A temporary decision-making hierarchy for the appointment of restrictive practices substitute decision-makers is in place until 1 December 2024. A new mechanism will be included in the new Aged Care Act in the future.
Providers can use this hierarchy in the meantime to ascertain the existence of a ‘restrictive practices substitute decision-maker’ for a consumer (RPSDM). If one of these five hierarchy pathways are fulfilled, an individual may be appointed as a restrictive practices nominee. An RPSDM is a person or body who can give informed consent on behalf of a resident to the use of a restrictive practice.
Providers should be aware that the RPSDM temporary hierarchy can only be used in limited cases, where consent for restrictive practices is necessary and the consumer is unable to provide consent, or a substitute decision maker has not already been appointed. There are few instances where the RPSDM temporary hierarchy will be used, such as where there is no guardian with RP function and an application to a Civil and Administrative Tribunal has been made, however there is significant delay in appointing a guardian. In that context, the RPSDM temporary hierarchy must be consulted to appoint the appropriate RPSDM.
Once the hierarchy has been consulted and a temporary restrictive practises decision maker appointed, then consent can be sought for the use of the restrictive practice.
This temporary hierarchy seeks to address the inconsistencies between States and Territories without any legislation that authorises substitute decision making for restrictive practices. These changes provide greater clarity on informed consent for the use of restrictive practices, and more certainty for consent arrangements in States and Territories without legislation explicitly addressing this issue.
There are five levels of the hierarchy:
- Nominee
- Partner
- Relative or friend who was a carer
- Relative or friend who was not a carer
- Medical treatment authority, who will best support consumers who cannot consent themselves.
Under all levels of the below hierarchy, the person or body must agree in writing to act as the RPSDM and have the capacity to give that consent.
1. Nominee
A restrictive practices nominee includes an individual (or group of) nominated by the consumer who can give informed consent to the use of restrictive practices in aged care if they lack capacity to give consent themselves. These people are called the ‘nominees’.
2. Partner
If there is no RP nominee, the secondary option is the partner of the consumer. The partner must have a close continuing relationship with the consumer.
3. Relative/Friend who was a carer
If there is no RP nominee or partner, then a relative or a friend who was an unpaid carer immediately before the consumer entered care can give consent. The unpaid carer must have a personal interest in the welfare of the consumer and a close continuing relationship with them.
4. Relative or friend who was not a carer
If there is no RP nominee, partner or friend fitting the above criteria, then a relative or friend may take the position. This person must have a personal interest in the welfare of the consumer on an unpaid basis and a close and continuing relationship with them.
5. Medical treatment authority, who will best support consumers who cannot consent themselves.
If there is no RP nominee, partner, friend or relative who fits the above criteria, then a medical treatment authority may fulfil the position. A medical treatment authority is an individual or body appointed in writing under legislation. The individual or body must also be able to give informed consent to the provision of medical treatment (however described) to the consumer if they lack capacity to consent.
As the regulatory landscape for restrictive practise decision making changes, providers must take steps to ensure they are compliant with the regulations and requirements. Providers will need to follow the hierarchy accurately to ensure the correct person is appointed as a restrictive practices nominee.
How we can help?
Russell Kennedy’s aged care team is able to provide advice about compliance with the temporary decision-making hierarchy for appointment of a restrictive practices substitute decision-maker, and the process of appointing a restrictive practices nominee.
Please contact Victor Harcourt (03) 9609 1639 or Anita Courtney (03) 8602 7211 for further information.
If you would like to keep up to dates with Alerts, news and Insights from our Aged Care Team, you can subscribe to our mailing list here.