Restraint in aged care: What constitutes negligence?

7 February 2023

Gerard Malouf

Across Australia, residents of nursing homes and aged care facilities are routinely physically or chemically restrained as a safety precaution for themselves and others. If you believe a loved one or family member is being unethically restrained, however, you should reach out to the nursing home abuse lawyers at Gerard Malouf & Partners (GMP Law) for help. Our experienced team can help you parse through legal ramifications of restraint in nursing homes and help determine if you have a compensation claim for negligence or abuse.

What does wrongful use of restraint mean?

There is a lot of murkiness surrounding the use of restraint in nursing homes and aged care facilities. While there are laws that protect patients in a nursing home from abuse, there are general principles and sometimes consent forms that allow for a particular resident to be restrained using physical force or medication. Sometimes, however, these carefully laid procedures are not followed, and result in elder abuse.

Wrongful restraint intervention is assumed if a provider does not follow the Quality of Care Principles within Aged Care. These principles state that restraint should only be used as a last resort, noting that an approved aged care provider must not use physical or medical restraint unless the following applies to the person ordering restraint:

They must be an approved health practitioner with day‑to‑day knowledge of the patient.
They must have assessed the patient as posing a risk of harm to themselves or any other(s).
They must have documented the assessment prior to its use.
The use of the restraint is necessary in an emergency, in which case documentation should be completed as soon as is practicable.
They must confirm that alternatives to restraint have been used for the patient to the extent possible and that the type and use has been documented.

Additionally, it must be shown that the restraint being used is the least restrictive form of restraint possible. The approved provider must have the informed consent of the patient or the patient’s representative in regard to the use of the restraint.

What is the restraint policy in an emergency?

If the use of the restraint was necessary in an emergency, medical professionals must inform the patient’s representative as soon as possible, if not ahead of time. The care and services plan documented for the patient must align with Quality of Care Principles, and clearly identify the following in a restraint clause:

Any alternatives to restraint that have been used.
The reasons the restraint procedure is/was necessary.
What care will be provided to the patient in relation to their behaviour going forward.

Providers must ensure that they use the restraint for the minimum time necessary. While the patient is subject to the restraint, the provider must regularly monitor them for signs of distress or harm as well as regularly monitoring and reviewing the necessity for the restraint.

If these guidelines are not followed, restraint may be viewed as a form of negligence. Healthcare professionals are required to find a way to subdue patients with as much care as possible.

What is chemical restraint in aged care, and is it legal?

Chemical restraint is used as a form of medical drug administered to restrict movement or to sedate a patient. According to the Quality of Care Principles, chemical restraint should only be used as a last resort, and an approved provider must not use a chemical restraint on a patient unless:

A medical practitioner or nurse practitioner has assessed the patient, determined that they require the restraint, and prescribed the medication used for chemical restraint.
The practitioner’s decision to use the restraint and its subsequent use have both been fully recorded in the care and services plan documented for the patient (as required by the Quality of Care Principles).
The patient’s representative is informed before the restraint is used (if possible; if not, as soon as is practicable afterwards).

Even if you consent for your loved one to have chemical restraint (often prescribed as benzodiazepines), the provider still has a duty of care to continue trying alternative strategies that can minimise the restraint needed.

A healthcare provider should inform you that your loved one was subjected to chemical restraint, and if possible, the nursing care professional should ask you for consent on the patient’s behalf to such restraint. If you think this is or was unnecessary, ask the following questions and request all documentation:

What medicine is being suggested for prescription?
What happened to prompt this move?
Why are you suggesting chemical restraint?
What person centred behavioral strategies have been tried?
How effective is the medicine, and what are the risks and side effects?
What are other options and their corresponding benefits, risks and side effects?
What would happen if I don’t consent on their behalf?
When use of the medication be reviewed, and who will review it?

Remember that restraint by physical or chemical means is only for use as a last resort, so pay attention and try to determine if the provider is truly using it as lawful and appropriate.

Informed consent

It’s important to understand your loved one’s rights in regard to informed consent. If they have legal capacity to give consent, then it must be obtained. This is the case unless there is agreement that there is an emergency and that the patient poses a danger to themselves or others. A documented plan should be created for future care that minimises restraint and upholds the rights of the patient.

If your loved one is physically or mentally incapable of giving informed consent to prescribed medication, and an approved provider uses a chemical restraint, they must:

Inform you as soon as possible after the restraint starts.
Ensure the care and services plan documented for your loved one meets the Aged Care Quality Standards as outlined above.

Dementia patients

Dementia patients often act uncharacteristically, and their actions may require some form of restraint. If your loved one has a mental health disability such as dementia, you need to prepare yourself for the possibility that a provider may attempt to use physical or chemical restraint. Be vigilant to ensure this is an absolute last resort, and that your family member is not subjected to medications simply to make them docile. Behavioral strategies should always be the first resource for dementia patients.

There are cases in which restraint is necessary, such as to keep your loved one and those around them safe. This could be because they are having dementia effects that cause actions like violence. Depression is also common and could cause suicidal actions or confusion that causes an elderly person to try to escape the facility or wander off.

Is physical restraint in aged care considered abuse?

Restraint can be physical abuse if it is applied incorrectly or illegally. In such cases, this would fall under the purview of appropriate authorities, and should be reported as elder abuse. The care your loved one received would be investigated and a determination made as to whether a crime had been committed.

The last thing you want to find out is that your loved one was restrained for no good reason, or as “punishment” for any behaviors or accidents, such as wetting themselves, exhibiting signs of dementia or disturbing nursing home staff.

What are the legal ramifications of using restraints?

As an aged care resident or family member, you should feel empowered to take legal action against a healthcare provider that used restraint for purposes other than a clear safety need.

If your loved one has suffered injury or death due to illegal restraint, you may have a pressing need to lodge a claim. The experienced abuse lawyers at GMP Law can help you determine if there is a case of nursing home negligence in regard to restraint. Contact us today by filling out an online enquiry form or giving us a call at 1800 004 878.

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