Restrictive practices and positive behaviour support in Queensland 

This article states the law of Queensland. Queensland splits restrictive practices across two statutes, and getting the split right is the whole of the analysis. The Disability Services Act 2006 (Qld) sets the substantive conditions and defines positive behaviour support¹; the Guardianship and Administration Act 2000 (Qld) supplies the guardianship route through chapter 5B, under which a guardian may be appointed for a restrictive practice matter². Neither statute answers the question alone.

The human rights principle, and its status

Part 2 of the Disability Services Act states disability rights, and its framing is unusually modest. Section 17 provides that "entities are encouraged to have regard to the human rights principle in matters relating to people with disability".

Section 18(1) states that people with disability have the same human rights as other members of society and should be empowered to exercise them, and s 18(2) lists rights including respect for human worth and dignity as individuals and realisation of individual capacities — physical, social, emotional, cultural, religious and intellectual.

The verb in s 17 matters. Encouragement is not obligation, and a student should not treat the human rights principle as an enforceable constraint in the way that, for example, Queensland's own guardianship general principles bind a decision-maker under s 11B. The two statutes speak differently even within the same jurisdiction.

Positive behaviour support plans

Section 150(1) defines a positive behaviour support plan for an adult with an intellectual or cognitive disability as a plan describing strategies to meet the adult's needs, support the development of skills, maximise opportunities to improve quality of life, and reduce the intensity, frequency and duration of behaviour causing harm to the adult or others.

Section 150(2) sets a minimum content. The plan must describe, in relation to previous behaviour that caused harm, its intensity, frequency and duration; its consequences; and its early warning signs and triggers if known. It must also state the positive strategies that must be attempted before using a restrictive practice.

That last requirement is the hinge of the scheme. The plan does not merely permit a restrictive practice; it records what must be tried first.

Conditions on using restraint

Section 167(1) governs the use of chemical, mechanical or physical restraint, or restricting access, in the course of providing respite services or community access services to an adult with an intellectual or cognitive disability. Four conditions apply cumulatively:

• use of the restrictive practice is necessary to prevent the adult's behaviour causing harm to the adult or others;
• it is the least restrictive way of ensuring the safety of the adult or others;
• before using it, the provider complies with the requirements under division 5; and
• its use complies with the consent of a relevant decision-maker (respite) for the adult and with a respite/community access plan for the adult.

Section 167(2) then supplies the provision most likely to decide a case: the restrictive practice is not used in compliance with the plan if the provider does not implement the positive strategies stated in the plan. Compliance is therefore not established by pointing to a plan that authorises the practice. The positive strategies must actually have been implemented, and a provider that skipped them cannot rely on the plan.

Section 167(3) excludes the section where the adult is the subject of a containment or seclusion approval, and s 167(4) excludes chemical restraint (fixed dose). Containment and seclusion are dealt with by a separate and more demanding approval pathway.

Four models now in view

Restrictive practice authorisation has proved to be the least uniform area in this series:

• Queensland — substantive conditions and behaviour support plans in the disability statute; consent and guardianship for a restrictive practice matter in the guardianship statute; separate approval pathway for containment and seclusion.
• Victoria — authorisation by an Authorised Program Officer, plus Senior Practitioner approval for seclusion and restraint.
• South Australia — level 1 practices authorised by an Authorised Program Officer, level 2 only by the Senior Authorising Officer, with detention excluded from level 1.
• New South Wales — no restrictive practices provisions in its Disability Inclusion Act 2014 (NSW) at all.

The Commonwealth NDIS rules condition a provider's registration on authorisation "in accordance with the relevant State or Territory's authorisation process". Four jurisdictions, four processes, and in one case none in the obvious statute. That is why the jurisdiction must be identified before anything else.

Applying this in a problem question

1. Identify the jurisdiction, then identify which Queensland statute governs the aspect in issue.
2. For the use itself, work through all four conditions in s 167(1) cumulatively.
3. Apply s 167(2) directly: ask whether the positive strategies in the plan were actually implemented, not merely stated.
4. Check whether s 167(3) or (4) excludes the section — containment, seclusion or fixed-dose chemical restraint follow different paths.
5. For consent or a guardian for a restrictive practice matter, go to chapter 5B of the guardianship statute.
6. Do not treat s 17 as imposing an enforceable human rights obligation; it encourages regard to the principle.

Self-check

• Have I identified which of the two Queensland statutes answers the question?
• Have I asked whether positive strategies were implemented, not just recorded?
• Have I checked the s 167(3) and (4) exclusions?
• Have I avoided treating the human rights principle as binding?