In December 2022, the Federal Government introduced some new interim laws that may affect how aged care providers manage situations where a person must consent to a restrictive practice on behalf of an aged care recipient. Here’s what you need to know.

Background: Consent and Restrictive Practices in Aged Care

In the aged care context, informed consent must be provided before a restrictive practice is used, except where the use of the restrictive practice is necessary in an emergency*. Informed consent may be given by the care recipient themselves or, if they lack capacity to consent, by an appointed Restrictive Practices Substitute Decision-Maker (RPSDM).

*In emergencies, the restrictive practice can only be used for as long as the emergency exists. Once the emergency is over, consent must be sought to use a restrictive practice.

Gaps in the Law

What should an aged care provider do if the care recipient has not appointed a RPSDM? Until recently, the law simply said that in such cases the provider should follow the appropriate state/territory guardianship laws. However, in 2022, the Federal Government realised that some of these guardianship laws were confusing and inconsistent and that in some states/territories a gap existed where there were no laws at all.

To fill the gap and fix inconsistencies, the Federal Government introduced some interim laws that established a “Hierarchy of Consent” that providers can follow if they find that the rules for appointing a RPSDM are not adequately covered by state/territory laws. These laws commenced on 1 December 2022. They will cease (be “repealed”) on 1 December 2024.

What Do The New Rules Say?

If an individual or group has been appointed under a state/territory law as being able to give informed consent to the use of restrictive practices, then these arrangements will be recognised. However, if there is no such individual or body appointed, and there is either no clear mechanism for appointing them under law, or there would be a significant delay in making such an appointment, then the following hierarchy applies when deciding who may act as a substitute decision maker. To use the hierarchy, start with 1 and determine if this person is willing and able to be the RPSDM for the aged care recipient. If they are not, then ask person 2 and so on.

1. A restrictive practices nominee, being an individual nominated by the care recipient to give consent on their behalf.
2. A partner with whom the care recipient has a close and continuing relationship.
3. A relative or friend who provided care for the care recipient on an unpaid basis and has a personal interest in their welfare.
4. A relative or friend who has a personal interest in the welfare of the care recipient and has a close continuing relationship with them.
5. An individual who has been given medical treatment authority for the care recipient.

These individuals may only be appointed as substitute decision makers if they have agreed in writing and have capacity to do so.

Under the new rules, aged care providers are obliged to take reasonable steps to ensure that a care recipient is not subject to coercion or duress in making their decision about a restrictive practices nominee and that those nominees are not subjected to coercion or duress in agreeing or not agreeing to the role.

Why are the Rules Only Temporary?

The rules commenced on 1 December 2022 and will cease (be “repealed”) on 1 December 2024. This is because this issue is more appropriately dealt with under state/territory law rather than federal law. The intent is that over the next two years each state/territory will make their own laws to deal with the gap and the federal laws are in place merely to provide clarity until then.

More Information

• Aged Care Quality and Safety Commission – New consent arrangements for restrictive practices
• Aged Care Quality and Safety Commission - Aged Care Quality Bulletin #45 – September 2022
• Australian Government - Quality of Care Amendment (Restrictive Practices) Principles 2022