8.1
This chapter discusses the evidence received during the inquiry in relation to the Commission's behaviour support function and regulation of restrictive practices.
8.2
Key concerns raised in evidence included:
concerns regarding difficulties in obtaining behaviour support plans, which can lead to increased compliance and reporting burdens on providers offering behaviour support services; and
concerns that there needs to be more coordination across jurisdictions and service systems in relation to the regulation of restrictive practices.
The Commission's behaviour support function
8.3
Section 181H of the National Disability Insurance Scheme Act 2013 (NDIS Act) sets out the Commission's behaviour support function. In accordance with this function, the Commission has responsibilities to 'provide leadership in relation to behaviour support, and in the reduction and elimination of the use of restrictive practices, by NDIS providers'.
8.4
At one of the committee's public hearings, Ms Romola Hollywood, then with People with Disability Australia, outlined some of the concerns held by people with disability and their representatives with respect to the use of restrictive practices:
…restrictive practices can encompass a range of restrictions to behaviour. It can involve physical and chemical restraints. It can also be the way in which the environment is designed to restrict a person's movement or engagement with others. The concern is that restrictive practices are overused and that often it's a quick way of managing behaviour. The challenge with restrictive practices is that they should be used only as an absolute last resort and, where this occurs, people with disabilities should be provided with processes of consent and there should also be rigorous review processes in place.
Key concepts
8.5
The Commonwealth and state and territory governments have committed to taking a national approach to reducing and eliminating the use of restrictive practices by disability services providers, under the National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Service Sector (National Framework).
8.6
Restrictive practices are defined in the NDIS Act to mean any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with disability. These interventions are most likely to be used in the context of providing support to people with disability who display 'behaviours of concern'.
8.7
The National Framework describes 'behaviours of concern' as 'behaviours of such intensity, frequency or 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'. The National Framework sets out an approach to increasingly provide individualised 'behaviour support' for people with disability, 'with the overall objective of reducing the occurrence and impact of challenging behaviour and the use of restrictive practices'.
8.8
Under the NDIS Quality and Safeguarding Framework, the Commonwealth has a national function of providing oversight over restrictive practices, which the NDIS Act vests in the Commission. The NDIS Act and Rules made under the Act also impose conditions of registration on NDIS providers delivering specialist behaviour support services and providers implementing behaviour support plans that contain regulated restrictive practices.
8.9
The Quality and Safeguarding Framework provides the following descriptions of concepts in the regulation of restrictive practices: 'Positive behaviour support', 'Positive behaviour support plan' (PBSP) and 'Positive behaviour support practitioner':
Positive behaviour support
A range of proactive strategies implemented to identify and address the underlying causes of behaviours of concern through an individual functional behavioural assessment and development of a positive behaviour support plan. Positive behaviour support strategies may include implementing changes to the environment and psychological interventions such as cognitive behavioural therapy.
Positive behaviour support plan
A positive behaviour support plan for a person with an intellectual or cognitive disability is a plan that describes the strategies to be used to:
(a)
meet that person’s needs
(b)
support that person’s development of skills
(c)
maximise opportunities through which that person can improve their quality of life
(d)
reduce the intensity, frequency and duration of behaviour that causes harm to the person or others.
The plan should also specify the conditions under which restrictive practices (if required) may be used.
Positive behaviour support practitioner
Someone who has been approved as an NDIS registered provider to provide complex behaviour supports to NDIS participants. Will have to demonstrate the ability to meet competency requirements relating to the development, implementation, review and monitoring of the positive behaviour support plan.
8.10
States and territories retain responsibility for authorising restrictive practices in their jurisdictions, the use of which is then regulated by the Commission. This is recognised in the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018, which impose conditions of registration on NDIS providers in relation to the use of 'regulated restrictive practices'. Regulated restrictive practices are defined in these rules and include the use of seclusion, as well as chemical, mechanical, physical and environmental restraint. The Rules set conditions requiring that:
restrictive practices are not to be used if they are prohibited in the relevant state or territory;
the use of restrictive practices is undertaken in accordance with state and territory authorisation processes and a PBSP; and
providers report the use of a restrictive practice to the Commissioner.
8.11
National oversight of restrictive practices by the Commission is a function separate to the Commission's role in monitoring reportable incidents, which includes reporting on the unauthorised use of restrictive practices. However, incident reporting informs the Commission's oversight of this area. The vast majority of reportable incidents received by the Commission since its establishment have been in relation to the unauthorised use of restrictive practices. For example, during the period 1 July 2020 to 30 June 2021, of 1,044,851 reportable incidents notified to the Commission, 1,032,064 incidents involved the unauthorised use of restrictive practices on people with disability.
Evidence received regarding behaviour support and restrictive practices
8.12
Submitters were on the whole supportive of the transition to national oversight by the Commission for behaviour support and restrictive practices. For example, according to the Northern Territory Office of the Public Guardian (NT OPG), the regulation of restrictive practices in the Northern Territory was ‘minimal’ prior to the operation of the Commission and the commencement of the NDIS Authorisations Act 2019 (NT). The NT OPG welcomed the Commission’s monitoring of the use of restrictive practices by service providers and its enforcement powers regarding the unauthorised use of restrictive practices.
8.13
The committee heard, however, that some participants had faced difficulties or delays in obtaining PBSPs, which both affected the quality of services received by the participants, and frequently led to considerable administrative burdens for providers. Submitters and witnesses also raised concerns about the lack of progress towards a consistent national approach to restrictive practices across jurisdictions, and complexities in coordination between NDIS service provision and other systems such as the health and mental health systems.
Difficulties obtaining and amending behaviour support plans
8.14
Submitters expressed a range of concerns with respect to difficulties in obtaining PBSPs for participants including that there is a shortage of behaviour support practitioners, and that delays may occur when requesting approval through other systems or in delayed or inadequate funding through NDIS plans.
Shortage of behaviour support practitioners
8.15
As noted above, Rules made under the NDIS Act require that providers implementing regulated restrictive practices must do so in accordance with a PBSP. These plans must be developed by a behaviour support practitioner, who is a person that the Commission considers suitable to undertake behaviour support assessments and to develop PBSPs that may contain the use of restrictive practices. During the transition period, the Commission provided for a process to provisionally determine suitability of behaviour support practitioners who had been notified to the Commission by behaviour support providers. From 1 January 2021, the Commission commenced assessing practitioners against its new Positive Behaviour Support Capability Framework.
8.16
The committee heard that, despite the provisional suitability assessments conducted by the Commission, there is a shortage of behaviour support practitioners who can develop PBSPs for participants who needed them. Submitters and witnesses noted that this impacts providers and participants in a number of ways, including through increased risk for participants, and increased reporting requirements for providers.
8.17
For example, National Disability Services (NDS) stated that there is a shortage of behaviour support practitioners to meet demand for their critical services. Moreover, problems with PBSPs may be exacerbated by NDIA processes, including a lack of funding available in plans for behaviour support:
If a provider has to use a restrictive practice on a participant who does not have a BSP in place, the development of one is initiated. This requires an allocation of funding in a plan.
The participant will, in this instance, need to request a plan review, which involves a delay. Once funding has been secured, there will be another delay while waiting for an appointment with a behaviour support practitioner and the development of a BSP (which may then require the training of the staff who will implement it).
Until this happens, every single use of a restrictive practice must be reported (once a BSP is in place, the use of authorised restrictive practices is done monthly).
8.18
The Mental Health Community Coalition ACT (MHCC ACT) also stated that a lack of registered specialist behaviour support providers makes it difficult to quickly obtain PBSPs for participants and this can put participants, carers and providers at risk.
8.19
The Mental Health Council Tasmania (MHCT) similarly indicated that there is a shortage of behavioural support practitioners in Tasmania, which contributes to lengthy approval timeframes for PBSPs. The MCHT expressed concern that, while waiting for a PBSP to be approved, NDIS providers must ‘continue to weigh up duty of care to the NDIS participant versus the NDIS participant’s choice and control’.
8.20
Connectability Australia (Connectability) reported issues arising from practitioners failing to update PBSPs due to unmanageable caseloads:
We have seen an increase in the number of unauthorised restrictive practices as a result of a medication change and the Practitioner has advised that ‘they don’t have time to update the plan within the time frame’ so ‘we will just have to report it to the Commission.’ This has occurred on a couple of occasions and mostly from Practitioners who are employed by large organisations as they say their caseload is too big and they don’t have enough time to deal with the paperwork.
8.21
Speech Pathology Australia (SPA) noted that a potential driver of the shortage of behaviour support practitioners is the fact that behaviour support requires registration with the Commission. Moreover, because behaviour support is classified as ‘high risk’, registration would require a more onerous certification audit. Some speech pathologists who have experience in behaviour support, and who may have provided such support under state-based systems, may not be able to register with the Commission due to higher audit costs and because they may not meet the specific competencies required by the Commission.
8.22
The Queensland Department of Communities, Disability Services and Seniors (DCDSS) observed that the behaviour support market in Queensland is generally struggling to meet demand and there is an insufficient number of providers outside government with the expertise to deliver behaviour support services, particularly those of a more complex nature. Further, while the inclusion of aged care providers within the scope of the Commission’s jurisdiction from December 2020 is a ‘welcome reform’, this will potentially further increase the number of PBSPs that are required to be prepared and increase demand within the sector.
8.23
DCDSS submitted that the following urgent action was required to ensure an adequate number of qualified behaviour support practitioners within the sector:
assess the skills and experience of providers against the competency framework, to provide states and territories with data in relation to the level of market capacity and capability within their jurisdiction
develop and implement a comprehensive education and training program to increase capability in relation to the use of behaviour supports and ensure the reduction and elimination of the use of restrictive practices remains a primary goal
develop the capacity to provide granular data in relation to the use of restrictive practices at a state level by type of restrictive practice to enable systemic identification of issues and areas for reform and compliance activity; and
develop a targeted strategy to incentivise providers to enter and actively engage in the behaviour support market.
Reporting and compliance burdens
8.24
The committee heard that the reporting and compliance burdens for providers implementing restrictive practices are high. This was particularly the case where the participant did not have a PBSP in place.
8.25
Dr Jennifer Torr observed that complying with the reporting requirements associated with restrictive practices via the portal is ‘apparently laborious and time consuming’, for example, data must be re-entered every time the dose of a restrictive medication is changed.
8.26
Anglicare SA stated that it ‘could be questioned’ whether the administrative burdens placed on providers through the Commission’s processes result in a commensurate increase in safeguarding of people with disability, particularly in relation to the reporting of applications of restrictive practices and the repetitive details required in behaviour support plans and incident reports.
8.27
Cara provided an example of the compliance burden associated with reporting on the use and administration of behaviour-altering medications which may be prescribed to address anxiety and anxiety-related behaviours:
If the medication is not mentioned in an existing [Positive Behaviour Support Plan (PBSP)], which is likely, or the participant does not have a PBSP as one was not previously required, the support provider is required to report to the Commission an Unauthorised Restrictive Practice at each administration of the medication until it is included in a PBSP. The participant may not have funding for a Positive Behaviour Support practitioner to write the PBSP, or if funding is available, may not contract a practitioner to develop their PBSP.
Nevertheless, the service provider is required to continue reporting an Unauthorised Restrictive Practice indefinitely until the medication and its administration is included in a PBSP, over which the service provider may not have purview. If the medication is taken daily, the Commission requires service providers to report an Unauthorised Restrictive Practice daily. The same scenario exists for other types of restrictive practices also.
8.28
The MHCT observed that the burden of reporting restrictive practices falls to the relevant provider, and in some cases may be on a daily basis. The MHCT indicated that this is the case even in less significant restrictive practices, and where the practice is in accordance with an agreed health management plan. For example:
As part of supporting [a] participant’s physical health, the [participant] has a diabetes management plan in place which has been agreed by the participant and by his Mental Health Case Manager, GP and family, where a can of soft drink is provided at agreed intervals throughout the day.
…[U]nder the NDIS practice standards, because there is not a Behaviour Support Plan in place yet (awaiting availability of practitioners) this is classified as a restrictive practice [and must be reported].
8.29
Connectability noted that restrictive practice is an area that has required a ‘massive’ documentation increase for providers with the introduction of the Commission. According to Connectability, this has led to some clinicians declining to provide services where a participant has a restrictive practice in their plan—on the basis that the work would be too time- consuming and their costs would not be covered.
Restrictive practices and Practice standards
8.30
The committee heard that registration requirements for specialist behaviour support practitioners and service providers implementing PBSPs are complex, and that compliance with requirements in the practice standards raised additional complexities.
8.31
The MHCT observed that there is ‘some incongruence’ in terms of how NDIS providers align their organisational duty of care to the standards relating specifically to choice and control, noting that this a particular concern with regard to participants with psychosocial disability. There may be incongruences between the state and federal legislation as regards restrictive practices—causing further ambiguity for providers.
8.32
The MHCT indicated that in some cases, it may be necessary to implement restrictive practices as part of a duty of care to the participant and on the advice of a medical professional. Generally, a PBSP would provide the necessary documentation to fulfil the NDIS practice standards. However, in some jurisdictions such as Tasmania, obtaining a PBSP is a lengthy process, and in the interim providers must continue to weigh up their duty of care to the participant against the participant’s choice and control.
8.33
The MHCT recommended that there be an exploration of ways to support NDIS providers in reducing the burden of reporting on restrictive practices as it relates to the duty of care to a participant on a case-by-case basis, and in recognition of state and federal legislation.
8.34
Autism Asperger's Advocacy Australia (A4) expressed ‘major concerns’ about the registration process for behaviour support, stating that it would be interested to know how the Commission ensures service quality or standards for the behaviour support providers that the NDIS endorses or promotes.
8.35
In this respect, A4 also expressed concern that there is ‘no real progress, nor discernible effort’, toward developing appropriate registration for behavioural clinicians or to promote awareness of quality behaviour support across the disability sector and the community more broadly.
Information available to providers and others
8.36
The committee heard that providers and others would like to receive more guidance on behaviour support from the Commission. For example, Anglicare SA observed that if the Behaviour Support newsletter was provided more regularly, this would be an efficient means of delivering information and advice to the sector and reducing the need for individual provider contact.
8.37
The MHCC ACT noted that providers find information on restrictive practices to be complex, and subject to change. MHCC ACT considered that providers are therefore facing difficulties in understanding their obligations, and that this allows for misunderstandings and leads to risks for participants, carers and providers.
Coordination across jurisdictions and service systems
State and territory governments
8.38
The committee heard that the retention of the role of state and territory governments in authorising the use of restrictive practices in their jurisdictions has caused additional complexities for providers and participants. A number of submitters called for more consistency across jurisdictions for the regulation of restrictive practices.
8.39
Stride Mental Health (Stride) observed that as the authorisation process for restrictive practices remains State-based, providers are subject to increased administrative burden, and must undergo additional training, where they operate across multiple jurisdictions. Stride asserted that the NDIS cost model allows little to no funding to be attributed to meeting the administrative and training requirements associated with restrictive practices, stating that this ultimately puts participants at risk.
8.40
Consultants Leighton Jay, Jessica Quilty and Ann Drieberg highlighted issues associated with differing definitions for restrictive practices across jurisdictions, and the lack of a coordinated national approach, stating:
The [Queensland] definitions are slightly different and don't apply to locking gates and doors in response to a skills deficit. [Western Australia] and [New South Wales] refer to a concept of 'non-intentional risk' as not requiring RP authorisation. None of these are exceptions from the Commission though. The States and Territories create confusion when they say they don't regulate but you need to check the Commission on your responsibilities there.
8.41
The consultants also noted that there is ‘almost no guidance’ from the Commission about restrictive practices despite there being a senior practitioner who provides oversight in this area. Moreover, while some jurisdictions have developed their own fact sheets, it is unclear whether these are reliable as they do not come directly from the Commission.
8.42
The Tasmanian Government raised similar concerns and noted that, since July 2019 (start of Commission operations in Tasmania), providers have indicated that there is some confusion in relation to the interface between national and state requirements, and that there has been an associated increase in, and duplication of, reporting requirements.
Information sharing and communication
8.43
The NSW Department of Communities and Justice (DCJ) called for better communication between the Commission and state authorities to ensure approaches to restrictive practice are aligned, particularly regarding lawful orders that constitute restrictive practices. The DCJ provided a case study to illustrate that inadequate policy and procedural guidance is available to inform providers’ approaches to lawful orders that constitute restrictive practice:
Mr B is a 35-year-old man with a cognitive impairment relating to a traumatic brain injury that occurred when he was 17. Mr B has a diagnosis of substance use disorder and is currently under conditions from the Mental Health Review Tribunal relating to four counts of aggravated sexual assault. Mr B’s conditions include the requirement for him to access the community only with support staff or family members.
Mr B’s core support provider was not registered to implement restrictive practices and queried whether this requirement constituted an environmental restraint. Clarification was sought with the Commission, including the need for the provider to be registered and whether they would be considered to be implementing the practice.
The Commission responded that it does constitute an environmental restraint and that the provider would require registration. The NSW Central Restrictive Practices Team provided conflicting advice that the core support provider is not responsible for, or implementing, the environmental restraint and therefore does not require registration.
8.44
The ACT Government observed that it is unable to provide support or adequate safeguards in authorising restrictive practices as it does not have sight of the unauthorised restrictive practices being reported for Territory citizens. In this respect, the ACT Government noted that the Commission retains vital intelligence for jurisdictions on emergency uses of restrictive practices and other trend data which would support a closer working relationship between the ACT and the Commission to achieve common goals.
Engagement with other sectors
8.45
The committee also heard that further coordination is necessary between the Commission and other service sectors that administer restrictive practices, as well as the health sector in relation to engaging with practitioners who prescribe medications that may be classified as restrictive.
8.46
For example, the Royal Australian and New Zealand College of Psychiatrists (RANZCP) submitted that there is a ‘disconnect’ between the health and disability sectors, which has resulted in NDIS participants receiving behaviour supports being supported and regulated separately from the mental health sector. The RANZCP indicated that this may create difficulties in terms of access to medication for people with disability—for example, in cases where regulatory requirements result in medications being delayed or ceased.
8.47
The committee also heard that the Commission had failed to communicate with general practitioners in relation to changes to the regulation of restrictive practices. Connectability noted:
We have had a lot of issues with GPs giving a diagnosis that said it was intellectual delay and, therefore, it was deemed a restrictive practice. I did actually ask someone at the commission, 'Did you have any consultation with the GPs over what was coming in regard to the changes in legislation?' The answer I got then was no. We do have… some GPs and practitioners who will refuse to engage with anyone who has a restrictive practice. There's even one GP who flat out refused to acknowledge that the commission was there and that there were restrictive practices in place. I think for us education with the GPs could have been a bit better.
8.48
Dr Jennifer Torr, a consultant psychiatrist, similarly expressed concern that the restrictive practice framework operates in parallel to, and disconnected from, the health and mental health sectors. According to Dr Torr, this creates various difficulties associated with the management of medication in the restrictive practice framework. Dr Torr identified the following key issues:
Medications designated as restrictive practices by the Commission may not be restrictive when considered from a medical or clinical standpoint, as they are used to treat a condition rather than to control behaviour.
The Commission may not accept diagnoses provided by GPs.
The Commission appears to designate any use of an ‘off-label’ medication as a restrictive practice. However, clinicians often use ‘off-label’ medications in the normal course of treatment.
There is an inherent pressure for medications classed as restrictive to be ceased. This may create safety issues for people with disability who are using the medications as part of a course of treatment.
The restrictive practices framework does not capture excessive prescribing.
8.49
Concerns were also raised that classification of some medications as restrictive may lead to some participants being unable to obtain medication due to reporting and other bureaucratic requirements. Specific examples were raised in relation to medications for people with Autism Spectrum Disorder, and for children with neurodevelopmental conditions.
8.50
Proposed solutions to these issues included:
that the Commission should engage with a standing committee of medical experts on issues associated with the management of medication in the restrictive practices framework
the development of a framework for the interface between the Commission and the health and mental health sectors
greater collaboration between the NDIA, the Commission and the Health sector (and other key stakeholders) to help inform approaches to care for children with neurodevelopmental and behavioural concerns; and
management and treatment of behaviour supports in partnership with the mental health system.
Other matters
8.51
Other concerns raised in relation to the Commission's regulation of behavioural support and restrictive practices included:
that there is poor understanding in the sector about behaviour support requirements, behaviours of concern, and how communication difficulties may contribute to behaviours of concern
delayed and poor communication from the Commission in relation to restrictive practices during the transition period and
concerns that the Commission's behaviour support safeguards do not accommodate family centred approaches.
8.52
Additional concerns were raised in relation to the Commission's approach to its behaviour support function and whether this approach focusses too heavily on regulating instead of eliminating restrictive practices. For example, the First Peoples Disability Network stated that the Commission's remit means that it 'does not challenge or move to eliminate the systemic drivers of significant human rights breaches', but instead monitors compliance while states and territories continue to authorise restrictive practices, despite international calls for the practices to be eliminated.
8.53
Similar concerns were raised by Dr Astrid Bergen, a practitioner who had been involved in developing the Commission's competency framework for behaviour support specialists:
Sometimes I think the Quality and Safeguards Commission focuses a lot on the application of restrictive practices. The flip side of it is how you build people's capacity to use more proactive, humane strategies with clients. It's a double-sided coin, and you need to be looking in both directions. From a behaviour support specialist's point of view, they will check my behaviour support programs and I will get queries from them around them. They are looking at how services are being delivered, in my experience.
Commission view
8.54
In its initial submission, the Commission outlined its work with respect to restrictive practices since commencing operations:
The NDIS Commission has, as part of its behaviour support functions in section 181H of the NDIS Act, a role in assisting the States and Territories to develop a regulatory framework, including nationally consistent minimum standards in relation to restrictive practices.
The NDIS Commission has led work to support the achievement of national consistency as a priority. A set of draft principles for nationally consistent regulation of the use of restrictive practices has been developed and is now supported by all states and territories with the exception of Queensland, which has supported in principle. States and territories have completed assessments of their systems against those draft principles and, by the end of this calendar year [2020], will have completed roadmaps to achieve the application of those principles in each jurisdiction.
8.55
The Commission also noted that it had commenced compliance activity in relation to high numbers of reports of unauthorised use of restrictive practices, which, in the period 1 July to 31 December 2019 accounted for approximately 94 per cent of reports of reportable incidents. The Commission noted that, as part of the compliance exercise, it was seeking to understand factors including drivers behind the significant and increasing reporting of the unauthorised use of restrictive practices in jurisdictions where the Commission had been operating for two years, which, according to the Commission, meant providers had been given 'ample opportunity' to comply with new requirements. Noting anecdotal reports of challenges faced by providers associated with sourcing behaviour support and lack of funding in participants plans, the Commission was seeking to 'determine whether these or other matters are creating genuine impediments to compliance' and, if so, the Commission was keen to 'work to address these issues so that there is rapid and full compliance with these obligations on the part of registered providers'.
8.56
In September 2021, the Commission provided an update on this compliance activity:
The NDIS Commission assessed compliance with obligations imposed on registered NDIS providers under the NDIS (Restrictive Practices and Behaviour Support) Rules 2018 by requiring 509 registered NDIS providers that were reporting the repeated unauthorised use of restrictive practices to provide information and demonstrate compliance with the Rules. The information obtained is continuing to inform the NDIS Commission’s compliance activity in relation to unauthorised uses of restrictive practice. As at 30 June 2021, this activity has resulted in the issuing of:
four infringement notices;
42 remedial action instructions;
30 education letters; and
8.57
The Commission is also undertaking analysis of the use of unauthorised restrictive practices and behaviour support planning rates, which is due to be published at the end of 2021.
8.58
In May 2021 the then Commissioner also reflected on the national leadership work undertaken in the area of restrictive practices:
the commission has undertaken a very significant role in working with state and territory governments… which has been about working with the states and territories to achieve the intended goal of behaviour support systems that relate to the authorisation of restrictive practices in states and territories being consistent with a set of national principles that have been agreed by disability ministers so that the emphasis in restrictive practices is on not just the better management of those practices but the stated aspiration of all Australian governments, which is to reduce and ultimately eliminate the use of those practices.
Committee view
8.59
The committee notes that the regulation of restrictive practices and behaviour support is a complex area of the Commission's work involving coordination between different regulatory schemes and across different service sectors. This complexity is compounded by factors affecting the broader NDIS such as workforce shortages. Nevertheless, the imposition of restrictive practices presents the risk of systemic and serious incursions on the rights of people with a disability.
8.60
The committee is deeply concerned by the prevalence of unauthorised use of restrictive practices by NDIS providers, noting that over 1 million such incidents were reported to the Commission during the most recent reporting period, and that this affected 7,862 participants. While welcoming the significant actions already undertaken by the Commission, the committee is of the view that the Commission must play a more assertive role in upholding and protecting the rights of people with disability who may be subjected to restrictive practices. As also discussed in Chapter 4, this should occur through increased proactive compliance and enforcement activity, as well as further education for providers regarding the use of restrictive practices on people with disability.
Behaviour support practitioners
8.61
The committee is further concerned that a shortage of behaviour support practitioners is resulting in delays or an inability to put in place appropriate behaviour support plans for NDIS participants who are currently subject to repeated instances of unauthorised restrictive practices. Of related concern are reports that some participants are not receiving appropriate plan funding for behaviour supports. The committee therefore considers that a specific strategy needs to be in place to increase the availability of behaviour support services for NDIS participants.
8.62
The committee notes that shortages in the NDIS workforce are widespread, and that their drivers and the potential solutions are often complex and will require coordination between a range of stakeholders. However, the committee considers that the Commission's functions in relation to behaviour support mean that it is likely still the most appropriate body to lead work to increase the behaviour support workforce. In making this assessment, the committee notes the substantial work already undertaken by the Commission in this area, including the development of the Positive Behaviour Support Capability Framework and tools for assessment of behaviour support plans, in addition to the Commission's ongoing compliance work in this area. The committee also continues to review these matters in its Inquiry into the NDIS Workforce.
8.63
The committee recommends that the NDIS Quality and Safeguards Commission work with State, Territory and Commonwealth governments as a matter of urgency to develop a specific strategy to increase the number of behaviour support practitioners. This strategy should include specific measures to:
incentivise entry into behaviour support provision by practitioners and NDIS providers; and
increase the ability of suitably qualified and experienced allied health providers to offer behaviour support where appropriate.
Coordination between states and territories and other sectors
8.64
While full operation of the Commission only commenced in December 2020, evidence to the inquiry nevertheless highlighted that work to ensure national consistency in the regulation and elimination of the use of restrictive practices must be given appropriate priority by the Commission. A concerted effort will be required from all stakeholders to coordinate a cohesive and comprehensive national approach. This approach will also require clear communication and a commitment to information sharing between the states, territories and the Commission. The Commission's leadership role in this area requires it to undertake proactive coordination with the states and territories and to actively work with the disability community to enable the full realisation of the aims of the National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Service Sector.
8.65
The Commonwealth Government should also ensure that the Commission is adequately funded to progress this work in addition to its other functions and has more to say about the Commission's funding and resources in Chapter 9.
8.66
The committee also notes that states and territories regulate restrictive practices in a range of circumstances in addition to the provision of support to people with disability through the NDIS, and that, even in the context of NDIS supports, where medications are considered restrictive, this can involve overlap with the health, mental health and disability sectors. Evidence provided to the committee indicates that the Commission's work should extend to facilitate greater coordination between sectors involved in the administration of restrictive practice, particularly the role of medical practitioners and the health and mental health sectors.
8.67
The committee recommends that the NDIS Quality and Safeguards Commission formally include clinical oversight bodies for the health and mental health sectors in its national coordination work for the reduction and elimination of restrictive practices.
8.68
The committee recommends that the NDIS Quality and Safeguards Commission develop a framework that clarifies the responsibilities of Commonwealth, State and Territory bodies involved in regulating restrictive practices at the interface between the NDIS and the health and mental health sectors. This framework should encourage all relevant sectors to work together on how they might better support people with disability and include specific reference to the prescription of medications that may be classified as restrictive.
8.69
The committee recommends that the framework mentioned in Recommendation 22 include a protocol around information sharing on restrictive practices between the NDIS Quality and Safeguards Commission and State and Territory bodies.
8.70
The committee further recognises that the use of restrictive practices impacts the lives of people with disability within and outside of the NDIS. In this regard, the committee notes that the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission) is also reviewing the issue, particularly in relation to the use of chemical restraints. The committee also notes that the NDIS Quality and Safeguards Commission has been assisting the Disability Royal Commission including by providing written and oral evidence. The committee will continue to monitor the work of the Disability Royal Commission and review its recommendations and findings in relation to restrictive practices and other matters relevant to the work of the Commission through the committee's ongoing inquiries.