Restrictive practices and informed consent in aged care

Restrictive practices are used as a form of behavioural support and can be:

• chemical restraint
• physical restraint
• mechanical restraint
• environmental restraint
• seclusion

Why are restrictive practices used in residential aged care?

Restrictive practices are used as a form of behavioural support. They must be used as a last resort to prevent harm to an aged care resident or to others, and after considering the likely impacts on the aged care resident. This means a restrictive practice can only be used after an aged care provider has trialled and documented alternative strategies first.

The restrictive practice must be used only to the extent necessary and in proportion to the risk of harm to the aged care resident or others and must be used in its least restrictive form.

Except in emergencies, the informed consent of the resident or their Restrictive Practice Substitute Decision-maker must be obtained before use of a restrictive practice.

Restrictive practices are not a type of medical treatment, and they are not intended to be used as a punishment or a threat to control someone's behaviour.

Key principles regarding restrictive practices and consent arrangements in aged care

The Commonwealth government is the regulator of restrictive practices in residential aged care settings.

Restrictive practices must be used as a last resort to prevent harm to an aged care resident or to others.

Informed consent is required, except in emergencies. This means that the resident or their Restrictive Practices Substitute Decision-maker must consent to the use of restrictive practices.

Restrictive practices must be used in accordance with requirements set out by the Commonwealth.

Restrictive practices must only be used in accordance with requirements set out in the Aged Care Act 2024 (Cth) and Quality of Care Principles 2014 (Cth). Chemical restraint also requires a medical practitioner to assess the aged care resident and to prescribe the medication.

For further information, refer to the Commonwealth Department of Health, Disability and Ageing website.

When does someone not have capacity to decide for themselves?

A person has decision-making capacity to make a decision under the Aged Care Restrictive Practices Substitute Decision-maker Act 2024 if they can:

• understand the information relevant to the decision and the effect of the decision,
• retain the information to the extent necessary to make the decision,
• use or weigh that information as part of the decision-making process,
• communicate the decision and the person’s views and needs to as to the decision in some way, including by speech, gestures or other means.

All adults are presumed to have capacity to make decisions and to give informed consent, including regarding the use of restrictive practices.

Determining whether a person has capacity can be difficult as decision-making capacity can vary over time.

Generally, if an individual is not able to understand, make or communicate a decision, even with appropriate support, then they do not have capacity to provide informed consent for themselves. If capacity to make decision is in doubt, there may be a need to request a formal mental capacity assessment from a medical professional with experience in assessment of cognitive capacity.

The Commonwealth defers to state and territory laws to clarify who can act as a substitute decision-maker to consent to the use of restrictive practices, on behalf of a person living in residential aged care who doesn’t have capacity to consent.

Restrictive Practices Substitute Decision-making and informed consent

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.

If consent is not given by the Restrictive Practices Substitute Decision-maker, then the proposed restrictive practice cannot be used. This may mean the provider must consider alternative approaches to ensure appropriate care is given to the aged care resident.

Providers are not able to find an alternative Restrictive Practices Substitute Decision-maker just because consent has not been given.

The decision-maker can withdraw or alter consent that they have given at any time. Providers must respect the decision, even if it changes.

For more information, visit the Commonwealth's Frequently Asked Questions about Consent.

Acting as a Restrictive Practices Substitute Decision-maker

Restrictive Practices Substitute Decision-makers should consult with the provider to understand:

• why the restrictive practice is proposed
• the risks and benefits
• whether there are any alternative approaches available.

The Restrictive Practices Substitute Decision-maker may also consider the wishes of the aged care resident, where they have previously expressed those preferences.

Where can substitute decision-makers seek advice?

Restrictive Practices Substitute Decision-makers can seek advice and support from organisations such as Senior Right’s Victoria, and the Older Persons Advocacy Network, as well as discussing arrangements with the aged care provider, and appropriate clinicians.

For any advice on the use of restrictive practices, decision makers can contact the Aged Care Quality and Safety Commission

Emergency situations

Aged care providers can use restrictive practices in emergencies without consent, such as in cases of immediate threat to life or injury. This must meet the requirements of the Commonwealth’s aged care legislation and regulations.