Disability Inclusion (Restrictive Practices—NDIS) Regulations 2021

These regulations may be cited as the

Disability Inclusion (Restrictive

Practices—NDIS) Regulations 2021.

These regulations come into operation on the day on which

Part 6A of the Disability Inclusion

Act 2018 (as enacted by the

Disability Inclusion (Restrictive

Practices—NDIS) Amendment Act 2021) comes into operation.

In these regulations—

Act means the Disability Inclusion

Act 2018.

For the purposes of the definition of level 1 restrictive practice in section 23B(1) of the Act, the following restrictive practices are declared to be level 1 restrictive practices:

environmental restraints (other than environment restraints that are level 2 restrictive practices);

mechanical restraints (other than mechanical restraints that are level 2 restrictive practices);

chemical restraints (other than chemical restraints that are level 2 chemical practices).

A prohibited restrictive practice will be taken not to be a level 1 restrictive practice.

For the purposes of subregulation (1), preventing access by a prescribed person to an area they are not permitted to enter will be taken not to be an environmental restraint.

[Note: ExampleSuch areas might include staff rooms, staff storage areas and record keeping areas.]

For the purposes of subregulation (1), it is not relevant whether a restrictive practice is used in respect of a particular prescribed person or prescribed persons generally.

For the purposes of the definition of level 2 restrictive practice in section 23B(1) of the Act, the following restrictive practices and combinations of restrictive practices are declared to be level 2 restrictive practices:

seclusion (being seclusion of a kind declared under regulation 7 not to constitute detention of a person);

environmental restraint consisting of—

the use of electronic monitoring devices worn by a person (however described); or

the locking of external gates and external doors of residential premises (other than where such an act or omission constitutes the detention of a prescribed person); or

the continuous accompanying of a prescribed person by another person; or

the limitation of access to, or use of, a mobility device (including by failing to charge batteries, the application of brakes or otherwise rendering the device inoperative); or

the limitation of access to means of communication;

mechanical restraint that requires the use of force to apply;

physical restraint;

chemical restraint consisting of—

the administration of a drug by means of an invasive procedure;

or

the use of 2 or more psychotropic drugs (whether administered by or on behalf of the same registered NDIS provider or otherwise); or

the use of more than 5 different drugs (whether administered by or on behalf of the same registered NDIS provider or otherwise);

or

hormonal manipulation;

the use of more than 5 level 1 restrictive practices in respect of a particular prescribed person (whether by the same registered NDIS provider or otherwise).

A prohibited restrictive practice will be taken not to be a level 2 restrictive practice.

For the purposes of subregulation (1), preventing access by a prescribed person to an area they are not permitted to enter will be taken not to be an environmental restraint.

[Note: ExampleSuch areas might include staff rooms, staff storage areas and record keeping areas.]

Except where the contrary intention appears, for the purposes of subregulation (1), it is not relevant whether a restrictive practice is used in respect of a particular prescribed person or prescribed persons generally.

For the purposes of section 23B(2) of the Act, the following behaviour is prescribed:

causing damage to property, or an express or implied threat that damage will be caused to property (whether the property belongs to the person or any other person);

causing human biological material to come into contact with a person or object (whether by directly applying the material to the person or object or otherwise).

For the purposes of section 23C(1)(d) of the Act, the imposition of a condition requiring a prescribed person to obtain the approval of a specified person before they can leave premises is declared to be included in the ambit of that paragraph.

For the purposes of section 23C(1) of the Act, the following acts and omissions are declared not to constitute the detention of a person:

the locking of external gates and external doors of residential premises where NDIS supports and services are provided on a 24 hour basis to a prescribed person in circumstances where the prescribed person does not have such supports as may be reasonably necessary to enable the prescribed person to safely leave the premises at their discretion;

[Note: NoteSuch an act or omission may, however, amount to an environmental restraint.]

the temporary confinement (not exceeding 2 hours) of a prescribed person in a particular area where the confinement—

occurs in an emergency situation; and

is reasonably necessary to prevent serious harm being caused to the prescribed person or to another person; and

is for the purpose of de‑escalation or self regulation. Such an act or omission may, however, amount to seclusion.

For the purposes of section 23D(1) of the Act, use of the following kinds of restrictive practices is prohibited:

prone restraint;

supine restraint;

any form of restraint intended to restrict or affect a person's respiratory or digestive function;

forcing the head of a person forward onto the person's chest (other than that occurring incidentally in the course of using level 1 or

2 restrictive practices);

any form of restrictive practice that involves or includes the deliberate infliction of pain or discomfort (including the hyperextension of joints, or the application of pressure to the chest, of a person) to secure compliance;

any other kind of restrictive practice declared by the restrictive practices guidelines to be a prohibited restrictive practice.

In this regulation—

prone restraint means the restraint of a person by forcing the person into a face down position;

supine restraint means the restraint of a person by forcing the person into a face up position.

For the purposes of section 23H(3)(b) of the Act, the following consultation is required:

consultation with people who have lived experience of the use of restrictive practices;

consultation with the following persons and bodies:

NDIS Quality and Safeguards Commission;

Disabled People's Organisation Australia;

National Disability Services;

Disability Australia Consortium;

Children and Young People with Disability Australia;

Carers SA;

South Australian Council on Intellectual Disability;

Our Voice SA.

For the purposes of section 23H(3)(c) of the Act, the

Minister must take reasonable steps to ensure that Aboriginal and Torres Strait

Islander people, and people from cultural and linguistically diverse backgrounds, are able to make submissions and take part in any consultation undertaken for the purposes of preparing, varying or substituting the restrictive practices guidelines.

For the purposes of section 23I(1) of the Act, the following qualifications and experience are prescribed:

tertiary qualifications relevant to the functions of the Senior

Authorising Officer under the Act (such as allied health, nursing, education, law, or a disability‑specific or behaviour‑specific discipline);

experience and knowledge in leading human services system reforms and initiatives.

For the purposes of section 23L(1) of the Act, the following qualifications and experience are prescribed:

tertiary qualifications relevant to the functions of an Authorised

Program Officer under the Act (such as allied health, nursing, education, or a disability‑specific or behaviour‑specific discipline);

extensive experience and knowledge in the planning, development, implementation, evaluation and monitoring of behaviour interventions and supports.

For the purposes of section 23N(8) of the Act, the following requirements must be complied with:

a written notice under that subsection must contain the following information:

the name of the prescribed person; and

the name of the prescribed NDIS provider; and

the time and date on which the restrictive practices, or the period during which, the restrictive practices were used; and

information setting out the nature of the restrictive practices used; and

information setting out the reason the restrictive practices were used; and

information explaining the operation of Part 6A

Division 6 of the Act, and may contain such other information as the prescribed NDIS provider considers appropriate;

a written notice under that subsection must be given as soon as is reasonably practicable after using the relevant restrictive practice;

in the case where a restrictive practice is used in relation to a person over a period not exceeding 3 months, a written notice under that subsection may cover the entire period;

in the case where more than 1 restrictive practice is used in relation to a person, the written notices required under that subsection may be combined into 1 notice;

the prescribed NDIS provider must, as far as is reasonably practicable, ensure that a written notice under that subsection is given to a prescribed person in a form that is accessible to the prescribed person.

Pursuant to section 23N(10) of the Act, an Authorised

Program Officer who authorises the use of level 1 restrictive practices in relation to a prescribed person must, on or before 30 June and

31 December in each year, cause a written notice to be given to the

Senior Authorising Officer setting out—

the name of the Authorised Program Officer and the relevant prescribed NDIS provider; and

the number and nature of restrictive practices that were authorised during the preceding 6 months; and

such other information as may be required by the Senior Authorising

Officer.