Understand Restrictive Practice in Home Care

The Victorian Parliament has approved the Aged Care Restrictive Practices (Substitute Decisionmaker) Act 2024 (Vic) (Act), which modifies the restrictive practices framework for providers in Victoria. The new regulations will come into force in July 2025.

This Act takes precedence over the hierarchy of Restrictive Practices Substitute Decision Makers defined in the Aged Care Act 1997 and the Quality of Care Principles 2014. In acquiring informed consent for the use of a restrictive practice on an aged care recipient, providers are now obligated to adhere to this new Act to determine who is eligible to consent on behalf of the care recipient.

The primary changes that Victorian Providers ought to be aware of are:

• Victorian Providers must not rely on the “hierarchy” defined in the Aged Care Act 1997/Quality of Care Principles 2014
• The new Victorian Act specifies a different hierarchy (which is narrower than the Aged Care Act)
• There are heightened requirements for a care recipient to “nominate” a Restrictive Practices Substitute Decision Maker
• Family, friends, and advocates can seek appointments as a Restrictive Practices Substitute Decision Maker through VCAT
• VCAT is empowered to consent to the application of a restrictive practice on a care recipient
• Offense provisions and criminal liability may be applicable

What is meant by restrictive practice? 

In accordance with the Aged Care Act 1997, a restrictive practice is defined as any practice or intervention that restricts the rights or freedom of movement of the care recipient. This encompasses:

• chemical restraint
• physical and mechanical restraint
• environmental restraint, including the placement of the care recipient in a memory support unit.

There are rigorous standards that providers must follow when employing a restrictive practice in both residential aged care and home care. One of these standards is to obtain informed consent from the care recipient or the ‘Restrictive Practices Substitute Decision Maker’ if the care recipient is unable to make this decision themselves.

Who is designated as a Restrictive Practices Substitute Decision Maker according to the new Victorian Act?

The new Act supersedes the ‘hierarchy’ established in the Quality of Care Principles 2014 for providers in Victoria.

1. A nominated person

A care recipient who possesses capacity at the time may designate an ‘eligible adult’ to serve as their Restrictive Practices Substitute Decision Maker by completing a nomination form. This nomination requires the endorsement of an authorized affidavit taker (such as a lawyer). Among other criteria, an adult is considered eligible if they agree to the nomination and are not an employee or agent of the approved provider, involved in the development of a behavior support plan for the care recipient, subject to a family violence intervention order that identifies the nominator as an affected family member, and have not been convicted of an offense against the nominator.

The care recipient may revoke the nomination while they maintain capacity.

2. Hierarchy of “temporary” or default decision-makers

In the absence of a nominated or appointed individual at that time, the Act specifies a hierarchy of individuals who could potentially serve as the Restrictive Practices Substitute Decision Maker.

The first individual from the following list will be designated as the Restrictive Practices Substitute Decision Maker if they are an adult in a close and ongoing relationship with the care recipient and are reasonably available, willing, and competent to make restrictive practices decisions on behalf of the care recipient:

1. a) the spouse or domestic partner of the care recipient;
2. b) the primary caregiver of the care recipient;
3. c) the oldest child of the care recipient, followed by the other children in descending order of age if there are two or more adult children;
4. d) the older parent of the care recipient;
5. e) the younger parent of the care recipient;
6. f) the oldest sibling of the care recipient, followed by the other siblings of the care recipient in descending order of age if there are two or more adult siblings.

Certain individuals are excluded, such as employees of the provider.

3. Appointment by VCAT

Individuals have the option to apply to VCAT for the role of Restrictive Practices Substitute Decision Maker. It should be noted that there does not seem to be a process for the provider to nominate another individual for this role, although the Act allows a provider to petition VCAT for permission to apply a restrictive practice on a care recipient.

Examples of those who can be appointed include a relative from the care recipient’s extended family, a close friend of the care recipient, and a lawyer or accountant acting on behalf of the care recipient.

4. Consent obtained by VCAT

In conclusion, when no other individuals are accessible, the provider can request VCAT to allow the Tribunal to give consent for the use of the restrictive practice. It seems that the provider would have to approach VCAT again to re-acquire consent if there are changes to the proposed use of the restrictive practice(s) in the behaviour support plan of the care recipient.

It is crucial to recognize that this Act specifically relates to the Restrictive Practices Substitute Decision Maker and the consent requirements; all other provisions under the Aged Care Act 1997 and the Quality of Care Principles 2014 must still be observed. 

Offences and liability

The new Act enforces considerable provisions related to offences and criminal liability on both providers and individuals.