On 25 July 2023, the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (the Royal Commission) published their most recent research report (the Report) completed by the University of Melbourne, the University of Sydney and the University of Technology Sydney. The report considers the use of restrictive practices in the disability sector and found that restrictive practices often involve significant violence and coercion which do not align with international human rights obligations and laws. The report was completed over a period of nine months, Research Report – Restrictive Practices: a Pathway to Elimination, can be found here.
What are Restrictive Practices
Restrictive practices are any actions, practices or interventions which affect the right and freedom of movement of a person with disability. Restrictive practices include:
- Seclusion: confinement of a person in a physical space or room where their capacity to exit the space or room is prohibited, and is not supported or permitted;
- Chemical restraint: using medication or chemical substances, independent of regular prescribed medications, to influence a person’s behaviour;
- Mechanical restraint: using a device to prevent, restrict or subdue a person’s movement to influence their behaviour:
- Physical restraint: using physical force to prevent, restrict or subdue a person’s movement to influence their behaviour, in circumstances other than using physical force to redirect a person from potential harm or injury; and
- Environmental restraint: restricting a person’s free access to parts of an environment, item, or activity.
The Research Findings
The Report made a number of findings while researching the use of restrictive practices in disability organisations. Many of the findings were around the incompatibility of restrictive practices with international human rights obligations and laws.
The Report recognises that international human rights obligations prohibit torture, cruelty and inhume and degrading treatment and punishment of all people and that the use of restrictive practices on people with disability could meet the threshold of torture and ill-treatment. In circumstances where restrictive practices did not meet this threshold, the Report found that restrictive practices were still in breach of the Convention on the Rights of Persons with Disabilities (CRPD), as such practices still exposed people with disability to violence, abuse, harm, and trauma.
The CRPD also expects that people with disability are not subject to discrimination, however the Report found that restrictive practices breach this obligation as people with disability are subject to restrictive practices while other subsections of the community are not subjected to such practices to manage their behaviours. People with disability experience significant inequality and feel dehumanised and stigmatised because of this discrimination.
Human rights obligations state that all people have a right to dignity and to be protected from torture, violence, inequality, and discrimination, however the Report found that restrictive practices strip the protection of these rights from people with disability. People with disability described restrictive practices as being physically painful, causing them psychological harm and making them feel oppressed. They described feeling abandoned and neglected from seclusion practices and this often left them feeling distressed, psychologically harmed, and helpless. All restrictive practices were found to make people with disability fearful of physical harm and not knowing what will happen in the future, causing long-term trauma and psychological and emotional harm. People with disability also found restrictive practices to be disempowering, humiliating, unjust and dehumanising, and left them with feelings of powerlessness and feeling like they were being punished.
The Report found that restrictive practices are a form of violence, coercion and control that permeate through the ecosystem of a person with disability. Restrictive practices impose assumptions about a person’s behaviours and create uneven power dynamics. The research showed that at an organisational level, staff lack training and experience to work in a trauma-informed and disability-focused way with vulnerable people. The research also found organisations seek to manage organisational risk over individual safety and that staff lack understanding of their legal obligations and duty of care and focus on minimising organisational liability over promoting individual safety.
The Report concluded that restrictive practices are deeply entrenched in institutions, legal systems, service delivery and organisational knowledge and skills. Institutional disability settings also perpetuate congregation and segregation of people with disability and deny people the right to autonomy and choice about decisions regarding their body and their life. The research showed that this extends to depriving families of supports and services by expecting that families facilitate the daily living and community participation of people with disability within their family and creating an individualisation of responsibility.
The Report found that restrictive practices are a form of violence, coercion and control that permeate through the ecosystem of a person with disability.
Recommendations
The Royal Commission made eight recommendations which seek to end restrictive practices and address the history of trauma and injustice that such practices have had on people with disability. The eight recommendations are to:
- Prohibit restrictive practices by imposing a legal prohibition on discriminatory practices which are inconsistent with international legal obligations.
- Change attitudes and norms which drive restrictive practices by raising awareness of international legal obligations.
- Acknowledge and address historical injustices.
- Deinstitutionalise and desegregate environments and create inclusive environments which allow full participation of people with disability in the community.
- Recognise and respect the autonomy and leadership of people with disability so they can make decision about their lives.
- Utilise trauma-informed support approaches in service delivery.
- Adequately resource independent living and inclusion to reduce and remove circumstances of inequality, control, coercion, segregation, and confinement.
- Provide redress for victim-survivors either through the criminal and civil justice systems or through the delivery of a national redress scheme.
How Organisations can Safeguard from Harm
Organisations have a duty of care to ensure that people with disability do not experience violence, abuse, neglect, and exploitation. Organisations have a legal and moral obligation to not expose people with disability and other vulnerable people to restrictive practices which are perceived as physically, socially, emotionally and psychologically harmful. Organisations are required to respond appropriately to incidents of harm and work to minimise and eliminate further risk of harm. It is essential that organisations implement policies, procedures and codes of conduct which ensure safeguarding is paramount in daily practice and ensure the safety and well-being of vulnerable people.
Organisations must ensure staff are appropriately and adequately trained to work with people with disability and to understand the unique and complex needs which make them extremely vulnerable. Organisations can ensure people with disability experience safety and security within the service system by providing adequate training and support to staff and by ensuring that complaint mechanisms are readily available and understood by both staff and people with disability. When allegations are made, organisations need to ensure they respond appropriately, take the allegation seriously and allow the person with disability to feel heard and valued.
How can Safe Space Legal Help?
The team at Safe Space Legal have extensive disability safeguarding experience. We have worked with organisations to ensure they are meeting their moral and legal obligations including in relation vulnerable people. Safe Space Legal offer a large range of services including:
- Reviewing and drafting policies, procedures, complaints processes and codes of conduct;
- Delivering safeguarding training to ensure organisations are aware of their obligations and sector-specific requirements;
- Conducting specialist safeguarding investigations into allegations of violence, abuse, neglect and exploitation in the disability, aged care, and child safety investigations, including under reportable conduct schemes;
- Providing expert advice on safeguarding and current workplace systems and procedures; and
Auditing and completing root cause analyses of critical incidents.
Contact [email protected] or call (03) 9124 7321 to organise a complementary discussion in relation to your organisation’s child safety and safeguarding needs.