DISABILITY SERVICES AND OTHER LEGISLATION AMENDMENT BILL 2008

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DISABILITY SERVICES AND OTHER LEGISLATION AMENDMENT BILL 2008

Queensland Disability Services and Other Legislation Amendment Bill 2008

Queensland Disability Services and Other Legislation Amendment Bill 2008 Contents Page Part 1 Preliminary 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Part 2 Amendment of Disability Services Act 2006 3 Act amended in pt 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 4 Amendment of s 5 (Act does not affect other rights or remedies) 10 5 Amendment of s 6 (Objects of Act) . . . . . . . . . . . . . . . . . . . . . . . 11 6 Amendment of s 7 (How objects are mainly achieved). . . . . . . . . 11 7 Insertion of new pt 10A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Part 10A Use of restrictive practices Division 1 Preliminary 123A Purpose of pt 10A. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 123B Service providers to which pt 10A applies . . . . . . . . . 12 123C Principles for performing functions etc. . . . . . . . . . . . 12 123D Explanation of operation of pt 10A . . . . . . . . . . . . . . . 12 123E Definitions for pt 10A . . . . . . . . . . . . . . . . . . . . . . . . . 14 123F Meaning of chemical restraint . . . . . . . . . . . . . . . . . . 18 123G Meaning of contain . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 123H Meaning of mechanical restraint . . . . . . . . . . . . . . . . 18 123I Requirement to keep and implement a policy . . . . . . 19 Division 2 Important concepts for using restrictive practices 123J Assessment of an adult . . . . . . . . . . . . . . . . . . . . . . . 20 123K Who is appropriately qualified to assess an adult . . . 21 123L What is a positive behaviour support plan . . . . . . . . . 22 Division 3 Containment and seclusion

Disability Services and Other Legislation Amendment Bill 2008 Contents Subdivision 1 Requirements for containing or secluding an adult 123M Containing or secluding an adult under containment or seclusion approval . . . . . . . . . . . . . . . . . . . . . . . . . 25 123N Containing or secluding an adult for respite services or community access services . . . . . . . . . . . . . . . . . . 26 123O Containing or secluding an adult under short term approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Subdivision 2 Multidisciplinary assessment and development of positive behaviour support plan 123P Application of sdiv 2 . . . . . . . . . . . . . . . . . . . . . . . . . . 28 123Q Chief executive to decide whether multidisciplinary assessment of adult will be conducted. . . . . . . . . . . . 28 123R Notice of decision not to conduct assessment . . . . . . 29 123S Development of positive behaviour support plan following assessment . . . . . . . . . . . . . . . . . . . . . . . . . 30 123T Participation of psychiatrist in development of plan--adult subject to forensic order or involuntary treatment order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Subdivision 3 Changing a positive behaviour support plan 123U Application of sdiv 3 . . . . . . . . . . . . . . . . . . . . . . . . . . 32 123V Who may change positive behaviour support plan. . . 32 123W When chief executive must decide whether positive behaviour support plan should be changed . . . . . . . . 32 123X Requirements for chief executive's decision about whether change should be made . . . . . . . . . . . . . . . . 33 123Y Action of chief executive after deciding whether change should be made . . . . . . . . . . . . . . . . . . . . . . . 33 Subdivision 4 General requirements for containment or seclusion 123Z Relevant service provider to ensure adult's needs are met ................................ 36 Division 4 Use of restrictive practices other than containment or seclusion Subdivision 1 Requirements for using chemical, mechanical or physical restraint, or restricting access 123ZA Using chemical, mechanical or physical restraint, or restricting access, with consent of guardian etc. . . . . 36 123ZB Using chemical, mechanical or physical restraint, or restricting access, for respite services or community access services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Page 2

Disability Services and Other Legislation Amendment Bill 2008 Contents 123ZC Using chemical restraint (fixed dose) for respite services ............................... 39 123ZD Using chemical, mechanical or physical restraint, or restricting access, under short term approval . . . . . . 39 Subdivision 2 Assessment of adult and positive behaviour support plan 123ZE Application of sdiv 2 . . . . . . . . . . . . . . . . . . . . . . . . . . 40 123ZF Requirements for development of positive behaviour support plan--assessment and consultation . . . . . . . 40 123ZG Changing a positive behaviour support plan . . . . . . . 42 123ZH Requirement for relevant service provider to consider whether plan should be changed. . . . . . . . . 43 Subdivision 3 Requirements if adult subject to forensic order or involuntary treatment order 123ZI Requirement for relevant service provider to notify guardian ................................ 43 123ZJ Requirement for relevant service provider to notify director of mental health. . . . . . . . . . . . . . . . . . . . . . . 44 Subdivision 4 Short term approvals given by chief executive 123ZK Short term approval for use of restrictive practices other than containment or seclusion . . . . . . . . . . . . . 45 123ZL Period for which short term approval has effect . . . . . 47 123ZM Conditions of short term approval . . . . . . . . . . . . . . . 47 123ZN Chief executive's decision about approving short term plan ................................ 48 Division 5 Use of restrictive practices for respite services or community access services 123ZO Purpose of div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 123ZP Requirement to develop respite/community access plan .................................. 49 123ZQ Obtaining information about the adult . . . . . . . . . . . . 51 123ZR Consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 123ZS Risk assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Division 6 Policy about use of restrictive practices 123ZT Application of div 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 123ZU Policy must be consistent with department's policy . . 53 123ZV Requirements for content of department's policy . . . . 53 123ZW Requirements for publication of department's policy etc. ................................... 56 Division 7 Review of particular chief executive decisions Page 3

Disability Services and Other Legislation Amendment Bill 2008 Contents 123ZX Application of div 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 123ZY Definitions for div 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 123ZZ Application for review . . . . . . . . . . . . . . . . . . . . . . . . . 57 123ZZA Review of relevant decision . . . . . . . . . . . . . . . . . . . . 57 Division 8 Miscellaneous provisions Subdivision 1 Immunity for use of restrictive practices 123ZZB Immunity from liability--relevant service provider . . . 58 123ZZC Immunity from liability--individual acting for relevant service provider . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Subdivision 2 Requirements for relevant service providers 123ZZD Requirement to give information to guardian or informal decision maker . . . . . . . . . . . . . . . . . . . . . . . 60 123ZZE Requirement to keep records and other documents . 62 123ZZF Notification requirements about approvals given for use of restrictive practices . . . . . . . . . . . . . . . . . . . . . 63 Subdivision 3 Confidentiality provisions 123ZZG Definitions for sdiv 3 . . . . . . . . . . . . . . . . . . . . . . . . . . 65 123ZZH Relevant service provider may request confidential information from health professional or chief executive (health) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 123ZZI Relevant service providers must maintain confidentiality .......................... 66 8 Insertion of new pt 15, div 1A . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Division 1A Locking of gates, doors and windows 214A Application of div 1A. . . . . . . . . . . . . . . . . . . . . . . . . . 67 214B Definitions for div 1A. . . . . . . . . . . . . . . . . . . . . . . . . . 68 214C Immunity from liability--relevant service provider . . . 68 214D Immunity from liability--individual acting for relevant service provider . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 214E Department's policy about locking of gates, doors and windows. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 9 Amendment of s 222 (Confidentiality of other information) . . . . . 70 10 Insertion of new s 233A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 233A Review of Guardianship and Administration Act 2000, ch 5B ............................. 71 11 Amendment of pt 16, div 2 hdg (Transitional provisions) . . . . . . . 71 12 Insertion of new pt 16, div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 Division 3 Transitional provisions for Disability Services and Other Legislation Amendment Act 2008 Page 4

Disability Services and Other Legislation Amendment Bill 2008 Contents Subdivision 1 Preliminary 241 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 Subdivision 2 Immunity from liability for use of restrictive practices before commencement 242 Immunity of previous service provider . . . . . . . . . . . . 73 243 Immunity of individual acting for previous service provider ................................ 74 Subdivision 3 Immunity from liability for use of restrictive practices during transitional period 244 Immunity of relevant service provider. . . . . . . . . . . . . 74 245 Requirement to assess adult if no authorised guardian ............................. 75 246 Immunity for individual acting for relevant service provider ................................ 76 247 Relationship of subdivision with pt 10A . . . . . . . . . . . 76 248 Circumstances in which subdivision stops applying. . 76 Subdivision 4 Other provisions 249 Requirements for department's policy about use of restrictive practices during transitional period . . . . . . 77 250 Short term approvals not to be given during transitional period . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 13 Amendment of sch 7 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 79 Part 3 Amendment of Guardianship and Administration Act 2000 14 Act amended in pt 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 15 Amendment of s 12 (Appointment). . . . . . . . . . . . . . . . . . . . . . . . 81 16 Amendment of s 13 (Advance appointment) . . . . . . . . . . . . . . . . 82 17 Insertion of new s 13A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 13A Advance appointment--guardian for restrictive practice matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 18 Amendment of s 26 (Automatic revocation) . . . . . . . . . . . . . . . . . 83 19 Amendment of s 28 (Periodic review of appointment) . . . . . . . . . 84 20 Amendment of s 29 (Other review of appointment) . . . . . . . . . . . 84 21 Amendment of s 33 (Power of guardian or administrator) . . . . . . 85 22 Insertion of new ch 5B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 Chapter 5B Restrictive practices Part 1 Preliminary 80R Application of ch 5B . . . . . . . . . . . . . . . . . . . . . . . . . . 85 80S Purpose of ch 5B . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 Page 5

Disability Services and Other Legislation Amendment Bill 2008 Contents 80T Effect of ch 5B on substitute decision maker's ability to make health care decision . . . . . . . . . . . . . . . . . . . 86 80U Definitions for ch 5B . . . . . . . . . . . . . . . . . . . . . . . . . . 86 Part 2 Containment or seclusion approvals Division 1 Giving containment or seclusion approvals 80V When tribunal may approve use of containment or seclusion ............................... 88 80W Matters tribunal must consider . . . . . . . . . . . . . . . . . . 89 80X When tribunal may approve use of other restrictive practices ................................ 90 Division 2 Period of containment or seclusion approval 80Y Period for which containment or seclusion approval has effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 80Z Automatic revocation of containment or seclusion approval ................................ 91 Division 3 Reviewing a containment or seclusion approval 80ZA When containment or seclusion approval may be reviewed ............................... 91 80ZB Review process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 Part 3 Guardians for a restrictive practice matter 80ZC Application of pt 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 80ZD Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 80ZE Requirements for giving consent--guardian for restrictive practice (general) matter . . . . . . . . . . . . . . 94 80ZF Requirements for giving consent--guardian for restrictive practice (respite) matter . . . . . . . . . . . . . . . 95 Part 4 Short term approval of adult guardian for use of particular restrictive practices 80ZG Application of pt 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 80ZH When adult guardian may give short term approval for use of containment or seclusion . . . . . . . . . . . . . . 97 80ZI Conditions to which s 80ZH approval is subject . . . . . 98 80ZJ Adult guardian's decision about whether to approve short term plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 80ZK When adult guardian may give short term approval for use of other restrictive practices . . . . . . . . . . . . . . 99 80ZL Right of adult guardian to information for making decision ................................ 100 80ZM Requirement for adult guardian to give notice of decision ............................... 101 Page 6

Disability Services and Other Legislation Amendment Bill 2008 Contents Part 5 Tribunal proceedings Division 1 General 80ZN Relationship with ch 7 . . . . . . . . . . . . . . . . . . . . . . . . 102 Division 2 Applications 80ZO Who may apply for a containment or seclusion approval ............................... 103 80ZP Who may apply for appointment of guardian for restrictive practice matter . . . . . . . . . . . . . . . . . . . . . . 103 Division 3 Other matters 80ZQ Who is an active party . . . . . . . . . . . . . . . . . . . . . . . . 103 80ZR Interim orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 Part 6 Miscellaneous provisions 80ZS Requirements for informal decision makers--consenting to use of restrictive practices . . 105 80ZT Informal decision makers must maintain confidentiality ......................... 107 80ZU Review of ch 5B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 23 Amendment of s 82 (Functions) . . . . . . . . . . . . . . . . . . . . . . . . . . 108 24 Amendment of s 98 (Annual report) . . . . . . . . . . . . . . . . . . . . . . . 108 25 Amendment of s 118 (Tribunal advises persons concerned of hearing) ......................................... 109 26 Amendment of s 174 (Functions) . . . . . . . . . . . . . . . . . . . . . . . . . 109 27 Amendment of s 222 (Definitions for ch 10) . . . . . . . . . . . . . . . . . 109 28 Amendment of s 230 (Reports by community visitors). . . . . . . . . 110 29 Insertion of new ch 12, pt 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 Part 8 Transitional provisions for Disability Services and Other Legislation Amendment Act 2008 265 Powers of guardians--use of restrictive practices . . . 110 266 Short term approvals not to be given during transitional period . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 30 Amendment of sch 2 (Types of matters). . . . . . . . . . . . . . . . . . . . 111 31 Amendment of sch 4 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 111 Page 7

2008 A Bill for An Act to amend the Disability Services Act 2006 and the Guardianship and Administration Act 2000 to safeguard the rights of adults with an intellectual or cognitive disability by regulating the use of restrictive practices by particular disability service providers in relation to those adults

Disability Services and Other Legislation Amendment Bill 2008 Part 1 Preliminary [s 1] The Parliament of Queensland enacts-- 1 Part 1 Preliminary 2 Clause 1 Short title 3 This Act may be cited as the Disability Services and Other 4 Legislation Amendment Act 2008. 5 Clause 2 Commencement 6 This Act commences on a day to be fixed by proclamation. 7 Part 2 Amendment of Disability 8 Services Act 2006 9 Clause 3 Act amended in pt 2 10 This part amends the Disability Services Act 2006. 11 Clause 4 Amendment of s 5 (Act does not affect other rights or 12 remedies) 13 Section 5(1), after `This Act'-- 14 insert-- 15 `, other than sections 123ZZB, 123ZZC, 214C, 214D, 242 to 16 244 and 246,'. 17 Page 10

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 5] Clause 5 Amendment of s 6 (Objects of Act) 1 Section 6-- 2 insert-- 3 `(c) to safeguard the rights of adults with an intellectual or 4 cognitive disability including by regulating the use of 5 restrictive practices by funded service providers in 6 relation to those adults-- 7 (i) only where it is necessary to protect a person from 8 harm; and 9 (ii) with the aim of reducing or eliminating the need 10 for use of the restrictive practices.'. 11 Clause 6 Amendment of s 7 (How objects are mainly achieved) 12 Section 7-- 13 insert-- 14 `(e) stating requirements for when funded service providers 15 may use restrictive practices in relation to adults with an 16 intellectual or cognitive disability.'. 17 Clause 7 Insertion of new pt 10A 18 After section 123-- 19 insert-- 20 `Part 10A Use of restrictive practices 21 `Division 1 Preliminary 22 `123A Purpose of pt 10A 23 `The purpose of this part is to protect the rights of adults with 24 an intellectual or cognitive disability by regulating the use of 25 restrictive practices by funded service providers in relation to 26 those adults in a way that-- 27 Page 11

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] (a) has regard to the human rights of those adults; and 1 (b) safeguards them and others from harm; and 2 (c) maximises the opportunity for positive outcomes and 3 aims to reduce or eliminate the need for use of the 4 restrictive practices; and 5 (d) ensures transparency and accountability in the use of the 6 restrictive practices. 7 `123B Service providers to which pt 10A applies 8 `This part applies to a funded service provider who provides 9 disability services to an adult with an intellectual or cognitive 10 disability (a relevant service provider). 11 `123C Principles for performing functions etc. 12 `(1) This section applies to a person, including a relevant service 13 provider, who performs a function, or exercises a power, 14 under this part. 15 `(2) Despite section 18, the person must have regard to the human 16 rights principle in performing the function or exercising the 17 power. 18 `123D Explanation of operation of pt 10A 19 `(1) The purpose of this section is to explain generally the 20 circumstances in which a relevant service provider may be 21 authorised under this part to use a restrictive practice in 22 relation to an adult with an intellectual or cognitive disability. 23 `(2) Use of the restrictive practice may be authorised if the 24 following are satisfied-- 25 (a) for containment or seclusion, or an associated restrictive 26 practice-- 27 (i) a positive behaviour support plan is prepared for 28 the adult by the chief executive; and 29 Page 12

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] (ii) use of the restrictive practice is approved by the 1 guardianship tribunal; 2 (b) for any other restrictive practice-- 3 (i) a positive behaviour support plan is prepared for 4 the adult by the relevant service provider; and 5 (ii) use of the restrictive practice is consented to by a 6 guardian for a restrictive practice (general) matter 7 for the adult or, in some cases, an informal 8 decision maker for the adult; 9 (c) for all restrictive practices, use of the restrictive 10 practice-- 11 (i) is necessary to prevent the adult's behaviour 12 causing harm to the adult or others; and 13 (ii) is the least restrictive way of ensuring the safety of 14 the adult or others; and 15 (iii) complies with the positive behaviour support plan 16 for the adult. 17 Note-- 18 Some other requirements must also be complied with for the relevant 19 service provider to be authorised to use the restrictive practice. See 20 section 123M (for containment or seclusion) or 123ZA (for use of other 21 restrictive practices). 22 `(3) Also, use of a restrictive practice may be authorised if-- 23 (a) the restrictive practice is used in the course of providing 24 respite services or community access services to the 25 adult; or 26 (b) there is an immediate and serious risk of harm to the 27 adult or others. 28 Note-- 29 See-- 30 � sections 123N, 123ZB and 123ZC for use of restrictive practices in 31 the course of providing respite services or community access 32 services 33 Page 13

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] � sections 123O and 123ZD for use of restrictive practices if there is 1 an immediate and serious risk of harm to the adult or others. 2 `(4) In this section-- 3 associated restrictive practice means a restrictive practice 4 other than containment or seclusion, relating to the adult who 5 is the subject of a containment or seclusion approval. 6 `123E Definitions for pt 10A 7 `In this part-- 8 adult with an intellectual or cognitive disability means an 9 adult with a disability who has a condition attributable to an 10 intellectual or cognitive impairment, or a combination of the 11 impairments. 12 appropriately qualified see section 123K. 13 assessment see section 123J(3). 14 authorised psychiatrist see the Mental Health Act 2000, 15 schedule 2. 16 chemical restraint see section 123F. 17 chemical restraint (fixed dose) means chemical restraint 18 using medication that is administered at fixed intervals and 19 times. 20 community access services means disability services that 21 are-- 22 (a) community access services provided to an adult with an 23 intellectual or cognitive disability who does not receive 24 disability services other than respite services or 25 community access services from a relevant service 26 provider; and 27 (b) funded as community access services by the department 28 or the Commonwealth. 29 contain see section 123G. 30 containment or seclusion approval means approval given by 31 the guardianship tribunal under the GAA, chapter 5B, part 2 32 Page 14

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] for a relevant service provider to contain or seclude, or use 1 another restrictive practice in relation to, an adult with an 2 intellectual or cognitive disability. 3 decision notice, for a decision of the chief executive, means a 4 notice stating the following-- 5 (a) the decision and the reasons for it; 6 (b) that the person to whom the notice is given may apply 7 for review of the decision under section 123ZZ within 8 28 days after the person receives the notice; 9 (c) how to apply for review of the decision. 10 director of mental health means the director under the Mental 11 Health Act 2000. 12 GAA means the Guardianship and Administration Act 2000. 13 guardian for a restrictive practice (general) matter, for an 14 adult with an intellectual or cognitive disability, means a 15 guardian for a restrictive practice (general) matter appointed 16 for the adult under the GAA, chapter 5B. 17 guardian for a restrictive practice matter, for an adult with an 18 intellectual or cognitive disability, means a guardian for a 19 restrictive practice (general) matter, or a guardian for a 20 restrictive practice (respite) matter, for the adult. 21 guardian for a restrictive practice (respite) matter, for an 22 adult with an intellectual or cognitive disability, means a 23 guardian for a restrictive practice (respite) matter appointed 24 for the adult under the GAA, chapter 5B. 25 guardianship tribunal means the Guardianship and 26 Administration Tribunal. 27 harm to a person means-- 28 (a) physical harm to the person; or 29 (b) a serious risk of physical harm to the person; or 30 (c) damage to property involving a serious risk of physical 31 harm to the person. 32 Page 15

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] informal decision maker, for an adult with an intellectual or 1 cognitive disability, means a member of the adult's support 2 network, other than a paid carer for the adult within the 3 meaning of the GAA. 4 keep and implement, a policy about use of a restrictive 5 practice, see section 123I. 6 least restrictive, for use of a restrictive practice in relation to 7 an adult with an intellectual or cognitive disability, means use 8 of the restrictive practice-- 9 (a) ensures the safety of the adult or others; and 10 (b) having regard to paragraph (a), imposes the minimum 11 limits on the freedom of the adult as is practicable in the 12 circumstances. 13 mechanical restraint see section 123H. 14 multidisciplinary assessment see section 123J(4). 15 physical restraint, of an adult with an intellectual or cognitive 16 disability, means the use, for the primary purpose of 17 controlling the adult's behaviour, of any part of another 18 person's body to restrict the free movement of the adult. 19 positive behaviour support plan see section 123L. 20 relevant decision maker (respite), for an adult with an 21 intellectual or cognitive disability, means-- 22 (a) a guardian for a restrictive practice (respite) matter for 23 the adult; or 24 (b) for a restrictive practice other than chemical restraint 25 used under section 123ZB, if there is no guardian for a 26 restrictive practice (respite) matter for the adult--an 27 informal decision maker for the adult. 28 respite/community access plan see section 123ZP(2). 29 respite services means disability services that are-- 30 (a) respite services provided to an adult with an intellectual 31 or cognitive disability who does not receive disability 32 Page 16

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] services other than respite services or community access 1 services from a relevant service provider; and 2 (b) funded as respite services by the department or the 3 Commonwealth. 4 restricting access, of an adult with an intellectual or cognitive 5 disability, means restricting the adult's access, at a place 6 where the adult receives disability services, to an object to 7 prevent the adult using the object to cause harm to the adult or 8 others. 9 Examples-- 10 � locking a drawer in which knives are kept to prevent an adult using 11 the knives to cause harm 12 � restricting an adult's access to a particular cupboard or particular 13 parts of the fridge to prevent the adult eating in a way that is likely 14 to harm the adult 15 restrictive practice means-- 16 (a) containing or secluding an adult with an intellectual or 17 cognitive disability; or 18 (b) using chemical, mechanical or physical restraint on an 19 adult with an intellectual or cognitive disability; or 20 (c) restricting access of an adult with an intellectual or 21 cognitive disability. 22 seclude an adult with an intellectual or cognitive disability 23 means physically confine the adult alone, at any time of the 24 day or night, in a room or area from which free exit is 25 prevented. 26 short term approval means an approval given by-- 27 (a) the adult guardian under the GAA, chapter 5B, part 4; or 28 (b) the chief executive under section 123ZK. 29 short term plan see section 123ZM(2). 30 support network, for an adult, see the GAA, schedule 4. 31 Page 17

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] `123F Meaning of chemical restraint 1 `(1) Chemical restraint, of an adult with an intellectual or 2 cognitive disability, means the use of medication for the 3 primary purpose of controlling the adult's behaviour. 4 `(2) However, using medication for the proper treatment of a 5 diagnosed mental illness or physical condition is not chemical 6 restraint. 7 `(3) To remove any doubt, it is declared that an intellectual or 8 cognitive disability is not a physical condition. 9 `(4) In this section-- 10 diagnosed, for a mental illness or physical condition, means a 11 doctor confirms the adult has the illness or condition. 12 mental illness see the Mental Health Act 2000, section 12. 13 `123G Meaning of contain 14 `(1) Contain an adult with an intellectual or cognitive disability 15 means physically prevent the free exit of the adult from 16 premises where the adult receives disability services, other 17 than by secluding the adult. 18 `(2) However, the adult is not contained if-- 19 (a) the adult is an adult with a skills deficit under part 15, 20 division 1A; and 21 (b) the adult's free exit from the premises is prevented by 22 the locking of gates, doors or windows under that part. 23 `(3) In this section-- 24 premises includes the land around a building or other 25 structure, but does not include a vehicle. 26 `123H Meaning of mechanical restraint 27 `(1) Mechanical restraint, of an adult with an intellectual or 28 cognitive disability, means the use, for the primary purpose of 29 controlling the adult's behaviour, of a device to-- 30 Page 18

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] (a) restrict the free movement of the adult; or 1 (b) prevent or reduce self injurious behaviour. 2 `(2) However, the following are not mechanical restraint-- 3 (a) using a device to enable the safe transportation of the 4 adult; 5 Examples of devices used to enable safe transportation-- 6 � a cover over a seat belt buckle 7 � a harness or strap 8 (b) using a device for postural support; 9 (c) using a device to prevent injury from involuntary bodily 10 movements, such as seizures; 11 (d) using a surgical or medical device for the proper 12 treatment of a physical condition; 13 (e) using bed rails or guards to prevent injury while the 14 adult is asleep. 15 `123I Requirement to keep and implement a policy 16 `A requirement under this part for a relevant service provider 17 to keep and implement a policy about use of a restrictive 18 practice means-- 19 (a) prepare the policy and keep it up-to-date; and 20 (b) when providing disability services, implement and 21 comply with the procedures and other matters stated in 22 the policy; and 23 (c) keep a copy of the up-to-date policy at premises where 24 the restrictive practice is used; and 25 (d) ensure a copy of the up-to-date policy is available for 26 inspection by the following-- 27 (i) staff of the relevant service provider; 28 (ii) guardians, informal decision makers or advocates 29 for adults in relation to whom the restrictive 30 practices are used; 31 Page 19

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] (iii) a community visitor under the GAA. 1 Note-- 2 See also division 6 for requirements about the content of the policy. 3 `Division 2 Important concepts for using 4 restrictive practices 5 `123J Assessment of an adult 6 `(1) Before a restrictive practice can be used in relation to an adult 7 with an intellectual or cognitive disability, the adult must be 8 assessed. 9 `(2) However, an assessment is not required if the restrictive 10 practice is used-- 11 (a) under a short term approval; or 12 (b) in the course of providing respite services or community 13 access services to the adult. 14 Note-- 15 Although an assessment is not required for using restrictive 16 practices in the course of providing respite services or 17 community access services, relevant service providers must 18 comply with division 5. 19 `(3) For this part, an assessment of an adult with an intellectual or 20 cognitive disability is an assessment by 1 or more persons, as 21 provided for under subsections (4) to (6), for the following 22 purposes-- 23 (a) making findings about the nature, intensity, frequency 24 and duration of the behaviour of the adult that causes 25 harm to the adult or others; 26 (b) developing theories about the factors that contribute to 27 the adult's behaviour mentioned in paragraph (a); 28 Examples of factors that might contribute to the behaviour-- 29 � biological factors, such as genetic predispositions 30 Page 20

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] � psychological or cognitive factors, such as low 1 communication skills 2 � social factors, such as the adult's surroundings 3 � medical conditions 4 (c) making recommendations about appropriate strategies 5 for-- 6 (i) meeting the adult's needs and improving the 7 adult's capabilities and quality of life; and 8 (ii) reducing the intensity, frequency and duration of 9 the adult's behaviour that causes harm to the adult 10 or others; and 11 (iii) managing the adult's behaviour that causes harm to 12 the adult or others to minimise the risk of harm. 13 `(4) For containing or secluding an adult under section 123M, the 14 adult must be assessed by 2 or more appropriately qualified 15 persons who have qualifications or experience in different 16 disciplines (a multidisciplinary assessment). 17 `(5) For using chemical, mechanical or physical restraint under 18 section 123ZA on an adult, the adult must be assessed by at 19 least 1 appropriately qualified person. 20 `(6) For restricting access of an adult under section 123ZA, the 21 adult must be assessed by the relevant service provider 22 proposing to restrict the adult's access. 23 `123K Who is appropriately qualified to assess an adult 24 `For assessing an adult with an intellectual or cognitive 25 disability, a person is appropriately qualified if the person has 26 the qualifications or experience appropriate to conduct the 27 assessment. 28 Examples of who might be appropriately qualified persons-- 29 behaviour analysts, medical practitioners, psychologists, psychiatrists, 30 speech and language pathologists, occupational therapists, registered 31 nurses, social workers 32 Page 21

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] `123L What is a positive behaviour support plan 1 `(1) For this part, a positive behaviour support plan, for an adult 2 with an intellectual or cognitive disability, means a plan 3 stating at least each of the following-- 4 (a) the adult's name, age and gender; 5 (b) the name of any guardian or informal decision maker for 6 the adult; 7 (c) a description of the adult's intellectual or cognitive 8 disability; 9 (d) the name of each relevant service provider providing 10 disability services to the adult and a description of the 11 disability services provided; 12 (e) in relation to previous behaviour of the adult that has 13 caused harm to the adult or others, a description of-- 14 (i) the intensity, frequency and duration of the 15 behaviour; and 16 (ii) the consequences of the behaviour; 17 Examples-- 18 � harm is caused to the adult or someone else 19 � the adult is charged with, or was convicted of, an 20 offence involving the behaviour 21 (f) any available information about strategies previously 22 used to manage the behaviour mentioned in paragraph 23 (e) and the effectiveness of those strategies; 24 (g) for the assessment of the adult, each of the following-- 25 (i) the name of each person who assessed the adult; 26 (ii) a description of the assessment conducted; 27 (iii) the findings, theories and recommendations of 28 each person about the matters mentioned in section 29 123J(3); 30 (iv) if the assessment was a multidisciplinary 31 assessment and there was a difference of opinion 32 between any of the appropriately qualified persons 33 Page 22

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] who assessed the adult--how the difference was 1 taken into account in developing the plan; 2 (h) for each restrictive practice proposed to be used in 3 relation to the adult, the details stated in subsection (2); 4 (i) a description of the positive strategies, including the 5 community access arrangements in place for the adult, 6 that will be used to-- 7 (i) meet the adult's needs and improve the adult's 8 capabilities and quality of life; and 9 (ii) reduce the intensity, frequency and duration of the 10 adult's behaviour that causes harm to the adult or 11 others; 12 Examples-- 13 � skills development, such as communication skills, motor 14 skills or life skills 15 � strategies that encourage the use of appropriate behaviour 16 (j) for each relevant service provider who will use a 17 restrictive practice in relation to the adult--a description 18 of how the provider will support and supervise staff 19 involved in implementing the plan; 20 (k) if the person developing the plan is aware the adult is 21 subject to a forensic order or involuntary treatment order 22 under the Mental Health Act 2000--the requirements of 23 the order; 24 (l) the name, and relationship to the adult, of each person 25 consulted during the development of the plan, and the 26 person's views about the use of each restrictive practice 27 proposed to be used in relation to the adult. 28 `(2) For subsection (1)(h), the details about the restrictive practice 29 are the following-- 30 (a) the name of the relevant service provider who will use 31 the restrictive practice; 32 (b) any strategies that must be attempted before using the 33 restrictive practice; 34 Page 23

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] (c) the procedure for using the restrictive practice, including 1 observations and monitoring, and any other measures 2 necessary to ensure the adult's proper care and 3 treatment, that must happen while the restrictive practice 4 is being used; 5 (d) a description of the anticipated positive and negative 6 effects on the adult of using the restrictive practice; 7 (e) a demonstration of why use of the restrictive practice is 8 the least restrictive way of ensuring the safety of the 9 adult or others; 10 (f) the strategy for reducing or eliminating the use of the 11 restrictive practice; 12 (g) the intervals at which use of the restrictive practice will 13 be reviewed by the relevant service provider using the 14 restrictive practice in compliance with the provider's 15 policy about use of the restrictive practice; 16 Note-- 17 See also section 123ZV. 18 (h) for containment--a description of the adult's 19 accommodation and its suitability for implementing the 20 plan; 21 (i) for seclusion-- 22 (i) a description of the place where the adult will be 23 secluded and its suitability for secluding the adult; 24 and 25 (ii) the maximum period for which seclusion may be 26 used at any 1 time and the maximum frequency of 27 the seclusion; 28 (j) for chemical restraint-- 29 (i) the name of the medication to be used and any 30 available information about the medication, 31 including, for example, information about possible 32 side effects; and 33 Page 24

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] (ii) the dose, route and frequency of administration, 1 including, for medication to be administered as and 2 when needed, the circumstances in which the 3 medication may be administered, as prescribed by 4 the adult's treating doctor; and 5 (iii) if the adult's medication has previously been 6 reviewed by the adult's treating doctor--the date of 7 the most recent medication review; and 8 (iv) the name of the adult's treating doctor; 9 (k) for mechanical or physical restraint--the maximum 10 period for which the restraint may be used at any 1 time. 11 `Division 3 Containment and seclusion 12 `Subdivision 1 Requirements for containing or 13 secluding an adult 14 `123M Containing or secluding an adult under containment 15 or seclusion approval 16 `(1) A relevant service provider may contain or seclude an adult 17 with an intellectual or cognitive disability if-- 18 (a) the containment or seclusion is necessary to prevent the 19 adult's behaviour causing harm to the adult or others; 20 and 21 (b) the containment or seclusion is the least restrictive way 22 of ensuring the safety of the adult or others; and 23 (c) the containment or seclusion complies with-- 24 (i) a containment or seclusion approval; and 25 (ii) if the containment or seclusion approval is not 26 given as an interim order under the GAA, section 27 80ZR--a positive behaviour support plan for the 28 adult developed by the chief executive under this 29 division; and 30 Page 25

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] (d) the relevant service provider keeps and implements a 1 policy about use of containment or seclusion under this 2 section as required under division 6; and 3 (e) the relevant service provider complies with section 4 123Z. 5 `(2) For subsection (1)(c)(ii), the adult is not contained or secluded 6 in compliance with the positive behaviour support plan if the 7 relevant service provider does not implement the positive 8 strategies stated in the plan. 9 `(3) Subsection (1)(d) applies subject to the terms of the 10 containment or seclusion approval of which the adult is the 11 subject. 12 `(4) It is not necessary to obtain the adult's consent to the 13 containment or seclusion of the adult under this section. 14 `123N Containing or secluding an adult for respite services 15 or community access services 16 `(1) A relevant service provider may contain or seclude an adult 17 with an intellectual or cognitive disability in the course of 18 providing respite services or community access services to the 19 adult if-- 20 (a) the containment or seclusion is necessary to prevent the 21 adult's behaviour causing harm to the adult or others; 22 and 23 (b) the containment or seclusion is the least restrictive way 24 of ensuring the safety of the adult or others; and 25 (c) before containing or secluding the adult, the relevant 26 service provider complies with the requirements under 27 division 5; and 28 (d) the containment or seclusion complies with-- 29 (i) the consent of a guardian for a restrictive practice 30 (respite) matter for the adult; and 31 (ii) a respite/community access plan for the adult; and 32 Page 26

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] (e) the relevant service provider keeps and implements a 1 policy about use of containment or seclusion under this 2 section as required under division 6; and 3 (f) the relevant service provider complies with section 4 123Z. 5 `(2) For subsection (1)(d)(ii), the adult is taken not to be contained 6 or secluded in compliance with the respite/community access 7 plan if the relevant service provider does not implement the 8 positive strategies stated in the plan. 9 `(3) This section does not apply if the adult is the subject of a 10 containment or seclusion approval. 11 `123O Containing or secluding an adult under short term 12 approval 13 `(1) A relevant service provider may contain or seclude an adult 14 with an intellectual or cognitive disability if-- 15 (a) there is an immediate and serious risk of harm to the 16 adult or others; and 17 (b) the containment or seclusion is necessary to prevent the 18 adult's behaviour causing harm to the adult or others; 19 and 20 (c) the containment or seclusion is the least restrictive way 21 of ensuring the safety of the adult or others; and 22 (d) the containment or seclusion complies with-- 23 (i) a short term approval given by the adult guardian 24 under the GAA, chapter 5B, part 4; and 25 (ii) if a short term plan for the adult has been approved 26 under the GAA, chapter 5B, part 4--the short term 27 plan; and 28 (e) the relevant service provider keeps and implements a 29 policy about use of containment or seclusion under this 30 section as required under division 6; and 31 (f) the relevant service provider complies with section 32 123Z. 33 Page 27

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] `(2) It is not necessary to obtain the adult's consent to the 1 containment or seclusion of the adult under this section. 2 `Subdivision 2 Multidisciplinary assessment and 3 development of positive behaviour 4 support plan 5 `123P Application of sdiv 2 6 `This subdivision applies if-- 7 (a) a relevant service provider notifies the chief executive 8 that the relevant service provider wishes to contain or 9 seclude an adult with an intellectual or cognitive 10 disability, other than in the course of providing respite 11 services or community access services to the adult; and 12 (b) the adult is not the subject of a containment or seclusion 13 approval. 14 Notes-- 15 1 Under the GAA, chapter 5B, a relevant service provider other than 16 the department must apply for a containment or seclusion approval 17 jointly with the chief executive. 18 2 If the adult is the subject of an existing containment or seclusion 19 approval, see subdivision 3 for changing the adult's positive 20 behaviour support plan. 21 `123Q Chief executive to decide whether multidisciplinary 22 assessment of adult will be conducted 23 `(1) The chief executive must decide whether a multidisciplinary 24 assessment of the adult will be conducted. 25 `(2) The chief executive may decide a multidisciplinary 26 assessment of the adult will be conducted if the chief 27 executive considers it may be necessary for the relevant 28 service provider to contain or seclude the adult to safeguard 29 the adult or others from harm. 30 Page 28

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] `(3) In deciding whether a multidisciplinary assessment of the 1 adult will be conducted, the chief executive must consult with, 2 and consider the views of, the following persons-- 3 (a) the adult; 4 (b) if the adult has a guardian or informal decision 5 maker--the guardian or informal decision maker; 6 (c) each relevant service provider providing disability 7 services to the adult; 8 (d) if the chief executive is aware the adult is subject to a 9 forensic order or involuntary treatment order under the 10 Mental Health Act 2000--the authorised psychiatrist 11 responsible for treatment of the adult under that Act; 12 (e) any other person considered by the chief executive to be 13 integral to the chief executive's decision. 14 Example-- 15 a family member who is part of the adult's support network, a 16 key health care provider or an advocate for the adult 17 `(4) Despite subsection (3)(b), the chief executive is not required 18 to consult with a person who is an informal decision maker for 19 the adult if-- 20 (a) the chief executive is not, and could not reasonably be 21 expected to be, aware the person is an informal decision 22 maker for the adult; or 23 (b) after taking all reasonable steps, the chief executive can 24 not locate the person. 25 `123R Notice of decision not to conduct assessment 26 `If the chief executive decides a multidisciplinary assessment 27 of the adult will not be conducted, the chief executive must 28 give the following persons a decision notice about the 29 decision-- 30 (a) the relevant service provider; 31 (b) the adult; 32 Page 29

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] (c) a guardian or informal decision maker for the adult who 1 was consulted by the chief executive under section 2 123Q(3). 3 `123S Development of positive behaviour support plan 4 following assessment 5 `(1) This section applies if a multidisciplinary assessment of the 6 adult is conducted. 7 `(2) The chief executive must develop a positive behaviour support 8 plan for the adult if, having regard to the findings, theories and 9 recommendations of the persons who assessed the adult, the 10 chief executive is satisfied-- 11 (a) the adult's behaviour has previously resulted in harm to 12 the adult or others; and 13 (b) it is necessary for the relevant service provider to 14 contain or seclude the adult to safeguard the adult or 15 others from harm; and 16 (c) containing or secluding the adult is the least restrictive 17 way of ensuring the safety of the adult or others. 18 `(3) The positive behaviour support plan must provide for the use 19 of any restrictive practice, including chemical, mechanical or 20 physical restraint or restricting access, that is-- 21 (a) when the plan is developed, proposed to be used in 22 relation to the adult by any relevant service provider; 23 and 24 (b) based on the recommendations of the persons who 25 assessed the adult. 26 `(4) In developing the positive behaviour support plan, the chief 27 executive must consult with, and consider the views of, each 28 person who was consulted under section 123Q(3). 29 `(5) If the positive behaviour support plan provides for the use of 30 chemical restraint, the chief executive must-- 31 (a) consult the adult's treating doctor; and 32 (b) inform the adult's treating doctor about-- 33 Page 30

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] (i) the findings and theories of the persons who 1 conducted the multidisciplinary assessment about 2 the adult's behaviour that causes harm to the adult 3 or others, including the factors contributing to the 4 behaviour; and 5 (ii) the strategies, including other restrictive practices, 6 proposed to be used for-- 7 (A) meeting the adult's needs and improving the 8 adult's capabilities and quality of life; and 9 (B) reducing the intensity, frequency and 10 duration of the adult's behaviour that causes 11 harm to the adult or others. 12 `(6) If the chief executive is not required to develop a positive 13 behaviour support plan for the adult under subsection (2), the 14 chief executive must give the following persons a decision 15 notice about the decision not to develop the plan-- 16 (a) the relevant service provider; 17 (b) the adult; 18 (c) a guardian or informal decision maker for the adult who 19 was consulted under section 123Q(3). 20 `123T Participation of psychiatrist in development of 21 plan--adult subject to forensic order or involuntary 22 treatment order 23 `(1) This section applies if-- 24 (a) the chief executive is aware the adult is subject to a 25 forensic order or involuntary treatment order under the 26 Mental Health Act 2000; and 27 (b) the chief executive develops a positive behaviour 28 support plan for the adult under this division. 29 `(2) The chief executive must ensure the authorised psychiatrist 30 responsible for treatment of the adult under the Mental Health 31 Act 2000 is given the opportunity to participate in the 32 development of the positive behaviour support plan. 33 Page 31

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] `Subdivision 3 Changing a positive behaviour 1 support plan 2 `123U Application of sdiv 3 3 `This subdivision applies if an adult with an intellectual or 4 cognitive disability is the subject of a containment or 5 seclusion approval. 6 `123V Who may change positive behaviour support plan 7 `The positive behaviour support plan for the adult may be 8 changed only by the chief executive. 9 `123W When chief executive must decide whether positive 10 behaviour support plan should be changed 11 `The chief executive must decide whether a change to the 12 adult's positive behaviour support plan should be made if-- 13 (a) a relevant service provider asks the chief executive, in 14 writing, to make a change to the plan; or 15 (b) the chief executive becomes aware the adult is subject to 16 a forensic order or involuntary treatment order under the 17 Mental Health Act 2000. 18 Examples of when a relevant service provider might ask for a change-- 19 � A new relevant service provider wants to use a restrictive practice in 20 relation to the adult, including chemical, mechanical or physical 21 restraint or restricting access. 22 � The relevant service provider to which the containment or seclusion 23 approval applies wants to change a detail stated in the positive 24 behaviour support plan for the adult. 25 � The containment or seclusion approval is about to expire and the 26 relevant service provider to which the approval applies wishes to 27 apply for a new approval. 28 Page 32

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] `123X Requirements for chief executive's decision about 1 whether change should be made 2 `(1) The chief executive may decide a change should be made to 3 the adult's positive behaviour support plan only if satisfied the 4 change would not-- 5 (a) increase the risk of the adult's behaviour causing harm 6 to the adult or others; or 7 (b) decrease the extent to which the adult's needs are met or 8 the adult's capabilities and quality of life are improved. 9 `(2) For deciding whether a change should be made, the chief 10 executive may arrange for all or part of a multidisciplinary 11 assessment to be conducted, or consult any of the persons 12 listed in section 123Q(3), as the chief executive considers 13 appropriate in the circumstances. 14 `(3) However, if the chief executive is deciding whether a change 15 should be made because the adult is subject to a forensic order 16 or involuntary treatment order under the Mental Health Act 17 2000, the chief executive must consult the authorised 18 psychiatrist responsible for treatment of the adult under that 19 Act. 20 `(4) Subsection (2) applies subject to any order or direction of the 21 guardianship tribunal. 22 `123Y Action of chief executive after deciding whether 23 change should be made 24 `(1) If the chief executive decides a change to the adult's positive 25 behaviour support plan should be made, the chief executive 26 must decide whether the change requires a GAA application 27 to be made. 28 `(2) The change requires the making of a GAA application if it-- 29 (a) is inconsistent with the terms of an existing containment 30 or seclusion approval; or 31 Page 33

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] Examples-- 1 � The existing containment or seclusion approval approves 2 seclusion for periods of not more than 15 minutes. The 3 change is to increase the maximum period to 30 minutes. 4 � The existing containment or seclusion approval applies to 5 relevant service provider A. The change is for relevant 6 service provider B to use a restrictive practice in relation to 7 the adult. 8 � The existing containment or seclusion approval is for 9 seclusion. The change is for the additional use of 10 mechanical restraint. 11 (b) is requested because an existing containment or 12 seclusion approval is about to expire and the relevant 13 service provider proposes to apply for a further 14 approval. 15 `(3) If the change does not require the making of a GAA 16 application, the chief executive must make the change and 17 give a copy of the amended plan to the following-- 18 (a) the guardianship tribunal; 19 (b) the adult; 20 (c) if the adult has a guardian or informal decision 21 maker--the guardian or informal decision maker; 22 (d) the relevant service provider to which an existing 23 containment or seclusion approval applies. 24 `(4) However, the chief executive is not required to give a copy of 25 the amended plan to a person who is an informal decision 26 maker for the adult if-- 27 (a) the chief executive is not, and could not reasonably be 28 expected to be, aware the person is an informal decision 29 maker for the adult; or 30 (b) after taking all reasonable steps, the chief executive can 31 not locate the person. 32 `(5) As soon as practicable after making the decision mentioned in 33 subsection (1), the chief executive must give a prescribed 34 notice to-- 35 Page 34

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] (a) if the chief executive was required to decide whether a 1 change should be made because of a request made by a 2 relevant service provider--the relevant service provider; 3 or 4 Note-- 5 If the chief executive decides the change should not be made and 6 the relevant service provider is dissatisfied with the decision, the 7 relevant service provider could apply to the guardianship 8 tribunal under the GAA, section 80ZA for review of the existing 9 containment or seclusion approval. 10 (b) if the chief executive was required to decide whether a 11 change should be made because the adult is subject to a 12 forensic order or involuntary treatment order under the 13 Mental Health Act 2000-- 14 (i) the director of mental health; and 15 (ii) the relevant service provider to which an existing 16 containment or seclusion approval applies. 17 `(6) In this section-- 18 GAA application means an application to the guardianship 19 tribunal for-- 20 (a) the giving of a new containment or seclusion approval; 21 or 22 (b) review of an existing containment or seclusion approval. 23 prescribed notice means a notice stating the chief executive's 24 decisions about-- 25 (a) whether a change should be made to the positive 26 behaviour support plan for the adult; and 27 (b) if the chief executive decides a change should be 28 made--whether the change requires the making of a 29 GAA application. 30 Page 35

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] `Subdivision 4 General requirements for 1 containment or seclusion 2 `123Z Relevant service provider to ensure adult's needs 3 are met 4 `A relevant service provider containing or secluding an adult 5 with an intellectual or cognitive disability must ensure the 6 adult is given each of the following-- 7 (a) sufficient bedding and clothing; 8 (b) sufficient food and drink; 9 (c) access to adequate heating and cooling; 10 (d) access to toilet facilities; 11 (e) the adult's medication as prescribed by a doctor. 12 `Division 4 Use of restrictive practices other 13 than containment or seclusion 14 `Subdivision 1 Requirements for using chemical, 15 mechanical or physical restraint, or 16 restricting access 17 `123ZA Using chemical, mechanical or physical restraint, or 18 restricting access, with consent of guardian etc. 19 `(1) A relevant service provider may use chemical, mechanical or 20 physical restraint on, or restrict access of, an adult with an 21 intellectual or cognitive disability if-- 22 (a) use of the restrictive practice is necessary to prevent the 23 adult's behaviour causing harm to the adult or others; 24 and 25 (b) use of the restrictive practice is the least restrictive way 26 of ensuring the safety of the adult or others; and 27 Page 36

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] (c) either-- 1 (i) if the adult is the subject of a containment or 2 seclusion approval--use of the restrictive practice 3 complies with-- 4 (A) the approval; and 5 (B) if the containment or seclusion approval is 6 not given as an interim order under the GAA, 7 section 80ZR--a positive behaviour support 8 plan for the adult developed by the chief 9 executive under division 3; or 10 (ii) otherwise--use of the restrictive practice complies 11 with-- 12 (A) a positive behaviour support plan for the 13 adult developed by the relevant service 14 provider under this division; and 15 (B) the consent of a relevant decision maker for 16 the adult; and 17 (d) the relevant service provider keeps and implements a 18 policy about use of the restrictive practice under this 19 section as required under division 6. 20 `(2) For subsection (1)(c), the restrictive practice is not used in 21 compliance with a positive behaviour support plan if the 22 relevant service provider does not implement the positive 23 strategies stated in the plan. 24 `(3) Subsection (1)(d) applies subject to the terms of any 25 containment or seclusion approval of which the adult is the 26 subject. 27 `(4) In this section-- 28 relevant decision maker, for an adult with an intellectual or 29 cognitive disability, means-- 30 (a) a guardian for a restrictive practice (general) matter for 31 the adult; or 32 Page 37

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] (b) for restricting access of the adult, if there is no guardian 1 for a restrictive practice (general) matter for the 2 adult--an informal decision maker for the adult. 3 `123ZB Using chemical, mechanical or physical restraint, or 4 restricting access, for respite services or community 5 access services 6 `(1) A relevant service provider may use chemical, mechanical or 7 physical restraint on, or restrict access of, an adult with an 8 intellectual or cognitive disability in the course of providing 9 respite services or community access services to the adult if-- 10 (a) use of the restrictive practice is necessary to prevent the 11 adult's behaviour causing harm to the adult or others; 12 and 13 (b) use of the restrictive practice is the least restrictive way 14 of ensuring the safety of the adult or others; and 15 (c) before using the restrictive practice, the relevant service 16 provider complies with the requirements under division 17 5; and 18 (d) use of the restrictive practice complies with-- 19 (i) the consent of a relevant decision maker (respite) 20 for the adult; and 21 (ii) a respite/community access plan for the adult; and 22 (e) the relevant service provider keeps and implements a 23 policy about use of the restrictive practice under this 24 section as required under division 6. 25 `(2) For subsection (1)(d)(ii), the restrictive practice is not used in 26 compliance with the respite/community access plan if the 27 relevant service provider does not implement the positive 28 strategies stated in the plan. 29 `(3) This section does not apply if the adult is the subject of a 30 containment or seclusion approval. 31 `(4) This section does not apply to chemical restraint (fixed dose) 32 used in the course of providing respite services to the adult. 33 Page 38

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] `123ZC Using chemical restraint (fixed dose) for respite 1 services 2 `(1) A relevant service provider may use chemical restraint (fixed 3 dose) on an adult with an intellectual or cognitive disability in 4 the course of providing respite services to the adult if-- 5 (a) use of the chemical restraint complies with the consent 6 of a relevant decision maker (respite) for the adult; and 7 (b) the relevant service provider keeps and implements a 8 policy about use of the chemical restraint under this 9 section as required under division 6. 10 `(2) This section does not apply if the adult is the subject of a 11 containment or seclusion approval. 12 `123ZD Using chemical, mechanical or physical restraint, or 13 restricting access, under short term approval 14 `(1) A relevant service provider may use chemical, mechanical or 15 physical restraint on, or restrict access of, an adult with an 16 intellectual or cognitive disability if-- 17 (a) there is an immediate and serious risk of harm to the 18 adult or others; and 19 (b) use of the restrictive practice-- 20 (i) is necessary to prevent the adult's behaviour 21 causing harm to the adult or others; and 22 (ii) is the least restrictive way of ensuring the safety of 23 the adult or others; and 24 (iii) complies with a short term approval and, if a short 25 term plan for the adult has been approved under 26 subdivision 4 or the GAA, chapter 5B, part 4, the 27 short term plan; and 28 (c) the relevant service provider keeps and implements a 29 policy about use of the restrictive practice under this 30 section as required under division 6. 31 `(2) It is not necessary to obtain the adult's consent to the use of a 32 restrictive practice under this section. 33 Page 39

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] `Subdivision 2 Assessment of adult and positive 1 behaviour support plan 2 `123ZE Application of sdiv 2 3 `This subdivision applies if-- 4 (a) a relevant service provider proposes to use chemical, 5 mechanical or physical restraint on, or restrict access of, 6 an adult with an intellectual or cognitive disability, other 7 than-- 8 (i) under a short term approval; or 9 (ii) in the course of providing respite services or 10 community access services to the adult; and 11 (b) the adult is not the subject of a containment or seclusion 12 approval; and 13 Note-- 14 If the adult is the subject of a containment or seclusion approval, 15 and the adult's positive behaviour support plan does not provide 16 for the relevant service provider's use of the restrictive practice 17 mentioned in paragraph (a), the relevant service provider must-- 18 (a) ask the chief executive to change the positive behaviour 19 support plan to provide for the relevant service provider's 20 use of the restrictive practice (see division 3, subdivision 21 3); and 22 (b) apply to the guardianship tribunal for the making or review 23 of a containment or seclusion approval in relation to the 24 relevant service provider's use of the restrictive practice. 25 (c) the relevant service provider does not propose to contain 26 or seclude the adult in addition to using the restrictive 27 practice mentioned in paragraph (a). 28 `123ZF Requirements for development of positive behaviour 29 support plan--assessment and consultation 30 `(1) This section states the requirements with which the relevant 31 service provider must comply in developing a positive 32 behaviour support plan for the adult. 33 Page 40

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] `(2) The relevant service provider must-- 1 (a) ensure the adult is assessed; and 2 Note-- 3 See section 123J for requirements about the assessment of the 4 adult. 5 (b) if the provider is aware the adult is subject to a forensic 6 order or involuntary treatment order under the Mental 7 Health Act 2000--ensure the authorised psychiatrist 8 responsible for treatment of the adult under that Act is 9 given the opportunity to participate in the development 10 of the positive behaviour support plan; and 11 (c) consult with, and consider the views of, the following-- 12 (i) the adult; 13 (ii) any guardian or informal decision maker for the 14 adult; 15 (iii) any other relevant service provider providing 16 disability services to the adult; 17 (iv) another person considered by the provider to be 18 integral to the development of the plan. 19 Examples-- 20 a family member who is part of the adult's support network, a 21 key health care provider or an advocate for the adult 22 `(3) Also, if the relevant service provider proposes to use chemical 23 restraint, the relevant service provider must-- 24 (a) consult the adult's treating doctor; and 25 (b) inform the adult's treating doctor about-- 26 (i) the findings and theories of the person who 27 assessed the adult about the adult's behaviour that 28 causes harm to the adult or others, including the 29 factors contributing to the behaviour; and 30 (ii) the strategies, including other restrictive practices, 31 proposed to be used in conjunction with the use of 32 the chemical restraint for-- 33 Page 41

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] (A) meeting the adult's needs and improving the 1 adult's capabilities and quality of life; and 2 (B) reducing the intensity, frequency and 3 duration of the adult's behaviour that causes 4 harm to the adult or others. 5 `(4) The positive behaviour support plan may provide for the use 6 of mechanical or physical restraint only if the use is supported 7 by the recommendations of the person who assessed the adult. 8 `123ZG Changing a positive behaviour support plan 9 `(1) A positive behaviour support plan that provides for use of 10 chemical, mechanical or physical restraint may be changed by 11 the relevant service provider only if-- 12 (a) either-- 13 (i) for a change relating to use of chemical 14 restraint--the relevant service provider has 15 consulted the adult's treating doctor; or 16 (ii) otherwise--the change is supported by the 17 recommendations of an appropriately qualified 18 person; and 19 (b) a guardian for a restrictive practice (general) matter for 20 the adult consents to the change. 21 `(2) A positive behaviour support plan that provides only for 22 restricting access of the adult may be changed by the relevant 23 service provider only if a following person consents to the 24 change-- 25 (a) a guardian for a restrictive practice (general) matter for 26 the adult; 27 (b) if there is no guardian for a restrictive practice (general) 28 matter for the adult--an informal decision maker for the 29 adult. 30 Page 42

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] `123ZH Requirement for relevant service provider to 1 consider whether plan should be changed 2 `(1) This section applies if-- 3 (a) a positive behaviour support plan is developed for an 4 adult under this division; and 5 (b) the relevant service provider becomes aware the adult is 6 subject to a forensic order or involuntary treatment order 7 under the Mental Health Act 2000. 8 `(2) The relevant service provider must consider whether the 9 positive behaviour support plan should be changed. 10 `(3) In deciding whether the positive behaviour support plan 11 should be changed, the relevant service provider must-- 12 (a) consult the authorised psychiatrist responsible for 13 treatment of the adult under the Mental Health Act 14 2000; and 15 (b) consider the psychiatrist's views about the use of any 16 restrictive practice provided for in the plan. 17 `Subdivision 3 Requirements if adult subject to 18 forensic order or involuntary 19 treatment order 20 Note-- 21 Under section 161, a funded non-government service provider may be 22 given a compliance notice requiring the provider to remedy a 23 contravention of a requirement under this subdivision. 24 `123ZI Requirement for relevant service provider to notify 25 guardian 26 `(1) This section applies if-- 27 (a) a relevant service provider is required under section 28 123ZF(2) or 123ZH(3) to consult the authorised 29 Page 43

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] psychiatrist responsible for treatment of the adult under 1 the Mental Health Act 2000; and 2 (b) the psychiatrist does not agree with the use of a 3 restrictive practice provided for in the positive behaviour 4 support plan for the adult. 5 `(2) As soon as practicable after consulting the authorised 6 psychiatrist, the relevant service provider must notify a 7 relevant decision maker for the adult about the psychiatrist's 8 views regarding use of the restrictive practice. 9 `(3) In this section-- 10 consult, the authorised psychiatrist responsible for treatment 11 of the adult under the Mental Health Act 2000, includes give 12 the psychiatrist an opportunity to participate in the 13 development of a positive behaviour support plan. 14 relevant decision maker, for the adult, means-- 15 (a) a guardian for a restrictive practice (general) matter for 16 the adult; or 17 (b) if the only restrictive practice provided for in the 18 positive behaviour support plan for the adult is 19 restricting access and there is no guardian for a 20 restrictive practice (general) matter for the adult--an 21 informal decision maker for the adult. 22 `123ZJ Requirement for relevant service provider to notify 23 director of mental health 24 `(1) This section applies if-- 25 (a) a relevant service provider develops or changes a 26 positive behaviour support plan for an adult under this 27 division; and 28 (b) a guardian for a restrictive practice (general) matter, or 29 an informal decision maker, for the adult consents to the 30 use of a restrictive practice by the relevant service 31 provider in relation to the adult; and 32 Page 44

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] (c) the relevant service provider is or becomes aware the 1 adult is subject to a forensic order or involuntary 2 treatment order under the Mental Health Act 2000. 3 `(2) The relevant service provider must-- 4 (a) give notice to the director of mental health of the terms 5 of the consent given by the guardian or informal 6 decision maker as soon as practicable after the later of-- 7 (i) the consent being given; or 8 (ii) the relevant service provider becoming aware of 9 the forensic order or involuntary treatment order; 10 and 11 (b) if asked by the director of mental health, give the 12 director a copy of the positive behaviour support plan 13 for the adult. 14 `Subdivision 4 Short term approvals given by chief 15 executive 16 `123ZK Short term approval for use of restrictive practices 17 other than containment or seclusion 18 `(1) This section applies if a relevant service provider asks the 19 chief executive for approval to use a restrictive practice, other 20 than containment or seclusion, in relation to an adult with an 21 intellectual or cognitive disability. 22 `(2) The chief executive may give the approval only if the chief 23 executive is satisfied-- 24 (a) the adult is not the subject of a containment or seclusion 25 approval; and 26 (b) there is no guardian for a restrictive practice (general) 27 matter for the adult; and 28 (c) there is an immediate and serious risk that, if the 29 approval is not given, the adult's behaviour will cause 30 harm to the adult or others; and 31 Page 45

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] (d) use of the restrictive practice is the least restrictive way 1 of ensuring the safety of the adult or others; and 2 (e) if the restrictive practice is chemical restraint--the 3 relevant service provider has consulted with, and 4 considered the views of, the adult's treating doctor. 5 `(3) If the chief executive has previously given an approval under 6 this section in relation to the adult, the chief executive may 7 give the approval only if satisfied exceptional circumstances 8 justify giving a subsequent approval under this section. 9 `(4) In deciding whether to give the approval, the chief executive 10 must, unless it is not practicable in the circumstances, consult 11 with and consider the views of the following persons about the 12 proposed use of the restrictive practice-- 13 (a) the adult, or a guardian or informal decision maker for 14 the adult; 15 (b) if the chief executive is aware the adult is subject to a 16 forensic order or involuntary treatment order under the 17 Mental Health Act 2000--the authorised psychiatrist 18 responsible for treatment of the adult under that Act. 19 `(5) The chief executive must, as soon as practicable after deciding 20 whether to give the approval, give the relevant service 21 provider notice of the decision, including, if the approval is 22 given-- 23 (a) the conditions to which it is subject; and 24 (b) the period for which it has effect. 25 `(6) Also, the chief executive must, within 7 days after deciding 26 whether to give the approval, give notice of the decision to the 27 following persons-- 28 (a) the adult guardian; 29 (b) any person consulted by the chief executive under 30 subsection (4). 31 `(7) A notice for subsection (6) must state each of the following-- 32 (a) the name of the adult; 33 Page 46

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] (b) the name of the relevant service provider; 1 (c) the chief executive's decision, including, if the approval 2 is given-- 3 (i) the terms of the approval; and 4 (ii) the chief executive's reasons for giving the 5 approval. 6 `(8) A person given notice under subsection (5) or (6) of a decision 7 of the chief executive to give, or refuse to give, the approval 8 may apply to the guardianship tribunal, and the guardianship 9 tribunal may make the order it considers appropriate. 10 `123ZL Period for which short term approval has effect 11 `(1) An approval given by the chief executive under section 123ZK 12 has effect for the period stated in the notice given to the 13 relevant service provider under section 123ZK(5). 14 `(2) However, the period must not be more than 3 months. 15 `(3) The approval ends if-- 16 (a) the guardianship tribunal appoints a guardian for a 17 restrictive practice (general) matter for the adult; or 18 (b) the guardianship tribunal gives a containment or 19 seclusion approval for the adult; or 20 (c) the relevant service provider does not comply with the 21 condition of the approval mentioned in section 22 123ZM(1)(a); or 23 (d) the chief executive notifies the relevant service provider 24 under section 123ZN that the chief executive does not 25 approve a short term plan for the adult given to the chief 26 executive by the provider. 27 `123ZM Conditions of short term approval 28 `(1) An approval given by the chief executive under section 29 123ZK-- 30 Page 47

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] (a) is subject to the condition that, within 14 days after 1 receiving notice that the approval has been given, the 2 relevant service provider must give the chief executive a 3 short term plan for the adult; and 4 (b) may be subject to other conditions considered 5 appropriate by the chief executive. 6 `(2) For this part, a short term plan, for an adult with an 7 intellectual or cognitive disability, is a plan stating at least the 8 following-- 9 (a) a description of the behaviour of the adult that causes 10 harm to the adult or others, including the consequences 11 of the behaviour; 12 (b) a description of the restrictive practices used in relation 13 to the adult; 14 (c) the reasons for using the restrictive practices; 15 (d) a demonstration of why using the restrictive practices is 16 the least restrictive way of ensuring the safety of the 17 adult or others. 18 `123ZN Chief executive's decision about approving short 19 term plan 20 `(1) This section applies if the chief executive is given a short term 21 plan for an adult with an intellectual or cognitive disability by 22 a relevant service provider under section 123ZM(1)(a). 23 `(2) As soon as practicable after receiving the short term plan, the 24 chief executive must decide whether to approve it. 25 `(3) The chief executive must approve the short term plan if the 26 chief executive is satisfied-- 27 (a) the information in the plan is consistent with the 28 information considered by the chief executive in 29 deciding whether to give the relevant short term 30 approval; and 31 Page 48

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] (b) there is an immediate and serious risk that, if the short 1 term approval does not continue in effect, the adult's 2 behaviour will cause harm to the adult or others; and 3 (c) use of the restrictive practices in compliance with the 4 short term approval and the plan is the least restrictive 5 way of ensuring the safety of the adult or others. 6 `(4) The chief executive must, as soon as practicable after deciding 7 whether to approve the short term plan, notify the relevant 8 service provider about the chief executive's decision. 9 `(5) If the chief executive does not approve the short term plan-- 10 (a) the relevant service provider may apply to the 11 guardianship tribunal; and 12 (b) the guardianship tribunal may make the order it 13 considers appropriate. 14 `Division 5 Use of restrictive practices for 15 respite services or community 16 access services 17 `123ZO Purpose of div 5 18 `(1) This division prescribes the requirements that a relevant 19 service provider must comply with before using a restrictive 20 practice in the course of providing respite services or 21 community access services to an adult with an intellectual or 22 cognitive disability. 23 `(2) This division does not apply for the use of chemical restraint 24 (fixed dose) under section 123ZC. 25 `123ZP Requirement to develop respite/community access 26 plan 27 `(1) The relevant service provider must develop a 28 respite/community access plan for the adult. 29 Page 49

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] `(2) A respite/community access plan, for an adult with an 1 intellectual or cognitive disability, is a plan stating at least 2 each of the following-- 3 (a) the adult's name; 4 (b) a description of the behaviour of the adult that causes 5 harm to the adult or others, including the consequences 6 of the behaviour; 7 (c) a description of the restrictive practices used in relation 8 to the adult; 9 (d) the reasons for using the restrictive practices; 10 (e) any strategies that must be attempted before using the 11 restrictive practices; 12 (f) the procedure for using the restrictive practices, 13 including observations and monitoring, and any other 14 measures necessary to ensure the adult's proper care and 15 treatment, that must take place while the restrictive 16 practices are being used; 17 (g) a demonstration of why the restrictive practices are the 18 least restrictive way of ensuring the safety of the adult or 19 others; 20 (h) a description of the positive strategies that will be used 21 to-- 22 (i) meet the adult's needs and improve the adult's 23 capabilities and quality of life; and 24 (ii) reduce the intensity, frequency and duration of the 25 adult's behaviour that causes harm to the adult or 26 others; 27 (i) for containment--a description of the place where the 28 adult will be contained; 29 (j) for seclusion-- 30 (i) a description of the place where the adult will be 31 secluded; and 32 Page 50

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] (ii) the maximum period for which seclusion may be 1 used at any 1 time and the maximum frequency of 2 the seclusion; 3 (k) for chemical restraint-- 4 (i) the name of the medication to be used and any 5 available information about the medication, 6 including, for example, information about possible 7 side effects; and 8 (ii) the dose, route and frequency of administration, 9 including, for medication to be administered as and 10 when needed, the circumstances in which the 11 medication may be administered, as prescribed by 12 the adult's treating doctor; and 13 (iii) the name of the adult's treating doctor; 14 (l) for mechanical or physical restraint--the maximum 15 period for which the restraint may be used at any 1 time. 16 `123ZQ Obtaining information about the adult 17 `In developing a respite/community access plan, the relevant 18 service provider must obtain, from the persons consulted 19 under section 123ZR, any information available and relevant 20 for identifying the following-- 21 (a) the adult's needs; 22 (b) the behaviour of the adult that causes harm to the adult 23 or others, including the consequences of the behaviour; 24 (c) the factors contributing to the behaviour mentioned in 25 paragraph (b). 26 `123ZR Consultation 27 `In developing a respite/community access plan for an adult, 28 the relevant service provider must consult with, and consider 29 the views of, the following persons-- 30 (a) the adult; 31 Page 51

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] (b) if the adult has a guardian or informal decision 1 maker--the guardian or informal decision maker; 2 (c) any other relevant service provider providing disability 3 services to the adult; 4 (d) any other person considered by the relevant service 5 provider to be integral to the development of the plan. 6 Example-- 7 a family member who is part of the adult's support network, a 8 key health care provider or an advocate for the adult 9 `123ZS Risk assessment 10 `The relevant service provider must identify, and keep a 11 record of-- 12 (a) the risks associated with the provision of respite services 13 or community access services to the adult by the 14 relevant service provider; and 15 Examples of possible risks-- 16 � the adult's behaviour causing harm to another client of the 17 relevant service provider 18 � the staff of the relevant service provider not being 19 adequately trained to manage the behaviour of the adult 20 � the physical environment in which the services are provided 21 not being adequate to accommodate the needs of the adult 22 (b) the procedures the relevant service provider will 23 implement to mitigate those risks. 24 `Division 6 Policy about use of restrictive 25 practices 26 `123ZT Application of div 6 27 `This division applies if another section in this part authorises 28 a relevant service provider to use a restrictive practice if the 29 Page 52

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] relevant service provider keeps and implements a policy about 1 use of the restrictive practice. 2 Note-- 3 See sections 123M(1)(d), 123N(1)(e), 123O(1)(e), 123ZA(1)(d), 4 123ZB(1)(e), 123ZC(1)(b) and 123ZD(1)(c). 5 `123ZU Policy must be consistent with department's policy 6 `The relevant service provider must keep and implement a 7 policy about use of the restrictive practice that is consistent 8 with the department's policy about use of the restrictive 9 practice. 10 `123ZV Requirements for content of department's policy 11 `(1) The department must have a policy about use of each type of 12 restrictive practice. 13 `(2) To the extent the policy is about use of a type of restrictive 14 practice other than under a short term approval or in the 15 course of providing respite services or community access 16 services to an adult, the policy must outline the procedures a 17 relevant service provider must use to-- 18 (a) for a restrictive practice not used under a containment or 19 seclusion approval-- 20 (i) develop a positive behaviour support plan for an 21 adult with an intellectual or cognitive disability, 22 including, for example, consulting with members 23 of the adult's support network; and 24 (ii) review use of the restrictive practice at least 25 once-- 26 (A) if the restrictive practice is used with the 27 consent of a guardian for a restrictive 28 practice (general) matter--during the period 29 of the guardian's appointment; or 30 Page 53

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] (B) if the restrictive practice is used with the 1 consent of an informal decision 2 maker--during each 12 month period; and 3 (b) for a restrictive practice used under a containment or 4 seclusion approval--review use of the restrictive 5 practice when required by the chief executive, but at 6 least once during the period of the approval; and 7 (c) ensure an individual acting for the relevant service 8 provider who uses the restrictive practice in relation to 9 the adult-- 10 (i) has sufficient knowledge of the requirements for 11 lawful use of the restrictive practice; and 12 (ii) has the skills and knowledge required to use the 13 restrictive practice appropriately; and 14 (d) monitor use of the restrictive practice to safeguard 15 against abuse, neglect or exploitation; and 16 (e) for restricting access--minimise the impact on other 17 persons living at the premises. 18 `(3) To the extent the policy is about use of a type of restrictive 19 practice under a short term approval, the policy must outline 20 the procedures a relevant service provider must use to-- 21 (a) develop a short term plan for an adult with an 22 intellectual or cognitive disability; and 23 (b) ensure an individual acting for the relevant service 24 provider who uses the restrictive practice in relation to 25 the adult-- 26 (i) has sufficient knowledge of the requirements for 27 lawful use of the restrictive practice; and 28 (ii) has the skills and knowledge required to use the 29 restrictive practice appropriately; and 30 (c) monitor use of the restrictive practice to safeguard 31 against abuse, neglect or exploitation. 32 `(4) To the extent the policy is about use of a type of restrictive 33 practice in the course of providing respite services or 34 Page 54

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] community access services to an adult with an intellectual or 1 cognitive disability, the policy must outline the procedures a 2 relevant service provider must use to-- 3 (a) for a restrictive practice other than chemical restraint 4 (fixed dose)-- 5 (i) develop a respite/community access plan for the 6 adult; and 7 (ii) carry out a risk assessment for the adult under 8 section 123ZS; and 9 (b) ensure an individual acting for the relevant service 10 provider who uses the restrictive practice in relation to 11 the adult-- 12 (i) has sufficient knowledge of the requirements for 13 lawful use of the restrictive practice; and 14 (ii) has the skills and knowledge required to use the 15 restrictive practice appropriately; and 16 (c) monitor use of the restrictive practice to safeguard 17 against abuse, neglect or exploitation; and 18 (d) for restricting access--minimise the impact on other 19 persons living at the premises. 20 `(5) Subsections (2) to (4) do not limit the matters that may be 21 stated in the policy. 22 `(6) The policy must ensure appropriate regard is had to linguistic 23 and cultural diversity and Aboriginal tradition and Island 24 custom. 25 Editor's note-- 26 Acts Interpretation Act 1954, section 36-- 27 Aboriginal tradition means the body of traditions, observances, customs 28 and beliefs of Aboriginal people generally or of a particular community 29 or group of Aboriginal people, and includes any such traditions, 30 observances, customs and beliefs relating to particular persons, areas, 31 objects or relationships. 32 Island custom, known in the Torres Strait as Ailan Kastom, means the 33 body of customs, traditions, observances and beliefs of Torres Strait 34 Islanders generally or of a particular community or group of Torres 35 Page 55

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] Strait Islanders, and includes any such customs, traditions, observances 1 and beliefs relating to particular persons, areas, objects or relationships. 2 `123ZW Requirements for publication of department's policy 3 etc. 4 `(1) The chief executive must keep a copy of the department's 5 policy about use of each type of restrictive practice available 6 for inspection free of charge by relevant service providers at-- 7 (a) the department's head office and regional offices; and 8 (b) other places the chief executive considers appropriate. 9 `(2) Also, the chief executive must publish the policy on the 10 department's website on the internet. 11 `Division 7 Review of particular chief executive 12 decisions 13 `123ZX Application of div 7 14 `This division applies if the chief executive makes a decision 15 (a relevant decision) about which the chief executive is 16 required under this part to give a decision notice. 17 Note-- 18 See sections 123R (a decision that a multidisciplinary assessment will 19 not be conducted) and 123S(6) (a decision not to develop a positive 20 behaviour support plan under division 3). 21 `123ZY Definitions for div 7 22 `In this division-- 23 interested person, for a relevant decision, means a person to 24 whom the chief executive is required under this part to give a 25 decision notice about the decision. 26 relevant decision see section 123ZX. 27 Page 56

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] `123ZZ Application for review 1 `(1) An interested person for a relevant decision may apply to the 2 chief executive, within 28 days after receiving a decision 3 notice about the decision, to review the decision. 4 `(2) The chief executive may extend the time for applying for the 5 review. 6 `(3) Also, an interested person for a relevant decision may apply to 7 the chief executive to review the decision if the chief 8 executive has not given the interested person a decision notice 9 about the decision. 10 `(4) The application must be in the approved form and 11 accompanied by enough information to enable the chief 12 executive to decide the application. 13 `123ZZA Review of relevant decision 14 `(1) This section applies to an application under section 123ZZ for 15 review of a relevant decision. 16 `(2) Unless the chief executive made the relevant decision 17 personally, the chief executive must ensure the application is 18 not dealt with by-- 19 (a) the person who made the relevant decision; or 20 (b) a person in a less senior office than the person who 21 made the relevant decision. 22 `(3) Within 28 days after receiving the application, the chief 23 executive must review the relevant decision and make a 24 decision (the review decision)-- 25 (a) confirming the relevant decision; or 26 (b) amending the relevant decision; or 27 (c) substituting another decision for the relevant decision. 28 `(4) Immediately after deciding the application, the chief executive 29 must give the interested person a notice stating-- 30 Page 57

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] (a) the review decision; and 1 (b) the reasons for the review decision. 2 `Division 8 Miscellaneous provisions 3 `Subdivision 1 Immunity for use of restrictive 4 practices 5 `123ZZB Immunity from liability--relevant service provider 6 `A relevant service provider is not criminally or civilly liable 7 if the relevant service provider, acting honestly and without 8 negligence, uses a restrictive practice under this part. 9 `123ZZC Immunity from liability--individual acting for relevant 10 service provider 11 `(1) This section applies to an individual who, acting for a relevant 12 service provider, uses a restrictive practice in relation to an 13 adult with an intellectual or cognitive disability. 14 `(2) The individual is not criminally or civilly liable for using the 15 restrictive practice if the individual acts honestly and without 16 negligence in compliance with-- 17 (a) if the restrictive practice is used under section 123M-- 18 (i) the containment or seclusion approval for the 19 adult; and 20 (ii) either-- 21 (A) if the containment or seclusion for the adult 22 is given as an interim order under the GAA, 23 section 80ZR--the terms of the order; or 24 (B) otherwise--the positive behaviour support 25 plan for the adult; or 26 (b) if the restrictive practice is used under section 123N-- 27 Page 58

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] (i) the consent of a guardian for a restrictive practice 1 (respite) matter for the adult; and 2 (ii) the respite/community access plan for the adult; or 3 (c) if the restrictive practice is used under section 123ZA-- 4 (i) the positive behaviour support plan for the adult; 5 and 6 (ii) either-- 7 (A) a containment or seclusion approval for the 8 adult; or 9 (B) the consent of a relevant decision maker for 10 the adult within the meaning of section 11 123ZA; or 12 (d) if the restrictive practice is used under section 123ZB-- 13 (i) the respite/community access plan for the adult; 14 and 15 (ii) the consent of a relevant decision maker (respite) 16 for the adult; or 17 (e) if the restrictive practice is used under section 18 123ZC--the consent of a relevant decision maker 19 (respite) for the adult; or 20 (f) if the restrictive practice is used under section 123O or 21 123ZD-- 22 (i) the relevant short term approval; and 23 (ii) if a short term plan for the adult has been approved 24 under division 4, subdivision 4 or the GAA, 25 chapter 5B, part 4--the short term plan. 26 `(3) For subsection (2), the individual is taken to be acting in 27 compliance with an approval, consent or plan mentioned in 28 the subsection if the individual reasonably believes he or she 29 is acting in compliance with the approval, consent or plan. 30 Page 59

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] `Subdivision 2 Requirements for relevant service 1 providers 2 Note-- 3 Under section 161, a funded non-government service provider may be 4 given a compliance notice requiring the provider to remedy a 5 contravention of a requirement under this subdivision. 6 `123ZZD Requirement to give information to guardian or 7 informal decision maker 8 `(1) This section applies if-- 9 (a) a relevant service provider seeks consent from a 10 substitute decision maker for an adult to use a restrictive 11 practice in relation to the adult; and 12 (b) the restrictive practice is not chemical restraint (fixed 13 dose) used under section 123ZC in the course of 14 providing respite services to the adult. 15 `(2) To enable the substitute decision maker to make an informed 16 decision about the use of a restrictive practice other than in the 17 course of providing respite services or community access 18 services to the adult, the relevant service provider must give 19 the substitute decision maker each of the following-- 20 (a) the positive behaviour support plan for the adult; 21 (b) any assessment or other information used to develop or 22 change the plan; 23 (c) if the relevant service provider is aware the adult is 24 subject to a forensic order or involuntary treatment order 25 under the Mental Health Act 2000--the terms of the 26 order. 27 `(3) To enable the substitute decision maker to make an informed 28 decision about the use of a restrictive practice in the course of 29 providing respite services or community access services to the 30 adult, the relevant service provider must give the substitute 31 decision maker-- 32 Page 60

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] (a) the respite/community access plan for the adult; and 1 (b) any information used to develop the plan. 2 `(4) If the relevant service provider, acting honestly and without 3 negligence, gives the information to the substitute decision 4 maker, the relevant service provider is not liable, civilly, 5 criminally or under an administrative process, for giving the 6 information. 7 `(5) Also, merely because the relevant service provider gives the 8 information, the relevant service provider can not be held to 9 have-- 10 (a) breached any code of professional etiquette or ethics; or 11 (b) departed from accepted standards of professional 12 conduct. 13 `(6) Without limiting subsections (4) and (5)-- 14 (a) in a proceeding for defamation, the relevant service 15 provider has a defence of absolute privilege for 16 publishing the information; and 17 (b) if the relevant service provider would otherwise be 18 required to maintain confidentiality about the 19 information under an Act, oath or rule of law or practice, 20 the relevant service provider-- 21 (i) does not contravene the Act, oath or rule of law or 22 practice by giving the information; and 23 (ii) is not liable to disciplinary action for giving the 24 information. 25 `(7) This section does not limit the GAA, section 44. 26 Note-- 27 The GAA, section 44 enables a guardian to obtain all information the 28 adult would have been entitled to if the adult had capacity and that is 29 necessary for the guardian to make informed decisions. 30 `(8) In this section-- 31 information includes a document. 32 Page 61

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] substitute decision maker, for an adult, means a guardian for 1 a restrictive practice matter, or an informal decision maker, for 2 the adult. 3 Note-- 4 A guardian or informal decision maker who gains confidential 5 information is subject to confidentiality requirements under the GAA. 6 See the GAA, section 249 for guardians and section 80ZT for informal 7 decision makers. 8 `123ZZE Requirement to keep records and other documents 9 `(1) This section applies to a relevant service provider using a 10 restrictive practice in relation to an adult with an intellectual 11 or cognitive disability. 12 `(2) The relevant service provider must make, and keep for the 13 time prescribed under a regulation, the records prescribed 14 under a regulation. 15 `(3) Also, the relevant service provider must keep, at premises 16 where disability services are provided to the adult, a copy 17 of-- 18 (a) if the restrictive practice is used under section 123M or 19 123ZA--the positive behaviour support plan for the 20 adult; or 21 (b) if the restrictive practice is used under section 123N or 22 123ZB--the respite/community access plan for the 23 adult; or 24 (c) if the restrictive practice is used under section 123O or 25 123ZD--the short term approval and any short term 26 plan for the adult. 27 `(4) If the restrictive practice is used under a containment or 28 seclusion approval given as an interim order under the GAA, 29 section 80ZR-- 30 (a) subsection (3)(a) does not apply; and 31 (b) the relevant service provider must keep, at premises 32 where disability services are provided to the adult, a 33 copy of the interim order. 34 Page 62

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] `123ZZF Notification requirements about approvals given for 1 use of restrictive practices 2 `(1) If-- 3 (a) a relevant service provider is given a limited restrictive 4 practice approval authorising the provider to use a 5 restrictive practice at a service outlet; and 6 (b) there is no other limited restrictive practice approval in 7 effect relating to the service outlet; 8 the relevant service provider must, within the required period, 9 give notice in the approved form to the chief executive. 10 `(2) A relevant service provider who has given a notice under 11 subsection (1) must, within the period mentioned in 12 subsection (6), give notice in the approved form to the chief 13 executive if all limited restrictive practice approvals relating to 14 the service outlet stop having effect. 15 `(3) If-- 16 (a) a relevant service provider is given a restrictive practice 17 approval authorising the provider to use a restrictive 18 practice at a visitable site under the GAA; and 19 (b) there is no other restrictive practice approval in effect 20 relating to the visitable site; 21 the relevant service provider must, within the required period, 22 give notice to the chief executive of the department in which 23 the GAA is administered. 24 Editor's note-- 25 GAA, section 222-- 26 visitable site means a place, other than a private dwelling house, where a 27 consumer lives or receives services and that is prescribed under a 28 regulation. 29 `(4) For subsection (3), the notice must state-- 30 (a) the name and address of the visitable site; and 31 (b) that a restrictive practice approval has been given in 32 relation to the visitable site. 33 Page 63

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] `(5) A relevant service provider who has given a notice under 1 subsection (3) must, within the period mentioned in 2 subsection (6), give notice to the chief executive of the 3 department in which the GAA is administered if all restrictive 4 practice approvals relating to the visitable site stop having 5 effect. 6 `(6) For subsections (2) and (5), the notice must be given within 21 7 days after the event mentioned in the subsection happens. 8 `(7) In this section-- 9 limited restrictive practice approval means a restrictive 10 practice approval other than-- 11 (a) a containment or seclusion approval; or 12 (b) a short term approval given by the adult guardian under 13 the GAA, chapter 5B, part 4. 14 required period means-- 15 (a) if the restrictive practice approval is a short term 16 approval--14 days after the approval is given; or 17 (b) otherwise--21 days after the restrictive practice 18 approval is given. 19 restrictive practice approval means-- 20 (a) a containment or seclusion approval; or 21 (b) consent to use of a restrictive practice given by-- 22 (i) a guardian for a restrictive practice matter; or 23 (ii) an informal decision maker; or 24 (c) a short term approval. 25 Page 64

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] `Subdivision 3 Confidentiality provisions 1 `123ZZG Definitions for sdiv 3 2 `In this subdivision-- 3 chief executive (health) means the chief executive of the 4 department in which the Health Services Act 1991 is 5 administered. 6 health professional means a person engaged in delivering a 7 private sector health service, including the following-- 8 (a) a person registered under a health practitioner 9 registration Act within the meaning of the Health 10 Practitioner Registration Boards (Administration) Act 11 1999; 12 (b) a person enrolled, registered or authorised to practise 13 under the Nursing Act 1992; 14 (c) any other person, including, for example, an audiologist, 15 dietitian or social worker. 16 private sector health service means a service for maintaining, 17 improving or restoring people's health and wellbeing, other 18 than a service provided by the State. 19 `123ZZH Relevant service provider may request confidential 20 information from health professional or chief 21 executive (health) 22 `(1) This section applies if a relevant service provider considers a 23 health professional, or the chief executive (health), may hold 24 confidential information about an adult with an intellectual or 25 cognitive disability that is relevant to any of the following 26 being done by the provider-- 27 (a) the assessment of the adult, including the making of a 28 decision about whether to assess the adult; 29 (b) the development or changing of a positive behaviour 30 support plan for the adult; 31 Page 65

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 7] (c) the development of a short term plan for the adult; 1 (d) the development of a respite/community access plan for 2 the adult. 3 `(2) The relevant service provider may ask the health professional 4 or chief executive (health) for the confidential information. 5 `(3) A health professional or the chief executive (health) who gives 6 confidential information requested under this section and who 7 would otherwise be required to maintain confidentiality about 8 the information under an Act, oath or rule of law or practice-- 9 (a) does not contravene the Act, oath or rule of law or 10 practice by giving the information; and 11 (b) is not liable to disciplinary action for giving the 12 information. 13 `(4) Also, merely because the health professional or the chief 14 executive (health) gives the confidential information, the 15 person can not be held to have-- 16 (a) breached any code of professional etiquette or ethics; or 17 (b) departed from accepted standards of professional 18 conduct. 19 `123ZZI Relevant service providers must maintain 20 confidentiality 21 `(1) This section applies if a relevant service provider-- 22 (a) gains confidential information under section 123ZZH; 23 or 24 (b) otherwise gains confidential information in the course 25 of-- 26 (i) assessing an adult with an intellectual or cognitive 27 disability or developing a positive behaviour 28 support plan for the adult; or 29 (ii) developing a respite/community access plan or 30 short term plan for an adult with an intellectual or 31 cognitive disability. 32 Page 66

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 8] `(2) The relevant service provider, or an individual acting for the 1 relevant service provider, must not disclose the information to 2 anyone other than under subsection (3). 3 Maximum penalty--100 penalty units. 4 `(3) The relevant service provider, or an individual acting for the 5 relevant service provider, may disclose the information to 6 someone else-- 7 (a) for this Act; or 8 (b) to discharge a function under another law; or 9 (c) for a proceeding in a court or tribunal; or 10 (d) if authorised under another law or a regulation made 11 under this Act; or 12 (e) if authorised in writing by the adult with an intellectual 13 or cognitive disability to whom the information relates; 14 or 15 (f) to protect a person with a disability from abuse, neglect 16 or exploitation.'. 17 Clause 8 Insertion of new pt 15, div 1A 18 Part 15-- 19 insert-- 20 `Division 1A Locking of gates, doors and 21 windows 22 `214A Application of div 1A 23 `This division applies if-- 24 (a) a relevant service provider locks gates, doors or 25 windows at premises where disability services are 26 provided to adults with an intellectual or cognitive 27 disability; and 28 Page 67

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 8] (b) the only reason the gates, doors or windows are locked 1 is to prevent physical harm being caused to an adult with 2 a skills deficit. 3 `214B Definitions for div 1A 4 `In this division-- 5 adult with an intellectual or cognitive disability see section 6 123E. 7 adult with a skills deficit means an adult with an intellectual 8 or cognitive disability who can not safely exit premises where 9 disability services are provided to the adult without 10 supervision, if the only reason the adult can not safely exit the 11 premises without supervision is-- 12 (a) the adult lacks road safety skills; or 13 (b) the adult is vulnerable to abuse or exploitation by others; 14 or 15 (c) the adult is unable to find his or her way back to the 16 premises; or 17 (d) another reason prescribed under a regulation. 18 relevant service provider see section 123B. 19 `214C Immunity from liability--relevant service provider 20 `(1) The relevant service provider is not civilly or criminally liable 21 for locking gates, doors or windows if-- 22 (a) the relevant service provider acts honestly and without 23 negligence; and 24 (b) the relevant service provider keeps and implements a 25 policy about the locking of gates, doors and windows 26 that is consistent with the department's policy about the 27 locking of gates, doors and windows; and 28 (c) the gates, doors or windows are locked in compliance 29 with the policy; and 30 Page 68

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 8] (d) the relevant service provider takes reasonable steps to 1 minimise the impact of locking the gates, doors or 2 windows on a person living at the premises who is not 3 an adult with a skills deficit. 4 `(2) Subsection (1) applies to the extent the locking of the gates, 5 doors or windows prevents the free exit from the premises 6 of-- 7 (a) an adult with a skills deficit; or 8 (b) any other person living at the premises, other than an 9 adult with an intellectual or cognitive disability who is 10 contained within the meaning of part 10A. 11 `(3) In this section-- 12 keep and implement, for a policy, means-- 13 (a) prepare the policy and keep it up-to-date; and 14 (b) when providing disability services, implement and 15 comply with the procedures and other matters stated in 16 the policy; and 17 (c) keep a copy of the up-to-date policy at the premises. 18 `214D Immunity from liability--individual acting for relevant 19 service provider 20 `An individual, acting for a relevant service provider, is not 21 civilly or criminally liable for locking gates, doors or 22 windows if the individual acts in compliance with, or 23 reasonably believes he or she is acting in compliance with, the 24 provider's policy about the locking of gates, doors and 25 windows. 26 `214E Department's policy about locking of gates, doors 27 and windows 28 `(1) The department must have a policy about the locking of gates, 29 doors and windows under this division. 30 Page 69

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 9] `(2) The policy must outline the procedures a relevant service 1 provider will use to ensure gates, doors and windows are 2 locked only if it is-- 3 (a) necessary to prevent physical harm to an adult with a 4 skills deficit; and 5 (b) the least restrictive way of ensuring the adult's safety as 6 is practicable in the circumstances. 7 `(3) Also, the policy must ensure appropriate regard is had to 8 linguistic and cultural diversity and Aboriginal tradition and 9 Island custom. 10 Editor's note-- 11 Acts Interpretation Act 1954, section 36-- 12 Aboriginal tradition means the body of traditions, observances, customs 13 and beliefs of Aboriginal people generally or of a particular community 14 or group of Aboriginal people, and includes any such traditions, 15 observances, customs and beliefs relating to particular persons, areas, 16 objects or relationships. 17 Island custom, known in the Torres Strait as Ailan Kastom, means the 18 body of customs, traditions, observances and beliefs of Torres Strait 19 Islanders generally or of a particular community or group of Torres 20 Strait Islanders, and includes any such customs, traditions, observances 21 and beliefs relating to particular persons, areas, objects or relationships. 22 `(4) The chief executive must keep a copy of the policy available 23 for inspection free of charge by relevant service providers at-- 24 (a) the department's head office and regional offices; and 25 (b) other places the chief executive considers appropriate. 26 `(5) Also, the chief executive must publish the policy on the 27 department's website on the internet.'. 28 Clause 9 Amendment of s 222 (Confidentiality of other 29 information) 30 Section 222(3)-- 31 insert-- 32 `(da) a person contracted by the department for the purpose of 33 conducting a multidisciplinary assessment, or 34 Page 70

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 10] developing a positive behaviour support plan, under part 1 10A, division 3; or'. 2 Clause 10 Insertion of new s 233A 3 Part 15-- 4 insert-- 5 `233A Review of Guardianship and Administration Act 6 2000, ch 5B 7 `When the Minister conducts the review required under 8 section 233, the Minister and the Minister responsible for 9 administering the Guardianship and Administration Act 2000, 10 acting jointly, must review the efficacy and efficiency of 11 chapter 5B of that Act.'. 12 Clause 11 Amendment of pt 16, div 2 hdg (Transitional provisions) 13 Part 16, division 2, heading, after `provisions'-- 14 insert-- 15 `for Act No. 12 of 2006'. 16 Clause 12 Insertion of new pt 16, div 3 17 After section 240-- 18 insert-- 19 `Division 3 Transitional provisions for Disability 20 Services and Other Legislation 21 Amendment Act 2008 22 `Subdivision 1 Preliminary 23 `241 Interpretation 24 `(1) In this division-- 25 Page 71

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 12] authorised guardian, for an adult with an intellectual or 1 cognitive disability in relation to a restrictive practice, means 2 a guardian for the adult-- 3 (a) appointed before the commencement under the 4 Guardianship and Administration Act 2000; and 5 (b) who is authorised under that Act, in accordance with the 6 terms of the guardian's appointment, to make decisions 7 about the use of the restrictive practice in relation to the 8 adult. 9 Note-- 10 See also the GAA, section 265. 11 commencement means the commencement of this division. 12 compliance period means-- 13 (a) if the restrictive practice used is containment or 14 seclusion or restricting access--6 months from the day 15 the relevant service provider first uses the restrictive 16 practice in relation to the adult on or after the 17 commencement; or 18 (b) if the restrictive practice used is chemical, mechanical or 19 physical restraint--9 months from the day the relevant 20 service provider first uses the restrictive practice in 21 relation to the adult on or after the commencement. 22 previous service provider means-- 23 (a) the State, to the extent the State provided disability 24 services for adults with an intellectual or cognitive 25 disability before the commencement; or 26 (b) a person other than the State who provided disability 27 services funded by the State for adults with an 28 intellectual or cognitive disability before the 29 commencement. 30 transitional period means the period starting on the 31 commencement and ending 18 months after the 32 commencement. 33 Page 72

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 12] `(2) If the context permits, terms used in this division that are 1 defined for part 10A have the meanings given for part 10A. 2 `Subdivision 2 Immunity from liability for use of 3 restrictive practices before 4 commencement 5 `242 Immunity of previous service provider 6 `A previous service provider is not criminally or civilly liable 7 for using a restrictive practice before the commencement in 8 relation to an adult with an intellectual or cognitive disability 9 if-- 10 (a) the previous service provider acted honestly and without 11 negligence; and 12 (b) using the restrictive practice was-- 13 (i) necessary to prevent the adult's behaviour causing 14 harm to the adult or others; and 15 (ii) the least restrictive way of ensuring the safety of 16 the adult or others; and 17 (c) within a reasonable time before using the restrictive 18 practice, the previous service provider assessed the adult 19 to identify-- 20 (i) the nature and causes of the adult's behaviour that 21 caused harm to the adult or others; and 22 (ii) strategies for managing the adult's behaviour that 23 caused harm to the adult or others, and for meeting 24 the adult's needs; and 25 (d) the previous service provider carried out monitoring in 26 relation to use of the restrictive practice to ensure the 27 safety of the adult. 28 Page 73

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 12] `243 Immunity of individual acting for previous service 1 provider 2 `(1) This section applies to an individual who, acting for a 3 previous service provider before the commencement, used a 4 restrictive practice in relation to an adult with an intellectual 5 or cognitive disability. 6 `(2) The individual is not criminally or civilly liable for using the 7 restrictive practice if-- 8 (a) the individual acted honestly and without negligence; 9 and 10 (b) use of the restrictive practice was necessary, or the 11 individual reasonably believed use of the restrictive 12 practice was necessary, to prevent the adult's behaviour 13 causing harm to the adult or others. 14 `Subdivision 3 Immunity from liability for use of 15 restrictive practices during 16 transitional period 17 `244 Immunity of relevant service provider 18 `(1) A relevant service provider is not criminally or civilly liable 19 for using a restrictive practice during the transitional period in 20 relation to an adult with an intellectual or cognitive disability 21 if-- 22 (a) the relevant service provider acts honestly and without 23 negligence; and 24 (b) use of the restrictive practice is-- 25 (i) necessary to prevent the adult's behaviour causing 26 harm to the adult or others; and 27 (ii) the least restrictive way of ensuring the safety of 28 the adult or others; and 29 (c) either-- 30 Page 74

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 12] (i) if there is an authorised guardian for the adult in 1 relation to the restrictive practice--the restrictive 2 practice is used in compliance with the consent of 3 the authorised guardian; or 4 (ii) otherwise--the relevant service provider complies 5 with section 245; and 6 (d) the relevant service provider carries out monitoring in 7 relation to use of the restrictive practice to ensure the 8 safety of the adult; and 9 (e) for containment or seclusion--within 60 days after first 10 containing or secluding the adult on or after the 11 commencement, the relevant service provider gives 12 notice to the chief executive in the approved form of the 13 containment or seclusion of the adult; and 14 (f) from the first day after the end of the compliance period 15 until the last day of the transitional period--the relevant 16 service provider keeps and implements a policy about 17 use of the restrictive practice during the transitional 18 period that is consistent with the department's policy 19 about use of the restrictive practice mentioned in section 20 249. 21 `(2) Subsection (1)(b) to (d) does not apply if the restrictive 22 practice is chemical restraint (fixed dose) used in the course of 23 providing respite services to the adult. 24 `(3) This section is subject to section 248. 25 `245 Requirement to assess adult if no authorised 26 guardian 27 `For section 244(1)(c)(ii), the requirements are that the 28 relevant service provider must, during the compliance period, 29 assess the adult to identify-- 30 (a) the nature and causes of the adult's behaviour that 31 causes harm to the adult or others; and 32 Page 75

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 12] (b) strategies for managing the adult's behaviour that causes 1 harm to the adult or others, and for meeting the adult's 2 needs. 3 `246 Immunity for individual acting for relevant service 4 provider 5 `(1) This section applies to an individual who, acting for a relevant 6 service provider during the transitional period, uses a 7 restrictive practice in relation to an adult with an intellectual 8 or cognitive disability. 9 `(2) The individual is not criminally or civilly liable for using the 10 restrictive practice if-- 11 (a) the individual acts honestly and without negligence; and 12 (b) use of the restrictive practice is necessary, or the 13 individual reasonably believes use of the restrictive 14 practice is necessary, to prevent the adult's behaviour 15 causing harm to the adult or others. 16 `(3) Subsection (2)(b) does not apply if the restrictive practice is 17 chemical restraint (fixed dose) used in the course of providing 18 respite services to the adult. 19 `(4) This section is subject to section 248. 20 `247 Relationship of subdivision with pt 10A 21 `This subdivision does not limit part 10A. 22 `248 Circumstances in which subdivision stops applying 23 `(1) This section provides for the circumstances in which this 24 subdivision stops applying to the use of a restrictive practice 25 by a relevant service provider in relation to an adult with an 26 intellectual or cognitive disability. 27 `(2) If the restrictive practice is not used in the course of providing 28 respite services or community access services to the adult, the 29 circumstances are-- 30 Page 76

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 12] (a) for containment or seclusion--the guardianship tribunal 1 gives, or refuses to give, a containment or seclusion 2 approval authorising the relevant service provider to 3 contain or seclude the adult; or 4 (b) for chemical, mechanical or physical restraint--a 5 guardian for a restrictive practice (general) matter for 6 the adult gives, or refuses to give, consent to use of the 7 restrictive practice by the relevant service provider; or 8 (c) for restricting access--a guardian for a restrictive 9 practice (general) matter, or an informal decision maker, 10 for the adult gives, or refuses to give, consent to use of 11 the restrictive practice by the relevant service provider. 12 `(3) If the restrictive practice is used in the course of providing 13 respite services or community access services to the adult, the 14 circumstances are a guardian for a restrictive practice (respite) 15 matter, or an informal decision maker, for the adult gives, or 16 refuses to give, consent to use of the restrictive practice by the 17 relevant service provider. 18 `Subdivision 4 Other provisions 19 `249 Requirements for department's policy about use of 20 restrictive practices during transitional period 21 `(1) The department must have a policy about use of each type of 22 restrictive practice during the transitional period. 23 `(2) The policy must outline the procedures a relevant service 24 provider must use to-- 25 (a) if the relevant service provider is required to comply 26 with section 245--assess an adult with an intellectual or 27 cognitive disability; and 28 (b) ensure an individual acting for the relevant service 29 provider who uses the restrictive practice in relation to 30 the adult-- 31 Page 77

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 12] (i) has sufficient knowledge of the requirements for 1 lawful use of the restrictive practice; and 2 (ii) has the skills and knowledge required to use the 3 restrictive practice appropriately; and 4 (c) monitor use of the restrictive practice to safeguard 5 against abuse, neglect or exploitation; and 6 (d) review use of the restrictive practice at least once every 7 9 months; and 8 (e) if the policy is about restricting access--minimise the 9 impact on other persons living at the premises. 10 `(3) Subsection (2) does not limit the matters that may be stated in 11 the policy. 12 `(4) The policy must ensure appropriate regard is had to linguistic 13 and cultural diversity and Aboriginal tradition and Island 14 custom. 15 Editor's note-- 16 Acts Interpretation Act 1954, section 36-- 17 Aboriginal tradition means the body of traditions, observances, customs 18 and beliefs of Aboriginal people generally or of a particular community 19 or group of Aboriginal people, and includes any such traditions, 20 observances, customs and beliefs relating to particular persons, areas, 21 objects or relationships. 22 Island custom, known in the Torres Strait as Ailan Kastom, means the 23 body of customs, traditions, observances and beliefs of Torres Strait 24 Islanders generally or of a particular community or group of Torres 25 Strait Islanders, and includes any such customs, traditions, observances 26 and beliefs relating to particular persons, areas, objects or relationships. 27 `(5) The chief executive must keep a copy of the policy available 28 for inspection free of charge by relevant service providers at-- 29 (a) the department's head office and regional offices; and 30 (b) other places the chief executive considers appropriate. 31 `(6) Also, the chief executive must publish the policy on the 32 department's website on the internet. 33 `(7) This section stops applying on the day after the transitional 34 period ends. 35 Page 78

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 13] `250 Short term approvals not to be given during 1 transitional period 2 `Sections 123O and 123ZD and part 10A, division 4, 3 subdivision 4 do not apply during the transitional period.'. 4 Clause 13 Amendment of sch 7 (Dictionary) 5 (1) Schedule 7, definition interested person-- 6 omit. 7 (2) Schedule 7-- 8 insert-- 9 `adult with an intellectual or cognitive disability, for part 10 10A and part 15, division 1A, see section 123E. 11 adult with a skills deficit, for part 15, division 1A, see section 12 214B. 13 appropriately qualified, for part 10A, see section 123E. 14 assessment, for part 10A, see section 123E. 15 authorised guardian, for part 16, division 3, see section 16 241(1). 17 authorised psychiatrist, for part 10A, see section 123E. 18 chemical restraint, for part 10A, see section 123E. 19 chemical restraint (fixed dose), for part 10A, see section 20 123E. 21 chief executive (health), for part 10A, division 8, subdivision 22 3, see section 123ZZG. 23 commencement, for part 16, division 3, see section 241(1). 24 community access services, for part 10A, see section 123E. 25 compliance period, for part 16, division 3, see section 241(1). 26 contain, for part 10A, see section 123E. 27 containment or seclusion approval, for part 10A, see section 28 123E. 29 Page 79

Disability Services and Other Legislation Amendment Bill 2008 Part 2 Amendment of Disability Services Act 2006 [s 13] decision notice, for part 10A, see section 123E. 1 director of mental health, for part 10A, see section 123E. 2 GAA, for part 10A, see section 123E. 3 guardian for a restrictive practice (general) matter, for part 4 10A, see section 123E. 5 guardian for a restrictive practice matter, for part 10A, see 6 section 123E. 7 guardian for a restrictive practice (respite) matter, for part 8 10A, see section 123E. 9 guardianship tribunal, for part 10A, see section 123E. 10 harm, for part 10A, see section 123E. 11 health professional, for part 10A, division 8, subdivision 3, 12 see section 123ZZG. 13 informal decision maker, for part 10A, see section 123E. 14 interested person-- 15 (a) for a relevant decision for part 10A, division 7, see 16 section 123ZY; or 17 (b) for a reviewable decision, see section 207. 18 keep and implement, for part 10A, see section 123E. 19 least restrictive, for part 10A, see section 123E. 20 mechanical restraint, for part 10A, see section 123E. 21 multidisciplinary assessment, for part 10A, see section 123E. 22 physical restraint, for part 10A, see section 123E. 23 positive behaviour support plan, for part 10A, see section 24 123E. 25 previous service provider, for part 16, division 3, see section 26 241(1). 27 private sector health service, for part 10A, division 8, 28 subdivision 3, see section 123ZZG. 29 relevant decision, for part 10A, division 7, see section 123ZY. 30 Page 80

Disability Services and Other Legislation Amendment Bill 2008 Part 3 Amendment of Guardianship and Administration Act 2000 [s 14] relevant decision maker (respite), for part 10A, see section 1 123E. 2 relevant service provider, for part 10A and part 15, division 3 1A, see section 123B. 4 respite/community access plan, for part 10A, see section 5 123E. 6 respite services, for part 10A, see section 123E. 7 restricting access, for part 10A, see section 123E. 8 restrictive practice see section 123E. 9 seclude, for part 10A, see section 123E. 10 short term approval, for part 10A, see section 123E. 11 short term plan, for part 10A, see section 123E. 12 support network, for part 10A, see section 123E. 13 transitional period, for part 16, division 3, see section 14 241(1).'. 15 Part 3 Amendment of Guardianship 16 and Administration Act 2000 17 Clause 14 Act amended in pt 3 18 This part amends the Guardianship and Administration Act 19 2000. 20 Clause 15 Amendment of s 12 (Appointment) 21 Section 12-- 22 insert-- 23 `(4) This section does not apply for the appointment of a guardian 24 for a restrictive practice matter under chapter 5B. 25 Page 81

Disability Services and Other Legislation Amendment Bill 2008 Part 3 Amendment of Guardianship and Administration Act 2000 [s 16] Note-- 1 Section 80ZD provides for the appointment of guardians for restrictive 2 practice matters.'. 3 Clause 16 Amendment of s 13 (Advance appointment) 4 Section 13-- 5 insert-- 6 `(9) This section does not apply for the appointment of a guardian 7 for a restrictive practice matter under chapter 5B.'. 8 Clause 17 Insertion of new s 13A 9 After section 13-- 10 insert-- 11 `13A Advance appointment--guardian for restrictive 12 practice matter 13 `(1) The tribunal may, by order, make an appointment of a 14 guardian for a restrictive practice matter under chapter 5B for 15 an individual who is at least 171/2 years but not 18 years if the 16 tribunal is satisfied-- 17 (a) there is a reasonable likelihood, when the individual 18 turns 18, the individual will have impaired capacity for 19 the matter; and 20 (b) the individual's behaviour has previously resulted in 21 harm to the individual or others; and 22 (c) there is a reasonable likelihood, when the individual 23 turns 18-- 24 (i) there will be a need for a decision about the 25 restrictive practice matter; and 26 (ii) without the appointment-- 27 (A) the individual's behaviour is likely to cause 28 harm to the individual or others; and 29 Page 82

Disability Services and Other Legislation Amendment Bill 2008 Part 3 Amendment of Guardianship and Administration Act 2000 [s 18] (B) the individual's interests would not be 1 adequately protected. 2 `(2) This Act applies, with necessary changes, to an appointment 3 under this section. 4 `(3) The appointment begins when the individual turns 18. 5 `(4) The appointment ends-- 6 (a) on the day ordered by the tribunal, which must not be 7 later than the day the individual turns 19; or 8 (b) if no day is ordered by the tribunal--when the 9 individual turns 19. 10 `(5) The appointment may be on terms considered appropriate by 11 the tribunal. 12 `(6) The tribunal may make the order on its own initiative or on the 13 application of any of the following-- 14 (a) the individual; 15 (b) an interested person for the individual; 16 (c) a relevant service provider under chapter 5B; 17 (d) the chief executive (disability services); 18 (e) the adult guardian; 19 (f) if the individual is subject to a forensic order or 20 involuntary treatment order under the Mental Health Act 21 2000--the director of mental health.'. 22 Clause 18 Amendment of s 26 (Automatic revocation) 23 Section 26(1)-- 24 insert-- 25 `(e) for a guardian for a restrictive practice matter under 26 chapter 5B--the tribunal gives a containment or 27 seclusion approval under chapter 5B in relation to the 28 adult.'. 29 Page 83

Disability Services and Other Legislation Amendment Bill 2008 Part 3 Amendment of Guardianship and Administration Act 2000 [s 19] Clause 19 Amendment of s 28 (Periodic review of appointment) 1 Section 28-- 2 insert-- 3 `(2) This section does not apply for a guardian for a restrictive 4 practice matter under chapter 5B.'. 5 Clause 20 Amendment of s 29 (Other review of appointment) 6 (1) Section 29(b), `on'-- 7 omit, insert-- 8 `for a guardian other than a guardian for a restrictive practice 9 matter under chapter 5B--on'. 10 (2) Section 29-- 11 insert-- 12 `(c) for a guardian for a restrictive practice matter under 13 chapter 5B--on the application of any of the 14 following-- 15 (i) the adult; 16 (ii) an interested person for the adult; 17 (iii) a relevant service provider under chapter 5B 18 providing disability services to the adult; 19 (iv) the chief executive (disability services); 20 (v) the adult guardian; 21 (vi) if the adult is subject to a forensic order or 22 involuntary treatment order under the Mental 23 Health Act 2000--the director of mental health.'. 24 (3) Section 29-- 25 insert-- 26 `(2) However, the tribunal must review the appointment of a 27 guardian for a restrictive practice matter under chapter 5B at 28 least once before the term of the appointment ends.'. 29 Page 84

Disability Services and Other Legislation Amendment Bill 2008 Part 3 Amendment of Guardianship and Administration Act 2000 [s 21] Clause 21 Amendment of s 33 (Power of guardian or administrator) 1 Section 33-- 2 insert-- 3 `(3) For a guardian for a restrictive practice matter under chapter 4 5B, this section applies subject to sections 80ZE and 80ZF.'. 5 Clause 22 Insertion of new ch 5B 6 After section 80Q-- 7 insert-- 8 `Chapter 5B Restrictive practices 9 `Part 1 Preliminary 10 `80R Application of ch 5B 11 `This chapter applies to an adult with an intellectual or 12 cognitive disability who receives disability services from a 13 funded service provider within the meaning of the DSA (a 14 relevant service provider). 15 `80S Purpose of ch 5B 16 `(1) The purpose of this chapter is to enable the tribunal to-- 17 (a) give approval for a relevant service provider to contain 18 or seclude an adult, and to review the approval; and 19 (b) if the tribunal has given, or proposes to give, an approval 20 mentioned in paragraph (a) in relation to an adult--give 21 approval for a relevant service provider to use restrictive 22 practices other than containment or seclusion in relation 23 to the adult, and to review the approval; and 24 (c) appoint a guardian for a restrictive practice matter for an 25 adult, and to review the appointment. 26 Page 85

Disability Services and Other Legislation Amendment Bill 2008 Part 3 Amendment of Guardianship and Administration Act 2000 [s 22] `(2) Also, this chapter-- 1 (a) enables the adult guardian to approve the use of 2 particular restrictive practices on a short term basis; and 3 (b) provides criteria for guardians for a restrictive practice 4 matter and informal decision makers for deciding 5 whether to consent to the use of particular restrictive 6 practices. 7 `80T Effect of ch 5B on substitute decision maker's ability 8 to make health care decision 9 `This chapter does not limit the extent to which a substitute 10 decision maker is authorised under a provision of this Act or 11 the Powers of Attorney Act 1998 to make a health care 12 decision in relation to an adult to whom this chapter does not 13 apply. 14 `80U Definitions for ch 5B 15 `In this chapter-- 16 active party see section 80ZQ. 17 adult with an intellectual or cognitive disability see the DSA, 18 section 123E. 19 assessment, of an adult, see the DSA, section 123E. 20 authorised psychiatrist see the Mental Health Act 2000, 21 schedule 2. 22 chemical restraint see the DSA, section 123E. 23 chemical restraint (fixed dose) see the DSA, section 123E. 24 community access services see the DSA, section 123E. 25 contain see the DSA, section 123E. 26 containment or seclusion approval-- 27 (a) means approval given by the tribunal under part 2, 28 division 1 for a relevant service provider to contain or 29 seclude an adult; and 30 Page 86

Disability Services and Other Legislation Amendment Bill 2008 Part 3 Amendment of Guardianship and Administration Act 2000 [s 22] (b) includes an approval given under that part for a relevant 1 service provider to use a restrictive practice other than 2 containment or seclusion in relation to the adult. 3 disability services see the DSA, section 12. 4 DSA means the Disability Services Act 2006. 5 harm see the DSA, section 123E. 6 informal decision maker, for an adult, see the DSA, section 7 123E. 8 least restrictive see the DSA, section 123E. 9 mechanical restraint see the DSA, section 123E. 10 physical restraint see the DSA, section 123E. 11 positive behaviour support plan see the DSA, section 123E. 12 relevant service provider see section 80R. 13 respite/community access plan see the DSA, section 123E. 14 respite services see the DSA, section 123E. 15 restrictive practice see the DSA, section 123E. 16 restrictive practice (general) matter, for an adult, means a 17 matter relating to the use of a restrictive practice in relation to 18 the adult by a relevant service provider, other than-- 19 (a) containment or seclusion; or 20 (b) any restrictive practice used in the course of providing 21 respite services or community access services to the 22 adult. 23 restrictive practice matter means-- 24 (a) a restrictive practice (general) matter; or 25 (b) a restrictive practice (respite) matter. 26 restrictive practice (respite) matter, for an adult, means a 27 matter relating to the use of a restrictive practice in relation to 28 the adult by a relevant service provider in the course of 29 providing respite services or community access services to the 30 adult. 31 Page 87

Disability Services and Other Legislation Amendment Bill 2008 Part 3 Amendment of Guardianship and Administration Act 2000 [s 22] seclude see the DSA, section 123E. 1 short term plan see the DSA, section 123E. 2 `Part 2 Containment or seclusion 3 approvals 4 `Division 1 Giving containment or seclusion 5 approvals 6 `80V When tribunal may approve use of containment or 7 seclusion 8 `(1) The tribunal may, by order, give approval for a relevant 9 service provider to contain or seclude an adult, subject to the 10 conditions stated in the order. 11 `(2) The tribunal may give the approval only if the tribunal is 12 satisfied-- 13 (a) the adult has impaired capacity for making decisions 14 about the use of restrictive practices in relation to the 15 adult; and 16 (b) there is a need for the relevant service provider to 17 contain or seclude the adult because-- 18 (i) the adult's behaviour has previously resulted in 19 harm to the adult or others; and 20 (ii) there is a reasonable likelihood that, if the approval 21 is not given, the adult's behaviour will cause harm 22 to the adult or others; and 23 (c) a positive behaviour support plan has been developed 24 for the adult that provides for the containment or 25 seclusion; and 26 Page 88

Disability Services and Other Legislation Amendment Bill 2008 Part 3 Amendment of Guardianship and Administration Act 2000 [s 22] (d) containing or secluding the adult in compliance with the 1 approval is the least restrictive way of ensuring the 2 safety of the adult or others; and 3 (e) the adult has been adequately assessed by appropriately 4 qualified persons, within the meaning of the DSA, 5 section 123E, in the development of the positive 6 behaviour support plan for the adult; and 7 (f) if the positive behaviour support plan for the adult is 8 implemented-- 9 (i) the risk of the adult's behaviour causing harm will 10 be reduced or eliminated; and 11 (ii) the adult's quality of life will be improved in the 12 long-term; and 13 (g) the observations and monitoring provided for under the 14 positive behaviour support plan for the adult are 15 appropriate. 16 `(3) The tribunal may make the order on its own initiative or on an 17 application under section 80ZO. 18 `80W Matters tribunal must consider 19 `In deciding whether to give a containment or seclusion 20 approval, the tribunal must consider each of the following-- 21 (a) the suitability of the environment in which the adult will 22 be contained or secluded; 23 (b) if the tribunal is aware the adult is subject to a forensic 24 order or involuntary treatment order under the Mental 25 Health Act 2000-- 26 (i) the terms of the order; and 27 (ii) the views of the authorised psychiatrist responsible 28 for treatment of the adult under that Act about the 29 containment or seclusion of the adult; 30 (c) any strategies, including restrictive practices, previously 31 used to manage or reduce the behaviour of the adult that 32 Page 89

Disability Services and Other Legislation Amendment Bill 2008 Part 3 Amendment of Guardianship and Administration Act 2000 [s 22] causes harm to the adult or others, and the effectiveness 1 of those strategies; 2 (d) the type of disability services provided to the adult. 3 `80X When tribunal may approve use of other restrictive 4 practices 5 `(1) This section applies if-- 6 (a) an approval given under section 80V is in effect in 7 relation to an adult; or 8 (b) the tribunal proposes to give an approval under section 9 80V in relation to an adult. 10 `(2) The tribunal may, by order, give approval for a relevant 11 service provider to use a restrictive practice other than 12 containment or seclusion (the other restrictive practice) in 13 relation to the adult, subject to the conditions stated in the 14 order. 15 `(3) The tribunal may make the order only if the tribunal is 16 satisfied of the matters stated in section 80V(2)(a) to (g) in 17 relation to the other restrictive practice. 18 `(4) In deciding whether to make the order, the tribunal must 19 consider-- 20 (a) the matters stated in section 80W; and 21 (b) if the other restrictive practice is chemical restraint--the 22 views of the adult's treating doctor about the use of the 23 chemical restraint. 24 `(5) For subsections (3) and (4)(a), sections 80V(2)(a) to (g) and 25 80W apply as if a reference in the sections to containing or 26 secluding the adult were a reference to using the other 27 restrictive practice in relation to the adult. 28 `(6) An order made under this section is taken to be part of the 29 approval given under section 80V in relation to the adult. 30 `(7) The tribunal may make the order on its own initiative or on an 31 application under section 80ZO. 32 Page 90

Disability Services and Other Legislation Amendment Bill 2008 Part 3 Amendment of Guardianship and Administration Act 2000 [s 22] `Division 2 Period of containment or seclusion 1 approval 2 `80Y Period for which containment or seclusion approval 3 has effect 4 `(1) A containment or seclusion approval has effect for the period 5 stated in the order. 6 `(2) The total period for which the approval has effect must be not 7 more than 12 months from the day the order is made. 8 `(3) This section applies subject to sections 80Z and 80ZB. 9 `80Z Automatic revocation of containment or seclusion 10 approval 11 `(1) A containment or seclusion approval ends if-- 12 (a) the adult dies; or 13 (b) for a relevant service provider--the adult stops 14 receiving disability services from the provider. 15 `(2) The relevant service provider must notify the tribunal in 16 writing if an event mentioned in subsection (1)(a) or (b) 17 happens. 18 `Division 3 Reviewing a containment or 19 seclusion approval 20 `80ZA When containment or seclusion approval may be 21 reviewed 22 `The tribunal may review a containment or seclusion approval 23 at any time-- 24 (a) on its own initiative; or 25 (b) on the application of any of the following-- 26 (i) the adult; 27 Page 91

Disability Services and Other Legislation Amendment Bill 2008 Part 3 Amendment of Guardianship and Administration Act 2000 [s 22] (ii) an interested person for the adult; 1 (iii) a relevant service provider to which the approval 2 applies; 3 (iv) the chief executive (disability services); 4 (v) the adult guardian; 5 (vi) if the adult is subject to a forensic order or 6 involuntary treatment order under the Mental 7 Health Act 2000--the director of mental health. 8 `80ZB Review process 9 `(1) The tribunal may conduct a review of a containment or 10 seclusion approval in the way it considers appropriate. 11 `(2) At the end of the review, the tribunal must revoke the 12 containment or seclusion approval unless it is satisfied it 13 would give the containment or seclusion approval if a new 14 application for the approval were made. 15 `(3) If the tribunal is satisfied it would give the containment or 16 seclusion approval if a new application for the approval were 17 made, it may-- 18 (a) continue its order giving the containment or seclusion 19 approval; or 20 (b) change its order giving the containment or seclusion 21 approval; or 22 (c) make an order giving a new containment or seclusion 23 approval. 24 Page 92

Disability Services and Other Legislation Amendment Bill 2008 Part 3 Amendment of Guardianship and Administration Act 2000 [s 22] `Part 3 Guardians for a restrictive 1 practice matter 2 `80ZC Application of pt 3 3 `This part does not apply if a containment or seclusion 4 approval is in effect in relation to an adult. 5 `80ZD Appointment 6 `(1) The tribunal may, by order, appoint a guardian for a restrictive 7 practice matter for an adult if the tribunal is satisfied-- 8 (a) the adult has impaired capacity for the matter; and 9 (b) the adult's behaviour has previously resulted in harm to 10 the adult or others; and 11 (c) there is a need for a decision about the matter; and 12 (d) without the appointment-- 13 (i) the adult's behaviour is likely to cause harm to the 14 adult or others; and 15 (ii) the adult's interests will not be adequately 16 protected. 17 `(2) The appointment may be on terms considered appropriate by 18 the tribunal. 19 `(3) The appointment has effect for the period stated in the order. 20 `(4) The period for which the appointment has effect must not be 21 more than 12 months from the day the order is made. 22 `(5) Subsections (3) and (4) apply subject to sections 26 and 31. 23 `(6) The tribunal may make the appointment on its own initiative, 24 or on an application under section 80ZP. 25 `(7) This section does not limit the application of chapter 3 to the 26 appointment. 27 Page 93

Disability Services and Other Legislation Amendment Bill 2008 Part 3 Amendment of Guardianship and Administration Act 2000 [s 22] `80ZE Requirements for giving consent--guardian for 1 restrictive practice (general) matter 2 `(1) The purpose of this section is to state requirements for a 3 guardian for a restrictive practice (general) matter about 4 consenting to the use of a restrictive practice in relation to the 5 adult by a relevant service provider. 6 `(2) The guardian may consent to use of the restrictive practice by 7 the relevant service provider in compliance with a positive 8 behaviour support plan for the adult. 9 `(3) The consent may be given subject to conditions. 10 `(4) The guardian may give the consent only if satisfied-- 11 (a) the adult's behaviour has previously resulted in harm to 12 the adult or others; and 13 (b) there is a reasonable likelihood that, if the consent is not 14 given, the adult's behaviour will cause harm to the adult 15 or others; and 16 (c) using the restrictive practice in compliance with the 17 positive behaviour support plan mentioned in subsection 18 (2) is the least restrictive way of ensuring the safety of 19 the adult or others; and 20 (d) the adult has been adequately assessed for developing or 21 changing the positive behaviour support plan; and 22 (e) use of the restrictive practice is supported by the 23 recommendations of the person who assessed the adult; 24 and 25 (f) if the restrictive practice is chemical restraint--in 26 developing the positive behaviour support plan, the 27 relevant service provider consulted the adult's treating 28 doctor; and 29 (g) if the positive behaviour support plan is implemented-- 30 (i) the risk of the adult's behaviour causing harm will 31 be reduced or eliminated; and 32 (ii) the adult's quality of life will be improved in the 33 long-term; and 34 Page 94

Disability Services and Other Legislation Amendment Bill 2008 Part 3 Amendment of Guardianship and Administration Act 2000 [s 22] (h) the observations and monitoring provided for under the 1 positive behaviour support plan are appropriate. 2 `(5) In deciding whether to give the consent, the guardian must 3 consider the following-- 4 (a) if the guardian is aware the adult is subject to a forensic 5 order or involuntary treatment order under the Mental 6 Health Act 2000-- 7 (i) the terms of the order; and 8 (ii) the views of the authorised psychiatrist responsible 9 for treatment of the adult under that Act about the 10 use of the restrictive practice; 11 (b) any information available to the guardian about 12 strategies, including restrictive practices, previously 13 used to manage the behaviour of the adult that causes 14 harm to the adult or others, and the effectiveness of 15 those strategies; 16 (c) the type of disability services provided to the adult; 17 (d) the suitability of the environment in which the restrictive 18 practice is to be used; 19 (e) if the restrictive practice is chemical restraint--the 20 views of the adult's treating doctor about the use of the 21 chemical restraint. 22 `80ZF Requirements for giving consent--guardian for 23 restrictive practice (respite) matter 24 `(1) The purpose of this section is to state requirements for a 25 guardian for a restrictive practice (respite) matter about 26 consenting to the use of a restrictive practice in relation to the 27 adult by a relevant service provider. 28 `(2) The guardian may consent to use of the restrictive practice by 29 the relevant service provider in compliance with a 30 respite/community access plan for the adult. 31 `(3) The consent may be given subject to conditions. 32 `(4) The guardian may give the consent only if satisfied-- 33 Page 95

Disability Services and Other Legislation Amendment Bill 2008 Part 3 Amendment of Guardianship and Administration Act 2000 [s 22] (a) there is a reasonable likelihood that, if the consent is not 1 given, the adult's behaviour will cause harm to the adult 2 or others; and 3 (b) the relevant service provider has complied with the 4 DSA, part 10A, division 5; and 5 (c) if the respite/community access plan is implemented-- 6 (i) the risk of the adult's behaviour causing harm will 7 be reduced or eliminated; and 8 (ii) the adult's quality of life will be improved in the 9 long-term; and 10 (d) the observations and monitoring provided for under the 11 respite/community access plan are appropriate. 12 `(5) For giving consent to the use of chemical restraint (fixed 13 dose)-- 14 (a) subsections (2) and (4) do not apply; and 15 (b) the guardian may give the consent only if satisfied there 16 is a reasonable likelihood that, if the consent is not 17 given, the adult's behaviour will cause harm to the adult 18 or others. 19 `Part 4 Short term approval of adult 20 guardian for use of particular 21 restrictive practices 22 `80ZG Application of pt 4 23 `This part does not apply for an adult if-- 24 (a) there is a containment or seclusion approval in relation 25 to the adult; or 26 (b) both of the following apply-- 27 Page 96

Disability Services and Other Legislation Amendment Bill 2008 Part 3 Amendment of Guardianship and Administration Act 2000 [s 22] (i) there is a guardian for a restrictive practice 1 (respite) matter for the adult; 2 (ii) a relevant service provider proposes to contain or 3 seclude the adult in the course of providing respite 4 services or community access services to the adult. 5 `80ZH When adult guardian may give short term approval 6 for use of containment or seclusion 7 `(1) The adult guardian may give approval for a relevant service 8 provider to contain or seclude an adult if satisfied-- 9 (a) the adult has impaired capacity for making decisions 10 about the use of restrictive practices in relation to the 11 adult; and 12 (b) the adult's behaviour has previously resulted in harm to 13 the adult or others; and 14 (c) there is an immediate and serious risk that, if the 15 approval is not given, the adult's behaviour will cause 16 harm to the adult or others; and 17 (d) using the restrictive practice is the least restrictive way 18 of ensuring the safety of the adult or others. 19 `(2) In deciding whether to give the approval, the adult guardian 20 must, unless it is not practicable in the circumstances, consult 21 with and consider the views of the following persons about the 22 use of the restrictive practice-- 23 (a) the adult; 24 (b) a guardian or informal decision maker for the adult; 25 (c) if the adult guardian is aware the adult is subject to a 26 forensic order or involuntary treatment order under the 27 Mental Health Act 2000--the authorised psychiatrist 28 responsible for treatment of the adult under that Act. 29 `(3) If the adult guardian has previously given an approval under 30 this section in relation to the adult, the adult guardian may 31 give the approval only if satisfied exceptional circumstances 32 justify giving a subsequent approval under this section. 33 Page 97

Disability Services and Other Legislation Amendment Bill 2008 Part 3 Amendment of Guardianship and Administration Act 2000 [s 22] `(4) An approval given under this section may not have effect for 1 more than 3 months. 2 `(5) The approval ends if-- 3 (a) the relevant service provider does not comply with the 4 condition of the approval mentioned in section 80ZI(a); 5 or 6 (b) the adult guardian gives the relevant service provider 7 written notice under section 80ZJ that the adult guardian 8 does not approve a short term plan for the adult given to 9 the adult guardian by the provider. 10 `(6) The relevant service provider or a person consulted under 11 subsection (2) may apply to the tribunal in relation to a 12 decision of the adult guardian to give, or refuse to give, the 13 approval, and the tribunal may make the order it considers 14 appropriate. 15 `80ZI Conditions to which s 80ZH approval is subject 16 `An approval given by the adult guardian under section 17 80ZH-- 18 (a) is subject to the condition that, within 14 days after 19 receiving notice that the approval has been given, the 20 relevant service provider must give the adult guardian a 21 short term plan for the adult; and 22 (b) may be subject to other conditions considered 23 appropriate by the adult guardian. 24 `80ZJ Adult guardian's decision about whether to approve 25 short term plan 26 `(1) This section applies if the adult guardian is given a short term 27 plan for an adult by a relevant service provider under section 28 80ZI(a). 29 `(2) As soon as practicable after receiving the short term plan, the 30 adult guardian must decide whether to approve it. 31 Page 98

Disability Services and Other Legislation Amendment Bill 2008 Part 3 Amendment of Guardianship and Administration Act 2000 [s 22] `(3) The adult guardian must approve the short term plan if 1 satisfied-- 2 (a) the information in the plan is consistent with the 3 information considered by the adult guardian in 4 deciding whether to give the relevant short term 5 approval; and 6 (b) there is an immediate and serious risk that, if the short 7 term approval does not continue in effect, the adult's 8 behaviour will cause harm to the adult or others; and 9 (c) use of the restrictive practices in compliance with the 10 short term approval and the plan is the least restrictive 11 way of ensuring the safety of the adult or others. 12 `(4) The adult guardian must, as soon as practicable after deciding 13 whether to approve the short term plan, notify the relevant 14 service provider about the adult guardian's decision. 15 `(5) If the adult guardian does not approve the short term plan-- 16 (a) the relevant service provider may apply to the tribunal; 17 and 18 (b) the tribunal may make the order it considers appropriate. 19 `80ZK When adult guardian may give short term approval 20 for use of other restrictive practices 21 `(1) While an approval given under section 80ZH is in effect, the 22 adult guardian may give approval for a relevant service 23 provider to use another restrictive practice in relation to the 24 adult if satisfied of the matters stated in section 80ZH(1)(a) to 25 (d) for the restrictive practice. 26 `(2) Also, if the restrictive practice is chemical restraint, the adult 27 guardian must be satisfied the relevant service provider has 28 consulted with, and considered the views of, the adult's 29 treating doctor. 30 `(3) The adult guardian may not give approval under this section 31 for use of a restrictive practice if there is a guardian for a 32 restrictive practice (general) matter for the adult. 33 Page 99

Disability Services and Other Legislation Amendment Bill 2008 Part 3 Amendment of Guardianship and Administration Act 2000 [s 22] `(4) Subsection (5) applies if, when an approval is given under this 1 section, a short term plan for the adult has already been 2 developed by the relevant service provider. 3 `(5) The approval given under this section is subject to the 4 condition that, within 14 days after the approval is given, the 5 relevant service provider must-- 6 (a) amend the short term plan for the adult to include use of 7 the restrictive practice; and 8 (b) give the amended plan to the adult guardian for 9 approval. 10 `(6) Section 80ZJ applies, with any necessary changes, to the adult 11 guardian for deciding whether to approve an amended short 12 term plan mentioned in subsection (5). 13 `(7) An approval given under this section ends-- 14 (a) if the relevant service provider is notified by the adult 15 guardian that an amended short term plan mentioned in 16 subsection (5) is not approved--on receipt of the notice; 17 or 18 (b) otherwise--on the day the approval given under section 19 80ZH ends. 20 `80ZL Right of adult guardian to information for making 21 decision 22 `(1) This section applies to the adult guardian for deciding whether 23 to give approval under this part for a relevant service provider 24 to use a restrictive practice in relation to an adult. 25 `(2) The adult guardian has a right to all the information that-- 26 (a) the adult would have been entitled to if the adult had 27 capacity; and 28 (b) is necessary for the adult guardian to make an informed 29 decision. 30 `(3) At the adult guardian's request, a person who has custody or 31 control of the information must give the information to the 32 adult guardian, unless the person has a reasonable excuse. 33 Page 100

Disability Services and Other Legislation Amendment Bill 2008 Part 3 Amendment of Guardianship and Administration Act 2000 [s 22] `(4) If a person who has custody or control of the information does 1 not comply with a request by the adult guardian to give 2 information, the tribunal may, on application by the adult 3 guardian, order the person to give the information to the adult 4 guardian. 5 `(5) If the tribunal orders a person to give information to the adult 6 guardian, the person must comply with the order, unless the 7 person has a reasonable excuse. 8 `(6) It is a reasonable excuse for a person to fail to give 9 information because giving the information might tend to 10 incriminate the person. 11 `(7) Subject to subsection (6), this section overrides-- 12 (a) any restriction, in an Act or the common law, about the 13 disclosure or confidentiality of information; and 14 (b) any claim of confidentiality or privilege, including a 15 claim based on legal professional privilege. 16 `80ZM Requirement for adult guardian to give notice of 17 decision 18 `(1) As soon as practicable after the adult guardian decides to give, 19 or refuse to give, an approval under this part, the adult 20 guardian must give written notice of the decision to the 21 following-- 22 (a) the relevant service provider; 23 (b) the adult; 24 (c) the tribunal; 25 (d) the chief executive (disability services); 26 (e) a guardian for a restrictive practice (general) matter for 27 the adult; 28 (f) any other person consulted by the adult guardian under 29 section 80ZH(2). 30 `(2) The notice must state the following-- 31 (a) the name of the adult; 32 Page 101

Disability Services and Other Legislation Amendment Bill 2008 Part 3 Amendment of Guardianship and Administration Act 2000 [s 22] (b) the name of the relevant service provider; 1 (c) the adult guardian's decision, including, if the decision 2 is to give the approval, the terms of the approval; 3 (d) the reasons for the adult guardian's decision. 4 `Part 5 Tribunal proceedings 5 `Division 1 General 6 `80ZN Relationship with ch 7 7 (1) The following provisions of chapter 7 apply for a proceeding 8 under this chapter-- 9 � part 1 10 � part 2 (other than section 119) 11 � part 3 12 � part 4 (other than section 129) 13 � part 4A 14 � sections 154 and 155 15 � parts 6 to 8 16 � part 10. 17 `(2) The remaining provisions of chapter 7 do not apply for a 18 proceeding under this chapter. 19 `(3) This part contains additional provisions that apply for a 20 proceeding under this chapter. 21 Page 102

Disability Services and Other Legislation Amendment Bill 2008 Part 3 Amendment of Guardianship and Administration Act 2000 [s 22] `Division 2 Applications 1 `80ZO Who may apply for a containment or seclusion 2 approval 3 `An application for a containment or seclusion approval may 4 be made-- 5 (a) if the department responsible for administering the DSA 6 is not the relevant service provider to which the 7 application relates--jointly by the chief executive 8 (disability services) and the relevant service provider; or 9 (b) otherwise--by the chief executive (disability services). 10 `80ZP Who may apply for appointment of guardian for 11 restrictive practice matter 12 `An application for appointment of a guardian for a restrictive 13 practice matter may be made by any of the following-- 14 (a) an adult; 15 (b) an interested person for an adult; 16 (c) a relevant service provider providing disability services 17 to an adult; 18 (d) the chief executive (disability services); 19 (e) the adult guardian; 20 (f) if the adult is subject to a forensic order or involuntary 21 treatment order under the Mental Health Act 2000--the 22 director of mental health. 23 `Division 3 Other matters 24 `80ZQ Who is an active party 25 `Each of the following persons is an active party for a 26 proceeding under this chapter-- 27 Page 103

Disability Services and Other Legislation Amendment Bill 2008 Part 3 Amendment of Guardianship and Administration Act 2000 [s 22] (a) the chief executive (disability services); 1 (b) the applicant; 2 (c) the adult concerned in the proceeding; 3 (d) any current guardian or administrator for the adult; 4 (e) if the adult is subject to a forensic order or involuntary 5 treatment order under the Mental Health Act 2000--the 6 director of mental health; 7 (f) a relevant service provider providing disability services 8 to the adult; 9 (g) the adult guardian; 10 (h) a person joined as a party to the proceeding by the 11 tribunal. 12 Example of a person who might be joined as a party-- 13 a member of the adult's family 14 `80ZR Interim orders 15 `(1) This section applies for a proceeding under this chapter if the 16 tribunal is satisfied, on reasonable grounds-- 17 (a) there is an immediate risk of harm to the adult 18 concerned in the proceeding or others; and 19 (b) using a restrictive practice is the least restrictive way of 20 ensuring the safety of the adult or others. 21 `(2) The tribunal may make an interim order in the proceeding 22 without hearing and deciding the proceeding or otherwise 23 complying with the requirements of this Act, including 24 section 118. 25 `(3) The interim order has effect for the period stated in the order. 26 `(4) The period stated in the order must not be more than 3 27 months. 28 Page 104

Disability Services and Other Legislation Amendment Bill 2008 Part 3 Amendment of Guardianship and Administration Act 2000 [s 22] `(5) In this section-- 1 tribunal means the tribunal constituted by the president, a 2 deputy president or a legal member. 3 `Part 6 Miscellaneous provisions 4 `80ZS Requirements for informal decision 5 makers--consenting to use of restrictive practices 6 `(1) This section applies to an informal decision maker for 7 deciding whether to consent to-- 8 (a) a relevant service provider restricting access of an adult 9 other than in the course of providing respite services or 10 community access services to the adult; or 11 (b) the use of a restrictive practice in relation to an adult by 12 a relevant service provider in the course of providing 13 respite services or community access services to the 14 adult. 15 `(2) For giving consent to use of a restrictive practice mentioned in 16 subsection (1)(a), the informal decision maker must-- 17 (a) apply the general principles; and 18 (b) be satisfied-- 19 (i) the adult's behaviour has previously resulted in 20 harm to the adult or others; and 21 (ii) there is a reasonable likelihood that, if the consent 22 is not given, the adult's behaviour will cause harm 23 to the adult or others; and 24 (iii) using the restrictive practice in compliance with 25 the positive behaviour support plan for the adult is 26 the least restrictive way of ensuring the safety of 27 the adult or others; and 28 Page 105

Disability Services and Other Legislation Amendment Bill 2008 Part 3 Amendment of Guardianship and Administration Act 2000 [s 22] (iv) if the positive behaviour support plan for the adult 1 is implemented-- 2 (A) the risk of the adult's behaviour causing 3 harm will be reduced or eliminated; and 4 (B) the adult's quality of life will be improved in 5 the long-term; and 6 (v) if the informal decision maker is aware the adult is 7 subject to a forensic order or involuntary treatment 8 order under the Mental Health Act 2000--the 9 authorised psychiatrist responsible for treatment of 10 the adult under that Act has been given an 11 opportunity to participate in the development of 12 the positive behaviour support plan. 13 `(3) For giving consent to use of a restrictive practice mentioned in 14 subsection (1)(b), the informal decision maker must-- 15 (a) apply the general principles; and 16 (b) be satisfied-- 17 (i) the adult's behaviour has previously resulted in 18 harm to the adult or others; and 19 (ii) there is a reasonable likelihood that, if the consent 20 is not given, the adult's behaviour will cause harm 21 to the adult or others; and 22 (iii) using the restrictive practice in compliance with 23 the respite/community access plan for the adult is 24 the least restrictive way of ensuring the safety of 25 the adult or others; and 26 (iv) if the respite/community access plan for the adult 27 is implemented-- 28 (A) the risk of the adult's behaviour causing 29 harm will be reduced or eliminated; and 30 (B) the adult's quality of life will be improved in 31 the long-term. 32 Page 106

Disability Services and Other Legislation Amendment Bill 2008 Part 3 Amendment of Guardianship and Administration Act 2000 [s 22] `(4) However, subsection (3)(b)(iii) and (iv) do not apply for 1 giving consent to the use of chemical restraint (fixed dose) in 2 the course of providing respite services to the adult. 3 `(5) In this section-- 4 restricting access, of an adult, see the DSA, section 123E. 5 `80ZT Informal decision makers must maintain 6 confidentiality 7 `(1) This section applies if an informal decision maker gains 8 confidential information under the DSA, part 10A about an 9 adult with an intellectual or cognitive disability. 10 Note-- 11 A guardian who gains confidential information is subject to 12 confidentiality requirements under section 249. 13 `(2) The informal decision maker must not disclose the 14 information to anyone other than under subsection (3). 15 `(3) The informal decision maker may disclose the information to 16 someone else-- 17 (a) for this Act or the DSA; or 18 (b) to discharge a function under another law; or 19 (c) for a proceeding in a court or tribunal; or 20 (d) if authorised under another law or a regulation made 21 under this Act; or 22 (e) if authorised in writing by the adult to whom the 23 information relates; or 24 (f) to protect a person with a disability, within the meaning 25 of the DSA, section 11, from abuse, neglect or 26 exploitation. 27 `(4) In this section-- 28 confidential information includes information about a 29 person's affairs but does not include-- 30 Page 107

Disability Services and Other Legislation Amendment Bill 2008 Part 3 Amendment of Guardianship and Administration Act 2000 [s 23] (a) information already publicly disclosed unless further 1 disclosure of the information is prohibited by law; or 2 (b) statistical or other information that could not reasonably 3 be expected to result in the identification of the person 4 to whom the information relates. 5 `80ZU Review of ch 5B 6 `The DSA, section 233A provides for the efficacy and 7 efficiency of this chapter to be reviewed by the Minister and 8 the Minister responsible for administering that Act, acting 9 jointly. 10 Note-- 11 The review must be conducted when the DSA is reviewed under section 12 233 of that Act.'. 13 Clause 23 Amendment of s 82 (Functions) 14 (1) Section 82(1)-- 15 insert-- 16 `(ha) giving approvals under chapter 5B for the use by a 17 relevant service provider of a restrictive practice in 18 relation to an adult to whom the chapter applies, and 19 reviewing the approvals;'. 20 (2) Section 82(2)-- 21 insert-- 22 `Note-- 23 See for example the Disability Services Act 2006, sections 123ZK(8) 24 and 123ZN(5).'. 25 Clause 24 Amendment of s 98 (Annual report) 26 Section 98(1)(a), after `year'-- 27 insert-- 28 Page 108

Disability Services and Other Legislation Amendment Bill 2008 Part 3 Amendment of Guardianship and Administration Act 2000 [s 25] `, including the number of applications, approvals and orders 1 made under chapter 5B'. 2 Clause 25 Amendment of s 118 (Tribunal advises persons 3 concerned of hearing) 4 Section 118(1)-- 5 insert-- 6 `(fa) for a proceeding under chapter 5B-- 7 (i) the chief executive (disability services); and 8 (ii) a relevant service provider providing disability 9 services to the adult; and 10 (iii) if the tribunal is aware the adult is subject to a 11 forensic order or involuntary treatment order under 12 the Mental Health Act 2000--the director of 13 mental health;'. 14 Clause 26 Amendment of s 174 (Functions) 15 Section 174(2)-- 16 insert-- 17 `(ea) approving, under chapter 5B, part 4, the use of a 18 restrictive practice in relation to an adult to whom that 19 chapter applies;'. 20 Clause 27 Amendment of s 222 (Definitions for ch 10) 21 Section 222, definition private dwelling house-- 22 omit, insert-- 23 `private dwelling house means premises that are used, or are 24 used principally, as a separate residence for-- 25 (a) if a restrictive practice under chapter 5B is being used at 26 the premises--1 family; or 27 (b) otherwise--1 family or person.'. 28 Page 109

Disability Services and Other Legislation Amendment Bill 2008 Part 3 Amendment of Guardianship and Administration Act 2000 [s 28] Clause 28 Amendment of s 230 (Reports by community visitors) 1 Section 230(4)-- 2 insert-- 3 `(e) if a restrictive practice under chapter 5B is being used at 4 the visitable site-- 5 (i) the tribunal; or 6 (ii) a guardian or administrator for an adult in relation 7 to whom the restrictive practice is used; or 8 (iii) the chief executive (disability services).'. 9 Clause 29 Insertion of new ch 12, pt 8 10 Chapter 12-- 11 insert-- 12 `Part 8 Transitional provisions for 13 Disability Services and Other 14 Legislation Amendment Act 15 2008 16 `265 Powers of guardians--use of restrictive practices 17 `(1) This section applies to a guardian for an adult to whom 18 chapter 5B applies if the guardian was-- 19 (a) appointed before the commencement; and 20 (b) immediately before the commencement, authorised in 21 accordance with the terms of the guardian's 22 appointment to make decisions for the adult about the 23 use of a restrictive practice in relation to the adult. 24 `(2) Despite chapter 5B, the guardian may continue to make 25 decisions for the adult about use of the restrictive practice in 26 relation to the adult. 27 `(3) This section stops applying on the earlier of-- 28 Page 110

Disability Services and Other Legislation Amendment Bill 2008 Part 3 Amendment of Guardianship and Administration Act 2000 [s 30] (a) the guardian's appointment being reviewed by the 1 tribunal; or 2 (b) the first day after the transitional period ends. 3 `(4) In this section-- 4 commencement means the commencement of this section. 5 restrictive practice see section 80U. 6 transitional period means the period starting on the 7 commencement and ending 18 months after the 8 commencement. 9 `266 Short term approvals not to be given during 10 transitional period 11 `Chapter 5B, part 4 does not apply during the transitional 12 period within the meaning of section 265.'. 13 Clause 30 Amendment of sch 2 (Types of matters) 14 Schedule 2, section 2-- 15 insert-- 16 `(j) a restrictive practice matter under chapter 5B; 17 (k) seeking help and making representations about the use 18 of restrictive practices for an adult who is the subject of 19 a containment or seclusion approval under chapter 5B.'. 20 Clause 31 Amendment of sch 4 (Dictionary) 21 (1) Schedule 4-- 22 insert-- 23 `adult with an intellectual or cognitive disability, for chapter 24 5B, see section 80U. 25 assessment, for chapter 5B, see section 80U. 26 authorised psychiatrist, for chapter 5B, see section 80U. 27 Page 111

Disability Services and Other Legislation Amendment Bill 2008 Part 3 Amendment of Guardianship and Administration Act 2000 [s 31] chemical restraint, for chapter 5B, see section 80U. 1 chemical restraint (fixed dose), for chapter 5B, see section 2 80U. 3 chief executive (disability services) means the chief executive 4 of the department in which the Disability Services Act 2006 is 5 administered. 6 community access services, for chapter 5B, see section 80U. 7 contain, for chapter 5B, see section 80U. 8 containment or seclusion approval, for chapter 5B, see 9 section 80U. 10 director of mental health means the director under the Mental 11 Health Act 2000. 12 disability services, for chapter 5B, see section 80U. 13 DSA, for chapter 5B, see section 80U. 14 harm, for chapter 5B, see section 80U. 15 informal decision maker, for chapter 5B, see section 80U. 16 least restrictive, for chapter 5B, see section 80U. 17 mechanical restraint, for chapter 5B, see section 80U. 18 physical restraint, for chapter 5B, see section 80U. 19 positive behaviour support plan, for chapter 5B, see section 20 80U. 21 relevant service provider, for chapter 5B, see section 80U. 22 respite/community access plan, for chapter 5B, see section 23 80U. 24 respite services, for chapter 5B, see section 80U. 25 restrictive practice, for chapter 5B, see section 80U. 26 restrictive practice (general) matter, for chapter 5B, see 27 section 80U. 28 restrictive practice matter, for chapter 5B, see section 80U. 29 Page 112

Disability Services and Other Legislation Amendment Bill 2008 Part 3 Amendment of Guardianship and Administration Act 2000 [s 31] restrictive practice (respite) matter, for chapter 5B, see 1 section 80U. 2 seclude, for chapter 5B, see section 80U. 3 short term plan, for chapter 5B, see section 80U.'. 4 (2) Schedule 4, definition active party-- 5 insert-- 6 `(aa) for chapter 5B, see section 80U; or'. 7 (3) Schedule 4, definition active party, paragraphs (aa) and (b)-- 8 renumber as paragraphs (b) and (c). 9 � State of Queensland 2008 Page 113

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