Proposal 11–7 The Aged Care Act 1997 (Cth) should regulate the use of restrictive practices in residential aged care. The Act should provide that restrictive practices only be used:
(a) when necessary to prevent physical harm;
(b) to the extent necessary to prevent the harm;
(c) with the approval of an independent decision maker, such as a senior clinician, with statutory authority to make this decision; and
(d) as prescribed in a person’s behaviour management plan.
11.233 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 proposes that the use of these practices in residential aged care facilities be regulated in the Aged Care Act. If regulated, restrictive practices may be used less often and only when appropriate. This will reduce one type of elder abuse and serve to protect older people’s legal and human rights.
11.234 The key elements of regulation set out in the proposal 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.
What are restrictive practices?
11.235 Restrictive practice has 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’.
11.236 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’.
11.237 Although not commonly included in discussions of elder abuse, the use of restrictive practices can amount to abuse. 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’.
11.238 In practice, restrictive practices are most often used on people with an intellectual disability or cognitive impairment 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.
11.239 However, some question whether restrictive practices are ever truly necessary, often stressing the importance of instead using ‘Positive Behaviour Support’. 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’. PWDA also said these practices should be stopped, and that there should instead be a focus on the ‘environmental or service factors’ that cause problematic behaviour. Others submitted that, although they should be a last resort, restrictive practices are sometimes necessary ‘to protect other care recipients and staff’.
11.240 The proposal in this section is not intended to imply that restrictive practices are sometimes necessary, much less condone their use. Rather, it is intended to limit and carefully regulate the use of restrictive practices. If it is never necessary to use these practices, the proposed law would serve to prohibit the use of restrictive practices.
Regulating restrictive practices in aged care
11.241 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.
11.242 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 into elder abuse.
11.243 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 proposes that the Aged Care Act be amended to regulate the use of restrictive practices in residential care facilities. The scheme in the Disability Act 2006 (Vic) pt 7 may be a suitable model. Some of the key elements of the Victorian law are contained in the above proposal, including the requirement that the restraint only be used when necessary to prevent harm.
11.244 That restrictive practices should only be used when necessary was stressed in many submissions to this Inquiry. For example, the Australian College of Nursing 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.
11.245 Similarly, the Office of the Public Advocate (Qld) argued that the legal framework should ensure that restrictive practices should 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’.
11.246 Staff shortages or convenience should not justify the use of a restrictive practice. If only used when strictly necessary, restrictive practices are more likely to be a proportionate and justified limitation on the rights of people who are restrained.
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 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 current 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).
Older Women’s Network, Submission 136.
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.
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.
Australian College of Nursing, Submission 147.
National Seniors Australia, Submission 154.
Office of the Public Advocate (Qld), Submission 149.