The South Australian Restrictive Practices Authorisation scheme is established by state legislation and is consistent with the National Disability Insurance Scheme Act 2013. NDIS service providers must follow national and state requirements.
The Restrictive Practices Authorisation scheme is underpinned by both state and national legislation as well as international conventions.
International human rights conventions
The United Nations Convention on the Rights of Persons with Disabilities provides a human rights framework that guides the operation, interpretation and oversight of the authorisation scheme.
National legislation
The South Australian Restrictive Practices Authorisation scheme sits within Commonwealth legislation for the National Disability Insurance Scheme (NDIS).
The national legislation, practice guidance and directions issued by the NDIS Quality and Safeguards Commission (NDIS Commission) establishes responsibilities and obligations on registered NDIS service providers delivering supports and services for people with disability in the NDIS. Nothing in the South Australian authorisation scheme changes these responsibilities and obligations.
National Disability Insurance Scheme Act 2013
This act establishes:
- the NDIS
- the National Disability Insurance Agency (NDIA)
- the NDIS Commission.
The NDIS Commission provides leadership relating to behaviour support and reducing and eliminating the use of restrictive practices by NDIS providers.
National Disability Insurance Scheme Act 2013
National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018
These rules set out:
- some of the conditions that providers must follow to become and remain registered NDIS providers
- the NDIS Practice Standards that apply to all registered NDIS providers
- the NDIS Practice Standards that apply to providers delivering more complex services such as behaviour support.
National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018
National Disability Insurance Scheme (Incident Management and Reportable Incidents) Rules 2018
These rules establish the requirements to notify the NDIS Commission of reportable incidents, including the use of unauthorised restrictive practices.
National Disability Insurance Scheme (Incident Management and Reportable Incidents) Rules 2018
National Disability Insurance Scheme (Code of Conduct) Rules 2018
The NDIS Code of Conduct promotes safe and ethical service delivery by setting out expectations for the behaviour of NDIS service providers and workers. There are guidelines that help NDIS service providers and workers understand their obligations under the NDIS Code of Conduct.
National Disability Insurance Scheme (Code of Conduct) Rules 2018
State legislation
The Disability Inclusion Act 2018, as amended by the Disability Inclusion (Restrictive Practices – NDIS) Amendment Act 2021, establishes the legislative framework for the authorisation of restrictive practices by registered NDIS providers for NDIS participants in South Australia.
The Disability Inclusion Act 2018, Disability Inclusion (Restrictive Practices – NDIS) Regulations 2021 and Restrictive Practices Guidelines must be considered in their entirety.
National framework
Along with state, territory, and national counterparts, the South Australian Government has endorsed the National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Service Sector.
The national framework ensures:
- people with disability have access to the same protections regardless of where they live
- the Australian Government and all state governments have a consistent approach to reducing and eliminating restrictive practices.
Authorisations and other orders
Authorisations
The South Australian Restrictive Practices Authorisation scheme is for a person with a disability who is:
- an NDIS participant
- receiving services from a registered NDIS service provider
- receiving NDIS supports that may include a restrictive practice.
Orders under other legislation
An NDIS participant may have orders made under other legislation, such as:
- Guardianship and Administration Act 1993
- Mental Health Act 2009
- Advanced Care Directives Act 2013
- Children and Young People (Safety) Act 2017.
These types of orders may have the effect of limiting the freedoms of people to ensure health, wellbeing and safety outcomes.
Orders made under these Acts are separate to authorisations that occur under the Restrictive Practices Authorisation scheme.
Guardianship and Administration Act 1993 – special powers
Under the Guardianship and Administration Act 1993, the South Australian Civil and Administrative Tribunal (SACAT) may make orders which:
- direct a person to reside in a specified place, or with a specified person
- detain or seclude a person in a specified place
- allows the use of force for the purpose of specific care (medical, dental and other)
- provide for the enforcement of the conditions.
Applications are made to SACAT, where they will decide:
- if an order is required
- what type of order is required.
More information about SACAT:
Interface with SACAT guardianship orders
An NDIS participant may have:
- a restrictive practice authorised under the Restrictive Practices Authorisation scheme
- an order under the Guardianship and Administration Act 1983, as made by the South Australian Civil and Administrative Tribunal.
An NDIS service provider and authorised program officer needs to understand the two systems.
When using the two systems, you should be guided by two key principles:
- The importance of assessments and intervention based on a comprehensive understanding of a person’s circumstances.
- The reduction of administrative burden for the person, their carers, families and service providers.
Nothing in the Restrictive Practices Authorisation scheme changes SACAT’s ability to make orders or the effect of existing SACAT orders.
Detention
According to Part 6A section 23C of the Disability Inclusion Act 2018 the definition of a ‘detention’ for the purposes of the Restrictive Practices Authorisation scheme is:
- any direct or indirect curtailment of a person’s ability to leave particular premises or a particular part of particular premises
- a requirement that a person be and remain in particular premises
- the refusal or limitation of access to means to leaving particular premises.
Detention must be authorised by SACAT. The Restrictive Practices Authorisation scheme can’t authorise detention.
Exceptions - seclusion
Seclusion means keeping a person in a room or space by themselves where they can’t leave (or believe they can’t leave).
In South Australia, there are three conditions on using seclusion:
- The period of seclusion can’t exceed two hours.
- It may only happen in an emergency situation, where it is necessary to prevent serious harm to the person or others.
- It is used for the purpose of de-escalation or self-regulation.
Exceptions - environmental restraint
The Restrictive Practices Authorisation Team can authorise environment restraints that involve:
- locking external gates and doors of a residential premise where NDIS services are provided on a 24-hour basis
- a situation where the NDIS participant doesn’t have the supports to safely leave the premises.
Legal guardianship and authorisation
A regulated restrictive practice implemented by a NDIS service provider can’t be authorised by a legal guardian or parent. A legal guardian or parent may agree or disagree with the use of a regulated restrictive practice. Their consent doesn’t provide authorisation for the restrictive practice.
NDIS service providers who implement a regulated restrictive practice for a child and adult must obtain authorisation under the Restrictive Practices Authorisation scheme. A regulated restrictive practice that is not authorised must be reported to the NDIS Commission.
NDIS service providers are required to comply with the Restrictive Practices Authorisation scheme and the conditions of their registration under the National Disability Insurance Scheme.
Related resources
Other websites
Australian government
National Disability Services
