Health & Community Law Alert: Aged Care Update – restrictive practices

By Alison Choy Flannigan

The Aged Care and Other Legislation Amendment (Royal Commission Response No. 1) Act 2021 (the Act) is the first legislative amendment to implement recommendations by the Royal Commission into Aged Care Quality and Safety (Royal Commission), including measures to strengthen legislation on the use of restrictive practices. The legislation amends the Quality of Care Principles 2014 and User Rights Principles 2014.

Restrictive practices

From 1 July 2021, approved providers must comply with the new requirements for using restrictive practices.

Further, from 1 September 2021, approved providers will also be required to create behavioural support plans to inform the use of restrictive practices.^[1]

The amendments apply to residential care and flexible care in the form of short-term restorative care provided in a residential care setting.

Key definitions

Under the Act, the term ‘restrictive practices’ in the Aged Care Act will align with the definition applied to the disability sector under the National Disability Insurance Scheme.

‘Restrictive practice’ is defined as ‘any practice or intervention that has the effect of restricting the rights or freedom of movement of the care recipient’, and includes five categories^[2]:

• chemical – a practice or intervention that is, or that involves, the use of medication or a chemical substance for the primary purpose of influencing a care recipient’s behaviour, but does not include the use of medication prescribed for: (a) the treatment of, or to enable treatment of, the care recipient for: (i) a diagnosed mental disorder; or (ii) a physical illness; or (iii) a physical condition; or (b) end of life care for the care recipient.
• environmental – a practice or intervention that restricts, or that involves restricting, a care recipient’s free access to all parts of the care recipient’s environment (including items and activities) for the primary purpose of influencing the care recipient’s behaviour.
• mechanical – a practice or intervention that is, or that involves, the use of a device to prevent, restrict or subdue a care recipient’s movement for the primary purpose of influencing the care recipient’s behaviour, but does not include the use of a device for therapeutic or non-behavioural purposes in relation to the care recipient.
• physical – (a) is or involves the use of physical force to prevent, restrict or subdue movement of a care recipient’s body, or part of a care recipient’s body, for the primary purpose of influencing the care recipient’s behaviour; but (b) does not include the use of a hands-on technique in a reflexive way to guide or redirect the care recipient away from potential harm or injury if it is consistent with what could reasonably be considered to be the exercise of care towards the care recipient.
• seclusion – is a practice or intervention that is, or that involves, the solitary confinement of a care recipient in a room or a physical space at any hour of the day or night where: (a) voluntary exit is prevented or not facilitated; or (b) it is implied that voluntary exit is not permitted; for the primary purpose of influencing the care recipient’s behaviour.

The amendments replace the concept of ‘restraint’ previously included in the Quality of Care Principles.

Further, the Act introduces a new definition of ‘restrictive practices substitute decision-maker’, which is ‘a person or body that, under the law of the State or Territory of the care recipient, can give informed consent to the use of a restrictive practice or the prescribing of medication for chemical restraint’.

Use of restrictive practices

The Act also requires the Quality of Care Principles to provide legislative detail on the requirements that approved providers must comply with prior to, during and after the use of restrictive practices.

Overall, approved providers will only be able to consider the use of restrictive practices:

• as a last resort to prevent harm after best-practice alternative strategies have already been used and documented;
• after consideration of its likely impact on the care recipient;
• to the extent necessary and proportionate to the risk of harm;
• where the restrictive practice is used in its least restrictive form and for the shortest time;
• if informed consent has been given by either the care recipient or a restrictive practices substitute decision-maker;
• in accordance with the Aged Care Quality Standards and the Charter of Aged Care Rights; and
• if the care recipient is monitored while the restrictive practice is being used and its effectiveness is documented.^[3]

However, these requirements do not apply to the use of a restrictive practice in relation to a care recipient if the use of the restrictive practice is necessary in an emergency and only while the emergency exists.^[4]

Chemical restrains

There are additional requirements for specific forms of restrictive practices.

For chemical restrains, an aged care provider must be satisfied that:

• a medical practitioner or nurse has assessed the care recipient as posing a risk of harm to the care recipient or any other person, the use of the chemical restraint as necessary, and the prescribed medication for the purpose of using the chemical restraint;
• the assessment and the practitioner’s decision to use the chemical restraint, among other matters, has been documented in the care recipient’s care and services plan; and
• the care recipient or a restrictive practices substitute decision-maker has provided informed consent.^[5]

However, the care and services plan documentation and consent requirements do not apply to the use of a restrictive practice if the use of the restrictive practice is necessary in an emergency and while the emergency exists.^[6]

Other responsibilities

Lastly, approved providers have responsibilities while restrictive practices are being used:

• to monitor for signs of distress or harm; side effects and adverse events; changes in mood or behaviour; changes in wellbeing; changes in ability to remain independent and changes in ability to engage in activities of daily living;
• to regularly monitor, review and document the necessity for the use of the restrictive practice;
• to monitor the effectiveness of the restrictive practice, and the effect of changes;
• to the extent possible, make changes to the care recipient’s environment to reduce the restrictive practice; and
• for chemical restraints, provide information to the prescribing medical practitioner or nurse practitioner.^[7]

Following an emergency use of a restrictive practice, approved providers must as soon as practical:

• inform the restrictive practices substitute decision-maker if the care recipient lacked capacity;
• ensure that certain matters are documented, including whether alternative strategies were considered before the use of the restrictive practice and the reasons why the restrictive practice was necessary; and
• ensure that the approved health practitioner’s assessment of the care recipient for the restrictive practice is documented in the care and services plan for the care recipient.^[8]

Behavioural support plans

From 1 September 2021, approved providers will also be required to create behavioural support plans to inform the use of restrictive practices.

If a restrictive practice is assessed as necessary, approved providers must set out matters including the following in the care recipient’s behavioural support plan:

• information about the care recipients behaviour;
• assessment of the care recipient;
• the behaviours of concern;
• how the restrictive practice is to be used, including its duration, frequency, adverse consequences, related incidents, triggers and intended outcome;
• alternative strategies;
• how the restrictive practice will be monitored and reviewed; and
• a description of the approved provider’s consultation about the restrictive practice with the care recipient or their substitute decision-maker.^[9]

Further, approved providers have an ongoing obligation to update behavioural support plans each time a restrictive practice is used, to review the plan on a regular basis and as soon as practicable after any change in the care recipient’s circumstances.^[10]

How will these requirements be enforced?

Under the Act, the Aged Care Quality and Safety Commissioner (Commissioner) can issue a written compliance notice if an approved provider has failed to comply with the restrictive practice requirements.^[11]

Additionally, the Commissioner can apply for a civil penalty order if the approved provider fails to comply with the written notice. The maximum penalty is 60 penalty units or $13,320 per occurrence.^[12]

Any use of restrictive practices that does not comply with the strengthened requirements must also be reported under the Serious Incident Response Scheme (SIRS).

Approved providers should be well advanced in implementing the changes. One of the difficulties is ascertaining who can consent to restrictive practices. Please refer to our previous article: ‘Who can consent to restrictive practices? MS [2020] WSAT 146’.

This article was written with the assistance of Lauren Krejci, Paralegal.

[1] Aged Care Legislation Amendment (Royal Commission Response No 1) Principles 2021 (‘the Principles’).
[2] Ibid s 15E.
[3] Ibid s 15FA(1).
[4] Ibid s 15FA(2).
[5] Ibid s 15FC.
[6] Ibid s 15FC(2).
[7] Ibid s 15GA.
[8] Ibid s 15GB.
[9] Ibid s 15HC.
[10] Ibid s 15HD.
[11] Aged Care and Other Legislation Amendment (Royal Commission Response No. 1) Act 2021 cl 9.
[12] Aged Care Quality and Safety Commission Act 2018 (Cth) s 74EE.