Restrictive Practices in Aged Care: Do Not Turn Your Personal and Health Appointment into a Restraint Rulebook

Would you consent to being restrained in bed because you wander?

Imagine a scenario that can easily unfold in an aged-care facility. A beloved parent, suffering from the advanced stages of dementia, becomes disoriented. They begin wandering the halls, repeatedly trying to open the exit doors to “go home,” and become highly agitated when staff attempt to redirect them.

To manage the situation, the facility installs metal bedrails to stop them leaving their bed at night, places them in a secure memory-support ward, and administers a heavy sedative to calm them down.

Depending on their purpose and actual use, these interventions may amount to restrictive practices. This is not a rare occurrence. In the July–September 2025 government quality-indicator snapshot, 21.4% of assessed residents were recorded as being subject to at least one non-chemical restrictive practice (with secure-area restraint accounting for 16.4%).

When families discover that their loved ones could be subjected to these measures, they understandably panic. In a desperate attempt to maintain control, they ask their lawyers to turn their estate planning documents into a restraint rulebook, inserting improvised clinical instructions such as, “I strictly forbid chemical restraints,” or “My attorney is given blanket consent to use bedrails.”

As a matter of careful legal drafting, inserting these home-made restraint clauses is a catastrophic error. Across Legal Consolidated’s national practice, we see hospitals and aged-care providers decline to rely immediately on altered documents, seeking legal advice or tribunal clarification instead. This causes immense delay, cost, and uncertainty when your family is dealing with a crisis.

In this article, we explain how Commonwealth, State, and Territory laws interact, why inserting restraint clauses creates dangerous legal risks, and what you should do instead to protect yourself.

Defining the Documents: “Personal and Health Appointments”

Every Australian jurisdiction has its own unique document for appointing a medical decision-maker. For ease of use, we refer to the appointment a “Personal and Health Appointments.” (Note: This is our convenient collective expression, not a statutory term, as these documents cover a wide array of personal, lifestyle, accommodation, and health decisions).

To understand the complexity, here is how the system is governed across the eight jurisdictions:

State / Territory	Document Name	Principal Legislation	Relevant review tribunal
New South Wales	Appointment of Enduring Guardian	Guardianship Act 1987 (NSW)	The appointment may be reviewed, interpreted or varied by the NSW Civil and Administrative Tribunal (NCAT).
Victoria	Appointment of a Medical Treatment Decision Maker (for medical treatment)	Medical Treatment Planning and Decisions Act 2016 (Vic); Powers of Attorney Act 2014 (Vic)	The appointment may be reviewed, interpreted or varied by the Victorian Civil and Administrative Tribunal (VCAT).
Queensland	Enduring Power of Attorney for “personal matters”	Powers of Attorney Act 1998 (Qld)	The appointment may be reviewed, interpreted or varied by the Queensland Civil and Administrative Tribunal (QCAT).
Western Australia	Enduring Power of Guardianship	Guardianship and Administration Act 1990 (WA)	The appointment may be reviewed, interpreted or varied by the State Administrative Tribunal (SAT).
South Australia	Advance Care Directive	Advance Care Directives Act 2013 (SA)	The appointment may be reviewed, interpreted or varied by the South Australian Civil and Administrative Tribunal (SACAT).
Tasmania	Instrument appointing an Enduring Guardian	Guardianship and Administration Act 1995 (Tas)	The appointment may be reviewed, interpreted or varied by the Tasmanian Civil and Administrative Tribunal (TASCAT).
Australian Capital Territory	Enduring Power of Attorney (covering personal-care and/or healthcare matters)	Powers of Attorney Act 2006 (ACT)	The appointment may be reviewed, interpreted or varied by the ACT Civil and Administrative Tribunal (ACAT).
Northern Territory	Advance Personal Plan	Advance Personal Planning Act 2013 (NT)	The appointment may be reviewed, interpreted or varied by the Northern Territory Civil and Administrative Tribunal (NTCAT).

What is a Restrictive Practice in Aged Care?

Section 17 of the Aged Care Act 2024 (Cth) gives a broad definition of restrictive practice. Rule 17-5 of the Aged Care Rules 2025 (Cth) then identifies five distinct categories. The purpose and actual use of the intervention determine its legal classification:

1. Chemical restraint: Medication used primarily to influence behaviour. Importantly, medication prescribed to treat a diagnosed mental or physical illness, or for end-of-life care, is excluded. (Note: Medication used for the behavioural and psychological symptoms of dementia is treated as a chemical restraint).

2. Environmental restraint: Restricting access to the person’s environment primarily to influence behaviour. (A secure area is not automatically environmental restraint if its primary purpose is not behavioural).

3. Mechanical restraint: Using a device primarily to prevent, restrict or subdue movement for a behavioural purpose. (For example, a lap belt used primarily to prevent a resident from leaving a wheelchair, rather than for safe mobility or therapeutic positioning).

4. Physical restraint: Using physical force primarily to prevent, restrict or subdue movement (such as holding a resident down to stop them from standing or leaving).

5. Seclusion: Confining the person alone where voluntary exit is prevented, primarily to influence behaviour.

Are Restraints a Last Resort?

Yes. The Commonwealth dictates that restraint is a last resort. Where a person needs behaviour support, the provider must develop a Behaviour Support Plan. Best-practice alternatives must first be used and documented to the extent possible. While a limited emergency exception exists, it applies only while the emergency is actively occurring—post-emergency notification, documentation, and review requirements remain strictly in force.

(Note: The detailed Part 9 restrictive-practices requirements apply to prescribed registered providers delivering funded aged-care services in approved residential care homes. They are not a universal restraint code for hospitals or private homes, which may engage different State or Territory laws).

The Four Crucial Legal Questions

Much of the confusion surrounding restraint clauses stems from a misunderstanding of how the law separates decision-making power from clinical consent. For example, older guidance from the NSW Trustee and Guardian suggested that a legal guardian could only give consent if given a “restrictive practices function.”

However, a statutory function that gives or identifies decision-making authority is fundamentally different from a home-made clause that gives blanket consent, prohibits future treatment, or attempts to regulate unknown clinical circumstances.

To navigate this safely, the law separates the process into four distinct questions:

1. Can the older person make this particular decision with appropriate support? (Capacity is decision-specific).

2. If not, who is the lawful restrictive-practices substitute decision-maker (RPSDM)?

3. Does that person’s office or appointment cover this particular practice? (The statutory scope of their power).

4. Should consent be given to this specific, current, and time-limited proposal? (Based on current clinical circumstances, alternatives, and the Behaviour Support Plan).

Why Restraint Rulebooks Create Chaos: The “Third Layer” Argument

State and Territory law determines who may decide and the scope of that authority. Commonwealth aged-care law regulates the provider’s use of the practice.

An improvised private restraint rulebook adds a third layer that may not fit either statutory regime. Attempting to turn your Personal and Health Appointment into a do-it-yourself behaviour-management plan is highly dangerous for several reasons:

1. Construction Risks and Accidental Boundaries

If your improvised restraint clause explicitly lists “chemical and physical restraint,” it creates an immediate construction risk. It invites a provider’s legal team to ask: Is this list exhaustive? Does the explicit naming of chemical restraint mean environmental restraint was deliberately excluded? Does a “third stroke” trigger depend on a medical diagnosis or mere incapacity?

As the High Court of Australia emphasised in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, instruments must be construed in context. An incomplete list causes severe delays, potentially leading to legal advice or tribunal clarification when an urgent decision is required.

2. Provider Delays and Liability

In matters reported to Legal Consolidated, we see hospitals and aged-care providers decline to rely on altered documents immediately. Providers have strong legal reasons to verify authority: they must obtain consent from the correct person, comply with State law, and satisfy Commonwealth consent, documentation, and monitoring requirements.

This is especially true in hospitals, which operate under different state-based emergency-treatment or mental-health legislation. An aged-care-specific private clause presented in a hospital may not map onto the governing law, causing the hospital to pause and seek advice rather than rely on the document. Ambiguity over one restraint clause may also cause the institution to pause before relying on the document for ordinary accommodation or health decisions.

3. Blanket Consent vs. Advance Refusal

The Commonwealth aged-care scheme prohibits blanket consent. Consent must be informed, voluntary, current, and specific. You cannot provide blanket, pre-emptive consent decades in advance.

However, a blanket refusal of medical treatment is not governed by the same rule. At common law, a competent adult may make a valid “advance care directive” to refuse medical treatment, provided the directive is clear, unambiguous, and applies to the situation that arises. A binding advance refusal of medical treatment is a separate, jurisdiction-specific exercise. It should not be improvised as a short restraint clause in an appointment document—especially since not every restrictive practice constitutes “medical treatment”.

For further reading on the dangers of altering statutory documents, please refer to our related article: Adding additional clauses to an Enduring POA and Medical Directives.

Navigating the Jurisdictional Differences

A home-made national restraint clause is incredibly brittle because the legal route differs drastically depending on where you live:

• New South Wales: An enduring guardian may be given a restrictive-practices function. An ordinary medical-consent function is insufficient (as seen in SKN [2023] NSWCATGD 16, where an application was still made to add a restrictive-practices function for chemical restraint despite broad health powers).

• Victoria: A separate statutory nomination applies for residential aged-care restrictive practices. An attorney or Medical Treatment Decision Maker is not automatically the restrictive-practices substitute decision-maker.

• Queensland: QCAT’s current guidance, relying on EJ [2026] QCAT 175, says an available attorney for “personal matters” may be the RPSDM.

• Western Australia: The Public Advocate’s July 2026 position is that consent may be given by a guardian or enduring guardian appointed with the relevant plenary or express limited authority. The ordinary treatment-consent hierarchy does not itself confer restrictive-practices authority.

• South Australia: Part 5A of the Advance Care Directives Act 2013 (SA), in force from 9 July 2026, creates a narrow hospital-to-residential-aged-care placement and detention pathway. An Advance Care Directive can expressly exclude this new power.

• Australian Capital Territory: Broad EPOA wording may be sufficient, depending on the instrument. Cases like In the Matter of Evelyn (Guardianship) [2021] ACAT 126 and Re Frieda [2022] ACAT 27 demonstrate why broad, clean authority can avoid an unnecessary tribunal application.

• Tasmania: The scope of the appointment or order controls. Current TASCAT material states a guardian may make restrictive-practices decisions where granted the relevant power.

• Northern Territory: A health-care decision-maker generally cannot consent to restrictive practices except within limited statutory exceptions (Health Care Decision Making Act 2023 (NT)).

The Legal Consolidated Policy: Maximum Ordinary Statutory Authority

Legal Consolidated does not prepare enduring personal and health appointments that voluntarily reduce the ordinary statutory authority available to the appointee. Where local law permits an appointment to be limited, Legal Consolidated does not offer a limited appointment product. A person seeking bespoke, binding restrictions should obtain separate, jurisdiction-specific advice.

Our drafting policy ensures that:

1. We preserve the maximum ordinary statutory authority (meaning the power is not voluntarily narrowed by client-added conditions).

2. We use a clean statutory function or separate nomination where local law requires one.

3. We do not insert blanket restraint consents or refusals into the appointment of the substitute decision-maker.

(Note: The appointee remains subject to the duties and decision-making principles imposed by the applicable State or Territory legislation. The provider remains bound by the Aged Care Act 2024 and the Aged Care Rules 2025).

What You Should Do Instead

If you want to protect yourself without contaminating your general appointment, we recommend you:

• Appoint a highly trusted primary appointee, alongside capable replacements.

• Use any clean statutory restrictive-practices function required locally.

• Discuss your values and preferences directly with your appointee.

• Record values and preferences separately, using a form whose legal effect is understood in that jurisdiction.

• Use the proper advance-care mechanism if a binding treatment direction is genuinely wanted.

• Ensure current clinical detail is recorded in your current Behaviour Support Plan.

Restrictive-Practices Consent Checklist for Your Appointee

When a restraint is proposed in the future, your properly authorised, trusted advocate will use the medical evidence and law that exists at that specific time to ask:

1. What are the older person’s current and previously expressed will, preferences, and values?

2. Can the older person participate in this decision with support?

3. What immediate harm is the practice intended to prevent?

4. What exactly is proposed, including duration and frequency?

5. What are the specific risks, benefits, and intended outcomes?

6. Which less restrictive strategies have been tried, and what happened?

7. How will the practice be monitored, reduced, and stopped?

8. Can consent be withdrawn, and when will it be reviewed?

9. May I obtain an independent clinical opinion?

10. What complaint or escalation process is available?

These questions protect your bodily integrity far better than an experimental restraint clause written decades in advance.