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

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.

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.

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.

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.

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.