A Hunter law firm is helping families launch legal action against inappropriate chemical restraint and the use of psychotropic drugs on aged care residents.

The inappropriate use of psychotropic medication and chemical restraint in nursing homes has been identified as a significant and continuing issue.

Hunter-based Catherine Henry Lawyers and Sydney-based Elderlaw Legal Services are calling on local families who are wanting to take legal action over loved ones in aged care facilities receiving inappropriate drugs or being chemically restrained.

The move is in response to a 2021 audit of a Hunter nursing home that showed 90 per cent of residents had received psychotropic drugs without prior written consent.

Aged Care Quality and Safety Commission auditors deemed the nursing home non-compliant in April.

The local aged care facility said it did not have written consents from family or guardians for 35 out of 39 residents who had received psychotropic drugs.

What are psychotropic drugs?

Clinical pharmacologist and Chair of Clinical Pharmacology at the University of Newcastle Professor Jennifer Martin said psychotropic drugs influenced the brain’s functions, including emotions and behaviour.

Professor Jennifer Martin. Photo source: University of Newcastle.

“Psychotropic drugs in this context would refer to the drugs used for antipsychotic therapy, so the therapies we use for symptoms of psychosis, hallucinations and delusions. There are also anti-depressants, anti-anxiety medication and sedatives like Benzodiazepine and Valium,” Professor Martin said.

“There are also psychotropic drugs to help reduce the progression of dementia and slow down the decline in patients.”

When more than one psychotropic drug is taken, they become compounded, intensifying any side effects or impacts to the person’s brain functions and behaviour.

“This is a large concern for many geriatricians,” Professor Martin said.

“The brain’s thinking and behavioural processes have many different individual pathways and chemicals that become activated with these medications. The drugs bind themselves to the pathways affecting that specific behaviour or symptom.

“When psychotropic drugs are taken together, they often break down those pathways and interact with each other. So, it causes this chemical reaction inside the body. The more drugs you’ve got, the more chance of having interference with these pathways.”

Professor Martin said doubling up on psychotropic drugs or errors in dosage was typically an easy thing for a young person’s brain to cope with. However, she said older people didn’t have the same capacity.

“It tends to flatten people quite a lot; that’s the main thing. Patients could just be sitting there almost mute, not really listening, not talking or interacting in conversations. Unable to initiate movement, almost no ability to function,” Professor Martin said.

“Some facilities might not be able to cope with patients getting violent or trying to leave. Using these therapies would keep the patients calm and quiet, making it easier for carers to manage.

“However, we do know that this is very bad for the patient and their quality of life, especially if these therapies are being misused as an easy way around managing their patients’ behaviour.”

Professor Martin said multiple nonchemical practices could be used to manage patients and their symptoms. Examples include:

  • Reorientating the patient and reminding them of where they are and what they are doing.
  • Having familiar pictures or items by their bed as well as clocks.
  • Creating a regular day and night cycle. For example, placing patients by a window during the daytime and ensuring the lights are on, followed by a proper night-time schedule, training the body to know when it should be asleep or awake.

“Once we start adding in drugs, we can really muck up the cycle, and people start wandering at night and doing all sorts of abnormal things,” Professor Martin said.

“It can be difficult to know whether it’s the disease or the drugs causing these symptoms. But certainly, these drugs are a huge contributing factor.”

Psychotropic drugs and chemical restraint

Lawyer Catherine Henry said inappropriate chemical restraint at aged care homes had been a problem for years.

Catherine Henry. Photo supplied: Craig Eardley

After helping families take common law action against these facilities, Henry said she saw “mere non-compliance” penalties being served with no real change enacted.

Catherine Henry Lawyers and Elderlaw Legal Services are now focusing on a different strategy to deliver justice faster for the families and people impacted.

Henry said they were helping families launch legal action through the NSW Civil and Administrative Tribunal (NCAT) Consumer Division.

“If aged care facilities are chemically restraining or are prescribing psychotropic medications without proper legal written consent or in cases of imminent harm, they are effectively breaking a resident’s statement of rights, their standards of good care and service, as well as committing the common law offence of unlawful detention,” Henry said.

“Penalising the provider is one thing, but that doesn’t compensate the suffering resident.

“The resident should have some or all of their aged care fees refunded because the provider has failed to provide the service it said it would.”

The Royal Commission into Aged Care Quality and Safety

The inappropriate use of psychotropic medication in nursing homes was a key issue identified by the Royal Commission into Aged Care Quality and Safety.

The Royal Commission recommended regulating restrictive practices in aged care facilities and outlined it as a top priority in all of its reports.

The overuse of restrictive practices in aged care was found to be a significant quality and safety issue, impacting the liberty and dignity of people receiving aged care.

“Urgent reforms are necessary to protect older people from unnecessary, and potentially harmful, physical and chemical restraints,” the final report summary stated.

The Royal Commission recommended stricter requirements for prescribing psychotropic medicines and recommended that only psychiatrists or geriatricians initiate treatment. 

It was also recommended that “both physical and chemical restraints are to be used only ‘as a last resort’ and where specified conditions are met”.

The Government has recently changed these laws in response to the Royal Commission’s recommendations, and as of July 1, 2021, approved residential aged care providers must comply with the legislative obligations.

Elderlaw Legal Services senior solicitor and author of Elder Law in Australia Rodney Lewis said that although the new legislation was welcomed, the problem was still widespread.

Elderlaw Legal Services senior solicitor Rodney Lewis. Photo supplied.

“Despite the prominence of the issue and legislation change, we are still seeing aged care homes breaking both the law and the protocols by effectively chemically restraining residents,” Lewis said.

“Being deemed non-compliant by the regulator is not a sufficient penalty to effect change.

“Litigation is a tool for social education, and we need there to be consequences for unlawful behaviour.”

Lewis said pursuing legal action through the consumer division turned a new corner for the issue, showing aged care regulators and providers that the fight against these practices was not over.

Families wanting to take legal action should call Catherine Henry Lawyers on 1800 874 949 or Elderlaw Legal Services on (02) 9979 1009.

Hayley McMahon

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