New Aged Care Laws on Physical and Chemical restraints are Inadequate.

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In our submission to the Aged Care Royal Commission, we have analysed new Federal government laws on physical and chemical restraints.  In our opinion:

  1. The laws may exceed the Federal government’s power to
    make law in relation to nursing homes.
  2. The new laws set nursing home accreditation standards
    which could be based on actions which breach State or Territory laws.
  3. There must be uniform State and Territory laws which
    regulate use of physical and chemical restraints because they have the power to make laws in this area.

What is the new law?

The Federal Government has introduced a new law dealing with use of physical and chemical restraints in Aged Care Facilities/Nursing Homes.  It is called the Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019 (we call it the ‘New Restraint Law’).

The New Restraint law amends the Quality of Care Principles, which are used to assess an aged care provider’s eligibility for accreditation.  If the facility is accredited, they will receive government subsidies.

What does it say about physical restraints?

The New Restraint Law states that a physical restraint is something that restricts freedom of movement by physical means.  A physical restraint is not permitted unless:

    • There is a risk of harm to the resident or another
      which requires physical restraint to be used;
    • Alternatives to the restraint have been tried;
    • The restraint is the least restrictive restraint in the circumstances; and
    • Informed consent from the resident or their representative
      is obtained.

Restraint in emergencies is permitted. If restraint is used, it must be for the minimum time necessary to respond to the risk of harm. There are strict documentation requirements if physical restraint is used.

What does it say about chemical restraints?

The New Restraint Law states that a chemical restraint is a medication used to influence behaviour, but is not a medication used to treat a mental illness or medical condition. So, a benzodiazepine medication to treat anxiety or insomnia is not a chemical restraint. However, if it was used to treat wandering behaviours in a person with dementia, then it would be classified as a chemical restraint. The use of the medication, and not the actual medication, is the important part.

A chemical restraint is not permitted to be used by a nursing home unless:

    • A doctor or nurse practitioner assessed the resident as requiring the restraint and prescribes a medication for the restraint;
    • The decision to prescribe is documented; and
    • The resident’s representative is informed about the need to prescribe the chemical restraint.

Who has the power to make laws on restraints? The Federal government or States and Territories?

This is a complicated question, and our submission to the Royal Commission dealt with it over 15 pages.  In summary, we say:

  1. The Federal government has limited powers to make laws relating to healthcare.  They can make laws providing for benefits,
    such as nursing home benefits, medicines and Medicare.
  2. State and Territory governments have broader powers to regulate healthcare,
    such as professional standards of health professionals, consenting to medical
    treatment, substituted decision-making, professional negligence and mental
    health laws.

Does the new law on physical restraints exceed Federal power?

The States and Territories have the power to make laws on direct healthcare, such as consenting to treatment and substituted decision-making.  On one reading of the New Restraint Law, it tries to authorise a person to consent to a nursing home resident being physically restrained.  To the extent it authorises someone who is not empowered under State or Territory laws to make health decisions, we submit it could potentially exceed Federal powers.

The Federal government is not authorised by the Constitution to make laws regarding consenting to treatment and substituted decision-making. This power resides with the States and Territories.  A situation could arise where a nursing home complies with the New Restraint Law, but breaches a State or Territory law.

Does the new law on chemical restraints exceed Commonwealth power?

The new law on chemical restraints appears to authorise giving of a medication, even in the absence of consent.  The effect is to make lawful, for the purpose of aged care accreditation, the giving of a chemical restraint without lawful consent. The entire provision may be unlawful on the basis it is beyond the ambit of the Federal government’s health power

There must be uniform State and Territory laws

We identify some major issues with the New Restraint Laws.  Their precise operation and scope is not clear, and it is possible they may lead to confusion for residents and nursing home operators.  As the States and Territories have the power to regulate issues of consent and direct medical treatment, we say they should play a greater role in regulating this issue.  After all, they have the power to make laws on this issue, whereas the Federal government has limited power.

We concluded our submission to the Aged Care Royal Care Commission by stating:

It is not entirely clear why States and Territories do not have a greater concern about treatment in aged care facilities. Coverage of mental health laws is not adequate or explicit enough. Even where there is coverage, there appears to be no routine practice of having mental health laws apply to protect the rights of those in aged care facilities. This absence can be criticised as evidencing systemic discrimination on the basis of age. The lack of coverage and the lack of enforcement of current laws potentially leaves a vacuum of enforced legal protection for nursing home residents.

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For more information or to make an appointment in either our Canberra or Queanbeyan office please do not hesitate to contact Matthew Bridger or Thomas Maling:

p: +61 2 6206 1300 | e:

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