140Independent person

140 Independent person (1) An Authorised Program Officer must ensure that an independent person is available to explain to a person in respect of whom this Part applies— (a) the proposed use of a regulated restrictive practice on the person; and (b) that the person to whom this Part applies may seek, as the case requires— (i) a review of the Authorised Program Officer's decision under section 136 to authorise the use of a regulated restrictive practice; or (ii) a joint review of the Authorised Program Officer's decision under section 136 to authorise the use of a regulated restrictive practice and the Senior Practitioner's decision under section 143 to approve the use. Section 136(1)(f) provides that authorisation for use of a regulated restrictive practice under this Part may only be given if the Authorised Program Officer has complied with this section. (2) Subject to subsection (3), if changes are proposed to a behaviour support plan or an NDIS behaviour support plan as a result of a review by a disability service provider or an NDIS behaviour support practitioner, an Authorised Program Officer must ensure that an independent person is available to explain to the person for whom the behaviour support plan was prepared— (a) the details of those changes; and (b) if those changes involve the inclusion of a more restrictive form or use of regulated restrictive practice, any matter related to the inclusion of the regulated restrictive practice. (3) An Authorised Program Officer is not required to ensure that an independent person is available under subsection (2) if— (a) it is not proposed, as a result of the review, that a more restrictive form or use of regulated restrictive practice be included in the behaviour support plan or NDIS behaviour support plan; and (b) the person for whom the behaviour support plan or NDIS behaviour support plan was prepared has had the plan reviewed by the disability service provider or NDIS behaviour support practitioner in the last 12 months; and (c) during that review, an independent person was available in accordance with this section. (4) The independent person must notify the Senior Practitioner if the independent person considers that— (a) the person to whom this Part applies is not able to understand the proposal to use the regulated restrictive practice; and (b) the requirements of this Act or the relevant requirements of the NDIS Act or NDIS (Restrictive Practices and Behaviour Support) Rules are not being complied with. (5) The independent person may notify the Public Advocate of any circumstances described in subsection (4). (6) The independent person must notify the Senior Practitioner if the independent person considers that this Act, or the requirements of the NDIS Act or NDIS (Restrictive Practices and Behaviour Support) Rules, as the case requires, were not complied with when the behaviour support plan or NDIS behaviour support plan for the person to whom this Part applies was being prepared or authorised before the independent person explains the plan to the person. (7) The independent person may consult the Senior Practitioner if the independent person is concerned that this Act, or the requirements of the NDIS Act or NDIS (Restrictive Practices and Behaviour Support) Rules, as the case requires, were not complied with when the behaviour support plan or NDIS behaviour support plan for the person to whom this Part applies was being prepared or authorised. (8) An independent person assisting the person to whom this Part applies must not— (a) be a disability service provider or an NDIS provider for the person; or (b) be a representative of a disability service provider or an NDIS provider for the person; or (c) have any interest in a disability service provider or an NDIS provider for the person; or (d) have any responsibility in relation to the development or review of the person's behaviour support plan or NDIS behaviour support plan. (9) If a person in respect of whom this Part applies advises their disability service provider or registered NDIS provider that they do not consider that the person assisting them is an independent person, the Authorised Program Officer for that provider must arrange for an independent person to assist the person. New s. 141 inserted by No. 9/2023 s. 47.