1. The Human Rights Implications of Common Practices Used on Persons with Psychosocial and Intellectual Disability

2. Restrictive Practices or Violated Rights? - the human rights implications of restrictive practices used on persons with disability Presenter: Fiona Given, Policy Officer

3.  The Australian Centre for Disability Law (ACDL) is a community legal centre which specialises in disability discrimination and human rights law and policy. We provide legal advice and representation to persons with disability and their associates and undertake law reform, continuing legal education, and community legal education activities. Australian Centre for Disability Law

4.  Designed to control and change the behaviour of people with cognitive impairment.  Restrictive practices include:  Physical restraint  Mechanical restraint  Chemical restraint  Psycho-social restraint  Seclusion  Aversive practices (that is, those that involve punishment or pain) What are Restrictive Practices?

5.  The term ‘restrictive practices’ detoxifies and obscures conduct that may in fact cause great harm to the individual, including physical and psychological injury and even death. Harm caused by Restrictive Practices

6.  Varies across settings  There are more detailed ‘external’ regulations with which funded disability services must comply, whereas, in the mental health and aged care sectors there is very limited external regulation.  This regulation is permissive rather than prohibitive.  The regulation is directed towards establishing the circumstances where restrictive practices are permissible, rather than to the prohibition of such practices. Regulation of Restrictive Practices

7.  To promote a re-examination of restrictive practices as human rights violations and to secure better human rights protections for persons with disability from such practices.  Work conducted within the framework under the Convention on the Rights of Persons with Disabilities (CRPD) Work undertaken by ACDL

8.  We undertook an extensive legislative and policy review which revealed that existing legislation and policies only very loosely regulated by legislation and policy.  We conducted a micro qualitative study which focused on women and girls with cognitive disability and challenging behaviour and women who were close to them.  This was funded by the Mercy Foundation. Work undertaken by ACDL

9. Summary of findings of qualitative study

10.  There is a high incidence of use of restrictive practices across a wide range of disability, mental health, private residential and other settings.  Terminology such as ‘restrictive practices’ often legitimates what are in reality human right abuses – that is, it detoxifies this conduct towards persons with disability making it appear good and helpful as opposed to being painful, oppressive, undignified, and harmful. Issues and themes arising from participant reports

11.  Restrictive practices are often used as a power tool by staff to enforce passivity and compliance by people with disability, for example not permitting people to have power wheelchairs and using medication for the real purpose of sedation.  Poor treatment by police (refusing or failing to accept complaints, viewing objections to restrictive practices as a manifestation of mental illness rather than human rights abuse). Issues and themes arising from participant reports

12.  Use of restrictive practices as punishment by care staff and boarding house proprietors (such as seclusion, withdrawal of food and access to recreation and leisure activities) (example: women who are unable to move independently would be faced to the wall or put in a room by themselves in response to “challenging behaviour”)  Not allowing people to use their walking stick or wheelchair. This has a negative impact on people’s human rights by their restricting mobility and freedom of movement Issues and themes arising from participant reports

13.  Long term chemical restraint for behavioural control – ensures residents remain placid and easy to manage at lower cost.  People on mental health community care plans are seen as non-compliant if they do not take their medication. Often these plans are not reviewed for years. Compulsory treatment is adopted because it is administratively convenient for staff. Often there are less restrictive alternatives available but people are not supported or trusted so these are not utilised or seen as viable. Issues and themes arising from participant reports

14.  Things being withheld by staff in response to non- compliant behaviour.  Women being locked in their family home for a long period of time.  Service providers withdrawing essential services from people who engage in atypical or so-called ‘problem’ or ‘challenging’ behaviours, which means that people are more likely to subject to chemical and physical restraint out of a fear that they will lose essential support. Issues and themes arising from participant reports

15.  Being forced to comply with strict institutional rules (for example, enforced meal times, bed times, curfews, and regulating personal relationships)  Fear of, and actual, retribution for making complaints about restrictive practices. Issues and themes arising from participant reports

16.  All of the participants were aware of the rules and policies in relation to restrictive practices. However, it was observed by focus group participants that the people who were most marginalised were unaware of their rights.  The women reported they did not have confidence in complaints mechanisms because in their experience the complaints mechanisms tended to believe the staff’s versions of events over their version of events. Therefore, the women view complaints mechanisms as essentially part of the same culture as disability and psychiatric settings. Knowledge about rules and policies in relation to restrictive practices

17.  Complaining to direct care staff  Internal complaints mechanisms  Anti-Discrimination Commission  Ombudsman  Department of Ageing, Disability and Home Care  Federal Magistrate’s Court Complaints mechanisms used to complain about restrictive practices

18.  All interviewees and focus group participants felt that restrictive practices were never okay and that people should be supported rather than restrained.  The women thought restrictive practices continued to be used for the convenience of staff. They thought it is important to look behind the ‘challenging’ behaviour and address its root cause as an alternative to restrictive practices. Are Restrictive Practices ever okay?

19.  Some interviewees and focus group participants felt there was a gender dimension to restrictive practices while others thought it was gender neutral or in fact worse for men. For example, men are more likely to be given anti-libido medication than women. However, it was felt that men are more listened to when they complain about restrictive practices, and women are more treated like whingers. Is there a gender dimension to restrictive practices?

20.  Convention on the Rights of Persons with Disabilities  Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Restrictive Practices are a breach of the following UN Conventions

21. “1. State Parties shall ensure that persons with disabilities, on an equal basis with others: (a) Enjoy the right to liberty and security of the person; (b) Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.” Article 14 Liberty and Security of the Person

22. “2. State Parties shall take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to cruel, inhuman or degrading treatment or punishment.” Article 15 Freedom from torture or cruel, inhuman or degrading treatment or punishment

23. “1. State Parties shall take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside their home, from all forms of exploitation, violence or abuse, including their gender-based aspects.” Article 16 Freedom from exploitation, violence and abuse

24.  “Every person with disabilities has a right to respect for his or her physical and mental integrity.” Article 17 Protecting the integrity of the person

25.  It is a contravention of Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Although, the use of restrictive practices does not constitute torture, as it does not fall into the definition of torture per say as it is not being used to obtain a confession or information. It does, however, amount to other cruel inhuman or degrading treatment or punishment. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

26.  Legislation within New South Wales and across Australia needs to shift from being permissive of restrictive practices to prohibiting their use in order to protect the human rights of people with disability.  Policies on restrictive practices need to be more robust and leave less room for interpretation by direct care staff.  Direct care staff need to receive education and training on the human rights implications of restrictive practices and alternative measures.  The police require greater training in needs of people with intellectual and psychosocial disability. Required policy and law reform

27. Do you have any other suggestions for reform in this area?

28. Contact Fiona Given Fgiven@disabilitylaw.org.au