What do you think of the proposed changes to the Consent to Medical Treatment and Palliative Care (Restrictive Practices) Amendment Bill 2020?

Now Closed

This online engagement was hosted on YourSAy from 11 August to 17 September 2020. Find out more about the consultation process. Below is a record of the engagement.

 

We want to know your thoughts on proposed changes to the Consent to Medical Treatment and Palliative Care (Restrictive Practices) Amendment Bill 2020 which will give health practitioners the appropriate authority to protect patients, themselves and others from harm.

Read the draft Consent to Medical Treatment and Palliative Care (Restrictive Practices) Amendment Bill 2020, and the Frequently Asked Questions and consider the following questions:

1. Is it appropriate/necessary for health practitioners to use restrictive practices to assess and treat patients who are exhibiting challenging behaviours, do not have decision making capacity, and who are presenting a risk to themselves and others?

2. Is the timeframe for the use of restrictive practices (up to a maximum of 24 hours for adults, and 12 hours for those who are under 18 years) appropriate?

3. Are the proposed safeguards in the Bill appropriate/necessary to protect patients and monitor the use of restrictive practices?

4. Is it appropriatenecessary to require that health practitioners seek consent from responsible persons, or substitute-decision makers, or a guardian, before providing treatment to conditions arising from these situations?

Share your thoughts by commenting below.

Comments closed

Tom Hughes

16 Sep 2020

I would certainly Not agree in reference to elected Medical Practitioners being given Any Authority , or anybody for that matter , in regards to being able to treat any Person without consent. I believe with today's technology if an Individual cannot give consent themselves , next of kin should not be to difficult to find.

Moya Kelley

16 Sep 2020

I do not agree with the proposed changes. I believe the wording is too loose and leaves ample opportunity for abusive governments to isolate and medicate citizens with alternative political views. This practice is in evidence in Australia and NZ at present where governments are heavily censoring people who do not believe the government narrative. In some cases people are being hunted down by police, hospitalised and heavily medicated against their will and where there is no indication of mental instability. Anyone who has had anything to do with the mental health system knows that it is frequently abused and abusive and that the assessments of many mental health professionals are questionable at best.

Zane Phelps

14 Sep 2020

Although I agree with the proposed changes I have serious doubts to how it will be applied.

Our healthcare practitioners are not adequately trained to Restrain drug induced psychosis patients.

Will training be provided by a 3rd party on Correctly restraining a Non complaint human?

Government Agency

Legal and Legislative Policy > Zane Phelps

14 Sep 2020

Hi Zane, thanks for your comment. Appropriate training will be part of the implementation for these proposed changes, only practitioners with appropriate training will be authorised.

David Law

05 Sep 2020

It is well and good to allow practitioners to use restrictive practices in certain circumstances but if the patient gets harmed in the process then they should receive adequate compensation and the practitioner and all that protect and cover up the harm should lose their jobs and sent to the dole queue!

Government Agency

Legal and Legislative Policy > David Law

08 Sep 2020

Thanks for your comments David.

Hans-Christian Marker

05 Sep 2020

I agree mostly to the previous comments.
There are situations where health practitioners need to restrain a person. If the circumstances are clear, no one would argue afterwards that is was wrong. But this amendment has the potential to be a card blanche for misuse.
I like to emphasize a few points.
"putting others in danger" is fairly clear to assess.
"putting oneself in danger" however is such a grey zone where opinion easily can dominate facts and almost everything could be justifiable. Which also is to be considered when applying measures without consent of the patient.
"impaired decision" that has to be defined very clearly. Is it if one does not follow mainstream? Or has a different opinion?
Does the 24 h window release practitioners from the obligation to contact guardians, next of kin or other responsible persons? Does that mean your right for self determination is suspended for 24 h?

I take that all of the following conditions have to be met ?
· the patient is displaying behaviour that constitutes a risk of harm to themselves, other people or property; and
· the patient has impaired decision making capacity and is unable to consent to treatment; and
· the use of restrictive practices is necessary to minimise the risk of harm or prevent further harm or to enable the patient to be examined or assessed and treated.

Or will there be exemptions when only two or even one condition are met?

Recently it was highlighted that the conditions in privatised age care are appalling. Do we want underpaid, poorly educated and uncontrolled staff make these decisions?

90% of work into an amendment should focus on what may go wrong like in software, computer program development. The initial intent (10%) of a law or amendment most times looks well meant and reasonable.
Let us be very careful with that.

Government Agency

Legal and Legislative Policy > Hans-Christian Marker

08 Sep 2020

Thanks Hans-Christian. We really appreciate your comments. All of the conditions you mention above will need to be met before the proposed provision allowing authorised practitioners to use restrictive practices can be used. There will be no exceptions. This Act will not apply in residential aged or disability settings and will not be able to be used by staff of those facilities. Under the proposed provisions the health practitioners must seek consent from SDMs, Guardians, or persons responsible, before providing treatment. If those persons are not available then treatment may be provided without consent but only for the condition or illness giving rise to, or arising from, the behaviour to which the restrictive practice relates. Impaired decision-making is currently defined in the Consent Act at section 4(2) but we agree that legislative interpretation is difficult. Detail about and guidance for these matters will be covered in the Restrictive Practices Guidelines that will form part of the framework that will underpin the use of these powers.

Hans-Christian Marker > Hans-Christian Marker

14 Sep 2020

Thank you for taking time to respond. I am confident in your team and that the amendment will be well thought through. But I would like to see that after it is in place that it will be possible to review it and change it by both parties, professionals and patients without going through the court system with lengthy debates who is write or who is wrong. Something like a round table with people who respect each other. I am aware this would go beyond the scope of this bill amendment. But I wanted to mention it.

David Everett

05 Sep 2020

1. Needs a tighter definition of Health Practitioners. From what I can work out it refers to the Health
Practitioner Regulation National Law (South Australia) - I think that means the health professions that register and are regulated by AHPRA. If so, do we really want any of these practioners having the authority to use restrictive practices? - Chinese Medicine, Chiropractor, Osteopath, Optometrist, or Podiatrist! I think we can agree they have no training or practice experience in dealing with people who may need restriction under these changes. Suggest naming the professions explicitly e.g. Medical practitioners, Nurse Practioners or accredited specialist nurses and, importantly, ambulance officers.
2. Is it clear what the health practitioners obligation is after restriction and provision of initial emergency treatment, or before the 24 hour period expires? What is the obligation to refer/arrange/continue appropriate care?
3. Consent - it is reasonable to seek consent from those nominated IF immediately present or available/contactable/verifiable, otherwise the practitioner should be permitted to proceed without delay in the best interests of the person.
4. As per the current act permitting emergency treatment for minors, every effort needs to be made and demonstrated in documentation that a single practitioner has sought assistance and review from at least one other appropriate practitioner, either in person or by remote consultation. This greatly decreases the power of just one individual abusing this authority, improves the quality of care, and assists those in remote locations. If the parameters of actions are clear, the health system will construct methods for compliance.
5. 2B, Div1, 14E, (2)(d) - "any other behaviour of a kind prescribed by the regulations". This will worry those concerned about over-reach? What behaviours? What regulations? The descriptors (a), (b) and (c) I think are clear enough - in military-speak they are situations with "clear and present danger".

Government Agency

Legal and Legislative Policy > David Everett

07 Sep 2020

Thanks David. Only those health practitioners who have been authorised by the Minister will be able to use the proposed provisions in the Bill. You raise a good point about wider allied health staff being within scope. It is not anticipated that they would be authorised to use these provisions.

Lynne Hoet

05 Sep 2020

The proposal is fair considering the difficulties faced at times by medical staff and the proposal seems to have sufficient safeguards against abuse of power.
I could not find any retribution in this amendment should there be an abuse of power however such retribution may already be in place elsewhere. I would like some clarity over this matter.

Government Agency

Legal and Legislative Policy > Lynne Hoet

07 Sep 2020

Thanks for your comment Lynne. If these powers are being used contrary to the proposed provisions and in a way that constitutes abuse the person subjected to the restrictive practice can complain to the Health and Community Services Complaints Commissioner. Depending on the nature of the alleged abuse this could be reported to AHPRA and if it is serious enough it may become a criminal matter. The use of these provisions will be monitored across the system and I draw your attention to the proposed reporting provision under 14P and the proposed review provision under 14Q of the Bill.

Alexandra-Ann Hodges

04 Sep 2020

Like Tara Force, I can see why this legislation might be required considering the amount of serious drug addiction and terrible anti-social behaviours in the community. However, any sort of restrictive medical practices would deeply concern me from the point of view of, where does this stop ? Would such powers be used to attempt to force vaccination, for example , on people who value their human rights, are cognizant of UNESCO Principles on Bio-Ethics and Human Rights, have read and understood the Nuremberg Codes and stay very healthy using non-orthodox medical principles ?! It already deeply concerns me that the government appears to think that it owns one's children. This is absolutely outrageous, and a breach of the Constitution when it applies to parental rights ! The government has no right to take someone's child under any circumstances.

Government Agency

Legal and Legislative Policy > Alexandra-Ann Hodges

07 Sep 2020

Thank you for your feedback Alexandra. I can assure you that the proposed provisions cannot be used to force vaccinations. They only apply in very limited circumstances where a patient is suffering acute behavioural disturbance, they do not have decision-making capacity, they are presenting a risk to themselves or others and they need medical assessment or treatment. Treatment can only be provided for the condition or illness giving rise to the behaviour that the restrictive practice relates. These provisions would not allow a practitioner to vaccinate anyone without their consent.

Tara Force

04 Sep 2020

I understand which circumstances this bill is designed to address, however, it is a slippery slide. As we increase the power of health practitioners, we reduce the power and autonomy of individuals (or their family member / advocate) to make decisions about their own health. The individuals (patients) this bill will impact, represent the most vulnerable in our communities: those with disabilities, the aged and those suffering from disadvantage.

The inquiry into disability and aged care has taught us that the more rights / power people have to make decisions regarding vulnerable persons, the greater the risk of abuse. How will health practitioners be held accountable? A bill like this actually protects health practitioners in the case that they commit an abuse (e.g the unnecessary use of a chemical restraint or excessive physical force). It is not designed with the needs or rights of the individual in mind and purely focuses on the desire of doctors and nurses to control their patients (and protect themselves).

This bill opens the door for the kinds of abuse of power that the inquiry into disability is designed to expose and prevent.

Government Agency

Legal and Legislative Policy > Tara Force

07 Sep 2020

Thank you Tara. The points you raise are very important. The Royal Commission’s inquiries have brought to light the very worst ways that these types of practices can be used and the harm that they can cause. This Bill is intended only to provide practitioners who are authorised with the express power to use restrictive practices in very narrow circumstances, where a person is suffering acute behavioural disturbance, does not have decision making capacity, is presenting a risk to themselves or others, and needs medical assessment or care. You are right the use of the provisions that are proposed in the Bill need to be subject to appropriate safeguards and closely monitored.

Harrison Anderson

04 Sep 2020

Further thought needs to be given to accountability for use of restrictive practices. More than one person classified as an authorised person needs to be aware of the situation if not immediately- then within one-two hours. In institutional settings - like a casualty department or mental health institution- rooms or spaces designated for managing these critical incidents need to have recording equipment rolling from the moment they open that door to use it. There might be other laws that need to change or be amended to access a trusted person to advocate for the treated individual. For example, before or after securing the person from injuring themselves or others, look inside a person's phone in a designated section identified and promoted to the public and incorporated by phone making companies in to their software architecture (e.g the medical alert section or health information ; the contacts list- the number one person in their list. The latter can be achieved easily by people recording AAA or similar in front of the first name, or ICOE-'In Case Of Emergency'). There could be other digital/electronic ways of close to immediately recording the fact of the incident via technology that is ultimately in the power and control of the treated individual. There could be ways of mirroring any such recording so that the exact same information is held by the people treating and the person treated. It could automatically be saved to a secure cloud vault in case a medical practitioner or a court needed to review that incident. Review of the need to use restrictive actions should be required as close to immediately as possible, within the hour once the situation is contained, secured. In addition to designated persons in institutions- like hospitals, care homes- having the power to check what is happening, and for how long, there could also be people with appropriate experience and skills rostered to an 'on call' system to have a 'first pass' look at the situation. This could suit places to under staffed to have a reviewer. Institutions, large and small, that need to be able to exercise restrictive practices should be subject to independent, third party review of such practices to militate against institutionalised bias and impunity. Think about the most egregious ways these powers could be used- on someone you love- and work backwards from there to design accountability.

Government Agency

Legal and Legislative Policy > Harrison Anderson

04 Sep 2020

Thank you Harrison, we really appreciate your feedback. Particularly in making sure protections are in place to provide oversight and review of the use of these powers.