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When does restraint become abuse… The United Nations are currently undertaking investigations into abuse of children with disabilities in a number of locations around Australia. Here, an article from The Age offers more information:http://www.theage.com.au/national/un-asked-to-investigate-abuses-of-disabled-students-in-australian-schools-20160720-gq9yei.html. Abuse in care also hit the headlines this week following vision aired on the ABC program ‘four corners’ from the Don Dale Youth Detention Centre. A criminal investigation enquiry is ensuing (http://www.abc.net.au/news/2016-07-25/four-corners-evidence-of-kids-tear-gas-in-don-dale-prison/7656128). I have been asked to provide commentary on the above by a number of organisations and hence, saw the need to provide some objective information on what this is based around.
The Department of Human Service’s 2014 report entitled “National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Service Sector further breaks this down to specify the various forms of restraints which have been/are used throughout Australia, which include:
“The sole confinement of a person with disability in a room or physical space at any hour of the day or night where voluntary exit is prevented, implied, or not facilitated.”
“The use of medication or chemical substance for the primary purpose of influencing a person’s behaviour or movement. It does not include the use of medication prescribed by a medical practitioner for the treatment of, or to enable treatment, of a diagnosed mental disorder, a physical illness or physical condition.”
“The use of a device to prevent, restrict or subdue a person’s movement for the primary purpose of influencing a person’s behaviour but does not include the use of devices for therapeutic or non-behavioural purposes. For example, purposes may include the use of a device to assist a person with functional activities, as part of occupational therapy, or to allow for safe transportation.”
“The sustained or prolonged use or action of physical force to prevent, restrict or subdue movement of a person’s body, or part of their body, for the primary purpose of influencing a person’s behaviour. Physical restraint is distinct from the use of a hands-on technique in a reflexive way to guide or redirect a person away from potential harm/injury, consistent with what could reasonably be considered the exercise of care towards a person.”
“A restrictive intervention in relation to the person that consists of the modification of an object, or the environment of the person, so as to enable the behavioural control of the person but does not include a personal restriction”.
Regulation of such practices is of course, vital. Where it becomes convoluted however, is the significant inconsistencies in these regulations across jurisdictions and the related legal framework being remarkably complex. There has been a push by federal, state, and territory governments to establish a nationally binding legal framework for the use of restraints in the disability sector. However, this national framework only seeks to regulate their use, and does not endeavour to discourage their use. Below is state/jurisdiction-specific information (summary) pertaining to this. A huge thank you to my colleague Matt Shaw for his research. Should you wish to obtain a copy of the full research undertaken per jurisdiction, please email hello@autismswimaustralia.com.au
The use of restraints within the ACT is regulated by the Mental Health Act (2015). It is the responsibility of the person in charge of the facility within which a person resides/is detained to immediately contact the public advocate to register and report any use of restraints in relation to the treatment of a person. Only authorised officers have the right to use restraints in relation to the treatment of a person. If restraints are used at any time a record must be kept of its use in the person’s personal file.
Restraints may be used in relation to the treatment of a person only within the limits of that which is reasonably required to ensure safety. Unlike the ACT, carers and support staff are not required to register the use of restraints with a regulatory body, however, the use of restraints must be clearly documented and linked to objective outcomes by qualified medical and mental health practitioners. Furthermore consent from the individual or their legal guardian is required for the use of restraints in relation to the treatment of a person. See below a table from Section 3 of the NSW Department of Family and Community Services, Behaviour Support Policy, Version 4.0 (March 2012), which outlines the regulatory and legal specificities of the use of restraints in relation to people with disabilities.
Specific legal requirements was difficult to find throughout research (a concern in itself). Documents that were found did outline that interactions with people with intellectual disabilities should be conducted according to the principles of full inclusions and positive behaviour support.
Service providers must follow the 5 steps (listed below) in relation to the use of restraints in Queensland. Service providers must complete relevant documentation, consult with stakeholders, and contact relevant regulatory bodies (listed above) in order to gain approval for the use of restrictive practices. Provided that the consultation and application process is in motion, a service provider may use limited and proportionate restrictive practices until notified of the outcome by regulatory bodies in emergency situations.
Service providers must meet the stipulated requirements in relation to the use of restraints in South Australia. Service providers must complete relevant documentation, consult with stakeholders, and contact relevant regulatory bodies (listed above) in order to gain approval for the use of restrictive practices. Provided that the consultation and application process is in motion, a service provider may use limited and proportionate restrictive practices until notified of the outcome by regulatory bodies in emergency situations.
All efforts should be made by service providers to design and implement least restrictive behaviour support plans for use with their clients. Where it is deemed necessary to use restrictive practices, all recommendations should be included in the person’s individual behaviour support plan and an application should be made to the Senior Practitioner. The use of restrictive practices is to be recorded, reported, and reviewed by Authorised Officers and the office of the Senior Practitioner. Restrictive practices may be used in emergency situations only, but shall be reported to the Senior Practitioner within 7 days.
The code of conduct is technically a voluntary framework for the regulation for the use of restrictive practices, however conscientious service providers would be advised to closely follow its prescriptions. The use of restrictive practices shall be recorded in a person’s individual behaviour support plan and is to be reviewed by stakeholders. Service providers will determine how restrictive practices are used in the therapy of a person, however they are encouraged to minimise their use. In the event of an emergency, restrictive practices may be used, however they should be reported within 7 days of the incident to the Disability Services Commission.
In my work as an Autism Specialist, I see the use of Restrictive Practices on a daily basis; some of which have gone through appropriate approval processes and would be deemed necessary, many of which do not fit within the necessary criteria. Part of our ethical conduct as Specialists, is to put necessary reforms in place, including but not limited to:
Thorough Positive Behaviour Support interventions, we have recently been able to remove the cranial helmet/protective headgear of a self-injurer, who has worn this permanently for 8 years. Other such examples include:
In terms of physical restraint, one of the driving motivations in becoming a Strategies of First Resort Trainer, was knowing the statistics on Positional Asphyxia. Positional Asphyxia can be described as death as a result of body position that interferes with one’s ability to breath. This article offers one heart-wrenching story: https://100r.org/2014/10/terminal-restraint-disabled-adults-killed-when-caretakers-pile-on/ A combination of recent national initiatives provide a timely opportunity to consider (and hopefully operationalize) a national approach to restrictive practice reform. These initiatives include The National Framework; the development of a national quality and safeguards system for the National Disability Insurance Scheme (NDIS); and the National Seclusion and Restraint Project. Restrictive practice in itself brings complexities, which need not be exacerbated by bureaucracy and legislative discrepancies. If you would like to know more, please email us at hello@autismswimaustralia.com.au
https://www.alrc.gov.au/publications/8-restrictive-practices/restrictive-practices-australia
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Erika Gleeson
