have ceased at which point the
mittens are removed. At times, E will immediately return to the picking
behaviour and the mittens will be reapplied.
What it is not mechanical restraint
The definition lists a number of devices which are not considered to be
`mechanical restraint' and therefore are not regulated in the Bill. The
devices which are excluded mainly relate to mechanical restraints used for
therapeutic or medical purposes, or to enable safe transportation of the
adult.
The following devices are not mechanical restraint--
� using a device to enable the safe transportation of the adult. For
example, a cover over a seat belt buckle or a harness or strap. It
would not include, for example, the use of shackles as of type of device
to enable safe transport;
� using a device for postural support - for example, a back brace to
provide postural support for an adult who had scoliosis;
� using a device to prevent injury from involuntary bodily movements,
such as seizures. For example, a leg brace on a person with cerebral
palsy to prevent muscular contractions;
� using a surgical or medical device for the proper treatment of a
physical condition or injury - for example, a splint to treat an adult's
broken arm; or
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� using bed rails or guards to prevent injury while the adult is asleep.
123I Requirement to keep and implement a policy
Section 123I defines what is meant in the Bill by a requirement for a
relevant service provider to `keep and implement' a policy about use of a
restrictive practice. Under the Bill a relevant service provider must keep
and implement a policy on the use of any restrictive practice. `Keep and
implement a policy' is defined in this section to mean:
� prepare the policy and keep it up-to-date; and
� implement and comply with the procedures and other matters stated in
the policy; and
� keep a copy of the up-to-date policy at premises where the restrictive
practice is used; and
� ensure a copy of the up-to-date policy is available for inspection by-
� staff of the relevant service provider; and
� guardians, informal decision makers or advocates for the adult.
The intent of the definition is to ensure that the policy is a flexible
document that can be modified as circumstances require; practical for staff;
and accessible for monitoring purposes. The last requirement is to ensure
staff supporting the adult and those people within the adult's support
network are aware of the policy and its content.
Division 6 outlines the requirements about the content of the policy.
Division 2 Important concepts for using
restrictive practices
This division describes two key concepts before a service provider can use
a restrictive practice under the main scheme:
� ensuring the adult is assessed; and
� development of a positive behaviour support plan.
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Disability Services and Other Legislation Amendment Bill 2008
123J Assessment of an adult
Section 123J describes the process for an assessment of the adult. The
policy, which service providers must keep, may also outline further details
about the process of assessment. Before a restrictive practice can be used in
relation to an adult with an intellectual or cognitive disability, the adult
must be assessed. The only exception to this is where restrictive practices
are used under a short-term approval or in the course of providing respite or
community access services.
An `assessment' means an assessment by 1 or more `appropriate qualified
or experienced persons' for the following purposes-
(a) making findings about the nature, intensity, frequency and duration of
the behaviour of the adult that causes harm to the adult or others;
(b) developing theories/hypothesis about the factors that contribute to the
adult's behaviour; and
(c) making recommendations about appropriate strategies for--
(i) meeting the adult's needs and improving the adult's capabilities
and quality of life (positive strategies); and
(ii) reducing the intensity, frequency and duration of the adult's
behaviour that causes harm to the adult or others; and
(iii) managing the adult's behaviour that causes harm to the adult or
others to minimise the risk of harm.
An `appropriately qualified or experienced' person is defined in section
123K.
The section also lists who must conduct the assessment:
� For containment or seclusion - the adult must be assessed by two or
more appropriately qualified persons who have qualifications or
experience in different disciplines (referred to as a `multi disciplinary
assessment');
� For chemical, physical or mechanical restraint - adult must be
assessed by at least 1 appropriately qualified or experienced person;
� For restricting access - the adult must be assessed either by the
relevant service provider proposing to use the restrictive practice; or
an appropriately qualified or experienced person.
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Disability Services and Other Legislation Amendment Bill 2008
A proper individualised assessment of the individual is a key feature for the
legislative (and service) model, as proposed in the Carter Report. It is
required in order to understand the causes of the person's challenging
behaviour; to determine appropriate interventions to meet the person's
needs; improve their capabilities; and reduce the frequency and intensity of
their behaviour. The assessment considers all aspects of the individual
which may be contributing to their challenging behaviour, which includes
a:
� biological component (eg. disability, genetic predisposition);
� psychological component (eg. cognitive factors); and
� social component (eg. culture, surroundings).
As part of the assessment, a recommendation may be made about the use of
a restrictive practice to manage or control a person's behaviour, where it is
considered necessary for the safety of the adult or another person; and it is
the least restrictive option to ensure their safety.
From a clinical perspective, there are three intended outcomes for an
assessment:
� collect sufficient information to produce a coherent formulation to
understand the person and their needs and goals;
� develop strategies which will provide a good fit for the person in their
environment; and
� establish a `baseline' measure against which the effectiveness of
subsequent strategies can be evaluated .
123K Who is appropriately qualified or experienced to assess
an adult
Section 123K defines who could be an appropriately qualified or
experienced person to assess the adult. Ultimately, it will be the
decision-maker who will make an assessment as to whether it was an
adequate assessment by a suitably qualified or experienced person.
An example of a suitably qualified or experienced person could be a person
who holds a recognised certificate (or higher) in behavioural sciences (such
as applied behaviour analysis), combined with relevant experience working
with people with an intellectual or cognitive disability and challenging
behaviour.
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Disability Services and Other Legislation Amendment Bill 2008
123L What is a positive behaviour support plan
Section 123L defines a positive behaviour support plan. After an
assessment is conducted as required for certain restrictive practices (see
section 123J), a positive behaviour support plan must be prepared for the
adult, if a restrictive practice is proposed. This ensures that any proposed
restrictive practice is only considered as part of a wider positive behaviour
support program for the adult, focused on their individual needs. The plan
must be developed in consultation with significant others.
Section 123L sets out the minimum requirements that must be include in
the plan. The plan is an important document for decision-making and
authorisation processes, as well as a practical document to guide service
providers and their staff as to when they may apply a restrictive practice.
The definition of the plan broadly covers the following topics:
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Disability Services and Other Legislation Amendment Bill 2008
TOPIC DETAIL
About the adult Description of the relevant adult and
background, including name of any
guardian/informal decision-maker
About the relevant Description of each relevant service
service providers provider providing disability services -
provide a complete picture to the
decision-maker of all of the disability
services being provided to the adult. It is
also important to identify which service
provider is authorised to use a restrictive
practice in accordance with the plan
Forensic or involuntary List the requirements of a known current
treatment order order made under the Mental Health Act
2000 - to provide a complete picture and
facilitate a consistent service response.
Includes details of treatment the adult
(who has a dual diagnosis) may be
receiving from an authorised psychiatrist
Consultation Who was consulted in the development of
their plan and their views - there are
minimum requirements for consultation
Details of `challenging Details of the adult's relevant behaviour
behaviour' which may cause risk of harm to the adult
or another person
Findings of the Includes who conducted the assessment,
assessment findings/theories and their
recommendations for positive strategies
and restrictive practices; and a description
of previous strategies used and their
effectiveness
Previous strategies used Any strategies that must be attempted
before using the restrictive practice
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Disability Services and Other Legislation Amendment Bill 2008
Positive strategies For meeting the adult's needs and reducing
their `challenging behaviour' which causes
harm to the adult or another person
Strategies to List the strategies which aim to eliminate
eliminate/reduce or reduce restrictive practices
restrictive practices
Procedure for using Includes:
restrictive practice � the name of the relevant service
provider who will use the restrictive
practice;
� how the service provider will support
and supervise staff in implementing
the plan;
� any strategies that must be attempted
before using the restrictive practice;
� the procedure for using the restrictive
practice, including any observations
and monitoring, and any other
measures necessary to ensure the
adult's proper care; and treatment,
that must take place while the
restrictive practice is being used;
� a description of the anticipated
positive and negative effects on the
adult of using the restrictive practice;
� a demonstration of why use of the
restrictive practice is the least
restrictive way of ensuring the safety
of the adult or others; and
� the intervals at which use of the
restrictive practice will be reviewed
Also, depending on the type of restrictive practice, there are additional
requirements:
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Disability Services and Other Legislation Amendment Bill 2008
RESTRICTIVE FURTHER DETAILS
PRACTICE
Containment � Description of adult's
accommodation and its suitability for
implementing the plan
Seclusion � Description of the place where the
adult will be secluded and its
suitability; and
� Maximum period for which seclusion
may be used at any one time and
maximum frequency
Chemical restraint � Name of the medication to be used
and any available information about
the medication (eg possible side
effects);
� Dose, route (method e.g. orally), and
frequency (including any maximum
per 24 hour period);
� For medication as and when needed
(`PRN' medication) - the
circumstances in which it may be
administered; and
� Name of adult's treating doctor
� Note: the term `adult's treating
doctor' is not defined in the Bill but is
meant to refer to a doctor who has
some ongoing relationship with the
adult
Mechanical or physical � Maximum period for which the
restraint restraint may be used
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Disability Services and Other Legislation Amendment Bill 2008
Division 3 Containment and seclusion
Subdivision 1 Requirements for containing or
secluding an adult
123M Containing or secluding an adult under containment or seclusion
approval
Section 123M outlines the circumstances when it is lawful for a relevant
service provider to use containment or seclusion generally. A service
provider will not be civilly or criminally liable for the use of containment
or seclusion if they comply with all the requirements in the Bill.
A relevant service provider may contain or seclude an adult with an
intellectual or cognitive disability only if the containment or seclusion--
� is necessary to prevent the adult's behaviour causing harm to the adult
or others; and
� is the least restrictive way of ensuring the safety of the adult or others;
and
� complies with a containment or seclusion approval made by the
Guardianship and Administration Tribunal; and
� (unless it is an interim order*) complies with a positive behaviour
support plan for the adult - this must include implementing the
positive strategies in the plan; and
� the relevant service provider keeps and implements a policy (and
procedure) about the use of containment or seclusion - if there is an
inconsistency between part of the policy and the Tribunal approval,
the service provider must follow the terms of the Tribunal approval;
and
� meet the adult's reasonable needs (for example: bedding, clothing and
food) (see section 123Z).
A requirement to implement the plan (including the positive strategies) as
well as any restrictive practice means that restrictive practices can only be
approved alongside strategies for increasing the adult's positive behaviour.
This should lead to a reduction in the need to use restrictive practices.
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Disability Services and Other Legislation Amendment Bill 2008
This section does not apply to the lawful use of containment or seclusion
for the short-term (up to three months) or for those services funded only to
provide respite and/or community access.
* The Guardianship and Administration Tribunal may give an interim order
under section 80ZR of the Guardianship and Administration Act 2000 in
special circumstances. The order may contain conditions.
123N Containing or secluding an adult for respite or community
access services
Section 123N outlines the circumstances when a relevant service provider
may lawfully use containment or seclusion when the only service they are
funded to provide is respite and/or community access. This reason for this
special circumstance is explained on page 10.
A relevant service provider may contain or seclude an adult with an
intellectual or cognitive disability when providing respite and/or
community services only if the containment or seclusion--
� is necessary to prevent the adult's behaviour causing harm to the adult
or others; and
� is the least restrictive way of ensuring the safety of the adult or others;
and
� complies with the consent of a guardian appointed by the
Guardianship and Administration Tribunal for restrictive practice
(respite) matters; and
� complies with a respite/community access plan for the adult - this
includes implementing the positive strategies in the plan; and
� they keep and implement a policy (and procedure) about the use of
containment or seclusion; and
� they meet the adult's reasonable needs (for example: bedding,
clothing and food).
These requirements are essentially the same as for the use of containment
or seclusion in the ordinary case. However, the main differences are:
� that consent to use containment or seclusion is from a guardian for
restrictive practice (respite) matters - usually it is the Guardianship
and Administration Tribunal; and
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Disability Services and Other Legislation Amendment Bill 2008
� the type of plan that is developed - usually it is a positive behaviour
support plan that must be developed.
123O Containing or secluding an adult under short term
approval
Section 123O deals with the use of containment or seclusion where there is
an immediate and serious risk of harm. This situation was described on
page 11.
This section does not affect what the service provider can do in an initial
emergency where there is an imminent and serious risk of harm to the adult
or another. In this case, the service provider and staff would need to take
whatever minimum action that is reasonably necessary to prevent harm to
the adult or another.
This section deals with the situation where after the initial emergency, the
service provider has identified that the continued use of containment or
seclusion is necessary. The short-term approval provides time for the
service provider to apply to DSQ for a full assessment of the individual and
develop a plan; and make an application to the Guardianship and
Administration Tribunal. The policy and procedures, which the service
provider must keep and implement, may also guide service providers as to
when a short-term approval maybe required.
A relevant service provider may contain or seclude an adult with an
intellectual or cognitive disability in the short-term (up to three months)
only if --
� there is an immediate and serious risk of harm; and
� it is necessary to prevent the adult's behaviour causing harm to the
adult or others; and
� it is the least restrictive way of ensuring the safety of the adult or
others; and
� complies with the consent of the Adult Guardian - this includes the
development of a `short-term' plan within 14 days of approval; and
� the relevant service provider keeps and implements a policy (and
procedure) about use of containment or seclusion; and
� the relevant service provider meets the adult's reasonable needs (for
example: bedding, clothing and food).
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Disability Services and Other Legislation Amendment Bill 2008
The main differences to the main scheme are:
� the additional criteria to demonstrate (immediate and serious risk);
� consent comes from the Adult Guardian; and
� requirement to develop a `short-term plan'.
Subdivision 2 Multi disciplinary assessment and
development of positive behaviour
support plan
123P Application of sdiv 2
Section 123P provides when subdivision 2 applies. It applies where
� a relevant service provider wishes to contain or seclude an adult with
an intellectual or cognitive disability; and
� they do not have a current containment or seclusion approval (if they
have a containment or seclusion approval, they must apply to change
the positive behaviour support plan - see subdivision 3)
It does not apply for short-term approvals or the special circumstance of
respite and/or a community access service.
Before an application can be made to the Guardianship and Administration
Tribunal, two preliminary steps must first happen:
� a multi-disciplinary assessment of the individual; and
� development of a positive behaviour support plan.
Under the Bill, these decisions must be made by the chief executive DSQ.
Section 228 of the Disability Services Act 2006 allows the chief executive
to delegate this power to an appropriately qualified person who is a public
service employee. In practice, is intended this role will be delegated to the
DSQ Specialist Response Service Team, who are appropriately qualified
and experienced persons in the assessment and planning of adults within
the target group.
If after both these decisions are made, containment or seclusion is
considered necessary for safety of the adult or another and it is the least
restrictive option, a joint application, with the funded service provider,
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Disability Services and Other Legislation Amendment Bill 2008
must be made to the Guardianship and Administration Tribunal. If DSQ is
the service provider, DSQ makes a sole application to the Tribunal.
123Q Chief executive to decide whether multi disciplinary
assessment of adult will be conducted
Section 123Q provides that the chief executive (DSQ) must decide whether
to conduct a multidisciplinary assessment of the adult. This applies
whether DSQ is the service provider or when a funded non-government
service provider notifies DSQ they wish to contain or seclude the adult.
Subsection (2) lists the mandatory criteria that must be considered by the
chief executive - the chief executive may decide to conduct a multi
disciplinary assessment of the adult if the chief executive considers it may
be necessary for the relevant service provider to contain or seclude the
adult to safeguard the adult or others from harm.
Subsection (3) requires the chief executive to consult with and consider the
views of certain people in deciding whether to conduct a multi disciplinary
assessment of the adult:
� the adult;
� if the adult has a guardian or informal decision maker--the guardian
or informal decision maker;
� each relevant service provider providing disability services to the
adult;
� if the chief executive is aware that a forensic or involuntary treatment
order is in force for the adult-- the authorised psychiatrist for the
treating health service for the adult under the Mental Health Act 2000;
� any other person considered by the chief executive to be integral to the
chief executive's decision. For example, a family member who is part
of the adult's support network, a key health care provider or an
advocate for the adult.
Consultation with the adult and those within the adult's support network is
integral in making an informed decision about whether to conduct a
multi-disciplinary assessment.
Subsection (4) provides that that the chief executive is not required to
consult with an informal decision-maker if the chief executive was not
aware, or could not reasonably be expected to be, aware, the person is an
informal decision maker for the adult; or after taking all reasonable steps,
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the chief executive cannot locate the person. The definition of an `informal
decision-maker' (see section 123E) can be wide and this subsection
ensures that any consultation is practical in the circumstances.
123R Notice of decision not to conduct assessment
Section 123R provides the action that the chief executive must follow if the
decision is not to conduct a multi disciplinary assessment of the adult. A
decision not to conduct a multi-disciplinary assessment essentially means
that containment or seclusion was not considered necessary or the least
restrictive option.
The chief executive must give the following persons a decision notice about
the decision--
� the relevant service provider;
� the adult; and
� a guardian or informal decision maker for the adult who was consulted
by the chief executive.
A `decision notice' is defined in the Bill. The effect of a decision notice is
that any of those consulted in the decision will be given notice of the
decision and reasons, and can apply for an internal review of the decision.
123S Development of positive behaviour support plan following
assessment
Section 123S applies if the chief executive decided to conduct a
multi-disciplinary assessment and after that assessment, it is considered
that containment or seclusion may be necessary for the safety of a person
and is the least restrictive option.
The section provides that the chief executive must develop a positive
behaviour support plan for the adult and sets out the process for a decision
to develop a positive behaviour support plan. Section 123L outlined the
minimum requirements to be included in a positive behaviour support plan.
Subsection (2) provides the criteria that the chief executive must consider
in developing a positive behaviour support plan, having regard to the
findings, theories and recommendations of the persons who assessed the
adult. The chief executive must be satisfied--
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� the adult's behaviour has previously resulted in harm to the adult or
others; and
� it is necessary for the relevant service provider to contain or seclude
the adult to safeguard the adult or others from harm; and
� containing or secluding the adult is the least restrictive way of
ensuring the safety of the adult or others.
Subsection (3) provides that where any other restrictive practice is
proposed, as well as containment and/or seclusion, all the restrictive
practices must also be included in the plan. This allows the one plan for the
adult to be developed. The recommendations around the use of any
restrictive practice must be based on the assessment described in section
123J.
Subsection (4) provides that the chief executive must consult with, and
consider the views of significant others consulted (that is, those required to
be consulted under section 123Q(3)).
Subsection (5) provides additional consultation requirements for the use of
chemical restraint - the chief executive must consult with the adult's
treating doctor and inform the adult's treating doctor about the findings of
the assessment and proposed (positive) strategies to meet the adult's needs
and reducing the adult's `challenging behaviour'. This enables the doctor to
make an informed decision about the use of chemical restraint.
Subsection (6) provides the process if the chief executive makes a decision
not to develop a positive behaviour support plan. A decision not to develop
a positive behaviour support plan essentially means, that after considering
the findings of the multi-disciplinary assessment, containment or seclusion
is not considered necessary for safety of the adult or another, or the least
restrictive option.
The chief executive must provide a decision notice (defined in the Bill) to:
� the relevant service provider;
� the adult; and
� a guardian or informal decision maker for the adult who was consulted
by the chief executive.
The effect of this subsection is that these people will be given notice of the
decision, reasons for the decision; and can apply for an internal review of
the decision not to develop a positive behaviour support plan.
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123T Participation of psychiatrist in development of plan -
adult subject to forensic order or involuntary treatment order
Section 123T deals with the additional requirements where a decision is
made to develop a plan and the chief executive of DSQ is aware that a
forensic or involuntary treatment order is in place for the adult. A forensic
or involuntary treatment order is made under the Mental Health Act 2000.
The section requires the chief executive to ensure the authorised
psychiatrist is given the opportunity to participate in the development of the
positive behaviour support plan.
This accounts for the situation where the adult has an intellectual or
cognitive disability and a mental illness. If the adult is subject to a forensic
or involuntary treatment order, this means they are receiving treatment
from an authorised psychiatrist under the Mental Health Act 2000. A
forensic or involuntary treatment order may order the use of restraint or
seclusion in particular circumstances. This requirement to involve the
authorised psychiatrist in the planning process helps to improve a
consistent service response between the treatment of the adult under the
Mental Health Act 2000 and the use of any restrictive practices under this
scheme.
Subdivision 3 Changing a positive behaviour
support plan
123U Application of sdiv 3
Section 123U provides this subdivision applies where there is a current
containment or seclusion approval in place; and the relevant service
provider wants to change some aspect of the positive behaviour support
plan.
123V Who may change positive behaviour support plan
Section 123V provides that the positive behaviour support plan for the
adult may be changed only by the chief executive (not the service
provider). However, the process is set up so that any significant changes,
such as an increase in use of restrictive practices or change in a service
provider, will still need to be approved by the Guardianship and
Administration Tribunal.
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123W When chief executive must decide whether positive
behaviour support plan should be changed
Section 123W requires the chief executive to decide whether a change to
the adult's positive behaviour support plan should be made if--
� a relevant service provider asks the chief executive, in writing, to
make a change to the plan; or
� the chief executive becomes aware that a forensic order or involuntary
order has been made for the adult.
A change can lead to a review of a current containment or seclusion
approval by the Guardianship and Administration Tribunal or a new
application to the Tribunal.
The section also provides examples of when a change may be required or
requested:
� if there is a change in a service provider - this would require a new
application to the Tribunal (as an approval attaches to individual
service providers);
� the relevant service provider wants to change a matter stated in the
positive behaviour support plan - the conditions of the Tribunal
approval will help to determine whether the change can be made by
the chief executive or by the Tribunal. For example, the Tribunal may
make an order with the condition that if aspect "y" of the positive
behaviour support plan changes, that the plan must be brought back
before the Tribunal for their consideration;
� the current approval for containment or seclusion approval is about to
expire and the service provider to which the approval applies wishes
to apply for a new approval - this would need to go back to the
Tribunal for approval.
123X Requirements for chief executive's decision about
whether change should be made
Section 123X sets out the circumstances when the plan may be changed by
the chief executive and the process for deciding whether to make the
change.
The intention of this section is to enable the chief executive to make minor
and not significant changes to the positive behaviour support plan. Any
significant changes would have to be decided by the Guardianship and
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Administration Tribunal. Also, what changes the chief executive can make
will depend on the approval of the Tribunal and any conditions of the
approval.
The chief executive may decide a change should be made to the plan only if
satisfied the change would not--
� increase the risk of the adult's behaviour causing harm to the adult or
others; or
� decrease the extent to which the adult's needs are met or the adult's
capabilities and quality of life are improved.
If any change had the potential effect of increasing the risk of behaviour or
decreasing the positive strategies, these would be considered significant
changes and require the approval of the Tribunal.
In deciding whether or not to make the change, the chief executive may:
� decide whether or not to conduct all or part of a multi disciplinary
assessment; or
� consult any of the persons listed in section 123Q(3) as the chief
executive considers appropriate in the circumstances. However, if the
change is being made because the adult is subject to a forensic or
involuntary treatment order, the chief executive must consult an
authorised psychiatrist for the treating health service for the adult
under the Mental Health Act 2000.
Subsection (4) makes it clear that if the Tribunal gives any directions about
conducting an assessment or consulting, the chief executive must comply
with these directions.
123Y Action of chief executive after deciding whether change
should be made
Section 123Y sets out the process if the chief executive decides a change to
the adult's positive behaviour support plan should be made.
Subsection (1) provides that the first step is to determine whether the
change requires an application to the Guardianship and Administration
Tribunal (either a new application or an application for a review of the
current approval); and provides guidance as to what changes may need to
go to the Tribunal.
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Subsection (2) lists the circumstances where the change always requires an
application to the Tribunal:
� if the change is inconsistent with the terms of an existing containment
or seclusion approval (for example; seclusion is approved for 15
minutes but it is proposed to increase it to a maximum period of 30
minutes; or there is a change in a relevant service provider); or
� an existing containment or seclusion approval is about to expire and
the relevant service provider proposes to apply for a further approval.
Subsection (3) provides for the process if the chief executive decides that
the change does not require an application to the Tribunal. The chief
executive must make the change and give a copy of the amended plan to the
following--
� the Tribunal - this means that the Tribunal has notice of this decision
and can initiate a review of that amended plan if they are of the view
the change should be made by the Tribunal;
� the adult;
� if the adult has a guardian or informal decision maker--the guardian
or informal decision maker; and
� the relevant service provider to which an existing containment or
seclusion approval applies.
Subsection (4) provides that the chief executive is not required to give a
copy of the amended plan to a person who is an informal decision maker
for the adult if they can not be,or reasonably expected to be, identified or
located and reasonable attempts have been made to identify or locate the
informal decision-maker. This is to make the consultation provisions
workable given the broad definition of `informal decision-maker' (see
section 123E).
Subsection (5) provides that as soon as practicable after making the
decision whether the change requires an application to the Tribunal, the
chief executive must give a notice (`prescribed notice') to either:
� the relevant service provider who requested the change; or
� if the chief executive had to decide whether a change should be made
because a subsequent forensic or involuntary treatment order has been
made under the Mental Health Act 2000 - the director of mental health
and the relevant service provider.
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This allows the affected service provider (or director of mental health in
some cases) to apply to the Tribunal to seek a review of the chief
executive's decision.
A `prescribed notice' must state whether the change should be made to the
plan and if so, whether the change requires an application to the Tribunal.
A `prescribed notice' is different from a `decision notice' where the
decision is subject to an internal review.
Subdivision 4 General requirements for
containment or seclusion
123Z Relevant service provider to ensure adult's needs are met
Section 123Z requires that if containment or seclusion is approved, the
relevant service must also ensure the adult's basic and reasonable needs are
met during the period of containment or seclusion, by ensuring the
provision of the following:
� sufficient bedding and clothing;
� sufficient food and drink;
� access to adequate heating and cooling;
� access to toilet facilities; and
� the adult's medication as prescribed by a doctor.
Division 4 Use of restrictive practices other than
containment or seclusion
This division deals with the requirements for the lawful use of other
restrictive practices (chemical, mechanical or physical restraint or
restricting access). If any of these restrictive practices is required, in
addition to containment and/or seclusion, authorisation must come from
the Guardianship and Administration Tribunal (except in the case of short
term approvals, respite/community access services).
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Subdivision 1 Requirements for using chemical,
mechanical or physical restraint, or
restricting access
123ZA Using chemical, mechanical or physical restraint, or
restricting access, with consent of guardian etc.
Section 123ZA outlines the circumstances when it is lawful for a relevant
service provider to use chemical, mechanical, physical restraint and/or
restricting access generally. A service provider will not be civilly or
criminally liable for the use of one or more of these `other restrictive
practices' if they comply with all the requirements listed.
This section does not apply to the lawful use of chemical, mechanical or
physical restraint or restricting access in the short-term; or in a respite and
or community access environment.
A relevant service provider may use chemical, mechanical, physical
restraint or restrict access of an adult with an intellectual or cognitive
disability only if --
� it is necessary to prevent the adult's behaviour causing harm to the
adult or others; and
� it is the least restrictive way of ensuring the safety of the adult or
others; and
� complies with a positive behaviour support plan for the adult - this
must include implementing the positive strategies in the plan; and
� complies with the relevant consent/approval:
� For chemical, mechanical or physical restraint - consent of a
guardian appointed by the Tribunal for restrictive practice
matters; or
� For restricted access - consent an informal-decision maker or if
there is a guardian, for restrictive practice matters, consent of the
guardian;
� Where containment and/or seclusion is also being used -
approval of the Guardianship and Administration Tribunal; and
� the relevant service provider keeps and implements a policy (and
procedure) about use of the restricitive practice.
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A requirement to implement the positive strategies in the plan as well as
any restrictive practice, means that restrictive practices can only be
approved and used alongside strategies for increasing the adult's positive
behaviour, which should lead to a reduction in the use restrictive practice/s.
This section is similar the lawful use of containment or seclusion but the
main differences are:
� who approves the use of the restrictive practice: If it is chemical,
mechanical or physical restraint - it is the guardian appointed by the
Tribunal specifically for restrictive practice matters. If it is restricting
access - consent must be obtained from either a guardian for
restrictive practice matters or, if there is not one appointed, an
informal decision-maker; and
� who conducts the assessment and plan - the service provider must
arrange for an assessment and develop the plan (for containment or
seclusion, this must be done by the chief executive DSQ). Also, for
chemical, mechanical or physical restraint, the assessment must be
done by at least one appropriately qualified or experienced person (for
containment or seclusion, it must be a `multi-disciplinary
assessment'). For restricting access, the assessment must be done by
either at least one appropriately qualified or experienced person, or by
the service provider.
123ZB Using chemical, mechanical or physical restraint, or
restricting access, for respite or community access services
Section 123ZB outlines the circumstances when a relevant service provider
may lawfully use chemical, mechanical or physical restraint, or restrict
access in the course of providing respite or community access. This
section applies to a relevant service provider who is funded only to provide
respite and/or community access for the adult (and the adult does not
receive any other disability service).
This reason for this special circumstance is explained on page 10.
A relevant service provider may use chemical, mechanical or physical
restraint on, or restrict access of, an adult with an intellectual or cognitive
disability when providing respite and/or community services if it--
� is necessary to prevent the adult's behaviour causing harm to the adult
or others; and
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� is the least restrictive way of ensuring the safety of the adult or others;
and
� complies with a `respite/community access plan' for the adult - this
must include implementing the positive strategies in the plan; and
� complies with the consent of a guardian for restrictive practice respite
matters (for physical or mechanical restraint restricting access, if there
is no guardian, an informal decision-maker can consent); and
� before using the restrictive practice, complies with the requirements in
division 5; and
� the relevant service provider keeps and implements a policy about the
use of restrictive practices.
The main difference between these requirements and the main scheme is
the type of consent and type of plan required to be developed.
Subsection (3) provides that this section does not apply if the adult is on a
containment or seclusion approval (made by the Tribunal). This is because
an adult who is the subject of a containment or seclusion approval would be
receiving other disability services and likely to receiving more permanent
support from DSQ or a DSQ funded service.
Subsection (4) also provides for one exception for the use of chemical
restraint during the course of respite or community access. This relates to
the use of fixed dose medication in the course of providing respite services.
This is explained in section 123ZC.
123ZC Using chemical restraint (fixed dose) for respite services
A special provision is made for the use of daily (fixed) dose medication in a
respite setting only - in this case, the service provider must obtain the
consent of an informal decision-maker and comply with a policy to
lawfully use the restrictive practice. The exception does not apply to the
use of prescribed daily (fixed) dose or PRN (`as and when needed')
medication in a community access setting, or to the use of medication
prescribed PRN in a respite service.
The reason for this exception is to allow for the continued use in respite of
daily (fixed) dose medication, which has already been prescribed by a
doctor; and where, often, the service provider is not in a position to know if
the medication is being used primarily for behaviour control. Nor is the
service provider of occasional respite care in a position to try and influence
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the longer term management of behaviour for that adult and to determine
the least restrictive option. Adults receiving respite usually do so for short
periods only, and it would be impracticable to require a service provider to
assess and develop a plan for an adult who they only see occasionally and
for short periods. Service providers strongly indicated during consultation
that it may become unviable for them to continue to provide respite if there
were no lesser requirements for daily (fixed) dose medication.
123ZD Using chemical, mechanical or physical restraint, or
restricting access under short term approval
Section 123ZD deals with the use of chemical, mechanical or physical
restraint or restricting access in an emergency - where there is an
immediate and serious risk of harm. This situation was described on page
11.
This section does not affect what the service provider can do in an initial
emergency where there is an imminent and serious risk of harm to the adult
or another. In this case, the service provider and staff would need to take
what minimum action is reasonably necessary to prevent harm to the adult
or another.
This section deals with the situation where after the initial emergency, the
service provider has identified that the continued use of chemical,
mechanical or physical restraint, or restricting access, is necessary. The
short-term approval provides time for the service provider to conduct a
proper assessment of the individual and develop a positive behaviour
support plan; and make an application to the Guardianship and
Administration Tribunal for the appointment of a guardian for restrictive
practice matters.
The policy and procedures, which the service provider must keep and
implement, will also guide service providers as to when a short-term
approval may be required. Restricting access can also be approved in the
short-term but it is unlikely that this restrictive practice would be used in
this type of situation.
If there is no guardian for restrictive practice matters, a short-term approval
must be given by the chief executive DSQ. A short-term approval can only
be made for up to three months.
The section provides that a relevant service provider may use chemical,
mechanical or physical restraint (or restricting access) in relation to an
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adult with an intellectual or cognitive disability in the short-term (up to
three months) if --
� there is immediate and serious risk of harm; and
� the use is necessary to prevent the adult's behaviour from causing
harm to the adult or others; and
� it is the least restrictive way of ensuring the safety of the adult or
others; and
� it complies with the consent of the short-term approval - this includes
the development of a `short-term' plan within 14 days of approval;
and
� the relevant service provider keeps and implements a policy about use
of the restrictive practice.
Subdivision 2 Assessment and development of
positive behaviour support plan
123ZE Application of sdiv 2
Section 123ZE provides for when this subdivision applies. This subdivision
applies if--
� a relevant service provider proposes to use chemical restraint,
mechanical restraint or physical restraint on, or restrict access of, an
adult with an intellectual or cognitive disability; and
� the adult is not the subject of a containment or seclusion approval; and
� containment or seclusion is not proposed.
If the adult is already subject to a containment or seclusion approval
(whether it relates to the relevant service provider or another service
provider), any additional use of restrictive practices must go through the
chief executive, DSQ and approved by the Guardianship and
Administration Tribunal. Similarly, if a relevant service provider wishes to
use chemical, mechanical or physical restraint or restricting access, as well
as containment or seclusion, this must all be approved by the Tribunal. This
allows the for the one authorisation process for the adult.
This subdivision does not apply to short term approvals or using restrictive
practices in respite/community access setting.
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123ZF Requirements for development of positive behaviour
support plan--assessment and consultation
Section 123ZF states the requirements for developing a positive behaviour
support plan for the adult. It sets out assessment and planning process,
including who should be consulted. The minimum requirements of a
positive behaviour support plan are listed in section 123L.
Subsection (2) provides that the relevant service provider must--
� ensure the adult is assessed (see section 123J for more detail); and
� consult and consider the views of particular people:
� the adult;
� any guardian or informal decision maker for the adult;
� any other relevant service provider providing disability services
to the adult; and
� any another person considered by the service provider to be
integral to the development of the plan. For example, a family
member who is part of the adult's support network, a key health
care provider, or an advocate for the adult. The policy which the
service provider must keep and implement may also guide who
else should be consulted.
Also, if the service provider is aware that the adult is also being treated
under a forensic or involuntary treatment order (made under the Mental
Health Act 2000), the service provider must ensure that the authorised
psychiatrist is given the opportunity to participate in the development of the
positive behaviour support plan for the adult. This helps for a consistant
service response between the treatment of the adult under the Mental
Health Act 2000 and the use of any restrictive practices under this scheme.
Subsection (3) provides for an additional consultation requirement where
chemical restraint is proposed. The relevant service provider must:
� consult the adult's treating doctor; and
� inform the adult's treating doctor about the findings of the assessment,
including the recommendations for any restrictive practices and
(positive) strategies to meet the adult's needs and reduce their
`challenging behaviour'.
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This subsection is important to ensure the adult's treating doctor is fully
informed when making a decision whether or not to prescribe medication
to control a person's behaviour.
Subsection (4) makes it clear that recommendations for the use of
mechanical or physical restraint, proposed in the positive behaviour
support plan, must be supported by the assessment. For chemical restraint,
this has to be as prescribed by the adult's treating doctor.
123ZG Changing a positive behaviour support plan
Section 123ZG provides for the process for changing a positive behaviour
support plan that provides for use of chemical restraint, mechanical
restraint or physical restraint, or restricting access.
The relevant service provider may change the plan only if--
� for a change relating to use of chemical restraint--the relevant
service provider has consulted the adult's treating doctor; or
� for a change involving mechanical or physical restraint --the
change is supported by the recommendations of an appropriately
qualified or experienced person (see section 123K for
definition); and
� a guardian for a restrictive practice (general) matter for the adult
consents to the change.
For restricting access, a positive behaviour support plan may be changed by
the relevant service provider only if a guardian for a restrictive practice
matters consents to the change, or if there is no guardian, an informal
decision maker for the adult consents to the change.
123ZH Requirement for relevant service provider to consider
whether plan should be changed
This section applies where a positive behaviour support plan for an adult
has been developed under this scheme and subsequently a forensic or
involuntary treatment order is made under the Mental Health Act 2000 and
the service provider becomes aware that such an order has been made for
the adult.
Subsection (2) provides that the relevant service provider must consider
whether the positive behaviour support plan should be changed.
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Subsection (3) provides that in deciding whether the positive behaviour
support plan should be changed, the relevant service provider must--
� consult an authorised psychiatrist for the treating health service
for the adult under the Mental Health Act 2000; and
� consider the psychiatrist's views about the use of any restrictive
practice provided for in the plan.
This refers to where the adult has an intellectual or cognitive disability and
a mental illness. If the adult is subject to a forensic or involuntary treatment
order, this means they are receiving treatment from an authorised
psychiatrist under the Mental Health Act 2000. A forensic or involuntary
treatment order may order the use of restraint or seclusion in particular
circumstances. This requirement to involve the authorised psychiatrist in
the planning process helps to prevent any conflict that may occur between
the treatment of the adult under the Mental Health Act 2000 and the use of
any restrictive practices under this scheme.
Subdivision 3 Requirements if adult subject to
forensic or involuntary treatment
order
This subdivision deals with the situation where the adult may also have a
mental illness and is receiving treatment by an authorised psychiatrist
under the Mental Health Act 2000. It also relates to other consultation
sections in the Bill which aim to help ensure that any treatment the adult
may receive under a forensic or involuntary treatment order is taken into
account when any restrictive practices are proposed under this scheme.
This scheme only governs the use of restrictive practices by a DSQ funded
or provided service (and those engaged by them) while the adult is
receiving a disability service. It does not apply to the use of restrictive
practices in other settings, such as in an authorised mental health service -
this is governed by the Mental Health Act 2000.
123ZI Requirement for relevant service provider to notify
guardian
This section applies where the authorised psychiatrist has been consulted in
the development or changing of the plan and the authorised psychiatrist
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does not agree with the use of a restrictive practice provided for in the plan
for the adult.
As soon as practicable after consulting with the authorised psychiatrist, the
relevant service provider must notify the relevant decision-maker on the
differing views of the authorised psychiatrist regarding the use of the
restrictive practice. The decision-maker must then consider the differing
views (this is outlined in clause 22 - amendments to the Guardianship and
Administration Act 2000).
123ZJ Requirement for relevant service provider to notify
director of mental health
Section 123ZJ applies if:
� a relevant service provider develops or changes a positive behaviour
support plan; and
� a guardian for a restrictive practice (general) matter, or an informal
decision maker, for the adult consents to the use of a restrictive
practice by the relevant service provider in relation to the adult; and
� the service provider is aware that forensic or involuntary treatment
order is in place for the adult.
The relevant service provider must as soon as is practicable give notice to
the director of mental health the terms of consent; and provide a copy of the
positive behaviour support plan, if asked by the director of mental health.
If the director of mental health does not agree with the guardian's decision,
they are able to apply to the Tribunal for a review of that decision (under
the amendments to the Guardianship and Administration Act 2000).
Subdivision 4 Short term approvals given by chief
executive
This subdivision deals with the use of chemical, mechanical or physical
restraint or restricting access in the short-term (up to three months). This
situation was explained on page 11. If there is no guardian for restrictive
practice matters, the chief executive DSQ must make the decision. Section
228 of the Disability Services Act 2006 allows the chief executive to
delegate this power to an appropriately qualified person who is a public
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service employee. In practice, it is intended this power will be delegated to
an appropriate senior person who will be accessible in the regions.
123ZK Short term approval for use of restrictive practices other
than containment or seclusion
Section 123ZK sets out the criteria that the chief executive (DSQ) must
consider in deciding whether or not to approve the use of chemical,
mechanical or physical restraint (or restricting access) in the short term.
The section also sets out who must be consulted in this decision and who
should be notified of this decision. The Adult-Guardian decides the use of
containment and/or seclusion in the short-term (see clause 22, Part 4).
Subsection (2) provides the criteria that the chief executive must be
satisfied of before making a decision. The chief executive may only make
an approval if-
� the adult is not the subject of a containment or seclusion approval - if
this was the case, the service provider must obtain the approval of the
Tribunal; and
� there is no guardian for a restrictive practice (general) matter for the
adult - if this was the case, the service provider must obtain the
consent of that guardian; and
� there is an immediate and serious risk that, if the approval is not given,
the adult's behaviour will cause harm to the adult or others;
� use of the restrictive practice is the least restrictive way of ensuring
the safety of the adult or others; and
� if chemical restraint is proposed - the service provider must have
consulted and considered the view of the adult's treating doctor.
Subsection (3) makes it clear that if the chief executive has given a previous
short-term approval for the adult, the chief executive cannot give another
short-term approval for the adult unless there are exceptional
circumstances, such as there has been a change in the service provider or
location of the adult.
Subsection (4) lists those people that must be consulted in deciding
whether to give a short-term approval. Where practicable in the
circumstances, the chief executive must consult and consider the views of:
� the adult,
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� guardian or informal decision maker for the adult; and
� if the chief executive is aware that there is a forensic or involuntary
order in place under the Mental Health Act 2000-the authorised
psychiatrist responsible for the treatment of the adult under that Act.
The consultation provision aims to balance the need to consult significant
others with the need to make a quick decision given the nature of the
situation.
Subsection (5) sets out what the chief executive must do after deciding
whether to give a short-term approval or not. As soon as practicable after
making this decision, the chief executive must give the relevant service
provider notice of the decision (that is, refusal or approval). If the approval
is given the notice must state --
� the conditions to which it is subject - see section 123ZM for the
conditions that must always be included; and
� the period for which it has effect - it cannot be any longer than three
months unless there are exceptional circumstances.
Subsection (6) lists those persons that must also be notified if a short-term
approval is given; and subsection (7) lists what has to be included in the
notice. The chief executive must give notice of the approval to the
following persons within 7 days after giving the approval--
� the Adult Guardian;
� any person consulted by the chief executive in the decision.
Notification to the Adult Guardian and others assists in ensuring the
decision is transparent and more accountable.
Subsection (8) allows a person who has been given a notice of a decision
(either to give a short-approval or a refusal to give a short-term approval) to
apply to the Guardianship and Administration Tribunal for a review. The
Tribunal will consider the application and make an order it considers
appropriate. An application to the Tribunal does not automatically stay the
original decision of the chief executive. This review by an independent
body allows for a more transparent and accountable decision-making
process for short-term approvals.
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123ZL Period for which short term approval has effect
Section 123ZL specifies that a short-term approval must not be longer than
3 months. This cannot be extended unless there are exceptional
circumstances (see section 123ZK (3)). This section also specifies the
circumstances where a short-term approval automatically ends:
� where a guardian for restrictive practices is appointed by the
Guardianship and Administration Tribunal;
� the Tribunal gives a containment or seclusion approval;
� the relevant service provider does not comply with the requirement to
develop a `short-term plan' (see section 123ZM(1)(a)); or
� the chief executive does not approve the `short-term plan' (see section
123ZN).
123ZM Conditions of short term approval
Section 123ZM provides the conditions which must be stated on any short
term approval given by the chief executive. In addition, the approval may
be subject to other conditions considered appropriate by the chief
executive.
Any short-term approval must be subject to the condition that within 14
days after receiving notice of the short term approval decision, the relevant
service provider must give the chief executive a `short-term plan. The chief
executive then reconsiders the short-term approval in light of the short-term
plan (see section 123ZN).
A 'short-term plan' is defined in this section to mean a plan stating at least
the following--
� a description of the behaviour of the adult that causes harm to the
adult or others, including the consequences of the behaviour;
� a description of the restrictive practices used in relation to the adult;
� the reasons for using the restrictive practices; and
� a demonstration of why using the restrictive practice is the least
restrictive option for the safety of the adult or others.
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123ZN Chief executive's decision about approving short term
plan
Section 123ZN sets out the process for deciding whether or not to approve
a short-term plan for the adult. This section applies if the chief executive
has given a short-term approval (under section 123ZK) and as a necessary
condition of that approval, the service provider has given the chief
executive a short term plan.
As soon as practicable after receiving the short term plan, the chief
executive must decide whether to approve it. In making this decision, the
section sets out the criteria that must be considered. Before a short-term
plan can be approved, the chief executive must be satisfied of the
following:
� the information in the short-term plan is consistent with the
information considered by the chief executive in deciding whether to
give the relevant short term approval; and
� there is an immediate and serious risk that, if the short term approval
does not continue, the adult's behaviour will cause harm to the adult
or others; and
� use of the restrictive practices is in compliance with the short term
approval and the plan is the least restrictive way of ensuring the safety
of the adult or others.
After making a decision, the chief executive must, as soon as practicable,
notify the relevant service provider about the decision. If the chief
executive does not approve the short term plan, the relevant service
provider may apply to the Tribunal for a review of that decision. Upon
review, the Tribunal may make the order it considers appropriate.
Division 5 Use of restrictive practices for respite
services or community access
services
123ZO Purpose of div 5
Section 123ZO provides for when division 5 applies. This division
prescribes the requirements that must be complied with before a relevant
service provider uses a restrictive practice in the course of providing respite
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services or community access services to an adult with an intellectual or
cognitive disability. The reason for these special provisions was explained
earlier on page 10.
This division does not apply for the use of chemical restraint (fixed dose)
(see section 123ZC).
123ZP Requirement to develop respite / community access
plan
Section 123ZP provides that the service provider must develop a `respite or
community access plan' for the adult. A `respite/community access' plan is
similar to a positive behaviour support plan but requires less detail. This
section lists the minimum requirements that must be included in a
respite/community access plan:
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TOPIC DETAIL
About the adult Description of the relevant adult and
background
Details of `challenging Details of the adult's relevant behaviour
behaviour' which may cause risk of harm to the adult
or another person
Description restrictive Description of restrictive practices and
practices proposed reasons for using the restrictive practice
Procedure for using This includes:
restrictive practice � any strategies that must be attempted
before using the restrictive practice;
� the procedure for using the restrictive
practice, including any observations
and monitoring, and any other
measures necessary to ensure the
adult's proper care during the
restrictive practice; and
� demonstration as to why it is the least
restrictive way of ensuring the safety
of the adult or others
Positive strategies A description of the positive strategies that
will be used to
� meet the adult's needs and improve
the adult's capabilities and quality of
life; and
� reduce the intensity, frequency and
duration of the adult's behaviour that
causes harm to the adult or others
Also, depending on the type of restrictive practice, there are additional
requirements:
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RESTRICTIVE FURTHER DETAILS
PRACTICE
Containment � Description of the place where the
adult will be contained
Seclusion � Description of the place where the
adult will be secluded; and
� Maximum period for which seclusion
may be used at any one time (and
maximum frequency)
Chemical restraint � Name of the medication to be used
and any available information about
the medication, including, for
example, information about possible
side effects;
� Dose, route (method), and frequency
of administration. For PRN
medication (that is, medication as and
when needed) - the circumstances in
which it may be administered; and
� Name of adult's treating doctor
Mechanical or physical Maximum period for which the restraint
restraint may be used
In developing the respite/community access plan, relevant people must be
consulted (see section 123ZR) and any relevant information obtained
during this process (section 123ZQ) must be included in the plan.
123ZQ Obtaining information about the adult
Section 123ZQ provides that in developing a respite / community access
plan, the relevant service provider must obtain any information available
and relevant for identifying the following:
� the adult's needs;
� the behaviour of the adult that causes harm to the adult or others,
including the consequences of the behaviour; and
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� the factors contributing to that behaviour.
This information is obtained from the consultation process described in
section 123ZR.
123ZR Consultation
Section 123ZR provides who must be consulted in the development of a
respite / community access plan for an adult. The relevant service provider
must consult with, and consider the views of, the following:
� the adult;
� if the adult has a guardian or informal decision maker--the guardian
or informal decision maker;
� any other relevant service provider providing disability services to the
adult; and
� any other person considered by the relevant service provider to be
integral to the development of the plan, such as a family member who
is part of the adult's support network, a key health care provider or an
advocate for the adult
This consultation process helps to ensure that relevant information is
gathered for the respite/community access plan.
123ZS Risk assessment
Section 123ZS also introduces the concept of a `risk assessment' for the
use of restrictive practices in a respite or community access service. The
relevant service provider must identify, and keep a record of the risks
associated with the provision of respite services or community access
services to the adult by the relevant service provider; and the procedures
the relevant service provider will implement to mitigate those risks.
Examples of possible risks include:
� the adult's behaviour causing harm to another client of the relevant
service provider;
� the staff of the relevant service provider not being adequately trained
to manage the behaviour of the adult; or
� the physical environment in which the services are provided not being
adequate to accommodate the needs of the adult.
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A policy, which the service provider must keep, must (among other things)
include details about how to carry out a risk assessment for the adult (see
section 123ZV(4)).
Division 6 Policy about use of restrictive
practices
123ZT Application of div 6
This division applies if another section authorises a relevant service
provider to use a restrictive practice if the relevant service provider keeps
and implements a policy about use of the restrictive practice.
Under the scheme, a service provider must keep and implement a policy in
relation to the use of all restrictive practices (including for
respite/community access service and for short-term approvals).
Requiring services to have a policy allows more practical detail to be given
to service providers and their staff around the assessment and planning
processes, and guidance around the safe and proper use of restrictive
practices. A policy must be developed within the framework of the Bill and
if there is any inconsistency with the policy and Bill, the Bill provision
applies to the extent of any inconsistency.
123ZU Policy must be consistent with department's policy
Section 123ZU provides that the relevant service provider must keep and
implement a policy about use of the restrictive practice that is consistent
with the DSQ's policy about use of the restrictive practice.
Note - a requirement to `keep and implement' a policy is defined in section
123I and includes development of procedures and keeping the policy up to
date.
123ZV Requirements for content of department's policy
Section 123ZV provides that DSQ must have a policy about use of each
type of restrictive practice and lists the minimum topics that policy must
address.
Subsection (2) lists what minimum topics need to be addressed for the use
of restrictive practices under the main scheme (that is, other than in the
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course of providing respite or community access services; or under a short
term approval):
Topic Detail
Positive behaviour How this plan should be developed - this
support plan only applies to the proposed use of
restrictive practices other than
containment or seclusion. For containment
or seclusion, the plan must be developed
by DSQ.
This includes further information about
who should be consulted (note - there are
mandatory consultation provisions in the
Bill)
Review of restrictive Details about the review of restrictive
practices practices (this can include medication
reviews).
� For the use of chemical, mechanical
or physical restraint - the review
must occur at least once during the
currency of the guardianship
appointment (a guardian for
restrictive practice matters can be
appointed for up to 12 months).
� For restricted access - review must
happen at least every 12 months.
� For containment or seclusion -
review will be conducted by DSQ but
that must happen at least once during
the period of the containment or
seclusion approval (which can be
made for up to 12 months).
Note: In addition, details around review
must be included in a positive behaviour
support plan. Also, there will be formal
reviews conducted by the Tribunal at the
end of a containment or seclusion
approval, or upon review of the
appointment of a guardian for restrictive
practice matters.
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Skills and knowledge of Procedures on how the individual who will
person using the be using the restrictive practice will:
restrictive practice � know about the requirements for the
lawful use of the restrictive practice;
and
� have the skills and knowledge to use
the restrictive practice appropriately.
Skilled staff is critical to the proper and
safe use of restrictive practices. A detailed
authorisation process will not be effective
without appropriate persons to be able to
properly implement and give effect to the
approval/consent.
Monitoring use of Procedures on how the use of the
restrictive practice restrictive practice should be monitored to
prevent abuse, neglect or exploitation.
Note - the plan itself must include certain
details about this.
Minimum impact on For restricted access, where that practice
other co-residents may impact on other co-residents, the
policy must detail how the service
provider will minimise the impact on those
other persons.
Subsection (3) lists the minimum requirements for developing a policy
about the use of restrictive practices under a short term approval:
Topic Detail
Short-term approval Detail of procedures to:
� develop a short-term plan;
� ensure an individual has knowledge
of the requirements for lawful use of
the restrictive practice and the
appropriate skills to use the practice
appropriately; and
� monitor the use of the restrictive
practice.
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Subsection (4) lists the minimum requirements for developing a policy
about the use of restrictive practices in the course of providing respite
and/or community access services:
Topic Detail
Respite/community Detail of procedures of how to:
access plan � develop a respite/community access
plan; and
� carry out a risk assessment for the
adult (defined in section 123ZS)
Note - no plan is required for the use of
fixed dose chemical restraint in a respite
service.
Skills and knowledge of Procedures on how the individual who will
person using the be using the restrictive practice:
restrictive practice � will know about the requirements for
the lawful use of the restrictive
practice; and
� has the skills and knowledge to use
the restrictive practice appropriately.
Monitoring use of Procedures on how the use of the
restrictive practice restrictive practice should be monitored to
prevent abuse, neglect or exploitation.
Minimum impact on For restricted access, where that practice
other co-residents may impact on other co-residents, the
policy must detail how the service
provider will minimise the impact on those
other persons.
Subsection (5) makes it clear that these are only minimum requirements
and do not limit the matters that can be included in the policy. Subsection
(6) requires that the policy has appropriate regard to linguistic and cultural
diversity and Aboriginal tradition and Island custom.
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123ZW Requirements for publication of department's policy
etc.
Section 123ZW requires that a copy of DSQ's policy must be available free
of charge to relevant service providers and that it must be kept:
� at the department's head office and regional offices;
� at other places considered appropriate; and
� be published on the department's website on the internet.
Division 7 Review of particular chief executive
decisions
123ZX Application of div 7
Section 123ZX provides for when this division applies - if the chief
executive is required to make a decision and give a decision notice. A
requirement to give a decision notice effectively means that the decision to
which it relates can be internally reviewed.
The decision not to conduct a multi-disciplinary assessment (section
123R) and the decision not to develop a positive behaviour support plan
(section 123S(6) can be internally reviewed (within DSQ) by an `interested
person' (defined in the next section).
Note - any decisions to conduct a multi-disciplinary assessment and
positive behaviour support plan are not reviewable as they involve a
proposal to use containment or seclusion. In these cases, it is the Tribunal
that will make the final decision on whether or not to approve the use of
containment or seclusion. Any decision of the Tribunal can be appealed to
the Supreme Court.
123ZY Definitions for div 7
Section 123ZY defines key terms for the purpose of this division -
� `interested person' for a relevant decision, means a person to whom
the chief executive is required to give a decision notice to; and
� `relevant decision' is defined in section 123ZX.
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123ZZ Application for review
Section 123ZZ sets out the process if an interested person wants to apply
for a review of the original decision. An application must be made within
28 days after the interested person receives a decision notice about the
decision. However, the chief executive may extend the time for applying
for the review. Also, an interested person may apply to the chief executive
to review the decision even if the chief executive has not given the
interested person a decision notice.
Any application for review must be in the approved form and accompanied
by enough information to enable the chief executive to decide the
application.
123ZZA Review of relevant decision
Section 123ZZA sets out the process for a internal review.
Unless the chief executive made the decision personally, the chief executive
must ensure the application is not dealt with by-
� the person who made the original decision; or
� a person in a less senior office than the person who made the original
decision.
Within 28 days after receiving the application for review, the chief
executive must review the original decision and make a decision (called the
`review decision'). The chief executive may:
� confirm the original decision; or
� amend the original decision; or
� substitute another decision for the original decision.
Immediately after deciding the application, the chief executive must give
the interested person a notice stating the review decision; and the reasons
for the review decision.
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Division 8 Miscellaneous provisions
Subdivision 1 Immunity for use of restrictive
practices
Offence provisions have not been included in this Bill because the purpose
of the scheme is to make lawful what would potentially otherwise be an
unlawful practice under the criminal code and also in civil law. As offence
provisions already exist it is possible to prosecute a service provider, or an
individual acting on their behalf, who do not comply with this new
legislative scheme. The immunity provisions will not prevent a criminal or
civil prosecution being successful if the service provider or an individual
fails to comply with the new legislative scheme.
Generally, the aim of these immunity provisions is to clearly outline the
circumstances when restrictive practices may be lawfully applied by a
relevant service provider; and they provide legal certainty to the relevant
service provider, and those acting on their behalf, as to when restrictive
practices may be justified. These immunity provisions are not a `blanket
immunity' and only authorise restrictive practices where (among other
things) it can be demonstrated that it is for the safety of the adult and/or
others; and overall in the adult's best interests. The immunity provisions
fall into four different categories:
� retrospective immunity provisions (use of restrictive practices prior to
commencement of Bill);
� transitional immunity provisions (use of restrictive practices for 18
months from commencement of the Bill);
� prospective immunity provisions (use of restrictive practices after the
18 month transitional period); and
� immunity provisions for the practice of locking of gates, doors and
windows.
This subdivision relates to the prospective immunity provisions. There a
separate prospective immunity provisions for a relevant service provider
and for an individual acting for a relevant service provider.
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123ZZB Immunity from liability--relevant service provider
Section 123ZZB provides for the immunity for a relevant service provider.
The section states that a relevant service provider is not criminally or
civilly liable if the relevant service provider, acting honestly and without
negligence, uses a restrictive practice under this part. This means that the
service provider must comply with all the requirements as outlined in this
Part, depending on the type of restrictive practice, before being able to
lawfully apply the restrictive practice.
123ZZC Immunity from liability--individual acting for relevant
service provider
Section 123ZZC sets out the immunity provisions which relate to an
individual acting for a relevant service provider. Essentially, these
provisions provide immunity for an individual if they act, or reasonably
believe they are acting, in accordance with the relevant consent/approval
and plan.
The individual is not criminally or civilly liable for using the restrictive
practice if the individual acts honestly and without negligence in
compliance with-
For containment or seclusion:
� For containment or seclusion - the containment or seclusion approval
for the adult + positive behaviour support plan;
� For containment or seclusion under an interim order made under
section 80ZR of the Guardianship and Administration Act 2000 - the
containment or seclusion approval + interim order;
� For containment or seclusion in the course of providing
respite/community access - consent of a guardian for a restrictive
practice (respite) matter for the adult + respite/community access
plan;
� For containment or seclusion under a short-term approval - the
short-term approval + `short-term' plan.
For chemical, physical or mechanical restraint or restricted access:
� For chemical, mechanical or physical restraint, or restricted access -
the positive behaviour support plan + either a containment or
seclusion approval (if approved by the Tribunal with either
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containment and/or seclusion); or otherwise, the consent of the
relevant decision-maker;
� For physical or mechanical restraint, or chemical restraint (excluding
fixed dose chemical restraint in respite), or restricting access, in the
course of providing respite or community access -consent of a
guardian for restrictive practice matters or, if no guardian, consent of
an informal decision maker, + the respite/community access plan;
� For fixed dose chemical restraint in respite only - consent of informal
decision-maker;
� For chemical, mechanical or physical restraint, or restricted access
under a short-term approval - the short-term approval + plan.
An individual is taken to be acting in compliance with an approval or plan
if the individual reasonably believes he or she is acting in compliance with
the approval or plan.
Subdivision 2 Requirements for relevant service
providers
This subdivision lists various requirements for a relevant service provider
about the provision of information to decision-makers, keeping of records
and notification requirements around the use of restrictive practices. A
relevant service provider must comply with these requirements.
If these requirements are not followed, section 161 of the Disability
Services Act 2006, provides that a funded non-government service provider
may be given a compliance notice requiring the provider to remedy a
contravention of a requirement under this subdivision.
123ZZD Requirement to give information to guardian or
informal decision maker
This section enables a guardian or informal decision-maker access to
relevant and necessary information in order to make a decision about
chemical, physical or mechanical restraint, or restricted access. It does not
apply to a decision about the use of fixed dose chemical restraint during
respite.
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The relevant service provider must provide the guardian or informal
decision-maker with a copy of the positive behaviour support plan; any
assessment or other information used to develop the plan and if the relevant
service provider is aware that a forensic order or involuntary treatment
order is in place - the terms of the order.
If chemical, physical or mechanical restraint, or restricted access is
proposed during the course of respite/community access, the relevant
service provider must provide the guardian or informal decision-maker
with a copy of the respite/community access plan and any information used
to develop the plan.
The service provider is protected from civil or criminal liability, or liability
under any administrative process for the giving of the information,
provided they acted honestly and without negligence. In addition, the
service provider is protected from being in breach of any code of
professional etiquette or ethics or accepted standards of professional
conduct.
A guardian or informal decision-maker who gains confidential information,
including through this section, is subject to confidentiality requirements
(see section 249 of the Guardianship and Administration Act 2000 for
guardians; or section 80ZT for informal decision-makers). The
decision-making criteria is governed under the amendments to the
Guardianship and Administration Act 2000.
123ZZE Requirement to keep records and other documents
This section requires the relevant service provider to make and keep
records around the use of restrictive practices. Records are important for
monitoring, review and enforcement purposes. The types of records to be
kept will be prescribed in the Disability Services Regulation 2006 and will
include the requirement to keep records detailing, for example:
� the type of restrictive practice used and the period of time it was
used for;
� when it was used;
� who applied the restrictive practice;
� the reasons why it was used; and
� the effect on the person's behaviour.
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In addition, the relevant service provider must keep at the premises where
disability services are provided to the adult, a copy of the relevant plan for
the adult and/or any relevant approval/order.
123ZZF Notification requirements about approvals given for
use of restrictive practices
This section sets out when a relevant service provider must notify the
Community Visitor Program and chief executive of DSQ about the use of
restrictive practices.
Notifications for chief executive DSQ
The chief executive DSQ will not be aware of all decisions to consent to
chemical, physical or mechanical restraint or restricted access, especially
where a funded non-government service provider proposes to use these
practices.
For containment or seclusion (and other restrictive practices used with
containment or seclusion), the chief executive DSQ will be aware of all
decisions, as a joint application with the funded non-government service
provider must be made to the Tribunal for approval.
For other restrictive practices, this decision will be made by a guardian for
restrictive practices matters, or in the case of restricted access, an informal
decision-maker (referred to in this section as `limited restrictive practice
approvals'). For monitoring the use of these restrictive practices, the chief
executive must know that such a decision has been made. The chief
executive DSQ is responsible for administering the Disability Services Act
2006 and under that Act, authorised officers can be appointed to monitor,
investigate and enforce non-compliance with the Disability Services Act
2006.
This section therefore requires the relevant service provider to notify the
chief executive DSQ if the guardian has consented to the use of chemical,
physical or mechanical restraint, or an informal decision maker has
consented to the use of restricted access. Notification is not required for the
use of these restrictive practices under a short term approval.
The notification must be provided in the approved form; and be provided
within 21 days after the consent is provided. Only one notice must be
provided per service outlet - therefore, if restrictive practices have been
approved for more than one adult at that service outlet, only one
notification is required. The service provider must also notify the chief
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executive if there are no longer any approvals at that service outlet relating
to the use of restrictive practices.
Notifications for the Community Visitor Program:
The community visitor program is established under the Guardianship and
Administration Act 2000 and has an inquiry and complaint function; and
will regularly visit a `visitable site'. After the visit, the community visitor
will prepare a report regarding various matters (described in section 224 of
the Guardianship and Administration Act 2000). A `visitable site' is
defined in section 222 of that Act (and amended in clause 27). It is
important that the community visitor visit the sites where restrictive
practices are being used so that their reports may be used when the plans
are being reviewed by the Tribunal. The Community Visitor Program may
not know of a site, without notice from the relevant service provider.
This section requires the relevant service provider to notify the community
visitor program if any restrictive practices, including under a short term
approval, has been approved or consented to at a visitable site (referred to
in this section as a `restrictive practice approval'). The notice must be
provided within 21 days of the approval or within 14 days of the approval,
if it is a short term approval. The notice must state the name and address of
the visitable site and note the approval has been given in relation to that
site. Only one notification per visitable site is required.
Subdivision 3 Confidentiality provisions
123ZZG Definitions for sdiv 3
Section 123ZZG lists key definitions for the purpose of this subdivision,
which facilitates the exchange, and protection, of confidential medical
information between certain health care providers.
123ZZH Relevant service provider may request confidential
information from health professional or chief executive (health)
Section 123ZZH facilitates the disclosure of medical information by
certain health care providers for the purpose of assessments and
development of plans. This will allow a service provider to access
confidential information about the adult in some cases. Access to this
confidential information is important for the adult's best interests and
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relevant for a comprehensive assessment of the adult; and to understand all
of the adult's needs and possible causes for their challenging behaviour.
Examples of information which could be relevant to an assessment or
development of plan could be:
� Treatment plans made under the Mental Health Act 2000;
� Blood tests and results;
� Medication regimes - past and current ;
� Allergy testing results and treatment;
� Electroconvulsive therapy information;
� Neurological and neurophsychological assessments and reports;
� Genetic testing results;
� Surgeries;
� Psychological assessments and reports - psychometric testing,
inventories and others
� Occupational therapy assessments and reports;
� Speech and language pathology assessment and reports; and
� Physiotherapy assessments and reports.
The relevant service provider must demonstrate it is relevant information
for the purpose of an assessment and/or plan; and a health care provider
must be satisfied of this before the information can be provided. If a health
professional provides the information, they are protected from any liability
and disciplinary action for the giving of that confidential information. This
includes being protected from being in breach of any professional etiquette
or ethics or accepted standards of professional conduct.
A service provider receiving confidential information under this section
must protect its confidentiality - see section 123ZZI.
123ZZI Relevant service providers must maintain
confidentiality
The effect of section 123ZZI is to protect the confidentiality of information
disclosed by the health professional under section 123ZZH. The relevant
service provider is prevented from disclosing the information to anyone
else other than in the limited circumstances stated in the section (for
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example, to discharge a function under another law or for a proceeding in a
court or tribunal). It is an offence for the service provider not to comply
with this requirement.
Insertion of new pt 15, div 1A
Clause 8 inserts a new part 15, division 1A, which deals with the practice
of locking of gates, doors and windows.
Part 15
Division 1A Locking of gates, doors and windows
This practice is not within the definition of a `restrictive practice' for the
purpose of this scheme. However, it is still regulated to ensure protection of
a person's rights and liberties. The Bill authorises a service provider to lock
gates, doors and windows to prevent physical harm being caused to an
adult with a skills deficit (for example, an adult who can not leave the
premises unsupervised because he or she lacks road safety skills).
This practice must be distinguished from the practice of `containment'
which is used to effectively manage a person's `challenging behaviour' and
requires a multi-disciplinary assessment, development of a positive
behaviour support plan and the approval of the Guardianship and
Administration Tribunal.
214A Application of div 1A
This division which deals with locking of gates, doors and windows
applies only if:
� a relevant service provider locks gates, doors or windows at premises
where disability services are provided:
� to adults with an intellectual or cognitive disability; and
� the only reason the gates, doors or windows are locked is to prevent
physical harm being caused to an adult with a skills deficit.
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Importantly, the purpose of locking the gates, doors or windows must be to
prevent a risk of physical harm to the adult and the only reason for the
locking of gates, door or windows must be to prevent physical harm being
caused to the adult who has a `skills deficit'. This term is further defined in
section 214B.
An example of locking of gates, doors and windows is:
An adult with an intellectual disability has no road safety skills and is
unable to navigate the crossing of a road safely. The adult is fascinated with
the sound of cars and will approach moving cars to touch them. The adult's
house is situated on a main road and as a result the front gate/fence is
locked from the inside to prevent the adult wandering onto the road.
214B Definitions for div 1A
Section 214B defines what is meant by the term `an adult with a skills
deficit' - this is an adult with an intellectual or cognitive disability who
cannot safely exit the premises where disability services are provided to the
adult without supervision; and the only reason the adult cannot safely exit
the premises without supervision is because:
(a) the adult lacks road safety skills; or
(b) the adult is vulnerable to abuse or exploitation by others; or
(c) the adult is unable to find his or her way back to the premises.
Also, a regulation may prescribe other purposes.
214C Immunity from liability--relevant service provider
The Bill provides immunity from liability for the practice of locking of
gates, doors or windows in prescribed circumstances. Section 214 C
provides an immunity provision for service providers who may lock gates,
doors and windows. Section 214D provides a similar immunity for an
individual acting for a relevant service provider.
For locking doors or windows a service provider is not civilly or criminally
liable for locking, gates, doors provided they:
� act honestly and without negligence; and
� keep and implement a policy (consistent with DSQ's policy) on this
practice;
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� the gates, doors and windows are locked in compliance with the
policy; and
� the service provider takes reasonable steps to minimise the impact of
locking gates, doors and windows on a person living at the premises
This immunity extends beyond the adult with a skills deficit and allows the
locking of gates, doors and windows in relation to any other person living
at the premises. However, part of obtaining the immunity, requires the
service provider to demonstrate that they have taken reasonable steps to
minimise the impact of locking gates, doors and windows on a person
living at the premises, such as the use of a key activation device so they can
freely exit the premises. The immunity also makes it clear that this practice,
cannot be used to effectively contain an adult with challenging behaviour
(this would require Tribunal approval).
214D Immunity from liability--individual acting for relevant
service provider
Section 214D provides criminal or civil protection for an individual acting
on behalf of the service provider. The individual is not liable for locking of
gates, doors or windows if they acted in compliance with, or reasonably
believed they acted in compliance with, the provider's policy about the
locking of gates, doors and windows.
214E Department's policy about locking of gates, doors and
windows
Section 214E outlines the minimum requirements the department must
have in their policy about the locking of gates, doors and windows. The
service provider must keep and implement a policy that is consistent with
the department's policy.
The policy must:
� outline procedures which demonstrate the practice is necessary to
prevent physical harm to the adult and is the least restrictive option for
ensuring the safety of the adult- this could include making sure the
doors were locked for the shortest possible time; and
� be culturally appropriate.
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A copy of the department's policy must be available free of charge and be
located at the head office and regional offices. It must also be published on
the department's internet site.
Amendment of s 222 (Confidentiality of other information)
Clause 9 amends the existing section 222 of the Disability Services Act
2006. The effect of this amendment is to protect the disclosure of
confidential information which might be obtained by a person working for
the department in conducting a multi-disciplinary assessment or
developing a positive behaviour support plan.
Insertion of new s 233A
Clause 10 inserts a new section 233A (Review of Guardianship and
Administration Act 2000), which deals with the review of this legislative
scheme. This scheme will be reviewed when the Disability Services Act
2006 must be reviewed under section 233 of that Act, which is 5 years from
commencement of the Act. The review is required to take place after 1 July
2011.
Amendment of pt 16, div 2 hdg (Transitional provisions)
Clause 11 makes a consequential amendment as a result of transitional
provisions being included in the Bill.
Insertion of new pt 16, div 3
Clause 12 inserts a new part 16, division 3 which deals with transitional
provisions.
Division 3 Transitional provisions for Disability
Services and Other Legislation
Amendment Act 2008
The Bill allows the service provider (and individuals acting on their behalf)
up to 18 months from commencement of the Bill to comply with all of the
new requirements. The legislative scheme is about driving a culture of
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Disability Services and Other Legislation Amendment Bill 2008
change in the use of restrictive practices in the disability sector; and to
effectively implement the scheme, adequate provision must be made for:
� service providers to conduct an assessment and develop a
positive behaviour support plan for the adult - more complex
cases could take at least 3-4 months per adult;
� service providers to develop policies and procedures about the
use of restrictive practices; and
� for the Tribunal to hear and decide applications for containment
and/or seclusion or appoint a guardian for other restrictive
practice matters.
In the meantime, service providers can lawfully use restrictive practices
provided they satisfy a number of requirements as outlined in the Bill.
However, after the 18 month transitional period, a relevant service provider
cannot use restrictive practices unless they comply with the requirements in
Part 10A.
This division also deals with the lawful use of restrictive practices prior to
commencement of the Bill (sections 242 and 243).
Subdivision 1 Preliminary
241 Interpretation
Section 241 lists key definitions for the purpose of part 16, division 3.
Subdivision 2 Immunity from liability for use of
restrictive practices before
commencement
Subdivision 2 deals with immunity from liability, in certain circumstances,
where restrictive practices may have been applied prior to the
commencement of the Bill.
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242 Immunity of previous service provider
Section 242 provides that a relevant service provider is not criminally or
civilly liable for using a restrictive practice before the commencement of
the Bill if:
� they acted honestly and without negligence; and
� demonstrated the restrictive practice was necessary for safety and the
least restrictive option; and
� within a reasonable time before using the restrictive practice, they
assessed the adult to identify the causes of their harmful behaviour;
and developed positive strategies to meet the adult's needs;
� they carried out monitoring in relation to use of the restrictive
practices to ensure the safety of the adult.
243 Immunity of individual acting for previous service provider
Section 243 provides that an individual acting for the relevant service
provider is not criminal or civilly liable for the use of restrictive practices
before the commencement of the Bill if:
� they acted honestly and without negligence; and
� use of restrictive practices was necessary, or the individual reasonably
believed use of restrictive practices was necessary, to prevent the
adult's behaviour causing harm to the adult or another person.
Subdivision 3 Immunity from liability for use of
restrictive practices during
transitional period
Subdivision 3 deals with the use of restrictive practices during the
transitional period - which is 18 months from the commencement of the
Bill. These provisions balance providing time to enable service providers to
be resourced to effectively implement the scheme, with providing
appropriate safeguards for the adult during this transitional period.
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Disability Services and Other Legislation Amendment Bill 2008
244 Immunity of relevant service provider
Section 244 provides that a relevant service provider is not criminally or
civilly liable for using a restrictive practice during the transitional period if:
� they act honestly and without negligence; and
� use of the restrictive practice is necessary to prevent the adult's
behaviour causing harm to the adult or others and is the least
restrictive way of ensuring their safety; and
� either if there is an `authorised guardian' for the adult - the restrictive
practice is used in compliance with the consent of the authorised
guardian; or otherwise--the relevant service provider assesses the
adult (under section 245); and
� they carry out monitoring in relation to use of the restrictive practice
to ensure the safety of the adult; and
� during the transitional period they keep and implement a policy about
the use of restrictive practices, which must be consistent with DSQ's
policy. The requirement for what has to be included in the policy is
discussed at section 249.
This requirement to keep and implement a policy commences after the end
of the `compliance period' and continues until the end of the transitional
period. The `compliance period' is defined in section 241 and means:
� For containment or seclusion, or restricted access - a policy
must be kept and implemented after 6 months from the day the
restrictive practice is first used or after commencement of the
Bill;
� For other restrictive practices - a policy must be kept and
implemented after 9 months from the day the restrictive practice
is first used or after commencement of the Bill.
In addition, for containment or seclusion - the service provider must notify
the Chief Executive DSQ in the approved form of the containment or
seclusion. This must happen within 60 days after first containing or
secluding the adult. This allows the Chief Executive time to commence the
multi-disciplinary assessment of the adult and develop a positive behaviour
support plan.
`An authorised guardian' for an adult is defined in section 241 and
effectively means a guardian who was appointed under the Guardianship
and Administration Act 2000, prior to the commencement of the Bill; and
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Disability Services and Other Legislation Amendment Bill 2008
their appointment authorised them to make decisions around the use of
restrictive practices. If there is no authorised guardian then the service
provider must arrange for an assessment as described in section 245.
For the special circumstance of the use of fixed dose chemical restraint in
the course of providing respite - the relevant service provider must act
honestly and without negligence and keep and implement a policy within
the required time.
There are certain circumstances when the service provider can no longer
rely on the transitional provisions. These are listed in section 248.
245 Requirement to assess adult if no authorised guardian
This section requires an assessment of the adult if there is no authorised
guardian for the adult (as defined in section 241 and explained above).
During the `compliance period', the service provider must assess the adult
to identify:
� the nature and causes of the adult's behaviour; and
� strategies for managing the adult's behaviour as well as (positive)
strategies for meeting the adult's needs.
For containment or seclusion or restricted access - this means that the
assessment must happen by the end of 6 months from when the restrictive
practice is first used or from commencement of the Bill. For other
restrictive practices - the assessment must happen by the end of 9 months
from when the restrictive practice is first used or from commencement of
the Bill.
There is no need for this requirement if there is an `authorised guardian'
appointed for the adult, as there are sufficient safeguards for the adult
through the Tribunal process and the Guardianship and Administration Act
2000.
246 Immunity for individual acting for relevant service provider
Section 246 provides a similar immunity to that for a relevant service
provider in section 244 except this section applies to an individual who,
acting for the relevant service provider, uses restrictive practices during the
transitional period. The individual is not criminal or civilly liable for the
use of restrictive practices if:
� they act honestly and without negligence; and
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Disability Services and Other Legislation Amendment Bill 2008
� (except for fixed dose chemical restraint in a respite service) the use of
restrictive practices was necessary, or the individual reasonably
believed use of restrictive practices was necessary, to prevent the
adult's behaviour causing harm to the adult or another person.
This is similar to the other immunity provisions in the Bill relating to the
individual.
247 Relationship of subdivision with pt 10A
Section 247 just makes it clear this subdivision, dealing with transitional
arrangements, does not limit part 10A, which deals with the main scheme.
Therefore, for example, a service provider could make a joint application
with DSQ to the Tribunal under the main scheme during this transitional
period (providing that they had undertaken an assessment and developed a
positive behaviour support plan etc in accordance with the requirements of
the main scheme).
248 Circumstances in which subdivision stops applying
Section 248 lists the circumstances when the transitional provisions no
longer apply - essentially these provisions stop applying when the relevant
decision-maker under the main scheme (in part 10A) makes a decision
about whether to approve or not approve the restrictive practice.
Subdivision 4 Other provisions
249 Requirements for department's policy about use of
restrictive practices during transitional period
Section 249 sets out the minimum requirements that must be included in
the department's policy for the use of restrictive practices during the
transitional period: for
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Disability Services and Other Legislation Amendment Bill 2008
Topic Detail
Assessment of adult Detail procedures on how to assess the
adult to comply with section 245
Skills and knowledge of Procedures on how the individual who will
person using the be using the restrictive practice will:
restrictive practice � know about the requirements for the
lawful use of the restrictive practice;
and
� have the skills and knowledge to use
the restrictive practice appropriately.
Monitoring use of Procedures on how the use of the
restrictive practice restrictive practice should be monitored to
prevent abuse, neglect or exploitation.
Review use of the Procedures on how to review the use of
restrictive practice restrictive practice at least every 9 months
- this is to ensure that a restrictive practice
can be reviewed at least once during the 18
month transitional period.
Minimum impact on For restricted access, where that practice
other co-residents may impact on other co-residents, the
policy must detail how the service
provider will minimise the impact on those
other persons.
A service provider must keep and implement a policy that is consistent
with the department's policy (see section 244). This type of policy must be
kept and implemented only during the transitional period.
250 Short term approvals not to be given during transitional
period
Section 250 provides that the short term approval provisions (in sections
123O and 123ZD and part 10A, division 4, subdivision 4) do not apply
during the transitional period. This is because the transitional provisions
are considered adequate to deal with the ongoing use of restrictive
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practices, whether there is an emergency (an immediate or serious risk of
harm) or otherwise.
Amendment of sch 7 (Dictionary)
Clause 13 makes consequential amendment to schedule 7 of the Disability
Services Act 2006 as a result of amendments in this Bill.
Part 3 Amendment of Guardianship and
Administration Act 2000
The Guardianship and Administration Act 2000 (the GAA) is an Act, that
amongst other matters, establishes the Guardianship and Administration
Tribunal (the tribunal) and the Office of the Adult Guardian (the adult
guardian), as well as providing for the tribunal to appoint a guardian or
administrator to manage the personal and financial affairs of adults with
impaired capacity.
The tribunal has various functions including, but not limited to, the
appointment of guardians and administrators to manage the personal and
financial affairs of adults with impaired capacity. The tribunal may also
make declarations, orders or recommendations, or give directions or advice
to guardians or other substitute decision-makers or about other related
matters.
The tribunal may appoint a guardian to make a personal decision for an
adult, only when the tribunal is satisfied that the adult has impaired
decision-making capacity for the matter and there is a need for a decision
to be made in relation to the adult about that matter, and without the
appointment of a guardian the adult's needs or interests will not be
adequately met or protected.
Subject to the terms of the guardian's appointment, a guardian is authorised
to do anything in relation to a personal matter that the adult could have
done, if the adult had capacity for the matter. A guardian must comply
with the general principles set out in Schedule 1 of the GAA, when making
a decision for the adult, and if the decision is a health care decision, the
health care principle, also set out in Schedule 1 of the GAA, must also be
complied with.
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Orders appointing a guardian must be reviewed by the tribunal at least
every 5 years to ascertain whether the need for a further appointment is
necessary and if the guardian has acted competently.
The adult guardian is a statutory officer whose role is to protect the rights
and interests of adults with impaired capacity for a matter. The adult
guardian is given various functions, which include but are not limited to:
acting as a guardian if appointed by the tribunal, investigating complaints
and allegations of abuse, neglect or exploitation of adults with impaired
capacity and seeking help or making representations for an adult with
impaired capacity.
The following amendments to the GAA, complement and follow the
previous amendments to the Disability Services Act 2006 (the DSA) to
provide for the consent or approval by an independent decision-maker for a
relevant service provider to use a restrictive practice to manage the
challenging behaviour of an adult with an intellectual or cognitive
disability. This is achieved by including a new chapter 5B into the GAA
that deals specifically with the approval and consent of the use of restrictive
practices. As the general provisions of the GAA will also apply to this
chapter, other sections of the GAA have been amended in consequence of
the new chapter 5B.
Act amended in pt 3
Clause 14 states that this part amends the Guardianship and Administration
Act 2000.
Amendment of s 12 (Appointment)
Clause 15 amends section 12. Section 12 provides for the tribunal's
authority to appoint a guardian for a personal matter for an adult with
impaired decision making capacity and sets out the criteria the tribunal
must be satisfied of before an appointment is made. Section 12 is amended
by the inclusion of a provision that states that section 12 does not apply for
the appointment of a guardian for a restrictive practice matter under chapter
5B. The authority of the tribunal to appoint a guardian for a restrictive
practice matter is included in the new chapter 5B created by this Bill at
clause 22, section 80ZD (Appointment). It is necessary to include a
separate section dealing with the appointment of a guardian for a restrictive
practice matter because of the different criteria that need to be satisfied
before such an appointment can be made, such as the requirement the
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adult's behaviour has resulted in previous harm to the adult or others or the
use of the restrictive practice is in accordance with the positive behaviour
support plan developed for the adult.
Amendment of s 13 (Advance appointment)
Clause 16 amends section 13. Section 13 provides for the advance
appointment of a guardian for an individual who is aged 17 � years and
who has impaired decision making capacity. Section 13 is amended by the
inclusion of a provision that states section 13 does not apply for the
appointment of a guardian for a restrictive practice matter under chapter
5B. The authority of the tribunal to appoint a guardian for a restrictive
practice matter in advance for an individual aged 17 � years is included in
clause 17 which inserts section 13A. It is necessary to include a separate
section dealing with an advance appointment of a guardian for a restrictive
practice matter because of the different criteria that need to be satisfied
before an advance appointment can be made, such as the requirement that
the adult's behaviour has resulted in previous harm to the individual or
others or the use of the restrictive practice is in accordance with the positive
behaviour support plan developed for the adult.
Insertion of new s 13A
Clause 17 inserts a new section 13A (Advance appointment - guardian for
restrictive practice matter). This section is the alternative section to the
current section 13, which by virtue of clause 16 above does not apply to a
guardian appointed in advance for a restrictive practice matter. The new
section 13A provides the tribunal with the authority to appoint a guardian
for a restrictive practice matter under chapter 5B for an individual before
the individual is 18 years. The advance appointment can be made when the
individual is at least 17 � years but not 18 years. Before the tribunal may
appoint a guardian in advance, the tribunal must be satisfied that the
individual's behaviour has previously resulted in harm to the individual or
others. Also, the tribunal must be satisfied that when the individual turns 18
years: the individual will have impaired capacity for the matter; and there is
a reasonable likelihood that there will be a need for a decision about
restrictive practices and without the appointment the individual's behaviour
will likely cause harm to the individual or to others, or the individual's
interests would not be adequately protected.
Having impaired capacity for the matter could mean the individual does not
understand that his or her behaviour causes harm to his or herself or others
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Disability Services and Other Legislation Amendment Bill 2008
(or he or she can not control the behaviour) and that there is a need to use
positive strategies or support, combined with restrictive practices in a
planned and coordinated response to reduce or eliminate the behaviour and
improve the quality of life of the individual.
Section 13A further provides that the appointment does not commence
until the individual turns 18 years and will end on the day the tribunal
orders but not later than the day the individual turns 19 years. The tribunal
may make the order on the terms it considers appropriate. Section 13A
further provides who may make the application to the tribunal. This
includes, the individual, an interested person for the individual (such as a
family member, close friend or advocate), a relevant service provider under
chapter 5B, the chief executive of Disability Services Queensland (DSQ),
the adult guardian or the director of mental health (if the individual is
subject to a forensic order or involuntary treatment order under the Mental
Health Act 2000).
Amendment of s 26 (Automatic revocation)
Clause 18 amends section 26(1). Section 26(1) describes the
circumstances where an appointment of a guardian or administrator will be
automatically revoked, for example, when the guardian or administrator
becomes a paid carer or service provider for the adult. Section 26 is
amended by the inclusion of a provision that extends the circumstances
when the appointment of a guardian will be automatically revoked. The
amendment provides that the appointment of a guardian for a restrictive
practice matter under the new chapter 5B, will be automatically revoked if
the tribunal makes an order that approves the use of containment or
seclusion for that adult under the new chapter 5B. When the tribunal
makes an order that approves the use of containment or seclusion, the
tribunal must also take into account other restrictive practices that are being
used and the approval to use these other restrictive practices is included in
the containment or seclusion approval (refer to the new section 80X).
Therefore, there is no longer a need for the appointment of a guardian for a
restrictive practice matter.
Amendment of s 28 (Periodic review of appointment)
Clause 19 amends section 28. Section 28 provides for the periodic review
of the appointment of a guardian and administrator and refers to the usual
period of review for the appointment of a guardian or administrator as not
being more than 5 years (except where the administrator is the public
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Disability Services and Other Legislation Amendment Bill 2008
trustee or a trustee company under the Trustee Companies Act 1968).
Section 28 is amended by the inclusion of a provision that states section 28
does not apply for the appointment of a guardian for a restrictive practice
matter under chapter 5B. The reason for section 28 not being applicable is
that under the new section 80ZD, a guardian for a restrictive practice matter
may not be appointed for more than 12 months and this is different to the
appointment of a guardian under section 12 of the GAA, which can be up
to 5 years. The periodic review of an appointment of a guardian for a
restrictive practice matter under chapter 5B is dealt with in the new section
29(2).
Amendment of s 29 (Other review of appointment)
Clause 20 amends section 29. Section 29 provides the authority for the
persons named in that section to apply to the tribunal for a review of an
appointment of a guardian or administrator during the term of the
appointment. This review is in addition to the periodic review that takes
place under section 28. Section 29 is amended by the inclusion of another
subsection that provides for who may apply for a review of an appointment
of a guardian for a restrictive practice matter under chapter 5B and this
includes: the adult; an interested person for the adult (such as a family
member, close friend or advocate); a relevant service provider who
provides disability services to the adult; the chief executive of DSQ; the
adult guardian and the director of mental health (but only if the individual
is subject to a forensic order or involuntary treatment order under the
Mental Health Act 2000).
Section 29 is further amended by inserting a new section 29(2) that
provides for the periodic review of an appointment of a guardian for a
restrictive practice matter under the new chapter 5B. This new subsection
states that the tribunal must review the appointment of a guardian for a
restrictive practice matter under the new chapter 5B at least once before the
term of the appointment ends. This review, which may be initiated by the
tribunal, will most likely occur just prior to the term of the appointment
ending. This subsection does not preclude any of the other persons named
in new section 29(1)(c) from applying to the tribunal for a review at any
other time during the term of the appointment of the guardian for a
restrictive practice matter.
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Disability Services and Other Legislation Amendment Bill 2008
Amendment of s 33 (Power of guardian or administrator)
Clause 21 amends section 33. Section 33(1) describes the powers of a
guardian to make personal decisions for an adult with impaired capacity. A
guardian is authorised to do, in accordance with the terms of the guardian's
appointment, anything in relation to a personal matter that the adult could
have done if the adult had capacity for the matter. Section 33 is amended
by the inclusion of a provision that provides that the power of a guardian as
set out in section 33 is subject to the provisions of the sections 80ZE and
80ZF. The new sections 80ZE and 80ZF provide the criteria, which must
be satisfied before the guardian for restrictive practice (general) matters
and the guardians for restrictive practice (respite) matters may consent to
the use of a restrictive practice by the relevant service provider. Because
the power of a guardian under section 33 to make a decision is quite broad,
it is necessary to refer to the limitations in the new sections 80ZE and
80ZF, that are placed on the exercise of the power of a guardian for a
restrictive practice matter to make a decision to consent to the use of a
restrictive practice.
Insertion of new ch 5B
Clause 22 inserts a new chapter 5B titled, `Restrictive practices'. This
chapter provides the authorisation and consent process to enable a relevant
service provider to use a restrictive practice to manage the behaviour of an
adult who has an intellectual or cognitive disability where it is likely to
cause harm to the adult or others. This chapter is to be read with the new
part 10A (Use of restrictive practices) in the DSA.
Chapter 5B Restrictive practices
Chapter 5B enables the tribunal to give approval for a relevant service
provider to contain or seclude an adult (and use other restrictive practices if
used in conjunction with containment and seclusion) and to review that
approval. The tribunal is also given the authority to appoint a guardian for a
restrictive practice matter and to review the appointment. This chapter also
enables the adult guardian to approve the use of containment or seclusion
of an adult in certain circumstances and provides criteria for
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decision-makers when making a decision about a restrictive practice
matter.
Part 1 Preliminary
Part 1 of chapter 5B is titled `Preliminary'.
80R Application of ch 5B
The new section 80R (Application of ch 5B) clarifies who this chapter
applies to. This chapter applies to an adult with an intellectual or cognitive
disability who receives disability services from a funded service provider
within the meaning of the DSA. The meaning of `an adult with an
intellectual or cognitive disability', `disability services', `funded service
provider' and `relevant service provider' are defined terms in the GAA but
are linked to the definitions for these terms provided in section 123E of the
DSA.
80S Purpose of ch 5B
The new section 80S (Purpose of ch 5B) describes the purpose of the
chapter which is to enable the tribunal to give approval for a relevant
service provider to contain or seclude an adult (and to also approve the use
of other forms of restrictive practices if the service provider proposes to use
containment or seclusion) and to review the approval. The chapter will
also enable the tribunal to appoint a guardian for a restrictive practice
matter and to review that appointment. The adult guardian will be
authorised to consent to the use of particular restrictive practices on a short
term basis. The chapter will also provide criteria for an informal
decision-maker to consider when consenting to the use of particular
restrictive practices.
80T Effect of ch 5B on substitute decision maker's ability to
make health care decision
The new section 80T (Effect of ch 5B on substitute decision maker's ability
to make health care decision) provides that chapter 5B does not limit the
extent to which a substitute decision maker, such as a statutory health
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Disability Services and Other Legislation Amendment Bill 2008
attorney, attorney, guardian, tribunal or court may make a health care
decision in relation to an adult to whom chapter 5B does not apply. This
means that the substitute decision maker's authority to make a health care
decision for an adult to whom this chapter does not apply, is not affected by
the provisions in chapter 5B.
80U Definitions for ch 5B
The new section 80U (Definitions for ch 5B) provides definitions of the
key terms that are used in the legislation. Many of the key terms are linked
to their meanings in the DSA and a reference to the applicable section in
the DSA is provided. Some of the important key terms that are defined in
the DSA include: chemical restraint, chemical restraint (fixed dose),
contain, seclude, physical restraint, mechanical restraint, harm, least
restrictive, relevant service provider, adult with intellectual and cognitive
impairment, short term plan, positive behaviour support plan, respite
services, community access services and respite/community access plan.
Some of the terms defined in the new section 80U include:
� active party;
� containment or seclusion approval;
� restrictive practice matter;
� restrictive practice (general) matter; and
� restrictive practice (respite) matter.
Part 2 Containment or seclusion
approvals
Part 2 of chapter 5B is titled, `Containment or seclusion approvals'.
Division 1 of part 2 of chapter 5B is titled, `Giving containment or
seclusion approvals'.
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80V When tribunal may approve use of containment or
seclusion
The new section 80V (When tribunal may approve the use of containment
or seclusion) provides the authority of the tribunal to give approval for a
relevant service provider to contain or seclude an adult. The tribunal may
give the approval subject to conditions that are to be stated in the order.
The new section 80V(2) provides the tribunal must be satisfied of all the
following criteria before the tribunal may give the approval:
� the adult has impaired capacity for making decisions about restrictive
practice matters. This could mean that the adult does not understand
that his or her behaviour causes harm to his or herself or others (or he
or she can not control the behaviour) and that there is a need to use
positive strategies or support and restrictive practices in a planned and
coordinated response to reduce or eliminate the behaviour and
improve the quality of life of the adult; and
� there is a need for the adult to be contained or secluded because
previous behaviour has resulted in harm to the adult or others and
without the approval there is a reasonable likelihood that the adult's
behaviour will cause harm to the adult or others; and
� a positive behaviour support plan (as described in section 123L of the
DSA) has been developed for the adult and that this plan incorporates
the use of containment or seclusion; and
� the use of containment or seclusion to manage the behaviour of the
adult is the least restrictive option to ensure the safety of the adult or
others; and
� the adult has been adequately assessed by appropriately qualified
persons in the development of the positive behaviour support plan
(note that section 123J of the DSA describes the assessment of an
adult and section 123K of the DSA describes who is an appropriately
qualified person); and
� the implementation of the plan will result in a reduction or elimination
of the risk of the adult's behaviour causing harm and an improvement
in the quality of life of the adult in the long-term; and
� the positive behaviour support plan includes appropriate arrangements
for the observation and monitoring of the containment or seclusion.
The tribunal may make an order that provides for the approval of
containment and seclusion on its own initiative or upon an application that
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Disability Services and Other Legislation Amendment Bill 2008
is made under the new section 80ZO. This approval given by the tribunal is
known as a `containment or seclusion approval'.
80W Matters tribunal must consider
The new section 80W (Matters tribunal must consider) provides criteria the
Tribunal must consider before it may give an approval for a relevant service
provider to use containment or seclusion. The tribunal is required to
consider each of the following:
� the suitability of the environment in which the adult will be contained
or secluded;
� the terms of a forensic order or involuntary treatment order made
under the Mental Health Act 2000 and the views of an authorised
psychiatrist for the relevant authorised health service under that Act
about the containment or seclusion (if the tribunal is aware of the
existence of the order);
� the strategies and/or restrictive practices that have been previously
used to manage or reduce the behaviour of the adult and the
effectiveness of those strategies or practices; and
� the type of disability services provided to the adult.
80X When tribunal may approve use of other restrictive
practices
The new section 80X (When tribunal may approve use of other restrictive
practices) provides that where the tribunal has already given a containment
or seclusion approval (an approval under the new section 80V) or is about
to give a containment or seclusion approval, and the service provider
intends to use other restrictive practices, such as mechanical, chemical or
physical restraint or restricted access (see section 123E of the DSA for
definitions of these terms), the tribunal must include the approval to use
other restrictive practices as part of the containment or seclusion approval.
Therefore, if a containment or seclusion approval is given or is about to be
given, the tribunal is the decision-maker who approves the use of the other
restrictive practices and the guardian for restrictive practice (general)
matters will not be appointed.
Section 80X also provides that the Tribunal must be satisfied of all the
criteria set out in new section 80V and consider all the criteria set out in the
new section 80W before the tribunal may make the order giving approval
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for the relevant service provider to use other restrictive practices. In
addition, if the proposed other restrictive practice is chemical restraint, the
tribunal must also consider the views of the adult's treating doctor about
the use of the chemical restraint. When the tribunal is taking into account
the criteria in section 80V and considering the criteria in section 80W, a
reference to containment or seclusion is to be read as if it were a reference
to the other restrictive practices in relation to the adult.
As a consequence of this section, when a positive behaviour support plan is
developed for the adult (under the provisions of chapter 10A of the DSA),
the positive behaviour support plan must include all restrictive practices to
be used to manage the behaviour of the adult, so that there is only ever to be
one plan and one approval for the adult. The decision-maker, type of
assessment and type of plan to be developed will always revert to the
higher level.
Division 2 of part 2 of chapter 5B is titled, `Period of containment or
seclusion approval'
80Y Period for which containment or seclusion approval has
effect
The new section 80Y (Period for which containment or seclusion approval
has effect) provides that the maximum period of time for a containment or
seclusion approval by the tribunal is to be no more than 12 months. The
Carter Report recommended a maximum period of time for an approval
should be 6 months. However, this maximum period of 12 months will
allow the tribunal some flexibility when giving a containment or seclusion
approval. When the circumstances of the matter before the tribunal are
developing or constantly changing, the period of the approval will be for a
shorter duration, for example, 3 months or 6 months. Once the
circumstances of the matter stabilise and there are no expected changes in
the adult's situation, the period of the approval may be longer, such as 12
months. The experience of the Tribunal in relation to these types of matters
has been that where the circumstances of the adult are very stable, there has
not been a need to review the appointment before 12 months. The new
section 80Y does not prevent a person from applying to the Tribunal before
the approval ends for a review (refer to the new section 80ZA below) nor
prevent the automatic revocation of a containment or seclusion approval
(refer to the new section 80ZY below).
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80Z Automatic revocation of containment or seclusion approval
The new section 80Z (Automatic revocation of containment or seclusion
approval) provides that a containment or seclusion approval will
automatically end if the adult dies or in relation to the relevant service
provider, if the adult stops receiving disability services from that provider.
There is a requirement for the relevant service provider to notify the
tribunal if either the adult dies or the adult stops receiving services from
that service provider.
Division 3 of Part 2 of chapter 5B is titled, `Reviewing a containment or
seclusion approval'.
80ZA When containment or seclusion approval may be
reviewed
The new section 80ZA (When containment or seclusion approval may be
reviewed) provides that the tribunal may review the containment or
seclusion approval at any time on its own initiative or on the application of
any of the persons mentioned in 80ZA(b). The persons who may apply for
a review include: the adult, an interested person for the adult (such as a
family member, close friend or advocate), a relevant service provider to
which the approval applies, the chief executive (DSQ), the adult guardian
and the director of mental health (but only if the individual is subject to a
forensic order or involuntary treatment order under the Mental Health Act
2000).
80ZB Review process
The new section 80ZB (Review process) describes how the tribunal will
conduct a review of a containment or seclusion approval. The tribunal may
conduct the review in the way it considers appropriate. At the end of the
review, the tribunal must revoke the containment or seclusion approval
unless it is satisfied it would give the containment or seclusion approval if a
new application for approval was made. If the tribunal is satisfied it would
give the containment or seclusion approval, the tribunal may continue the
order giving the approval, change the order giving the approval or make an
order giving a new approval. The requirement of the tribunal to consider
the review application as if it were a new application, involves the tribunal
complying with sections 80V, 80W and 80X.
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Part 3 Guardians for a restrictive
practice matter
Part 3 of chapter 5B is titled, `Guardians for a restrictive practice matter'.
80ZC Application of pt 3
The new section 80ZC (Application of pt 3) provides that part 3 does not
apply if a containment or seclusion approval is in effect in relation to an
adult. This is because the new section 80X provides that if a containment
or seclusion approval is in effect, the approval of other restrictive practices
must be decided by the tribunal and form part of the containment or
seclusion approval.
80ZD Appointment
The new section 80ZD (Appointment) enables the tribunal to appoint a
guardian for a restrictive practice matter. A restrictive practice matter is
defined to mean a restrictive practice (general) matter and a restrictive
practice (respite) matter. These terms are further defined in section 80U. A
restrictive practice (general) matter refers to restrictive practices other than
containment or seclusion (ie. mechanical restraint, physical restraint,
chemical restraint and restricted access) that are used by a relevant service
provider in the provision of disability services, except for respite services
or community access services if these are the only disability services being
provided. A restrictive practice (respite) matter refers to the use of any
restrictive practice by a relevant services provider when the only disability
services being provided to the adult are respite services or community
access services.
Before a guardian for a restrictive practice matter is appointed, the tribunal
must be satisfied that:
� the adult has impaired decision capacity for the matter. This could
mean that the adult does not understand that his or her behaviour
causes harm to his or herself or others (or he or she can not control the
behaviour) and that there is a need to use positive strategies or support
and restrictive practices in a planned and coordinated response to
reduce or eliminate the behaviour and improve the quality of life of
the adult; and
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� the adult's behaviour has previously resulted in harm to the adult or
others; and
� there is a need for a decision about a restrictive practice matter; and
� without an appointment the adult's behaviour is likely to cause harm
to the adult or others and the adult interests will not be adequately
protected.
The tribunal may make the appointment on terms that it considers
appropriate, for example, restrict the appointment to just one type of
restrictive practice or require the guardian to provide regular reports to the
tribunal. The maximum period the tribunal may make the appointment is
12 months but the duration of the appointment is subject to sections 26
(Automatic revocation) and 31 (Appointment review process) of the GAA.
Section 26 provides that the appointment of a guardian ends upon the
happening of certain events stipulated in section 26. Section 31 provides
that upon the application to the tribunal by any of the persons described in
the new section 29(2), the tribunal will review the appointment of the
guardian for a restrictive practice matter and may renew, revoke or make a
new appointment or remove an appointee. Under section 31, the tribunal
must consider the review application as if the review application was a new
application, so that the tribunal must be satisfied of the matters set out in
the new section 80ZCD.
80ZE Requirements for giving consent--guardian for restrictive
practice (general) matter
The new section 80ZE (Requirements for giving consent - guardian
restrictive practice (general) matter) states the requirements for a guardian
for restrictive practice (general) matter when consenting to the use of a
restrictive practice (other than containment or seclusion) in relation to the
adult by a relevant service provider. This section does not apply when the
only disability services being provided to the adult are respite services or
community access services. In this circumstance, the new section 80ZF
applies.
Before the guardian for a restrictive practice (general) matter may consent
to the use of the restrictive practice (other than containment or seclusion)
by the relevant service provider, the service provider must develop a
positive behaviour support plan for the adult that incorporates the use of the
restrictive practice and the plan complies with the requirements of section
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123L of the DSA. The guardian for a restrictive practice (general) matter
may give the consent subject to conditions.
Before the guardian for a restrictive practice (general) matter gives the
consent, the guardian must be satisfied:
� the previous behaviour of the adult has resulted in harm to the adult or
others; and
� there is a reasonable likelihood that if the consent is not given, the
adult's behaviour will cause harm to the adult or others; and
� a positive behaviour support plan (as described in section 123L of the
DSA) has been developed for the adult and that this plan incorporates
the use of a restrictive practice other than containment or seclusion;
and
� the use of the restrictive practice in compliance with the positive
behaviour support plan is the least restrictive option to ensure the
safety of the adult or others; and
� the adult has been adequately assessed by an appropriately qualified
person in the development of the positive behaviour support plan (note
that section 123J of the DSA describes the assessment of an adult and
section 123K of the DSA describes who is an appropriately qualified
person); and
� the use of the restrictive practice is supported by the recommendations
of the appropriately qualified person; and
� if the restrictive practice is chemical restraint, the relevant service
provider has consulted with the adult's treating doctor when
developing the positive behaviour support plan; and
� the implementation of the plan will result in a reduction or elimination
of the risk of the adult's behaviour causing harm and an improvement
in the quality of life of the adult in the long-term; and
� the positive behaviour support plan includes appropriate arrangements
for the observation and monitoring of restrictive practices.
The guardian is also required to consider the following matters when
deciding whether to consent to the use of the restrictive practice by the
relevant service provider:
� the suitability of the environment in which the restrictive practice will
be used;
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� the terms of a forensic order or involuntary treatment order made
under the Mental Health Act 2000 and the views of an authorised
psychiatrist for the relevant authorised health service under that Act
about the use of the restrictive practice (if the guardian is aware of the
existence of the order);
� if the restrictive practice is chemical restraint, the views of the adult's
treating doctor about the use of the chemical restraint;
� the strategies and/or restrictive practices that have been previously
used to manage or reduce the behaviour of the adult and the
effectiveness of those strategies or practices; and
� the type of disability services provided to the adult.
80ZF Requirements for giving consent--guardian for restrictive
practice (respite) matter
The new section 80ZF (Requirements for giving consent - guardian for
restrictive practice (respite) matter) states the requirements for a guardian
for restrictive practice (respite) matter when consenting to the use of a
restrictive practice in relation to the adult by a relevant service provider. A
guardian for a restrictive practice (respite) matter has the authority to make
decisions about the use of any restrictive practice in relation to the adult by
a relevant service provider in the course of providing respite service or
community access services. Respite services and community access
services are defined in the DSA (section 123E) and involve the provision of
these services in the absence of any other disability services being
provided. This section does not apply if respite services or community
access services are provided as well as accommodation support (or another
disability service).
The guardian for a restrictive practice (respite) matter may consent to the
use of the restrictive practice by the relevant service provider if it is in
compliance with a respite/community access plan developed for the adult
in accordance with section 123ZP(2) of the DSA. The guardian for a
restrictive practice (respite) matter may give the consent subject to
conditions.
Before the guardian for a restrictive practice (respite) matter gives the
consent, the guardian must be satisfied:
� there is a reasonable likelihood that if the consent is not given, the
adult's behaviour will cause harm to the adult or others; and
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� the relevant service provider has complied with the DSA, part 10A,
division 5; and
� the implementation of the respite/community access plan will result in
a reduction or elimination of the risk of the adult's behaviour causing
harm and an improvement in the quality of life of the adult in the
long-term; and
� the respite/community access plan includes appropriate arrangements
for the observation and monitoring of the use of the restrictive
practice.
However, if the restrictive practice proposed to be used is chemical
restraint (fixed dose) (which means the medication is prescribed as at fixed
intervals and times), the guardian for restrictive practice (respite) matter
need only be satisfied there is a reasonable likelihood that if the consent is
not given, the adult's behaviour will cause harm to the adult or others.
Part 4 Short term approval of adult
guardian for use of particular
restrictive practices
Part 4 of chapter 5B is titled `Short term approval of adult guardian for use
of particular restrictive practices'.
This part enables the adult guardian to approve the use of containment or
seclusion (and other restrictive practices) under a short term approval. This
is not a true emergency situation where the service provider's duty of care
or the doctrine of necessity would authorise the service provider to take
action to protect the adult or others from harm. The provisions of this part
would apply where it is identified that there is a need to use containment or
seclusion for the longer term and there is no current containment or
seclusion approval. The maximum 3 month period of the approval will
allow the service provider sufficient time to arrange for an assessment of
the adult by appropriately qualified or experienced person/s; to develop a
positive behaviour support plan for the adult and have the matter
considered by the Tribunal. This part also includes provisions that provide
appropriate safeguards to protect the adult's rights and interests and allow
for accountability of decision-making by the adult guardian.
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80ZG Application of pt 4
The new section 80ZG (Application of pt 4) provides that part 4 does not
apply for an adult if there is a containment or seclusion approval in
existence. If the tribunal has already made an order giving approval for a
relevant service provider to contain or seclude an adult and the
circumstances change requiring a new approval, the service provider must
go back to the tribunal for a new approval and the adult guardian can not
give the short term approval. Also, this part does not apply where
containment and seclusion is proposed to be used for respite services or
community access services only and a guardian for a restrictive practice
(respite) matter is appointed (refer to sections 80ZD and 80ZF).
80ZH When adult guardian may give short term approval for
use of containment or seclusion
The new section 80ZH (When adult guardian may give short term approval
for use of containment or seclusion) describes the circumstances the adult
guardian must be satisfied of before giving short term approval for a
relevant service provider to contain or seclude an adult. The adult guardian
must be satisfied that the adult has impaired capacity for making decisions
about the use of restrictive practices in relation to the adult. This could
mean that the adult does not understand that his or her behaviour causes
harm to his or herself or others (or he or she can not control the behaviour)
and that there is a need to use positive strategies or support and restrictive
practices in a planned and coordinated response to reduce or eliminate the
behaviour and improve the quality of life of the adult.
The adult guardian must also be satisfied that the adult's behaviour has
previously resulted in harm to the adult or others and there is an immediate
and serious risk that if the approval is not given, the adult's behaviour will
cause harm to the adult or others. Further, the restrictive practice proposed
must be the least restrictive option to ensure the safety of the adult or
others. If it is possible to do so in the circumstances, the adult guardian
must also consult with the persons described in section 80ZH(2).
A short term approval may only be for a maximum period of 3 months. If
the adult guardian has given a previous short term approval for the adult,
the adult guardian may give another short term approval only if satisfied
that exceptional circumstances exist, such as there has been a change in the
service provider or location of the adult.
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A short term approval will end if the relevant service provider does not
comply with the conditions imposed by section 80ZI (that is the
requirement to develop a short term plan and any other conditions imposed
by the adult guardian) or the adult guardian does not approve the short term
plan under sections 80ZI and 80ZJ.
The relevant service provider or a person consulted under section 80ZH(2)
by the adult guardian or the relevant service provider may apply to the
tribunal to seek a review of the adult guardian's decision and the tribunal
may make an order that it considers appropriate.
80ZI Conditions to which s 80ZH approval is subject
The new section 80ZI (Conditions to which s80ZH approval is subject)
describes the conditions of a short term approval given by the adult
guardian. The relevant service provider has 14 days after receiving notice
of the approval to give to the adult guardian a short term plan for the adult.
A short term plan is described in section 123ZM(2) of the DSA. The adult
guardian may also impose other conditions the adult guardian considers
appropriate.
80ZJ Adult guardian's decision about whether to approve short
term plan
The new section 80ZJ (Adult guardian's decision about whether to approve
short term plan) describes the requirements for the adult guardian after the
adult guardian has received a short term plan from the relevant service
provider pursuant to the requirement in section 80ZI. As soon as
practicable after receiving the short term approval, the adult guardian is
required to consider the short term plan and whether to approve the plan.
Before the plan is approved the adult guardian must be satisfied of the
criteria set out in section 80ZJ(3). The adult guardian is required to notify
the relevant service provider of the adult guardian's decision as soon as
practicable after making the decision. If the adult guardian does not
approve the short term plan, the relevant service provider may apply to the
tribunal and the tribunal may make an order that the tribunal considers
appropriate.
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80ZK When adult guardian may give short term approval for
use of other restrictive practices
The new section 80ZK (When adult guardian may give short term approval
for use of other restrictive practices) provides that if the adult guardian has
given a short term approval under section 80ZH (for containment and
seclusion) and the relevant service provider intends to use other restrictive
practices under a short term approval, the adult guardian is the
decision-maker who is to approve these other restrictive practices. Where
the relevant service provider only intends to use restrictive practices (other
than containment or seclusion) under a short term approval, the decision
maker is the chief executive (DSQ) (see part 10A, division 4, subdivision 4
of the DSA) or a guardian for a restrictive practice (general) matter, if this
guardian has already been appointed by the tribunal.
The matters the adult guardian must be satisfied of before approving the
other restrictive practices under a short term approval are the same as those
required for approval of containment and seclusion under section 80ZH.
The relevant service provider must also provide to the adult guardian a
short term plan (or amended short term plan) within 14 days of the
approval being given and the adult guardian must consider whether to
approve the short term plan in accordance with section 80ZJ. If the
proposed restrictive practice is chemical restraint, the adult guardian must
be satisfied that the relevant service provider has consulted with and
considered the views of the adult's treating doctor. Section 80ZK also
provides for the circumstances when the short term approval will end.
80ZL Right of adult guardian to information for making decision
The new section 80ZL (Right of adult guardian to information for making
decision) provides the authority of the adult guardian to access relevant and
necessary information for deciding whether to give approval under part 4
(for short term approval). The rights of the adult guardian to access
information are similar to those rights of a guardian to access information
under section 44 of the GAA. As the adult guardian is not acting as a
guardian when giving a short term approval, it is necessary for the adult
guardian to be able to access all relevant information and be fully informed
before the adult guardian makes the decision to approve the use of a
restrictive practice under a short term approval. This section provides that
the adult guardian has the right to all information that the adult would be
entitled to have if the adult had capacity and that is necessary to make an
informed decision.
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This section also provides that the person who has custody or control of the
information the adult guardian has requested must provide the information
to the adult guardian unless the person has a reasonable excuse. The adult
guardian has a right to apply to the tribunal should the person refuse to give
the information to the adult guardian as requested. It is a reasonable excuse
for a person to refuse to give the information to the adult guardian if the
information might tend to incriminate the person. However, the right to
information by the adult guardian overrides any restriction in an Act or
common law about disclosure of confidential information and claims of
confidentiality or privilege, including legal professional privilege.
80ZM Requirement for adult guardian to give notice of decision
The new section 80ZM (Requirement for adult guardian to give notice of
decision) provides that the adult guardian must give written notice of a
short term approval under part 4 to the adult, relevant service provider,
tribunal, chief executive (DSQ), a guardian for a restrictive matter (general)
matter for the adult and any other person the adult guardian has consulted
under section 80ZH(2). The notice to be provided must state the name of
the adult, the name of the relevant service provider, the terms of the adult
guardian's approval and reasons for giving the approval.
Part 5 Tribunal proceedings
Part 5 of chapter 5B is titled, `Tribunal proceedings'.
Division 1 of part 5 of chapter 5B is titled, `General'.
80ZN Relationship with ch 7
The new section 80ZN (Relationship with ch 7) clarifies which sections in
chapter 7 of the GAA apply to tribunal proceedings about restrictive
practice matters under chapter 5B. Chapter 7 contains provisions about
tribunal proceedings including procedures, applications, confidentiality
orders, dispute resolution and other matters. Most of the provisions in
chapter 7 will apply to tribunal proceedings that concern restrictive practice
matters under chapter 5B and those that do not apply have been specifically
excluded. Those sections that have been excluded are excluded because
they are not relevant for the purposes of making decisions about a
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restrictive practice matter or alternative provisions have been included,
which are set out below in divisions 2 and 3 of part 5 of chapter 5B.
Division 2 of part 5 of chapter 5B is titled, `Applications'
80ZO Who may apply for a containment or seclusion approval
The new section 80ZO (Who may apply for a containment or seclusion
approval) provides that the chief executive (DSQ) may apply to the tribunal
for approval of containment or seclusion and if the relevant service
provider is a DSQ funded non-government service provider, then the
application must be joint with this relevant service provider. For matters
involving the approval of containment and seclusion, the provisions of the
new chapter 10A in the DSA, require the chief executive (DSQ) to be
responsible for the assessment of the adult and development of the positive
behaviour support plan. Given this responsibility, the chief executive
(DSQ) will always be involved in applications to the tribunal for a
containment or seclusion approval.
80ZP Who may apply for appointment of guardian for restrictive
practice matter
The new section 80ZP (Who may apply for appointment of guardian for
restrictive practice matter) describes who may apply to the tribunal for the
appointment of a guardian for a restrictive practice matter. This includes,
the adult, an interested person for the adult (such as a family member, close
friend or advocate), a relevant service provider providing disability services
to the adult, the chief executive (DSQ), the adult guardian or the director of
mental health (but only if the adult is subject to an involuntary treatment
order or forensic order under the Mental Health Act 2000).
These two new sections will not prevent a person from applying to the
tribunal under section 115 of the GAA for a declaration, order, direction,
recommendation or advice in relation to an adult about a restrictive practice
matter. Also, section 154 will allow an application to be made to the
tribunal regarding the ratification or approval of the exercise of power by
an informal decision-maker.
Division 3 of part 5 of chapter 5B is titled `Other matters.'
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80ZQ Who is an active party
The new section 80ZQ (Who is an active party) describes who is an active
party for a proceeding under chapter 5B (Restrictive practices). This
section is a substitute for section 119 of the GAA, which by virtue of the
new section 80ZN does not apply to chapter 5B proceedings. Active
parties include: the adult, the applicant, the chief executive (DSQ), a
current guardian or administrator, a relevant service provider providing
disability services to the adult, the adult guardian, the director of mental
health (but only if the adult is subject to an involuntary treatment order or
forensic order under the Mental Health Act 2000) and a person joined as a
party to the proceeding by the tribunal.
An active party is given certain rights under the GAA, which are different
from an interested person or other party participating in a tribunal
proceeding. For example, an active party has a right to access documents
and information before and during a tribunal hearing and also has a right to
receive a copy of the decision and reasons for decision of the tribunal.
80ZR Interim orders
The new section 80ZR (Interim orders) provides for when the tribunal may
make an interim order under chapter 5B. This section is a substitute for
section 129 of the GAA, which by virtue of the new section 80ZN does not
apply to chapter 5B proceedings. The tribunal may make an interim order
if satisfied on reasonable grounds that there is an immediate risk of harm to
the adult or others and using the restrictive practice is the least restrictive
way of ensuring the safety of the adult or others. An interim order may be
made without a hearing and deciding the proceeding or otherwise
complying with the requirements of this Act. The period of the interim
order must not be more than 3 months. There is no provision to extend the
order beyond 3 months.
An interim order is unlike a short term approval that is made by the adult
guardian. For an interim order, the tribunal will have received an
application about the restrictive practice matter.
Part 6 Miscellaneous provisions
Part 6 of chapter 5B is titled, `Miscellaneous provisions'.
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80ZS Requirements for informal decision makers--consenting
to use of restrictive practices
The new section 80ZS (Requirements for informal decision makers -
consenting to use of restrictive practices) describes the requirements for
informal decision makers when deciding to consent to the use of restrictive
practices in certain circumstances. An informal decision maker is someone
within the adult's support network who makes decisions for the adult
without a formal appointment. This includes a member of the adult's
family, close friends of the adult or other persons the tribunal decides
support the adult. This does not include a paid carer for the adult as defined
in schedule 4 of the GAA.
An informal decision maker may, under the provisions of part 10A of the
DSA, consent to the use of the following restrictive practices by relevant
service providers:
� restricted access (other than in the course of respite services or
community access services). This is an approval under the main
scheme; and
� mechanical restraint, physical restraint or chemical restraint (fixed
dose) or restricted access during the course of respite services or
community access services.
Sections 80ZS(2) and (3) set out the criteria the informal decision-maker
must be satisfied of before consenting to the use of a restrictive practice.
One of these criteria includes the informal decision-maker complying with
the general principles in Schedule 1 of the GAA. Whilst section 11 of the
GAA provides that a person or other entity who performs a function or
exercises a power under the GAA must apply the general principles, it is
not clear that this section also applies to informal decision makers. This
new section will clarify that an informal decision maker must apply the
general principals when considering a decision to approve the use of a
restrictive practice.
Other criteria that the informal decision maker must be satisfied of include
that the adult's behaviour has previously resulted in harm to the adult or
others and if the consent is not given there is the reasonable likelihood the
adult's behaviour will cause harm to the adult or others. Also the restrictive
practice must be in compliance with the plan that has been developed by
the service provider for that respective restrictive practice and type of
service provided and if the plan is implemented there will be a reduction or
elimination in the risk of the adult's behaviour causing harm and the adult's
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quality of life will be improved. For the approval of restricted access, the
informal decision maker must also consider the terms of the forensic order
or involuntary treatment order under the Mental Health Act 2000, if aware
that an order is in existence.
When the disability service provided is respite or community access only
and the restrictive practice is chemical restraint (fixed dose), then the
requirements for the development of a respite/community access plan do
not apply.
80ZT Informal decision makers must maintain confidentiality
The new section 80ZT (Informal decision makers must maintain
confidentiality) describes the responsibility of an informal decision maker
who gains confidential information about an adult who has an intellectual
or cognitive disability because of their role under the new chapter 10A in
the DSA and the new chapter 5B of the GAA. The informal decision
maker must not disclose the information to anyone other than under the
provisions provided in the new section 80ZT(3).
80ZU Review of ch 5B
The new section 80ZU (Review of ch 5B) provides that chapter 5B is to be
reviewed by the Minister responsible for administering this Act in
conjunction with the review of the DSA by the Minister responsible for
administering the DSA under section 233A of the DSA. The review will be
conducted when the DSA is reviewed under section 233 of the DSA, which
is 5 years from commencement of the Act. It is intended that this review
will take place in 2010/11.
Amendment of s 82 (Functions)
Clause 23 amends section 82 to extend the functions of the tribunal to
include the giving of approvals under chapter 5B for the use by a relevant
service provider of a restrictive practice in relation to an adult to whom
chapter 5B applies and reviewing the approvals. This is a new function of
the tribunal created under chapter 5B.
Amendment of s 98 (Annual report)
Clause 24 amends section 98 to extend the matters the tribunal must
include in their annual report. The tribunal must now also report on the
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number of applications, approvals and orders that are made under the new
chapter 5B. This reporting requirement will assist the tribunal and other
agencies to assess and report on the use of restrictive practices by relevant
service providers.
Amendment of s 118 (Tribunal advises persons concerned of
hearing)
Clause 25 amends section 118 to extend the persons to whom the tribunal
must give a notice of hearing. Section 118 currently lists the persons who
the tribunal may provide a notice of hearing to. For a proceeding under
chapter 5B, as well as the people already referred to in section 118, the
tribunal must also provide a notice of hearing to the chief executive (DSQ),
the director of mental health (if the adult is subject to a forensic order or
involuntary treatment order under the Mental Health Act 2000, if the
tribunal is aware of the existence of the order) and a relevant service
provider providing disability services to the adult.
Amendment of s 174 (Functions)
Clause 26 amends section 174 to extend the functions of the adult guardian
to include the approval of a restrictive practice under chapter 5B, part 4.
This includes the giving of an approval to use containment or seclusion
(and other restrictive practices) under a short term approval. This is a new
function of the adult guardian created under chapter 5B.
Amendment of s 222 (Definitions for ch 10)
Clause 27 amends section 222 by providing for a new definition of `private
dwelling house'. The definition of private dwelling house is relevant for
chapter 10 of the GAA (Community visitors). Under chapter 10, a
community visitor has an inquiry and complaint function and will regularly
visit a `visitable site'. After a visit, the community visitor will prepare a
report to the chief executive regarding the various matters described in
section 224 of the GAA.
A visitable site is defined in section 222 of the GAA to mean a place, other
than a private dwelling house, where a consumer (adult) lives or receives
services and that is prescribed under a regulation. A `private dwelling
house' is defined to mean premises that are used, or are used principally, as
a separate residence for 1 family or person. As a result of this definition,
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when an adult lives alone and receives disability services, a community
visitor may not visit that private dwelling house.
However, there are a group of adults with an intellectual or cognitive
disability who receive disability services from a relevant service provider
and who live alone because of the nature of their behaviours. For some of
these adults it may be necessary for the relevant service provider to use a
restrictive practice and approval to use the restrictive practice under the
provisions of chapter 5B may be given. Under the current definition, the
community visitor may not visit the premises where these groups of adults
reside.
As it is considered important for the community visitor to visit these
premises to undertake their functions, the definition of `private dwelling
house' for the purposes of chapter 5B matters has been changed, so that it
will now include a private dwelling house where only 1 person lives. This
means that where a relevant service provider has been given approval or
consent to use a restrictive practice on an adult who lives alone, the
community visitor will be able to regularly visit that house to carry out the
community visitor's functions.
For those adults who live alone and are not subject to restrictive practices
approved under chapter 5B, the community visitor will not visit that private
dwelling house.
Amendment of s 230 (Reports by community visitors)
Clause 28 amends section 230 to extend the list of parties to whom the
chief executive may provide a copy of the community visitor's report. If
the restrictive practice is being used at the visitable site, the chief executive
may also provide a copy of the report to the tribunal, the guardian or
administrator for an adult in relation to whom the restrictive practice is
being used or the chief executive (DSQ). The community visitor's report
may contain useful and relevant information to inform decision makers
about the effectiveness and appropriateness of the use of restrictive
practices and therefore, this information should be provided to these
additional persons.
Clause 29 amends the GAA by inserting a new part 8 in chapter 12. Part 8
is titled, `Transitional provisions for Disability Services and Other
Legislation Amendment Act 2008'.
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Part 8 Transitional provisions for
Disability Services and Other
Legislation Amendment Act 2008
265 Powers of guardians--use of restrictive practices
The new section 265 (Powers of guardians - use of restrictive practices)
provides that a guardian who is appointed before the commencement of
this section and immediately before the commencement section had, in
accordance with the terms of the appointment, the authority to make
decisions for the adult about the use of a restrictive practice (as defined in
section 80U), may despite the provisions of chapter 5B continue to make
decisions for the adult about the use of the restrictive practice. However,
the authority of the guardian to continue to make decisions about the use of
a restrictive practice will end at the earlier of either the day when the
guardian's appointment is reviewed by the tribunal or 18 months from the
commencement of this section.
266 Short term approvals not to be given during transitional
period
The new section 266 (Short term approvals not to be given during
transitional period) provides that the authority of the adult guardian to give
a short term approval in accordance with chapter 5B, part 4 does not
commence until after 18 months from the date of commencement of this
section.
Amendment of sch 2 (Types of matters)
Clause 30 amends section 2 in schedule 2 which describes the types of
personal matters about which a guardian may make decisions. This clause
extends the types of personal matters to also include:
� a restrictive practice matter under chapter 5B; and
� seeking help and making representations about the use of restrictive
practices for an adult who is the subject of a containment or seclusion
approval under chapter 5B.
Chapter 5B enables the tribunal to appoint a guardian for a restrictive
practice matter. A guardian for a restrictive practice matter is subject to
strict requirements before they can make a decision about the use of a
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restrictive practice matter. Given the specific appointment and
requirements associated with this power, a new type of personal matter,
being `a restrictive practice matter under chapter 5B' has been included.
It is also considered necessary to include another type of personal matter,
that of `seeking help and making representations about the use of restrictive
practices for an adult who is the subject of a containment or seclusion
approval under chapter 5B'. A situation may arise where the tribunal has
given approval for the relevant service provider to contain or seclude an
adult and there is no guardian appointed to make decisions about other
matters for the adult or the adult has no advocate. If for example, the
tribunal determines that there is a need for a person to help the adult or
make representations on behalf of the adult in relation to the use of
restrictive practices, because there is no-one else appointed or available to
do this and the interests of the adult will not be protected without the
appointment, the tribunal may appoint a person to be guardian for the adult
to seek help and make representations about the use of containment or
seclusion. The person appointed guardian would be appointed by the
tribunal pursuant to the provisions of section 12 of the GAA. In
accordance with section 14(2) of the GAA, the adult guardian would only
be appointed as guardian if no other appropriate person was available for
that appointment. Family members and close friends of the adult would be
considered for appointment before the adult guardian.
Amendment of sch 4 (Dictionary)
Clause 31 amends schedule 4 (dictionary) to include the new definitions
referred to in the new section 80U for the purposes of chapter 5B.
�The State of Queensland 2008
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