Philip Gardner, Special Counsel, Gordon Legal.
Residents:
‘Restraining a person, whether through physical or pharmacological means, is dehumanising and disempowering.
It is an affront to dignity and personal autonomy.’
Aged Care Royal Commission Interim Report 2019: Neglect.
Employees:
‘I have been physically and verbally assaulted on a regular basis at work and I’m not the only one; most of our nurses have to deal with this and it is ongoing.’
Respondent to ANMF National Aged Care Survey 2019
Providers/employers:
‘Aged care providers receive substantial government funding and should “manage risk and provide personal and clinical care in the least restrictive way and least restrictive service environment, while keeping the consumer, the workforce and others safe”’.
The Aged Care Quality Standards
Rights are relative
Rights are relative. The Charter of Aged Care Rights under the Aged Care Act provides that residents have the right to be treated with dignity and respect. The Occupational Health & Safety Act provides that employers have obligations to provide their employees with appropriate training and supervision and to provide a safe system of work and a safe place to work. Providers have the right to receive very substantial government funding for residents, subject to meeting the conditions of funding.
The use of restraint throws into stark relief these respective rights, obligations and interests.
Restraint can be appropriate
It can be accepted that sometimes the use of restraint is necessary. The consensus of informed opinion is that restraint may be used but only when:
- it is necessary to prevent serious physical harm;
- as a last resort involving the least restrictive option;
- the restraint is proportionate to the risk of harm identified;
- consent is obtained and approved by an authorised person;
- the restraint involved is documented with reasons, for a specified duration and with planned outcomes;
- the restraint is reported in accordance with requirements and monitored by senior staff and any adverse events recorded; and
- the use of the restraint is reviewed regularly.
Recognising everyone’s rights
One way of addressing the possible tensions between the interests of employees and residents is to apply a proactive rights-based approach to the interests of both residents and staff, rather than prioritising one or the other.
Identifying and recognising resident rights can inform good nursing and care practice, it can challenge poor practice and promote person-centred care and support actions addressing risks to residents and staff.
Similarly, identifying and recording occupational health and safety risks and incidents, and staffing and educational issues impacting on risk, will inform nursing practice and care activities, the delivery of care and the need for action to address risk.
Provider – employer duties
Such a rights based approach focuses attention on the responsibilities and duties of providers in relation to the rights and interests of residents and staff alike.
It is the provider as proprietor and employer who is ultimately responsible for staff safety and for high quality and respectful resident care.
The resourcing and delivery of care that meets and respects the rights of residents and of staff is a basic obligation of providers.
Recognise the right and record the infringement
The first step along this path is to recognise and record circumstances in which the rights of either staff or residents are not observed. If a resident’s right to dignity, or a staff member’s right not to be assaulted, is infringed, then it should be recorded.
There are numerous ways to raise or record these issues:
- using employer record systems (e.g. occupational health and safety risks; care plans; handover notes; incident reports);
- using employer staff complaints processes;
- using occupational health and safety remedies (e.g. WorkSafe reports or even provisional improvement notices);
- involving the ANMF organiser and seeking their support and advice;
- using the industrial protections provided by enterprise agreement grievance and disputes provisions, and availing of the protections accorded staff making complaints by the Fair Work Act;
- using reports to the Health Complaints Commission; and
- asserting (with appropriate advice) contractual rights and professional obligations.
Unless the infringements of respective rights are recorded there is no likelihood that providers will address the issue.
Circumstances arise when a resident with, say, dementia has a tendency to lash out at staff assisting them with their activities of daily living. Such incidents need to be recorded as they invite a range of possible responses: additional training for staff; a different skill mix to meet the resident’s needs; a change to the care plan or routine.
Neither resident nor staff should have to just “put up with” the situation, when solutions are available that recognise the interests of each.
As part of its work, the Aged Care Royal Commission is considering proposals for new requirements to replace the current regulations governing the use of restraints in the Quality of Care Principles. The commission is due to report in February.
