A government committee has heard that Australia’s regulation of the use of physical and chemical constraints is in breach of human rights conventions.

Former aged care minister Ken Wyatt approved the new regulations to limit the use of chemical and physical restraint in April 2019, and they became effective in July.

But a special hearing was held yesterday after a number of groups warned the Parliamentary Joint Committee on Human Rights that the regulations raised human rights concerns.

Consent not required for chemical restraint

Juanita Breen, senior lecturer at the Wicking Dementia Research and Education Centre, appeared at the hearing as an expert witness.

She told HelloCare there were two key themes to the hearings. The first was the fact that different regulations have been made for physical and chemical restraint.

Under the new regulations, physical restraint requires previous measures to have been tried, and those measures documented, the prescriber has to know the person, the person has to give informed consent, and there must be documented follow up.

But for chemical restraint, these measures do not apply. Most importantly, consent is not required; the person only has to be informed they have been given the medication “if practicable”.

“Informed consent is a basic human right, but it doesn’t seem to apply in nursing homes” Ms Breen told HelloCare.

Regulations rushed

The other key theme of the hearing was the regulation was rushed, and developed mainly on the advice of the medical profession, with little legal or other representation which might have cautioned against breaches of human rights or the impact of the regulations in practical terms.

New regulations a “missed opportunity”

Ms Breen said the new regulations were a “missed opportunity” to provide regulations that could have informed “best practice”.

She said the fact the new regulations make physical restraint harder to access is almost like endorsing the use of chemical restraint. “It’s like saying it’s okay”, she said.

Ms Breen said she hopes the new regulations will be rescinded.

“Inconsistent with Australia’s obligations under several human rights treaties”

In its letter to the joint committee ahead of the hearing, HRW said the United States’ experience is that use of psychotropic medication is associated with a nearly doubled risk of death, falls, stroke, and the inability to stay awake to spend time with loved ones.

“This legislation, which aims to regulate the use of restraints in aged care facilities, is inconsistent with Australia’s obligations under several core human rights treaties that Australia has ratified,” HRW wrote.

“The use of physical or chemical restraints for control, punishment, retaliation, or as a measure of convenience for nursing facility staff should be prohibited.”

“Medicines should only ever be used for therapeutic purposes and with the free and informed consent of the person receiving them.”

Who will give consent when 40% have no visitors?

A letter from Dr Colleen Pearce, Public Advocate from the Office of the Public Advocate, to the joint committee before the hearing said it was surprising, “given the legal and human rights affected by the use of restraint and seclusion” that the regulations were not developed through an Act of Parliament “after consideration and debate”.

She said it has been reported that 40 per cent of people living in residential aged care have no visitors, and therefore there is a question to answer about who would give consent in these situations, and who would be informed when chemical restraint is applied?

She said the regulations “are inadequate to offer real human rights protections”.

A “complex” issue

Leading Aged Services Australia CEO, Sean Rooney, told HelloCare, “The use of chemical or physical restraint is a complex issue in an aged care setting where behaviours can sometimes pose a risk to the resident or others. 

“LASA believes that restraint measures should only be implemented after all other strategies to deal with these behaviours have been exhausted.

“The use of restraint is a shared responsibility involving the resident, their family or advocate, a GP and other medical professionals, pharmacists and care staff.”

Mr Rooney said better education is needed in the community and among aged care staff about how dementia affects people, and how to manage the symptoms of dementia.

“LASA has recommended to government the development of appropriate, standardised processes for recording, reporting, monitoring and reviewing physical and chemical restraints as part of any legislation regulating restraint, whilst also calling for appropriate funding to ensure providers are adequately resourced to meet the care needs that older Australians need and deserve.”

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