Consoling elderly person - Aged Care 1900x500

Reforms to strengthen protections against the use of restraints in aged care to align with protections in disability

Victor Harcourt, Emma Turner, Johanna Heaven
The Federal Government has just released the Aged Care and Other Legislation Amendment (Royal Commission Response No. 1) Bill 2021 (the Bill) which is due to commence on 1 July 2021. The Bill is the first round of reforms introduced by the Federal Government in response to the Aged Care Royal Commission’s Final Report which was released alongside the new Federal budget on 11 May 2021.

The Bill once enacted will strengthen the regulation of restraints, renaming them as ‘restrictive practices’, clarifying the requirements that providers must meet in relation to their use, and align the definition of ‘restrictive practices’ in the Aged Care Act with the definition used under the National Disability Insurance Scheme (NDIS).

What are the changes regarding restrictive practices?

The changes will seek to emphasise person‑centred care in relation to the use of restrictive practices through inserting a new definition of ‘restrictive practice’ and requiring the Quality of Care Principles to provide legislative detail on the requirements approved providers are to comply with prior to, during, and after the use of restrictive practices.

This includes a new responsibility for approved providers to ensure that restrictive practices are only used in the circumstances set out in the Quality of Care Principles. New powers will be given to the Aged Care Safety and Quality Commission to issue a compliance notice to providers who do not comply with restrictive practice requirements.

The Quality of Care Principles will be amended to require a number of conditions for the use of restrictive practices. Providers will only be able to consider the use of restrictive practices:

  • as a last resort to prevent harm after alternative best practice strategies have been explored, applied and documented, except in an emergency
  • after considering the likely impact of the use of the practice on the care recipient
  • to the extent necessary and proportionate to the risk of harm to the aged care recipient or other persons
  • where the restrictive practice is the least restrictive form, and for the shortest time, necessary to prevent harm to the care recipient or other persons
  • if informed consent to the use of the practice is given
  • in accordance with the Charter of Rights and the Aged Care Quality Standards
  • if care recipients are monitored whilst the restrictive practice is in use and the use and effectiveness documented.

The Bill provides that a requirement specified in the Principles does not apply if the use of a restrictive practice is necessary in an emergency.

The Quality of Care Principles will also clarify that from 1 September 2021, approved providers will be required to create behaviour support plans to inform the use of restrictive practices on a care recipient. Approved providers will be required to continue to include such information in a care recipient’s care and support plan prior to the implementation of the new arrangements on 1 September 2021.

What this means for providers?

The Bill makes noteworthy changes to the use and regulation of restrictive practices in aged care, aligning the definition of restrictive practices with that used in the disability sector and clarifying the circumstances in which restrictive practices can be used. This is likely to mean that environmental restraints and seclusions practices in aged care will be subject to greater regulation and scrutiny than ever before.

In addition, greater clarity around the requirements for obtaining informed consent for the use of restrictive practices will likely impact across the sector. State and territory legislation deals with who can give informed consent to the prescribing of medication for the purposes of chemical restraint on behalf of a care recipient who cannot themselves consent because they lack capacity. State and territory legislation also deals with who can give informed consent to the use of restrictive practices other than chemical restraint on behalf of a care recipient who lacks capacity to provide consent. The reforms are not intended to affect the operation of those state and territory laws, which protect individuals from undue interference with their personal rights and liberties in relation to the use of restrictive practices.

A resident’s representative does not have automatic authority to provide informed consent on behalf of a care recipient to both chemical restraint and other restrictive practices. This will only be the case where that representative has been appointed by a State or Territory guardianship board or tribunal (however described) with the relevant authorisation for restrictive practices. It is not sufficient to seek informed consent from a care recipient’s nominee or relative unless they have this appointment.

Providers need to be aware that since the commencement in 2019 of the restraint provisions in the Quality of Care Principles 2014 , there has been an increased focus on the issue of restraints in aged care. The changes brought about by the Bill indicate that this is only likely to continue. 

Not only does this Bill give the Regulators a new power to give a compliance notice which is likely to highlight provider compliance issues, the Regulators’ scrutiny of provider’s adherence to these provisions is also likely to arise given the commencement of the Serious Incident Response Scheme (SIRS) in April 2021.

The SIRS now specifies that “use of physical restraint or chemical restraint in relation to the residential care recipient other than in circumstances set out in the Quality of Care Principles” is a reportable incident. Therefore, it is paramount that facilities ensure they are strictly following legislation when implementing any form of restraint to avoid triggering the SIRS. Note, the wording of this provision will likely be amended to reflect the new definition.

How can we help?

At Russell Kennedy we are not only recognised leaders in the aged care sector our team also has significant expertise in advising the disability sector. Our team can assist you in preparing for these legislative changes: including advising on your obligations, undertaking reviews of current policies and procedures on the use of restrictive practices and advising on requirements for obtaining informed consent for the use of restrictive practices on behalf recipients.

Contact one of our expert team members: Victor Harcourt, Emma Turner, Johanna Heaven.

If you would like to keep up to date with Alerts, news and Insights from our aged care team, you can subscribe to our mailing list here. We also have a broad range of standard and tailored template aged care agreements, policies and other documents you can find more information about here.

View related insights

Australian Senior Citizens - ACRL 360x240

Reform of the Victorian Retirement Villages Act – Options Paper released

8 Apr 2021

The Minister for Consumer Affairs Gaming and Liquor Regulation released the Options Paper on 15 Marc ...

View
coronavirus-covid19-syringe-and-vaccine 1600 x 400

NSW Edition | COVID-19 vaccine– who decides if you get vaccinated when you don’t have capacity to decide yourself?

22 Mar 2021

With the rollout of the COVID-19 vaccination program now underway in Australia, there has been much ...

View
coronavirus-covid19-vaccine 360x240

Victorian Edition | COVID-19 vaccine– who decides if you get the jab when you don’t have capacity to decide yourself?

22 Mar 2021

Australia’s COVID-19 vaccination program is now underway, and has proved to be the subject of much d ...

View