This article applies to Residential Aged Care Providers in Victoria.
Aged Care Restrictive Practices Substitute Decision-maker Act 2024 (Vic)
On 1 July 2025, the Aged Care Restrictive Practices Substitute Decision-maker Act 2024 (Vic) (the Act) commenced.
What’s new?
All appointments for Restrictive Practices Substitute Decision-Makers for the purposes of authorising the use of restrictive practices for residents of residential aged care facilities in Victoria are now made and regulated under the new Act.
Further Information
Restrictive Practices in Aged Care
The Aged Care Act 1997 (Cth) and Quality of Care Principles 2014 (Cth) (the Quality of Care Principles) defer to state and territory laws when determining who may provide consent to the use of restrictive practices for a person living in residential aged care who does not have decision-making capacity. Where no local legislation exists to deal with this appointment, interim measures apply under the Quality of Care Principles.
Previously, no legislation existed in Victoria to appoint a substitute decision-maker and thus, the interim Commonwealth measures applied.
The Act now outlines a clear process that applies in Victoria for deciding who can give consent to the use of restrictive practices when a resident in aged care isn’t able to make that decision themselves. The Act sets out a four-tier hierarchy for providers to follow when determining a substitute decision-maker.
In the first instance, an aged care resident who has decision-making capacity can nominate an eligible adult to be their restrictive practices substitute decision maker.
If no Substitute Decision-maker has been nominated, a Temporary Restrictive Practices Substitute Decision-maker is automatically appointed. This temporary decision-maker is the first eligible adult identified from the below list who is in a close and continuing relationship with the resident and who is reasonably available and willing to act:
- the spouse domestic partner of the aged care resident;
- the primary carer of the aged care resident;
- the oldest child of the aged care resident, followed by the other children in descending order of age if there are two or more adult children;
- the older parent of the aged care resident, followed by the younger parent;
- the oldest sibling of the aged care resident, followed by the other siblings of the aged care resident in descending order of age if there are two or more adult siblings.
Further, section 9 of the Act allows the Victorian Civil and Administrative Tribunal (VCAT) to select a restrictive practice substitute decision-maker. The person appointed must be someone known to the resident with an ongoing personal or professional relationship. VCAT may also determine the decision-maker where there is a dispute about a Restrictive Practices Nominee or Temporary Restrictive Practices Substitute Decision-Maker that requires VCAT’s intervention.
Finally, under the Act, VCAT can act as a substitute decision-maker and can consent to the use of restrictive practices. For VCAT to step in, the aged care provider must apply and provide enough information to show that:
- there are no other suitable decision-makers available (including nominees, temporary, or VCAT-appointed decision-makers), and
- the use of restrictive practice is appropriate, consistent with Commonwealth legislation, and is only used as a last resort to prevent harm from occurring to the resident or other residents.
Please note that if there is an unreasonable delay in appointing a decision-maker in accordance with the below, the Commonwealth measures will still apply.
What you should do
Organisations providing residential aged care services in Victoria should be aware of the new hierarchy under the Act, and relevant Commonwealth legislation.
Organisations should also inform and train relevant staff on the new legislation and update relevant policies and procedures to ensure compliance.
