Before you apply – Restrictive practices in residential aged care

Australia’s aged care system is regulated by the Aged Care Act 1997 (Cth). This includes the use of restrictive practices in relation to a care recipient. Restrictive practices must only be used as a last resort to prevent harm to a care recipient or to other persons. The Aged Care Act 1997 (Cth) requires that informed consent must be provided before restrictive practices can be used.

There are five types of restrictive practices:

• chemical restraint
• environmental restraint
• mechanical restraint
• physical restraint
• seclusion.

Learn more about the types of restrictive practices.

The Aged Care Restrictive Practices Substitute Decision-maker Act 2024 provides the legal avenue in Victoria to appoint a restrictive practices substitute decision-maker for the purpose of consenting to the use of restrictive practices in residential aged care.

When is a restrictive practices substitute decision-maker required? 

A restrictive practices substitute decision-maker is required when a care recipient does not have capacity to provide consent to the use of a restrictive practice, and the use of a restrictive practice is proposed.

Identifying a restrictive practices substitute decision-maker

The Aged Care Restrictive Practices Substitute Decision-maker Act 2024 identifies who can consent to the use of restrictive practices. There are listed in order of eligibility:

• restrictive practices nominee
• temporary restrictive practices substitute decision-maker
• restrictive practices substitute decision-maker appointed by VCAT
• VCAT, as a last resort substitute decision-maker.

Who is a restrictive practices nominee?

A restrictive practices nominee is a person over the age of 18 who is nominated by the care recipient in writing, when the care recipient has decision-making capacity, to act as the care recipient’s restrictive practices substitute decision-maker. 

You can use the Nomination of a Restrictive Practices Substitute Decision-maker form [PDF] from the Department of Health’s website to make this nomination.

A restrictive practices nominee is a restrictive practices substitute decision-maker if section 7 of the Aged Care Restrictive Practices Substitute Decision-maker Act 2024 is complied with. There is no need to apply to VCAT for an order if a restrictive practices nominee is appointed under section 7. If there are disputes regarding the nomination or appointment, you can apply to VCAT for an order. 

Who is a temporary decision-maker?

If there is no nomination or if VCAT has not made an appointment, a temporary restrictive practices substitute decision-maker is identified in accordance with a hierarchy under section 8 of the Aged Care Restrictive Practices Substitute Decision-maker Act 2024, which is listed below, in order of eligibility:

1. the spouse or domestic partner of the care recipient
2. the primary carer of the care recipient
3. the oldest child of the care recipient, followed by the other children in descending order of age if there are two or more adult children
4. the older parent of the care recipient, followed by the younger parent
5. the oldest sibling of the care recipient, followed by the other siblings of the care recipient in descending order of age if there are two or more adult siblings.

A temporary decision-maker must be an adult in close and continuing relationship with the care recipient and who is available and willing to make restrictive practices decisions. 

A temporary decision-maker is appointed as a temporary restrictive practices substitute decision-maker by operation of section 8 and the appointment is only in place for one instance where a decision must be made. Once a decision is made by the temporary decision-maker, the function has been completed, and the appointment will cease.

There is no need to apply to VCAT for an order if the appointment of a temporary restrictive practices substitute decision-maker is made under section 8. If disputes arise around the appointment, you can apply to VCAT for an order.

Get help and advice before you apply

If you have concerns that your rights under the Aged Care Act 2024 is not being upheld, you can speak to the Aged Care Quality and Safety Commission.

Visit the Department of Health’s website for more information on the appointment of a restrictive practices substitute decision-maker in Victoria.

Apply

Contact us to get support. We can explain the application process and what the form is asking you for.

We cannot give you legal advice. This means we cannot tell you what to write in your application or recommend how to get the outcome you want. Seek legal help if you are unsure about your options or need advice about your claim.