Proposed amendments to federal aged care legislation will prevent legal challenges to residential aged care facility (RACF) providers implementing restrictive practices, where consent has been given prior.
The bill, Aged Care and Other Legislation Amendment (Royal Commission Response No. 2) Bill 2021, will add a new section to the Aged Care Act (1997), emphasising the need for informed consent to be sought from a resident’s next-of-kin or other legally appointed representative before use of restrictive practices on a resident who does not have the capacity to consent themselves, except in an emergency.
A spokesperson for Richard Colbeck, Minister for Senior Australians and Age Care Services, tells Aged Care News that this amendment seeks to harmonise laws across the country pertaining to deprivations of liberty, which vary from state to state.
“The immunity provision (proposed new section 54-11 of the Aged Care Act 1997) will ensure that approved providers and other relevant individuals (eg. staff members and volunteers) who may not be authorised under current state and territory laws [to use restraints], are protected from civil and criminal liability.”
Under the Aged Care Act 1997 and the Quality of Care Principles 2014, restrictive practices are deemed appropriate in limited circumstances, including management of the behavioural and psychological symptoms of dementia (BPSD) and falls prevention.
Colbeck’s office maintains that this bill is not intended to allow providers immunity where a genuine breach of consent or overreach has occurred.
“It is important to note, however, that the immunity from civil or criminal liability only applies where consent was given to the use by a person authorised to provide consent under the commonwealth laws, and the use was in alignment with all of the other requirements under the Quality of Care Principles.
“The Quality of Care Principles also require that restrictive practices must only be used as a last resort, only to the extent that is necessary, for the shortest time and in the least restrictive form, and to prevent harm to the care recipient, and therefore if restrictive practices are not used in alignment with these requirements the immunity does not apply.”
The bill, however, has received blowback from some aged care advocates.
Rodney Lewis, senior solicitor at Elderlaw legal services in Sydney, tells Aged Care News that he opposes the legislation in principle.
“I call it an astounding piece of law,” he says.
“Immunity is something that is very rare … and here we have people who at some stage or other in their aged care might be deprived of their basic legal and human rights.”
Due to Australia’s system of concurrent powers, the bill, if ratified, will override numerous legislations at the state level, including some relating to basic civil liberties.
Whilst the Federal Government is aiming to ensure those rights are maintained through the Quality of Care Principles, Lewis finds this bifurcation of civil rights to be unconstitutional.
“The vulnerable or frail aged who are subject to the bill are the only cohort subject to the removal of the civil and criminal protections which protect all other Australians,” he says.
“In the event of a person or their legal representative wishing to bring a civil claim or make a criminal charge, they will be confronted with the need to show that the Quality of Care Principles have not been complied with, an imposition not required of other litigants.”
In a document shared with Aged Care News, Lewis identifies the various areas of the law implicated by the federal bill:
- NSW – Criminal Procedure Act 1986 NSW Schedule 1 Table 1 s 16C (the common law offence of false imprisonment) (Indictable offences that are to be dealt with summarily unless prosecutor or person charged elects otherwise)
- Victoria – Crimes Act 1958 Vic s 320 – maximum term of imprisonment for certain common law offences – False imprisonment 10 years maximum
- Queensland – Criminal Code 1899 QLD s 355 – deprivation of liberty (liable to imprisonment for 3 years):
- ACT Crimes (Offences Against Vulnerable People) Legislation Amendment Act 2020, sec. 36A (5)(b)(i)(D) – elder abuse of a vulnerable person resulting in serious harm: (D) deprive or restrict the vulnerable person’s freedom of action; imprisonment 5 years.
- prosecutions under Workplace Health and Safety laws.
THE CIVIL CLAIMS
- Habeas corpus – an ancient prerogative writ and an irreplaceable foundation to our claims to freedom;
- Tortious claims – battery and false imprisonment; negligence;
- Arbitration and alternate dispute resolution claims included in the care contract;
- Australian consumer law ss 21,22 [unconscionable conduct]; s34 [misleading conduct] s50 [no force to be used in delivery of services], s60 [due care and skill] s61 [services fit for purpose] s62 reasonable time for supply].
- Breach of contract.
Lewis says that in practice, the bill would create a barrier to initiating claims where a suspected breach of rights has occurred; it would also greatly add to the expense of claims.
“It’s like putting up a fog,” he says.
“I would have to say to the client: ‘look, this is a problem, because the parliament’s now passed a law that says if the provider’s done everything necessary under the regulation, such the quality of care principles, then they will have immunity: immunity from your civil claim’.
“It’s not much good me ringing the police or sending them a letter either, because they’ve got criminal immunity as well, which is an astonishing idea.”
“It will disrupt the rights of people in aged care to bring legal claims.”
Though the bill does not intend to acquit providers for breaches of consent, Lewis maintains that habeas corpus, a foundational legal and democratic principle, necessitates that the final say, in scenarios where the threat of false imprisonment is high, always remains in the hands of the courts.
“It’s just completely against [residents’] human rights and legal rights,” he says.
It is yet unclear how checks and balances will be maintained under this system, and whether the validity of provider immunity would be adjudicated via the Aged Care Quality and Safety Commission.
Dr Sarah Russell, qualitative researcher and aged care advocate, tells Aged Care News she is concerned about the intregity of the new system.
“Why are we treating aged care residents differently to all other older people? Why one one group is allowed to sue and the other group is not able to?”
The bill, originating from and having already passed in the lower house, is now being debated in the Senate.
The Aged Care Quality and Safety Commission has declined to comment.
The federal health department has been contacted for comment.
About use of restraint in RACFs
“Restrictive practices” come in many forms, including:
- Physical restraints: the use of physical force to prevent, restrict or subdue movement of a care recipient’s body
- Chemical restraints: the use of medication or a chemical substance, most commonly anti-depressants, anti-psychotics and hypnotics.
- Environmental restraints: restricting a resident’s free access to areas (and items within) their room or common areas of the facility.
- Mechanical restraints: the use of devices prevent a resident’s movement, including bed rails, belts, harnesses, etc.
- Seclusion: solitary confinement of a resident. This practice is considered appropriate only after all other forms of behaviour management have been exhausted.
On July 1, 2021, the Aged Care Act 1997 and the Quality of Care Principles 2014 were updated to clarify and strengthen the requirements for providers in relation to the use of restrictive practices.
Where a resident themselves cannot consciously consent to a restraint, such as someone living with dementia, only a legally appointed “substitute decision maker” can do so on their behalf.
Whilst consent can be obtained verbally or in writing, the process must be documented by providers.
Providers have a responsibility to not only seek consent, but to ensure the person providing consent on a resident’s behalf has the legal authority to do so.