Physical and chemical restraints are “ a human rights issue” – Victoria updates law surrounding decision makers

Law to provide clarity

The use, and decision of, physical and chemical restrains in aged care facilities is not a light topic. Yet it is critical for residents, loved ones and the aged care sector that the law is as clear on decision makers, and safeguards are in place to guide these difficult decisions. The Victorian state government has responded to confusion from the sector by seeking to clarify who can make decisions on the use of a “restrictive practice in residential aged care”. Commencing 1 July 2025, “the Aged Care Restrictive Practices Substitute Decision-maker Act (SDM Act) is now law, there is still work to be done for understanding to settle across the sector. Non-profit Aged Care Justice (ACJ) has created resources to understand these changes.

The seriousness of the conduct

Coming out of the Royal Commission the extent of restraint use was profoundly concerning. With the finding of “overuse of restrictive practices” within the sector, urgent legislative reforms were called for.

Experts across the sector advise that provider leadership regularly familiarise themselves with the reality of the conduct of restrictive practices.

Aged Care Justice reminds that, “restrictive practices involve limiting an individual’s freedom to control their behaviour, and can include physical restraint, the use of psychoactive medications, or secluding an individual in a room where they cannot leave or are led to believe they cannot leave.”

In addition to fully understanding the legal updates surrounding their use, it is worthwhile for all executive and clinical leadership to personally practice understanding what it may feel like to be restricted to a room through physical or mental measures.

The new Act

Aged Care Justice explains that the new Act, “provides a hierarchy of persons who can make decisions on behalf of an aged care resident in relation to the use of a restrictive practice, when the aged care resident does not have decision making capacity.”

Provider and clinical leadership now have use of a series of Fact Sheets, geared to residents and loved ones, as well as in-house legal teams to elevate the understanding and compliance of practice for the new requirement.

It is also critical that front-line staff are aware of the changes to powers given to decision makers and what to ensure before restraints use are known to be compliant. While under Federal law, the provision is evident that providers must “obtain informed consent to a restrictive practice prior to use”, in Victoria, “Enduring Powers of Attorney or Medical Treatment Decision Maker appointments in Victoria do not cover restrictive practices.” The SDM Act is an attempt to clarify and protect both resident and provider from confusion as to who can make decisions.

ACJ CEO and solicitor, Anna Willis notes, ““These reforms were urgently required to stop the confusion on who can provide or withhold consent to the use of a restrictive practice.”

“This is a human rights issue, and further reforms are needed, such as guidelines to assist a substitute decision maker on the considerations in making these difficult decisions.”

Clarity of substitute decision makers

ACJ explains the new Act as it directly impacts who providers must ensure has given consent in the complexity of situations, loved ones and resident cognizance.

“The order of substitute decision makers set out by the SDM Act is:

(1) a person nominated by the aged care resident

(2) a temporary appointment if there is no nomination,

(3) appointment by application to the Victorian Civil Administration Tribunal (VCAT), and

(4) application by the aged care provider for VCAT to decide on the use of a restrictive practice.”

Supporting residents decisions

Chair and Dentons Partner, Sue Williamson notes, ““Many people believe that because you are a resident’s next of kin, or spouse, or EPOA, that you can make decisions regarding their aged care practices”.

For providers and front-line staff, understanding the complexity of this area of care is paramount, “The reality is that substitute decision making is a complicated area of law and different roles have different responsibilities. Decision making capacity can also fluctuate, and the law requires residents to be supported to make their own decisions when they are able to.”

It is through a coalition of experts and support that the sector at large can support the highest quality care for all residents. Williamson shares, “Our Fact Sheets aim to increase community understanding and safeguard older Australians’ rights.”

For difficult care realities, empathetic practice and legislative rigour is a worthwhile mix for leadership to adopt. This mix may go a long way to providing substance and nuance to implementing overarching policy and procedure in these weighty areas for residents and front-line staff.