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Further changes to restraint rules in aged care: Clarity on the responsibilities of providers

Anita Courtney, Victor Harcourt, Dr Melanie Tan, Riaza Rigby

Following the commencement of the new restraint rules (found in Part 4A of the Quality of Care Principles) in July 2019, aged care providers have been waiting for the outcome of the Standing Committee’s review of the rules.

On 26 November 2019, amendments to the rules were incorporated into the Principles by the Quality of Care Amendment (Reviewing Restraints Principles) Principles 2019.

How far do they go in clarifying the position for aged care providers and what should providers do?

What were the problems with the 1 July rules?

The difficulties surrounding the question of how best to regulate the use of restraint in aged care homes was demonstrated when the Joint Standing Committee on Human Rights delivered a divided report. One branch of the Committee recommended amendments and the other suggested a total removal of Part 4A with emergency principles being put in place to allow for a period of further consultation.

One of the key issues with the new rules were that they did not clearly explain that the use of chemical restraint requires informed consent. On a simple reading, the rules seemed to indicate that chemical restraint could be administered without consent.

The other issue with Part 4A was that they seemed to indicate that consent could be given for physical restraint by a “representative” which is loosely defined in the Aged Care Act to include anyone acting for the consumer, whether or not they are formally appointed, eg a power of attorney.

In the case of restraint, the idea that any person purporting to act for a consumer can give consent to the use of restraint is inconsistent with previous case law. Various Tribunal and court decisions have made it clear that only a properly appointed representative (generally a guardian with specific powers to authorise restraint) has the authority to consent to the use of restraint, whether physical or chemical. The prior version of the restraint rules seemed to contradict this.

What does the review mean for aged care providers?

Following the conclusion of the Joint Committee’s report and a Senate disallowance process, the government has resolved to keep Part 4A in place but to make a handful of amendments to clarify that they do not override the principles that otherwise apply. In particular:

  • The rules do not override the principle that the prescribers of chemical restraint (be they medical practitioners or nurse practitioners) must obtain informed consent before prescribing; and
  • Reference should be made to the relevant state/territory laws about who can make medical decisions or provide informed consent when a consumer can’t provide consent themselves.  In other words, this makes it clear that the normal principles as to who can provide consent for the use of restraint applies. A provider cannot therefore rely on an informal representative (whether family or otherwise) to authorise restraint on an ongoing basis.

It is now explicit that it is not a responsibility of a provider to obtain consent for the prescription of chemical restraint; rather it is the responsibility of the medical or nurse practitioner prescribing to seek and gain informed consent from the correct person. In one respect, that amendment is welcome, particularly in light of the evidence in the Royal Commission that medical practitioners frequently rely on aged care providers to obtain consent to the use of chemical restraint.

At the same time, providers will need to have their own processes to ensure that those prescribing to their consumers have obtained consent. The Aged Care Quality and Safety Commission’s Regulatory Bulletin states:

“While the provider is not responsible for obtaining consent for chemical restraint, the Commission expects clinical governance arrangements to be in place to ensure that consent has been obtained, and that this is consistent with state and territory laws.”

The Commission’s guidance on clinical governance also highlights the need for providers to work collaboratively with consumers’ treating practitioners to ensure the best outcome for the consumer. As such, while obtaining consent is the responsibility of the medical practitioner/nurse practitioner, providers will need to implement systems to check consent has been properly obtained before they administer any type of chemical restraint.

What should aged care providers do next?

The rules around restraint could change further as the amending legislation incorporates a review process that will run from 1 July 2020 until December 2020. This will allow the legislation to be modified as a result of the review process, as well as any outcomes coming from the Royal Commission.

Despite this, providers cannot afford to wait to start addressing the new requirements. The Quality and Safety Commission assessors are already scrutinising providers in relation to this issue.

With the new restraint rules now in place, providers should ensure they have appropriate procedures in place to ensure consent has been provided to the use of all forms of restraint, whether chemical, physical or environmental (including memory support units).

As part of this, where some form of restraint is in use, providers should ensure the consumer’s representative has sufficient authority to authorise the use of restraint and if not, explore whether it is necessary to seek an order from the relevant Tribunal. 

The rules also make it clear that the use of any form of restraint should only be used as a matter of last resort. This means that providers should be able to identify what alternatives have been considered and the reasons why these were unsuccessful.

For further information

If you require assistance in reviewing your procedures or have any questions, please contact Anita Courtney on (03) 8602 7211, Victor Harcourt or (03) 9609 1693, Dr Melanie Tan on (03) 9609 1577 or Riaza Rigby on (03) 8640 2336.

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