Supporting consumers’ rights through improved understanding of complaints about restrictive practices - first insights report (January 2025).

• The Mental Health and Wellbeing Commission (MHWC/ the Commission) is undertaking an in-depth examination of complaints we have received about Restrictive Practices (RPs) – using a questionnaire for public mental health and wellbeing services (service/s) to complete when applicable - to better understand the use of these practices that constrain consumers’ human rights.
• It is widely recognised that RP’s can cause distress and trauma, while not being therapeutic and not contributing to the person’s recovery.
• The First Insight Report identifies a number of recurrent issues in complaints about the use of RPs.
• The ‘Supporting Consumers’ Rights Through Improved Understanding of Complaints about Restrictive Practices - First Insight Report’ sets out three areas of improvement for services, four recommendations and a suite of actions that the Commission will take to further identify and address these issues.
• We will continue to monitor the issues identified, work closely with services to suggest improvements and determine any further steps required to address these issues.

• The report examines 33 complaints received by the (former) Mental Health Complaints Commissioner (MHCC) and the MHWC in the 2022 – 2023 and 2023 – 2024 financial years.
• A series of questionnaires were used as part of the resolutions process to gain a deeper understanding of the issues arising in complaints about the use of restrictive practices in designated mental health services received in the 2022 – 2024 financial year periods.
• The report does not examine every complaint received about RPs during these two years, as some fell outside the scope of the Commission and others did not warrant further examination due to the nature of the subject matter.
• We believe this report examines complaints over a sufficient period to reveal potential systemic issues, and its findings align with concerns brought to our attention through other channels.

• Information on restrictive practices and when they can be used are detailed on the Department of Health’s website.

1. Incomplete and inaccurate reporting is widespread

• In 21 of the 33 complaints – or 64 per cent of complaints – there were issues with missing, incorrect, or incomplete authorisation paperwork.
• Problems included lost restrictive practice forms and documentations, incomplete forms, completion of only some of the required forms, inconsistencies between forms and notes and clinical reviews not being recorded adequately.

2. Authorisation to undertake the RP - as required by legislation – was not demonstrated in four complaints

• In four complaints it was not known or not clear whether bodily restraint was properly authorised under the relevant Act.

3. Emergency Departments (EDs) were the most frequent location for the use of RPs examined in the report

• EDs are high-risk, volatile environments that would benefit from further staff training and support. The majority of complaints examined, 18 of the 33 complaints – or 55 per cent – took place in an ED.

4. Facilities and amenities for personal dignity

• Facilities and supplies provided to ensure the person’s dignity is protected, as well as trauma-informed, gender-sensitive and person-centred steps, were often not documented, or details were not provided of what was done to achieve these requirements.
• Of the 33 complaints examined, 14 – or 42 per cent – did not document or demonstrate that the necessary facilities and amenities were provided. This included:
  • 10 not documented under the former Act, and
  • 4 not documented under the current Act.
• Those most commonly reported facility and amenity issues included the lack of:
  • water and food
  • a bedpan or other facilities for toileting, and
  • privacy – including privacy curtains, a private room or the removal of clothing for chemical restraint.

5. Services often don’t report the use of multiple types of restraints occurring during an incident.

6. The use of ‘advance statements of preferences’ is very limited.

• Only four of the 33 complaints – or 12 per cent – had an advance statement of preferences in place.
• In the complaints where the advance statement of preferences was in place, it was only considered in two of the 33 complaints – or 6 per cent.
• An advance statement of preferences sets out a person’s treatment, care and support preferences if they become unwell and receive compulsory assessment or treatment. They help to improve the autonomy and dignity of care a person receives.
• A designated mental health service must ensure all reasonable efforts are made to give effect to the statement.

7. The reporting of RPs to the Office of the Chief Psychiatrist is inconsistent

• 18 of the 33 RI complaints examined – or 55 per cent – were not reported to the OCP.

  Note: Reporting the use of RPs to the OCP when a person is under a compulsory treatment order is mandatory. As of 1 April 2024, the jurisdiction of the OCP and the Commission extended under the new Mental Health and Wellbeing Act 2022, meaning this reporting requirement expanded to include all restrictive episodes – including those in emergency departments of designated mental health facilities.

• De-escalation tactics were used prior to the use of RPs, but without success or details of the de-escalation attempt being reported.
• Although less restrictive practices were reported to have been used in all but one complaint, it was not clear what these entailed, and in none of the instances examined did the tactic prevent the use of the restrictive practices.
• The use of procedures provided by the Department of Health’s ‘safe wards’ guidance was only reported as an attempted less restrictive practice in one of the 33 complaints examined.
• Low rate of post-restrictive practice debriefing
• 18 out of the 33 complaints examined, or 55 per cent, did not include a post RPs debriefing.
• Under the new act, post-restrictive practice debriefing was not demonstrated in 7 instances and under the old act this didn’t occur in 11 instances.
• This suggests that post-restrictive practice debriefing with the consumer continues to be low.
• Lack of experience of care reviews
• These are required to be conducted by the Chief Psychiatrist under the Chief Psychiatrist’s Guidelines but were not conducted or demonstrated to have occurred in 21 out of 33 – or 64 per cent – of complaints.
• Low rate of reporting to the Victorian Health Incident Management System (VHIMS)
• Of the 33 complaints examined in the First Insights Report, 23 instances – approximately 70 per cent – of the use of restraint were not reported to the VHIMS.
• Reporting incidents to VHIMS is not required under legislation however it is encouraged, to help monitor and improve the health and safety of Victorian public health services.

• The vast majority of service improvements resulting from complaints from 1 September 2023 – 1 July 2024 related to restrictive practices – with 75 service improvements raised as part of the complaint resolution.
• The Commission is currently progressing two investigations regarding the use of restrictive practices.

The three key areas for improvement have been identified are:

• Services do not always report the use of multiple types of restraint in one incident.
• The Commission has observed several incidents where a combined form of restraints was used (e.g. chemical and physical, or physical and seclusion) but only one type of restraint was reported.
• Incomplete and inaccurate documentation is common, and reporting gaps are frequent.

Emergency departments are high-pressure, high-risk environments. EDs were also the common location for most restrictive practices observed in the First Insights Report – where further training and support are suggested. RPs in EDs accounted for 18 of the 30 complaints or – 55 per cent – of those examined.

• Services often report staff and resource shortages are a key challenge to service delivery during the complaint process.
• The Commission is urging services to strengthen their reporting and accountability culture – so that serious consideration of reporting requirements and various aspects of legislation occurs prior to the use of RPs, not an afterthought.
• Further work will be undertaken to better understand barriers and challenges in providing the best possible care to consumers.

• The Commission strongly encourages services to use this First Insights Report to drive continuous improvement and accountability when using restrictive practices.
• While the observations discussed are not representative of the use of restraint across services, they provide a snapshot of some areas in which work can be done to improve the experience of consumers when seeking mental health and wellbeing services. The Commission specifically recommends:

1. Services carry out post-restrictive practice debriefing with the consumer and experience of care reviews following the use of restrictive practices to drive learning and prevent further use of restrictive practices where possible.

2. The existence of, and use of, advance statements of preferences regarding restrictive practices were low overall. We encourage services to work with consumers to ensure that these documents are in place and considered in their treatment and care.

3. Services ensure that documentation is completed adequately, and reporting to the OCP and Independent Mental Health Advocacy (IMHA) occurs consistently.

   Services should provide regular training to staff around these requirements to ensure that the system has a clear picture of the use of these practices and can identify preventive measures to reduce them.

4. EDs continue to be supported in meeting the requirements of the MHW Act and the OCP’s guidance regarding restrictive practices.

• The Commission handles complaints about restrictive practices in designated mental health services and suggests improvements for services.
• We also monitor and report the use of these practices and can make recommendations to the sector or government. In specific circumstances we may seek a formal undertaking from a service, and if that fails, issue a compliance notice.
• The reporting of restrictive practices must be made to the Office of the Chief Psychiatrist – and the OCP oversees this process.
• Where an issue appears common or systemic, we may take a deeper dive into the issue – such as this First Insights Report.
• Eliminating the use of restrictive practices was a key focus of the Royal Commission into Victoria’s Mental Health System and Victorian Government has committed to eliminating the use of restrictive practices by the end of 2031.

• The Commission has made a referral to the Chief Quality and Safety Officer within Safer Care Victoria (SCV) in conjunction with the OCP to raise issues of compliance and reporting of the use of restrictive practices in EDs. SCV have responded with a range of actions we will monitor.
• The Commission has provided feedback and clarity to services about some of their requirements around the use of restrictive practices.
• The Commission is continuing to expand and improve the use of questionnaires for complaints about the use of restrictive practices throughout the 2024 – 2025 report period to monitor the issues observed.

We aim to further support services to protect consumers’ rights by:

• Collaborating with the OCP to provide training on the requirements surrounding restrictive practices.
• Developing resources about the completion of questionnaires as a tool for services to understand the requirements and expectations the Commission has when it comes to documenting and reporting uses of restrictive practices.
• Adjusting the questionnaires where possible to reduce the administrative burden on services and doing so in collaboration with the OCP.
• Monitor services through our complaints and seek formal undertakings where continued non-compliance appears to be an issue.
• This report is the Commission’s first step in identifying systemic issues with the use of RPs and recommending improvements.
• If the issues persist we will consider using our new broadened functions, such as requesting a formal undertaking from services (agreement to take remedial action in relation to a complaint), issuing compliance notice (in the extremely rare occasion that the service fails to comply with an undertaking they have given, and it is appropriate in all the circumstances to do so), systemic inquiry or formal recommendations to the Minister or Premier.

• The issues identified in the First Insights Report are very concerning and overseeing the Victorian Government’s elimination of restrictive practices by the end of 2031 is a priority for us.
• We note that the specific incidents discussed in this document did not meet the criteria for conducting an investigation or issuing compliance notices to services based on the MHW Act and the Commission’s approach to compliance.
• The Commission has the power to use compliance notices in the limited circumstances set out in the Act, for example:
  • If the service has not complied with an undertaking they have given to us
  • if the Commission is satisfied that the service has contravened the Act after conducting an investigation, or
  • if the service acknowledges it has contravened the Act and has not given an undertaking.
• Issuing a compliance notice is a last resort in the unlikely occasion that a service refuses to work with us to make improvements. 

The questionnaires used to develop the report were developed in consultation with:

• the Office of the Chief Psychiatrist,
• mental health services, and
• lived experience experts.

The Commission has expressed to Safer Care Victoria a number of concerns about the safeguards of the new Mental Health and Wellbeing Act 2022 not applying to people who present for mental illness or psychological distress at one of Victoria’s nearly 60 non-designated hospitals.

More information is available here. 

The Mental Health Act 2014 (*noting chemical restraint is not included in the Act)

During the 1 July 2022 – 1 September 2023 reporting year, the former MHCC reviewed 22 complaints about the use of restrictive practices (not including chemical restraint) with nearly half of the complaints involving both, physical and mechanical restraint. The types of complaints included:

• 10 complaints about both physical and mechanical restraint (45.5 per cent)
• 7 complaints about mechanical restraint (31.8%),
• 4 complaints about physical restraint (18.2%) and

• 1 where seclusion was used (4.5%).

  The Mental Health and Wellbeing Act 2022 (*noting chemical restraint has been included as a type of restraint under this Act, allowing the Commission to take complaints about this practice.)

  From 1 September 2023 to 1 July 2024, we examined 11 complaints about restraints using questionnaires, with the vast majority relating to bodily restraint. The types of complaints included:

• 3 about the use of mechanical restraint,
• 2 about physical restraint
• 2 about both physical and mechanical restraint,
• 1 about seclusion and

• 3 involving a combination of bodily restraint and chemical restraint or bodily restraint and seclusion

  Total for 2022 – 2023 reporting year:

• 33 questionnaires that were in scope and completed.
• 12 complaints about both physical and mechanical restraint (36.3 per cent)
• 10 complaints about mechanical restraint (30.3 per cent)
• 6 complaints about physical restraint (18.2 per cent)
• 2 complaints about seclusion, and (6 per cent), and
• 3 involved a combination of bodily restraint and chemical restraint or bodily restraint and seclusion (9.1 per cent).

• Out of the 33 complaints examined, Emergency Departments were the most common setting for the use of restrictive practices.

• 18 in an Emergency Department (54.5 per cent)

• 11 in an inpatient setting (33.3 per cent)

• 3 in a medical ward (9.1)

• 1 in a post-op room

• A breakdown of RI complaints examined in the report (by setting) for each Act is provided below.

Mental Health and Wellbeing Act 2022 (*Noting chemical restraint has been included as a type of restraint under this Act, allowing the Commission to take complaints about this practice.)

The Australian Institute of Health and Welfare publishes data on rates and length of restrictive practice episodes in each state in Victoria – see Restrictive practices