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New Aged Care Restrictive Practices Requirements: Even More Complicated Than You Thought

Complex new restrictive practices requirements for residential aged care homes commenced 1 July 2021. Here’s what you need to know.

 

New restrictive practices requirements for residential aged care homes commenced 1 July 2021.

In a previous article we provided a high-level summary of these changes. One of our readers pointed out that this article was so high-level it may have over-simplified the issue and risked causing confusion. We agree.

The recent changes to restrictive practices requirements are complex. We’ll do our best to explain the key points in more detail here, but if you have any confusion you should refer to the further resources as the end of this article and, if necessary, seek legal advice.

 

Overview of the new requirements

The new requirements were introduced under the Aged Care and Other Legislative Amendment (Royal Commission Response No.1) Act 2021 (Cth), which commenced 1 July 2021. The Act updated the Aged Care Act 1997 to:

  • introduce an overarching definition of “restrictive practices” that is consistent with the definition used under the National Disability Insurance Scheme (NDIS).

The Act also updated the Quality of Care Principles 2014 to:

  • establish and define five categories of restrictive practice: chemical restraint, environmental restraint, mechanical restraint, physical restraint and seclusion
  • establish an expanded new set of rules that a provider must follow before, during and after using a restrictive practice.

Notably, under these new categories, what was previously considered “physical restraint” (bed rails, seat belts on chairs etc) is now considered “mechanical restraint”. The new definition of physical restraint is limited to the use of hands-on physical force.

Finally, from 1 September 2021, providers will be required to have a Behaviour Support Plan in place for every consumer who has restrictive practices used or applied as part of their care. We will deal with this requirement in a later article and today focus on the requirements that commenced 1 July 2021.

 

New definitions

This is now the official definition of “restrictive practice” in the Aged Care Act:

 

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.

 

The Quality of Care Principles expand on this definition to say that “each of the following is a restrictive practice in relation to a care recipient”:

  • chemical restraint
  • environmental restraint
  • mechanical restraint
  • physical restraint

 

Chemical restraint is defined as a practice or intervention that is, or that involves, the use of medication or a chemical substance for the primary purpose of influencing a care recipient’s behaviour, but does not include the use of medication prescribed for:

a) the treatment of, or to enable treatment of, the care recipient for:
     i. a diagnosed mental disorder; or
     ii. a physical illness; or
     iii. a physical condition; or
b) end of life care for the care recipient.

 

Environmental restraint is a practice or intervention that restricts, or that involves restricting, a care recipient’s free access to all parts of the care recipient’s environment (including items and activities) for the primary purpose of influencing the care recipient’s behaviour.

 

Mechanical restraint is a practice or intervention that is, or that involves, the use of a device to prevent, restrict or subdue a care recipient’s movement for the primary purpose of influencing the care recipient’s behaviour, but does not include the use of a device for therapeutic or non-behavioural purposes in relation to the care recipient.

 

Physical restraint is as a practice or intervention that:

a) is or involves the use of physical force to prevent, restrict or subdue movement of a care recipient’s body, or part of a care recipient’s body, for the primary purpose of influencing the care recipient’s behaviour; but

b) does not include the use of a hands-on technique in a reflexive way to guide or redirect the care recipient away from potential harm or injury if it is consistent with what could reasonably be considered to be the exercise of care towards the care recipient.

 

Seclusion is a practice or intervention that is, or that involves, the solitary confinement of a care recipient in a room or a physical space at any hour of the day or night where:

a) voluntary exit is prevented or not facilitated; or
b) it is implied that voluntary exit is not permitted;

for the primary purpose of influencing the care recipient’s behaviour.

 

To support the understanding of these definitions the ACQSC have provided resources including:

 

New requirements a provider must follow when using any restrictive practice

This is only a short summary of the new requirements set out in Part 4A of the Quality of Care Principles. For the full details, consult the Quality of Care Principles. As indicated, some requirements do not apply if the use of the restrictive practice is necessary in an emergency.

ACE Table (002)-PNG-1

New definitions regarding consent

Under the new requirements, providers must seek consent from the care recipient before using a restrictive practice (unless the restrictive practice is necessary in an emergency). Where the care recipient lacks capacity to consent, the provider must seek consent from the “Restrictive Practices Substitute Decision-Maker”.

 

Restrictive Practices Substitute Decision-Maker is defined as a person or body that, under the law of the State or Territory in which the care recipient is provided with aged care, can give informed consent to:

a) the use of the restrictive practice in relation to the care recipient; and
b) if the restrictive practice is chemical restraint—the prescribing of medication for the purpose of using the chemical restraint;

if the care recipient lacks the capacity to give that consent.

In its recent Regulatory Bulletin, the Aged Care Quality and Safety Commission advised that the “Restrictive Practices Substitute Decision-Maker” could be “a nominated family member identified in the Care and Services Plan, or a body such as a State or Territory Public Guardian.”

 

Enforcing the new requirements

The new laws will give the Aged Care Quality and Safety Commission the power to enforce the new requirements regarding restrictive practices, including the power to issue a Restrictive Practices Compliance Notice where a provider may not be complying with its responsibilities.

 

Other regulations and standards affected by the new requirements

Mandatory Quality Indicator Program

Under the Mandatory Quality Indicator (QI) Program, providers must collect data on five key issues and report that data to the Department of Health every three months. One of these key issues is “physical restraint”.

The Department of Health has recently updated its National Aged Care Mandatory Quality Indicator Program Manual – 2.0 – Part A to include this new, much broader, definition of physical restraint:

 

“For the purposes of the QI Program, physical restraint includes all forms of restrictive practice, excluding chemical restraint.” (Program Manual, p. 16).

 

This means that the QI for physical restraint now includes mechanical restraint, physical restraint (in the narrower sense), environmental restraint and seclusion as defined in the Quality of Care Principles (see above).

For more information on recent changes to the Mandatory QI Program, see our article New Aged Care Mandatory Quality Indicators Start 1 July 2021 – Part 2.

 

Serious Incident Response Scheme (SIRS)

The SIRS is a national framework for incident management and reporting of serious incidents in residential aged care. It requires providers to report any occurrence of eight specified “reportable incidents”. As part of the recent changes, one of those eight reportable incidents has been changed.

 

Old version: “use of physical restraint or chemical restraint in relation to the residential care recipient (other than in circumstances set out in the Quality of Care Principles).”

 

New version: “use of a restrictive practice in relation to the residential care recipient (other than in circumstances set out in the Quality of Care Principles).”

This means that, under the SIRS, providers must report any inappropriate use of any restrictive practice (not just inappropriate use of physical or chemical restraint). This includes any inappropriate use of chemical restraint, environmental restraint, mechanical restraint, physical restraint and seclusion.

 

For more information on the SIRS see our previous article, Serious Incident Response Scheme (SIRS): A Summary for Residential Aged Care Providers.

 

What to do now

  • Update relevant policies, procedures and training materials to include the new categories and definitions of “restrictive practices” and ensure staff are briefed on the changes.
  • Update relevant policies and procedures to cover the new requirements that a provider must follow when using a restrictive practice. Ensure staff are briefed on the new requirements.
  • Ensure staff are trained and competent in the new legislation and their role and responsibilities.
  • Review your organisation’s clinical governance framework, including reporting, to ensure it focuses on minimising the use of restrictive practices and monitoring the organisation’s practices in accordance with legislative requirements.
  • Update risk registers to reflect control strategies and management of restrictive practices.
  • Audit current use of restrictive practices to ensure all updated requirements are met, including informed consent, documentation and monitoring.
  • Prepare for further changes on 1 September 2021, including across behaviour support plans for every consumer who has a restrictive practice used or applied as part of their care.

 

Further Resources

 

Mark Bryan
ABOUT THE AUTHOR | Mark Bryan
Mark is a Legal Research Consultant at CompliSpace and the editor for ACE. Mark has worked as a Legal Policy Officer for the Commonwealth Attorney-General’s Department and the NSW Department of Justice. He also spent three years as lead editor for the private sessions narratives team at the Royal Commission into Institutional Responses to Child Sexual Abuse. Mark holds a bachelor’s degree in Arts/Law from the Australian National University with First Class Honours in Law, a Graduate Diploma in Writing from UTS and a Graduate Certificate in Film Directing from the Australian Film Television and Radio School.

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