In the Department’s words, the legislation now:
- ‘makes it clear restraint must always be used as a last resort’;
- ‘refers to state and territory legislation which regulates the responsibility for prescribers to gain informed consent for chemical restraint’; and
- ‘requires a review of the first 12 months of the operation of the restraint regulations to ensure they are minimising the use of inappropriate restraint in aged care facilities’.
Click here to read Minimising Physical and Chemical Restraint in Residential Aged Care.
The principles regarding restraints in aged care last changed with effect from 1 July 2019.
So what has changed this time?
Minimising physical and chemical restraint in residential aged care: First attempt
With effect from 1 July 2019, the Quality of Care Principles made under the Aged Care Act 1997 were amended to minimise the use of restraints. These amendments were intended to put explicit obligations on residential aged care providers for the first time, in respect of the use of restraints. Prior to the amendments there were no such controls within the aged care legislation.
In summary, the 1 July changes were as follows.
Definitions
- For the purpose of the Quality of Care Principles (post 1 July), a restraint may be classified as physical or chemical. A chemical restraint is a ‘restraint that is, or that involves, the use of medication or a chemical substance for the purpose of influencing a person’s behaviour …’, whereas a physical restraint is a restraint other than a chemical restraint.
- Excluded from both definitions is ‘medication prescribed for the treatment of, or to enable treatment of, a diagnosed mental disorder, a physical illness or a physical condition’. This means a pharmacological agent might be regarded as a chemical restraint in some scenarios, yet not be considered a ‘chemical restraint’ if used to treat a diagnosed mental disorder.
The decision to restrain
- When considering physical restraints, alternatives to restraint were to be used ‘to the extent possible’. Any physical restraint was required to be the ‘least restrictive form of restraint possible’.
- A chemical restraint, on the other hand, was not be used unless assessed and prescribed by a medical or nurse practitioner. Interestingly, there was no express requirement to consider alternatives, nor an express requirement to use the least restrictive form of restraint.
- A decision to restrain was required to be documented, with specific requirements depending upon whether a physical or chemical restraint was used.
Consent
- People receiving aged care often have representatives making decisions on their behalf. This can make challenging decisions (such as decisions to restrain) all the more difficult.
- The Quality of Care Principles attempted to provide some structure:
- For physical restraint, informed consent was required except in an emergency.
- Before using a chemical restraint, a representative was to be informed if ‘practicable’ to do so.
- A representative is to be informed as soon as practicable, if a physical or chemical restraint is used without the necessary consent being obtained, or representative being informed prior.
Monitoring and duration of use
- Physical restraints were to be used only for the ‘minimum time necessary’, with the restrained person’s condition, and the necessity of the restraint, being regularly monitored.
- When using a chemical restraint, the restrained person was also to be regularly monitored, though there was no express requirement in the User Rights Principles to limit the duration of a chemical restraint, nor to regularly monitor necessity in the same way as for a physical restraint.
Reviewing Restraints Principles 2019
Expert witnesses before the Royal Commission into Aged Care Quality expressed a lack of confidence that the Post-1 July Principles would reduce the use of psychotropic medications. Against this backdrop, on 29 July 2019, the Parliamentary Joint Committee on Human Rights resolved to conduct an inquiry into the Principles, examining the instrument’s compatibility with human rights. A report was delivered on 13 November 2019.
Later in November, the Quality of Care Amendment (Reviewing Restraints Principles) Principles 2019 were made to amend the Quality of Care Principles.
These changes to the Quality of Care Principles are, in our view, not as significant as might have been expected. In summary:
- There are some changes to Part and section headings, to state that physical and chemical restraints are to be used ‘only as a last resort’. This is an interesting approach insofar as:
- two different forms of restraint are each being termed ‘the last resort’; and
- headings have changed, yet text in the body of corresponding provisions remains unchanged:
- The former heading to Part 4A (“minimising the use of physical and chemical restraint”) is replaced with the heading “Physical or chemical restraint to be used only as a last resort”.
- The former heading to section 15F (“Use of physical restraint”) is replaced with “Physical restraint to be used only as a last resort”.
- The former heading to section 15G (“Use of chemical restraint”) is replaced with “Chemical restraint to be used only as a last resort.”
As a matter of interpretation, this change to headings alone is unlikely to carry a large degree of practical signifiance.
- Two new notes are added:
“Note 1: Codes of appropriate professional practice for medical practitioners and nurse practitioners provide for the practitioners to obtain informed consent before prescribing medications. Those codes are approved under the Health Practitioner Regulation National Law and are:
(a) for medical practitioners—Good medical practice: a code of conduct for doctors in Australia (which in 2019 could be viewed on the website of the Medical Board of Australia (https://www.medicalboard.gov.au)); and
(b) for nurse practitioners—Code of conduct for nurses (which in 2019 could be viewed on the website of the Nursing and Midwifery Board of Australia).
Note 2: State and Territory legislation deals with who can consent to the prescribing of medication for a consumer who cannot consent because of any physical or mental incapacity.”
These notes reference external codes of conduct and legislation. They do not change the Quality of Care Principles.
- New section 15H of the User Rights Principles introduces a review – to be overseen by the Minister – on ‘the use of physical restraints and chemical restraints by approved providers in relation to consumers in the period 1 July 2019 to 30 June 2020’. The review must make provision for consultation. It must be completed by 31 December 2020. And the Minister must ensure that a written report of the review is prepared.
Analysis
Some headings have changed. Two new notes have been added to the Quality of Care Principles. And a review will take place for the 12 months from 1 July 2019 to 30 June 2020.
The Quality of Care Principles may have been somewhat strengthened compared to their post-1 July 2019 iteration; but this does not appear to be a significant change to the regulation of restraints in residential aged care.
A criticism of the post-1 July Principles was that they did not purport to regulate the behaviour of prescribing medical practitioners; and they inadequately dealt with difficult issues of consent. The Reviewing Restraints Principles do not attempt to counter either of these things by changing the regulatory framework per se. They do, however, aim to better clarify that existing prescribing considerations and consent principles found outside of the aged care legislation continue to apply (and are in no way overridden). So, Notes 1 and 2 inserted by the Reviewing Restraints Principles merely reiterate existing principles that:
- Medical practitioners and nurse practitioners who prescribe medications must obtain informed consent prior. (Chemical restraints are merely one group of medications to which this general principle applies.)
- State and Territory legislation affects who can and cannot give informed consent to the prescribing of medication.
It will be interesting to follow the 1 July 2019 to 30 June 2020 review, given it will occur alongside the ongoing Royal Commission – an inquiry that is already looking in detail at all aspects of the aged care system, and has foreshadowed ‘a fundamental overhaul of the design, objectives, regulation and funding of aged care in Australia’.
In the meantime, although prescribing practitioners carry the responsibility to obtain consent for chemical restraint (as indeed, they did prior to the Reviewing Restraints Principles), an integral part of an aged care provider’s clinical governance framework will be to ensure that prescribing practitioners are actually obtaining the necessary informed consent, in accordance with State and Territory laws.
Please contact Gemma McGrath or David McMullen to find out more about legal issues relating to the use of restraints, or aged care more generally.
