We live in a society where convenience and apparent safety issues justify the individual restraint or confinement of people who are already living in closed environments.
Caxton Legal Centre recently hosted a webinar focusing on the human rights questions raised by the widespread use of restrictive practices. While the Queensland Human Rights Act 2019 applies to the State’s correctional centres it does not cover most aged care facilities, where instead a Charter of Aged Care Rights applies for individuals in receipt of Australian Government funded aged care services.
This panel discussion covered the application of human rights in aged care, disability and prison settings. Panelists identified the challenge presented to services in complying with workplace health and safety obligations to staff while using a balanced approach to apply restrictive practices, recognising that some practices, such as solitary confinement, may be so damaging that they do not facilitate greater safety.
Constraints in resourcing within institutions and the use of practices designed to enable their smooth operation, as opposed to responding to the needs of individuals, may be harmful for both people subject to restrictive practices and the staff tasked with administering them.
The closed nature of institutional environments also makes oversight and work towards reform more difficult.
What is a restrictive practice?
In Queensland, restrictive practices are defined in law under pt 6 of the Disability Services Act 2006 (Qld) (Disability Services Act) and ch 5B of the Guardianship and Administration Act 2000 (Qld).
This regime seeks to ensure that restrictive practices used by service providers take account of the adult’s human rights and are the least restrictive ways of safeguarding them and others. The legislation applies only to:
- adults 18 years or over, who have an intellectual or cognitive disability and
- are at risk of harming themselves or others and who receive services from government-provided and/or government-funded disability service providers.
It does not apply to families, or private or non-funded organisations. In some of the settings where restrictive practices are used there is no legal framework for doing so.
Types of restrictive practices
Containment means to physically prevent the free exit of the adult from the place where the adult receives disability services, other than by seclusion. However the adult is not contained if the adult has a skills deficit and cannot safely exit the premises without supervision, and the adult’s free exit from the place is prevented by the locking of gates, doors or windows.
Seclusion means to physically confine the adult alone, at any time of the day or night, in a room or area from which free exit is prevented.
Chemical restraint means using medication for the primary purpose of controlling the adult’s behaviour. Using medication to treat a diagnosed mental illness or medical condition is not chemical restraint.
Physical restraint means using any part of another person’s body to restrict the adult’s movement for the primary purpose of controlling the adult’s behaviour.
Mechanical restraint means using a device to restrict movement of the adult or preventing or reducing the adult injuring themselves, for the primary purpose of controlling the adult’s behaviour.
Restricting access to objects
Restricting access to objects means restricting the adult’s access to an object to prevent the adult using the object to cause themselves or others harm.
Further information on the laws regulating the restriction of people with intellectual or cognitive impairment to prevent harm is available on the Queensland Law Handbook website.
The webinar Restrictive Practices and Human Rights was presented by Caxton Legal Centre and the University of Queensland TC Beirne Law School in December 2020 as part of the Justice in Focus series.