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

Victor Harcourt, Emma Turner, Johanna Heaven, Felicity O'Brien
Residential Aged Care Resource Pack - Proposed legislative amendments

Russell Kennedy is offering a 3-part Resource Pack, which includes relevant Russell Kennedy Alerts, the Royal Commission Response No. 1 Bill, as well as Marked up Acts (Aged Care Act 1997, Aged Care Quality and Safety Commission Act 2018, and Quality of Care Principles 2014).

Click here to download the Russell Kennedy Residential Aged Care Resource Pack - Proposed legislative amendments


 

This is an update to a previous alert from 2 June 2021, ‘Reforms to strengthen protections against the use of restraints in aged care to align with protections in disability'.

View the Exposure Draft of the Aged Care and Other Legislation Amendment here

The Exposure Draft of the Aged Care and Other Legislation Amendment (Royal Commission Response No. 1) Bill 2021 was released on 4 June 2021. This is due to commence on 1 July 2021, with further amendments commencing on 1 September 2021. This Bill is the first round of reforms introduced by the Federal Government in response to the Aged Care Royal Commission’s Final Report released on 11 May 2021.

What are the changes?

The Bill strengthens the regulation of restraints in the aged care sector, deeming them ‘restrictive practices’. The Bill largely aligns the use of restrictive practices in the Aged Care Act with the definitions used under the National Disability Insurance Scheme (NDIS).

Definitions

The definition of restrictive practices has changed to include:

  • Chemical restraint
  • Environmental restraint
  • Mechanical restraint
  • Physical restraint
  • Seclusion

The definition of ‘restrictive practices substitute decision-maker’ has also been included.

Use of Restrictive Practices

The Quality of Care Principles have changed the circumstances in which restrictive practices can be used.

Restrictive practices must only be used:

  • As a last resort to prevent harm to the recipient or other persons
  • After consideration of the impact of the practice on the resident
  • After best practise alternative strategies have been considered, used and documented
  • Where the practice is used only to the extent necessary, and in a proportionate manner
  • Where it is used in its least restrictive form, and for the shortest time
  • Where informed consent is given
  • Where the use of the practice conforms with the residents care plan, the Aged Care Quality Standards, and the Charter of Aged Care Rights

Certain standards above do not apply where the restrictive practices is necessary in an emergency.

Additional requirements were imposed separately for the use of chemical restraints, and non-chemical restraints.

While the restrictive practices are being used, providers must ensure:

  • The resident is monitored for:
    • Signs of distress or harm
    • Side effects and adverse events
    • Changes in mood or behaviour
    • Changes in well-being, including their ability to engage in meaningful and pleasurable activities that enhance equality of life
    • Changes in their ability to maintain independence, and engage in daily living activities
  • Necessity of the practice use is monitored, reviewed and documented regularly
  • The practice effectiveness, and effect of any changes in its use are monitored
  • Changes are made in the residents’ environment to reduce or remove the need for the practise
  • If the practice is a chemical restraint, that information about its effect and use are provide to the prescribing practitioners

Changes were also made to aged care provider’s responsibilities following the emergency use of restrictive practices, which cover whether the resident lacked capacity to consent, and ensuring proper documentation of:

  • The resident’s behaviour
  • Alternative strategies used and considered
  • Whether the reasons for the practice use were necessary
  • Care to be provided for the resident’s behaviour
  • If their substitute decision maker was informed of the practice use

Changes intended to commence 1 September 2021

This Bill places significantly more emphasis on care resident’s behaviour support plans, including responsibilities relating to the plans and obligations relating to the reviewing, revising and consulting of them. The plans must also include:

  • alternative strategies for addressing behaviours of concern
  • if the practice use is necessary
  • matters to be set out if the practice is used and if its use is ongoing

Effect of these changes on aged care providers

This Bill will change the circumstances of use, regulation and management of restrictive practices. It will also align the use of restrictive practices in the Aged Care sector with the Disability Sector under the NDIS. Providers should be aware that the use of restrictive practices is an increasingly regulated area, and that there is greater focus on informed consent.

We are here to 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 HarcourtEmma TurnerJohanna 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.

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