A parliamentary committee has recommended the recent legislation regarding restraints in aged care remain but with amendments to clarify consent laws and further consultation with stakeholders to improve regulations.
However, Labor and Greens members of the Parliamentary Joint Committee on Human Rights have submitted a dissenting report calling on the senate to disallow the instrument in favour of a new one.
The Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019, which came into force on 1 July, aims to limit the use of physical and chemical restraint in residential aged care.
However, the committee launched a short inquiry on 29 July in response to requests from Human Rights Watch and the Office of the Public Advocate (Victoria) and went on to hear from many advocates about human rights concerns relating to the new rule (read more here).
Committee chair Liberal Senator Sarah Henderson tabled the report in the Senate on Wednesday evening 13 November.
She said while the instrument appeared to engage and limit a number of human rights, existing state and territory laws continued to apply to regulate the use of restraints.
“As these other laws continue to apply, the committee report has concluded that this instrument, by further regulating approved providers, does not directly limit human rights,” Ms Henderson told the senate.
However, the committee found the legislation:
- created widespread confusion about provider obligations particularly on the role of a resident’s representative in providing consent to use physical restraints and whether consent is necessary for chemical restraints
- created widespread confusion around the legal obligations of approved providers, which may increase the risk physical and chemical restraint use without informed consent and without first exhausting all alternatives
- does not require providers to take all reasonable steps to reduce and eliminate the need for restrictive practices.
As a result of the findings, the majority committee recommends the instrument be amended to clarify:
- that other laws prohibit the use of physical and chemical restraint without prior informed consent
- how the instrument interacts with state and territory laws, in particular regarding the authorisation of substitute decision-making
- continued obligations for prescribers to exhaust alternative options and obtain informed consent prior to using chemical restraint.
The committee also recommends the aged care minister undertakes extensive stakeholder consultation to improve the regulation of restraints including:
- an explicit requirement to exhaust alternatives to the use of restraint including preventative measures and that restraint be used as a last resort
- obligations to confirm informed consent prior to using chemical restraint
- improved oversight
- mandatory reporting for all types of restraint use.
Ms Henderson said the majority report has chosen to amend the instrument because disallowing it would result in no federal regulation for restraint use.
“An absence of any express federal regulation would be a major backward step and also not send an appropriate message to the aged care sector,” she told the senate.
Greens, Labor provide dissenting report
Australian Labor Party and Australian Greens Members of the committee consider the recommended amendments insufficient to adequately protect the human rights of vulnerable residents and called for the instrument to be disallowed.
Labor senator for Tasmania Nick McKim said the decision by him and the four other members of the committee to provide a dissenting report was not taken lightly.
In response to Senator Henderson’s concerns that disallowing the instrument might result in in no regulation, Senator McKim told the sentate that that need’t occur because there was time before the senate next discussed this.
He said the minister has two weeks’ notice to come up with an instrument that properly regulates the use of chemical and physical restraints to the satisfaction of the Senate.
“The instrument that this inquiry assessed and the one that the dissenting members of the committee are recommending be disallowed is just not fit for purpose.
“It simply does not do the job that it should do and, particularly, that is able to be argued in the context of the interim report of the royal commission,” Mr McKim told the Senate.
“I say to colleagues that there is now a little bit of time for the minister to do the work that actually should have been done before this instrument was created, came into force and was tabled in this Senate. Two weeks is long enough to do the job.”
In addition to disallowing the instrument, the dissenting group recommended urgent reintroduction of a new instrument in the short-term to ensure:
- informed consent for use of chemical restraints
- reducing the use of restraints
- effective reporting of the use of restraints.
They also called for urgent and widespread consultation to determine the best regulatory framework to protect residents in the use of restraints.
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