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Lawyers and advocates presented a complex roadmap for nurses and carers navigating the issues around chemical restraint in aged care at the ANMF’s Victorian Branch’s recent Aged Care and Chemical Restraint Symposium.

Focusing heavily on the attribution of legal rights and responsibilities, Victoria’s Public Advocate, Colleen Pearce, Special Counsel for Gordon Legal Philip Gardner and Senior Solicitor at Elderlaw Legal Services, Rodney Lewis, spoke at the Symposium, which sought to provide an overview of the understandings required to negotiate questions in areas such as guardianship and legal consent.

Ms Pearce, who heads the Office of the Public Advocate, spoke on the need to uphold human rights in all contexts.
“Any starting point for a discussion about restrictive practice in aged care should always begin with the need to minimise and ideally eliminate all forms of restraint, not simply a conversation about regulating their usage,” she said.

However Ms Pearce highlighted deep concerns around restrictive practice that currently exist by delivering a stark assessment on failures identified in the Aged Care Royal Commission’s Interim Report.

“The Commission’s Interim Report powerfully concluded that behind the use of these restrictive practices lies the history of neglect,” she said.
“Neglect to engage adequately with older people to understand their needs and concerns, neglect in either being time constrained or unwilling to spend time with older people to help them manage changing behaviours so that the need for restraint is obviated, neglect in seeking permission for the use of restraints, and [the] surprisingly neglectful approach to the use of chemical restraint.”

Mr Gardner, who also provides legal advice for the ANMF’s Victorian Branch, argued that the rights of patients and staff go hand in hand.
“The Occupational Health and Safety Act… puts an obligation on the employer to provide an environment that’s safe and without risks to health – it’s a legal obligation,” he said.

“The other thing is that of course, there is consistently staff exposure and blame attributed for violations of resident’s rights that are in fact, a product of the system established and approved by the employer.”

Mr Gardner also identified the rights of the carer and staff members, using quality standards and user right principles as an example.

“Providers can manage risk and provide care in the least restrictive way while keeping the consumers, the workforce and others safe,” he explained.

“A rights-based approach to the rights and interests of both residents and staff is a way in which this issue should be addressed… [It] can be used to progress the respective interests of each.”

Also speaking at the symposium Senior Solicitor Rodney Lewis, focused on legal hazards for nurses and carers working in aged care, but like his counterparts, identified the challenges working in the sector.

“The legal environment is not transparent, but it is vitally important to your responsibilities,” he said.

In addition, Mr Lewis spoke about the complaint process and how they relate to Australian Consumer Law and the Disability Discrimination Act.

He explained where legal liability lies for providers and employees and clarified the key differences between civil and criminal matters, leaving the audience in no doubt about their proximity to the issues he was discussing.

“Basically, in civil claims, you shouldn’t have anything to worry about because your employer’s going to indemnify you,” he said.

“But in criminal liability… whoever has committed the crime, as an accomplice, conspirator or an accessory, is generally liable to be prosecuted.

“That includes people who are on the front line.”