Restrictive practices in residential care - who can give informed consent?

In this episode, we look at the requirement to obtain informed consent to the use of restrictive practices in residential care under the Quality of Care Principles.  A key issue we consider is when informed consent can be obtained in South Australia without having to go to the South Australian Civil and Administrative Tribunal (SACAT).

Here are some of the key points from the podcast:

1.  Under the Aged Care Act, 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. The Aged Care Act says that, without limiting that broader definition, the Quality of Care Principles may provide that a practice or intervention is a restrictive practice in relation to a care recipient.  

2.  The Quality of Care Principles prescribe the following as practices or interventions that are a restrictive practice:

• Chemical restraint
• Environmental restraint
• Mechanical restraint
• Physical restraint
• Seclusion

3.  The Quality of Care Principles introduce a new definition of ‘restrictive practices substitute decision maker’ which is a person or body that under the law of a State or Territory in which the resident is provided with aged care, can give informed consent to the restrictive practice if the resident does not have capacity to consent to the restrictive practice.

4.  The definitions for the types of restrictive practices set out in the Quality of Care Principles broadly follow the definitions that apply under the National Disability Insurance Scheme Act 2013. There are some differences between the NDIS definitions of restrictive practices and those introduced for aged care, which we touch upon in more detail in the episode.

5.  The 2019 SACAT decision of Re KF; Re ZT; Re WD ([2019] SACAT 37, (http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/sa/SACAT/2019/37.html?context=1;query=Re%20KF;%20Re%20ZT;%20Re%20WD%20;mask_path=au/cases/sa/SACAT) (2019 SACAT decision) provides guidance about the requirements of informed consent to restrictive practices in the NDIS context and how those requirements compare to the legal requirements for obtaining informed consent under South Australia law. Because the definitions of restrictive practice in the NDIS are broadly similar to those introduced for aged care, the decision is a very useful resource for guidance on whether a person may be able to give informed consent to a restrictive practice on behalf of a resident without a SACAT order. 

6.  The 2019 SACAT decision broadly confirms that an order of SACAT is required whenever a restrictive practice involves detention or the use of force.

7.  If there is no detention or use of force, then there are opportunities to obtain informed consent from a guardian (appointed by SACAT), a substitute decision maker under an advance care directive (if there is one) or a ‘person responsible’ under the Consent to Medical Treatment and Palliative Care Act for informed consent. In this episode, we explore the conditions that the 2019 SACAT decision indicates need to be met in order to obtain informed consent from a person without a SACAT order. In summary, the restraint (whether chemical, environmental or mechanical):

• needs to be supervised by a health practitioner; and
• needs to be for the purpose of maintaining a physical or mental condition of the resident with the further purpose of improving the comfort and quality of life of the resident.

Those conditions come from the definitions of medical treatment and the expanded definition of healthcare in the Consent to Medical Treatment and Palliative Care Act and the Advance Care Directive Act. 

8.  It will be important to document the things considered in the lead up to seeking informed consent to a restrictive practice, not only to comply with the detailed requirements of the Quality of Care Principles but also to ensure that the conditions outlined above are met.

9.  In addition to the 2019 SACAT decision, there is a SACAT Fact Sheet which is another useful resource for guidance on those matters. The Fact Sheet is called ‘Guardianship Orders, Restrictive Practices and Special Powers Orders from SACAT (http://www.sacat.sa.gov.au/upload/Factsheets/Special%20Powers%20for%20Restrictive%20Practices.pdf).  The Fact Sheet is based on the 2019 SACAT decision which, as mentioned, was about NDIS restrictive practices and although there are some differences, it is still a useful resource for guidance on who can give informed consent and the conditions that must be met for a person in the various ‘categories’ of decision maker to ‘qualify’ as a ‘restrictive practices substitute decision maker’. 

Disclaimer: This podcast and related resources are for general information only and are not to be relied on as legal or other advice.  Please consult with your legal advisor for advice about your particular circumstances