Unlawful restraint in aged care

Two leading elder law firms are combining resources to help residents in aged care facilities being unlawfully chemically restrained, and their concerned family members.

A recent Commonwealth Government audit showed that 90 per cent of residents at a Newcastle residential aged care facility had received psychotropic drugs without prior written consent. However, the lawyers' view of that is that the conduct of the provider should be viewed as unlawful - that is, not just non-compliant with aged care regulations.

The Assessment Team of the Aged Care Quality and Safety Commission [ACQSC] reviewed the psychotropic register, which indicated residents were receiving psychotropics at the service facility and all had relevant diagnoses and conditions for the medications prescribed. However, the acting residential care manager said there were no written consents from the representatives of the residents.

The ACQSC performance report details the Commission’s assessment of the provider’s performance in relation to the facility against the Aged Care Quality Standards (Quality Standards).

Anglican Care’s Greenmount Gardens in Mt Hutton was deemed non-compliant by ACQSC auditors after an inspection last April. The nursing home admitted there were no written consents from family members or their guardians for 35 out of 39 residents who had received the drugs.

New legal approach to deliver justice

Applying consumer law remedies, such as a claim through the NSW Civil and Administrative Tribunal [NCAT], is a new legal approach that could deliver families justice more quickly than the courts and with less risk of paying the other party’s legal costs if a claim fails. Fees already paid for care could be ordered to be refunded. In the case of fully supported residents, whose fees have been fully subsidised by the Commonwealth government, their representative could apply to the Department of Health for a refund of the fees ordered to be paid back by NCAT.
If aged care facilities are chemically restraining or prescribing psychotropic medications without proper legal written consent or in cases of imminent harm to a person, they are effectively breaching the undertakings in the resident’s Charter of Rights, and their standards of good care and service, by committing the common law offence of unlawful restraint.

Penalising the provider by regulatory action is one thing, but that doesn’t compensate the resident for the harm and indignity suffered. Being deemed non-compliant by the regulator is not a sufficient penalty to effect change. The resident should have some or all of their aged care fees refunded if the provider has failed to provide the quality service it committed to provide.

The overuse and inappropriate use of psychotropic medication in nursing homes was a key issue identified by the Royal Commission into Aged Care Quality and Safety. The Federal Government has recently changed the law in response to the Royal Commission’s recommendations.

Despite the prominence of the unlawful restraint issue and aged care legislative changes on this subject, we are still seeing aged care facilities possibly breaking both the law and the aged care regulations and protocols by chemically restraining residents without a form of consent in place.

Litigation can be a tool for social education and reform, so we need consequences for unlawful behaviour. Psychotropic medications affect the mind, emotions, and behaviour – and include antipsychotics, antidepressants, and benzodiazepines to manage anxiety and insomnia. They must be delivered according to a care plan and with prior lawful consent.

If readers have knowledge of similar incidents and the family wish to consider legal consequences, the contact numbers for the two law firms are Catherine Henry Lawyers 1800 874 949 or Rodney Lewis at ElderLaw Legal Services on 02 9979 1009.