Disentangling the Laws of Consent, Guardianship and Restrictive Practices

Restricting the movement and liberty of a person without their consent is understood as contrary to the law - and could on occasion constitute unlawful detention. In care settings, such as disability care and residential aged care, differing means of restricting a person's movement or liberty are known as restrictive practices (RP). The intrusive nature of most RP means their use normally requires the consent of the person to which they are applied. Where a person has impaired decision-making capacity and is subject to a guardianship order, the power to consent to RP is conferred on a substitute decision-maker; a private guardian (often a family member) or the Public Advocate (where no family member or friend is available/appropriate). But what if there is no guardianship order in place, whereas a person is deemed unable to provide valid consent to restrictive measures - can a family member informally consent? This is one of many questions raised by the use of RP in care settings.