Worked example: a restrictive practice used on an NDIS participant in Victoria 

This worked example states Commonwealth law and the law of Victoria. It uses no authority that is not established in the linked articles.

The facts

J is 27, has an intellectual disability and autism, and is an NDIS participant. He lives in supported accommodation run by Kestrel Care, a registered NDIS provider.

Over three months J has become distressed in the evenings and has damaged property. The house is short-staffed after two resignations. The house supervisor has begun locking the front door from 7pm so that J cannot leave, and on two occasions a support worker has administered a sedative that a GP prescribed "as needed for agitation".

There is no behaviour support plan. The supervisor says the locking is "just a house rule" and that the medication is a medical matter, not a restrictive practice. J's mother, who is not appointed to anything, has been told she may consent on his behalf.

Advise Kestrel Care.

Step 1 — Are these regulated restrictive practices?

Yes, on the material available, and the classification is the first thing to get right.

The National Disability Insurance Scheme Act 2013 (Cth) defines restrictive practice broadly in s 9, so the operative category — the regulated restrictive practice — comes from the Rules rather than from the Act.¹ Section 6 of the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) defines the five regulated restrictive practices.²

Locking the door so J cannot leave, and administering medication to manage his behaviour, both need to be classified against s 6. The supervisor's characterisations — "a house rule", "a medical matter" — are not classifications the Rules recognise. Whether something is a regulated restrictive practice turns on the definition, not on why staff say they are doing it.

Step 2 — What the Commonwealth actually requires

A common error here is to say that the Commonwealth prohibits the practice or that the NDIS Commission authorises it. Neither is right.

Sections 8(2), 9(2)(a), 10(2)(a) and 11(2)(a) of the Rules make the use of a regulated restrictive practice a matter of the conditions of Kestrel Care's registration, keyed to State and Territory prohibition and authorisation.

So the Commonwealth does two things and no more: it tells you authorisation is required, and it makes non-compliance a breach of a condition of registration, enforceable against the provider by the NDIS Quality and Safeguards Commissioner. It does not supply the authorisation, and it does not itself make the conduct unlawful as against J.

Step 3 — The Victorian authorisation, which does not exist here

Victoria supplies the authorisation in the Disability Act 2006 (Vic).³

Section 135 prohibits the use of a regulated restrictive practice without authorisation. Section 136 sets out what is required: authorisation by an Authorised Program Officer (s 136(1)(a)), and, for specified forms of practice, approval by the Senior Practitioner (s 136(1)(b) and (c)). Section 143 governs the Senior Practitioner's role.

Kestrel Care has neither. There is no behaviour support plan, no Authorised Program Officer authorisation, and no Senior Practitioner approval. Every use of the door lock and every administration of the sedative for behaviour management has therefore been unauthorised.

Note the structure: in Victoria the two are cumulative for specified practices, not alternatives. Obtaining the Authorised Program Officer's authorisation does not cure the absence of Senior Practitioner approval where approval is required.

Step 4 — The staffing point disposes of part of the case anyway

The house is short-staffed, and the locking began after two resignations. Even if authorisation were obtained tomorrow, that fact matters.

The clearest statutory expression of the principle is in South Australia — s 23M of the Disability Inclusion Act 2018 (SA) forbids use of a restrictive practice as a punishment or for the convenience of others, or to address inadequate levels of staffing, equipment or facilities.⁶ Victoria is a different jurisdiction and that section does not apply to Kestrel Care; it is cited here only to name the principle, which the Victorian scheme pursues through the s 136 authorisation requirements rather than through an equivalent list established in the linked articles.

The practical advice is the same either way: a restrictive practice adopted because a service is short-staffed is not a behaviour support measure, and an authorisation application resting on staffing convenience should not be made.

Step 5 — J's mother cannot consent

She has not been appointed to anything, and Victorian law does not make a parent a substitute decision-maker for an adult by virtue of the relationship.

If a decision-maker is genuinely needed, Victoria offers a graduated set of responses and they should be worked in order of restrictiveness.

A supportive attorney under ss 85 to 87 of the Powers of Attorney Act 2014 (Vic).⁴ A supportive attorney may access information, communicate J's decisions and give effect to them — but the decision remains J's. If J can decide with support, this is the answer.

An enduring attorney under the same Act, with the least-restrictive and participation principles in s 21 governing how the power is exercised.

A VCAT order under s 30 of the Guardianship and Administration Act 2019 (Vic) — but only where J does not have capacity for the particular matter, and where the order will promote his personal and social wellbeing.⁵ Both limbs are required. Capacity is assessed matter by matter, so a finding that J cannot manage a tenancy says nothing about whether he can decide about medication.

Section 9 directs every decision under that Act by J's will and preferences. A submission that a guardian should be appointed because J's behaviour is difficult for staff does not engage s 30 at all.

Step 6 — What Kestrel Care should do now

1. Stop the unauthorised practices. Section 135 prohibits them, and continuing exposes the provider to a registration consequence under the Commonwealth Rules.
2. Classify each practice against s 6 of the Rules, and record the classification.
3. Address the staffing as a staffing problem. Do not seek authorisation for a practice being used to cover a roster gap.
4. Obtain a behaviour support plan, then the Authorised Program Officer's authorisation under s 136(1)(a), and Senior Practitioner approval where the practice requires it.
5. Correct the advice given to J's mother. She holds no authority. Consider whether a supportive attorney appointment would let J decide with help.
6. Do not apply for a guardianship order as the first step. Section 30 has two limbs and the less restrictive alternatives come first.
7. Expect the regulator to be interested in the past conduct, not only the future arrangements. The registration condition was breached while the practices were unauthorised.

Self-check

• Did I classify the practice under the Rules before accepting the service's characterisation of it?
• Did I say the Commonwealth conditions registration rather than authorising or prohibiting the practice?
• Did I treat the Victorian requirements as cumulative where the practice needs Senior Practitioner approval?
• Did I refuse to treat a parent as a substitute decision-maker without an appointment?
• Did I work up the ladder of restrictiveness before reaching for a VCAT order?