The Final Report
The final report from the Royal Commission into Aged Care Quality and Safety (Final Report) was tabled on 1 March 2021, and contains significant and sweeping proposals for reform of the aged care sector. This is the third of a series of articles by Kinny Legal examining what these proposed reforms are and how they might change the industry if implemented.
This article
While the Final Report expresses a wide range of concerns about aged care quality and safety, it has identified four areas of concern which the Commissioners have determined require immediate attention:
Food and nutrition.
Dementia care.
Use of restrictive practices.
Palliative care.
This article considers the Commissioners’ findings about the use of restrictive practices and what this might mean for your aged care organisation. The findings are most relevant to residential aged care organisations, although they apply to all providers.
What the Final Report says
Restrictive practices refer to activities or interventions – either physical or pharmacological – which restrict a person’s free movement or ability to make decisions. Use of restrictive practices has been a key area of concern in the aged care sector for many years, and it is unsurprising that it is a key area of focus in the Final Report.
The Final Report identifies overuse of restrictive practices as a major quality and safety issue in aged care and that urgent reforms are necessary to address this issue. In particular, the Final Report concluded that:
deficiencies in the regulation of restrictive practices are a significant human rights issue in Australia;
the use of restrictive practices negatively impacts on the liberty and dignity of persons who receive aged care services; and
such use without clear justification and clinical indication amounts to abuse.
What does the Final Report recommend?
The Final Report recommends urgent reforms to regulation of use of restrictive practices in aged care and, as a matter of practicality, there should be a nationally consistent approach between the aged care and disability sectors. The recommendations can be summarised as set out below.
First, the Final Report recommends that the Quality of Care Principles 2014 (Cth) (Principles) be amended by 1 January 2022 as described in pages 221 – 222 of Volume 1 of the Final Report. These reforms would align the aged care laws with the National Disability Insurance Scheme regulatory framework for use of restrictive practices.
The amended laws would operate so that use of restrictive practices are:
based on an assessment by an independent expert (except in emergency situations, and then subject to strict conditions);
used only as a last resort and only to the extent and for the time period required; and
subject to ongoing reporting and monitoring.
Part 4A of the Principles is currently scheduled for repeal on 1 July 2021. The Final Report also recommends this repeal date be delayed until 31 December 2021.
Second, the Final Report recommends amendments to the current laws so approved providers who breach these requirements can:
be reported under the serious incident reporting scheme;
incur fines; and
be required to pay compensation.
Third, the Final Report acknowledges that it may be appropriate to consider further changes following the scheduled statutory review of Part 4A of the Principles and the release of the findings following the Royal Commission investigation of the disability sector and recommends that the Australian Government consider and implement such changes.
How to respond
The Final Report will almost certainly prompt broad regulatory changes. This topic has been a key area of concern for some time and the Commissioners have recommended urgent change, so reforms could be imminent.
It would be prudent for aged care providers to perform a comprehensive assessment of the organisation’s management of use of restrictive practices, to determine the extent of any changes that would need to be implemented if the recommended reforms were made. Appropriate questions to ask include:
Is my organisation using restrictive practices as a last resort to prevent serious harm after exploring, applying and documenting alternative, evidence-based strategies to mitigate the risk of harm?
Is my organisation only using restrictive practices to the extent necessary and proportionate to the risk of harm?
Is my organisation only using restrictive practices for the shortest time possible to ensure the safety of the person or others?
Is each use of restrictive practice subject to monitoring and regular review (to be stipulated in the behaviour support plan) by a health practitioner?
Is my organisation only using restrictive practices in accordance with relevant State or Territory laws and with the documented informed consent of the person receiving care or someone authorised by law to give consent on that person’s behalf?
Is my organisation only using chemical restraints that have been prescribed by a doctor?
How confident am I that each use of restrictive practice by staff is being recorded and reported within the organisation?
It is also prudent to consider what external help (if any) your organisation may need to seek to help overhaul its existing policies, procedures, systems, trainings, record keeping and practices on use of restrictive practice. For example – lawyers, clinical consultants.
Need help?
We are repeatedly ranked as one of Australia’s top law firms in aged care, and regularly advise clients in relation to aged care compliance issues. If you need help addressing this issue or any other aged care compliance matter, please do not hesitate to call us on 02 9199 4563.
This blog post does not constitute legal advice and should not be relied upon as such. It is a general commentary on matters that may be of interest to you. Formal legal or other professional advice should be sought before acting or relying on any matter arising from this communication.