Are we regulating or regularising aged care restrictive practices?

Anyone moving into an aged care home might wish to take careful stock of who their friends are, writes Dr John Chesterman.

Anyone moving into an aged care home might wish to take careful stock of who their friends are, writes Dr John Chesterman.

In a seemingly benign – but in fact breath-takingly bold – regulatory approach the national Quality of Care Principles now enable friends, in certain circumstances, to authorise the use of restrictive practices on aged care residents. This can include, for instance, keeping a person confined to their room.

The revised principles came into force on 1 December 2022 and put in place for the next two years a new authorisation scheme for restrictive practice usage, providing changed requirements for situations when a person cannot consent to their own restrictive practice. The principles, which are still technically a “disallowable instrument” until March next year, can be accessed here.  

Now there is a new hierarchy of substitute decision-makers, the highest ranked among whom can authorise restrictive practices. At the top is an “individual or body” appointed in the person’s state or territory with power to “give informed consent to the use of the restrictive practice.”

This would include, in some jurisdictions, an adult guardian appointed by the relevant state or territory civil and administrative tribunal or, again in some jurisdictions, a person appointed with this power under an enduring power of attorney or equivalent instrument.

Dr John Chesterman

The remainder of the hierarchy becomes relevant if there is no such appointment and if either “there is no clear mechanism for appointing such an individual or body under the law of the state or territory,” or “an application has been made for [such] an appointment … but there is a significant delay in deciding the application.”   

Next on the hierarchy of people who can approve restrictive practices on behalf of a resident is a “restrictive practices nominee”, a substitute decision-making role to which a person, or indeed a group of people, can be appointed by an aged care resident.

Then comes a partner, followed by a relative or friend who has been an unpaid carer of the person. If there is still no-one to play the role, a relative or friend who hasn’t had a caring role for the person can authorise restrictive practices – so long as they have a “close continuing relationship” with the person.

Last in the hierarchy is a person’s “medical treatment authority”, which is someone “appointed in writing” who can consent to medical treatment on the person’s behalf.

The problem this new scheme was designed to address was the lack of certainty about who could play the role of “restrictive practices substitute decision-maker” under the previous iteration of the principles. The answer depended on the laws in place in that person’s state or territory, and how these laws were interpreted.

Evidencing this uncertainty, in Victoria the Victorian Civil and Administrative Tribunal delivered a decision this year that suggested an adult guardian would not normally be able to consent to aged care restrictive practices, while here in Queensland the Queensland Civil and Administrative Tribunal determined that an adult guardian could provide this consent.

The main effect of the revised principles is a considerable broadening of the range of people who can authorise restrictive practices. But there are many problems with these new arrangements, ranging from the technical to the philosophical.

For a start, while the range of potential authorisers is large, there is some bizarre complexity. For instance, if a resident is in a jurisdiction where a guardian can authorise aged care restrictive practices, but that jurisdiction sees significant delays in hearing guardianship applications, the next highest ranked decision-maker can authorise a restrictive practice; but only after a guardianship application is lodged. And what exactly constitutes a significant delay?

There are inconsistencies between the national requirements and the operation of state and territory laws. For instance, in jurisdictions where a medical decision-maker does not generally have authority to authorise chemical restraints, they are nonetheless given this power, and the power to authorise other restrictive practices, if all other options in the hierarchy have been exhausted and if they’ve been appointed in writing.

There are no witnessing or other safeguards around the appointment of the new role of “restrictive practices nominee”; compare the strict requirements around completion of an enduring power of attorney under state and territory laws.

The potential authorising role of a partner, a relative or a friend – who will not have been specifically appointed to perform the role by the person – is problematic; indeed the use of an automatic statutory hierarchy for non-medical treatment decisions is ill-advised.

When used in relation to medical treatment decisions, automatic statutory hierarchies tend to work well – they identify a decision-maker when a person cannot consent to their own medical treatment. One reason they work well is because the scope of possible health decisions is constrained by long-standing professional and ethical standards and practices concerning the types of treatments that can be offered. These safeguards are not there when it comes to restrictive practice usage.

In addition to these problems, the principal old one – the one that is at the heart of all the regulatory gymnastics – remains unaddressed in the revised Quality of Care Principles.

Consent model

I have previously made the point that the consent paradigm is sub-optimal when it comes to regulating restrictive practices – a situation, I acknowledge, that the Royal Commission into Aged Care Quality and Safety recommended, and that the Aged Care Act currently has in place.

Surely no-one thinks that it is reasonable to ask a person to consent to their own restrictive practice. In reality of course it is substitute consent that is routinely sought, the consent of someone else.

I have previously identified the many flaws with this approach. Substitute decision-makers will typically be in the invidious position of making a restrictive practices decision having just been told that the person in question is at risk to themselves or others.

Few people called on to make such a decision will have sufficient expertise, or indeed confidence, to push back and withhold consent. Moreover, human rights norms and practices are increasingly seeking to move us away from the use of substitute decision-makers at all.

In the Explanatory Statement accompanying the revised Quality of Care Principles the Aged Care Minister states that the “government will monitor these arrangements over the next two years and does not intend to continue the arrangements in the new Aged Care Act.” That at least is good news.  

The changes to the Quality of Care Principles effectively move the restrictive practices authorisation requirements from being almost unworkable to being almost meaningless. They will do nothing to drive down restrictive practice usage; they merely make the authorisation of restrictive practices easier. Is that what we really want?

Dr John Chesterman is the Queensland Public Advocate

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Tags: john chesterman, quality of care principles, restrictive practices,

5 thoughts on “Are we regulating or regularising aged care restrictive practices?

  1. Great article John. What troubles me even more is that the government’s focus appears to be on approval rather than whether the restricted practice is needed at all. Where is the focus on removal and avoiding the use of restrictive practices? The disability sector found more than a decade ago that changes in practice, staff training and medication reviews had an enormous impact in reducing the need to use restrictive practices.

  2. So what exactly are you to do if someone is a danger to themselves and/or others?
    Allow them to go about hurting themselves, or throwing chairs at other residents? Punching, kicking, spitting at staff? Are workers just expected to take it, are they? Any wonder the workforce is in freefall… Any wonder the sector is on the brink of collapse. WorkSafe says no one should be in danger in their workplace, and yet… this…
    Chemical restraint is used for residents when it is prescribed by their health professional, but what about if there is no medicinal order in place? What are staff expected to do in the above scenarios I mentioned? There’s no education on that in the Cert 3 or 4 Individual Support (Ageing) courses. There’s no education for that in the specialised offered Dementia courses.
    So where do staff learn the do’s and don’t’s? Where is this information accessible?
    Why must staff continue to get hurt while looking after residents because the Govt wants to make it look like they are ticking some boxes, when in reality, it’s real people who are being hurt in the process.

  3. I don’t understand this supposed move away from substitute decision-makers. How is this even possible? If a person cannot make a decision then someone must do so.

  4. They keep trying, but you cant legislate your way out of this mess. The two previous comments typify the conundrum of restraint.
    Of course we shouldn’t be restraining people. Civil societies would ensure ‘challenging ‘ people are cared for by skilled personnel in appropriate accommodation.
    And then we have the ‘its for their own good and the safety of the staff’ approach. A doctor’s prescription is gospel? But Kristy has given us a clue: ‘…no education on that for Cert 3 or 4 courses..’ While you need a whole lot more than a couple of education modules to effectively manage challenging behaviours, carers should at least know that the situation she describes is largely due to their own behaviour and, more than likely, their living environment.
    Nobody just starts throwing chairs out of the blue…and staff only get punched and kicked if they place themselves in situations they’re not able to manage. (and ‘dementia courses’ are a waste of time unless you have native level English skills and the aptitude for this work)
    But there are occasions where certain interventions are appropriate (can you hear the do-gooders gasp in horror?). Go and spend some time in an acute psychiatric unit and see how far warm and fuzzy gets you.
    See the problem? It’s not the clauses in the legislation, its the people on the floor. (It’s also the unsuitable accommodation and the practices of dumping anyone who is difficult to place- brain injuries, psychiatric disorders, alcoholics, junkies, violent criminals, sex offenders, etc -into aged care (thanks, social workers).
    Our experts can furrow their brows and legislate till they turn blue, (not soon enough) it wont change anything. We’ve been doing the same thing for over two decades…issuing lofty decrees that look like were actually doing something…but real change starts at the bottom.
    Crappy facilities, migrant carers on $20/hr, healthcare run by accountants and a regulator that punishes us for problems caused by the system they endorse. Someone please wake me up when this is over.

  5. Sadly, it comes down to who will benefit from a decision overriding the persons wishes not what is right or required under International Human Right Obligations. Trust in Government protection has been lost and I am not alone being concerned by what was not raised nor discussed at the recent November Disability Royal Commission (DRC) Public Hearings on Guardianship and Supported Decision-Making (SDM) (30) – serious known Governments’ Abuses, including ‘Involuntary Euthanasia’ of alleged ‘Protected Persons’ was ignored – people with disability made dead under the law and given life sentences by unwarranted discretionary powers within Government State and Territory CAT Tribunals. Human and Legal violations under Statute/Laws was again not properly exposed/scrutinised by this Royal Commission, as witnessed avoided by past Royal Commissions. Australian Governments abuses under UN CRPD conventions/obligations have been hidden for 30+ years under State and Territory Secrecy laws.
    Please recognise the ‘symptoms’ of Tribunal forced Public Guardianship and Public Administration Substitute Decision ‘control’ are by Legislated ‘design not error’ – the ‘CAUSES’ and the solutions are recognised by Governments but denied, knowing though implementation of SDM would save lives/family pain, legislated solutions would also cost State and Territory Government Business Enterprises financial viability and limit Governments unrestricted freedoms to exploit/abuse/profit while destroying vulnerable citizens lives. All done for what is effectively budget financial gain and/or cost savings.
    Australian SDM implementation will continue to be delayed and denied by Governments because the commodities (vulnerable unprotected citizens) under Public Guardianship and Public Administration are more valuable silenced and without a choice in their lives. Victims can’t wait for further intentional Federal Government delays on legislating UN CRPD Supported Decision-Making. For the benefit of all Australians – recognise reform at a cost won’t ‘happen’ voluntarily, as seen in other Countries, where today SDM protects citizens and has replaced obsolete forced Public Guardianship.
    What I seek is Federal intervention and demonstrated legislated amendments that demonstrate Australia’s compliance to UN CRPD Articles 3 and 12 SDM (obligations it has already ratified); and not further wilful blindness to violations by State and Territory Governments.
    Change starting from the easiest towards the most difficult supported decision-making cases – starting with people already under Government Public Guardianship and Public Administration Substitute Decision control/abuse. NOT as it appears is proposed, starting the other way round in the SDM ‘needs spectrum’, so that the ‘too hard’ argument can be used as a convenient change delay tactic: reviews and findings demonstrate the intent for the last 14 years has been to do nothing – that will continue for decades unless ethical politicians (our elected representatives) stand up for what is right, in least what is required for legal protection of their voting constituents. Today, no one is safe from Australian Governments Guardianship and Administration Business Enterprises ‘Violence, Abuse, Neglect and Exploitation’ of people with disability and those citizens with capacity but seen as vulnerable.
    Will Australian legislation to enforce UN CRPD conventions continue to be treated as commercial impediments rather than as obligations to its citizens Human Rights?

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