When it comes to restrictive practices, legal immunity is not the answer 

Dr Bryan Keon-Cohen AM KC, Aged Care Justice (formerly ALARM) President

In this guest post, Dr Bryan Keon-Cohen AM QC, President of Aged Care Justice (formerly ALARM), responds to the passing of the Aged Care and Other Legislation Amendment (Royal Commission Response) Bill 2022 and Schedule 9 dealing with restrictive practices.

An Aged Care reform Bill was passed on 2nd August including a provision which sends a message that aged care residents deserve less rights than the average Australian.

Schedule 9 now grants an aged care provider with ‘immunity from civil or criminal liability in relation to the use of a restrictive practice in certain circumstances.’ A restrictive practice is any action that restricts a resident’s rights or freedom of movement. The prescribing of psychotropic or mind-altering medication to influence a resident’s behaviour is an example of a restrictive practice known as a chemical restraint.

Confining a resident to their room or a chair are other examples, known as environmental and mechanical restraint respectively.

Removing a resident’s right to legal redress when the application of a care practice could lead to unlawful imprisonment is an egregious human rights violation.

Under the Albanese government’s Bill, immunity from civil and/or criminal liability will be granted when a restrictive practice is applied in compliance with the Quality of Care Principles (the Principles). These requirements, however, provide no comfort to legal bodies, advocates and community groups, and more importantly, residents and their families.

The Royal Commission into Aged Care Quality and Safety (the Royal Commission), was called to investigate, among other things, how the industry principles have consistently failed to guarantee adequate care, evidenced by horrendous breaches occurring over many years. This latest Bill, features many welcomed reforms including an increase in care hours and staff wages, however, the Principles continue to lack the detail required for the delivery of appropriate care. 

According to the Minister for Aged Care, Anika Wells, Schedule 9 represents an interim solution until all state and territory governments enact legislation defining who can consent to a restrictive practice on behalf of an aged care resident deemed incapable of doing so, e.g., due to suffering dementia.

However, immunity is a blunt instrument, rarely used in other areas of law, which serves no reformative purpose. Further, while we wait for all jurisdictions to develop their representative consent laws, the types of people who are permitted to be ‘substitute decision makers’ remains undefined in some jurisdictions. What are their duties? Do they act in the best interest of the resident? To what extent is the provider responsible for ensuring residents without capacity have an informed, and well-meaning, substitute decision-maker? Does a clear, enforceable framework exist under the Principles to provide clarity for providers and ensure the protection of the resident?

Aged Care Justice met with Minister Wells’ representatives to discuss our concerns, and submitted alternative provisions to the relevant Ministers in the hope that a strategy to guide providers, and safeguard residents, could be implemented. Some proposed amendments put forward by Aged Care Justice included:

•          negotiating with States and Territories to develop a framework overseeing representative consent; or

•          a hierarchy of substitute decision-makers with defined duties (as suggested by the Australian Law Council), or

•          an indemnity scheme that would ensure victims receive compensation, proposed by Elderlaw Sydney solicitor and Aged Care Justice consultant, Rodney Lewis.

Disappointingly, Schedule 9 was passed, as introduced, without any amendments. This result is especially disheartening given the human rights concerns expressed by various legal bodies and advocacy groups, including Human Rights Watch, Aged Care Matters, Aged Care Reform Now, Law Council of Australia, and the Australian Lawyers Alliance, among others. 

One of the many recommendations made by the Royal Commission was to give a voice to aged care residents. This legislated immunity, however, now presents a barrier to justice. It potentially silences aged care residents, their families and representatives, as it will likely deter them from pursuing the resident’s legal rights.

Aged Care Justice understands that providers have an immensely difficult role in what has long been a neglected sector. That is why Aged Care Justice, and many others, strongly advocated amending this legislation in a way that both supports residents’ rights and enables aged care facilities to easily identify their legal obligations.

When it comes to the application of restrictive practices, which is the last resort measure, we should all strive to get it right.


Please enter your comment!
Please enter your name here