Time for the Premiers to fix restraints rules, in the meantime a temporary fix is needed

COTA Australia has campaigned for many years to reduce and restrict the use of restraints in Nursing Homes. For decades one of the most common forms of abuse of Older Australians has involved tying them to chairs, locking them in rooms, or using drugs to make them compliant. Growing old often involves disabilities, it shouldn’t be a prison sentence.

In a perfect world the use of restraints should be abolished, and all those who use them charged with the false imprisonment and assault, much like if that was done to anyone else. The world is not perfect, and we must acknowledge there are occasions when restrains will need to be used. For example, for some people dementia symptoms, for example, can include violent behaviour. Other residents, staff, and visitors have a right to be safe. In the real world, we know we are in a debate about how, when, and under which circumstances restraints can be used.

Coming out of the Royal Commission we have had great success in getting rules put in place that protect care residents. After many years of society and government turning a blind eye to horrendous abuse, we are now getting the laws put in place that are needed. Restraints should only be used for the minimal time necessary; every occasion of their use should be reviewed by an external third party, and only as a last resort after other measures are tried.

One of the biggest issues we are currently facing is about consent. Lots of residents have a family member or supporter who has a power of attorney, or legal guardianship. How, if and when restraints are used often involves seeking their consent. Unfortunately, the laws of guardianship are a mess across the country. They’re incompatible, unclear, and inconsistent. For decades we have seen State Attorneys General agree they need to be fixed, and we continue to be disappointed by a lack of the work being done.

The problem is so bad, that when the Federal Government passed a law in Parliament earlier this year which cracked down on the unethical and abusive use of restraints, the provision that consent should be in accordance with consent law, which is State based, was unworkable in some States. Their legislation doesn’t have any such provision!

Because some State Governments have not done their jobs right, the Federal Government has now had to provide a bridging provision, which has been added to the Bill now in the Senate. Where State provisions are missing, this fills in the gap, specifying who can be authorised to give consent. It also protects aged care staff who d the right thing but are not compliant with faulty State law. The amendment says that if an aged care worker uses restraints in a way that is correct, following all the rules, and with agreement from guardians, they will be protected from prosecution. This won’t provide protections in the case of abuse, or misuse of restraints, or failure to get consent, but will protect workers who are doing the right thing.

If the Premiers did the right thing, and fixed guardianship law, this clause would not be necessary. As soon as they State Governments do their jobs, it can and should be removed. There will be an end date of June 2023 at the latest, giving States a deadline. In the meantime, we should be celebrating the Federal Government following the Royal Commission’s recommendations and cracking down on the use of physical and chemical restrains on older Australians.