The regulation of restrictive practices in aged cares needs further reform, writes Dr John Chesterman.

The regulation of restrictive practices in aged care is not going well. In attempting to solve a very real problem – the overuse of pharmacological behaviour modification in aged care facilities – the federal government’s regulatory response has created considerable uncertainty while doing little to meaningfully protect residents from inappropriate restrictive practice usage. 

Dr John Chesterman

The widespread inappropriate usage of chemical restraints is a well-known feature of a sector that is under considerable pressure both externally, in the wake of the damning royal commission report last year, and internally, with high levels of staff dissatisfaction.

The pandemic, and the invidious compromises it forced providers to make either to the health of residents or their social connectedness – or sometimes both – has helped to accelerate the view that the institutional model of care is no longer appropriate. A view the disability sector mostly accepted many years ago – though some notable exceptions still exist. The overuse of chemical restrictive practices should hasten that process.

It is not meaningful to ask a person to consent to their own movement being restricted as the only time this authorisation will be used is when the person is seeking to do the very thing they will then be prevented from doing.

The royal commission recognised that the overuse and under-regulation of restrictive practices was a significant problem. Restrictive practices are mechanisms by which a person’s behaviour is forcibly modified. They can be pharmacological, but they can also be physical, mechanical, environmental, or involve seclusion.

Unfortunately, one aspect of the royal commission’s proposed solution has led us to where we are now; it recommended that the person themselves, or someone on their behalf, be required to consent to any restrictive practice usage.

This is problematic for obvious reasons.

It is not meaningful to ask a person to consent to their own movement being restricted, for instance, as the only time this authorisation will be used is when the person is seeking to do the very thing they will then be prevented from doing. The fact that a person has agreed, for instance, to be confined to their bedroom – in a modern-day Ulysses pact that could hardly be described as volitional – should not be used as justification for preventing the person from leaving their room.

Even when the restrictive practice is chemical – in the form of a pill – we need to differentiate this from medication since the aim is behaviour modification; not the treatment and amelioration of an illness.

Far more common than the person’s own consent, it is substitute consent that will be provided – the consent of another person. And someone who is asked to consent to a restrictive practice being used on a loved one will be in an invidious position. They will rarely have the clinical or behavioural expertise to push back or offer alternative solutions. And inevitably they will fear the consequences for their loved one if they don’t go along with the proposal.

Then we might be able to concentrate on the important task of driving down restrictive practice usage, rather than risking regularising their use via a flawed approval process.

In the wake of the royal commission recommendation the Commonwealth has trodden clumsily in authoring several versions of subordinate legislation – the Quality of Care Principles – that leave under-siege aged care providers unsure of their responsibilities.

Decision-makers under state and territory laws – such as guardians, attorneys under enduring powers of attorney, and even automatically appointed medical treatment decision-makers – are being asked to authorise restrictive practices despite the fact that these individuals, in some Australian jurisdictions, may not have the power to do so under the laws that create their roles.     

These requirements are also causing a rise in what might be termed instrumental guardianship applications and orders, where there is no one to consent to a restrictive practice on the person’s behalf.

There is a reform solution that would fix this. The Aged Care Act, and the Quality of Care Principles, could be amended to require any non-emergency restrictive practice to be authorised by a newly-empowered national Senior Practitioner or their delegate, with a requirement that everyone with a genuine interest in the wellbeing of the person – and the person themselves, of course – must be advised that this request has been made, and have the ability to seek a review of any authorisation.

The Senior Practitioner’s role – which would differ significantly from the largely advisory position of Senior Practitioner, Restrictive Practices that was created earlier this year – would be to ensure that restrictive practice usage is minimal, justified and short-lived.

Then we might be able to concentrate on the important task of driving down restrictive practice usage, rather than risking regularising their use via a flawed approval process.

John Chesterman is the Queensland Public Advocate

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