There are a range of therapeutic, behavioural management and other
disability practices that people with disability are subjected to every day in
Australian hospitals, schools and even their homes. If these practices were
applied outside the disability services context, many would be viewed as an
unlawful loss of personal rights and even, in some cases, as acts of violence.
The committee has received evidence from witnesses and submitters
detailing cases of decision-making removed from the hands of people with
disability, with regard to the medical treatments they receive, where they
live, their financial affairs, the inappropriate use of restrictive practices
in schools and disability services, as well as the inappropriate use of
guardianship arrangements to stifle family advocacy.
As mentioned in the previous chapter on lived experience, some of this
behaviour stems from the way people with disability are viewed and treated by
the broader Australian society. It is clear that when people with disability
are viewed and treated as different to other Australians, it becomes easier to
excuse behaviour that would otherwise be completely unacceptable.
A number of important concepts around decision-making will be examined
in this chapter. This chapter will also explore the consequences to individuals
of the loss of legal capacity. While these consequences are many, this chapter
will focus on the following:
definitions of legal incapacity;
therapeutic interventions which would be deemed assault in any
other context, otherwise termed 'disability specific lawful violence';
the appointment of a guardian as an alternative decision-maker;
the excessive use of restrictive practice; and
a person losing their 'credible witness status' in raising
allegations of violence, abuse or neglect, particularly in criminal
prosecutions (addressed in chapter six).
Defining legal incapacity
A fundamental principle of Australia's rule of law is that all adults,
and to some extent minors, have a right to make decisions that affect their
lives and to have those decisions respected. The Australian Law Reform
Commission (Law Reform Commission) has noted:
...the common law recognises—as a "long cherished"
right—that all adults must be presumed to have capacity until the contrary is
proved. Where capacity is contested at law, the burden of proof lies
with the person asserting the incapacity.
In some circumstances, a person is deemed to have a legal incapacity to
make their own decisions. Disability-related legal incapacity refers to:
[T]he level of cognitive ability that is required before a
person can lawfully do various things. Because lack of capacity can prevent
people from participating in many of the activities that form part of daily
life, alternative decision-making arrangements are necessary.
Although legislation varies slightly in each state and territory, the
principles that underpin a determination of legal incapacity are similar. Generally,
there is a distinctly binary approach to the determination of legal incapacity—that
is, a person is deemed to be either capable or not. In its report titled Guardianship:
Final Report, the Victorian Law Reform Commission explained:
Current Victorian guardianship law draws a sharp distinction
between those people who have capacity and those who do not. It does not cater
for different levels of cognitive functioning. At present, guardianship law has
only one response to the needs of people with impaired decision-making ability:
the appointment of a substitute decision maker to make decisions on that person's
found that guardianship laws relating to legal capacity need to be reformed to
allow 'people to participate to the greatest extent possible in decisions that
affect them'. This includes recognising that incapacity to make a decision may
be decision-specific, time-specific and support-dependent:
While some people may lose some or most capacity permanently—for
example, a person in the late stages of dementia—others may only temporarily
Similarly, an inability to make decisions in one area—such as
the management of money—does not necessarily mean that a person is unable to
make other decisions about other aspects of their personal circumstances, such
as decisions around health care or accommodation...
Some people who struggle to make a decision alone might be
capable of making their own decision with the support of a trusted person[.]
The Australian Cross Disability Alliance (Disability Alliance) has
pointed to Article 12 of the United Nations (UN) Convention on the Rights of
Persons with Disabilities (Disability Convention), which 'establishes that all
people with disability have full legal capacity'. The Disability Alliance went
on to assert:
The denial of legal capacity deprives people with disability
of basic human rights, including the right to give consent to medical treatment
and interventions, the right to control fertility, right to bodily integrity,
the right to liberty and security and the right to access to justice. The
denial of legal capacity for people with disability underpins human rights
violations, such as forced medical treatment and interventions, forced
sterilisation and abortion, the application of restrictive practices,
indefinite detention, denial of access to justice and forced living
The inquiry has received a great deal of evidence around abuse and
neglect that arises as a consequence of the loss of an individual's legal
capacity. The Law Institute of Victoria said:
...the denial of legal capacity (through substitute
decision-making regimes in many cases) is implicated in the existence and
continuation of (at least some forms of) the violence, abuse and neglect
against people with a disability that occurs in institutional settings.
The Queensland Aged and Disability Advocacy Service submitted that, in
their experience, abuse and neglect can be caused by substitute decision makers:
...not understanding the role of a substitute decision maker,
whether it is Enduring Power of Attorney (EPOA), Guardian or Administrator (all
are substitute decision makers—SDM). Lack of understanding results in
unchallenged authority exercised over the person by the SDM, resulting in an
abusive or exploitative relationship. For example, a common situation we
encounter is when the person is in a facility and not allowed to receive visits
or phone calls, or see an independent doctor. Although this behaviour
contravenes the general principles of the
Guardianship and Administration Act Queensland 2000 (GAA), it is
often condoned by residential facilities that are unaware that the decision
maker is in breach of their obligations.
At the heart of the issue of legal incapacity is the concept of
decision-making for a number of reasons. First, when decision-making is removed
from the hands of a person, it becomes easy for the decision-maker—whether it
be parent, carer, or departmental officer—to then make decisions on behalf of
that individual that may seem 'to be in their best interests' but may actually
be completely counter to the wishes of that person. Second, in every situation
where a person has been forced to cede their own autonomy to another, there is
the opportunity for abuse of that decision-making power. Finally, when the
erosion of control from people with disability is normalised it makes it easier
for society to accept that even those people with disability not subject to a
legal guardianship order can have their will subverted as happens with the use
of restrictive practices or forced medical treatments.
As discussed above, the current approach to those deemed to be legally
incapacitated or unable to make their own decisions is to provide a legal
guardian who will become a substitute decision maker. This is in line with
Australia's reservation regarding Article 12 of the Disability Convention which
relates to equal recognition before the law:
Australia declares its understanding that the Convention
allows for fully supported or substituted decision-making arrangements, which
provide for decisions to be made on behalf of a person, only where such
arrangements are necessary, as a last resort and subject to safeguards.
However, the UN Committee on the Rights of Persons with Disabilities (UN Disability
Committee) has published a general comment on Article 12 in relation to the use
of substituted decision-making:
On the basis of the initial reports of various States parties
that it has reviewed so far, the Committee observes that there is a general
misunderstanding of the exact scope of the obligations of States parties under
article 12 of the Convention. Indeed, there has been a general failure to
understand that the human rights-based model of disability implies a shift from
the substitute decision-making paradigm to one that is based on supported
The UN Disability Committee went on to recommend:
States parties must holistically examine all areas of law to
ensure that the right of persons with disabilities to legal capacity is not
restricted on an unequal basis with others. Historically, persons with
disabilities have been denied their right to legal capacity in many areas in a
discriminatory manner under substitute decision-making regimes such as
guardianship, conservatorship and mental health laws that permit forced
treatment. These practices must be abolished in order to ensure that full
legal capacity is restored to persons with disabilities on an equal basis with
The Law Reform Commission in its 2014 discussion paper titled Equality,
Capacity and Disability in Commonwealth Laws highlighted that
decision-making arrangements for people with disability take many forms along a
arrangements—usually involving family members, friends or other supporters;
pre-emptive arrangements—anticipating future loss of legal capacity through
appointment of a proxy, for example in enduring powers of attorney
(financial/property), enduring guardianships (lifestyle) and advance care
directives (health/medical); and
arrangements—where a court or tribunal appoints a private manager or guardian,
or a state-appointed trustee, guardian or advocate to make decisions on an
individual's behalf (guardians and administrators).
The Law Reform Commission report recommended shifting away from
'substitute decision‑making' where a representative makes decisions on a
person's behalf, to 'supported decision-making', where people with disability
are supported to make decisions for themselves. It suggested that reform of
Commonwealth, state and territory law be consistent with the following national
decision-making principles to 'recognise people with disabilities as persons
before the law and their right to make choices for themselves':
The equal right to make decisions—all adults have an equal
right to make decisions that affect their lives and to have those decisions
Support—persons who require support in decision-making
must be provided with access to the support necessary for them to make,
communicate and participate in decisions that affect their lives;
Will, preferences and rights—the will, preferences and
rights of persons who may require decision-making support must direct decisions
that affect their lives; and
Safeguards—laws and legal frameworks must contain
appropriate and effective safeguards in relation to interventions for persons
who may require decision-making support, including to prevent abuse and undue
In its submission, the Disability Alliance pointed out:
In September 2013 the CRPD Committee [UN Disability Committee]
made a recommendation in its concluding observations to Australia that the Law
Reform Commission inquiry should look at how Australian law and policy could be
brought into conformity with the CRPD including in areas such as informed
consent to medical treatment and access to justice.
Mr David Bowen, Chief Executive Officer of the National Disability
Insurance Agency, also spoke in
support of the Law Reform Commission's comments on a spectrum of
It is worth reflecting on the direction that that report is
trying to take away from an historic divide between assessing people as either
having or lacking legal capacity to one in which we recognise people's capacity
to speak on their own behalf on a spectrum and that even those people who are
most profoundly disabled and have limited ability to speak on their own behalf
nevertheless should have their wishes and aspirations and their concerns taken
into account without simply substituting somebody to make a decision for them.
Other evidence was presented to the committee on the need to retain
substitute decision-making in certain circumstances. JacksonRyan Partners
submitted that there would always be some people for whom their disability
meant they would be unable to participate in supported decision-making, and
substitute decision-making is a necessary safety net for those people.
The Law Council of Australia (LCA) gave moderate support to this
Council considers that as a last resort substituted decision-making under
Australian guardianship and administration laws are important elements in
safeguarding against abuse and neglect. However, the Law Council considers that
supported decision-making that emphasises the will and preferences of the individual should be utilised as much as possible.
However, Dr Linda Steele of the Law Faculty, University of Wollongong
told the committee:
...I think that even if we reach the decision that it is okay
to still have substituted decision making there is a separate question of: are
there some decisions that we should never let anyone make for someone else?
That might include particular interventions in people, for example,
particular medication or particular medical procedures such as sterilisation.
The committee agrees with the Law Reform Commission report and its
recommendations about supported decision-making. It is the committee's view
that while legislative reform is clearly a necessary step to effect these
reforms, more work needs to be done to investigate supported decision-making models
in Australia and oversee jurisdictions to ensure that the most sustainable form
of supported decision-making is implemented in Australia.
Disability specific lawful violence
The terms of reference for this inquiry provides the following definition
'violence, abuse and neglect' is broadly understood to
include, but is not limited to: domestic, family and interpersonal violence;
physical and sexual violence and abuse; psychological or emotional harm and
abuse; constraints and restrictive practices; forced treatments and
interventions; humiliation and harassment; financial abuse; violations of
privacy; systemic abuse; physical and emotional neglect; passive neglect; and
What this definition does not explicitly state, and which has been made
clear through evidence to the inquiry, is that many of these forms of violence
are considered by the health, legal and disability service sectors to be lawful
Many of the practices would be considered crimes if committed
against people without disability, or outside of institutional and residential
settings. However, when "perpetrated against persons with disabilities",
restrictive practices "remain invisible or are being justified"
as legitimate treatment, behaviour modification or management instead of
recognised as "torture or other cruel, inhuman or degrading treatment or
Dr Steele concurred with the premise that some disability
practices would, in other contexts, be considered crimes, and uses the term 'disability-specific
lawful violence'. Dr Steele argued that, as well as considering the legal
frameworks and practices to address and prevent violence, abuse and neglect,
the committee should also consider laws which explicitly permit and legitimise
violence, abuse and neglect of people with disability, generally in the medical
or professional care settings, which in any other context would be
considered unlawful violence. Dr Steele contended that these forms of violence include:
...constraints and restrictive practices and forced treatments
and interventions which are lawfully conducted pursuant to third party consent,
court or tribunal authorisation or civil or forensic mental health legislation.
This view was supported by the Hon Ms Kelly Vincent, a member of the
South Australian Legislative Council representing the Dignity for Disability Party:
It also appears that often in the case of people with
disabilities what would otherwise be recognised, quite clearly, as abuse is
believed to be a natural part of the support provision.
Legal capacity to consent to treatment is a major issue within
disability‑specific lawful violence. Dr Steele argued that generally,
non-consent is the boundary between lawful or non-lawful violence and abuse:
However, this is problematic in the context of people with
disability because it is their very perceived inability to consent by
reason of mental incapacity which has provided a legal opening to enable others
to determine what can be done to their bodies. Laws relating to court or
tribunal authorisation of third party consent, substituted decision making
schemes and civil and forensic mental health legislation all sit within this
Mr Kevin Cocks, the Queensland Anti-Discrimination Commissioner, made similar
statements but instead referred to 'structural violence', which he defined as:
...a form of violence wherein some social structures or social
institutions may harm people by preventing them from having their basic human
Mr Cocks also described the devastating impacts that structural violence
has on the lives of people with disability:
For me the term 'structural violence' is to act as an
umbrella to encapsulate many different forms of various social and
institutional failings that have real if not always immediately appreciable
consequences, and often quite devastating consequences in people's lives. This
is particularly true across cultures and time for people with disability.
People with disability are subject to multiple and aggravated forms of human
rights violations. They occur every day in every region of every state and
territory in Australia. Virtually every Australian with disability encounters
human rights violations at some point in their lives, and many experience it
every day of their lives. In Australia it is possible for people with
disability to die of starvation in specialist disability services, to have
life-sustaining medical treatment denied or withdrawn in health services, to be
raped or assaulted without any reasonable prospect of these crimes [being]
detected, investigated or prosecuted by the legal system, and to have their
children removed by child protection authorities on the prejudiced assumption
that disability equates to incompetent parenting.
People with an intellectual incapacity can be subject to guardianship
and financial administration orders to protect their health and welfare—this is
administered by tribunals and courts within each jurisdiction. In these
circumstances people with an intellectual incapacity are considered to have
legal incapacity to make autonomous decisions about their lifestyle, health,
accommodation, work and financial affairs.
Guardianship may be sought for people who have an intellectual disability,
psychiatric disability (like schizophrenia), neurological disability (like
dementia), developmental disability (like autism), brain injury or physical
disability that prevent that person from communicating their wishes.
Not all people with an intellectual disability have legal incapacity,
nor are all people with intellectual disability unable to make any decisions
about their lives. The Intellectual Disability Rights Service stated that
decision-making capacity should be considered on a spectrum between full
autonomy and substituted decision-making and 'in between is a scale of informal
supported decision-making that varies from time to time and from decision to
Further to this, 'supported or substituted decision-making do not require a
formal guardian appointed by order of a tribunal or court'.
A formal order of guardianship can be exercised by a person, a group of
people, the public guardian, an adult guardian or Public Advocate.
Different jurisdictions have different frameworks for how guardianship
is administered. For example, in many jurisdictions there is a public advocate
but in New South Wales (NSW) there is a public guardian. Public advocates have stronger
powers than public guardians. In 2010, a NSW parliamentary inquiry recommended
that NSW switch to a public advocate to enhance adult protective services. For
example, they could identify an adult with an intellectual disability and make
an application on behalf of that person to have a guardian appointed.
In NSW, the Civil and Administrative Tribunal (NCAT) determines
'applications about adults with a decision-making disability who are incapable
of making their own decisions and who may require a legally appointed
substitute decision maker'. Where NCAT deems that a person is incapable of
making their own decisions, it may decide to 'make a guardianship order to
appoint a private guardian (family member or friend) and/or the NSW public
guardian'. NCAT can also make decisions relating to consent, financial
management orders, and reviewing guardianship appointments.
The submission from the Disability Alliance put forward the proposition
that guardianship systems across Australian are different enough to cause
confusion and difficulty in challenging guardianship orders. The Disability
Alliance further contended that although there is inconsistency in how
guardianship laws operate, there are key common themes in that all of them
are in breach of Australia's international human rights obligations, and
guardianship can itself create environments where violence, abuse and neglect
Guardianship law and mental health legislation are examples
of current legislative frameworks that, by their very nature, give rise to the
perpetration of torture and ill-treatment of people with disability in
institutional and residential settings. State and territory guardianship and
mental health laws primarily regulate the area of legal capacity and substitute
decision-making in Australia. While state and territory laws in this area vary,
they all breach, are inconsistent with, or fail to fulfil Australia's obligations
under international human rights law, including for example Article 12 of the
Convention on the Rights of Persons with Disabilities (CRPD). These state and
territory laws provide different and inconsistent tests for assessing a person's
ability to exercise legal capacity, which leads to uncertainty, confusion and
inappropriate application of legal principles. There is no nationally
consistent legislation that outlines principles and provisions for assessing
what constitutes a valid decision that should be recognised by the law.
Moreover, existing legislation does not focus on measures
(such as supported decision making) that would enable or support a person with
disability to make decisions so that their decisions are recognised as valid
before the law.
In discussing systemic issues around guardianship, the North Australian
Aboriginal Justice Agency (NAAJA) presented evidence that Aboriginal and Torres
Strait Islander peoples are over-represented in the adult guardianship system,
with 50 per cent of people subject to guardianship being Indigenous, while
only representing 30 per cent of the population. NAAJA further stated:
...the number of people under guardianship in the [Northern
Territory] is 8 times as many as the next number of people under guardianship
in the next highest Australian jurisdiction (NSW).
NAAJA contended that this creates an imperative to ensure that Aboriginal
and Torres Strait Islander peoples' particular circumstances are taken into
account in developing guardianship systems, particularly for the high numbers
of Indigenous people living in remote communities or on traditional lands.
The Disability Alliance pointed to the over-representation of people
living in institutions in the guardianship system:
People with disability in institutional settings are more
likely to be subject to guardianship proceedings for the formal removal of
their legal capacity. This facilitates and may even authorise forced
Of particular concern, the committee heard that existing legal
frameworks do not recognise the role played by informal advocates, particularly
family members, when making decisions for or on behalf of people with
disability. Queensland Aged and Disability Advocacy Inc. (QADA) argued that the
main systemic response to abuse is to be 'protective', through the appointment
of a substitute decision maker.
The interplay between guardianship and informal advocacy is discussed in
greater detail in chapter eight.
In its report on legal rights for people with disability, the Law Reform
Commission recommended that the role of informal advocacy be respected. It advised
that where a representative is appointed to make a decision for a person who
requires decision‑making support, the representative 'must give effect to
what the person would likely want, based on all the information available,
including by consulting with family members, carers and other significant
people in their life'.
As discussed further in chapter six, the committee supports the
implementation of a supported decision-making model that recognises a graduated
continuum of legal capacity for people with disability. Within this model, the Law
Reform Commission has recommended that the 'role of persons who provide
decision-making support should be acknowledged and respected—including family
members, carers or other significant people chosen to provide support'.
Misuse of guardianship by
A common theme across multiple submitters, was that guardianship orders
are often misused by disability service facilities or other organisations to
streamline or create efficiencies in service delivery:
It is very significant, and yet we have very good
guardianship legislation in Queensland that says that the voice of the person
and their informal supporter should be taken into account. It often—I would say
more than often—does not happen that way. In instances where a service provider
does challenge that guardianship—in some cases it is a hospital. They want to move
the person out, they know that there is no other accommodation arrangement,
they say, 'We're going to send you to a nursing home', the person does not
have a capacity issue and says, 'No, I don't want to go', but they will apply
for guardianship anyway just to get them out of the hospital. And if a parent
is an informal supporter then quite often if they have encountered difficulties
with the service provider and there are restrictive practices involved they
will feel the need to seek guardianship just to have that authority—which they
should not have to do, because, even though it is not meant to strip authority
and autonomy from the person, in effect that is what happens in practice.
Everyone then deals with the guardian. If the service provider does not like
the decisions made by the guardian they will certainly challenge their
authority and seek to have them removed.
This experience was echoed by Mr Neal Lakshman of Speaking Up For You:
I had a gentleman who was in a nursing home. A social worker
put in an application for a guardianship. He [the subject of the guardianship
application] never knew that the hearing was on and then when he actually went
the tribunal found that he had [legal] capacity. If you do not go, it is
all—the other issue with some of the hearings is that of restricted practices.
All the psych reports, everything, are put in by [Disability Services
Queensland (DSQ)] psychs and [Occupational Therapists] and other persons. They
work for DSQ and DSQ wants the person to live in the facility because they do
not want them to live elsewhere because it is easier for them. So the
information going into the guardianship hearing is by the same organisation or
place where you are going to be living. I find that quite problematic.
Other submitters presented evidence that the guardianship system is
managed in favour of the needs of service organisations, instead of the needs
of people with disability or their families and advocates:
Many of our clients report that their doctor also has a
professional affiliation to the facility or the SDM. This results in a
violation of confidentiality toward the person with a disability. Rather than
keeping the information confidential to the person with a disability, there is
often a strongly perceived lack of impartiality by the treating doctor. This
can result in a report that aligns with the needs of the facility or the SDM,
rather than one that accurately reflects abilities of the individual with a
cognitive disability, or no report being produced at all. Often our clients
realize this and are reluctant to seek assessment from "their"
doctor. It results in difficulties in accessing reports, as often the person in
an institutional setting has difficulties accessing another doctor in the
community, without attracting more challenges from the institution.
Many of our volunteer advocates spend time trying to access
alternative medical reports from another independent doctor. This activity is
made more difficult when the SDM is unwilling to pay for a visit or report, which
is likely when the purpose of the report is to challenge their authority over
the person with a disability.
In her submission, Ms Julie Phillips wrote that she believed the close
working relationship with the Victorian Office of the Public Advocate (OPA) and
the Victorian Department of Health and Human Services (DHHS) was 'at times to
the detriment of people with disabilities':
However more importantly, the willingness of OPA to provide
guardians for people with disabilities could be seen to be assisting DHHS to
commonly make guardianship applications against parents, simply when the
parents will not agree with something DHHS intends to do to their family
In their submission, Communication Rights Australia and the Disability
Discrimination Legal Service presented similar evidence:
...a common mode of response is often a guardianship
application made for the individual in an attempt to bypass parents and appoint
someone who is more amenable to DHHS/contractors and their decision-making.
Regrettably, this might often be the Office of the Public Advocate Guardianship
Moreland Community Legal Centre discussed a number of cases where
guardians blocked lawyers or advocates access to individuals:
The lawyers contacted both the professional Guardian and
private Administrator to seek permission to visit the woman. She was granted
permission and booked an interpreter and together they visited the site. The
professional Guardian separately contacted the Aged care residential accommodation
provider and advised them that permission was not granted and as a result they
refused entry to both lawyer and interpreter. There was no alternative but to
make an application to VCAT (Victorian Civil and Administrative Tribunal) to
direct the Guardian to permit a professional visit.
These examples above have been presented by submitters as a small sample
of the cases of abuse of guardianship their organisations are faced with on a
The committee has received evidence detailing exclusionary
decision-making processes whereby the guardian makes decisions without
involving the individual in the process. Ms Julie Phillips notes that in
Victoria, guardians from the OPA 'can make decisions for people with disabilities
without meeting them and in direct defiance of family wishes'. Another issue is
that the DHHS will often argue for a public trustee, such as the OPA, to be
appointed as a guardian even when family members are capable and willing to
fulfil this function:
DHHS made a guardianship application in relation to
"Jane" who has an intellectual disability and severe language
disorder. The only reason for the application was that Jane's mother, Mrs
Smith, would not give her permission for Jane to be placed in an inappropriate
accommodation service. The track record of DHHS in relation to Jane had been
one of incompetence, and inability to effectively manage challenging
Mrs Smith has been asking for a Functional Behaviour Assessment
for approximately one year.
VCAT [Victorian Civil and Administrative Tribunal] helpfully
supported DHHS, as is often the case, and a Guardian from OPA was appointed.
Mrs Smith was not proven to be (or accused of being) anything other than a
caring mother who was attempting to uphold the rights of her daughter. Despite
not being able to find any significant fault with Mrs Smith, she was not given
guardianship rights, and they were awarded to OPA.
Cheryl McDonnell described to the committee the interactions she had
with the financial manager assigned to their daughter:
Our experience of dealing with [Terri's] case manager was
that she would make decisions on Terri's behalf regardless of what Terri wanted
or needed and regardless of what myself or Terri's siblings wanted for Terri.
Ms McDonnell described two circumstances in which Terri's guardian was
unable to make appropriate choices for Terri, even with Ms McDonnell and her
husband being there to advocate and help guide the guardian to what should be a
sensible decision with a sensible outcome.
In some cases, guardians are improperly influencing decisions relating
to medical treatment:
We have received two reports from members of the public
concerned that the nominated carer/guardian is abusive and that their capacity
to influence treating clinical teams formed part of the pattern of abuse and
control (such as influencing decisions about admission or discharge and
controlling access to advocates) In both cases, the consumers were male and
Western Australia has no domestic violence services for male victims of
domestic violence, nor domestic violence programs tailored to the needs of
mental health consumers.
One of the more disturbing pieces of evidence is the threat of forced
public guardianship as a means of enforcing silence and compliance on those
families or individuals who are deemed to be 'troublemakers':
Young people with disabilities and/or their families who make
complaints to disability service providers about abuse and neglect are often
ignored or ridiculed. Many are categorised as troublemakers, as unnecessarily
combative, or even mentally ill, for refusing to withdraw complaints about poor
treatment. Some are told that if they do not withdraw their complaints, the
service or government will apply or challenge for guardianship so that they can
have ultimate decision-making control over the young person’s life.
Youth Disability Advocacy Service related the story of "Jack"
and how the coercive threat of guardianship was held over him and his family:
"Jack", a 17-year-old male living in a Community
Residential Unit, who has autism and uses non-verbal communication, was
one-of-two people allegedly sexually assaulted by a new co-resident with a
well-known history of sex offending, not long after he moved in to the Unit.
The families of the existing residents made multiple complaints to the service
provider and to the DHHS about the inappropriate placement before the alleged
assault took place, but were dismissed as over-zealous and intolerant.
family were not informed by the service provider about the alleged assault but
from the family of the other victim, who needed medical attention for his
injuries. The staff member working at the time of the alleged assault did not
take steps to prevent the attacks, hiding himself in the locked staff area. He
was not dismissed by the service provider despite admitting negligence
"Jack's" family are lobbying to have him moved into more suitable
housing but must negotiate these new arrangements with the same DHHS staff who
have threatened to apply for guardianship if they persist with their
Another submitter wrote that guardianship relationships can become
overly 'functional' in nature, and guardianship laws are mis-used to gag
parents or advocates who complain:
From my experience, once a Guardianship Order is made, the
person simply becomes a commodity. The 'individual' ceases to exist. That
person is stripped of any human rights, freedoms or entitlements to interact
within the community or maintain family relationships as they would wish. The
protected person and the family and friends are also subject to legal action by
the Tribunal if they publicly identify the protected person and their
complaints whilst under a guardianship order –essentially a legal gag
clause. This outcome was NOT the intention of the legislation of the
Guardianship Act nor was it the outcome that the Principles and Guidelines of
the UNCRPD intended to achieve.
The loss of legal capacity has multiple flow-on consequences, one of
which is the appointment of guardianship. In many cases guardianship is a
positive protective measure, but in too many cases the appointment of a
guardian can have a severe negative impact on people's lives:
The guardianship process could be considered an abuse itself,
particularly because of the loss of rights it entails.
In more serious cases, guardianship could be sought in order to
enact abuse or neglect:
Evidence has shown that even well-meaning guardians can inflict
abuse or neglect through lack of understanding of their role or by being risk
The fact that a vulnerable person may be prevented through
guardianship arrangements from lodging a complaint is also a form of abuse. In
many cases, the prevention of reporting violence, abuse and neglect leads to
the indefinite perpetuation of inappropriate actions.
It is clear that the guardianship arrangements in all jurisdictions
require some reform, including improved guidelines on appropriate
decision-making through to oversight of the guardians themselves.
Parental guardianship issues
Parental issues around guardianship were also raised by different
submitters. Ms Marion Bright told the committee of difficulties she faced in
trying to advocate for her daughter, an adult with an intellectual impairment.
Ms Bright was the sole carer for her daughter, and did not obtain formal
guardianship, which impaired her capacity to seek information about her
daughter's case from the relevant government department:
He said: 'Oh, but this is very sensitive information. We have
to protect her rights.' Hello? What rights? Then he asked if I had
guardianship, and I said, 'No, I'm her mother.' He was being particularly
aggressive. Let me finish. I was shaking, but I thought, 'I can't say anything,
because I need this information, because I want to get justice for Lauren.'
Then he said, 'Oh, where does Lauren live?' I said, 'With me,' and then his
attitude changed completely and he told me, 'Oh, we get inquiries for freedom
of information all the time, and it's just families wanting money because they
find out that a person they've had nothing to do with has a lot of money.' That
had no relevance to me. Then, before I hung up, I said to him, 'So should I
look at getting guardianship?' He said, 'Oh, no; she lives with you.' I could
have thrown the phone through the wall. I was already distressed.
The NSW Office of the Public Guardian discussed the difficulties that
parents had when their children with intellectual disability reached adulthood,
which triggered the loss of parental legal rights to seek information or
advocate on their children's behalf without going through a formal guardianship
Attorneys-general across Australia have been in receipt of
representations from various groups suggesting that, when a person reaches the
age of 16 or 18, where their family have been their key source of support
historically, there would be some sort of automatic or streamlined conversion
of the parental responsibility into guardianship. I know for example that the
Victorian parliament considered that issue. But to my knowledge none of the
parliaments in any of the jurisdictions has actually agreed to provide some
sort of automatic guardianship to families in the absence of an evaluation of
Other evidence presented to the inquiry put forward the position that
even well-meaning guardians can have a negative effect on a person's life, due
to the different goals the guardian may have for the outcomes of decisions. Mr
Robbi Williams, Chief Executive Officer of disability consultancy firm JFA
Purple Orange told the committee:
Guardians will typically operate with the notions of safety
and duty of care uppermost in mind and will often have a bias towards more
conservative models of support that reflect that duty of care, rather than
those patterns of support that bring greater proximity to ordinary life
chances. The problem with proximity to ordinary life chances is that it comes
with risk. There is a risk in life. Anything that we try to undertake in life
will involve a modicum of risk. It is about how we manage that risk and stack
the odds in favour of success, rather than trying to avoid the presence of risk
However, strong evidence was received by the committee on the important
protective role that guardianship plays, particularly for people who lack
family or social supports:
This client was aged 47 and was in an aged-care facility and
had an intellectual disability, no speech and a physical disability. We
received the referral from a day service provider, who had the following
concerns: 'On two occasions, this client arrived with dry faeces in her pubic
area, which day staff observed during personal care routines.' They reported
these observations in the daily communication diary between their service and
the aged-care facility, but no action was taken to clean and dress the client
properly. There were signs of skin deterioration in the area and a distinct
lack of personal care...
...Our advocate investigated the matter and discovered that
this particular young person—47, in an aged facility—had no family support
network, did not have the capacity to make informed decisions, did not have a
legal guardian and had been taken off the electoral roll by the aged-care
facility. The care plan did not stipulate how to shower or what equipment to
use during showering and dressing. The client had not received medical
attention for her swallowing difficulties. She had not been provided with a
half-price, multipurpose taxi program card. She did not have any support to
access the community on weekends. She did not have a companion card. She had
untreated rashes on her arms and legs. She had long periods of time where she
had not been seen by a GP because there was no backup plan when the GP who was
assigned to the nursing home was on leave. She had clothing that was communally
laundered, but her items were not named. She had a bowel chart that showed long
periods of time when there was no bowel movement recorded. She was being left
in front of the TV while the elderly residents were being fed their evening
Three of my advocates worked on this case over a period of
time. We eventually addressed many of the problems by applying to the Victorian
Civil and Administrative Tribunal and getting a guardianship order in favour of
the Office of the Public Advocate. Unfortunately, the client passed away four
months after that guardianship order was enforced by VCAT. She died from
medical complications associated with the swallowing and the chest infections.
Evidence presented to the committee shows that in many cases, parents of
people with disability want to maintain a continued parental interest in the
welfare of their children well into their adulthood However, the committee has
heard that what appears to be an obvious parental expectation, is in many cases
The committee sees a need for cross jurisdictional work, to develop a
national system whereby parents of people with disability, who require advocacy
or decision-making assistance, have that role formally acknowledged in some
capacity when their children turn eighteen years of age.
Financial abuse and neglect
The committee received a number of submissions regarding financial abuse
of people with disability, much of which was not relevant to the terms of
reference because it did not relate to people living in institutions or
residential care facilities. However, given the volume of evidence this is
clearly an issue of great concern in the community.
In 2014, it was reported that staff at the Australian Capital Territory
(ACT) Public Trustee had allegedly embezzled $1.65 million from people whose
assets it managed in trust, including those subject to guardianship orders.
This is not an isolated case, there are many other examples of public trustees or
public guardians with a financial function acting improperly and abusing their
positions of trust, including in South Australia
and the Northern Territory:
Mr G is from a remote community and around three years ago
the Public Guardian [PG] was appointed as his financial manager. For the first
two years of that order the PG did not take control of Mr G's finances and he
continued to suffer financial exploitation. This included a well meaning
non-indigenous community member unofficially assuming management of Mr G's
finances - and having his Centrelink benefits deposited directly into her
personal account. At the time the PG took control of Mr G's Centrelink payments
he had no money in his bank account.
The financial statements provided with Mr G's next Court
review indicated that in the first 3 months under the management of the PG, Mr
G had saved $7,529.97 (after expenses for accommodation, bank fees, food and
personal spending had been deducted). It is arguable that had the PG taken
control of his finances when the Court ordered it to, he would have saved an
estimated $65,000 (over the two years and two months from when the adult
guardianship order began to when the PG assumed control of Mr G's finances).
Other evidence was submitted where service delivery agencies were
neglectful in their financial management of resident's monies:
Elise has lived in a group home with several other people for
10 years. She is middle aged with intellectual disability and has difficulty
with communication. She receives DSP paid into her personal bank account and
staff take her to the bank to withdraw her DSP which is then paid into the
household working account run by the group home. Two years ago it was
discovered that $9,000 could not be accounted for by the group home. Elise
needed her advocate to help her complain. The advocate sought assistance from
IDRS. Initially the NGO promised financial statements but then said the matter
would be investigated by its own auditors. The matter was reported to the
police. Five months later there were still no accounts and the NGO refused to
answer questions posed by the advocate. In the end it was a year before any
accounts were provided. The police advised the advocate that so many people had
access to the account that they did not have enough evidence to charge anyone.
When the police asked to interview staff, they refused to be interviewed. Some
of Elise’s money was finally reimbursed but no account was given of how the
reimbursement was calculated. The advocate believed the amount was at least
$1,500 short. No-one was charged by police. No action was taken against the
service provider. The advocate suspected there were 5 other residents with
Financial abuse is not limited to public trustees or organisations. The
committee has been furnished with examples of individuals who ingratiate
themselves into the lives of a person with disability beyond their reasonably
expected service capacity. It is not uncommon for these people to abuse the
trust placed in them by a person with disability:
Abuse by a SDM [substitute decision-maker] is not regarded as
a crime or misdemeanor, or an unlawful activity. For example, there is no
quick, effective and low cost way for a matter to be prosecuted in the lower
courts to secure restitution of monies stolen by an SDM. QADA is aware of
several cases of financial abuse perpetrated by EPOA’s or private
For example, a private administrator, (estranged family
member) was appointed by QCAT, when the person (Tony) was in a coma. The person
was expected to make a full recovery from their disability within 18mths. The
person made a full cognitive recovery, but was left with severe physical
deficits, resulting in their being placed, as a young person in an aged care
The administrator (who was appointed for 5 years and not
required to fulfil any of the usual reporting duties of administrators) took
all of the person’s financial assets and then did not regularly pay fees.
QCAT declared the person capable and issued enforceable
directions regarding reclaiming outstanding monies.
The committee notes that the number of submissions received on the abuse
of people with disability in the general community, including financial abuse,
shows there is a significant problem. The committee is of the view that this
issue requires greater oversight and investigation.
A key form of 'disability specific lawful violence' is the use of
restrictive practices in the disability, health and education sectors as a means
of preventing people—mostly with disability—from hurting themselves or others.
The Australian Department of Health defines restrictive practice as:
The use of interventions that have the effect of restricting
the rights or freedom of movement of a person in order to protect them.
Examples include lap belts, hand mitts, removing mobility aids such as walking
frames and sedation of a person to control their behaviour.
The Commonwealth's National Framework for Reducing and Eliminating
the Use of Restrictive Practices (Restrictive Practice Framework) defines
restrictive practice as 'any practice or intervention that has the effect of
restricting the rights or freedom of movement of a person with disability, with
the primary purpose of protecting the person or others from harm.' The Restrictive
Practice Framework defines the various forms as:
seclusion: the sole confinement of a person with disability;
chemical restraint: the use of medication for the primary purpose
of influencing a person's behaviour or movement;
mechanical restraint: the use of a device to prevent or restrict
a person's movement for the primary purpose of influencing a person's
physical restraint: the prolonged use of physical force to subdue
movement for the primary purpose of influencing a person's behaviour; and
additional restrictive practices of:
Psycho-social restraints: the use of 'power-control' strategies:
Environmental restraints: restricting a person's free access to
all parts of their environment; and
Consequence driven practices: the withdrawal of activities or
Restrictive practices are purported to be used in the disability, health
and education sectors as a means of preventing people—mostly with disability—from
hurting themselves or others. The Law Reform Commission report found that:
[T]here are concerns that such practices can also be imposed
as a 'means of coercion, discipline, convenience, or retaliation by staff,
family members or others providing support'. Such practices may infringe a person’s human
rights. As a result, there are significant
concerns about the use of restrictive practices in Australia. For example, the
United Nations Committee on the Rights of Persons with Disabilities (UNCRPD)
has stated that it
'is concerned that persons with disabilities, particularly
those with intellectual impairment or psychosocial disability, are subjected to
unregulated behaviour modification or restrictive practices such as chemical,
mechanical and physical restraints and seclusion, in various environments,
including schools, mental health facilities and hospitals'.
The committee has received evidence that argued the misuse of 'restrictive
practices' is viewed as a form of abuse. This evidence will be examined later
in this chapter.
We would prefer not to use the sanitised language of
restrictive practices, and instead call them what they are, such as bondage,
drugging and being locked up. If you did that to a person who did not have a
disability it would be a criminal offence.
Summary of restrictive practice
across the jurisdictions
Regulation of restrictive practices 'occurs mainly at a state and
territory level', with the Commonwealth attempting to provide nationally
consistent guidelines through the Restrictive Practice Framework. The Restrictive
Practice Framework was endorsed by the Council of Australian Governments
Disability Reform Council in March 2014 and intended to reduce the instances of
restrictive practices within the mental health and disability services sectors.
The education sector is not captured in the Restrictive Practice Framework. The
issue of restrictive practices in schools is discussed later in this chapter.
Kim Chandler et al in their 2014 comparative analysis paper, notes that
only four jurisdictions in Australia currently regulate restrictive interventions
and practices—these are Victoria, Queensland, Tasmania and the Northern
Territory—as opposed to providing voluntary guidelines for service providers
and government agencies to adopt. This paper summarises:
The focus of these restrictive practices legislative regimes
is on regulating the standard of care in disability services either provided by
or funded by state government human services departments. They reflect the dual
concern with ensuring safeguards and an adequate standard of care and support
in government-provided services as well as ensuring service providers are
protected from civil and criminal liability for the use of such practices.
These regimes therefore do not extend to the use of
restrictive practices on people with intellectual impairment in hospitals and
other health facilities, aged care facilities, other supported residential
services (such as boarding houses) or where care is provided by family or
private carers. Nor, except perhaps in the case of Tasmania where the regime
applies to services provided by a disability service provider and a ‘funded
private person’,32 would they apply to the
purchase of services by people with disability from non-funded disability
services. That is, if a person with disability was provided with funds for
their disability, from either a state government department, or the National
Disability Insurance Agency, and with those funds purchased services from a
non-funded disability service, then the restrictive practices regulatory
regimes would arguably not apply.
A summary of the different legislation, and the agencies and
departments across all Australian jurisdictions can be found in Table 4.1.
Table 4.1: Summary of relevant legislation
and policies relating to the use of restrictive practices in all Australian
Agencies and departments responsible
National Framework for Reducing and Eliminating the
Use of Restrictive Practices in the Disability Services Sector
Social Services (Cth)
New South Wales
Behaviour Support Policy
Aggression, Seclusion and Restraint in Mental Health
Facilities in NSW (June 2012)
Guardianship Act 1987
Children and Young Persons (Care and Protection) Act
1998 (and Regulations)
Family and Community Services
Disability Act 2006
Mental Health Act 2014
Victorian Chief Psychiatrists Guideline, Seclusion
in Approved Mental Health Services (2011)
Restraint of Student Policy (2015)
Disability Services (Restrictive Practices) and
Other Legislation Amendment Act 2014
Mental Health Act 2000 (and Mental Health Act 2000 Resources
Policy Statement on Reducing and Where Possible
Eliminating Restraint and Seclusion in Queensland Mental Health Services
Communities, Child Safety and Disability
Mental Health Act 1996
Voluntary Code of Practice for the Elimination of
Restrictive Practices 2014
Disability Services Commission
Mental Health Act 2009
Disability Services Act 1993
Guardianship and Administration Act 1993
Children's Protection Act 1993
Safeguarding People with Disability—Restrictive
Practices Policy 2013
Communities and Social Inclusion
Disability Services Act 2011
Mental Health Act 2013
Mental Health and Related Services Act 1994
Disability Services Act 2012
Australian Capital Territory
Mental Health (Treatment and Care) Act 1994
Mental Health Act 2015
The following section notes a number of characteristics that define the
approaches used by some of the different jurisdictions.
In Western Australia, the Disability Services Commission (DSC) has
recently updated its Code of Practice for the Elimination of Restrictive
Practices. This voluntary code of practice 'provides the basis for the
disability sector to develop operational policy and guidelines for eliminating
the use of restrictive practices' and 'applies to all services provided and
funded by the [DSC] for children and adults with disability'.
The committee notes the DSC has undertaken engagement with a wide range of
stakeholders to develop 'a decision-making flowchart for challenging behaviour
and restrictive practices, a greater emphasis on Positive Behaviour Support
approaches including person-centred planning, and a greater focus on the role
of Positive Behaviour Support Panels'.
However, the committee notes the voluntary nature of the code ultimately
means these practices are not regulated and, as such, there is little
likelihood of them being reduced or eliminated.
In 2014, after consultations, the Queensland Government made a series of
changes to the state Disability Services Act 2006 and the Guardianship
and Administration Act 2000 in an effort to reduce or eliminate restrictive
practices. The key changes are:
emphasising the need for a positive behaviour support approach,
not just where restrictive practices are required;
introducing a principle that restrictive practices should not be
used as a form of punishment and a requirement for service providers to provide
a statement to adults, their families and carers about the use of restrictive
requiring disability service providers to report to the department
on the use of restrictive practices.
Many of the
decisions about the use restrictive practices must be approved or reviewed by
the Queensland Civil
and Administrative Tribunal, and in addition the Queensland Department of Communities, Child
Safety and Disability Services has established the Centre of Excellence for
Behaviour Support, to provide training and guidance on positive behaviour
The committee notes its concern that the requirement for service
providers to have their own restrictive practices policies has been removed
from the legislation and the legislation only applies to adults.
The introduction of the Mental Health Act 2014 has led to a
number of changes in how restrictive practice is used in mental health services
under the previous Mental Health Act 1986. First, the Mental Health
Act's objectives have been extended to ensure people with a mental illness are
provided with care and treatment with the 'least possible restrictions on human
rights and human dignity'.
Second, this Act also defines when a restrictive intervention may be used and
who must be notified when a restrictive intervention occurs.
Within the Victorian Department of Health and Human Services sits the
Office of Professional Practice. One of the officers within the Office of
Professional Practice is the Senior Practitioner (Disability). Under section
23(2)(a) of the Disability Act 2006, the 'Senior Practitioner is
responsible for ensuring the rights of persons who are subject to restrictive
interventions and compulsory treatment are protected and that appropriate
standards in relation to restrictive interventions and compulsory treatment are
complied with'. Aspects of the Senior Practitioner's role are highlighted
visit, talk to and inspect any disability service;
see any person who is subject to any restrictive intervention or
investigate, audit and monitor the use of any restrictive interventions or compulsory treatment;
direct a disability service provider to discontinue a restrictive
evaluate and monitor the use of restrictive interventions in
develop guidelines and standards; and
provide education and information to disability service providers.
Australian Capital Territory
Although there is a reference in the objects of the Mental Health
(Treatment and Care) Act 1994 'to ensure that mentally dysfunctional or
mentally ill persons have the right to receive treatment, care, rehabilitation
and protection in an environment that is the least restrictive and intrusive,
having regard to their needs and the need to protect other persons from
physical and emotional harm', the use of restrictive practices are not
regulated in the ACT.
An examination of the use of restrictive practices in ACT schools is conducted
later in this chapter.
Restrictive practices are not regulated in South Australia. In 2011, the
Office of the Public Advocate released a voluntary policy to prevent and
eliminate restrictive practices in the disability sector for use by guardians
and advocates. In March of this year, a similar policy was released for the
residential aged care sector.
In Tasmania, restrictive practices in the health and disability services
sectors are regulated by the Senior Practitioner (SP) who must be informed when
a restrictive practice is used. The SP has powers to investigate instances
where restrictive practice is alleged to have been used and can make
recommendations and even directions to a provider to use alternate options. The
SP is empowered to apply financial penalties to any provider who does not
reasonably follow the directives of the SP.
The Northern Territory regulates the use of restrictive practices in
the mental health and disability services sector through section 61 and 62 of
the Mental Health and Related Services Act 1994. This legislation works
from the principle that restrictive practices are only to be used when no other
option is available and only with the approval of a psychiatrist or a
registered senior nurse. It is an unlawful act for any other person to apply
restrictive practices to any other person subject to a penalty.
The Disability Services Act 2012 also makes it an offence to use
restrictive intervention on a resident of a residential facility.
New South Wales
In NSW, guidelines govern the use of restrictive practices. For NSW
declared mental health units, a NSW Health guideline states the use of physical
restraint should be an option of last resort and outlines when forms of
restraint may be suitable. The restraint team must include a senior nurse or
medical officer and the primary carer must be notified after an incident of
The NSW Department of Family and Community Services, Behaviour Support
Policy, outlines requirements for the use of restrictive practice in NSW
government funded disability services. The police states 'Ideally, behaviour support
services should be provided by Behaviour Support Practitioners with
tertiary qualifications', although this is not a mandatory requirement. Guardians
appointed under the Guardianship Act 1987 (NSW) may be authorised to
consent to the use of restrictive practices for people over 16 years of age.
Restrictive practices in relation to children are governed by Children
and Young Persons (Care and Protection) Act 1998 (NSW) and Children and
Young Persons (Care and Protection) Regulation 2012 (NSW).
A broader examination of the use of restrictive practice in NSW is considered
later in this chapter, by providing a comparison between the highly regulated
use of restrictive practice in a disability service context to the largely
unregulated and unmonitored use of restrictive practice against children with
disability in NSW schools.
The committee considers that the right to liberty is a fundamental human
right. The committee is concerned with the extent to which restrictive practice
is used, and is deeply concerned with the system which allows service providers
to arbitrarily deprive people of their liberty.
The Committee acknowledges the development of the National Framework
for Reducing and Eliminating the use of Restrictive Practices in the Disability
Service Sector. However, the committee is concerned that this implementation
of this framework has stalled, and has not been consistently implemented across
Australian jurisdictions, with many states and territories still relying on a
voluntary code of conduct from disability service providers.
The committee notes that the implementation of the framework has
stalled, and in some jurisdictions has never really begun. The committee sees a
place for commonwealth legislation, should the framework not be vigorously
taken up across all jurisdictions as a priority.
Restrictive practices in other
The committee notes that restrictive practices may also be used in
institutions and residential settings outside of the disability services
The committee is particularly concerned by evidence that suggests that
the regulations and safeguards for restrictive practices required in the
disability sector do not apply in the prison system. The Aboriginal Disability
Justice Campaign recommended that correctional services in all jurisdictions
adopt the National Framework for Reducing and Eliminating the use of
Restrictive Practices in the Disability Service Sector, particularly:
independent advocacy services for people with cognitive
impairments detained in prisons and subject to restrictive practices; and
independent review and oversight of restrictive practices used in
Box 4.1 highlights the lack of regulation and oversight of restrictive
practices for Aboriginal and Torres Strait Islander peoples with cognitive
impairment in prisons in the Northern Territory and Western Australia.
Box 4.1: Restrictive practices in prisons
The Aboriginal Disability Justice Campaign (ADJC) alleged that chemical, physical and
mechanical restraints are used extensively on people with cognitive impairment in prisons
in Western Australia and the Northern Territory. The ADJC estimated that approximately
150 people with cognitive impairment are detained in prisons on civil orders each year, of
which approximately 30 are Aboriginal or Torres Strait Islander and 30 are 'detained
The ADJC noted that unlike the disability sector, where restrictive practices are regulated by legislation consistent with Australia's international human rights obligations:
[t]here is no reference to these principles, safeguards or human rights
obligations in the use of restraint and seclusion on people with cognitive impairments detained under Corrective Services legislation in either
Western Australia or the Northern Territory.
The ADJC highlighted that the lack of regulation on restrictive practices in prisons means
that people with a cognitive impairment detained in prison 'are at a disadvantage to those
who would be subject to restrictive interventions in forensic disability setting in terms of
process, safeguards, review mechanisms and access to advocacy and oversight'.
The ADJC provided two case study examples that demonstrate the unregulated use of
restrictive practices on people with cognitive impairment.
Mr M – Northern Territory
Mr M is an Aboriginal man with severe intellectual disability and foetal alcohol spectrum
disorder who has been detained in a Northern Territory correctional facility since 2007.
According to the ADJC, the facility has used a number of restraints in response to Mr M's
'behaviours of concern', including 'being forcibly removed from his cell by correctional
staff, belted into a restraint chair and injected with a tranquiliser until he was sedated' for
between 30 minutes and two hours at a time. The AJDC alleged that between 2012 and
2013, this restraint has been used between 13 and 15 times, despite the Office of the Public
Guardian and the Office of Disability refusing to consent to or support the intervention.
The AJDC further alleged that over this period, Mr M was 'chemically restrained by the use
of PRN medication that is prescribed by a forensic mental health psychiatrist 40 out of the
52 weeks of the year'.
Ms F – Western Australia/Northern Territory
Ms F is an Aboriginal woman with foetal alcohol spectrum disorder from Alice Springs
who was detained for twenty months in a Western Australian correction facility for traffic
offences after being found unfit to plead. Ms F was returned to the Northern Territory in
June 2014 following intervention from the ADJC and has since been detained four times for various offences. The ADJC alleged that during the last period of detention, Ms F was
restrained and placed in solitary confinement after being extremely agitated following a
meeting with the Office of the Public Guardian where she was given inaccurate advice
about the date of her release. The ADJC noted that the facility has refused to confirm how
long Ms F was held in solitary confinement.
Source: Aboriginal Disability Justice Campaign, Submission 159, pp 1–6.
The committee is deeply concerned that people with cognitive impairment
and intellectual disability in the prison system are not subject to the same
protections and safeguards regarding restrictive practice as those in the
disability services sector. This highlights the inappropriateness of detaining
people with disability in facilities which are not specifically for the purpose
of delivery of therapeutic services.
The committee considers that the principles of the National Framework
for Reducing and Eliminating the use of Restrictive Practices in the Disability
Service Sector should apply to all institutions where people with
disability are accommodated, particularly prisons.
Restrictive practices in schools
Currently there is a wide range of restrictive practices used in
schools, ostensibly for student discipline. Evidence to the committee indicates
the conflation of disability and behaviour management within the school
environment often results in the adhoc and non-consensual use of restrictive
practices such as exclusion, seclusion and restraint. The Law Reform Commission
Restrictive practices involve the use of interventions and
practices that have the effect of restricting the rights or freedom of movement
of a person with disability. These primarily include restraint (chemical,
mechanical, social or physical) and seclusion. People with disability who
display 'challenging behaviour' or 'behaviours of concern' may be subjected to
restrictive practices in a variety of contexts, including: supported
accommodation and group homes; residential aged care facilities; mental health
facilities; hospitals; prisons; and schools.
A recent case in the ACT involving a ten-year old boy diagnosed with
autism being placed in a cage as a 'withdrawal space' has highlighted these
practices as being out of step with community values and expectations if used
This case raises questions as to the adequacy of frameworks at a federal, state
and territory level that guide and inform schools—teachers and principals—on
acceptable use of restrictive practices. This case study is examined below in
Box 4.2: School child restrained in cage at an ACT school
In April 2015, it was reported that a ten year old child with autism had been placed in a
purpose built cage structure in an ACT primary school as a means of managing the
behaviour of the child. This withdrawal space had been constructed to provide an area for the
child to 'calm down' in. An investigation found that the space was visible from the classroom
and had been described to fellow classmates and the child as a 'sanctuary'. Responsibility for the incident was attributed solely to the school's principal.
Although the investigation was keen to highlight the 'high expectations on all teachers,
principals and officers of the directorate [ACT Directorate of Education and Training]', and
that 'specialist expertise' is available for the teachers and principals to access, it also found
- Officers within the Directorate may not have provided adequate support to manage
the escalating circumstances within the school.
- The first officers to be notified of the structure did not act on this advice and
referred the complainant to another part of the Directorate. There is no record of a
further contact from the complainant.
- Officers within the Directorate did not meet Directorate or public expectations by
acting with sufficient urgency or alarm when provided with information about the
The investigation's public report did not detail the existence or adequacy of directorate policy
or practice for school children with disability—despite this being included in the
investigation's scope. Despite the directorate seeking to attribute all of the blame to the
principal, the directorate's first response as outlined above demonstrates a lack of support
from the directorate to the school on these issues. The report also failed to examine the
school and the directorate's response and interactions with the child, the family and the
broader school community during the aftermath until five months after the incident had been
brought to the attention of the directorate.
In May 2015 the ACT Government established an Expert Panel on Students with Complex
Needs and Challenging Behaviour to review policies and procedures. The Expert Panel's
report, released on 18 November 2015, made a series of recommendations to reform the
ACT school system including an urgent review of funding for students with special needs,
training for teachers and aides and greater support for principals.
Sources: Emma Macdonald and Georgina Connery, 'Child reportedly contained in cage-like structure
at ACT primary school, The Canberra Times, 3 April 2015, http://www.canberratimes.com.au/actnews/child-reportedly-contained-in-cagelike-structure-at-act-primary-school-20150402-1mdj0b.html
(accessed 18 September 2015).
ACT Directorate of Education and Training, Investigation into an Inappropriate Structure Report
Handout, http://www.det.act.gov.au/__data/assets/pdf_file/0006/770208/150908-Inappropriate-Structure-Handout.pdf (accessed 18 September 2015).
ACT Directorate of Education and Training, Expert Panel: Students with Complex Needs and
Challenging Behaviour, http://www.det.act.gov.au/school_education/complex-needs (accessed 19
The ACT example is not an isolated case. During the course of this
inquiry, the Victorian Government has implemented a review into restrictive
practices at two schools for people with disability—Monash Special Development
School (SDS) and Bendigo SDS. This investigation will examine allegations of
restraining children with straps and locking children in cupboards and cages.
In her submission, Ms Julie Phillips describes the 'variety of spaces
[used] to seclude children with disabilities, including a locked cupboard, a
disused school room used for junk, outdoor pens, and designated seclusion rooms'.
Other spaces, such as 'outdoor pens, similar to those used to keep cattle or
sheep in a small area are employed'. The worst example is the 'Safe Room' found
at the Bendigo SDS 'which is approximately the size of a disabled toilet, has
wooden walls which cannot be seen through, and two bolts for locking on the
A recent image of what is termed a 'Safe Room' can be seen below in image 4.1,
whilst a purpose built enclosure visible to fellow classmates from the
playground can be seen below in image 4.2.
Image 4.1: A "safe room" in use at
a Victorian public school at time of submission to inquiry
Source: Ms Julie Phillips, Submission 131c.
Image 4.2: A fenced seclusion area visible
from the school playground
Source: Ms Julie Phillips, Submission 131c.
The committee has received evidence from Children with Disability which
describes examples of restrictive practices on children in schools and the
impact this has had on them. Some of these examples are described in Box 4.3.
An example of a behaviour management plan from a Victorian school was
provided to the committee. This pro-forma document has a number of key sections
relating to behaviour management left blank, including the student's
communication preference/receptive language, interests, and behaviour triggers.
A disturbing instruction can be found written under 'Strategies to eliminate or
mitigate the risk':
If all else fails, give [Name withheld] a choice between
doing X or going to the 'safe room' [Name withheld] will usually respond. Make
him verbalise what he will do.
If [Name withheld's] behaviour deteriorates and he doesn't
respond, there's no point talking, just get him to the 'safe room' for time
out. 2 [sic] able staff are required to escort him to the 'safe room'.
At the Sydney public hearing, Julie Phillips described 'restrictive
I do not like the term 'restrictive practices', because it is
a euphemism for what is often simply assault, false imprisonment and abuse. On occasion
they are restrictive practices. But I feel very strongly
about restraint and seclusion being used
when they are not a last resort, and most of the time—despite the policies and procedures saying they can only be
used as a last resort—they are not. In fact, out of all the cases that I have worked
with I have never seen any
restrictive practices used as a last
Ms Therese Sands of Disability Alliance shared her thought on
'restrictive practice' policy in the educational context:
I think [restrictive practice] is particularly prevalent in
schools, whereas in many other systems there is either some form of regulation
or maybe an attempt at regulation in policies and procedures—maybe there are
senior practitioners et cetera. In the school system there is absolutely no
oversight or regulation, and often it is up to school principals, the
schoolteacher and specific approaches and cultures within schools.
At a broad level, the absence of policy and guidance from state and
territory education departments perpetuate this cycle of abuse. In some cases,
principals and teachers working at the coal-face do not know how to manage
behaviours of concern (a combination of lack of training and experience); and
even if they do, there is insufficient funding to put in place positive
behaviour change programs:
In terms of the schools, the policies and procedures around
the country are very similar in that they are vague and broad and are open to
interpretation—so open they are fairly meaningless. I have picked some out. New
South Wales, for example, says that you cannot use physical restraint if there
is a risk of injury to staff, but you can use physical restraint on a child for
a threat to departmental property. In Queensland they can put physical
restraint into a student's individual plan. That is not at all acceptable in
any sort of disability service, because it means you are intending to use it
repeatedly and that is not the way that physical restraint is meant to be used.
Western Australia is similar except that you can use restraint to maintain
order or re-establish order. Anyone could say that they were maintaining order
to excuse the fact that they had used such practices. Such practices are also
used in regard to property damage.
What is missing in all of these policies and procedures and
sometimes in educational regulations is compulsory training, comprehensive
behaviour assessments—which Dr Anderson can talk more about—positive behaviour
plans, any intensive psychological support that might be required, any evidence
based approach to the problems that have arisen and proactive approaches. All
of these policies and procedures are about reacting to challenging behaviours.
It is not clear to the committee whether any of the state and territory
education departments have any fully developed enforceable policy guidance on
restrictive practices. While the Restrictive Practice Framework applies to most
disability services and agencies, there is a notable absence of regulation of
restrictive practice used on children and young adults with disability in
schools or other educational facilities.
During the course of this inquiry, the Victorian Government announced
the appointment of a Principal Practice Leader (Education). This position
reports to the Senior Practitioner (Disability) within the Office of
Professional Practice (Department of Health and Human Services). The Principal
Practice Leader (Education) will:
[V]isit and work with government schools throughout Victoria
to gain an understanding of current processes and staff knowledge and provide
advice related to best practice approaches and processes for supporting and
responding to students with challenging behaviours, including least restrictive
The Principal Practice Leader will work with the Department
to identify improvements that could be made to professional learning and
training, and current legislation, policies and guidelines under the direction
and guidance of the Senior Practitioner (Disability).
Some submitters were not convinced that the Principal Practice Leader
(Education) will be the panacea to many of the problems experienced within the
education system. Ms Julie Phillips notes that without legislative amendments
that transfer the regulation of restrictive practices in Victorian schools to
the Office of the Senior Practitioner within the Department of Health and Human
Services, the appointment is 'akin to a project worker gathering information
and providing advice'.
The Victorian Government has also announced a new 'Restraint of Student'
policy which describes when restrictive practices such as restraint and
seclusion practices may be used. This policy notes that physical restraint and
seclusion may only be used 'when it is immediately required to protect the
safety of the student or any other person'.
Importantly, these policies contain a range of compulsory actions that must be
undertaken in the event that restrictive practices are utilised. These include
immediately reporting the incident to the school principal and a student's
parents or guardians. A range of supports must be provided to the student and
their parents or guardians. A detailed written record with prescribed
information must be completed and uploaded to the Education department's
The committee acknowledges the Victorian Government's first steps
towards reform in this difficult area, but notes a number of concerns with the
initial approach taken. Ostensibly, restrictive practices are ruled out, however,
it is not clear what type of strategies—funding and support—will be provided in
New South Wales—a case study
A key issue raised by witnesses to the inquiry, is the gap in the
regulatory frameworks on restrictive practice, which prohibits or regulates
certain practices in one service setting, while allowing it in another service
The following section has taken the jurisdiction of NSW as a sample
study, to highlight how restrictive practice is regulated within the NSW
education system as compared to the policy framework in other NSW state
government departments and agencies. It is worth noting that the regulation of
restrictive practices in NSW schools does not appear to have the same level of
rigorous regulation. In some cases, schools may be using 'seclusion' as a time
out technique, which is banned for children in other service provider contexts.
In contrast, it is interesting to compare the regulatory environment
that governs other NSW government departments. The NSW Department of Health
guidance note, Aggression, Seclusion and Restraint in Mental Health
Facilities in NSW, relates to mental health facilities. There a number of
principles for those aged under 18 years of age that are transferable to the
The consumer’s primary carer (as defined by NSW Mental Health
Act 2007, Section 71) will be informed of any incident involving
restraint/seclusion as soon as is reasonably possible after the event. They
will be told the reason why this intervention was used, the period of time it
was applied and any consequences of the intervention...
Family/carers of children and young people (under 18 years)
involved in episodes of seclusion or restraint should be contacted as soon as
possible regardless of the time of the event...
For anyone under 18 years of age, the parents or guardian
will be notified unless there are particular reasons this would be not in the
child or young person’s best interests.
This guidance note is also quite explicit in describing all of the
requirements of an individual who is deemed to require restraint. This level of
detail is absent from all educational policy directives.
Another document that contains a number of useful principles in this
area is the former NSW Department of Family and Community Services Behaviour
Support: Policy and Practice Manual.
This manual was developed by the Office of the Senior Practitioner,
which was established to provide guidance on behaviour support and intervention
services delivered by NSW funded ageing, disability and homecare services. The
has been designed to provide a contemporary, practical
resource for the development of high quality and consistent support and
intervention practices which adhere to relevant departmental policy and
procedures and legislative standards...
is targeted to assist Behaviour Support Practitioners drawn
from a range of professional backgrounds and who undertake their work in
diverse contexts. It will assist them to interact in inclusive, consultative
and collaborative ways through the use of accessible, evidence-based support
formats and practice approaches...
Importantly, the manual provides guidelines to safeguard the
rights of the individual Service User and promotes the use of person-centred
positive behaviour support practices. It recognises that all behaviour occurs
within a context and that meaningful, longitudinal behaviour change relies not
only on maintenance of appropriate supports for the Service User, but also on
refinement of the wider support system built around the individual.
Importantly, this policy applies to adults, children and young people
with intellectual disabilities and spells out how restricted practices are to
be employed on children and young people.
There are a number of standards that this policy complies with
NSW Out-of-Home Care Standards (NSW Office of the Children’s
Living in the Community: Putting Children First (July 2002);
The Children’s Standards in Action (2004);
Individual Planning for Children and Young People Living in
Out-of-Home Placements: Policy and Procedures (May 2007);
Memorandum of Understanding between the Department of Community
Services and the NSW Department of Ageing, Disability and Home Care on Children
and Young Persons with a Disability, and;
NSW Interagency Guidelines for Child Protection Intervention
The manual is intended to be implemented in conjunction with the
Behaviour Support Policy, last updated in March 2012. The two policy documents
outline that restrictive practices, except in exceptional emergencies, should
be used only in the context of a Behaviour Support Plan developed by a
behaviour support specialist. The policy explicitly differentiates between
Exclusionary Time Out and Seclusion. Exclusionary Time Out removes a person
from one setting to another for a period of time under supervision. It must be
part of an overall planned strategy, time-limited, contingent on behaviour
change and must be supervised at all times. Seclusion is the isolation of a
person in a setting by themselves and must be monitored at all times. Seclusion
in a disability service setting is banned for anyone under 18 years of age
under all circumstances.
Transparency and behaviour
On another level, parents of children with disability have very limited
rights to be involved in how their children are taught and treated at school.
One submitter notes that parents 'do not have the right to':
refuse restrictive practices;
be told about restrictive practices used on their child in
attend Student Support Group meetings;
agree with or have input into Individual Education Plans;
agree with or have input into a Behaviour Plan;
request the intervention of psychologists or other experts who
have the ability to address challenging behaviours;
insist that their child has a formal language assessment;
insist that their child has a formal communication method and
that staff must be trained in that method;
insist that staffing levels must be adequate to support their
in some schools, enter the school buildings; and
insist that their child has assistance from anyone with a
particular qualification or training (for example integration aides are
commonly hired in response to individual funding received, and such aides
require no qualifications regardless of how complex the child’s disabilities
Ultimately, 'restrictive practices' punish certain types of behaviour
rather than rewarding or encouraging positive behaviour. The committee heard
that often, 'bad' behaviour is actually a response to the environment and support
(or lack thereof) that a child is provided with at school. Dr Angelika Anderson
explained the complex link between disability, environment and challenging
Children with disabilities, or individuals with disabilities,
are at risk for developing behaviours of concern because they often have skill
deficits, especially those individuals who have impairments in social
communication. They are not able to signal their needs and wants, and often
challenging behaviour has a communicative function. That finally is the only
thing that works for them. That means that automatically children with autism,
but also other populations, such as migrant populations for whom English is a
second language or who do not have the same cultural background or have not been
brought up with and are not very familiar with the behavioural expectations in
schools, are at higher risk.
The Disability Alliance agreed and went further, stating that 'these
behaviours can be viewed as a form of resistance or protest to maladaptive
environments; and should be viewed as legitimate responses to problematic
environments and situations. Changing services, systems and environments should
be the starting point for changing behaviour, rather than changing the person'.
The Disability Alliance also noted the role that 'restrictive
behaviours' play in enabling and normalising other forms of violence, by
'desensitising both staff and people with disability, undermining their ability
to recognise violence, to view it as unacceptable and respond to it as a
Families Australia noted that 'policies and safeguards to protect
children and young people in respite, at school and being transported to and
from school are critical.'
In its submission, the LCA highlighted a report on the experiences of children
with disabilities in Victorian schools which found:
In many of these cases appropriate understanding of triggers
of behaviour and the best ways to de-escalate a child experiencing heightened
behaviours, by adequately trained staff, would vastly reduce the need for use
of seclusion and restraint techniques...
Improved policies and procedures in this area, and
supervision and implementation of them are urgently required. Appropriate
recruitment, training and a change in culture of many schools would
dramatically reduce the need for these strategies to be used.
The Law Reform Commission in its Final Report entitled Equality,
Capacity and Disability in Commonwealth Laws made the following
recommendation in relation to restrictive practices:
The Australian Government and the Council of Australian
Governments should develop a national approach to the regulation of restrictive
practices in sectors other than disability services, such as aged care and
A major concern to the committee is that educational opportunities and
outcomes for children with disability are lost as a result of these practices.
The need to encourage and support all Australian children to participate in
their education in a meaningful way highlights the critical importance of
support rather than punitive measures. As one submitter noted:
The effect [of restrictive practices] on the children is
obvious to any observer. The children themselves have become worse in their
behaviour. While doing the [Applied Behavioural Analysis] ABA behaviour therapy
with me they were in a support unit in a general public school and had never
been sent home. While their behaviour needed addressing they were capable of
handling small incidents. The first time [Name withheld] was too uncontrollable
and sent home from school was only weeks after the JIRT [Joint Investigation
Response Team] involvement as they refused to address the risk issues I was
pointing out to them. Now no public school in the area will accept the children
and they are forced to go to a special school. [Name withheld] missed out on
full time schooling for months while waiting for a place...
What is worse is the children’s behaviours and health have
also deteriorated. [Name withheld] is overweight as we have not been able to
concentrate on his welfare with the Systems Abuse that occurred. [Name
withheld] behaviour has declined and he is now self-harming (biting himself)
and pulls at others. There (sic) behaviour has become so bad that I cannot take
them to the activities I used to attend.
view (restrictive practice in education)
The committee notes the previously described examples clearly do not
meet community expectations and standards when it comes to how children—abled
or with disability—are treated at an Australian school in 2015, which begs the
question—why does it still happen?
The committee is greatly concerned with what appears to be systemic
problems within the education system that are leading to many of the
inappropriate practices described in this section. Many of the systemic
problems that lead to the use of restrictive practices actually reinforce an
attitude that facilitates the mistreatment of children with disability because
they are viewed as different.
The committee notes that the Queensland Department of Education has a
Standard Operating Procedure for the treatment and use of horses and ponies in
schools, but no policy for the use of restrictive practices on Queensland
There needs to be a national approach with regard to regulation. It is
not clear to the committee why the education system sits aside from the
standards expected of other mainstream services such as health and disability
services that support people with disability.
It is the committee's strong view that the National Framework for
Reducing and Eliminating the use of Restrictive Practices in the Disability
Service Sector should be extended and apply to educational facilities. It
is also the committee's view that states and territories need to establish and
implement enforceable policies and guidance for school teachers and principals that
eliminates the use of 'restrictive practices'.
It is also deeply concerning that not only are parents not allowed to
refuse the use of 'restrictive practices' or be involved in the decision-making
process, but they are not even made aware of the use of such policies. It is
the committee's view that transparency around these processes is the first step
in moving to eliminate the use of restrictive practices against children..
It is the committee's view that proven positive behavioural management
tools such as Applied Behavioural Analysis need to take the place of
restrictive practices and need to be properly funded and professionally
One of the main areas of concern for the committee relates to the black
and white approach to legal incapacity. As the law currently stands, if a
person is deemed to lack legal capacity, then a legal guardian becomes a
substitute decision-maker. The committee supports a move towards supported
decision-making as being more appropriate in many circumstances, and considers
it is time to curtail the use of substitute decision-making..
The committee agrees with the premise that the concept of legal
incapacity is more subtle and complex than the current absolutist approach. The
committee sees that legislative reform is required to accommodate a spectrum of
decision-making, to ensure that where a person requires support to make certain
decisions, such as substantial financial decisions, they do not lose the right
to make all decisions, such as where they live or who may visit them.
The committee notes the volume of evidence which shows that no single
jurisdiction has created a guardianship system that is either free of abuse or
neglect, or has appropriate oversight to ascertain that abuse or neglect is not
occurring at far higher rates than is currently known. Clearly a national
project to establish best-practice across the states and territories is of
The committee is highly disturbed at the evidence presented of
restrictive practice. Clearly, in many cases what is deemed to be a necessary
therapeutic or personal safety intervention is in fact, assault and unlawful
deprivation of liberty.
The committee was distressed to be presented with all too many harrowing
accounts of small children suffering at the hands of the very people who should
be educating them. It is hard to understand how strapping a child to furniture,
or locking them alone in a room to scream themselves into exhaustion could be
seen as a justifiable behavioural intervention. This is without doubt a national
As a matter of urgency, the Restrictive Practice Framework must be
implemented as an enforceable, reviewable instrument for all schools,
government and private, and there must be independent oversight of its
implementation in schools.
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