Aged care providers to be exempt from civil and criminal prosecution in new restraints legislation

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A last-minute amendment to the aged care bill which passed the House of Representatives in October has given aged care providers immunity from civil or criminal prosecution for using physical and chemical restraints.

The bill will shield providers from legal repercussions for restraint, provided they comply with consent guidelines that have yet to be developed; the move has outraged advocates, saying it deprives aged care residents of rights and protections afforded to other Australians.

Paul Sadler, CEO of ACSA, told the Sydney Morning Herald that providers wanted the immunity provisions due to inconsistent state and territory laws surrounding guardianship.

“Otherwise, providers and their families were going to be in this invidious position of having to work with a piece of legislation federally that didn’t coincide with what the laws are in the states over who can make decisions about restrictive practices,” he said.

The Herald quoted a spokesperson for the Aged Care Services Minister, Senator Richard Colbeck, who said that the laws were changed to protect providers if consent is given by an authorised person; the Quality of Care principles are being updated to define who can give such consent.

“The Quality of Care Principles also require that restrictive practices must only be used as a last resort, only to the extent that is necessary, for the shortest time and in the least restrictive form, and to prevent harm to the care recipient,” the spokesperson added.

Residential Aged Care Quality Indicators data released in September showed a slight decline in the use of physical restraint, part of a continuing trend.