It is well-known that certain industries, particularly those involving disability or aged care services, have a higher than average level of client-facing risk. This is in part because consumers of these services generally have higher levels of physical needs, and may also have difficulties expressing themselves clearly or consistently.
As a result of these unique care requirements, occasionally situations may arise where restrictive practices are necessary either for the client’s own safety or to protect another person.
However, employers and care workers must ensure that their actions do not exceed reasonable restrictive practices and slip into behaviours or acts, which could be considered assault.
WHAT ARE RESTRICTIVE PRACTICES?
According to the Australian Law Reform Commission, the definition of ‘restrictive practices’ are actions which effectively restrict the rights or freedom of movement of a person with a disability.
This could include physical restraint (such as holding somebody down), mechanical restraint (for example, with the use of a device intendend to restrict, prevent or subdue movement), chemical restraint (using sedative drugs), or social restraint (verbal interactions or threats of sanctions).
Restrictive practices are intended to used in situations where a person is demonstrating concerning, or potentially threatening behaviours. In the disability services context, this may involve people with significant intellectual or psychological impairments, but no or limited physical impairments, meaning that threats of violence could be credible and have significant effects.
Although restrictive practices are currently legal in Australia, according to the National Disability Insurance Scheme (NDIS) factsheet, they do not currently constitute ‘best practice’ for disability support.
KEY CONCERNS WITH RESTRICTIVE PRACTICES
As with any situation where the personal liberty of people is affected, the use of restrictive practices can blur into the use of inappropriate levels of force and potentially even expose the disability worker to accusations of assault.
While the greatest concern with restrictive practices would be the possibility of disabled persons being intentionally abused, it is very easy for the line between restrictive practices to be unintentionally blurred.
Although assault is defined slightly differently in each Australian state and territory under criminal law legislation, broadly, the offence involves circumstances where intentional and unwanted physical force or contact is used against another person. It can also include verbal behaviours, which are considered threatening.
While the line between the use of restrictive practices and assault may not be immediately clear, conduct is unlikely to be considered to be an assault if it can be demonstrated that the actions taken, even if they involved the use of physical force, were necessary to avoid violence or any risk of harm.
WHAT IF AN ALLEGATION OF ASSAULT DOES ARISE?
The provision of disability services is a challenging industry at the best of times. It’s important to ensure that your team is using restrictive practices appropriately and in the right circumstances to avoid any allegations of assault.
Any employers who are advised of accusations of assault must undertake a full workplace investigation in order to fulfil their dual obligations to their employees and to their clients.
At WISE Workplace, we have experience in the disability and aged care sectors, and our team can assist in all aspects of workplace investigations.