Nurse helping elderly man

Senate to debate proposed restrictive practices amendments

Victor Harcourt, Anita Courtney, Johanna Heaven, Matthew Goessler, Despina Hrambanis

Introduction

In September 2021, the second tranche of legislative reform stemming from the Royal Commission into Aged Care Quality and Safety (Royal Commission) was introduced to Federal Parliament. Importantly, the Aged Care and Other Legislation Amendment (Royal Commission Response No. 2) Bill 2021 (The Bill) proposes further amendments to the restrictive practices provisions which were introduced in 2021.

As many providers are aware, the practical implementation of the restrictive practices amendments resulted in ambiguity in relation to the authorisation of substitute decision-makers to provide consent on behalf of care recipient for the use of restrictive practices.

With the Bill before Senate in the week starting 28 March 2022, it is timely for approved providers to consider whether changes are required at a compliance or clinical level if the Bill passes, as hoped.

Why are the changes necessary?

On 1 July 2021, the Aged Care Act (Act) was amended to introduce the concept of a restrictive practices substitute decision maker (RPSDM). A RPSDM is a person or body who, in accordance with State or Territory law, can give informed consent on behalf of a resident to the use of a restrictive practice. The introduction of the RPSDM replaced the term “representative” in the former Quality of Care Principles 2014 (Principles). The introduction of the concept of RPSDM has narrowed the scope of persons who can provide substitute consent for the use of restrictive practices for a care recipient.

Unfortunately, the reliance on State or Territory laws has resulted in inconsistent outcomes in relation to the implementation of restrictive practices at a State and Territory level. Specifically, in some States and Territories, it is unclear whether existing substitute consent arrangements, such as guardianship or power of attorney appointments, have the requisite authority to be considered a RPSDM for the purposes of the AC Act. Judicial consideration of this issue has varied between the States and Territories.

Victoria, New South Wales, Queensland and the Australian Capital Territory are examples of Australian jurisdictions without any legislation that specifically authorise substitute decision making in the context of restrictive practices in aged care. In the absence of any legislation, case law is relied upon. This has meant that different jurisdictions have reached different conclusions based on their respective substitute consent regimes. These varying judgements emphasise the importance of a national consensus, given the AC Act is a Commonwealth Act.

The Bill provides a temporary (and timely) solution to this issue, as the interplay between State, Territory and Federal laws is resolved. Specifically, the Bill foreshadows amendments to the Principles, to provide an interim authorisation mechanism for the use of restrictive practices, where a care recipient lacks capacity. 

Without obtaining consent in accordance with the Principles, and State and Territory law, the use of restrictive practices contravenes the Principles, and may enliven human rights considerations. The use of a restrictive practice otherwise than in accordance with the Act and Principles contravenes the responsibilities of an approved provider, and is a reportable incident under the Serious Incident Response Scheme

The Bill proposes a temporary solution which clarifies the circumstances in which a person can provide substitute consent for the use of restrictive practices for a care recipient. 

What are the changes?

The Bill proposes the following amendments to the Act:
  • The Principles may make provision for, or in relation to, the persons or bodies who may give informed consent to the use of a restrictive practice in relation to a care recipient if the care recipient lacks capacity to give that consent.; and
  • Immunity from criminal or civil liability in relation to the use of a restrictive practice in certain circumstances. 

The implementation of these proposed amendments is unclear. In relation to substitute consent, it is possible that a hierarchy similar to that provided in the Medical Treatment Planning and Decisions Act 2016 (Vic) will be implemented, to allow for various people to consent to the use of restrictive practices. 

In any case, it remains unclear if the Bill will pass in its current form, or will be subject to further amendment. For example, on 24 November 2021, the Human Rights Scrutiny Report issued by the Parliamentary Joint Committee on Human Rights raised issues with the compatibility of the proposed amendments with international human rights. The Committee did not form a determinative view as to this issue.

Regulatory compliance

The Commission has released interim guidance on how it will regulate the of restrictive practices whilst the federal amendments remain in limbo.

Specifically, the Commission 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. This may include consideration of whether: 
    • the approved provider has otherwise complied with the provisions of the Principles applicable to the use of restrictive practices; 
    • best efforts were made to source a substitute decision maker and, having undertaken those efforts, there was nevertheless no available substitute decision maker to provide consent in relation to the application of a restrictive practice; 
    • attempts were made to consult with someone with a close personal, ongoing relationship with the affected consumer an independent advocate; and 
    • a Serious Incident Response Scheme notification was made by the provider.
The Commission’s interim position will remain in effect until the current issues are addressed through legislative amendment at either the Commonwealth or State and Territory level. If suitable arrangements already exist at a State or Territory level, these should continue to be followed. 

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 Victor HarcourtAnita Courtney or any member of our Aged Care Team if you require assistance. 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.  

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