Aims: To examine the legal liability associated with the use of antipsychotic medication in the management of BPSD.
Methods: Analysis of recent decisions relating to the use of restrictive practices in courts and tribunals to determine how case law affects the legal liability associated with antipsychotic medications use in BPSD management. Relevant cases were identified via Lexis Advanced Research database.
Results: Cases such as Re Frieda [2022] ACAT 27 and Re TZD [2021] NSWCATGD 14 consider the circumstances under which Medical Treatment Decision Makers or Guardians can consent to antipsychotic use or restrictive practices. The recent case of HYY [2022] VCAT 97 utilises the Guardianship and Administration Act 2019 (Vic), the Medical Treatment Planning and Decisions Act 2016 (Vic) and the Charter of Human Rights and Responsibilities (General) Regulations 2017 (Vic) to determine that neither the MTDM nor Guardian can consent to restrictive practices in Victoria in many circumstances.
Conclusion: The management of BPSD is complex and involves the implementation of multifaceted management plans. One aspect of these plans might include the use of antipsychotic medications. Consent is essential in order to avoid claims of medical trespass or even false imprisonment associated with the use of a restrictive practice. In Victoria, recent case law has led to the situation where there may be no pathway to obtain valid consent for the use of antipsychotic medications when used as chemical restraint. This exposes geriatricians to the risk of liability in the management of a common problem.