Senior Practitioner Regulation 2023

Restrictive practice is the foundational concept of the Senior Practitioner Act 2018. Although not defined in the regulation, the Act (which is not reproduced here) defines and regulates restrictive practices used on people with disability. The regulation refines that definition by carving out certain practices that can never be authorised. Prohibited restrictive practice is the defined term in section 3(2). It means either a physical restraint in Part 1.1 or a punitive approach in Part 1.2. The regulation uses both objective descriptions and subjective experiences. For example, item 1 of Part 1.2 prohibits an “aversive practice” which includes “a practice that a person experiences as noxious or unpleasant and potentially painful.” This creates a subjective element: it is not enough that the practice is objectively noxious; it must be experienced as such by the individual. That places an evidentiary burden on the practitioner to know the person’s sensitivities and history.

Prone restraint (item 1, Part 1.1) is subduing a person by forcing them face-down. Supine restraint (item 2) is face-up. Pin down (item 3) is holding limbs or any body part. Basket hold (item 4) is wrapping arms around the upper or lower body. Takedown technique (item 5) is forcing a person to free-fall or fall with support. Items 6, 7, and 8 are broader: they prohibit any physical restraint that has the purpose or effect of inhibiting respiratory or digestive functioning; pushing the head forward onto the chest; or compelling compliance through pain, hyperextension, or pressure to the chest or joints. These three are not restricted to specific physical manoeuvres but to outcomes or purposes. That is significant: even a restraint not listed by name (e.g., a floor hold that obstructs breathing) would be prohibited if it meets the effect test.

In Part 1.2, aversive practice includes giving an unwanted cold bath, putting chilli powder on food, or squirting liquid in the face. Overcorrection means requiring a disproportionate response beyond restoring the original condition, such as cleaning the whole dining floor for spilling a drink. Denial of key needs includes denying toilet paper or period products, withholding food or drink, or depriving sleep. Response cost means requiring a person to give up a positive item or activity because of their behaviour. Spithood and restraint chair are named without further definition; presumably they refer to devices that cover the face or confine a person to a chair. The regulation does not define “restraint chair” further, which could lead to interpretation disputes, e.g., whether a specially designed wheelchair with harnesses qualifies.

Coercive verbal or gestural conduct (item 7, Part 1.2) is also prohibited, but only if it is of a “coercive nature to compel someone to do something they do not want to do.” That leaves room for redirection or requests that are not coercive. The line may be fine and context-dependent.

The regulation directly affects senior practitioners authorised under the Senior Practitioner Act 2018. Senior practitioners are individuals (often behaviour support practitioners, psychologists, or therapists) who are approved to authorise the use of restrictive practices in regulated settings (e.g., disability accommodation, day programs). They must ensure that the practices they authorise do not fall within Schedule 1. If a senior practitioner authorises or uses a prohibited practice, they are breaching the Act (via the regulation). They cannot defend on the grounds of necessity or good faith, because the regulation is absolute.

Disability service providers in the ACT that are subject to the Senior Practitioner Act are also affected. These include both government-run and private providers (for-profit and not-for-profit). They must train staff, update behaviour support plans, and remove any prohibited practices from their protocols. Support workers and direct care staff who actually implement restrictive practices must know which techniques are banned. A support worker who uses a basket hold or prone restraint, even if they believed it was necessary to prevent harm, could face disciplinary action or liability under the Act.

People with disability (participants) are the intended beneficiaries of the prohibitions. The regulation aims to reduce the risk of injury, psychological harm, and human rights violations. However, it also imposes trade-offs. For some individuals with very challenging behaviours, the removal of techniques like takedowns or restraint chairs may increase the likelihood of injury to themselves or others if less restrictive alternatives are inadequate. The regulation does not provide a safety valve for emergencies, although the principal Act may have such provisions. The regulation is silent on whether a senior practitioner can use proportionate force in self-defence or to prevent imminent serious harm to others; that would be governed by the general criminal law, not this regulation.

Families, guardians, and advocates are indirectly affected. They now have a clearer standard to hold providers accountable. If a prohibited practice is used, they can report it to the ACT Senior Practitioner office or the NDIS Quality and Safeguards Commission. The regulation may also affect NDIS behaviour support practitioners who work across state lines, because ACT rules differ from other jurisdictions. A practitioner trained in a state that permits supine restraint for certain emergencies must adjust to the ACT’s broader prohibition.

The ACT Senior Practitioner office is the regulator. It must investigate complaints, monitor compliance, and potentially recommend revocation of authorisations. The regulation expands the scope of what is prohibited, increasing the office’s enforcement workload.

The regulation does not create rights directly; it imposes a duty not to use prohibited restrictive practices. That duty falls on any person who is authorised under the Act to use restrictive practices. It is an absolute prohibition: there is no discretion to use these practices even if no alternative is available. The duty is not qualified by “reasonable” or “proportionate.” The regulation states “must not include prohibited restrictive practices.” That is the only duty explicitly stated in the regulation.

However, the regulation interacts with broader duties under the Senior Practitioner Act 2018. Those duties (not detailed here) likely include requirements to use the least restrictive practice, to obtain informed consent (or have a legal authority), and to monitor and review practices. The regulation sets the floor: no matter how well-intentioned or supervised, a prohibited practice is always a breach.

For individuals subject to restrictive practices, the regulation creates a right to be free from these specific forms of restriction. That right is enforceable through complaints to the Senior Practitioner, the ACT Ombudsman, or the NDIS Quality and Safeguards Commission. It may also ground civil liability (e.g., assault, false imprisonment) if a prohibited practice is used unlawfully. The regulation does not provide a private right of action but strengthens existing common law and statutory protections.

Duty of care is relevant. A provider who uses a prohibited practice may argue they were acting to prevent harm. But the regulation trumps that: the duty not to use prohibited practices is statutory, and no common law duty of care authorises a breach of statute. The practitioner must find another lawful alternative, even if it is less effective. This creates a potential tension: if using a prohibited practice is the only reasonably available method to prevent serious harm, the practitioner is between the Act and the person’s safety. The regulation offers no guidance for that scenario, leaving it to the general law of necessity or self-defence, which are fact-specific.

Rights of staff are also relevant. Staff have a right to a safe workplace. The prohibition may mean they are expected to manage dangerous behaviour without techniques they consider necessary. That could increase physical risk to staff. The regulation does not address staff safety directly, but providers must balance it through training, environmental design, staffing ratios, and positive behaviour support. Failure to do so could expose them to workplace health and safety liability.

The regulation itself does not prescribe penalties. Section 3 is a prohibitory provision that relies on enforcement mechanisms in the Senior Practitioner Act 2018. Under the principal Act, using a prohibited restrictive practice is likely an offence (the regulation is made under s 10(b)(ii)(A), which deals with the kinds of restrictive practices that may be used). The penalty amounts under ACT legislation are set by the Legislation Act 2001, section 133: at the republication date, a penalty unit is $160 for an individual and $810 for a corporation. Offences under the Senior Practitioner Act may carry significant penalties, potentially multiple penalty units per contravention. Without the Act text, we cannot specify the exact maximum fine, but the regulation is not the source of the penalty; it is the rule that defines the conduct.

Enforcement is likely the responsibility of the ACT Senior Practitioner. They can investigate complaints, issue directions, require corrective action, suspend or revoke senior practitioner authorisations, and refer matters for prosecution. The principal Act may also allow civil penalties or injunctions. The regulation provides an objective checklist: if a practice matches a description in Schedule 1, it is prohibited. There is no defence of good faith, necessity, or clinical judgment (unless the Act provides one, which the regulation does not).

Additionally, providers regulated under the NDIS Quality and Safeguarding Framework may face action from the NDIS Commission. Prohibited practices under this regulation would likely constitute a breach of the NDIS Practice Standards or Code of Conduct, leading to sanctions including banning orders. Because the regulation is subsidiary legislation, a breach is not just a contractual or policy violation but a breach of a law. That raises the stakes for providers.

For individual support workers, using a prohibited practice could lead to criminal charges for assault, unlawful detention, or reckless conduct causing harm. The regulation strengthens the legal basis for such charges by removing any statutory authorisation. A worker who uses a prone restraint cannot argue they were following an approved behaviour support plan, because the plan cannot lawfully authorise it.

The regulation interacts primarily with the Senior Practitioner Act 2018 (the parent Act). It specifies what the Act means by “kinds of restrictive practices that may be used.” The Act likely sets out the conditions under which restrictive practices can be authorised (e.g., only as part of a behaviour support plan, with safeguards). The regulation narrows the scope of lawful practices. The relationship is hierarchical: the regulation must be consistent with the Act, and it is limited to specifying prohibited practices; it cannot amend the Act.

Under the NDIS Act 2013 (Commonwealth) and associated rules, providers must comply with state and territory laws that impose additional restrictions on restrictive practices. This regulation increases the compliance burden for NDIS providers operating in the ACT. A practice like supine restraint may be lawful in another state but is prohibited in the ACT. Providers must adapt their policies and training to each jurisdiction. The NDIS (Restrictive Practices and Behaviour Support) Rules 2018 require that behaviour support plans only include practices that are lawful in the relevant jurisdiction. So this regulation effectively dictates what can be in NDIS plans in the ACT.

The Human Rights Act 2004 (ACT) is relevant. Prohibiting these practices advances the right to freedom from torture and cruel, inhuman or degrading treatment (section 10) and the right to liberty (section 18). The regulation may be seen as a legislative implementation of human rights obligations. Conversely, a person who is harmed because a prohibited practice was not used (e.g., injury during a restraint-free de-escalation that fails) might argue that their right to life or security was not adequately protected. The regulation does not resolve that balance.

Criminal law (Crimes Act 1900 (ACT) and common law) remains applicable. Using a prohibited practice may constitute assault, battery, or false imprisonment. The regulation removes the defence of lawful authorisation. A person who uses a spithood could be prosecuted for assault regardless of any senior practitioner approval.

Work Health and Safety Act 2011 (ACT) imposes duties on persons conducting a business or undertaking to ensure, so far as reasonably practicable, the health and safety of workers and others. This regulation may increase the risk to workers if they are required to manage behaviour without previously used restraint techniques. Providers must design safer systems, such as improved staffing levels, environmental modifications, and trauma-informed approaches. Failure to do so could result in WHS prosecutions. The regulation does not override WHS duties, but it restricts the toolbox workers can use.

Disability Discrimination Act 1992 (Cth) and the United Nations Convention on the Rights of Persons with Disabilities are broader instruments. The regulation aligns with the prohibition of torture and cruel treatment. It may, however, be challenged by persons who argue that the absence of certain practices denies them reasonable accommodation leading to discrimination (e.g., if a person’s access to a facility depends on the facility being able to use a restraint chair to manage behaviour). Such arguments are hypothetical and untested.

The regulation has no amendment history. It is a first republication (Republication No 1), effective 22 December 2023, and has not been amended. The only editorial changes are those under Part 11.3 of the Legislation Act 2001, which are formal and do not change substance. The regulation was notified on the ACT Legislation Register on 21 December 2023. Sections 1 and 2 (name and commencement) commenced on that date. The remainder (section 3 and Schedule 1) commenced on 22 December 2023. There are no uncommenced provisions or modifications. The regulation is a single-purpose instrument that has been stable since commencement.

The lack of amendment history suggests that the government considers the list of prohibited practices to be settled, or that the regulation is new enough that no review has occurred. It may be amended in the future to add or remove practices, or to clarify definitions (e.g., “restraint chair” currently undefined). Practitioners should monitor for amendments because the regulation is the sole source for what is prohibited.

There is no reported litigation history for this regulation. It is a new instrument (2023) and has been in force for a short time. The principal Act (Senior Practitioner Act 2018) may have generated some administrative decisions or tribunal reviews, but the regulation itself has not been tested in court. That does not mean it will not be challenged. Potential grounds of challenge include:

• Ultra vires: if the regulation goes beyond what the Act permits. The Act gives power to prescribe prohibited practices under s 10(b)(ii)(A). The regulation stays within that scope. However, if a practice is defined in a way that is uncertain (e.g., “coercive verbal conduct” as experienced by the person) it could be argued to be void for uncertainty.

• Human rights compatibility: the ACT has a Human Rights Act that requires subordinate laws to be compatible. A person affected could argue that the regulation fails to protect their right to health or life if it removes techniques that are necessary to prevent self-harm. That would require a human rights claim against the government.

• Administrative review: a senior practitioner whose authorisation is revoked for using a prohibited practice could seek review in the ACT Civil and Administrative Tribunal. The Tribunal would interpret the regulation’s definitions. That could generate case law on what constitutes “respiratory or digestive functioning” restraint.

• Civil claims: individuals injured by the use (or non-use) of a prohibited practice may sue providers. This regulation would be relevant evidence of the standard of care. It does not create a cause of action but informs negligence claims.

Given the regulation’s youth, the litigation history is effectively nil. This section will remain empty until cases arise.

Several subtle traps exist in the regulation. First, subjective experience is a feature of Part 1.2 item 1: “a practice that a person experiences as noxious or unpleasant and potentially painful.” This means a practice could be objectively benign but become prohibited if the particular person experiences it as noxious. For example, a gentle cold-water wipe might be aversive to someone with sensory sensitivities. The practitioner must know the person’s history and anticipate their experience. Failure to predict a subjective reaction is not a defence.

Second, intent versus effect: items 6, 7, and 8 of Part 1.1 prohibit restraints that have the purpose or effect of inhibiting respiratory functioning, pushing the head forward, or compelling compliance through pain. This captures unintended consequences. A restraint designed only to immobilise a limb could still be prohibited if it incidentally restricts breathing. The provider bears the risk of unintended physiological effects.

Third, short descriptions are not exhaustive. The column 3 short descriptions (e.g., “prone restraint”, “pin down”) are summaries. The legal prohibition is the column 2 description. For example, item 1 describes “subdue a person by forcing them into a face-down position.” A practitioner might argue that placing a person face-down to help them calm down is not “forcing” if the person cooperates. But if there is any element of force (physical or authoritative), it is captured. The short description is misleadingly simplistic.

Fourth, “withhold supports or basic needs” (item 3, Part 1.2) includes denial of toilet paper or period products. That means a provider cannot, as a consequence for behaviour, deny access to hygiene products even if the person uses them inappropriately (e.g., clogging toilets). The provider must find alternative strategies. Similarly, “limit or deny access to a person’s culture” (item 5) is broad: it includes limiting opportunity to participate in community or access artworks or reading materials for cultural development. A practitioner who restricts a person’s internet access as part of a behaviour plan must ensure it does not limit cultural participation, which might be a challenge for plans involving screen time limits.

Fifth, coercive verbal or gestural conduct (item 7, Part 1.2) is prohibited if it compels someone to do something they do not want to do. This could cover shouting commands, blocking exits, or looming. Many behaviour support strategies (e.g., “first/then” language) could be argued to be coercive. The line between instruction and coercion is not defined.

Sixth, use of a spithood and use of a restraint chair are prohibited without qualification. There is no exception for transportation (e.g., ambulance) or medical necessity. If a restraint chair is the only safe way to transport a person, the provider must find alternatives (e.g., sedation under medical authority). The regulation does not distinguish between emergency and planned use.

Seventh, the regulation does not define “restrictive practice” itself; that definition is in the Act. A practitioner who assumes the regulation covers all possible prohibited practices might overlook a practice that is prohibited under the Act but not listed in Schedule 1. The regulation is an additional layer, not a complete code.

Compliance starts with auditing current practices. Every senior practitioner and provider must review all behaviour support plans, emergency procedures, and staff training manuals to ensure none include any listed practice. This involves identifying physical techniques (e.g., basket holds, takedowns) and environmental controls (e.g., restraint chairs, spithoods). Also review indirect practices: for instance, a policy that uses response cost (e.g., “if you hit, you lose TV time”) must be removed if it meets the description (requires giving up a positive item because of behaviour). Overcorrection (e.g., cleaning the whole room for a spill) must be eliminated. The audit should include a check of all items, not just the obvious ones.

Training must be updated. All staff authorised to implement restrictive practices (including emergency respites) must be trained that these practices are never acceptable. They should be given alternative techniques that are lawful (e.g., standing holds, seclusion if permitted, de-escalation, environmental redesign). Training should cover the subjective experience element: staff must learn to assess whether a person experiences a practice as noxious. That requires individualised planning.

Behaviour support plans must be rewritten if they reference prohibited practices. Plans should be positive behaviour support plans, focusing on prevention, environment modification, teaching replacement behaviours, and only using lawful restrictive practices as a last resort. The plan should document why each prohibited practice is not used and what alternatives are attempted.

Emergency procedures are critical. Since prohibited practices cannot be used even in an emergency, providers must have robust emergency protocols that rely on lawful methods (e.g., calling police or ambulance, using safe standing holds that do not restrict breathing, retreating to a safe room). Staff must be trained to recognise when they cannot safely manage a situation and must summon external help. The regulation does not require staff to sacrifice safety; it only restricts the means.

Documentation and monitoring help demonstrate compliance. Record when a restrictive practice is used, including the specific technique, duration, and outcome. Any practice that could be interpreted as prohibited (e.g., a pin down) must be reviewed by the senior practitioner. The senior practitioner must approve all restrictive practices in writing, and that approval must state that the practice is not prohibited.

Engage with the ACT Senior Practitioner office. Seek guidance on borderline practices (e.g., whether a specific type of floor restraint amounts to a takedown). The office may issue guidelines or policies on interpretation. Providers should subscribe to updates on amendments.

Liability protection: indemnity insurance should be reviewed. An insurer may exclude coverage for claims arising from use of prohibited practices. Providers should confirm coverage.

Finally, stay within the law across jurisdictions. If an NDIS provider operates in multiple states, they must apply ACT rules to ACT services. A one-size-fits-all national behaviour support plan may be non-compliant in the ACT. Each plan should be jurisdiction-specific or contain a clear note that prohibited practices are never used.