Restrictive practices and behaviour support under the NDIS 

Restrictive practices are regulated across two levels of government at once, and a student who looks only at the Commonwealth will reach the wrong answer. The National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) do not authorise the use of a restrictive practice and do not prohibit it¹. They impose conditions on the registration of NDIS providers, and those conditions are keyed to whatever the relevant State or Territory has decided. The prior question is therefore always which jurisdiction the support is delivered in.

Two definitions, and the gap between them

Section 9 of the National Disability Insurance Scheme Act 2013 (Cth) defines a restrictive practice broadly, as "any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with disability"². That definition is wider than the category the Rules regulate.

Section 6 of the Rules narrows it to five regulated restrictive practices. Seclusion is the sole confinement of a person with disability in a room or physical space at any hour where voluntary exit is prevented or not facilitated, or where it is implied that exit is not permitted. Chemical restraint is the use of medication or a chemical substance for the primary purpose of influencing behaviour, and expressly does not include medication prescribed by a medical practitioner to treat, or enable treatment of, a diagnosed mental disorder, physical illness or physical condition. Mechanical restraint is the use of a device to prevent, restrict or subdue movement for that primary purpose, excluding devices used for therapeutic or non-behavioural purposes. Physical restraint is the use of physical force to the same end, and excludes a hands-on technique used reflexively to guide or redirect a person away from potential harm, consistent with the exercise of care. Environmental restraint restricts a person's free access to all parts of their environment, including items or activities.

Two features of these definitions decide most problems. Each turns on the primary purpose of the conduct, so the same act may or may not be a regulated restrictive practice depending on why it was done. And each carries an express carve-out, which is usually where the answer lies.

The Commonwealth regulates the provider, not the practice

Part 2 of the Rules sets out conditions of registration applying to registered NDIS providers who use restrictive practices in delivering NDIS supports. The consequence of breach is therefore a breach of a condition of registration, engaging the Commissioner's regulatory powers, rather than the practice being unlawful by force of the Rules.

Where a State or Territory prohibits the use of a restrictive practice, s 8(2) makes it a condition of registration that the provider must not use that practice in relation to a person with disability in that jurisdiction. The Commonwealth adopts the State prohibition rather than creating one.

Where a State or Territory has an authorisation process — and the Rules' own note contemplates that this may be a process under legislation or policy, informed consent from a person or their guardian, approval from a guardianship board or tribunal, or approval by an authorised officer — s 9(2) imposes two conditions. The use, other than a single emergency use, "must be authorised in accordance with the authorisation process"; and the provider must lodge evidence of that authorisation with the Commissioner as soon as reasonably practicable after the use.

Where a behaviour support plan is in place

Section 10 applies where a provider delivers supports in accordance with a behaviour support plan that includes the use of a regulated restrictive practice. The conditions are that the practice be used only in accordance with the plan, and that the provider notify a specialist behaviour support provider if circumstances change so that the plan requires review. Section 10(3) adds a further condition: the provider agrees to demonstrate compliance if the Commissioner requires it.

Where there is authorisation but no plan

Section 11 addresses the sequence that arises in practice, where a use is authorised by the State or Territory but no behaviour support plan yet covers it. It applies where the practice was used, authorisation was required and obtained, the use was not in accordance with a plan, and the use will or is likely to continue. The condition is that the provider must take all reasonable steps to facilitate the development of an interim behaviour support plan by a specialist behaviour support provider, covering that use, within one month after the first use. The obligation is triggered by the likelihood of continuation, not by any complaint.

Applying this in a problem question

1. Identify the State or Territory in which the support was delivered, before anything else.
2. Test the conduct against s 9 of the Act, then against the five categories in s 6 of the Rules; say which limb is engaged.
3. Identify the primary purpose of the conduct, and apply the express carve-out for that category.
4. Ask whether the jurisdiction prohibits the practice (s 8), or has an authorisation process (s 9), and work from that jurisdiction's own law for the answer.
5. Ask whether a behaviour support plan covers the use (s 10) or does not (s 11), and if it does not, apply the one-month interim plan obligation.
6. Frame the consequence as a breach of a condition of registration, not as unlawfulness of the practice under the Rules.

Self-check

• Have I identified the jurisdiction before asking whether the practice was authorised?
• Have I distinguished the Act's broad definition from the five regulated practices in the Rules?
• Have I applied the primary purpose test and the carve-out for the category in issue?
• Have I framed the consequence as a registration condition rather than as unlawfulness?