The residents were restricted to their rooms or homes and only allowed out under constant supervision, but without the safeguarding protections and oversight of legal orders, under NDIS care plans likely to see services receiving between $500,000 and $1million a year in each case.
Any behaviour support plan providers submit to the NDIS for clients that include restrictive practices of chemical, physical, mechanical and environmental restraints, as well as seclusion, must be submitted to state and territory governments for authorisation.
When asked by this masthead how these clients had been subjected to unlawful detention, NDIS Quality and Safeguards Commission deputy commissioner Rod Carracher said he could not comment on open investigations.
“The NDIS Commission is deeply concerned about all matters where NDIS participants have had their human rights infringed,” Carracher said.
“In circumstances where it is identified that NDIS participants are at risk, the NDIS Commission has a range of regulatory levers to use to protect NDIS participants. This includes where unlawful practices are identified.”
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The OPA highlighted the cases in its annual report amid wider concerns about a lack of suitable and secure accommodation for unwell people who need a supervised treatment order. It claims the situation leaves some intellectually disabled people lingering in prison beyond normal sentences, while others are unlawfully detained in inappropriate residential settings that put themselves and the community in danger.
The OPA is now working with NDIS and disability service providers to address circumstances of the remaining unlawful detention cases it has identified, following a VCAT decision to ease restrictions for the 63-year-old man.
Between the 1970s and 2017, the man, who cannot be named for legal reasons, was convicted of criminal offences including sexual assaults on males, females, children and adolescents, rape, fire lighting, causing physical injury, assault, theft and property damage. He has been jailed at least twice.
For at least 25 years the man has lived in disability homes under restrictive practices including electronic surveillance, line-of-sight supervision when he is around others, and restricted access to alcohol.
After last being convicted of sexual assault in 2017 – when he touched a co-resident’s breast as she hung washing – he has lived in a self-contained unit with overnight alarms and a two-way radio so he can talk to NDIS-funded Scope disability workers in a detached home.
The Victorian Senior Practitioner, an office established to oversee the legal use of restrictive practices for people on compulsory treatment orders, became aware of the 63-year-old’s situation in July 2024 when it reviewed a behaviour management plan presented by his Scope carers. It then contacted the OPA to help push Scope to apply to VCAT for legal orders to better manage the man’s care.
The OPA is working with NDIS and disability service providers to address circumstances of the remaining unlawful detention cases.
In December, VCAT senior member Anita Smith found that the man was being kept in unlawful detention and, although he “complies contentedly” with the supervision and did not object to it, such restrictions could not be imposed without a supervised treatment order.
After finding the man’s level of risk had been low in recent years, VCAT found it did not have the justification to make such an order.
“The evidence is that [the man] does not pose a significant risk of serious harm, so he does not satisfy this criterion,” the VCAT member found.
“I have taken the approach that my task is to decide whether the criteria are met, not to create pathways to make the current practices lawful.
“The evidence, including the fact that he has complied for a very long time without an order, supports a finding that [the man] is compliant without a supervised treatment order.”
A Scope spokesperson said they could not comment on individuals, but that all its behaviour support plans are developed by experts, implemented by trained staff, and reviewed by relevant authorities including the Victorian Senior Practitioner.
“Scope is aware of the restrictive practices used to support our client. In July 2024, Scope
submitted an application to VCAT for a STO, consistent with the regulatory process for authorising certain restrictive practices under Victorian law,” they said.
Following the VCAT decision, Scope has worked under oversight from the Senior Practitioner and the OPA to reduce the man’s restrictions, and he now “has significantly more freedom compared to their situation last year”, according to an OPA report.
A spokesperson for the Department of Families, Fairness and Housing said they could not comment in relation to individuals, but all instances of unauthorised restrictive practices detected by the Victorian Senior Practitioner are reported to the NDIS Quality and Safeguards Commission.
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