Restrictive practices – proposed legislative changes to the use of restraint – scheduled to commence 1 July 2021

04 June 2021

The Aged Care and Other Legislation Amendment (Royal Commission Response No. 1) Bill 2021(Bill) was introduced to Parliament on 27 May 2021.

This Bill appears to be the first of many changes in relation to the use of restraint, now restrictive practices in residential aged care.

This Bill proposes changes to Aged Care Act 1997 (Cth) that includes changes being made to the Quality of Care Principles 2014, specifically to the requirements approved providers must meet in relation to the use of restrictive practices.

Whilst we acknowledge that the Bill has not yet been passed by both houses, providers should note the very short implementation timeframe with these changes, if passed coming into effect on 1 July 2021.

A review and possible changes to the use of restraint were foreshadowed with the 2019 amendments to the Quality of Care Principles 2014 which expressly required an independent review of the effectiveness of the Restraint Principles in minimising the use of restraint in residential aged care in their first year of operation.

The Aged Care and Other Legislation Amendment (Royal Commission Response No.1) Bill 2021 (Bill) foreshadows the shift in language from the ‘use of restraint’ to ‘restrictive practice’ that has traditionally been associated with disability services.

With restrictive practice being defined under the Bill as:

A restrictive practice in relation to a care recipient is any practice or intervention that has the effect of restricting the rights or freedom of movement of the care recipient.

If we use the Independent review of legislative provisions governing the use of restraint in residential aged care and the Final Submission of Counsel Assisting the Royal Commission into Aged Care Quality and Safety as a guide, the proposed changes have been made in response to the Royal Commission’s findings and recommendations regarding the use of restraint in aged care, and may be reasonably expected to include:

  • changes to the definitions of restraint to bring terms and definitions more in line with those used under the NDIS Act;
  • an increased focus on documentation, written information about restrictive practices, their use, monitoring and review, possibly even the introduction of behaviour support plan type documentation used in disability services;
  • an increased focus on capturing the reasons medications may be prescribed, is it for medical treatment or chemical restraint;
  • an increased focus on the obligations of providers to obtain and to document obtaining informed consent from an appointed decision maker; and
  • an increased focus on the responsibility of providers to ensure that if an appointed decision maker provides consent they have the legal authority under the relevant State and Territory legislation to consent to the use of a restrictive practice.

What can you do to prepare?

Whilst we appreciate that the Bill has not yet been passed by both houses and the detail regarding specific changes to the Quality of Care Principles 2014 is not yet available we recommend that providers consider:

  • how your services would fare in relation to current requirements regarding documentation and the use of restraint;
  • how do you obtain consent and from who? Seek advice if you are unsure of the relevant State and Territory provisions regarding appointed decision makers and consent to use restraint;
  • are your processes clear for staff, could they be made clearer; and
  • how familiar are staff with the obligations to obtain consent and the documentation requirements in relation to use of restraint? Have you checked?

How we can assist you

We will continue to monitor the introduction of Bills and will provide updates via our Aged Care, Retirement Living & Disability Services Legal and Industry Updates.

Our team is experienced in assisting providers of aged care and disability support services.

Please do not hesitate to contact Sabine or Tamie if we can assist your organisation with preparing new policies, reviewing existing policies and preparing resources for staff to ensure your organisation has the tools and capacity to comply with your obligations.

This article was written by Sabine Phillips, Partner and Tamie Duncan-Bible, Senior Associate. 

Subscribe to HWL Ebsworth Publications and Events

HWL Ebsworth regularly publishes articles and newsletters to keep our clients up to date on the latest legal developments and what this means for your business.

To receive these updates via email, please complete the subscription form and indicate which areas of law you would like to receive information on.

Contact us