Restrictive practices in aged care — what are they and who can consent?

On 1 July 2025, the Victorian Government introduced the Aged Care Restrictive Practices Substitute Decision‑Maker Act 2024 (Vic) to allow a person to nominate another person to make decisions around restrictive practices in aged care through a new enduring document.

Enduring power of attorney documents are commonly prepared as part of a client’s broader estate planning, often alongside their Will. While instruments such as an enduring power of attorney, appointment of medical treatment decision maker, and advance care directives are prepared as part of one’s estate planning, they can best be described as ‘living documents’ or ‘incapacity documents’ as they cease to have any effect upon the death of the principal. Their purpose is to nominate trusted decision-makers and set clear boundaries around the financial, medical and lifestyle decisions they may make if the principal later loses decision-making capacity, often at a time when they are living in residential aged care.

With the average life expectancy increasing, we continue to see more individuals living in residential aged care facilities. As such, there is a growing risk of residents wandering from facilities, threatening self-harm, and displaying aggression due to dementia, acquired brain injury or mental illness. Aged care providers must, as a last resort, implement restrictive practices to prevent a resident who lacks capacity from harming themselves or others.

The Royal Commission into Aged Care Quality and Safety highlighted the seriousness of this issue. Its 2021 report revealed that more than 27,000 alleged physical or sexual assaults were exempt from mandatory reporting because they involved resident‑on‑resident incidents — many occurring in contexts where restrictive practices were used. The Commission uncovered widespread physical, emotional and psychological harm arising from inappropriate or poorly regulated restrictive practices.

A key gap identified was the absence of clear legislation specifying who could lawfully consent to restrictive practices on behalf of a resident who lacked capacity. This gap was addressed with the commencement of the Aged Care Restrictive Practices Substitute Decision‑Maker Act 2024 (Vic) on 1 July 2025. Before this Act, Victoria had no dedicated framework enabling aged care providers to obtain consent from substitute decision makers for restrictive practices.

The Act reinforces a central principle: residents must be safe, treated with dignity, and protected from abuse. Restrictive practices, whether physical or chemical, may only be used when clinically justified, necessary, and truly a last resort.

Restrictive practices are defined across five categories:

• Chemical restraint
• Environmental restraint
• Mechanical restraint
• Physical restraint
• Seclusion

The Act operates alongside existing frameworks, including the Guardianship and Administration Act 2019, the Medical Treatment Planning and Decisions Act 2016, and the Powers of Attorney Act 2014.

A person with capacity may appoint their own restrictive practices substitute decision-maker (RPSDM), who is a nominee under section 4 of the Act. Nominees must be over 18, capable of making restrictive practice decisions, and willing and available to act. Certain individuals are excluded, such as those with family violence orders against them, employees of the aged care provider, or people convicted of offences against the person.

The Act also expands the powers of the Victorian Civil and Administrative Tribunal (VCAT), allowing it to appoint or revoke an RPSDM, or make restrictive practice decisions itself where a resident has lost capacity, and no suitable RPSDM is available.

If a resident has not formally appointed an RPSDM, the aged care provider may identify a temporary RPSDM, chosen from the first eligible person in the following order:

1. Spouse or domestic partner
2. Primary carer
3. Eldest child, then subsequent children by age
4. Eldest parent
5. Eldest sibling

A temporary RPSDM’s authority ends once the specific restrictive practice decision has been made.

Contact us

At Rigby Cooke Lawyers, we can assist with the preparation of estate planning documents, including a nomination of a restrictive practices substitute decision-maker document. For more information, please contact a member of our Wills, Trusts and Estates team.