Recommendation 4–10 Aged care legislation should regulate the use of restrictive practices in residential aged care. Any restrictive practice should be the least restrictive and used only:
(a) as a last resort, after alternative strategies have been considered, to prevent serious physical harm;
(b) to the extent necessary and proportionate to the risk of harm;
(c) with the approval of a person authorised by statute to make this decision;
(d) as prescribed by a person’s behaviour support plan; and
(e) when subject to regular review.
Recommendation 4–11 The Australian Government should consider further safeguards in relation to the use of restrictive practices in residential aged care, including:
(a) establishing an independent Senior Practitioner for aged care, to provide expert leadership on and oversight of the use of restrictive practices;
(b) requiring aged care providers to record and report the use of restrictive practices in residential aged care; and
(c) consistently regulating the use of restrictive practices in aged care and the National Disability Insurance Scheme.
4.183 The use of restrictive practices will, in some circumstances, be elder abuse. Restrictive practices can deprive people of their liberty and dignity—basic legal and human rights. The practices might also sometimes amount to assault, false imprisonment and other civil and criminal wrongs. The ALRC recommends that the use of these practices in residential aged care facilities be regulated in the Aged Care Act. This would mean that restrictive practices are used less frequently and only when appropriate, reducing one type of elder abuse and serving to protect older people’s legal and human rights.
4.184 The key elements of regulation set out in Recommendation 4–10 are intended to discourage the use of restrictive practices and set a clear and high standard, so that the practices are subject to proper safeguards and only used when strictly necessary.
4.185 The ALRC also recommends that the Australian Government consider a number of additional oversight measures for the use of restrictive practices, as well as the merits of consistently regulating the use of restrictive practices in aged care and the NDIS.
What are restrictive practices?
4.186 Restrictive practices have been defined as ‘any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with disability, with the primary purpose of protecting the person or others from harm’.
4.187 Common forms of restrictive practice include: detention (eg, locking a person in a room or ward indefinitely); seclusion (eg, locking a person in a room or ward for a limited period of time); physical restraint (eg, clasping a person’s hands or feet to stop them from moving); mechanical restraint (eg, tying a person to a chair or bed); and chemical restraint (eg, giving a person sedatives). The Australian and New Zealand Society for Geriatric Medicine submitted that restrictive practices are ‘still pervasive’ in residential aged care facilities, ‘particularly in relation to chemical sedation and inappropriate use of drugs’.
4.188 Concerns have been expressed about the use of restrictions as a ‘means of coercion, discipline, convenience or retaliation by staff or others providing support, when aged care facilities are understaffed’.
4.189 In practice, restrictive practices are most often used on people with an intellectual disability or cognitive impairment (including dementia) who exhibit ‘challenging behaviours’, such as striking themselves or other people or ‘wandering’. They are therefore intended to be used to protect the restrained person or others from harm.
4.190 However, some question whether restrictive practices are ever truly necessary. People with Disability Australia said these practices should be stopped, and that there should instead be a focus on the ‘environmental or service factors’ that cause problematic behaviour. Instead of using restraints, care workers and informal carers ‘need to be supported and given adequate time to provide responsive and flexible and individualized care’. Others submitted that, although they should be a last resort, restrictive practices are sometimes necessary ‘to protect other care recipients and staff’.
4.191 Recommendations 4–10 and 4–11 are not intended to imply that restrictive practices are sometimes necessary, much less condone their use. Rather, they are intended to limit and carefully regulate their use.
Regulating restrictive practices in aged care
4.192 A national framework exists for reducing and eliminating the use of restrictive practices in the disability service sector. In aged care, the use of restrictive practices is not explicitly regulated, although guidance has been provided.
4.193 In the Equality, Capacity and Disability Report, the ALRC discussed the use of restrictive practices in Australia, highlighted the ‘patchwork’ of federal, state and territory laws and policies governing restrictive practices, and set out stakeholder calls for reform. The Report recommended that Commonwealth, state and territory governments ‘develop a national approach to the regulation of restrictive practices’, including in the aged care sector. Calls for reform, including for nationally consistent legislated regulation, were repeated in submissions to this Inquiry.
4.194 That the use of restrictive practices may sometimes amount to elder abuse provides further support for the need for additional regulation. In this Inquiry, the ALRC recommends that aged care legislationregulate the use of restrictive practices in residential care facilities. The scheme in the Disability Act 2006 (Vic) pt 7 (Disability Act)may be a suitable model. Some of the key elements of the Victorian law are contained in Recommendation 4–10, including the requirement that the restraint only be used when necessary to prevent harm.
4.195 Submissions on this issue shared a view that the use of restrictive practices should be reduced or eliminated, but diverged about how this should be done. A number supported legislative regulation of restrictive practices. Those that opposed legislative regulation of restrictive practices argued either that restrictive practices should not be used, or that non-legislative means were a better approach to achieving a reduction or elimination of their use.
4.196 The recommendation adds some additional elements to regulate restrictive practices than made in the Discussion Paper—principally, to further emphasise that the use of restrictive practices should be a last resort and that their use should be subject to regular review. With respect to Recommendation 4–11 that the use of restrictive practices be approved by a person authorised by statute, the ALRC envisages a similar process to that in the Victorian legislation. The Disability Act 2006 (Vic)requires that disability services that use restrictive interventions appoint an ‘authorised program officer’, who must approve the inclusion of restrictive practices in a person’s behaviour support plan before they can be used on a person.
4.197 That restrictive practices should only be used when necessary was stressed in many submissions to this Inquiry. For example, the ACN urged that ‘restrictive practices in all circumstances must be practices of last resort’. National Seniors Australia also said they should only be used when necessary, and outlined some safeguards:
Restrictive practices should only be used following assessment by a qualified medical practitioner, preferably a psychogeriatrician, geriatrician or geropsychologist or after advice from a Dementia Behavioural Management Advisory Service or Older Persons Mental Health Service. Restrictive practices should also only be used after the consent of a guardian or representative has been obtained. Restrictive practices should only be used when all behavioural prevention strategies have been systematically attempted or considered.
4.198 Similarly, the Office of the Public Advocate (Qld) argued that the legal framework should ensure that restrictive practices are ‘only ever used in aged care environments as a last resort, that they are complemented by appropriate safeguards and that there is appropriate monitoring and oversight of their use’.
4.199 In addition to explicitly recommending that restrictive practices only be used as a last resort, the ALRC also recommends that they be used only to prevent serious physical harm, to further raise the threshold for justification for their use.
Regulating restrictive practices—additional considerations
4.200 A Senior Practitioner and required reporting on the use of restrictive practices are features of the regulation of restrictive practices in the disability sector, including in the planned Quality and Safeguarding Framework for the NDIS. The ALRC recommends that these additional oversight mechanisms should be considered as part of any regulation of such practices in aged care.
4.201 A Senior Practitioner role has resource implications. However, there is widespread concern—shared by providers and aged care consumer advocates—that restrictive practices, and especially chemical restraint, are inappropriately used in aged care. These additional measures may assist in providing leadership and expertise in reducing and eliminating the use of restraint.
4.202 The ALRC considers that a consistent approach to regulation of restrictive practices in aged care and disability services is desirable, both as a matter of principle and pragmatism. Similar human rights considerations apply across both sectors to decisions to interfere with a person’s rights and freedoms, and a consistent approach also provides the opportunity for aged care to adopt best practice approaches to regulation developed in other sectors.
4.203 The ALRC’s recommendations relating to restrictive practices are limited to residential aged care. However, people who would have previously moved into residential aged care will increasingly receive aged care at home. The use of chemical restraint in particular will be an emerging issue, and extension of the regulation or restrictive practices to home care settings should be considered in the longer term.
Australian Government, National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Service Sector (2014) 4.
Admitting a person to a residential care facility against their wishes or without their consent (perhaps when they do not have the legal capacity to consent) may also be considered a type of restrictive practice. In the UK, this is governed by ‘deprivation of liberty safeguards’, which have been the subject of criticism and a Law Commission inquiry: Law Commission (UK), Mental Capacity and Deprivation of Liberty <www.lawcom.gov.uk/project/mental-capacity-and-deprivation-of-liberty/>.
Australian and New Zealand Society for Geriatric Medicine, Submission 51. ‘Much of this practice is driven my lack of skills and knowledge as well as staffing numbers’: Ibid.
Older Women’s Network NSW, Submission 136 quoting Legislative Council General Purpose Standing Committee No 2, Parliament of New South Wales, Elder Abuse in New South Wales (2016).
They also suggested that government guidance on the use of restrictive practices may amount to ‘tacit approval of these practices’: People with Disability Australia, Submission 167. See also Disabled People’s Organisations Australia, Submission 360; FECCA, Submission 292.
Older Women’s Network, Submission 136. See also ARNLA, who submitted that restrictive practices in response to challenging behaviours are ‘indicative of environments that have not achieved a sense of wellbeing for the older person with dementia’: Australian Research Network on Law and Ageing, Submission 262.
National Seniors Australia, Submission 154.
Australian Government, National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Service Sector (2014).
The Department of Health submitted that it had ‘produced tool kits to assist staff and management working in both residential and community aged care settings to make informed decisions in relation to the use of restraints’: Department of Health, Submission 113.
Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Report No 124 (2014) ch 8. See also Senate Committee on Community Affairs, Parliament of Australia, Care and Management of Younger and Older Australians Living with Dementia and Behavioural and Psychiatric Symptoms of Dementia (2014) ch 6; Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012) ch 15.
Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Report No 124 (2014) rec 8–2.
See, eg, Office of the Public Guardian (Qld), Submission 173; Seniors Rights Victoria, Submission 171; Australian Nursing & Midwifery Federation, Submission 163; National LGBTI Health Alliance, Submission 156; Office of the Public Advocate (Qld), Submission 149; Leading Age Services Australia, Submission 104; Queensland Nurses’ Union, Submission 47.
See Michael Williams, John Chesterman and Richard Laufer, ‘Consent vs Scrutiny: Restrictive Liberties in Post-Bournewood Victoria’ (2014) 21 Journal of Law and Medicine 1. See also Office of the Public Advocate (Vic), Submission 95.
See, eg, Office of the Public Guardian (Qld), Submission 384; Australian College of Nursing, Submission 379; Victorian Multicultural Commission, Submission 364; National Older Persons Legal Services Network, Submission 363; Justice Connect Seniors Law, Submission 362; Office of the Public Advocate (Qld), Submission 361; Eastern Community Legal Centre, Submission 357; M Berry, Submission 355; COTA, Submission 354; Legal Aid NSW, Submission 352; Law Council of Australia, Submission 351; CPA Australia, Submission 338; Carroll & O’Dea, Submission 335; V Fraser and C Wild, Submission 327; Elder Care Watch, Submission 326; L Barratt, Submission 325; Institute of Legal Executives (Vic), Submission 320; Darwin Community Legal Service Aged and Disability Advocacy Service, Submission 316; Speech Pathology Australia, Submission 309; M Daly, Submission 308; Public Guardian (NSW), Submission 302; Seniors Rights Service, Submission 296; Aged Rights Advocacy Service Inc, Submission 285; Office of the Public Advocate (Vic), Submission 246; Lutheran Church of Australia, Submission 244; Brotherhood of St Laurence, Submission 232; Aged and Community Services Association, Submission 217.
See, eg, Disabled People’s Organisations Australia, Submission 360; FECCA, Submission 292.
See, eg, HammondCare, Submission 307. LASA highlighted work within the sector to reduce the use of sedation in aged care: Leading Age Services Australia, Submission 377.
The Office of the Public Advocate (Vic) pointed out that review was a key element of the regulation of restrictive practices in the Disability Act: Office of the Public Advocate (Vic), Submission 246. Other stakeholders supported regular review as a feature of any regulation: see, eg, Speech Pathology Australia, Submission 309; Australian Research Network on Law and Ageing, Submission 262; Aged and Community Services Association, Submission 217.
Disability Act 2006 (Vic) ss 139, 145.
Australian College of Nursing, Submission 147.
National Seniors Australia, Submission 154.
Office of the Public Advocate (Qld), Submission 149. See also, eg, Law Council of Australia, Submission 351; Speech Pathology Australia, Submission 309; Australian Research Network on Law and Ageing, Submission 262.
See Law Council of Australia, Submission 351; HammondCare, Submission 307. A failure to comply with the recommended requirements in relation to the use of restrictive practices would likely amount to a reportable ‘serious incident’ as discussed above.
Department of Social Services (Cth), NDIS Quality and Safeguarding Framework (2016) 71–72. See also Disability Act 2006 (Vic) s 148.
A number of stakeholders supported the establishment of a Senior Practitioner role in aged care: see, eg, Disabled People’s Organisations Australia, Submission 360; Mecwacare, Submission 289; Office of the Public Advocate (Vic), Submission 246.
See, eg, Office of the Public Guardian (Qld), Submission 384; Disabled People’s Organisations Australia, Submission 360; Australian Association of Gerontology (AAG) and the National Ageing Research Institute (NARI), Submission 291; Office of the Public Advocate (Vic), Submission 246. CPSA recommended mandatory reporting on the use of physical restraints: Combined Pensioners and Superannuants Association, Submission 281.