Morrison Government's understanding of human rights and aged care appears flawed

"Restrictive practices can elicit concern for a number of reasons. Fundamentally, they impact on the liberty and dignity of the care recipient. In circumstances where they are not absolutely necessary, their use is likely to sit uncomfortably for many. Their use without lawful consent may infringe the resident’s legal rights and constitute a civil or criminal offence, such as assault or false imprisonment, although there are very few cases in Australia where a criminal or civil complaint has been pursued to challenge the use of a restraint in an aged care setting. Physical and chemical restraint can have significant adverse effects on a resident, both physically and psychologically. There are also fundamental questions about their effectiveness."  [Royal Commission into Aged Care Quality and Safety, Background Paper 4, May 2019]

9 News, 20 August 2019: 

The Commonwealth government recently introduced changes aimed at limiting the use of restraints in residential facilities. 

But experts believe the regulations have created many more problems than they solved. 

They are urging the Commonwealth to scrap the regulations and start again from scratch. 

Queensland's public guardian Natalie Siegel-Brown said the changes placed her agency and the community in a "really compromising" position. 

"Unfortunately in their current form, the principles actually regress the recognition of human rights of people living in aged care, particularly with respect to chemical restraints," she told the committee in Sydney on Tuesday. 

"But the entire suite itself lacks any monitoring, enforcement or oversight in any event, and this can lead to greater problems." 

Colleen Pearce, from the Victorian Office of the Public Advocate, said aspects of the regulations were flawed and ambiguous. 

"We consider the principles are inconsistent with people's human rights (and) would preferably be contained in legislation," 

Dr Pearce told the committee. "(The principles) introduce, in the case of physical restraints, a new flawed and ambiguous substitute decision-making regime, provide virtually no regulation of chemical restraint usage, and lack the safeguards of other restrictive practices regulatory schemes." 

Joseph Ibrahim, the head of the Health Law and Ageing Research Unit at Melbourne's Monash University, described the regulations as stupid. 

"There is no monitoring mechanism, there are no sanctions associated, there is no way of implementing or making sure the law comes into effect," Professor Ibrahim said. 
A group of advocates believe the government should be prohibiting the misuse of restraints and over-medication, rather than regulating them. 

They argue medication should only be used for therapeutic practices and be administered with a patient's free and informed consent. 

The group includes Aged and Disability Advocacy Australia (ADA) and Human Rights Watch, both of which addressed the hearing on Tuesday. 

"Older people in nursing homes are at serious risk of harm if this new aged care regulation is allowed to stand as is," ADA chief executive Geoff Rowe said. 

"Australia's parliament should act urgently to ensure that everyone, including older people, is free from the threat of chemical restraint.".....

The Canberra Times, 21 August 2019:

New rules on the use of restraints in aged care could lead to more elderly residents being sedated, a parliamentary inquiry has heard. 

The regulation is also unenforceable, and does nothing to relief the staffing pressures that have led to the use of restraints, expert witnesses have said..... 

Professor Joe Ibrahim from Monash University's Health Law and Ageing Research Unit said the regulation also did not recognise the pressures within aged care that forced staff to use restraints. 

"Staff restrain residents to get through their day because they don't have enough hands to get through what's needed or they don't have the skills, knowledge, ability to assess why a person has responsive behaviours or unmet needs to address that," Professor Ibrahim said. 

"A law that isn't monitored, has no sanctions, no way of checking, it will drive practice underground." 

Queensland Nurses and Midwives Union professional officer Jamie Shepherd said he knew of a case where one registered nurse had to administer medication to 166 residents on night shift, and management resisted rostering on an enrolled nurse to help until the RN threatened to call an ambulance each night to assist. 

Australian Nursing and Midwifery Federation federal professional officer Julie Reeves said through a recent member survey, she learnt of an aged care home where there were just six staff rostered on overnight to look after 420 residents. 

"We cannot always effectively manage challenging behaviour issues for dementia residents while at the same time caring for others who have very complex health issues. 

We receive little to no support from management when things don't go as planned," she quoted the member as saying. 

Australian Human Rights Commission president, Emeritus Professor Rosalind Croucher said while parts of the regulation had merit, it should not be allowed to proceed unless there was a mechanism for independent oversight. "If it's a choice of it or nothing, nothing might be better than it as it is," Professor Croucher said....

Physical restraining devices currently allowed in Commonwealth-funded aged care facilities are:

Bed rails
Chairs with locked tables
Seat belts other than those used during active transport
Safety vests
Shackles
Manacles
[my yellow highlighting]

Chemical restraint is any medication or chemical substance used for the purpose of affecting a person's behaviour, other than medication prescribed for the treatment of, or to enable treatment of, a diagnosed mental disorder, a physical illness or a physical condition. 

Use of chemical restraint is specifically excluded from assessment in the National Aged Care Mandatory Quality Indicator Program. [See p.15]


BACKGROUND:

 Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019