New National Restrictive Practice Laws for Aged Care Providers

This article applies to approved providers of aged care.

Aged Care and Other Legislation Amendment (Royal Commission Response No. 1) Bill 2021 (Cth)

Please be advised that the Aged Care and Other Legislation Amendment (Royal Commission Response No. 1) Bill 2021 (Cth) (the Bill) passed Federal Parliament on 24 June 2021 and the relevant sections are scheduled to commence on 1 July 2021.

In line with recommendations made by the Royal Commission into Aged Care Quality and Safety, the Bill amends the Aged Care Act 1997 (Cth) (the Act) to strengthen protections surrounding the use of restrictive practices in aged care.

Defining Restrictive Practices

Previously, the Act referred to physical and chemical ‘restraints’. The Bill changes the language used in the Act from ‘restraints’ to ‘restrictive practices’. To this end, the Bill inserts the following definition of restrictive practices:

“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 definition is more closely aligned with that used in the National Disability Insurance Scheme and is notably broader than the language previously used in the Act. In particular, the new definition includes practices or interventions that restrict the rights of a care recipient. Rights aren’t defined in the Bill but we anticipate this new definition will encompass more practices.

Use of Restrictive Practices

The Bill also creates new requirements for aged care providers. The Bill states aged care providers must only use restrictive practices in the circumstances set out in the Quality of Care Principles. The Bill then sets out the following new requirements to be included in the Quality of Care Principles:

  • restrictive practices are only to used:
    • as a last resort to prevent harm to the recipient; and
    • after consideration of the likely impact of the use of the practice on the care recipient; and
  • to the extent possible, alternative strategies are used before a restrictive practice in relation to a care recipient is used; and
  • alternative strategies that have been considered or used in relation to a care recipient are documented; and
  • a restrictive practice in relation to a care recipient is used only to the extent that it is necessary and in proportion to the risk of harm to the care recipient or other persons; and
  • if a restrictive practice in relation to a care recipient is used, it is used in the least restrictive form, and for the shortest time, necessary to prevent harm to the care recipient or other persons; and
  • informed consent is given to the use of a restrictive practice in relation to a care recipient; and
  • the use of a restrictive practice in relation to a care recipient is not inconsistent with any rights and responsibilities of care recipients that are specified in the User Rights Principles.

We note that the above requirements will only impact approved providers once the Quality of Care Principles have been amended. Whilst the amendments to the Quality of Care Principles will reflect the requirements set out above, the precise wording of these amendments is unclear as the amending legislation has not yet been passed. Further, the Bill allows the Quality of Care Principles to prescribe additional requirements.

The Federal Government, however, has released an exposure draft of the changes to the Quality of Care Principles.  We emphasise that this document is a draft, however encourage organisations to view the exposure draft as it includes the proposed wording along with additional requirements for the use of restrictive practices.

Once the legislation amending the Quality of Care Principles has been passed we will notify subscribers.

Organisations should also note that the Bill also allows the Aged Care Quality and Safety Commission to issue compliance notices to approved providers if it suspects they are not complying with the new requirements.

Please click here to access the full Bill.


Contact

For further information please contact the Law Compliance team:

Phone: 1300 862 667

Email: info@lawcompliance.com.au

 

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