The Victorian Parliament has passed the Aged Care Restrictive Practices (Substitute Decisionmaker) Act 2024 (Vic) (Act) which changes the restrictive practices landscape for Victorian providers. The new regime commences in July 2025.
This Act overrides the hierarchy of Restrictive Practices Substitute Decision Makers set out in the Aged Care Act 1997 and Quality of Care Principles 2014. When obtaining informed consent for the use of a restrictive practice on an aged care recipient, providers must now adhere to this new Act to determine who may consent on behalf of the care recipient.
The key changes that Victorian Providers need to be aware of are:
- Victorian Providers cannot rely on the “hierarchy” set out in the Aged Care Act 1997/Quality of Care Principles 2014
- The new Victorian Act sets out a different hierarchy (which is more narrow than the Aged Care Act)
- There are more requirements for a care recipient to “nominate” a Restrictive Practices Substitute Decision Maker
- Family, friends and advocates can apply to VCAT to be appointed as a Restrictive Practices Substitute Decision Maker
- VCAT can consent to the use of a restrictive practice on a care recipient
- Offence provisions and criminal liability can apply
What is a restrictive practice?
Pursuant to the Aged Care Act 1997, a restrictive practice is any practice or intervention that has the effect of restricting the rights or freedom of movement of the care recipient and includes:
- chemical restraint
- physical and mechanical restraint
- environmental restraint such as placing the care recipient in a memory support unit.
There are strict requirements that providers must adhere to when using a restrictive practice in both residential aged care and home care. One of the requirements is to obtain informed consent from the care recipient or the “Restrictive Practices Substitute Decision Maker” if the care recipient cannot decide this for themselves.
Who is a Restrictive Practices Substitute Decision Maker under the new Victorian Act?
The new Act replaces the ‘hierarchy’ in the Quality of Care Principles 2014 for Victorian providers.
- A nominated person
A care recipient with capacity at the time can nominate an ‘eligible adult’ to be their Restrictive Practices Substitute Decision Maker using a nomination form. This nomination must be witnessed by an authorised affidavit taker (for example a lawyer). Among other things, an adult is an eligible adult if they consent to the nomination and are not an employee or agent of the approved provider, involved in the preparation of a behaviour support plan for the care recipient, subject to a family violence intervention order which names the person making the nomination as an affected family member, and have not been convicted of an offence against the person making the nomination.
A nomination can be revoked by the care recipient while they retain capacity.
- Hierarchy of “temporary” or default decision-makers
If no one is nominated or appointed at the time, the Act sets out a hierarchy of people who could be the Restrictive Practices Substitute Decision Maker.
The first of the following will be the Restrictive Practices Substitute Decision maker if the person is an adult in a close and continuing relationship with the care recipient and is reasonably available, willing and able to make restrictive practices decisions on behalf of the care recipient:
- the spouse or domestic partner of the care recipient;
- the primary carer of the care recipient;
- 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;
- the older parent of the care recipient;
- the younger parent of the care recipient;
- 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 people are excluded, such as employees of the provider.
- Appointment by VCAT
A person can apply to VCAT to be appointed as the Restrictive Practices Substitute Decision Maker. Note there does not appear to be a mechanism for the provider to apply to have another person appointed, although the Act does enable a provider to apply to VCAT for consent to use a restrictive practice on a care recipient.
Examples of people who can be appointed include a member of the extended family of the care recipient, a close personal friend of the care recipient and a lawyer or accountant who acts on behalf of the care recipient.
- Consent obtained by VCAT
Finally, where no one else is available, the provider can apply to VCAT to have the Tribunal provide consent to the use of the restrictive practice. It appears the provider would need to go back to VCAT to re-obtain consent if the proposed use of the restrictive practice(s) on a care recipient is changed in their behaviour support plan.
Note this Act specifically relates to the Restrictive Practices Substitute Decision maker and consent requirements, all other requirements under the Aged Care Act 1997 and Quality of Care Principles 2014 must still be adhered to.
Offences and liability
The new Act impose significant offence and criminal liability provisions on providers and individuals.
For example:
- It is an offence to induce nomination of restrictive practices nominee (600 penalty units or imprisonment for 5 years or both, in the case of a natural person; 2400 penalty units, in the case of a body corporate)
- It is an offence to make false or misleading statement regarding a restrictive practices substitute decision-maker nomination (same penalties)
- The Act imposes Criminal liability of officers of bodies corporate — failure to exercise due diligence
How can we help?
Russell Kennedy offers a range of services and templates with respect to restrictive practices including:
- Template consent forms
- Template appointment or Restrictive Practices Substitute Decision Maker nomination forms
- Template policy
- Training for staff
- Advice in relation to this new Act, other jurisdictions restrictive practices requirements and restrictive practices requirements more generally.