Least restrictive practice

Applying to the Victorian Civil and Administrative Tribunal (VCAT) for the appointment of the Public Advocate as the guardian of last resort on behalf of an older person in hospital is a serious decision. All public authorities, including public hospitals, need to be aware that the appointment of a guardian (or an administrator) is effectively a limitation of a person’s human rights.

The central purpose of the Guardianship and Administration Act 2019 is to protect and promote the human rights and dignity of people with a disability, and to support them to make, participate in and implement decisions that affect their lives. The Act also requires that any order made is the least restrictive of the person’s rights that is possible in the circumstances.

Thoroughly exploring the person's values, preferences and motivations, and identifying the unique strengths and risks of the person and their situation is therefore essential. This will help the older person, their family and carers, and the treating team to identify and work towards trialling least restrictive alternatives.

A ‘least restrictive model of care’ aims to enhance an older person’s autonomy and respects their rights, individual worth, dignity and privacy. Any limitations on the person must be the minimum necessary and must allow them to participate as much as possible in all decisions that affect them. Weighing up decisions regarding responsibilities and duty of care within this model can be challenging for professionals and families. Keeping the rights of the older person at the centre can help everyone involved in the process of care planning.

Person-centred practice

Maximise and encourage participation

Being in hospital can be an alienating and at times frightening experience for an older person, and their family and carers. They are removed from their familiar environment, routines and usual supports. People are at their most vulnerable, and it can be helpful to empathise with their situation so that you may build rapport and develop a care plan in partnership.

It is essential that you engage the older person and their family and carers, and ensure they have multiple opportunities to express their wishes and be involved in developing their care plan for discharge.

Establish the person’s goals and develop steps and timelines to achieve them. Revisit the goals with the person, their family and carers, and the treating team and readjust as necessary during the person’s admission. As a team ensure that you:

• Consider the cultural and linguistic background of the older person and their family and use formal interpreters as appropriate.
• Explain options in plain language and be mindful of using health and legal jargon.
• Organise a family meeting and consider which health professionals need to be present at the meeting.
• Locate a private meeting room in which to hold the meeting, to reduce distractions and promote the comfort of the older person and their family.
• Assist the older person and the family to prepare for the meeting.
• Explain the purpose and who will be present; invite them to bring an advocate/support person and explain the process.
• Provide the older person with ample opportunity to be engaged in the discussion - remembering that discussions about care needs can be confronting, especially in front of multiple people.
• Do not assume that the older person or their family understand health and legal language or the complexity of the process.
• Check that the older person and their family and carers have understood what you have told them.
• Clarify the patient's condition, what you expect the impact of the diagnosis on their function to be and what this might mean in terms of care needs once they leave the hospital.

Find out how the older person has usually made lifestyle decisions

Check if the older person has made formal arrangements and appointed a substitute decision maker or support person. Ask to sight and request copies of any relevant paperwork to help clarify the nature of these arrangements.

Find out as much as you can about the older person’s values and wishes. Seek consent to speak with people close to them, including other health and aged care professionals who may have been involved with the older person.

Many people rely on the informal support of a family member, a friend or carer to help make important decisions. In these cases, it remains imperative that you encourage the older person to consider their options and give them opportunities to express their wishes. If the older person would like you to involve a person to support them to make a decision, ensure you remain alert to the possibility of ‘undue influence’. Also check where possible that the informal support person agrees to the arrangement and whether it is appropriate for them to seek formal appointment as a supportive guardian and/or administrator.

Demonstrate empathy and aim to preserve the older person’s significant relationships

Applications for guardianship are often made in the context of conflict between the older person, their family and the treating team. This conflict is frequently about whether an older person requires residential care as opposed to returning to their usual home environment. It is important to note that disagreement can also occur within the treating team about preferred discharge options.¹ To avoid an application and work towards developing least restrictive options:

• Find out what matters to the older person. Actively listen to their concerns and empathise with their situation. The impending loss of independence in lifestyle choices can be very overwhelming and trigger anxiety and anticipatory grief and loss for them and their family.
• Be mindful of preserving the relationship between the older person and the family member, especially if there is disagreement between the older person’s family member or carer and the treating team.
• Be mindful of carer and family stress. An episode in hospital can be very difficult for a spouse, son, daughter or sibling. It can spark a significant shift in family dynamics and be accompanied by grief and loss.
• Give people time to adjust to the team’s recommendation and provide them with the information on the options in a transparent way.
• Acknowledge and mediate family conflictwhere possible.¹ Consider engaging formal conflict resolution strategies to explore least restrictive options. The Dispute Settlement Centre of Victoria (DSCV) is a free dispute resolution service that can provide a professionally mediated family meeting to help resolve conflict and reach an agreed decision. This may not be an appropriate avenue to pursue if you suspect the older person is experiencing elder abuse.

Work as a team to minimise functional decline

Be clear about the older person’s medical, functional, social and emotional needs and aim to minimise the risk of the older person experiencing functional decline in hospital.

Treat the person’s presenting issues and complete a comprehensive geriatric assessment to develop a care plan that can be continuously monitored and adjusted.

All staff play a key role in carefully considering least restrictive alternatives to making an application to VCAT for guardianship and ensuring that, where possible, these have been trialled and that the reasons for your intervention or lack of intervention have been documented in the patient record.

Work with the clinical experts in your health service to maximise the person’s access to regular:

• hydration and nutrition - as this plays a large role in maintaining and maximising function
• medication review - to simplify administration and frequency
• mobility and sitting out of bed - to optimise independence
• toileting - incontinence can be a major trigger for entry into residential care and there are many ways to avoid and treat issues
• pain management - unmanaged pain can limit a person's participation in their self-care
• monitoring for depression - most people with mild depression will respond to simple interventions such as listening, explaining and reassuring
• monitoring for acute changes to cognition - delirium can impair decision making ability and, in many cases, can be prevented and managed.

Focus on the older person’s strengths and work with your team to develop a care plan that maximises the person’s ability to exercise their values and preferences.

A thorough psychosocial assessment should be completed by a social worker in order to determine the nature of the presenting issues and to consider any interventions that have been implemented in the past to mitigate risks. A social worker can assist the team to understand the role of guardians and the process of making an application to VCAT for a guardian, and what happens when the Public Advocate is appointed as the guardian of last resort.

Trial least restrictive alternatives

Be mindful of the concept of ‘dignity of risk’ when developing a care plan in partnership with the older person and their family and carers. Enable the older person to exercise their human right to make decisions that may entail an element of risk. You may not agree with the decisions the older person is making - and traditionally health services may have wished to avoid risks at all cost. ‘Dignity of risk’ prompts you to consider how you can support someone to do what they want to do safely by exploring:

• What decision(s) need to be made?
• What are the specific risks?
• Can these risks be minimised?
• Can the decision be made in a more informal way than making an application for a guardian?

Carrying out our duty of care to a patient is not compromised by incorporating ‘dignity of risk’ when exploring least restrictive options; in fact, it should be considered part of our duty of care.

Considering least restrictive options

• Exploring what the older person's values are. This will help you to determine what sort of risks the older person would accept if he or she had capacity to make their own decisions.
• Involving community services that have been providing services to the older person. There may be additional or alternative services available to address the older person's needs after discharge.
• Arrange an occupational therapist to assess the older person’s function and to complete a home visit.
• Explore the availability of other programs that can provide additional support on discharge, for example the Aged Care Assessment Service (ACAS), the Transition Care Program (TCP) and Health Independence Program (HIP).
• Training willing family and carers to help to the older person with tasks of daily living and trial a period where staff are ‘hands off’.
• Considering a trial discharge with a support package in place. This could be for a day, overnight or for a weekend.

Work with your team, and speak to senior managers and your ACAS to work through issues as they arise. Use the Office of the Public Advocate’s Advice Service to troubleshoot options and document their recommendations.

Complex decision making in hospital and the importance of least restrictive practice

Clinicians are frequently required to make recommendations about the complex care needs of patients in preparing for their discharge. Sometimes this results in an application about Guardianship to the Victorian Civil and Administrative Tribunal (VCAT) for the appointment of the Public Advocate, as a guardian of last resort, for an older person in hospital.

People aged 65 and over with established cognitive impairment are the subject of a significant proportion of these applications. They are often made in the context of a disagreement between the treating team and the older person about the type of accommodation or services that are required to meet the older person’s care needs on discharge.²

The guardianship process can be long with the potential to have a significant impact on an older person’s levels of stress, autonomy and sense of control over their life. It may extend the older person’s hospital admission while they wait for a hearing, for a guardian to be appointed, and for a decision to be made and effected. An extended admission can play a significant role in increasing the risk of the older person experiencing functional decline in hospital, which in turn can further limit their ability to realise their lifestyle choices.³

Before deciding to pursue an application, a model of least restrictive practice should be employed. The Guardianship and Administration Act 2019 embeds the principles of least restrictive practice into supportive and substitute decision making. The Act requires that any order made is the least restrictive of the person’s rights that is possible in the circumstances.

Least restrictive practices include working with the older person and their families or carers to avoid an unnecessary application, maximise their participation and improve care during this process. In this process it can be useful to weigh up the risks and benefits of the older person leaving hospital versus the risks and benefits facing the older person if they are to remain in hospital for a lengthy period of time. By employing a least restrictive model of practice you can work with your team to minimise the extent of any limitations on the person and encourage them to participate in all decisions that affect them.