Restrictive Practices Substitute Decision-makers in aged care

A Restrictive Practices nominee is a person nominated by the aged care resident to be their restrictive practices substitute decision-maker in advance and in accordance with the requirements of section 5 of the Aged Care Restrictive Practices Substitute Decision-maker Act 2024.

The nomination form is only completed by an aged care resident when they have capacity to make decisions and are able to nominate a Restrictive Practices Substitute Decision-maker for any future events when they require the use of restrictive practices, and do not have decision-making capacity.

An aged care resident can nominate someone they trust to be a Restrictive Practices Substitute Decision-maker. The nominee must agree to be the substitute decision-maker, and the nomination should be completed in advance and in writing.

The Restrictive Practices nominee’s appointment will continue until it is formally revoked in accordance with section 6 of the Aged Care Restrictive Practices Substitute Decision-maker Act 2024. An appointment can be temporarily void if the nominee is no longer reasonably available, willing and able to act as a decision-maker.

For more information, see How to nominate a Restrictive Practices Substitute Decision-maker

If there is no Restrictive Practices nominee or a Restrictive Practices Substitute Decision-maker already appointed by VCAT in place, then a temporary Restrictive Practices Substitute Decision-maker can be automatically appointed under section 8 of the Act.

A temporary decision-maker is identified based on their close and continuing relationship to the aged care resident. There is nor formal form for a temporary decision-maker. Aged care providers are encouraged to record the decision-maker in the aged care resident's behaviour support plan.

A temporary decision-maker will be the first adult that is available, willing and able to make restrictive practices decisions on behalf of the aged care resident from the following list:

1. the spouse domestic partner of the aged care resident; or
2. the primary carer of the aged care resident; or
3. the oldest child of the aged care resident, followed by the other children in descending order of age if there are two or more adult children; or
4. the older parent of the aged care resident, followed by the younger parent; or
5. the oldest sibling of the aged care resident, followed by the other siblings of the aged care resident in descending order of age if there are two or more adult siblings.

The temporary decision-maker’s appointment is only valid for as long as there is a restrictive practices decision to be made (i.e., one instance of consent for a new or amended Behaviour Support Plan). Once a restrictive practice decision is made by the temporary Restrictive Practices Substitute Decision-maker, their appointment will cease.

If the restrictive practices decision has not yet been made, the temporary restrictive practices substitute decision maker’s appointment will end if another appointment is made under the Aged Care Restrictive Practices Substitute Decision-maker Act 2024, or if a person who takes priority in the above list becomes reasonably available, willing and able to make the decision or the temporary restrictive practices substitute decision maker ceases to be reasonably available, willing and able to make the decision.

Providers will have to go through the hierarchy again to identify a substitute decision-maker for any future decisions, such for new or a changed use of restrictive practices.

Whilst it is likely the same person will be appointed as the Temporary Decision-maker each time, providers must work through the hierarchy from the beginning to ensure that consent is sought from the appropriate substitute decision-maker.

For more information, see Temporary Restrictive Practices Substitute Decision-maker

If there is no nominee available or a temporary decision-maker, then a Restrictive Practices Substitute Decision-maker can be appointed by the Victorian Civil and Administrative Tribunal (VCAT) in accordance with the following requirements:

• The appointee must be someone known to the aged care resident and have an ongoing personal or professional relationship with the aged care resident.
• The prospective appointee must apply to VCAT to be appointed as the Restrictive Practices Substitute Decision-maker. They will need to satisfy VCAT that they meet the requirements to be appointed.

A VCAT-appointment may be indefinite or time limited. An appointment by VCAT can also be amended or withdrawn by a subsequent VCAT decision.

The prospective appointee can apply to VCAT to be the Restrictive Practices Decision-maker through the VCAT website.

'As a last resort, VCAT can act as the decision-maker of last resort and, if appropriate, consent to the use of the restrictive practice in accordance with the following requirements:

• The provider must apply to VCAT where no-one else can be identified as a substitute decision-maker.
• The provider, in their application, must satisfy VCAT that there are no other potential decision-makers (nominees, or possible temporary or appointed decision-makers).

VCAT must also be satisfied that the proposed use of restrictive practices is appropriate, including that the restrictive practice is used only as a last resort to prevent harm to the aged care resident or other persons.

For more information, please see VCAT’s website for how to apply for VCAT to be the decision-maker of last resort.