Restrictive practices are defined terms under relevant Queensland and Commonwealth legislation that may limit or restrict a person’s autonomy for decision-making and personal freedom.
On the other hand, the use of restrictive practices in certain regulated settings may be considered necessary to improve a person’s quality of life and to enable relevant carers or support workers to provide the necessary care and support to the person.
Who can give informed consent for the use of a restrictive practice for a person in aged care who lacks the capacity to give their consent can be difficult to navigate because there is no clear mechanism under the Queensland legislation for a substitute decision-maker who can give the informed consent.
There are two published decisions of the Queensland Civil and Administrative Tribunal (QCAT) that apply for a person in an aged care setting who is subject to restrictive practices under the Commonwealth legislation and who is found to lack the capacity to give their informed consent for the use of the restrictive practice:
- NJ [2022] QCAT 283 – QCAT appointed a guardian under s 12 of the Guardianship and Administration Act 2009 (Qld) to give informed consent (with conditions) for the use of a restrictive practice for the person.1
- EJ [2026] QCAT 175 – QCAT found that an attorney appointed under an enduring power of attorney for personal matters under the Powers of Attorney Act 1998 (Qld) can give informed consent for the use of a restrictive practice for the person.
Overview of restrictive practices under the Aged Care Act 2024 (Cth) and Aged Care Rules 2025 (Cth)
The Aged Care Act regulates aged care service for a person referred to as an individual who can access the service through residential care.2 Funded aged care service can be delivered in an approved residential care home or a home or community setting.3
Funded aged care services are delivered by registered providers.4
The Aged Care Rules 2025 (Cth) contain provisions for, and amongst other things, reportable incidents, restrictive practices, and behaviour support.5
It is a condition of registration that a relevant registered provider comply with the requirements relating to the use of restrictive practices for an individual to whom the provider is delivering funded aged care services.6
The Aged Care Rules also contain standards (the aged care quality standards) relating to the quality of funded aged care services. For example, the physical environments in which services are delivered and how registered providers support individuals and monitor and drive improvements to their delivery of funded aged care services.7
Is informed consent for the use of a restrictive practice required?
Yes. The Aged Care Rules require a registered provider delivering funded aged care services in relation to an individual in an approved residential care home to obtain informed consent to the use of restrictive practices and how it is to be used (including duration, frequency and intended outcome) by:
- the individual; or
- if the individual lacks the capacity to give that consent – the restrictive practices substitute decision-maker (RPSDM) for the restrictive practice.8
A ‘residential care home’ does not include a private home, a retirement village and amongst others, a hospice or facility that primarily provides palliative care.9
What is a restrictive practice in relation to the individual in an approved residential care home?
A restrictive practice is any practice or intervention that has the effect of restricting the rights or freedom of movement of that individual.10 Under the Aged Care Rules, there are five defined types of restrictive practices:11
- chemical restraint – The use of medication or a chemical substance for the primary purpose of influencing the individual’s behaviour but does not include medication prescribed for the treatment of a diagnosed medical disorder, a physical illness or a physical condition, or end of life care.12
- environmental restraint –
Restricting an individual’s free access to all parts of their environment, including items and activities, for the primary purpose of influencing their behaviour. This may include their room, any common areas and common grounds outside.13 An example of environmental restraint is an individual residing in a secure dementia wing.14
- mechanical restraint –
The use of a device to prevent, restrict or subdue an individual’s movement for the primary purpose of influencing the individual’s behaviour. For example, bed rails or clothing which limits movement and is unable to be removed by the individual.15
- physical restraint –
The use of physical force to prevent, restrict or subdue movement of an individual’s body, or part of an individual’s body, for the primary purpose of influencing their behaviour but does not include the use of hands-on technique in a reflexive way to guide or redirect the individual away from potential harm or injury if it is consistent with what could reasonably be considered to be the exercise of care towards the individual.16
- Seclusion –
The sole confinement of an individual in a room or a physical space at any hour of the day or night for the primary purpose of influencing their behaviour where voluntary exit is prevented or not facilitated; or it is implied that voluntary exit is not permitted.17
What are the requirements for the use of restrictive practices in aged care?
The Aged Care Act refers to relevant matters that the Aged Care Rules must require relating to the use of restrictive practices. For example, a restrictive practice in relation to an individual is used only as a last resort to prevent harm to the individual or other person and amongst other things, it is used in the least restrictive form and that informed consent is given and there is monitoring and review of the use of the restrictive practice.18
The use of a restrictive practice in relation to the individual other than in accordance with any requirement prescribed by the Aged Care Rules may be a reportable incident about an individual’s care that must be reported to the Aged Care and Quality Safety Commission.19
There is immunity from civil or criminal liability in relation to the use of a restrictive practice in certain circumstances that will end on 1 December 2026.20
Who is a restrictive practices substitute decision-maker (RPSDM)?
The Aged Care Rules specify who can be the RPSDM under s 6-20 as:
- the individual or body appointed by the law of the State or Territory in which the individual concerned accesses funded aged care services that can give informed consent to the use of the restrictive practice in relation to the individual concerned, if the individual concerned lacks capacity to give that consent; or
- under an appointment in writing that is in effect under the law of the State or Territory in which the individual concerned accesses funded aged care services, the individual or body can give informed consent to the use of the restrictive practice in relation to the individual concerned if the individual lacks capacity to give consent.
There is a table commonly referred to as the ‘authorisation table’ in the Aged Care Rules that provides a hierarchy of persons for the meaning of RPSDM, however this table will cease to exist from 1 December 2026.
What legal mechanisms enable an individual or body in Queensland to give informed consent for the use of restrictive practices for an individual who lacks capacity?
The Guardianship and Administration Act 2000 (Qld) provides a legislative mechanism for appointing guardians for a personal matter and administrators for a financial matter for a person referred to as the adult and amongst other things, making declarations about a person’s capacity for the relevant matter.21 An order appointing guardians and administrators can only be made if certain requirements are met, as provided under the Act, including that the person referred to as the adult has impaired capacity for the matter.22 Adults with impaired capacity are the primary focus of the Act.23 The Human Rights Act 2019 (Qld) also applies.24
The Queensland Civil and Administrative Tribunal (QCAT) has exclusive jurisdiction for the appointment of guardians and administrators.25
The Powers of Attorney Act 1998 (Qld) provides a legislative scheme for enduring documents such as appointing an attorney under an enduring power of attorney to make decisions about a person’s personal matter and financial matter in circumstances where the person is found to no longer have the capacity to make those decisions.26
QCAT has concurrent jurisdiction with the Supreme Court of Queensland for enduring documents.27
Importantly, in Queensland, there are defined terms such as restrictive practices and a relevant service provider under the Disability Services Act 2006 (Qld) that apply in certain circumstances but not for a service provider that is a registered provider under the Aged Care Act 2024 (Cth) who is providing aged care services to the individual.28 The meaning of defined terms that are restrictive practices under the Disability Services Act 2006 (Qld) is different to the terms defined as restrictive practices under the Aged Care Rules 2025 (Cth). For example, environmental restraint is not a defined term under the Disability Services Act 2006 (Qld).
Can QCAT appoint a person or body to make decisions about restrictive practices for an individual living in an approved residential care home who lacks capacity to give their informed consent?
Yes. QCAT relies on the power under s 12 of the Guardianship and Administration Act 2000 (Qld) and the authority in NJ [2022] QCAT 283.29
Can an attorney appointed under an enduring power of attorney for personal matters in Queensland be the RPSDM if the individual lacks the capacity to give their informed consent?
Yes. QCAT relies on the authority in EJ [2026] QCAT 175.
For more information, please see QCAT’s website and published information under QCAT’s ‘frequently asked questions’.
Joanne Browne LLB LLM is a full-time Senior Member of the Queensland Civil and Administrative Tribunal, is admitted as a solicitor and is an accredited mediator. Any views expressed are her own, and not those of the tribunal.
Footnotes
1 See also CLR [2025] QCAT 518.
2 Aged Care Act 2024 (Cth), s 8(3). See s 9(1) for meaning of a ‘funded aged care service’ and s 9(2).
3 Aged Care Act 2024 (Cth), s 10.
4 See s 11 of the Aged Care Act for meaning of relevant terms ‘registered providers’, ‘aged care workers’ and ‘associated providers’.
5 Section 602(1) of the Aged Care Act 2024 (Cth) provides that the Minister may, by legislative instrument make rules prescribing matters required or permitted by the Act to be prescribed by the rules; or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
6 Aged Care Act, s 162.
7 Aged Care Act, s 15. See also the Code of Conduct and Statement of Rights under the Aged Care Act.
8 Aged Care Rules, s 162-15.
9 Aged Care Act, s 10(4).
10 Aged Care Act, s 17.
11 Aged Care Rules, s 17-5. The Aged Care Rules define the meaning of each type of restrictive practice.
12 Aged Care Rules, s 17-5.
13 Aged Care Rules, s 17-5.
14 See KDV [2025] QCAT 256 where QCAT found there was no environmental restraint in use for the adult who was residing in an aged care ward that they were unable to leave without assistance because the primary reason for residing in that particular psycho geriatric ward was to receive care and treatment from a psychiatrist and the need for assistance arose from the adult’s decreased mobility.
15 Aged Care Rules, s 17-5.
16 Aged Care Rules, s 17-5.
17 Aged Care Rules, s 17-5.
18 Aged Care Act, s 18.
19 Aged Care Act, s 16.
20 Aged Care Act, s 163 and see the Aged Care Rules, s 163-5. See Explanatory Statement to the Rules.
21 Guardianship and Administration Act, s 12, s 81 and s 146.
22 Guardianship and Administration Act, s 12. See schedule 4 for the meaning of ‘capacity’ and schedule 2 for the meaning of ‘personal matter’ and ‘financial matter’. Also see s 12 for appointments of a guardian or administrator. The general principles also apply (s 11B).
23 See s 11A. The Human Rights Act 2019 (Qld) also applies (see NJ).
24 See NJ.
25 Guardianship and Administration Act, s 82 (subject to s 245). See also s 240.
26 Powers of Attorney Act, s 32 and s 41.
27 Powers of Attorney Act, s 109A
28 See s 12 of the Disability Services Regulation 2017 (Qld). See LR [2025] QCAT 462 for an overview of restrictive practices in Queensland.
29 See DBD [2023] QCATA 160 that found that restrictive practices as defined under the Commonwealth legislation do not fall within the definition of ‘health matter’ under the Guardianship and Administration Act 2000 (Qld).
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