In our 27 August 2021 alert we noted that earlier this year the Aged Care Act 1997 (Cth) (Act) was amended to implement three measures in response to recommendations of the Royal Commission into Aged Care Quality and Safety (Royal Commission), and in the case of restrictive practices, in response to the Australian Healthcare Associates (AHA) Independent Provisions Governing the use of Restraint in Residential Aged Care Final Report. Amongst these measures was the insertion of a new definition of restrictive practices into the Act to bring practice into line with the disability sector. Since 1 September 2021 approved providers now have additional responsibilities in relation to the use of restrictive practices.

Introduction

One key aspect of the legislative change of the Act was to clarify and alter the definitions of restrictive practices in aged care which now includes chemical restraint, physical restraint, environmental restraint, mechanical restraint and seclusion.

The amendments to the Act introduced the term “restrictive practice”, defined as any practice or intervention that has the effect of restricting the rights or freedom of movement of the care recipient. This aligns with the definition of “restrictive practice” applied under the National Disability Insurance Scheme Act 2013 and the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018. One of the defined restrictive practices under the amended Principles is “environmental restraint” (which used to be a type of physical restraint under the previous principles). Whilst on the face of it, the definition of an environmental restraint seems simple, in practice it has implications that many providers are not aware of.

What is an environmental restraint?

Environmental restraint is a practice or intervention that restricts, or that involves restricting, a care recipients free access to all parts of the care recipients environment (including items and activities) for the primary purpose of influencing the care recipients behaviour.

The Principles define the practices or interventions that are taken to be an environmental restraint. The strengthened and clarified definitions of the types of restraint described in the Principles are intended to ensure better understanding by approved providers on what constitutes a restrictive practice and the circumstances for the use of a restrictive practice.

The care recipient’s environment is taken to include the care recipient’s room, any common areas within the facility, and the common grounds outside the facility. It does not include areas within the facility that a care recipient would not normally be permitted, such as meal preparation areas, maintenance areas or medication storage areas or other care recipients’ rooms.

Under this definition, keypad locks on doors will amount to a restrictive practice if it prevents a care recipient from accessing a part of their environment or limits their movement. While keypads are commonly used within facilities for the safety of care recipients, they are a restrictive practice if a care recipient cannot leave freely, even if there is a busy road at the front of the facility. If facilities provided codes to care recipients, or staff are available at all times to open doors when required, this would not be considered an environmental restraint. However, when a keypad code is given to care recipients, but they are unable to remember it or have cognitive impairments (or some other kind of impairment such as visual impairment or wheelchair bound that results in them being unable to use the keypad) this is an environmental restraint.

Environmental restraint also includes restricting a care recipient from accessing an item or activity. For example, locking away cutlery or food and drink, or mobile phones in cupboards or drawers. Restricting a care recipient from accessing activities such as watching television, or making tea or coffee is an environmental restraint.

While this may seem simple enough, it can become complicated when thinking of commonly restricted items such as alcohol or cigarettes. The key aspect of this definition that providers need to consider is whether modifying behaviour is the primary purpose, or ancillary to some other purpose such as a medical condition.

How are Tribunals likely to view restricting access to wanted items?

Various Tribunals have interpreted the meaning of “environmental restraint” in cases before them, dealing with the NDIS regime. In the case of BYC [2020] NSWCATGD 69 (30 November 2020) the front gate of the property where the care recipient lived was locked overnight. Although BYC did not object to the gate being locked overnight, it still constituted an environmental restraint as his freedom of movement was restricted.

In the case of KKD [2019] NSWCATGD 4 (21 January 2019) the Tribunal found that the care recipient’s restricted access to the kitchen refrigerator to prevent excessive consumption of food and drinks was an environmental restraint. Locking doors and gates to prevent the care recipient from leaving to engage in food seeking behaviours was also found to be an environmental restraint.

Under the new definition of an environmental restraint this would unlikely be a restraint if the reason the food/drink was locked away was due to some kind of medical condition such as an allergy (as the primary purpose for locking the food away would be to avoid an allergic reaction, not to alter behaviour).

Another environmental restraint was placed on the care recipient - locking the temporary kitchen stable-height gate. Locking the temporary gate was done to prevent the care recipient from entering the kitchen when meals were being cooked, protecting him from the risk of harm. It was noted in the case that some kinds of restraints might at first appear to be a restrictive practice, but on closer examination, are not. The Tribunal Member stated that the temporary gate in this instance is an environmental restraint but is not a restrictive practice, as this is no different in principle to the placement of barriers to prevent unauthorised access to places of danger, for example machinery plant rooms or industrial kitchens.

It is interesting to note that if the reason the food/drink was locked away was due to some kind of medical condition such as an allergy, it is unlikely to be a restraint as the primary purpose would be to avoid an allergic reaction, not to alter behaviour. It is however prudent to treat this as a restrictive practice given the obligations imposed on approved providers and the consequences of breaching legislative obligations.