Restrictive practices in aged care: who can consent to restraint in NSW and QLD?

When an older person or a person with a disability living in residential aged care loses decision-making capacity, families and substitute decision-makers often assume that an Enduring Power of Attorney (QLD), Appointment of Enduring Guardian (NSW) or status as “next of kin” will be enough to authorise whatever care is considered necessary. That assumption is not always correct, particularly where the proposed care involves a restrictive practice, explains Wills & Estates Partner Hayley Condon and Aged Care Senior Paralegal and Accredited Aged Care Professional Bindy Marshall.

What is a restrictive practice?

A restrictive practice is any practice or intervention that restricts a person’s rights or freedom of movement. These practices are commonly called “restraints,” and they are not ordinary or routine care.

Because restrictive practices affect a person’s autonomy, dignity and human rights, strict rules govern when they may be used and who may consent to them. A restrictive practice should be used only as a last resort, in the least restrictive form, and for the shortest time necessary to prevent harm to the person or someone else.

A restrictive practice should not automatically be viewed as negative.

In many circumstances, it may be necessary to meet a person’s care needs and protect their safety and wellbeing, or the safety of others. For example, where there is a serious risk of falls, injury or wandering into danger.

When used appropriately, it can be an important protective measure. The key is ensuring that the practice is genuinely necessary, proportionate to the risk and supported by proper safeguards.

In Commonwealth-funded residential aged care, the Aged Care Act 2024 (Cth) and Aged Care Rules 2025 (Cth) (Commonwealth aged care legislation) recognise five categories of restrictive practice:

1. 1. Chemical restraint: Use of medication or a chemical substance for the primary purpose of influencing a person’s behaviour, rather than treating a diagnosed mental disorder, a physical illness or a physical condition or for end-of-life care.  
   2. Environmental restraint: Restricting a person’s free access to all parts of their environment for the primary purpose of influencing a person’s behaviour, including items or activities.  This may include placement of a person in a memory support unit within a facility where they cannot freely leave.
   3. Mechanical restraint: Using a device to prevent, restrict or subdue movement for the primary purpose of influencing behaviour, rather than for therapeutic or non-behavioural purposes. This may include a bed rail or lap belt in a wheelchair. 
   4. Physical restraint: Using physical force to prevent, restrict or subdue movement of a person’s body or part of their body for the primary purpose of influencing behaviour, rather than the use of a hands-on technique in a reflexive way to guide or redirect a person away from potential ham or injury.
   5. Seclusion: Confining a person alone in a room or physical space where voluntary exit is prevented or not facilitated, or it is implied voluntary exit is not permitted, for the primary purpose of influencing behaviour.

Whether an intervention is a restrictive practice depends on its purpose, effect and surrounding circumstances, not merely the name given to it.

When does medication become a Chemical Restraint?

Chemical restraint is one of the more common, and more difficult, examples. A medication may be prescribed by a medical practitioner for a legitimate clinical purpose, but the way it is used may still amount to a restrictive practice.

The distinction generally turns on the medication’s primary purpose.

Medication prescribed and administered to treat a diagnosed illness or physical condition will not ordinarily be chemical restraint merely because it also affects behaviour. However, medication may constitute chemical restraint if its primary purpose is to control or subdue behaviour.

For Example:

“This medication is administered to treat the resident’s diagnosed Parkinson’s disease”

This would ordinarily be medical treatment.

“This medication is administered primarily to keep the resident settled and reduce agitation”

This may be chemical restraint.

The prescribing medical practitioner’s clinical rationale, the person’s behaviour support plan and the stated purpose of the medication are all highly relevant to determining whether its use amounts to a restrictive practice.

Who can give consent to restrictive practices?

For people living in residential aged care, the Commonwealth aged care legislation applies whether the facility is in New South Wales or Queensland.

Consent starts with the person receiving care. They must be given appropriate information and support to understand the proposed restrictive practice and make the decision themselves. If they have capacity to make that decision, it is their informed consent, or refusal, that applies.

Only if the person lacks capacity for the particular decision can someone else consent on their behalf.

The Commonwealth aged care legislation uses the term “restrictive practices substitute decision-maker”, or RPSDM, for the person or body who can consent to a restrictive practice when an aged care resident cannot make that decision themselves.

But the Commonwealth legislation does not automatically give that authority to a family member, attorney or guardian. Instead, it looks to the law of the State or Territory where the resident receives care to determine who has the necessary authority. That is where the position starts to differ between New South Wales and Queensland.

The Aged Care Rules 2025 (Cth) provide temporary arrangements that, in limited circumstances, identify and authorise a person to act as an RPSDM.  It applies where no RPSDM has been appointed and has authority under State or Territory law and where an appointment application is awaiting determination by the relevant State or Territory tribunal but is subject to significant delay. These interim arrangements are due to end on 1 December 2026.

This is why it is important to understand the laws in your State or Territory and ensure that your enduring documents provide the appropriate authority. Restrictive practices may never be needed, but planning ahead can avoid uncertainty and delay if this type of care is required in the future.

New South Wales

In NSW:

• an Enduring Power of Attorney permits a person to appoint an attorney to make financial and legal decisions for them. It is not authority to make personal, lifestyle or health care decisions for the person, or to consent to, or withhold consent to, restrictive practices.
• an Advance Care Directive records a person’s wishes and instructions about future health care. It does not authorise another person to consent to, or withhold consent to, restrictive practices. The directive may still provide important evidence of the person’s wishes and preferences.
• an Appointment of Enduring Guardian permits a person to appoint an enduring guardian to make personal, lifestyle and health care decisions for them. An enduring guardian may act as a person’s RPSDM and may consent to, or withhold consent to, restrictive practices, but only if the appointment gives them the necessary restrictive practices decision making power.

If the Appointment of Enduring Guardian does not provide the required authority and the person has lost capacity to make a new appointment, an application to the NSW Civil and Administrative Tribunal (NCAT) will be necessary.

If an enduring guardian is already appointed, NCAT may review the appointment and add a restrictive-practices function. If there is no enduring guardian, NCAT may appoint a guardian with the necessary authority.

Even if the person’s family, care team and treating medical practitioner agree that the proposed restrictive practice is appropriate for the person, the aged care provider cannot proceed unless consent is given by an enduring guardian with the necessary legal authority or by a guardian appointed by NCAT with the restrictive practices authority, except in an emergency.

Queensland

In Queensland an Enduring Power of Attorney permits a person to appoint an attorney to make financial and personal, including health care, decisions for them.

An attorney appointed under an Enduring Power of Attorney for personal matters in Queensland may act as the RPSDM and may consent to, or withhold consent to, restrictive practices for a person in residential aged care where that person lacks capacity for the decision, provided the document does not exclude or limit that authority. This position is supported by the QCAT decision of EJ [2026] QCAT 175.

If the Enduring Power of Attorney does not appoint an attorney for personal matters, excludes the attorney’s authority to make decisions about restrictive practices, or limits that authority so that it does not extend to the particular restrictive practice proposed, the attorney cannot consent to that restrictive practice or otherwise act beyond the authority granted by the document.

If the person has lost capacity and can no longer make a new Enduring Power of Attorney, an application to the Queensland Civil and Administrative Tribunal (QCAT) will be necessary. QCAT may appoint a guardian with the necessary authority for restrictive practices. This may be the existing attorney if QCAT considers them suitable.

Even where an enduring guardian or attorney has authority to act as the RPSDM for a person, decisions about restrictive practices can become complicated when family members and care providers have different views.

Enduring documents should make it clear who can make these decisions and what they are authorised to do. 

However, that authority should not be limited so narrowly that the enduring guardian or attorney cannot respond to an unexpected care need.

No one can predict what may happen in the future, so the document should provide appropriate flexibility while still reflecting the person’s wishes and protecting their rights.

NSW v Queensland – Summary of key differences

The legal pathway also depends on the setting in which the restrictive practice is proposed.

This article covers people living in Commonwealth-funded residential aged care.

Separate laws and approval processes apply to people receiving disability or NDIS services, which are beyond the scope of this article.

Authority to make a restrictive practices decision in residential aged care should not be assumed to apply in a disability-services setting; the requirements applying to the person’s particular circumstances must be considered separately and legal advice should be obtained.

Consent is only one requirement

Aged care providers cannot use a restrictive practice merely because an enduring guardian or attorney agrees to it.

Commonwealth aged care legislation contains specific obligations for aged care providers when using restrictive practices, concerning:

• necessity and prevention of harm;
• use only as a last resort;
• use of the least restrictive practice;
• informed consent;
• behaviour support planning;
• monitoring and documentation;
• regular review; and
• use for the shortest appropriate period.

Emergency provisions may apply in limited circumstances, but they do not provide ongoing authority to use a restrictive practice. Once the immediate risk has passed, the provider must follow the usual consent, assessment, documentation and review requirements.

In short, consent from an authorised guardian or attorney as a RPSDM is only one part of the process. 

It does not give the aged care provider blanket permission to use restraint. The provider must satisfy the Commonwealth requirements before, during and after the use of any restrictive practice, including demonstrating that it is necessary, proportionate to the risk, used for the shortest appropriate period, and properly monitored, documented and reviewed.

Time to check your Enduring Documents

If you have an Appointment of Enduring Guardian in NSW or an Enduring Power of Attorney in Queensland, it is important to check that the document gives your chosen decision-maker sufficient authority to act as a RPSDM and make decisions about restrictive practices.

Many older documents do not address restrictive practices or provide the authority that may now be required.

In NSW, an enduring guardian requires a clearly expressed restrictive practices decision making power.

In Queensland, the attorney must be appointed for personal matters, and the document must not exclude or limit their authority in a way that prevents them from restrictive practices decision making or from consenting to a particular restrictive practice proposed.

The authority should be clear but not drafted so narrowly that the decision-maker cannot respond to an unexpected care need.

No one wants to discover during a health or care crisis that their enduring documents do not provide the authority their chosen decision-maker needs. Checking and updating these documents while you still have capacity can help avoid that situation.

If the necessary authority is missing after capacity has been lost, the appointed enduring guardian or attorney or another family member may need to apply to the applicable State tribunal for an order.  

With tribunal lists under pressure, the practical consequences can be significant: a resident may be unable to receive care involving a necessary restrictive practice until a decision-maker is appointed and/or given legal authority to act for restrictive practices and provides consent, potentially at considerable cost to the resident’s care, safety and wellbeing.

Before a restrictive practice is used: three questions to ask

Consent to restrictive practices sits at the intersection of aged care regulation, guardianship law, clinical judgment and human rights.

It can therefore be a complex area for residents, families and care providers to navigate.

Before a restrictive practice is used, three important questions should be asked:

1. Is the proposed intervention a restrictive practice? If it is a restrictive practice, informed consent must be obtained from the resident or, if the resident lacks capacity, their RPSDM.
2. Has a person been appointed as the resident’s RPSDM with authority to provide informed consent? The resident’s enduring document must be reviewed to confirm that a valid appointment has been made and that the decision-maker has the required authority. The title “enduring guardian” or “attorney” is not enough. In NSW, the enduring guardian must have the relevant restrictive-practices function. In Queensland, an attorney appointed for personal matters may have authority unless the document excludes or limits that power in relation to the restrictive practice proposed
3. Has the aged care provider complied with all requirements under the Commonwealth aged care legislation for implementing the restrictive practice? This includes assessment, behaviour support planning, documentation, monitoring, review, and consideration of less restrictive alternatives.

Finally, losing decision-making capacity does not mean that a person’s wishes, values and rights cease to matter. Any substitute decision-maker must continue to consider the person’s past and present wishes, beliefs, preferences, dignity and human rights, and support them to participate in decisions wherever possible.

No one knows when illness, injury or cognitive decline may affect their capacity. Reviewing and updating your enduring documents while you are still able to do so ensures that your wishes are recorded and your chosen decision-maker has the necessary authority.

Acting now can help avoid uncertainty, delay and tribunal proceedings when important decisions about your care need to be made.

Attwood Marshall Lawyers – supporting you through every stage of life

Attwood Marshall Lawyers regularly assists individuals and families with estate planning, decision-making documents, and the transition to aged care.

Our Estate Planning team and Accredited Aged Care Professionals take the time to understand your situation and how to help you plan for the future with confidence.

We also provide advice to attorneys and guardians, helping them understand their responsibilities and duties and any limitations on the authority granted.

If you need any advice on acting as an attorney or guardian or need to draft documents to appoint someone you trust to these roles, our team is available anytime.

Contact our team anytime on 1800 621 071.