Restrictive practices in aged care 

The Aged Care Act 2024 (Cth) does not prohibit restrictive practices and does not authorise them. Section 162 makes it a condition of registration that a registered provider of a kind prescribed by the rules comply with any requirements prescribed by the rules relating to the use of restrictive practices in relation to an individual to whom the provider is delivering funded aged care services¹. Everything substantive is in the rules, and the prior question in an aged care restrictive practices problem is whether the use complied with them, because both the registration consequence and the immunity turn on that.

Regulation by condition, and where the detail sits

Section 162 is a single sentence and it delegates entirely. The Act says who must comply — a registered provider of a kind prescribed by the rules — and that they must comply with requirements prescribed by the rules. It does not define a restrictive practice for this purpose, list categories, or set an authorisation process.

An answer on this topic therefore cannot be given from the Act. The current rules must be identified and cited with their compilation, and the Act supplies only the consequence: non-compliance is a breach of a condition of registration.

Compliance also has a second consequence, running through the reportable incident scheme. Under s 16(1)(g) the use of a restrictive practice in relation to an individual is a reportable incident other than where it is used in accordance with any requirements prescribed by the rules. Compliance is thus what keeps a use out of the reportable incident categories, and departure from the rules is what puts it in.

The immunity in section 163

Section 163 confers an immunity, and it is tightly conditioned. It applies where three things are true: the entity is a registered provider to whom s 162 applies; a restrictive practice is used in relation to an individual; and "the individual lacked capacity to give informed consent to the use of the restrictive practice" (s 163(1)).

Where it applies, a protected entity is not subject to any civil or criminal liability for, or in relation to, the use of the restrictive practice — but only if, before 1 December 2026, two requirements are both met (s 163(2)):

• informed consent to the use was given by a person or body prescribed by the rules made for the purposes of that paragraph; and
• the restrictive practice was used in accordance with any requirements prescribed by rules made for the purposes of s 162.

The Act's own note states the corollary in terms: a protected entity does not have immunity if the restrictive practice was not used in accordance with the requirements prescribed by the rules. Compliance is therefore not merely a regulatory obligation; it is the condition of the immunity.

Section 163(3) defines protected entity to include both the registered provider and an individual who used, or assisted in the use of, the restrictive practice. The immunity reaches the worker as well as the organisation.

The date matters

The immunity is expressly framed by reference to consent given before 1 December 2026. That is a limit on the statutory protection, not a commencement date, and any answer relying on s 163 must engage with it rather than treating the immunity as open-ended. Where consent falls outside that frame, the immunity in this section does not answer the question and liability is determined by the general law and by whatever consent framework then applies — including, for an individual who lacks capacity, the substitute decision-making law of the relevant State or Territory.

How this differs from the NDIS approach

The two Commonwealth schemes handle restrictive practices differently, and the contrast is instructive. Under the NDIS rules, the conditions of registration are keyed expressly to State and Territory prohibition and authorisation processes: a use must be authorised in accordance with the jurisdiction's own process, and evidence lodged with the Commissioner. The aged care provision contains no equivalent reference to State authorisation on its face; it points to the Commonwealth rules and, for the immunity, to consent given by a person or body those rules prescribe.

A student should not assume the aged care regime incorporates State authorisation in the way the NDIS regime does. Whether and how State law bears on an aged care use is a question to be answered from the rules and from the relevant State or Territory law, not by analogy with the NDIS instrument.

Applying this in a problem question

1. Confirm the provider is one to whom s 162 applies under the rules before applying anything else.
2. Identify the requirements prescribed by the rules and cite them with their compilation; the Act alone will not answer the question.
3. Ask whether the use complied, because compliance decides both the registration breach and the reportable incident question under s 16(1)(g).
4. For the immunity, establish all three s 163(1) preconditions, including that the individual lacked capacity to give informed consent.
5. Then require both limbs of s 163(2), and check the consent falls before 1 December 2026.
6. Do not import the NDIS State-authorisation model into the aged care analysis.

Self-check

• Have I gone to the rules rather than answering from s 162 alone?
• Have I linked compliance to the reportable incident carve-out in s 16(1)(g)?
• Have I applied both limbs of s 163(2), and the date?
• Have I kept the aged care and NDIS models distinct?