On 27 May 2021, the Minister for Health and Aged Care, Greg Hunt, introduced the Aged Care and Other Legislation Amendment (Royal Commission Response No. 1) Bill 2021 (the Bill) into the House of Representatives. The Bill was referred to the Community Affairs Legislation Committee, which tabled its report on 11 June 2021. The Committee recommended that the Bill be passed.
The Bill responds to the Royal Commission into Aged Care Quality and Safety (Aged Care Royal Commission) Final Report and the Independent review of legislative provisions governing the use of restraint in residential aged care (Independent Review), and amends the Aged Care Act 1997 (the Act) and the Aged Care Quality and Safety Commission Act 2018 (ACQSC Act) to:
- strengthen legislation on the use of restraints in aged care
- enhance the Secretary’s power to conduct and respond to home care reviews
- facilitate the abolition of the Aged Care Financing Authority (the Explanatory Memorandum to the Bill notes the intention that a new advisory body will be established to advise the Government on aged care financing issues—presumably this new body will be non-statutory (p. 20)).
The amendments are scheduled to commence from 1 July 2021.
This FlagPost provides a brief overview of existing restraints regulation in aged care, recommendations from recent reports, and the amendments proposed by the Bill.
The legislative requirement to minimise the use of physical and chemical restraints in aged care came into effect on 1 July 2019 through an amendment to the Quality of Care Principles 2014 (the Principles) which introduced a new Part 4A—Minimising the use of physical and chemical restraint. The Principles were further amended in November 2019, to clarify the need for informed consent for chemical restraints and introduce a requirement for a review of new Part 4A by 31 December 2020. Further amendments were introduced with the Serious Incident Response Scheme (SIRS) in April 2021. (For more information see the Parliamentary Library’s Bills Digest on the legislation that introduced the SIRS).
Under the existing requirements, the Principles provide definitions for physical and chemical restraints and the regulation of their use (Part 4A), including:
- restraints are only to be used as a last resort and, for physical restraints, the minimum time necessary
- require an approved provider to be satisfied with a number of conditions before their use
- obtain informed consent before the use of physical restraints unless the restraint is considered necessary in an emergency
- require the prescriber of chemical restraints to obtain informed consent before prescribing
- ensure documentation is in accordance with the requirements set out in the Aged Care Quality Standards
- while the person is subject to restraints, they must be monitored for signs of distress or harm and
- in the case of chemical restraints, the information must be provided to the health practitioner who authorised use of the restraint
- the necessity of physical restraints must be regularly reviewed.
In addition, a review of the effectiveness of Part 4A in minimising the use of restraints by approved providers between 1 July 2019 to 30 June 2020 was required to be completed by 31 December 2020. The Independent Review was released with the Aged Care Royal Commission’s Final Report in March 2021.
Under the Act, other than in the circumstances set out in the Principles, the use of physical and chemical restraints in residential aged care recipients is a reportable incident (paragraph 54-3(2)(g)).
The Principles currently provide that Part 4A will be repealed on 1 July 2021.
Aged Care Royal Commission and the Independent Review
The Independent Review found that:
It is not possible to draw definitive conclusions about the effectiveness of the Restraints Principles at this time …
Broadly, providers and other stakeholder groups in direct contact with aged care homes reported that the Restraints Principles have either led to a reduction in the use of restraint (physical, chemical or both), or supported an existing trend towards reduced use. (p. 2).
In its Final Report, the Aged Care Royal Commission stated ‘the overuse of restrictive practices in aged care is a major quality and safety issue. Urgent reforms remain necessary to protect older people from unnecessary and potentially harmful restraint’ (Vol. 3A, p. 108). The Commissioners made the five-part Recommendation 17: Regulation of restraints, which includes:
- delaying the repeal of Part 4A of the Principles until 31 December 2021
- amending the Principles by 1 January 2022 to:
- introduce a requirement for an independent expert assessment prior to the use of restrictive practice, with necessary flexibility in an emergency
- require the use of restraints to be subject to ongoing monitoring and review, which would be stipulated in a behaviour support plan
- require documented informed consent to be obtained
- require the documenting of the purpose of the prescription for the use of chemical restraint (Vol. 3A, p. 109–10).
In the Final Report there is some shift away from ‘restraints’, as an all-encompassing term, replacing it with ‘restrictive practices’. The report states that the term ‘restrictive practices’ is used to refer to ‘activities or interventions that have the effect of restricting a person’s free movement or ability to make decisions’ and impacting ‘the liberty and dignity of people receiving aged care.’ (Vol. 3A, p. 110). In comments on the regulation of restraints, the Commissioners state that ‘regulation alone will not reduce or eliminate restrictive practices. The broader systemic changes we are proposing by our recommendations must be implemented to improve safety and quality across the system.’ (Vol. 3A, p. 111).
The Principles currently provide details on the use of physical and chemical restraints in aged care. Specific requirements for the regulation of restraints within the Principles are not identified in the Act. Item 3 of the Bill adds proposed sections 54-9 and 54-10 in the Act under Part 4.1–Quality of care, providing a definition of restrictive practice and setting out matters that must be included in the Principles. Proposed section 54-10 is a new requirement within the Act and includes eight specific matters that will need to be incorporated into the amended Principles, including the need for informed consent to be given for the use of restrictive practice, with some variation permitted in an emergency (proposed paragraph 54-10(1)(f) and subsection 54-10(2)).
Proposed subsection 54-9(1) states ‘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’. This mirrors the definition of restrictive practice in section 9 of the National Disability Insurance Scheme Act 2013 (NDIS Act). This language is a shift for restraint regulation in aged care and whilst the definition of restrictive practice is consistent with the National Disability Insurance Scheme (NDIS), other regulatory elements for restrictive practice would continue to differ between the two schemes. The Aged Care Royal Commission recommended adoption of an approach aligning with the NDIS (Restrictive Practices and Behaviour Support) Rules 2018, which include a requirement that restrictive practice is only used in line with the behaviour support plan developed by a behaviour support practitioner (Vol. 3A, p. 114). In contrast, the Explanatory Memorandum to the Bill notes the Principles ‘will also clarify that from 1 September 2021, approved providers will be required to create behaviour support plans to inform the use of restrictive practices …’ (p. 10. Emphasis added).
Item 9 adds proposed subsection 74EE(1A) in the ACQSC Act to expand the ACQSC’s ability to issue a compliance notice in circumstances relating to the use of restrictive practices, including if the Commissioner is aware of information suggesting the provider may not be complying with their responsibility.
On 4 June 2021 the Department of Health released an exposure draft of the Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021, in preparation for the legislative changes proposed to commence on 1 July 2021.
A consistent approach
As noted by the Aged Care Royal Commission, there are opportunities for improved consistency with restrictive practices in Australia but there are existing elements of the regulation of restrictive practices in the NDIS that may not be appropriate for aged care (Vol. 3A, p. 112). In addition, the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission) has recently released an issues paper on restrictive practices that seeks feedback on this topic, including the effectiveness of the current approaches and whether the practices are used in different ways for different groups of people. The Disability Royal Commission has also released a report on psychotropic medication, behaviour support and behaviours of concern that highlights its concerns regarding the over-prescribing of psychotropic medication to people with cognitive disability ‘to deal with so called ‘behaviours of concern’, and in too many cases, as a form of chemical restraint.’ As part of recommendation 17, the Aged Care Royal Commission recommended that following the conclusion of the Disability Royal Commission, consideration should be given to the applicability of any of its findings to the aged care setting for a more consistent approach across the sectors (Vol. 3A, p. 110).