A Restrictive Practices Substitute Decision-maker provides informed consent to the use of restrictive practices when an aged care resident does not have capacity to provide informed consent themselves.
Their decisions are limited to consenting to the use of restrictive practices in residential aged care and do not include medical treatment, financial or lifestyle matters (such as where people live).
A Restrictive Practices Substitute Decision-maker must:
- be of 18 years of age or over
- have capacity to provide informed consent
- be available, willing and able to provide informed consent.
A person is not automatically appointed as a Restrictive Practices Substitute Decision-maker just because they are the aged care resident's guardian, attorney or medical treatment decision maker. This means these types of decision-makers are not automatically empowered to provide informed consent to the use of restrictive practices as a substitute decision-maker in residential aged care.
Who cannot be appointed as a Restrictive Practices Substitute Decision-maker?
A Restrictive Practices Substitute Decision-maker cannot be anyone who:
- is an employee or agent of the residential aged care provider,
- has been involved in the preparation or implementation of the aged care resident’s Behavioural Support Plan,
- is convicted (other than a spent conviction) of committing a crime against the aged care resident,
- someone subject to a family violence intervention order concerning the aged care resident, or
- is not available, willing and able to act.
A family member or carer who is being consulted on the proposed restrictive practices is not considered to be involved in the ‘preparation or implementation’ of the Behavioural Support Plan.
When a Restrictive Practices Substitute Decision-maker is needed
A Restrictive Practices Substitute Decision-maker is only required when:
- a residential aged care provider proposes to use a restrictive practice on a resident, and
- the aged care resident does not have capacity to provide informed consent themselves.
Identifying a Restrictive Practices Substitute Decision-maker
Aged care residents, their supporters and aged care providers can identify the appropriate Restrictive Practices Substitute Decision-maker using the hierarchy of decision-makers.
Hierarchy of Restrictive Practices Substitute Decision-makers
The Act establishes a hierarchy of substitute decision-makers who can consent to the use of restrictive practices in residential aged care settings when the aged care resident does not have capacity to provide consent.
Aged care providers need to follow the order of the hierarchy:
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A Restrictive Practices nominee is a person nominated by the aged care resident to be their restrictive practices substitute decision-maker in advance and in accordance with the requirements of section 5 of the Aged Care Restrictive Practices Substitute Decision-maker Act 2024.
An aged care resident can nominate someone they trust to be a Restrictive Practices Substitute Decision-maker. The nominee must agree to be the substitute decision-maker, and the nomination should be completed in advance and in writing.
The Restrictive Practices nominee’s appointment is enduring unless it is formally revoked in accordance with section 6 of the Aged Care Restrictive Practices Substitute Decision-maker Act 2024 or the nominee is no longer reasonably available, willing and able to act as a decision-maker.
For more information, see How to nominate a Restrictive Practices Substitute Decision-maker
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If there is no Restrictive Practices nominee or Restrictive Practices Substitute Decision-maker already appointed by VCAT in place, then a temporary Restrictive Practices Substitute Decision-maker can be appointed under section 8 of the Act.
A temporary decision-maker is identified based on their close and continuing relationship to the aged care resident.
A temporary decision-maker will be the first available, willing and able adult to make restrictive practices decisions on behalf of the aged care resident from the following list:
- the spouse domestic partner of the aged care resident; or
- the primary carer of the aged care resident; or
- 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; or
- the older parent of the aged care resident, followed by the younger parent; or
- 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.
The temporary decision-maker’s appointment is only in force for as long as there is a restrictive practices decision to be made (i.e., one instance of consent for a new or amended Behaviour Support Plan). Once a decision is made by the temporary Restrictive Practices Substitute Decision-maker, their appointment will cease.
If the restrictive practices decision has not yet been made, the temporary restrictive practices substitute decision maker’s appointment will cease if another appointment is made under the Aged Care Restrictive Practices Substitute Decision-maker Act 2024, a person who takes priority in the above list becomes reasonably available, willing and able to make the decision or the temporary restrictive practices substitute decision maker ceases to be reasonably available, willing and able to make the decision.
Providers will have to go through the hierarchy again to identify a substitute decision-maker for any future decisions, such as for new or changed use of restrictive practices.
Whilst it is likely the same person will be appointed as the Temporary Decision-maker each time, providers must work through the hierarchy from the beginning each time to ensure that consent is sought from the appropriate person each occasion.
For more information, see Temporary Restrictive Practices Substitute Decision-maker
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If there is no nominee or a temporary decision-maker, then a Restrictive Practices Substitute Decision-maker can be appointed by the Victorian Civil and Administrative Tribunal (VCAT) in accordance with the following requirements:
- The appointee must be someone known to the aged care resident and have an ongoing personal or professional relationship with the aged care resident.
- The prospective appointee must apply to VCAT to be appointed as the Restrictive Practices Substitute Decision-maker. They will need to satisfy VCAT that they meet the requirements to be appointed.
A VCAT-appointment may be indefinite or time limited. An appointment by VCAT can also be amended or revoked by a subsequent VCAT decision.
For more information, see VCAT's role and restrictive practices substitute decision making.
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As a last resort, VCAT can act as the decision-maker of last resort and, if appropriate, consent to the use of the restrictive practice in accordance with the following requirements:
- The provider must apply to VCAT where no-one else can be identified as a substitute decision-maker.
- The provider, in their application, must satisfy VCAT that there are no other potential decision-makers (nominees, or possible temporary or appointed decision-makers).
VCAT must also be satisfied that the proposed use of restrictive practices is appropriate, including that the restrictive practice is used only as a last resort to prevent harm to the aged care resident or other persons.
For more information, see VCAT's role and restrictive practices substitute decision making.
Download the printable flowchart, which outlines at a high level how the hierarchy operates
This table outlines the steps to identify a Restrictive Practices Substitute Decision-maker.
| Step | Description | What happens | Who can decide |
|---|---|---|---|
| 1 | The aged care resident has capacity to give informed consent. | Restrictive practices can only be used with the aged care resident’s consent. | The aged care resident |
| 2 | The aged care resident does not have capacity to provide informed consent to the use of restrictive practices but has completed a valid Nomination Form in advance. | The nominee makes the decision to consent or not to consent. | The Nominated Restrictive Practices Substitute Decision-maker (Tier 1 of the hierarchy) |
| 3 | There is no valid nominee, or the nominee is not available, willing or able to make a decision | Next step: check if a temporary substitute decision-maker can be identified. | Go to step 4 |
| 4 | A temporary decision-maker can be appointed from this list (first person who meets criteria): 1. Spouse/Partner 2. Primary carer 3. Oldest adult child 4. Oldest parent 5. Oldest sibling Appointee must have a close and continuing relationship with the resident. | If a valid person is found and is available, willing or able to decide, they act as a decision-maker. | Temporary Restrictive Practices Substitute Decision-maker (Tier 2 of the hierarchy) |
| 5 | No suitable temporary substitute decision-maker is available, willing and able to make a decision. A person with an ongoing personal or professional relationship with the resident can be appointed by VCAT. | The prospective appointee must apply to VCAT. | VCAT-appointed Restrictive Practices Substitute Decision-maker (Tier 3 of the hierarchy) |
| 6 | No one else is available, or disputes arise. VCAT becomes the decision-maker as a last resort and considers any known preferences or values of the resident. | The aged care provider must apply to VCAT to be the last resort decision-maker | VCAT (Tier 4 of the hierarchy) |
Reviewed 26 June 2025