A way forward on restrictive practice regulation

A senior practitioner authorisation model would be better than the consent model for regulating restrictive practices in aged care, writes John Chesterman

In a December article in Australian Ageing Agenda I expressed my significant concerns about the current aged care restrictive practices authorisation regime. As I wrote then, the current requirements, which are in place from December 2022 until December 2024, are both complex and, in some respects, frankly bizarre.

One of the complexities the current regulatory regime is attempting to wrestle is the uneven arrangements in place in the states and territories, which see adult guardians in some jurisdictions – such as Queensland – generally able to authorise aged care restrictive practices, but not in others – for instance, Victoria.     

The regulatory result is a staggering pastiche of band-aids under which an automatic hierarchy is enlivened when there is no “restrictive practices substitute decision-maker” in place and when the relevant state or territory either has “no clear mechanism” for the appointment of someone with power to authorise aged care restrictive practices, or where there is such a mechanism but “a significant delay” accompanies any such application.

That in itself is confusing enough. But the automatic hierarchy’s inclusion towards the end of a “friend”, who can authorise a person being locked in their room, plumbs new depths in our bid to find someone, anyone, to give the okay.

And that is my principal concern; we seem to be devoting our regulatory energies on locating an authoriser, rather than on meaningfully trying to limit and challenge the use of restrictive practices.

The Parliamentary Joint Committee on Human Rights, which I had the opportunity to brief, shares these concerns. In its March 2023 report on the changes the committee agrees (paragraph 1.34) “that there may be a risk that in simplifying consent arrangements, this instrument has the effect of facilitating the use of restrictive practices, which is inconsistent with Australia’s obligation to minimise, and ultimately eliminate, the use of restrictive practices.”

As I have written previously, a key element of our failed regulatory approach here can be traced back to the use of the “consent” (or typically substitute consent) authorisation approach. While this is the approach that the Royal Commission into Aged Care Quality and Safety unfortunately recommended – and which is now embodied in section 54.10 of the Aged Care Act – we do now have the opportunity to do something different.

In her Explanatory Statement that accompanied the introduction of the current regulatory regime, Minister for Aged Care Anika Wells noted that the government “does not intend to continue the arrangements in the new Aged Care Act.”

She was more explicit in her response to the report from the Parliamentary Joint Committee on Human Rights, writing that the current requirements “are intended as an interim arrangement until state and territory guardianship and consent laws can be amended, or until 1 December 2024” (report 3).

My hope is that we don’t just leave it to the states and territories to tighten up their substitute decision-making laws in this regard, but that we jettison the consent model entirely – something currently being considered by Queensland in its review of the authorisation of restrictive practice usage in disability services.

The Parliamentary Joint Committee on Human Rights also thinks it’s time to take stock, arguing (paragraph 1.35) “that further consideration should … be given to whether the consent model to the use of restrictive practices is the best approach to protect the rights of aged care residents.”

In my view it clearly is not.

Everyone accepts, I hope, that it will often be quite odd to ask someone to consent to their own restrictive practice.

When it comes to substitute consent to a restrictive practice – the consent provided by someone on a person’s behalf – there are numerous problems, as I have aired previously.

In short, what percentage of residents or family members, or indeed friends, will feel sufficiently empowered to say no when asked by an aged care provider to agree to a restrictive practice being used to secure the safety of the person or their co-residents. The substitute decision-maker will likely have neither the expertise nor the wherewithal to object. This is not a meaningful safeguard. 

There is an alternative, which is a senior practitioner authorisation model. Under one version of this model an expert senior practitioner would be responsible for the selection of local authorisers – authorised program officers – who could approve non-emergency use of restrictive practices where they are contained in a behaviour support plan that is lodged with the senior practitioner.

Critically, the senior practitioner and associated staff will have clinical behaviour management expertise and will – in the words of one service provider with whom I discussed this model – be able to go “toe-to-toe” with the provider on the need for the use of any restrictive practice.

This appointment could be made at state and territory level. Some jurisdictions already have a senior practitioner, who oversees the authorisation of restrictive practice usage in disability services.

Or there could be a federal senior practitioner with the role of overseeing the authorisation of aged care restrictive practices – a role with far greater power than the current advisory position of senior practitioner, restrictive practices.

The adoption of a senior practitioner authorisation model poses far greater potential than does the consent model for focusing our minds on what really matters here: reducing and eliminating the use of restrictive practices in our aged care facilities.

John Chesterman is the Queensland Public Advocate

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