The Federal Government has introduced a Bill into Parliament to tighten regulations for the use of chemical and physical restraints in aged care and replace the Aged Care Financing Authority with a new advisory group.          

Minister for Health and Aged Care Greg Hunt introduced The Aged Care and Other Legislation Amendment (Royal Commission Response No. 1) Bill 2021 on 27 May and is the first step in the Federal Government’s five-year five-pillar aged care reform plan.

Greg Hunt

The Federal Budget allocated $7.3 million to strengthen regulation for chemical and physical restraints in response to the aged care royal commission’s recommendations aimed at limiting the use of restrictive practices.

However they fall short of the commissioners’ recommendation, which called for restraints to be prohibited unless recommended by an independent expert as part of a quarterly reviewed behaviour support plan lodged with the quality regulator.

Under the Government’s proposed law providers are only able to use restraints:

  • as a last resort to prevent harm after alternative best practice strategies have been explored, applied and documented, except in an emergency
  • after considering the likely impact of the restraints on the care recipient
  • to the extent necessary and proportionate to the risk of harm to the care recipient or others
  • where the restrictive practice is the least restrictive form and for the shortest time necessary
  • with informed consent
  • in accordance with the Charter of Rights and the Aged Care Quality Standards
  • with ongoing monitoring and review.

If passed, the changes will come into effect on 1 July. Full details will be prescribed in the updated Quality of Care Principles.

The powers of the Aged Care Quality and Safety Commissioner will also be strengthened to take action against providers who do not comply with these regulations including the ability to apply for a civil penalty order.

Older Persons Advocacy Network CEO Craig Gear welcomed the amendment, which expands on legislation introduced in 2019 to minimise the inappropriate use of restraints.

Craig Gear

“We’ve had the first tranche of action on eliminating inappropriate physical and chemical restraints with the previous legislation, but this now strengthens and clarifies the expectations on providers, but also indicates the role of prescribers as well within this legislation,” Mr Gear told Australian Ageing Agenda.

More appropriate controls around the use physical and chemical restraints “have been needed for a long time,” he said.

Mr Gear said he would have liked to see the independent authorisation of restraints included in the government’s reforms as recommended by the commissioners.

He said the key to this legislation is around informed consent.

“The key to this legislation… is around people being informed and making decisions that appropriate behaviour supports are put in place and this is not used as the first response to these behaviours of concern.

New advisory group to be established

The Bill also repeals the legislative requirement for the Minister to establish an Aged Care Financing Authority. ACFA was formed in 2012 to provide independent advice about aged care financing to the government.

Instead, new National Aged Care Advisory Council, which was recommended by Royal Commissioner Tony Pagone, will provide expert advice on key matters from July 2021.

This includes advice on the implementation of the reforms and ensuring advice reflects the diverse needs and expectations of senior Australians, their families and carers.

“ACFA has provided valuable advice and insight to the Government, however our fundamental reform and our progress towards a new aged care system, means now is the time to update governance arrangements,” Mr Hunt said in a statement.

The advisory group will be made up of representatives from the aged care sector and the Department of Health, Mr Hunt said.

Advisory council a positive step

David Sinclair, partner at aged care consulting and benchmarking firm StewartBrown said the new advisory group would have a similar but more powerful role than ACFA.

David Sinclair

“In essence, both bodies provide advice to the Minister. So from that point of view, both bodies should have the same function,” Mr Sinclair told AAA.

 “ACFA didn’t have any real legislative powers. From that point of view, it sounds like the new advisory council will have a little bit more power attached to it, which is a good thing,” Mr Sinclair said.

Mr Sinclair said ACFA developed good information for the sector, including through its annual report, and that the advisory group should continue to do the same.

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