Restrictive practices and the Senior Practitioner in the ACT 

This article states the law of the Australian Capital Territory. The Senior Practitioner Act 2018 (ACT) is not disability legislation: it regulates restrictive practices across education, disability and the care and protection of children, in one statute¹. The prior question is whether the person or entity is a provider as the Act defines it, because that, not the sector, decides whether the Act applies.

What is a restrictive practice

Section 7(1)(a) defines a restrictive practice as "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".

The definition turns on primary purpose, as the Commonwealth NDIS rules do, but the purpose specified is different. The NDIS rules define each category by reference to influencing behaviour; the ACT defines the class by reference to protecting from harm. A practice used to restrict for some other primary purpose falls outside the definition and must be analysed elsewhere.

Section 7(1)(b) includes the familiar five: chemical restraint, environmental restraint, mechanical restraint, physical restraint and seclusion. Section 7(1)(c) excludes reasonable action taken to monitor and protect a child from harm, among other things.

Who is a provider

Section 8(1) defines a provider as a person or entity who provides education, disability, or care and protection of children services, or a service prescribed by regulation.

It expressly excludes a close family member of the person, an informal carer for the person, and an exempt entity.

That exclusion matters. As with the ACT disability services legislation, family and informal care sits outside the regulatory scheme. The Act regulates services, not households.

Principles for providers

Section 9(1) sets out principles to be taken into account by providers "in providing services to people with behaviour that causes harm to themselves or others". Under s 9(2) the service must be provided in a way that promotes the person's development and physical, mental, social and vocational ability and their opportunities for participation and inclusion in the community, and that responds to the person's needs and goals.

The framing is positive rather than restrictive: the principles describe what the service must promote, not merely what it must avoid.

Two lawful routes, and only two

Section 10 states a prohibition with two exceptions. A provider, or a relevant person for a provider, must not use a restrictive practice on a person unless:

• it is used in accordance with a registered positive behaviour support plan for the person; or
• each of three conditions applies.

The three conditions of the second route are cumulative. The provider or relevant person must believe on reasonable grounds that it is necessary to use the practice to avoid imminent harm to the person or others. The practice must be the least restrictive possible in the circumstances, having regard to three specified matters — the kinds of practice that may be used, how it is applied, and how long it is applied. And, if practicable, the use must be authorised by the person in charge of the provider.

Two features repay attention. The least-restrictive enquiry is expressly three-dimensional: kind, manner and duration are each to be considered, so a practice may be the right kind and still fail on how long it was applied. And the internal authorisation requirement is qualified by "if practicable", which recognises that an emergency may not permit it — but the qualification attaches only to that condition, not to the other two.

Reporting within five days

Section 10A applies where a practice is used on the emergency route rather than under a registered plan. The provider must give the senior practitioner a report about the use within five days (s 10A(2)).

Section 10A(3) prescribes the content: the name of the person; whether the person was a child; the kind of practice used; how long it was used; the reason; and what prior attempt, if any, was made to avoid the use.

The reporting duty is what makes the emergency route supervised rather than unaccountable. A provider relying on s 10(b) accepts a reporting obligation as the price, and the required content — particularly prior attempts to avoid use — allows the Senior Practitioner to test whether the route was properly invoked.

Five approaches to authorisation

• ACT — a cross-sector prohibition with two routes: registered positive behaviour support plan, or emergency use on three cumulative conditions with five-day reporting.
• Victoria — authorisation by an Authorised Program Officer plus Senior Practitioner approval for seclusion and restraint.
• South Australia — level 1 authorised by an Authorised Program Officer, level 2 only by the Senior Authorising Officer.
• Queensland — substantive conditions in the disability Act, consent through the guardianship Act, separate path for containment and seclusion.
• New South Wales — nothing in its disability Act at all.

The ACT is alone in regulating across sectors and in defining the practice by protective purpose rather than behavioural influence.

Applying this in a problem question

1. Confirm the entity is a provider under s 8(1), and check the close family member and informal carer exclusions.
2. Test the conduct against s 7(1)(a) by primary purpose — protection from harm — before reaching the listed categories.
3. Identify which s 10 route is relied on; there are only two.
4. On the emergency route, work all three conditions, and treat the least-restrictive enquiry as covering kind, manner and duration.
5. Note that "if practicable" qualifies only the internal authorisation condition.
6. Where the emergency route was used, address the s 10A five-day report and its required content, including prior attempts to avoid use.

Self-check

• Have I confirmed provider status rather than assuming the sector?
• Have I applied the protective primary purpose test in s 7(1)(a)?
• Have I treated the three emergency conditions as cumulative?
• Have I addressed the five-day reporting duty?