By Rodney Lewis, Senior Solicitor, Elderlaw Legal Services

There is a good deal of confusion about the rules surrounding and the law applying to restraint. In particular the article by Caroline Egan of 22 May shows that there is confusion right throughout the aged care system.

One of the reasons why confusion exists is almost certainly because the Commonwealth government has not sought to regulate the issue of restraint except insofar as requiring that certain assaults be reported. Not that we are advocating the Commonwealth should legislate in this area because we believe that if it happened, that would just compound the confusion.

Here are some of the important things which everybody in the aged care system, who is working as staff, or who is a resident, or a family member or friend of a resident, needs to know.

First, unlawful restraint in any form gives rise to both criminal and civil claims issues. In each case of physical, chemical or environmental restraint which is unlawful, there is the distinct possibility that a crime of assault has been committed. There are some criminal law statutes in every State and Territory dealing with assault and generally speaking, these restraints are offences of the common-law. The law treats false imprisonment (which includes unlawful restraint), battery (which includes contact with another person without lawful excuse) as forms of assault. The penalty ranges from 2 years imprisonment (with no actual bodily harm) to 5 years if there is actual bodily harm, in NSW for example.

This is one of the reasons why there is confusion about restraint, generally among non-lawyers. Another reason for lack of awareness is that there have not been any prosecutions (yet) for unlawful assault in a residential aged care facility involving restraint. This is likely to occur at any time and will provide a salutary lesson for all of us involved in aged care. The offence carries a term of imprisonment. Those who in management positions may have directed a policy of , say, chemical or environmental restraint, without first having lawful consent, may also be criminally responsible, along with the staff who have carried out the policy resulting in the offence. It is very hard to understand why aged care providers have not acted long ago to mitigate this risk for their employees. Perhaps it is the lack of a case which demonstrates the risk which is the missing element?

Second, the article claims that consent to chemical restraint is not addressed by the proposed new amendments to Reportable Assaults. That is correct because the proposed law says: “the provider must not use a chemical restraint in relation to a consumer unless: … (c) the consumer’s representative is informed before the restraint is used if it is practicable to do so “. This is poor drafting at best, and the missing additional appropriate words are : “for the purpose of seeking informed consent” after the word “informed”.

Third, lawful consent is one defence against a charge, and the others are that there is imminent harm to the person (who is restrained) or imminent harm to others.

Fourthly, the article asks – “who is responsible for getting consent?” The GP, the nursing home staff? The answer is, each one of those who is involved in the chain of responsibility for ensuring that the person is not unlawfully restrained. Therefore, the GP should get consent when prescribing medication or seclusion or physical restraint unless there is consent or emergency circumstances (imminent harm). Similarly, staff have that responsibility when administering or applying the restraint. Management is responsible for ensuring there are clear guidelines for obtaining informed consent.

If there continues to be a serious lack of awareness of rights and responsibilities in this important area of aged care practice, someone soon will likely pay a severe price for their unlawful conduct. A complaint will be brought and the police will act upon an appropriate case. Imprisonment and fines are generally the outcome of a conviction in a serious case. Compensation is payable in civil cases.

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