Interim consent arrangements for restrictive practices in aged care

Guideline number: QH-GDL-982

Effective date:   26 November 2024

Review date: 30 November 2026

Supersedes: Version 1—Interim consent arrangements for restrictive practices in aged care (originally published 17 July 2024)

On this page:

1. Purpose
2. Scope
3. First Nations people implications
4. Legislation and related documents
5. Guideline for restrictive practices in aged care
6. Flowchart: Restrictive practices substitute decision-maker interim consent hierarchy (PDF 235 kB)
7. Definitions
8. Document approval details
9. Frequently asked questions

1. Purpose

This guideline outlines the requirements for Hospital and Health Services staff seeking consent for the use of restrictive practices in Queensland Health Residential Aged Care Facilities and Multipurpose Health Services. This guideline assists staff to comply with the interim consent hierarchy in place from 1 December 2022 to 1 December 2026, under the Quality of Care Principles 2014 (Cth).

See the quick reference guide (PDF 235 kB) to the substitute decision-maker interim consent hierarchy flowchart. Facilities and services may wish to seek legal advice from their Hospital and Health Service for individual cases.

Everyone in aged care has the right to be safe, treated with dignity and respect, and receive high quality care and services. The Royal Commission into Aged Care Quality and Safety Final Report highlighted the overuse of restrictive practices as a major quality and safety issue for residential aged care. In response, the Commonwealth Government passed the Aged Care and Other Legislation Amendment (Royal Commission Response) Act 2022 (Cth) and Quality of Care Amendment (Restrictive Practices) Principles 2022 (Cth) which provides interim arrangements for restrictive practices to be used in Residential Aged Care Facilities until state and territory laws are amended. The Quality of Care Amendment (Restrictive Practices) Principles 2024 (Cth) provides for the temporary arrangements to expire on 1 December 2026.

2. Scope

This guideline provides information for all Queensland Health employees (permanent, temporary and casual) and all organisations and individuals acting as its agents (including Visiting Medical Officers and other partners, contractors, consultants and volunteers) providing aged care in Queensland Health Residential Aged Care Facilities and Multipurpose Health Services. The Quality of Care Principles 2014 (Cth) apply to Queensland Health as an approved provider of aged care in accordance with the Aged Care Act 1997 (Cth). The advice contained in this guideline will expire on 1 December 2024.

This guideline does not apply to the provision of care for older people in other health services, including aged care services provided in the community. For guidance in other health services, please refer to the Guide to Informed Decision-making in Health Care.

3. First Nations people implications

Aged care is offered to eligible Aboriginal and Torres Strait Islander (First Nations) people from age 50, and to non-First Nations people from age 65. First Nations people may have unique care needs in older age. Although First Nations people can and do use mainstream aged care services, there is also a need for services tailored to the specific needs of First Nations people. In providing culturally appropriate care, residential aged care facilities must consider the suitability and impact of the use of restrictive practices on First Nations people.

4. Legislation and related documents

• Aged Care Act 1997 (Cth)
• Aged Care and Other Legislation Amendment (Royal Commission Response) Act 2022 (Cth)
• Quality of Care Principles 2014 (Cth)
• Quality of Care Amendment (Restrictive Practices) Principles 2022 (Cth)
• Quality of Care Amendment (Restrictive Practices) Principles 2024 (Cth)
• Aged Care Quality Standards
• Guardianship and Administration Act 2000 (Qld)
• Australian Government Aged Care Quality and Safety Commission Restrictive Practices Provider Resources
• Queensland Office of the Public Guardian ‘Restrictive Practices in Aged Care Policy Statement’
• Queensland Capacity Assessment Guidelines 2020
• Queensland Health Guide to Informed Decision-making in Health Care.

5. Guideline for restrictive practices in aged care

5.1 Types of restrictive practices

5.1.1.  Restrictive practices are any practice or intervention that limits a resident’s rights or their freedom of movement. Restrictive practices must only be used in certain circumstances detailed in paragraph 5.2.4 below. Restrictive practices should never be used as a punishment.

5.1.2.  Restrictive practices can be:

• Chemical – Using medication or chemical substances for the primary purpose of influencing a resident’s behaviour. This does not include prescribing medication for the treatment of a diagnosed mental disorder, physical illness, physical condition, or end-of-life care.
• Environmental – Restricting or limiting a resident’s movement or free access to all parts of their environment, for example, securing doors to prevent access to outside areas, locking drawers, or moving mobility aids out of reach for the primary purpose of influencing a resident’s behaviour.
• Mechanical – Using a device, like bed rails, low beds, or clothing, to prevent a resident from moving for the primary purpose of influencing a resident’s behaviour. This does not include the use of a device for therapeutic care or non-behavioural purposes in relation to the resident.
• Physical – Using force to prevent, restrict or subdue a resident’s movement for the primary purpose of influencing a resident’s behaviour, other than the reasonable use of hands-on techniques used in a reflexive way to guide or redirect the resident away from potential harm or injury.
• Seclusion – Putting a resident in solitary confinement in a room or physical space where they cannot choose to leave, or it is implied that they cannot choose to leave, for the primary purpose of influencing a resident’s behaviour.

5.2 Requirements for the use of restrictive practices

5.2.1.  Inappropriate use of restrictive practices can cause serious physical injury, psychological harm and may cause death. Psychological harm may include trauma, fear, shame, anxiety, depression and loss of dignity. Restrictive practices can damage relationships and trust between a resident and the person carrying out the restrictive practice. They can increase power imbalances and feelings of helplessness and lead to a loss of independence for the resident.

5.2.2.  The use of restrictive practices in a manner that is not outlined in this document may result in criminal charges or civil action being brought against a person or Queensland Health.

5.2.3.  The use of a restrictive practice in circumstances other than those set out in the Quality of Care Principles 2014 (Cth) is a reportable incident that must be reported to the Aged Care Quality and Safety Commission. Reportable incidents must be lodged by providers using the Serious Incident Response Scheme Notice tile on the My Aged Care Service and Support portal.

5.2.4. Except in an emergency, restrictive practices should only be used in the following circumstances:

5.2.4.1. after informed consent has been obtained;

5.2.4.2. as a last resort to prevent harm to the resident or other persons and after consideration of the likely impact of use on the resident;

5.2.4.3. after, to the extent possible, best practice alternative strategies have been used;

5.2.4.4. following consideration of, or use of, alternative strategies for the resident which have been documented in the resident’s Behaviour Support Plan;

5.2.4.5. only to the extent that it is necessary and in proportion to the risk of harm to the resident or other persons;

5.2.4.6. when the restrictive practice is used in the least restrictive form and for the shortest amount of time; and

5.2.4.7. in accordance with any provisions of the Behaviour Support Plan for the resident, the Aged Care Quality Standards, and any other legal or procedural requirements.

5.2.5. If the use of a restrictive practice is necessary in an emergency the following applies:

5.2.5.1. the restrictive practice must be used only to the extent that it is necessary and in proportion to the risk of harm to the resident or other persons;

5.2.5.2. the restrictive practice must be used in the least restrictive form, and for the shortest time, necessary to prevent harm to the resident or other persons;

5.2.5.3. the restrictive practice must comply with the Aged Care Quality Standards and any other legal or procedural requirement; and

5.2.5.4. as soon as practicable after the restrictive practice starts, the restrictive practices substitute decision-maker must be informed and the use must be documented in the resident’s Behaviour Support Plan.

5.2.6. When using a restrictive practice, the resident must be monitored for signs of decline, distress, or harm. The use of the restrictive practice must be regularly reviewed and ceased or removed as soon as possible.

5.3 Interim consent requirements for the use of restrictive practices in residential aged care facilities and multipurpose health services

5.3.1. When a decision has been made to use a restrictive practice, informed consent must be given by the resident, or the substitute decision-maker where the resident lacks capacity, and documented (through the resident’s Behaviour Support Plan). Informed consent must include consent regarding the duration, frequency and intended outcome of the restrictive practice.

5.3.2. The process of obtaining consent for the use of restrictive practices differs from obtaining consent to healthcare decisions. In Queensland, while restrictive practices may be used to administer healthcare, restrictive practices are not considered healthcare practices or treatments when used for the primary purpose of influencing a person’s behaviour. As such, refer to the consent hierarchy in 5.4. for further information on the consent arrangements for restrictive practices in aged care in Queensland.

5.3.3. This step-by-step process should be followed:

Step 1 - Does the resident have capacity to provide informed consent to the use of the restrictive practice? If yes, consent may be provided or withheld by the resident. If the resident lacks capacity to consent, informed consent must be obtained from another person or body. Proceed to the next step.

Step 2 - Is there an individual or body that is appointed under Queensland law to give informed consent to the use of the restrictive practice? If yes, consent must be provided by that person or body. If not, proceed to the next step.

Note - Hospital and Health Services may wish to seek independent legal advice for individual cases.

Step 3 - An application may be made to appoint an individual or body to provide consent to the restrictive practice. This will involve an application to appoint a guardian under the Guardianship and Administration Act 2000 (Qld) who may then provide consent to the restrictive practice, in accordance with the conditions and authorisation granted to the guardian by the Queensland Civil and Administrative Tribunal.

Step 4 - If no such application is made, restrictive practices cannot be used, except for in an emergency, as there is no individual or body authorised to provide consent.

Step 5 - If an application is made and a significant delay in the appointment arises, only then can you move to the expanded category of individuals and bodies outlined in section 5B(2) of the Quality of Care Principles 2014 (Cth) that can provide consent as a restrictive practices substitute decision-maker. Please refer to the interim consent hierarchy at 5.4 below.

Note - Consideration of whether a delay is ‘significant’ will depend on the individual circumstances for each resident. The intention is to ensure informed consent can be given when there is a significant delay with a tribunal considering an application, recognising the time it may take to decide applications. A ‘significant delay’ is considered months or years rather than days or weeks[1]. The following matters should also be considered when determining whether a significant delay is occurring:

• the relevant circumstances for the resident;
• the impact and consequences of the timing of the decision on the resident and their safety;
• whether the impacts and consequences are reversible.

You may wish to consider seeking an interim order from the Queensland Civil and Administrative Tribunal for the appointment of an interim guardian.

If consent has been withheld, restrictive practices cannot be used outside of an emergency.

Providers may want to seek their own independent advice, including legal advice, as specific cases arise.

[1] Ministerial Response to Parliamentary Joint Committee on Human Rights Scrutiny Report 3 of 2023 Report 3 of 2023 – Parliament of Australia (aph.gov.au), 3.

5.4 Interim consent hierarchy

5.4.1. The interim consent hierarchy (also shown via Flowchart in Figure 1) involves obtaining consent, in order of priority:

BASELINE – Consent for the use of restrictive practices should be sought from the resident, so long as they have capacity to consent.

Step 0: The Queensland Civil and Administrative Tribunal – Where a resident cannot provide consent, steps should be taken to identify their will and preference for a legally appointed person or body to make decisions on their behalf, regarding the use of restrictive practices. Following this, you can make an application to the Queensland Civil and Administrative Tribunal for a restrictive practices substitute decision-maker appointment under the Guardianship and Administration Act 2000. If no suitable adult is available, the Public Guardian will need to be appointed by the Queensland Civil and Administrative Tribunal.

Note - If there is a significant delay in the application process through the Queensland Civil and Administrative Tribunal for a guardianship order, (for a legally appointed person or body to make decisions on the resident’s behalf), you can progress through the restrictive practices substitute decision-maker consent hierarchy. This establishes an interim restrictive practices substitute decision-maker. When the guardianship order is made, the interim appointment ceases to apply, and the person identified in the guardianship order becomes the restrictive practices decision-maker.

You must exhaust all possible options at each step of the restrictive practices substitute decision-maker consent hierarchy before considering the next step.

Step 1: Restrictive Practices Nominee – Has a person or group of individuals been nominated by the resident (when the resident had capacity to do so) in writing as a Restrictive Practices Nominee? If not, proceed to the next step.

Step 2: The resident’s partner with a close continuing relationship (e.g. – current spouse) – Does the resident have a partner with a close continuing relationship with capacity to act as a restrictive practices substitute decision-maker, and have they agreed in writing? If not, proceed to the next step.

Step 3: The resident’s family or friend who was a carer – Does the resident have a relative or friend who: was a carer for the resident on an unpaid basis immediately before the resident entered aged care; has a personal interest in the resident’s welfare on an unpaid basis; has a close continuing relationship with the resident; has capacity to act as the restrictive practices substitute decision-maker for the resident; and has agreed in writing? If not, proceed to the next step.

Step 4: The resident’s family or friend – Does the resident have a relative or friend who: has a personal interest in the resident’s welfare on an unpaid basis; has a close continuing relationship with the resident; has capacity to act as the restrictive practices substitute decision-maker for the resident; and has agreed in writing? If not, proceed to the next step.

Step 5: Medical treatment authority – Is there a person or body appointed under Queensland law to consent to medical treatment/procedures in relation to the resident? If not, the restrictive practice cannot be used unless it is necessary in an emergency situation.

NOTE – Only if Baseline is not available, should step 0 be considered. If step 0 is not available due to significant delays with the Queensland Civil and Administrative Tribunal, step 1 should be considered. Then, if step 1 is not available, step 2 should be considered and so on. You must exhaust all possible options at each step of the restrictive practices substitute decision-maker interim consent hierarchy, before considering the next step. For example, a resident’s family member or friend who was a carer on an unpaid basis prior to the resident entering care (Step 3) cannot be the restrictive practices substitute decision-maker, if a restrictive practices nominee (Step 1) is available.

5.4.2. If consent is not given by any of the eligible restrictive practices substitute decision-makers under the interim consent hierarchy, the restrictive practice cannot be used.

Note - If there is both a significant delay in the Queensland Civil and Administrative Tribunal application process, and the requirements of the restrictive practices substitute decision-maker consent hierarchy cannot be fulfilled (i.e. the resident does not have a nominee, partner, relative/friend, or medical treatment authority), restrictive practices cannot be used until the guardianship order is established, even if this takes a significant amount of time. However, restrictive practices may be used as a last resort in the event of an emergency.

5.5 Reviewing ongoing need

5.5.1. If a restrictive practice is in place, consider whether there is an ongoing need for its use. This includes whether the environment and behavioural supports available allow for removal or reduction of the restrictive practice.

5.5.2. If there is no information available indicating the need for the ongoing use of the restrictive practice, consider whether it is required and begin a well monitored progressive withdrawal of the restrictive practice. This should always be done in close consultation with the resident or their guardian or restrictive practices substitute decision-maker. Throughout this process, information should always be documented in the resident’s Behaviour Support Plan to record its outcome.

5.6 Documentation

5.6.1. If a restrictive practices substitute decision-maker has not be appointed, it is not necessary for a Behaviour Support Plan to be in place to progress an application to the Queensland Civil and Administrative Tribunal for the appointment of a guardian. However, it is practical and advisable to develop a Behaviour Support Plan to identify alternative strategies to manage any behaviours of concern and assess whether there is a need for a restrictive practice substitute decision-maker. Where the individual is already a resident, it is recommended that facilities retain a record of any assessments relating to the care recipient, observation notes for behaviours of concern, details of the behavioural strategies used as alternatives to restrictive practices and the outcome of those strategies to support an application. This information may be requested by the Queensland Civil and Administrative Tribunal.

5.6.2. Receiving informed consent to restrictive practices by the eligible restrictive practices substitute decision-maker must be documented in the resident’s Behaviour Support Plan.

5.6.3.Ensure informed consent is clearly documented and recorded as follows

• Understanding and documenting who a substitute decision-maker may be for a resident, and what they are authorised to give consent for, on behalf of that resident.
• Documenting that the prescribing healthcare professional has gained appropriate informed consent.
• Communicating with family members or substitute decision-makers that consent for a restrictive practice is or may be required.
• Communicating with a substitute decision-maker that a restrictive practice, which may include a medication, has been used or administered to a resident in an emergency situation, and documenting that communication.

Determine how this system works for your Hospital and Health Service and the resident, including medical professionals who may prescribe medication, recording methods and practices for clinical notes, and the preferred method of communication between the service, each resident and their family.