Interactions with other laws
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The NDIS Commission is an independent agency established to improve the quality and safety of NDIS supports and services, including registration of behaviour support providers and oversight of regulated restrictive practice.
A ‘restrictive practice’ means any practice or intervention that restricts the rights or freedom of movement of a person with disability. Section 6 of the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) currently sets out that the following practices are deemed regulated restrictive practices: chemical restraint, mechanical restraint, physical restraint and environmental restraint.
The implementing behaviour support provider is responsible for obtaining authorisation to use the regulated restrictive practice from the appropriate body, which in Victoria, is the Senior Practitioner. The Senior Practitioner has powers under the Disability Act 2006 (Vic) to appoint authorised program officers to assist in the authorisation of regulated restrictive practices.
Authorised program officers can authorise chemical and environmental restraints. However, additional authorisation is required from the Victorian Senior Practitioner for the use of seclusion, physical restraint, mechanical restraint and regulated restrictive practices for people with psychosocial disabilities (Restrictive Practices Authorisation Frameworks for Australian States and Territories (2023)).
Any behaviour support plan recommending regulated restrictive practices must be submitted with the NDIS Commission by the participant’s specialist behaviour support provider.
Notably, specialist behaviour support providers must follow these rules under the NDIS Act:
NDIS (Code of Conduct) Rules 2018;
NDIS (Provider Registration and Practice Standards) Rules 2018 and NDIS (Quality Indicators for NDIS Practice Standards) Guidelines 2018;
NDIS (Restrictive Practices and Behaviour Support) Rules 2018;
NDIS (Incident Management and Reportable Incidents) Rules 2018.
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The implementation of the NDIS has seen a significant increase in applications for guardianship and administration orders at the Victorian Civil and Administrative Tribunal.
Substitute decision-making is not aligned with the purposes of the NDIS, and recent work on supported decision-making is reflective of the need for a greater focus on supporting people with disabilities to make their own decisions rather than authorising a nominee or guardian to make decisions for them. You can read more about the NDIA’s supported decision-making policy on the NDIS website (see ‘Contacts’, below).
While there is some overlap between the role of nominee and guardian, the roles are actually different in purpose and obligations. The existence of a nominee can be a less restrictive option than a guardian if the nominee acts in accordance with the decision-making obligations of a guardian.
Interactions with other laws
Chapter: 8.2 Understanding the National Disability Insurance Scheme
Contributor: Naomi Anderson, Legal Practice Manager, Villamanta Disability Rights Legal Service, and Marcus Boere, Lawyer, Victoria Legal Aid; Elise Almond, Senior Lawyer, Villamanta Disability Rights Legal Service; John Morrissey, Professional Support Lawyer, Victoria Legal Aid
Current as of: 3 October 2024
Law Handbook Page: 717
Next Section: Changes in the near future
