Surveillance technology and restrictive practices – what you need to know

Posted on 29th August 202230th August 2022 by Claire Montague

The NDIS Quality and Safeguards Commission recently published a Practice Guide on the use of surveillance technology with respect to people with disability.

The Commission has observed that surveillance is commonly used, or proposed for use, for people with disability and in disability settings, primarily with the intention of ensuring safety, monitoring health, facilitating increased independence and preventing abuse and neglect.

However, there are a number of ethical and regulatory concerns associated with the use of surveillance technologies, thus prompting the Commission’s publication of the Practice Guide.

We’ve provided below an overview of the Commission’s guidance, as well as some important considerations for your organisation if you are thinking of using surveillance technology in your support settings.

What is ‘surveillance technology’?

Surveillance technology simply refers to any device which can record information about a person through electronic means. This can include:

CCTV cameras which capture audio and visual footage
Audio monitors
GPS devices which track a person’s location
Motion sensor alarms

When does use of surveillance technology facilitate the use of a restrictive practice?

While surveillance technology may be used by providers with the aim of preventing abuse and neglect, the Commission cites a number of studies which show limited evidence to support the effectiveness of the use of surveillance technology for this purpose.

Surveillance technology is not in and of itself a restrictive practice, however it may constitute a restrictive practice if its use has the effect of restricting the rights to freedom of movement of a person with a disability.

Under the NDIS Rules, the five regulated restrictive practices are seclusion, chemical restraint, environmental restraint, mechanical restraint, and physical restraint. The use of surveillance technology may be a regulated restrictive practice where it influences a person’s behaviour, stops them from accessing particular items or environments, or restricts their freedom of movement.

However, the use of surveillance technology is unlikely to constitute a regulated restrictive practice where it enables support or increases a person’s independence and freedom of movement.

The Commission provides as an example the use of a sound sensor that alerts staff when a person with disability who is at risk of falling and hurting themselves is getting out of bed. This would not be a regulated restrictive practice, as the device is being used to help staff to attend to the person and support them, and is therefore ‘enabling support’.

By contrast, if a sound sensor is installed on a fridge to alert staff to stop a person with disability from accessing food, this would constitute a regulated restrictive practice, as it is facilitating environmental restraint. Similarly, if an alarm is on a person’s door to alert a staff member to stop a person with disability from leaving their room, this would be a regulated restrictive practice, as it facilitates seclusion.

Providers should note that any use of surveillance technology that facilitates the use of a regulated restrictive practice must be clearly identified in a participant’s behaviour support plan, and authorised in accordance with relevant State or Territory requirements. See the Commission’s Regulated Restrictive Practices Guide for more information.

Right to privacy and meeting legal obligations

There are a number of ethical issues associated with the use of surveillance technology, not least the individual’s right to privacy.

Surveillance technology (CCTV in particular) can be very invasive and can compromise the personal privacy of a person with disability. The use of CCTV monitoring in a person’s bedroom is especially problematic and may give rise to criminal liability.

Legislation that must be considered in relation to surveillance technology includes State and Territory privacy laws, the UN Convention on the Rights of Persons with Disabilities and the NDIS Act 2013.

The NDIS Practice Standards also require that participants access supports that respect and protect their dignity and right to privacy. To meet the Privacy and Dignity Practice Standard, providers must:

Implement processes and practices that respect and protect the personal privacy and dignity of each participant.
Advise participants of confidentiality policies and ensure participants understand and agree to what personal information will be collected and why, including recorded material in audio and/or visual format.

Best practice considerations when using surveillance technology with people with disability

Human rights considerations should inform any usage of surveillance technology in the disability services context. Best practice usage of surveillance technology includes taking the following steps:

Adhering to any relevant privacy laws
Acting in the best interests of the individual, taking into account their preferences
Balancing safety and autonomy, including genuine involvement of the individual in discussions
Considering options for the individual to deactivate and reactivate the device, to allow them additional privacy, where possible
Considering who can access the recordings, where recordings are stored, and for how long
Considering the security of the surveillance technology in use
Regularly reviewing the use of surveillance technology to ensure it is the least intrusive option available
Where surveillance technology is facilitating the use of a regulated restrictive practice – ensuring it is thoroughly outlined in the participant’s behaviour support plan, and reviewed at least every 12 months, or as the participant’s circumstances change
Ensuring staff training goes beyond simple usage of the device, and includes legal and ethical considerations

Providers should be mindful that surveillance technology should never be used as a substitute for limited staffing or to save on costs; nor should it replace human contact, personal care or social interaction, leading to increased social isolation. Providers should also consider the limitations of surveillance technology, which can include faulty and unreliable devices, ineffective technology leading to delays in staff responses, and the potential for devices to be removed, damaged, forgotten or hacked.

For further detail on the matters discussed in the blog post, including a checklist for considering the use of surveillance technology, we suggest providers access the NDIS Quality and Safeguards Commission’s full Surveillance Technology Practice Guide.

For guidance on the NDIS Practice Standards, please access SPP/the NDS Quality Portal for self-assessments and helpful resources.

Access key resources on SPP.

New rules for restrictive practices in aged care

Posted on 14th July 202126th October 2021 by Claire Montague

The Australian Government has recently introduced measures to strengthen the regulation of restrictive practices (formerly known as restraints) in residential aged care settings. As of 1 July 2021, key definitions and processes regarding the regulation of restrictive practices in residential aged care have changed.

These changes reflect increased regulation over the area of restrictive practices, greater alignment with the regulations of the National Disability Insurance Scheme (NDIS), and an increased focus on informed consent.

The Aged Care Quality and Safety Commission’s Regulatory Bulletin lays out these changes in greater detail.

Changes from 1 July 2021

The changes are contained in legislative amendments to the Aged Care Act 1997 and Quality of Care Principles 2014, which came into effect on 1 July 2021. They clarify the limited circumstances in which restrictive practices can be used in relation to a care recipient.

The definition of restrictive practices has been changed to include chemical restraint, environmental restraint, mechanical restraint, physical restraint and seclusion.

Use permitted only in limited circumstances, and where specific requirements are met

Updates to the Quality of Care Principles have changed the circumstances in which restrictive practices can be used, which must be:

Only as a last resort to prevent harm;
After consideration of the impact of the practice;
After best practice alternative strategies have been considered, used and documented;
Only to the extent necessary, and in a proportionate manner;
In the least restrictive form, and for the shortest time;
Where informed consent is given; and
In accordance with the care recipient’s care plan, the Aged Care Quality Standards, and the Charter of Aged Care Rights.

Specific requirements have been imposed separately for the use of chemical restraints.

While the restrictive practices are being used, the provider must regularly monitor the care recipient for signs of distress or harm, side effects and adverse events, changes in wellbeing, as well as independent functions or ability to undertake activities of daily living.

Emergency use

The Quality of Care Principles permit the temporary use of restrictive practices in the event of an emergency. In that situation, some of the specific use requirements, including the requirement to obtain consent, do not need to be met. This exemption from the requirements is to allow a provider to respond quickly to ensure the protection of a care recipient or other person from immediate harm. An emergency is a serious or dangerous, unforeseen situation which requires immediate action.

Following the emergency use of a restrictive practice, the provider is required to:

Inform the care recipient’s restrictive practices substitute decision maker about the use of the restrictive practice, and document whether this occurred;
Obtain consent for the restrictive practice and record as soon as practical; and
Once the emergency is over, revert to the usual policies and procedures regarding the application or use of any restrictive practice for the care recipient. This includes documenting the use and consideration of alternative strategies.

Reporting on the use of physical restraint has also been revised with the publication of the National Aged Care Mandatory Quality Indicator Program Manual – 2.0, which also applies from 1 July 2021.

The updated manual states, “For the purposes of the QI Program, physical restraint includes all forms of restrictive practice, excluding chemical restraint.” This means that the quality indicator for physical restraint now includes physical restraint, mechanical restraint, environmental restraint and seclusion.

In line with these reforms, we have updated our Use of Restrictive Practices Aged Care Policy, which aligns with the revised legislation, and with the new QI Program Manual, and includes the following:

Change in terminology from “restraints” to “restrictive practices”. This new term is used to describe all forms of “restraint”.
Changes to the types and definitions of restrictive practices that may be used. These definitions include chemical restraint, environmental restraint, mechanical restraint, physical restraint, and seclusion.
Clarification of existing processes that just be followed regarding consent, monitoring and evaluation, and requiring that any restrictive practice is used as a last resort.
Revised definition of “physical restraint” for purpose of recording and reporting data for the National Aged Care Mandatory Quality Indicator Program.

Our policy will help providers and their staff ensure the correct process is followed in relation to use of restrictive practices, and to record and report physical restraint in accordance with the National Aged Care Mandatory Quality Indicator Program.

This resource can be found in the Reading Room by searching “use of restrictive practices”.

Changes from 1 September 2021

Further amendments will commence from 1 September 2021, requiring providers to comply with responsibilities relating to behaviour support plans.

This includes a new requirement for providers to have a behaviour support plan in place for any care recipient who has restrictive practices used as part of their care.

Behaviour support plans will have to include:

Alternative strategies for addressing behaviours of concern;
Any restrictive practices which are used or applied once alternative strategies have been tried; and
Additional key information if the practice is used, and if its use is ongoing.

There will also be new obligations for reviewing, revising and consulting in relation to behaviour support plans.

As these amendments are not yet applicable, we have not yet included them in our updated policy. We will revise our policy again in advance of these changes.

Find key restrictive practices resources on SPP

Access our Use of Restrictive Practices (Aged Care) Policy in the SPP Reading Room.

Regulated restrictive practices for children and young people

Posted on 11th May 202112th May 2021 by Beatrice Hobson

The NDIS Commission recently released a practice guide around restrictive practices for children and young people with disability. The guide is based on the requirements in the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018. The guide does not constitute any new requirements, rather it aims to clarify information about restrictive practices by guiding organisations through scenarios relating to children and restrictive practices. The guide outlines the obligations of providers under the NDIS Commission, as well as some good practice next steps.

The Commission highlights that approximately 48% of all NDIS participants are children. Despite this, children and young people are currently under-represented in the data reported to the Commission in relation to the use of restrictive practices. The Commission fears that the number of behaviour support plans lodged for children and young people is “not an accurate reflection of current practice in the sector” and that, instead, the use of restrictive practices with children is being overlooked, ignored or minimised.

The guide reinforces that providers who are supporting children both with and without a disability must have an understanding of the National Principles for Child Safe Organisations, and must be aware of their responsibilities in relation to child protection reporting. Refer to our previous blog post to see an overview of the National Principles as well as the child safe requirements for providers in each state or territory.

Case-by-case basis

The guide highlights that the use of restrictive practices on a child or young person must be assessed on a case-by-case basis. Claiming “duty of care” doesn’t automatically omit a practice from being considered a restrictive practice. It is important to consider the context in which the practice is being used. Each case must be assessed to ensure that it is the least restrictive practice possible, and is proportionate to the potential risk of harm.

The Commission provides a tool to guide decision making around what constitutes a regulated restrictive practice for children and young people.

Child-proofing

Child safety and injury prevention practices are essential to keeping children safe. These practices are referred to as “child-proofing”. Most of these child-proofing techniques are reasonable measures to ensure the safety of children. Crucial to these being reasonable is that they are age appropriate, in line with community standards and used irrespective of whether or not the child has a disability. If this is the case, these behaviours are generally not considered a restrictive practice and do not require reporting to the Commission. The need for these child-proofing techniques however, decreases with age, in accordance with the dignity of risk principle. Continuing to implement these practices with older children and young people may constitute a restrictive practice.

The guide provides a number of examples to outline when a child-proofing technique becomes a restrictive practice, some of which include:

Not a Restrictive Practice

Using a child gate to prevent a toddler from accessing the kitchen while the stove/oven is in use
Holding a child’s hand while crossing the road

Regulated Restrictive Practice

Using a child gate to prevent a young person from accessing the kitchen at all times (environmental restraint)
Using a two-person escort to prevent a young person’s movement during an outing (physical restraint)

Things to consider...

When a regulated restrictive practice is necessary, the NDIS Rules require registered providers to take all reasonable steps to consult with the child or young person. This must occur in an accessible format and ensuring that due consideration is given to the young person’s views. The provider should reflect on the following questions:

Is it the least restrictive option available?
Is it proportionate to the potential risk of harm?
Is the support being provided within a positive behaviour support framework which promotes the child’s development and their right to take reasonable risks?
Is it being used for the shortest time possible?
Is there a clear plan for reducing and eliminating the restrictive practice over time?

Restrictive practices and parenting practices

Towards the end of the guide, there is some helpful advice for support workers delivering support within a family home where the family uses restrictive practices. The resource emphasises that it is a support worker’s job to educate families around what constitutes a restrictive practice and its associated risks. In some circumstances, families may unintentionally use high-risk strategies in the absence of all relevant information and when they lack adequate support. Behaviour support practitioners play a role in educating parents and identifying less restrictive alternatives.

The guide also provides an outline (on page 22) of the reporting requirements in relation to restrictive practices. It clarifies that while families are not required to report to the NDIS Commission, NDIS behaviour support providers must report regulated restrictive practices in participants’ behaviour support plans even if the practice is only used by the family.

Resources

We have several resources that will guide you through the regulations around restrictive practices which you can find by searching for “restrictive” in the Reading Room.

Policy: Eliminating restrictive practices
Info: Eliminating restrictive practices
Template: Restrictive practice report

The NDIS Commission also released a regulated restrictive practices guide in late October last year which provides further clarity around the use of regulated restrictive practices in people with a disability.

And don’t forget that separately, you can also access in SPP a self-assessment for the National Principles for Child Safe Organisations.

Sign up for a free trial

You can access our restrictive practice resources and many more in the SPP platform.

Minimising the use of restraints

Posted on 9th December 20198th April 2021 by Claire Montague

Amendments have been made to the Quality of Care Principles 2014 (Cth) to minimise the use of chemical and physical restraints in residential care settings, and to include specific requirements of aged care providers in relation to their use.

Requirements of providers include:

thoroughly documenting any planned use of restraint in a client’s care plan,
obtaining client consent,
notifying a client’s representative, and
obtaining authorisation from an appropriate health professional.

Additionally, the Aged Care Legislation Amendment (Quality Indicator Program) Principles 2019 (Cth) – which took effect from 1 July 2019 – require that use of physical restraint in aged care facilities must be submitted and documented through the MyAged Care Portal. The Aged Care Quality Standards also require that clinical care is best practice and is supported by a clinical governance framework that minimises the use of restraint.

For these reasons, it is pivotal that organisations understand the regulatory requirements around the use of restraint. To assist organisations in this regard, BNG has developed a policy which incorporates these regulatory requirements.

Find our policy template on SPP, in the Reading Room:

Policy: Eliminating the Use of Restraints (Aged Care)

Restrictive practices

Posted on 17th April 20198th April 2021 by Claire Montague

Restrictive practices are practices which involve the use of actions, methods and interventions that restrict the rights or freedom of a person with a disability. The main categories of restrictive practices are restraint (chemical, mechanical, physical or social) and seclusion.

There is a concern that restrictive practices are used as a ‘means of coercion, discipline, convenience, or retaliation by staff, family members or others providing support.’ If used in this manner, restrictive practices constitute a breach of a person’s human rights. Consequently, the use of restrictive practices in Australia has become a topic of concern, and recent focus among government bodies and policy makers has been on reforming policy and legislation in this area. The Australian Law Reform Commission has stated that the overall aim of reform is to reduce, and ultimately, eliminate the use of restrictive practices.

Each state and territory have their own rules regarding what restrictive practices can be used as part of a client’s treatment plan, however only five types of restrictive practices are permissible in Australia. To make it easier for NDIS providers to navigate these regulatory requirements, BNG have developed a suite of resources which are available in the SPP Reading Room:

Info Sheet: Eliminating Restrictive Practices
Policy: Eliminating Restrictive Practices (Disability)
Template: Restrictive practices reporting form
Template: Restrictive practices register