Proposed restrictive practice changes ‘deeply flawed’

The regulation of aged care restrictive practices is going from bad to chaotic, writes Dr John Chesterman.

The regulation of aged care restrictive practices is going from bad to chaotic, writes Dr John Chesterman

The regulation of restrictive practices in aged care settings is about to take a turn for the worse, if the exposure draft Quality of Care Amendment (Restrictive Practices) Principles 2022 are implemented.

The proposed revisions to the Quality of Care Principles seek to address several significant failings in the regulation of restrictive practices, a topic I wrote about here in May.

Dr John Chesterman

The proposed solution, however, is deeply flawed and chaotic. In particular, the interaction between the proposed scheme and state and territory substitute decision-making regimes will be both difficult to understand, much less operationally explain, and follows no obvious overall rationale.

As a result, the scheme will likely do little to lessen the use of restrictive practices, or to improve the oversight of their usage. Without getting too technical, I make the following points to give a sense of just how complex the new scheme would be.

The result is a regulatory minefield.

The reform proposal introduces a hierarchy of decision-makers who can authorise restrictive practices where the person themselves cannot.

At the top is the “restrictive practices authority”, which would be “an individual or body that, under the law of the state or territory in which the care recipient is provided with aged care, has been appointed in writing (other than by the care recipient) as an individual or body that can give informed consent to the use of the restrictive practice in relation to the care recipient if the care recipient lacks capacity to give that consent.”

This would typically be a tribunal-appointed guardian, only it is not clear in Queensland, for instance, whether a guardian has this power under state law.

Next comes a “restrictive practices nominee”. As if state and territory substitute decision-making laws were not already complex enough, the reform creates this new role, to which a care recipient can appoint someone – without, I might add, any apparent safeguards, such as the witnessing requirements that exist when you execute an enduring power of attorney.

Next comes, in order, a partner, then a “relative or friend”, who can authorise restrictive practices if there is no-one able to do so higher up in the hierarchy. While it is typical to have an automatic statutory hierarchy from which to identify medical treatment decision-makers, it is unusual to have this for restrictive practices authorisation. Ordinarily we require someone with such power to be appointed by a tribunal, with the safeguards and oversight that involves. 

Then, if there is still no-one able to authorise the restrictive practice, we turn to the “medical treatment authority”. This is defined to mean someone appointed “other than by the care recipient” to make medical treatment decisions, which would likely again mean a tribunal-appointed guardian.

Among the myriad problems here, guardians with power to make medical treatment decisions will suddenly be empowered to make decisions – such as confining a person to their room – that are broader than they are able to make in some jurisdictions under the laws that create their roles.

The way to solve this is to start afresh, and accept that the consent paradigm is a tried and failed restrictive practices regulatory mechanism.

A person is at risk, through operation of the proposed scheme, of having multiple substitute decision-makers in place. This could happen very easily in the following scenario.

A person appoints their adult child to make medical decisions for them under an enduring power of attorney. The person subsequently does not have capacity to appoint a nominee under the proposed scheme, and their partner accepts the role of restrictive practices substitute decision-maker. The partner can then consent to chemical and other restraints being applied to the person, while their adult child is their medical decision-maker. This would be very odd.

The result, as you can see, is a regulatory minefield.

The way to solve this is to start afresh, and accept that the consent paradigm is a tried and failed restrictive practices regulatory mechanism.

Does anyone really think it is meaningful to ask someone to consent to their own restrictive practice, or to ask someone to do this on their behalf? It is at odds with human rights developments, which are seeking to move away from substitute decision-making wherever possible.

Unfortunately the Aged Care Act obliges the Quality of Care Principles to “require that informed consent is given” to restrictive practices usage, and a recent amendment empowers the Quality of Care Principles to determine who can provide substitute consent. That, in my view, needs to change.

We need to move instead to a ‘Senior Practitioner’ authorisation model, or a version of this, so that we can then concentrate on, and enliven, the principal reform task, which is to drive down restrictive practices usage.

The Quality of Care Amendment (Restrictive Practices) Principles 2022 are a confused and confusing attempt to wrestle with an admittedly complex regulatory problem. We need to do better.

John Chesterman is the Queensland Public Advocate. This is an edited version of more detailed feedback that has been provided to the Commonwealth Government.

Editor’s note

The Department of Health and Aged Care published the 14-page exposure draft and 29-page explanatory statement of the Quality of Care Amendment (Restrictive Practices) Principles 2022 on 1 September, available for 14 days. Comments in response to the draft can be sent to agedcareprotections@health.gov.au by 5pm Thursday 15 September 2022. 

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Tags: john chesterman, legislation, Queensland Public Advocate, restrictive practices,

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