On 15 October 2024, the Victorian government introduced to Parliament the Aged Care Restrictive Practices Substitute Decision-maker Bill 2024 which will address consent for restrictive practices for residential aged care residents.
What is a restrictive practice?
Restrictive practices are defined in the Aged Care Act 1997 as ‘any practice or intervention that has the effect of restricting the rights or freedom of movement of the care recipient’. In practical terms, they include:
• Chemical restraint (such as sedatives);
• Environmental restraint;
• Mechanical restraint;
• Physical restraint; and
• Seclusion.
The need for legislation
The Bill is designed to fill a legislative gap for residential aged care providers, enabling them to seek informed consent from substitute decision makers who can authorize the use of restrictive practices where a resident lacks capacity.
The gap is presently filed by a temporary Commonwealth hierarchy to help identify or appoint a decision maker. Victoria’s existing legislation does not deal with restrictive practices, and neither attorneys, medical treatment decision makers nor guardians are empowered to make restrictive practice decisions. This is a significant problem for aged care residents who have lost decision-making capacity.
What are the risks of restrictive practices?
The use of restrictive practices was highlighted by traumatic and horrifying stories told before the Royal Commission into Aged Care Quality and Safety. The stories of 72 year-old Terry Reeves, who spent up to 14 hours a day in physical restraints, and 84 year-old Margaret Barton, who was given an ‘excessive’ dose of a chemical sedative causing her to fall and contributing to her death after just nine weeks in care, are forefront of mind.
The new regime
The new legislation will operate alongside existing substitute decision-maker regimes, including the Guardianship and Administration Act 2019, the Medical Treatment Planning and Decisions Act 2016 and the Powers of Attorney Act 2014.
Adults over the age of 18 who have decision-making capacity (as defined by the new legislation) can appoint another adult as their restrictive practices decision-maker (RPDM) (subject to some restrictions). There are strict guidelines as to the format and execution of an appointment of RPDM.
If the person has not appointed a RPDM, a hierarchy is imposed to allow next of kin to make restrictive practices decision, as follows:
1. Spouse or domestic partner;
2. Primary carer;
3. Oldest child, followed by other children in descending age order;
4. Older parent;
5. Younger parent; and finally
6. Oldest sibling, followed by other siblings in descending age order.
VCAT will also be empowered to appoint an RPDM upon application.
The new legislation will come into effect from 1 July 2025. However, it is of note that the existing Commonwealth regime will sunset at the end of 2024. What this means for Victorians in the interceding 6 months remains to be seen.
For more information, please contact our office on (03) 9646 4477.
