Tribunal decisions, consent, substitute decision makers and the use of restrictive practices in residential aged care – what can we learn?

In brief

Changes to the use of restrictive practices in residential aged care were introduced approximately 15 months ago, on 1 July 2021 through changes to the Aged Care Act 1997 and the Aged Care Quality and Safety Commission Act 2018.^[1] The changes were in response to the findings of the Royal Commission into Aged Care Quality and Safety (Royal Commission) and the Independent Review of the Legislative Provisions Governing the Use of Restraint in Residential Aged Care (Restraint Review)

Since then, there has been an increase in the number of tribunal applications seeking decisions or clarification about appointed substitute decision makers and their authority regarding the use of restrictive practices in relation to residential aged care consumers.

Increasingly, approved providers are finding themselves before Tribunals having made an application, or providing evidence as part of a hearing. What can we learn from the Tribunal decisions in relation to the use of restrictive practices in residential aged care services?

Legislative changes

The amendments to the Quality of Care Principles 2014 (Quality of Care Principles) introduce a much more rigorous regime governing the use of restrictive practices in residential aged care.^[2]

Changes included:

• new definitions of restrictive practices in five categories which align with the definitions of restrictive practices under the National Disability Insurance Scheme Act 2013
• a statutory requirement to only use restrictive practices as a last resort
• comprehensive requirements for consulting on and implementing restrictive practices including through the use of Behaviour Support Plans.

Informed consent and State and Territory Legislation

The Quality of Care Principles set out the requirements which currently apply to the use of any restrictive practice including:

• a requirement for informed consent to be given by either the care recipient or if they lack capacity their ‘restrictive practices substitute decision maker’^[3]
• for the use of the restrictive practice to meet the requirements (if any) of any law of the State or Territory in which the restrictive practice is used.^[4]

A ‘restrictive practices substitute decision maker’ is a new term under the amendments to the Quality of Care Principles and is defined as ‘a person or body that, under the law of the State or Territory in which the care recipient is provided with aged care, can give informed consent’ to the use of a restrictive practice.^[5]

The laws regarding substitute decision makers and their decision making authority differs between each State and Territory.

There was an existing requirement to comply with State and Territory legislation in relation to the use of restraint before the legislative changes,^[6] however an approved provider was required only to seek informed consent from the care recipient’s ‘consumer representative’^[7]. This term was defined very broadly and did not necessarily have to be a legally appointed substitute decision maker^.[8]

The misalignment of the consent requirements under the Aged Care Act 1997 (Cth) with who could provide consent under State and Territory legislation appears to have been commonly overlooked in practice.^[9]

The Aged Care and Other Legislation Amendment (Royal Commission Response) Act 2022 (Royal Commission Response Act) included changes to the Aged Care Act 1997 (Cth) to revise the amendments that commenced on 1 July 2021, to address these unexpected outcomes arising from the interaction with State and Territory guardianship and consent laws.

The amendments foreshadowed changes to the Quality of Care Principles to introduce interim consent arrangements until State and Territory laws can be amended to address these issues.

The recently released Quality of Care Amendment (Restrictive Practices) Principles 2022 Exposure Draft (Exposure Draft) includes a hierarchy of individuals or bodies who can be restrictive practice substitute decision makers who may make informed consent decisions about the use of a restrictive practice if no one is authorised under the relevant State or Territory law.

Tribunal Decisions

Applications seeking the appointment of a person as a restrictive practice decision maker have more commonly come before Tribunals regarding individuals who are receiving supports under the National Disability Insurance Scheme (NDIS). The legislative changes have seen an increase in the number of applications coming before Tribunals in relation to aged care consumers regarding the use of a restrictive practice in residential care.

What are we seeing?

• Applications: are being initiated by family members, approved providers, registered health practitioners and health organisations. Some applications are made in circumstances seeking the public guardian be appointed where there is no available decision maker and others have been made by healthcare and aged care providers, identifying family members who may be appropriate substitute decision makers.
• Length of Orders: appointing a person with the authority to make decisions about the use of restrictive practice generally are shorter in length (12 months) taking into consideration the fluctuating nature of changes in health or in conditions of the represented person and the need for the effectiveness following the use of the restraint to be monitored.
• Consistency: in the conditions that a substitute decision maker must have regard to when deciding whether to consent to the use of a restrictive practice. Although requirements regarding the use of a restrictive practice are made under a Commonwealth Act, these conditions are generally mirrored in the orders being made by the State and Territory Tribunals, namely that:
  • the values and preferences/interests and welfare of the represented person must be considered
  • a restrictive practice must only be used as a last resort, and must be used in the least restrictive form, for the shortest period of time necessary to prevent harm to the represented person or others
  • a restrictive practice must be used in accordance with the represented person’s Care Plan and Behaviour Support Plan that details:
    • the behaviours of concern
    • the restrictive practice being contemplated and the reasons why the restrictive practice is necessary
    • any alternatives that have been implemented
    • the requirements for monitoring to be undertaken whilst in use
    • the need for ongoing review of the need for the restrictive practice.

Limitations and challenges

Jurisdictional Differences

For providers who operate in more than one State or Territory, navigating the differences between substitute decision making laws in each jurisdiction can be challenging.

While there is some commonality in the functions of substitute decision makers, for example categories of decision making (personal, lifestyle, medical treatment, legal and financial), the specific scope of decision making powers between jurisdictions differs, particularly in relation to restrictive practices. This creates an even more challenging task for residential aged care providers when it comes to determining who is the decision maker and what can they decide.

Decision making scope

In many cases identifying who the substitute decision maker is or can be, is the easy part. Distinguishing what they can make decisions about and the scope of their decision making authority can be more difficult.

For example a substitute decision maker may have been appointed with plenary powers which means the substitute decision maker’s decision making scope is broad and unlimited. They can make any decision that the person could make if they had capacity.

Alternatively, a substitute decision maker appointed as an attorney or guardian, may have a very specific appointment and decision making scope (personal decisions only), limiting the kinds of decisions they can make.

In Re Frieda [2022] ACAT 27 and In the Matter of Evelyn (Guardianship) [2021] ACAT 126 the Tribunal dismissed both applications for the appointment of a guardian on the basis that the Enduring Power of Attorney appointed the Attorney to do on Frieda’s behalf ‘anything that Frieda could lawfully do’ and on Evelyn’s behalf to make ‘personal care decisions’ including decisions regarding environmental restraint solely for the purpose of keeping Evelyn safe. ^[10]

The ACT and Victoria both have Human Rights Acts which require, in so far as it is possible, that all laws be read (and applied) in a way that is compatible with human rights.^[11] This means that any decisions by a Tribunal about substitute decision makers and their authority to consent to the use of a restrictive practice must also be considered through the human rights lens.^[12]

In NSW (where the Guardianship Act 1987 (NSW) is silent on restrictive practices), the Tribunal had previously considered issues of restraint and substitute decision makers before the legislative changes which introduced the ‘restrictive practices substitute decision maker’. In these decisions the Tribunal held that where a person is unable to consent on their own behalf to the use of a restrictive practice, then consent can only be given by a properly authorised guardian having a specific restrictive practices power.^[13] Tribunal decisions in NSW since the legislative changes have shown that the Tribunal has maintained the view that substitute consent for the use of a restrictive practice is required to be provided by a specifically authorised guardian.^[14]

Time

An application seeking a person to be appointed as a restrictive practices substitute decision maker takes time to firstly be listed and then to be heard often leaving all stakeholders in ‘limbo’ until the decision is made.

Improved awareness of the requirements for informed consent for the use of restrictive practices in aged care in the wider healthcare industry has seen the risk of delay and uncertainty avoided in some more recent cases:

Part 4A Quality of Care Principles – Compliance

The Aged Care Quality and Safety Commission (ACQSC) has acknowledged in its Regulatory Bulletin that there may be circumstances where the use of a restrictive practice is required in jurisdictions where a restrictive practice substitute decision maker cannot be appointed or there are delays in the matter coming before a Tribunal.^[17]

In these circumstances the ACQSC has advised that ‘it expect[s] that any use of a restrictive practice by an aged care provider is compliant with all of the requirements under Part 4A of the Quality of Care Principles 2014.’

The ACQSC’s guidance provides that it will ‘consider the particular circumstances of each matter and take into account a range of factors when making a decision about whether to take regulatory action’, including whether the approved provider can demonstrate that:

• all applicable requirements under Part 4A of the Principles have been met
• best efforts were made to source a substitute decision maker and, no substitute decision maker was available (or a significant delay until one would be appointed) to provide consent in relation to the application of a restrictive practice
• attempts have been made to consult with someone having a close personal, ongoing relationship with the affected consumer (spouse, partner, family member, carer (unpaid except in the form of a carers benefit)) or (if there is not a person with a close, personal, ongoing relationship) an independent advocate
• a Serious Incident Response Scheme notification has been made by the provider.

Demonstrating compliance requires providers to ensure that all actions taken and all decisions made are contemporaneously and thoroughly documented in the care recipient’s records.

The Exposure Draft responds to a number of issues that have been identified since the initial changes were made to the aged care laws. It sets out a hierarchy of prescribed people or bodies which may consent to the use of a restrictive practice if the aged care consumer lacks capacity and there is no one who is authorised under State or Territory law. These changes are intended to be temporary, being in place for a period of two years from commencement to allow the State and Territories time to respond in their own laws.

The Exposure Draft also provides further clarification on the likely operation of the ‘immunity arrangements’ introduced by the Royal Commission Response Act. The proposed new section 54-11 of the Aged Care Act provides that the immunity provisions will only be available where all of the requirements of the Quality of Care Principles have been complied with.

Key Takeaways

Providers should do a ‘health check’ on their policies and procedures, including how they are implemented and complied with, considering:

• whether intake and admission processes directly ask whether a restrictive practice is currently being used, and if a restrictive practice substitute decision maker has been appointed;
• how effective admission processes are in identifying whether a person is prescribed medications for medical treatment or behavioural management;
• how effective are admission processes in identifying substitute decision makers, and the scope of their decision making authority in each State or Territory in which your organisation operates?
• whether an investment in staff training is required to support staff to know who is the relevant decision maker and what they can decide;
• whether the organisation can effectively demonstrate its compliance in respect of restrictive practices generally and specifically in circumstances where a restrictive practices substitute decision maker cannot be appointed or is in the process of being sought – will your documentation stand up now, six months from now, three years from now?
  

^{[1] Aged Care and Other Legislation Amendment (Royal Commission Response No. 1) Act 2021.}

^{[2] Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 (Amending Principles).}

^{[3] Quality of Care Principles 2014 s 15FA(1)(f).}

^{[4] Quality of Care Principles 2014 s 15FA(1)(j).}

^{[5] Quality of Care Principles 2014 s 4.}

^{[6] Quality of Care Principles 2014 compilation date 29 November 2019 s15E.}

^{[7] Quality of Care Principles 2014 compilation date 29 November 2019 s 15F(1)(e).}

^{[8] Quality of Care Principles 2014 compilation date 29 November 2019 s 5.}

^{[9] VZM [2020] NSWCATGD 25 at [53].}

^{[10] Re Frieda [2022] ACAT 27 at [74]-[77] and In the Matter of Evelyn (Guardianship) [2021] ACAT 126 at [130] [133].}

^{[11] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 32(1); Human Rights Act 2004 (ACT).}

^{[12] Nguyen v Director of Public Prosecutions [2019] VSCA 20 [103] and Momcilovic v The Queen (2011) 245 CLR 1; Chief Justice French at [38]–[41], [50]–[51].}

^{[13] HZC [2019] NSWCATGD 8; JFL [2020] NSWCATGD 36, SZH [2020] NSWCATGD 28; VZM [2020] NSWCATGD 25 and Re LZN [2021] NSWCATGD 12.}

^{[14] IKJ [2021] NSWCATGD 27 (IKJ); TZD [2021] NSWCATGD 14 (TZD); NZX [2021] NSWCATGD 16; and CKH [2021] NSWCATGD 18 (CKH).}

^{[15] CKH [2021] NSWCATGD 18 at [22].}

^{[16] TZD [2021] NSWCATGD 14 at [3].}

^{[17] Aged Care Quality and Safety Commission, (March 2022 version 1.1 RB 2021-1) Regulatory Bulletin ‘Regulation of restrictive practices and the role of the Senior Practitioner’, https://www.agedcarequality.gov.au/sites/default/files/media/rb-2021-13-1-1-regulatory-bulletin-regulation-restrictive-practices-role-snr-practitioner_0.pdf.}