On 1 September 2018, the Senior Practitioners Act 2018 (the Act) commenced operation in the ACT. The Act aims to provide a formal protection and oversight mechanism for the ACT through the newly established role of the Senior Practitioner. It also puts in place a framework to reduce and limit restrictive practices by service providers in the ACT.
The Act is based on the principle that restrictive practices should only be used in very limited circumstances: as a last resort, in the least restrictive way and for as short a time as possible.
In this article, Emily Shoemark, Senior Associate with Snedden Hall & Gallop Lawyers, looks at how the Act applies to Canberra’s schools.

Who does the Act apply to?

The Act applies to any organisation or entity that provides education, disability, or care and protection of children services to another person, and any other service as prescribed by the regulations. Schools come under this umbrella as it provides both education and care services to children.
The Act doesn’t apply to a close family member or informal carer of the other person, or entities that are exempt under the Act. These exemptions include police officers and persons carrying out duties under mental health and corrections legislation.

What is a restrictive practice?

‘Restrictive practice’ means a practice that is used to restrict the rights or freedom of movement of a person for the primary purpose of protecting the person or others from harm. Under the Act, a restrictive practice can only be used if there is a risk to safety right at that time, and the type of restrictive practice must be used in the least restrictive way. The use of a restrictive practice should be the last option.
Restrictive practices do not include reasonable action taken to monitor and protect a child from harm, such as a holding a child’s hand while crossing the road. Similarly, installing fencing around a school is a practice prescribed by regulation not to be a restrictive practice.

Types of restrictive practices under the Act

The types of restrictive practices under the Act are classified as:

  • chemical
  • physical
  • mechanical
  • seclusion
  • environmental
  • coercion

Chemical restraints

Chemical restraints refer to the use of a chemical substance (e.g. medication) to stop a behaviour or subdue movement.
Exclusion: the provision of medication to a person as prescribed by their own doctor.

Physical restraints

A physical restraint is where a person is held strongly so they cannot move.
Exclusion: a reflex action of reasonable physical force and duration intended to guide or direct that person for their own safety where there is an imminent risk of harm.

Mechanical restraints

When equipment is applied to a person’s body that prevents movement, this is classified as a mechanical restraint. Examples include a bodysuit that prevents a person from touching their own body, or a splint that prevents movement of an arm.
Exclusion: the use of a seatbelt in a vehicle and therapeutic devices.

Seclusion as a restraint

Seclusion includes when a person is locked in a room or put in a place where they cannot get out of, or think they cannot get out of. Examples include:

  • A person in disability group accommodation is sent by the provider for ‘time out’ in a quiet space and told they are not allowed to leave the space until the provider tells them.
  • A young person living in residential care is told by the provider that they must not leave their bedroom at night after 9pm.

Environmental restraints

Environmental restraints are those actions or systems that stop a person from being able to move in their space freely or prevents them from taking part in an activity. Example are gates or fences that cannot be opened and locks on cupboards or a fridge.
Exclusion: gates/fences around schools.

Coercion as a restraint

Coercion as a restraint includes using words and body language to force another person do what the coercer wants them to do. For example, coercion is one person saying to another person that they will be hit if something is not done.

How can restrictive practices be used?

A service provider can only use a restrictive practice if it is in accordance with a registered positive behaviour support plan (‘Plan’). This a plan for a person that describes the strategies to be used in supporting the person’s behaviour, including strategies to build on the person’s strengths and increase their life skills,  and reduce the intensity, frequency and duration of behaviour that causes harm to the person or others.
In order for a Plan to be registered, it must first be submitted for approval by a panel established by the Senior Practitioner. The school can then apply for the approved Plan to be registered.
Under a Plan, behaviours of concern that may trigger the use of the restrictive practice include when a person is hurting themselves or another person; physical violence or anger that is damaging property; and when a person runs away from someone who is trying to help them.

What are the main obligations of Canberra schools?

Schools must provide services to people with behaviours of concern in line with the principles in the Act, including in a way that:

  • promotes the person’s development and physical, mental, social and vocational ability, and provides opportunities for participation and inclusion in the community
  • responds to the person’s needs and goals
  • recognises that a person must be assumed to have decision-making capacity unless it is established that they do not, and must be treated accordingly
  • ensures transparency and accountability in the use of restrictive practices
  • recognises that restrictive practices should only be used as a last resort and when necessary to prevent harm to the person or others, and in the lease restrictive way, and should never be used punitively.

Service providers must report all uses of restrictive practices to the Senior Practitioner, regardless of the circumstances.

What is the role of the Senior Practitioner?

On 5 July 2018, the ACT Government appointed Mandy Donley as the inaugural Senior Practitioner, and her powers and role are set out in the Act. The key functions of the Senior Practitioner include:

  • promoting the reduction and elimination of the use of restrictive practices by providers to the greatest extent possible
  • ensuring, to the greatest extent possible, that the rights of people who may be subject to restrictive practices are protected
  • developing guidelines and standards on the use of restrictive practices, and then disseminating that information, providing education, and giving advice about restrictive practices and the rights of people who may be subject to them
  • giving directions to providers about the use of restrictive practices under positive behaviour support plans
  • developing links and access to professionals, professional bodies and academic institutions for the purpose of promoting knowledge and training in restrictive practices
  • carrying out research and providing information on best practice options to providers
  • receiving and investigating complaints about the use of restrictive practices
  • carrying out investigations on the Senior Practitioner’s own initiative.

In carrying out her functions, the Senior Practitioner has the power to enter premises to conduct an investigation if there is a belief on reasonable grounds that a restrictive practice is being used by a service provider.

What are the consequences of non-compliance?

If, after investigation, the Senior Practitioner makes a finding that action needs to be taken due to the use of a restrictive practice not in accordance with a Plan, or use of a restricted practice not in line with the principles in the Act, the Senior Practitioner can issue written directions, which could include amending or preparing a new Plan or changing or ceasing use of a restrictive practice.
If the Senior Practitioner issues a direction that is not complied with, the Senior Practitioner may take steps to cancel the registration of a Plan.

Offences under the Act

From 1 July 2019, Part 8 of the Act will come into effect, which introduces two offences:

  1. A service provider commits an offence if the provider uses a restrictive practice otherwise than under a Plan. The maximum penalty is 50 penalty units (currently $10,500), imprisonment for 6 months, or both. A defence to this offence can be if the service provider believed on reasonable grounds that the restrictive practice was necessary to prevent serious and imminent injury or illness to any person.
  2. A  service provider commits an offence if they fail to comply with a direction from the Senior Practitioner. The maximum penalty is 50 penalty units (currently $10,500). This is a strict liability offence, meaning there is no defence under the Act.

There can also be additional personal offences for executive officers of entities who knew that an offence was being committed, or were reckless about whether an offence was to be committed, and failed to take reasonable steps to prevent it.

Next steps for schools

The Senior Practitioner Act sets a formal framework around the use of restrictive practices by schools. All schools and their staff need to be familiar with the principles of the Act and how and when restrictive practices can be used. The delayed implementation of the offences under the Act provides schools with time to become familiar with the new obligations to ensure compliance, in particular from 1 July 2019. Schools need to understand when Plans must be established and follow the steps in the legislation for Plans to be approved and registered, so that they can ensure the safety and protection of all students.

How can Snedden Hall & Gallop help you?

Our Employment Law team can help you if you’d like to know more about the Senior Practitioner Act and your responsibilities.  Please contact us today for assistance on 02 6285 8000 or by email.