26th of November 2024, 5:59pm
Parliament of Victoria | Legislative Council
David ETTERSHANK (Western Metropolitan):
I rise to make a brief contribution to the Aged Care Restrictive Practices Substitute Decision-maker Bill 2024. Following a recommendation of the Royal Commission into Aged Care Quality and Safety, the Commonwealth introduced legislation in 2021 requiring residential aged care providers to seek consent from substitute decision-makers to authorise the use of restrictive practices, pending complementary legislation at a state and territorial level. The bill before the house is that legislation. It establishes who can act as a decision-maker to give consent to restrictive practices in residential aged care settings when a care recipient is unable to give consent.
While the scope of the bill is limited to who can give consent to restrictive practices, I thought it would be useful to talk briefly about what restrictive practices actually are. When we talk about restrictive practices we are talking about actions taken by an aged care provider and their staff that principally involve restraint of a resident who may be presenting with, for example, challenging behaviours that could pose a risk to themselves, other residents or staff. The restraint may take the form of physical or mechanical restraint, chemical restraint or seclusion in a secure place. In lay terms, restraint could mean strapping a resident to their bed or to furniture, it could mean sedating a patient so that they are virtually incapacitated, or it could mean simply locking them in a room. There are times when this type of restraint is necessary, but it must occur in the context of an appropriate behaviour management plan and in consultation with the resident or their representative, and it must always be a last resort. Restrictive practices are an extremely challenging issue in residential aged care. Unfortunately there have been cases where restraint has been used by aged care providers as an alternative to having adequately trained and on-duty staff, something that was repeatedly exposed in the lead-up to and during the royal commission into aged care.
The issue of appropriate restraint becomes even more problematic when a resident’s mental state precludes them from making informed decisions – for example, if the resident is impaired by neurodegenerative conditions such as advanced Alzheimer’s or dementia. For residents and their families and service providers this loss of competency by the resident, be it permanent or intermittent, can be an agonising conundrum. In this very difficult situation the consent for restrictive practices needs to be obtained by a substitute decision-maker. This bill establishes a hierarchy of who can be that decision-maker, starting with nominees who are chosen by the aged care recipient in advance, and this is obviously the preferred option. That is followed by a choice of next of kin, who would be identified through an agreed order of precedence identified in the bill. Then finally, if there is no-one else, VCAT can appoint the decision-maker and also act to resolve any disputes.
The bill establishes new offences and penalties for inducing a decision-making nomination or fraudulently acting as a decision-maker. Legalise Cannabis is supportive of the bill. It aligns Victorian law with the requirements of the Commonwealth legislation and gives certainty to both providers and recipients of residential aged care services. Stakeholders from the aged care sector have raised a few concerns about the bill, and I will be seeking to get some clarity and guidance for the benefit of the residential aged care services sector during the committee-of-the-whole stage.
[Bill passed without objection]
