Restrictive practices in aged care – an update on consent

Background

In June 2021 we discussed the recommendations of the Royal Commission into Aged Care Quality and Safety (ACQSC) regarding the use of restrictive practices in aged care (see our article here) noting its findings that this was an urgent area for reform.

A comprehensive regime for restrictive practices in aged care

Changes to the use of restrictive practices in residential aged care were implemented under the Aged Care and other Legislation Amendment (Royal Commission Response No 1) Act 2021 (Cth) and the Aged Care Legislation Amendment (Royal Commission Response No 1) Principles 2021 (Cth). Those changes introduced a comprehensive regime for minimising and regulating the use of restrictive practices in residential aged care including:

• an express statement in the Aged Care Act 1997 (Cth) (Act) that restrictive practices are only to be used as a measure of last resort and after all other strategies have failed
• new definitions of restrictive practices, aligned with the definitions used in the NDIS Act
• requirements for obtaining consent and for consultation with authorised representatives of the care recipient
• use of documented behaviour support plans (BSPs) in the care plans of the care recipients
• regular monitoring and reassessment once an approved BSP is in place.

We are aware that the ACQSC has had an increased focus on the use of restrictive practices and in particular the requirement to ensure that the risks are explained to authorised representatives before consent is obtained.

Back to the issue of consent

One of the issues identified by the ACQSC was the use of restrictive practices without appropriate informed consent, particularly in relation to the use of chemical restraint. In that case, the prescribing practitioner is required to obtain the consent of the care recipient’s authorised representative, however the Amending Act imposed obligations on approved providers to ensure that such consent had in fact been obtained.

However, as we noted in our earlier article, the issue of obtaining informed consent to the use of restrictive practices has been challenging for providers. In NSW (for example) the Guardianship Act is silent on who can consent to the use of restrictive practices. Following the decision in HZC1^[1] the Guardianship Division of the NSW Civil and Administrative Tribunal has consistently held that consent can only be given by a guardian having a restrictive practices power granted in most cases by the Tribunal. In our recent article (here) we summarised a number of cases relating to applications for consent to the use of restrictive practices in different Australian jurisdictions.

The Australian Government has received feedback from Australian States and Territories regarding these current gaps in State and Territory legislation in relation to obtaining consent to the use of restrictive practices and also regarding the time it may take to obtain consent where consent is required to be given by a tribunal or other body.

In response, the Australian Government has proposed new interim provisions which will introduce a hierarchy of arrangements in the Quality of Care Principles whereby certain individuals, including family members or bodies, may give informed consent to the use of a restrictive practice in relation to a care recipient.^[2] The hierarchy also provides a means whereby approved providers can determine who is the restrictive practices substitute decision maker. This will be helpful in providing certainty in circumstances where there are multiple family members or in circumstances of conflicting wishes about the use of restrictive practices.

If the care recipient has capacity to do so, under the proposed scheme the care recipient themselves may also nominate in writing a hierarchy of decision makers, although only one person will be the decision maker at any one time (to avoid conflict).^[3]

If there is already a body in place in any State or Territory that is authorised to consent to the use of restrictive practices, that body or authority will take precedence over the hierarchy of persons authorised under the Principles. However, if, for example, an application to a tribunal has been made and the matter not yet determined, then the hierarchy can be relied on in the interim period. This addresses the fact that tribunal hearings take time and in the meantime there may be a need to apply restrictive practices to ensure the safety and wellbeing of the person.

These new provisions will be repealed two years after the registration of the changes to the Quality of Care Principles. This time frame is intended to allow a period of time for the States and Territories to address the requirements for consent to the use of restrictive practices in their own legislation.

Amendments to the Aged Care Act also now provide for immunity from civil or criminal liability provided that consent was given by a person named in the Quality of Care Principles and all other requirements of the aged care laws have been complied with.^[4] Importantly the amended Principles are prescriptive in relation to the use of restrictive practices and providers will need to ensure that they comply with the terms of consent that have been given.

However, taken together, these provisions will provide clarity and certainty for aged care providers in ensuring that they can meet the requirements for obtaining informed consent to the use of restrictive practices, as well as safeguarding care recipients.

^{[1] HZC [2019] NSWCATGD 8
[2] New section 5B of the Quality of Care Principles
[3] New section 5A of the Quality of Care Principles
[4] Aged Care Act, section 54-11}