In brief

In its Final Report: Care, Dignity and Respect (Final Report), the Royal Commission into Aged Care Quality and Safety (Royal Commission) identified the over use of restrictive practices in aged care as one of four areas of concern requiring immediate reform.

The Royal Commission recommended a new framework for restrictive practices that includes assessment of the need for the use of the restrictive practice by accredited independent experts.

Recommendations include approved providers, and in some cases key personnel, being subject to a civil penalty for breach of the regulatory framework, and in certain cases being liable to pay compensation.

The recommendations regarding restrictive practices need to be considered in the context of the Royal Commission’s broader reform proposal for transformation of the aged care sector, including a new rights based Act to replace the Aged Care Act 1997 (Cth).

On 11 May 2021, the Australian Government responded to the Royal Commission’s recommendations in the Final Report.^[1]

A new regulatory regime for restrictive practices

The Final Report of the Royal Commission identified four areas of concern requiring immediate reform. One of those areas is the overuse of restrictive practices, in particular chemical and physical restraint, and particularly as used in residential aged care aged care services. The Royal Commission considered this as a major quality and safety issue,^[2] as well as a significant human rights issue.^[3]

The use of restrictive practices in residential aged care services and some flexible care services is currently regulated by the provisions of Part 4A of the Quality of Care Principles 2014. Those provisions commenced on 1 July 2019, while the Royal Commission was underway. The provisions were required to be reviewed by the Australian Government by 31 December 2020^[4] and repealed by 1 July 2021,^[5] presumably to be replaced by a new regime.

The Royal Commission recommended however that the repeal be delayed until a new rights based regime, with the aim of eliminating or reducing restrictive practices, can be implemented.

The framework for restrictive practices proposed by the Royal Commission prohibits the use of any restrictive practice unless an independent expert assesses the person and deems the use of the restraint necessary. Alternative strategies to manage any behaviours must have been tried, documented and found unsuccessful before the use can be seen to be ‘necessary’.^[6] The scheme proposed for aged care services is not dissimilar to the scheme enacted for the National Disability Insurance Scheme (Restrictive Practices & Behaviour Support) Rules 108 (Cth), with similar requirements for reporting and monitoring, although the Royal Commission noted that some aspects of the disability regime under the NDIS may not be appropriate in aged care.^[7]

In particular, the Royal Commission noted that the current NDIS regime excludes from the ambit of the restricted practices regime the use of medication to treat a diagnosed condition. The Final Report questioned this, noting the frequent use of medication for the treatment of changed behaviours arising from dementia, and stating that permitting this exception ‘would significantly reduce the effectiveness of the regulatory requirements in aged care’.^[8] However this exception currently exists in the Quality of Care Principles as an exclusion under the definition of chemical restraint. It is currently well accepted in aged care services that this exclusion does not apply to medication used solely to manage the behavioural and psychological symptoms of dementia.

A key platform of the Royal Commission’s proposed reform is that the independent experts responsible for assessing the need for restrictive practices should be accredited by the aged care quality regulator (currently the Aged Care Quality and Safety Commission). It is primarily for this reason that the Royal Commission advocated delaying the repeal of the current scheme to allow time for those individuals to become accredited to provide the assessment services.

There are three new regulatory components to the scheme proposed by the Royal Commission which are noteworthy:

• a requirement to document and lodge a behaviour support plan with the quality regulator which will have oversight of the regulation of restrictive practices^[9]
• a requirement to notify any use of restraint that is not authorised under the new serious incident reporting scheme^[10]
• beaches of the regulatory requirements could expose an approved provider of aged care services, and in appropriate cases its key personnel, to a civil penalty and in some cases payment of compensation.^[11]

The thorny issue of consent

The Sydney Hearing 1^[12] inquired specifically into issues of consent and the use of restrictive practices in residential aged care. The Royal Commission noted as a particular concern the use of chemical and physical restraint without informed consent. It recommended that a behaviour support plan should not be approved without the documented informed consent of person who is authorised to give that consent on behalf of a person under State or Territory laws.

The current laws regarding substitute decision making and consent differ between States and Territories. They are often a source of confusion for providers and their staff as to who is authorised to provide such consent and who is required to obtain it. In many cases, the current laws do not deal expressly with consent to the use of restraint.^[13]

Reform at a national level to the aged care regulatory regime would be helpfully accompanied by agreement between the States and Territories regarding consent requirements for restrictive practices, with clear legislative provisions governing who can consent to their use. Uniformity and clarity in these laws will benefit in particular, those providers with a national or multi-state footprint for their aged care services.

The broader context of reform – a rights based Act

Recommendations regarding the proposed reforms to restrictive practices in the Final Report should be considered in the broader context of the sweeping recommendations made by the Royal Commission for the transformation of the aged care system in Australia.

As a fundamental reform, the Royal Commission has proposed a new rights based Act to replace the current Aged Care Act 1997 (Cth) (Aged Care Act). The rights proposed to be included in the Act include the right to liberty and freedom of movement.

The Royal Commission also recommends restrictions on the prescription of antipsychotic medications in residential aged care by November 2021, with amendments under the PBS so that initial prescribing is limited to certain specialists. While an important recommendation, the timeframe for this reform is surprising given the evidence before the Royal Commission of the difficulties faced by people in residential aged care in accessing specialist geriatric and psychiatric services and the scarcity of such services.^[14] It will be important to ensure that reforms aimed at reducing the overuse of such medications do not mean that older Australians who may benefit from their use are unable to access them.

The Australian Government’s response

The Australian Government has accepted most of the Royal Commission’s recommendations, including the recommendation that the Aged Care Act be replaced with a new consumer focused Act.^[15] In particular, it has accepted recommendation 17 regarding the regulation of the use of restraints and accepted it as an immediate priority for change.^[16] The proposal to delay the repeal of the provisions under the Quality of Care Principles has not, however been accepted. Rather the Government has announced that strengthened legislative provisions will commence on 1 July 2021 (the date for the repeal of the current provisions).

Additionally, a Senior Practitioner will be appointed to the Aged Care Quality and Safety Commission in 2021-2022 to, among other things, provide independent oversight of the use of restraint in aged care.

The Government noted in its response that the Aged Care Quality and Safety Commission, the Australian Commission on Safety and Quality in Health Care and the NDIS Quality and Safeguards Commission are also collaborating to align regulatory approaches to the use of restraints. Whether this will affect the regulation of consent remains to be seen. It would however address the disparate systems for those providers who proved services to aged care residents and NDIS participants.

An important component of the reforms is the promised funding to provide training and support services to providers to assist them to manage the increasing challenges of behavioural and psychological symptoms of dementia.

^{[1] Australian Government Department of Health: Australian Government Response to the Final Report of the Royal Commission into Aged Care Quality and Safety, May 2021}

^{[2] Volume 1: Final Report Summary and recommendations at page 93}

^{[3] Volume 1: Final Report Summary and recommendations at page 114}

^{[4] Quality of Care Principles section 15H}

^{[5] Quality of Care Principles section 15J}

^{[6] Volume 3A: Final Report The new system at page 115}

^{[7] Volume 3A: Final Report The new system at page 112}

^{[8] Volume 3A: Final Report The new system at pages 112 - 113}

^{[9] Volume 3A: Final Report The new system at page 116}

^{[10] Volume 3A: Final Report The new system at page 116}

^{[11] Volume 3A: Final Report The new system at page 117}

^{[12] Held on 6 May – 8 May 2019 and 13 May – 17 May 2019}

^{[13] For example, the Guardianship Act 1987 (NSW) does not expressly deal with substitute decision making regarding restrictive practices, however the Guardianship Division of the New South Wales Civil and Administrative Tribunal can make orders giving a guardian restrictive practices power.}

^{[14] Volume 1: Final Report Summary and recommendations, recommendation 65 at page 262}

^{[15] Australian Government Department of Health: Australian Government Response to the Final Report of the Royal Commission into Aged Care Quality and Safety, May 2021 Recommendation 1 at page 1}

^{[16] Australian Government Department of Health: Australian Government Response to the Final Report of the Royal Commission into Aged Care Quality and Safety, May 2021 at page 15}