The Government is planning to introduce new restrictive practices requirements for residential aged care homes from 1 July 2021. Here’s what you need to know.

Overview of the new requirements

The new requirements are being introduced under the Aged Care and Other Legislative Amendment (Royal Commission Response No.1) Bill 2021 (Cth), which is scheduled to commence 1 July 2021. The Bill will:

• replace the term “restraint” with the term “restrictive practices”
• introduce a new definition of “restrictive practices” that is consistent with the definition used under the National Disability Insurance Scheme (NDIS)
• update the Quality of Care Principles to list the rules that a provider must follow when using a restrictive practice.

New terminology: “physical and chemical restraint” replaced with “restrictive practice”

The new laws will change the terminology from “physical and chemical restraint” to “restrictive practices”. The laws will also introduce a new definition of “restrictive practices” that is consistent with the definition used under the National Disability Insurance Scheme (NDIS).

New definition of Restrictive Practice: 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.

Inconsistencies and complications: The new definition of “restrictive practice” does not differentiate between physical restraint and chemical restraint. This is somewhat inconsistent with the Mandatory Quality Indicators, which specifically refer to physical restraint.  

New rules a provider must follow when using a restrictive practice

The new laws will update the Quality of Care Principles to list these rules that a provider must follow when using a restrictive practice:

1. A restrictive practice in relation to a care recipient can be used only:
   • as a last resort to prevent harm to the care recipient or other persons; and
   • after consideration of the likely impact of the use of the practice on the care recipient.
2. To the extent possible, alternative strategies must be used before a restrictive practice in relation to a care recipient is used.
3. Alternative strategies that have been considered or used in relation to a care recipient must be documented.
4. A restrictive practice in relation to a care recipient must be used only to the extent that it is necessary and in proportion to the risk of harm to the care recipient or other persons.
5. If a restrictive practice in relation to a care recipient is used, it must be used in the least restrictive form, and for the shortest time, necessary to prevent harm to the care recipient or other persons.
6. Informed consent must be given to the use of a restrictive practice in relation to a care recipient.
7. The use of a restrictive practice in relation to a care recipient must not be inconsistent with any rights and responsibilities of care recipients that are specified in the User Rights Principles.

Under requirement (h), the new laws will also update the Quality of Care Principles to set requirements about the monitoring and review of the use of restrictive practices. Details of that requirement are not yet clear.

Use of restraint in an emergency: The new laws say that the Quality of Care Principles may be updated to specify that providers do not have to follow all the new requirements in an emergency. The term “may” is important. It means that this update does not have to be made. Whoever is in charge of updating the Quality of Care Principles might choose to ignore it. In which case, providers will have to follow requirements (a)-(h) even in an emergency. At the moment, we don’t know what the law will do.

Enforcing the new requirement

The new laws will give the Aged Care Quality and Safety Commission the power to enforce the new requirements regarding restrictive practices. The Commission will be empowered to issue a written notice to providers who are not complying with their responsibilities, and also to apply for a civil penalty if an approved provider does not comply with the written notice.

What to do now

In preparation for the commencement of these new laws:

• review your policies and procedures to see where you need to replace “physical and chemical restraint” with the new term “restrictive practices”. But remember that the term “physical restraint” is still relevant to the Mandatory Quality Indicators and should be maintained in some form
• update relevant policies, procedures and training materials to include the new definition of “restrictive practices” and ensure staff are briefed on the change
• update key restrictive practices documentation, including assessment and monitoring resources, to reflect these new rules and ensure that the rules underpin decisions regarding restrictive practices
• update relevant policies and procedures to cover the new Quality of Care Principles that a provider must follow when using a restrictive practice. Ensure staff are briefed on the new requirements.