Schools have been allowed to flout laws and regulations regarding restraining and isolating children without facing any consequences, according to an official from the Senior Practitioner's office.
Documents released under freedom of information show combative emails between the Senior Practitioner Tracey Harkness and the senior director Amenah El Chami, who accused the regulator of letting the education sector get away with a "flippant" approach to the law.
The official also raised concerns the Senior Practitioner had not properly investigated complaints about the education sector, which could lead to "an avoidable and tragic situation".
Restrictive practices were put in the spotlight when it was revealed an ACT primary school student with autism was in a bike cage when the lock was put on the gate.
The incident, which occurred in May 2024, was not reported to the Senior Practitioner and other authorities until after the Education Directorate received a media inquiry.
An Education Directorate spokesperson defended its handling of restrictive practices.
"The directorate has robust systems in place to ensure compliance with all reporting requirements for restrictive practice in accordance with the Senior Practitioner Act 2018," the spokesperson said.
'No meaningful movement'
On August 6, 2024, Ms El Chami wrote an email to Senior Practitioner Ms Harkness complaining about a lack of progress getting schools to use the same system to report incidents.
"It has been a 'broader' issue for the last three years with little to no meaningful movement. At what point will we be enforcing the legislation appropriately, setting consistent expectations, and enforcing the use of RIDS [Restrictive Intervention Database System] consistently as we have done with the other sectors (disability and care and protection)."
In response, Ms Harkness wrote: "I cannot simply fix this today and I would ask that you respect my advice."
Ms El Chami replied: "I am respecting your advice, but I am also asking valid and appropriate questions about our regulatory responsibilities and poise.
"It is concerning that we continue to have repeated incidents where the education sector do not report restrictive practices in a timely manner, deny restrictive practices were used, ignore or dismiss concerns we raised, and are quite flippant in their adherence to the legislative requirements.
"I understand this can not be fixed today, but what are we doing about these issues? It seems there are no consequences, penalties, and/or sanctions, so this behaviour will continue."
"Variation in numbers reported by the Education Directorate and the Senior Practitioner is because individual reports can be recorded differently by each organisation depending on the incident's circumstances, for example, if more than one restraint was used in a single incident or if multiple people reported the same incident," the spokesperson said.
Providers who commit an offence under the legislation can face fines of $8000 for individuals and $40,500 for corporations, but it is unclear whether any schools have been fined over alleged breaches.
'Integrity at stake'
In response to media questions on another occasion, Ms El Chami said complaints involving the education sector were not handled in a standard way within 42 days,, as required by the complaints procedure.
"The process changes on each occasion and there is no clarity why education complaints are treated so differently, for example we currently have one complaint which has been open for eight months - this is not consistent with our procedure and quoting the procedure would be misleading and dishonest," Ms El Chami wrote.
Ms Harkness denied there was a different approach to education sector complaints and said providers had to be given time to respond to questions.
Ms El Chami replied: "It is absolutely a different approach."
"No other sector has been given this freedom, permission and flexibility to disregard our regulatory authority."
Ms El Chami said the team was confused about how education complaints were handled and warned that this could lead to a "tragic situation."
"... it does not sit well with staff, is not consistent with the expectations set with other sectors we regulate, and is highly likely placing children at risk of unnecessary restrictive practice use that does not align with the legislative guidance, and breaches of the children's human rights which will likely result in an avoidable and tragic situation sooner or later.
"I will not put my integrity at stake and sugarcoat the issue."
Ms Harkness said she did not share Ms El Chami's opinion.
A Community Services Directorate spokesperson said all complaints were handled the same way in line with the office of the Senior Practitioner complaints procedure. They said some complaints about schools had been investigated by the office.
"A key part of Senior Practitioner's role is to provide information, training and research about positive behaviour support and restrictive practice," the spokesperson said.
"In most cases the appropriate response is an educative one to support staff to understand how to better respond to challenging behaviour and follow guidelines and standards on the use of restrictive practice."
'I feel complicit'
Earlier in 2024, Ms El Chami wrote that meetings and site visits with the Education Directorate were "fruitless" and directorate staff were adversarial in dealing with the Senior Practitioner's office.
"It makes me uneasy in this position and (as a leader) giving guidance to the team, and I feel complicit in the actions of the Education Directorate because in my opinion they dictate our role and get away with flouting the Act, which other sectors would not dream of."
The Education Directorate spokesperson said it worked constructively and professionally in all its dealings with the Office of the Senior Practitioner.
"The directorate responds to all issues or concerns raised by the Office of the Senior Practitioner," the spokesperson said.
"The directorate provides information to schools (including reminders) about reporting obligations in relation to restrictive practice."
The Community Services Directorate spokesperson said the Senior Practitioner had a productive and positive working relationship with Education Directorate staff.
Another source of internal conflict was the Senior Practitioner's decision to change the reporting rules to allow organisations to report incidents within five business days, rather than five calendar days.
The senior director and assistant director both said the office should seek legal advice before making the change but Ms Harkness said she did not believe legal advice was necessary.
A restrictive practice is anything that could limit the freedom of a person, such as physical restraints, isolating them from others or administering drugs.
The Senior Practitioner role was created to regulate and reduce the use of these practices.
Where restrictive practices are deemed necessary for the safety of an individual or people around them, the type of practice used should be documented in a positive behaviour support plan registered with the Senior Practitioner's office.
Editorial: All federal and state/territory governments refuse to address behavioural issues in children adequately. They ignore efforts from clinicians to establish real credentials in the field of behaviour supports. Until recently, clinicians needed to register internationally because Australia did not have any kind or professional/clinical registration for behavioural clinicians. There is one now (see https://auaba.com.au/CBA) but governments refuse to recognise it ... possibly because there are far too few clinicians to be able to meet service demand.
The other problem is that school principals expect teachers can meet all their students' need (perhaps because their funding gives then no option to bring in external expertise).
Note: the newspaper "deactivated" the above - "Your comment appears to violate our community guidelines and has been deactivated."
A4 thanks Ms El Chami for her brave, honest and accurate stance. And good luck with where you end up next.