When the ABC published stories showing nursing home residents with dementia drugged up on antipsychotics and physically restrained in their chairs, then-aged care minister Ken Wyatt promised to introduce tougher regulations.

But what followed shows how a minister's best laid plans can go awry.

The minister asked the Department of Health, the industry and doctors to help with his reforms, which come into effect next month. But some experts question whether they are any better, saying the regulations could actually make the problem worse.

Emails show how tough reform was watered down

Thousands of government documents have been produced as part of the Royal Commission into Aged Care Quality and Safety. Amongst them are dozens of emails showing how the minister's promise to toughen rules to protect vulnerable people with dementia was whittled down.

On Monday September 17, 2018, ABC's Four Corners airs the first of two programs about the state of aged care. One of the cases shows how a woman with dementia was administered large doses of antipsychotics, without the consent of her family and with disastrous results.

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Hours after the program airs, Paula Gelo, chief adviser to then-aged care minister Ken Wyatt, emails senior bureaucrats in the department, saying the minister is "keen to ramp up" this issue for an "immediate solution" to this problem in nursing homes.

Three high-level reports to the government over the past few years have already called for tough legislation to stamp out so-called physical and chemical restraint. In 2016, the Australian Law Reform Commission warned that the use of restraints could be considered a form of abuse.

The next day, Paula Gelo sends another email saying the minister "does not want [it] to fall of [sic] the radar" and "to step it up asap".

Yet despite the urgency, it appears to once again fall off the agenda … until the ABC airs another story on January 16, 2019, showing graphic images of a man with dementia physically and chemically restrained at a Sydney nursing home.

Records show Terry Reeves was regularly tied to his chair — sometimes for a total of 12 to 14 hours a day. He was also drugged up on powerful anti-psychotic drugs without his family's consent.

Terry Reeves' family say he was frequently unconscious when they came to visit. ( Supplied )

The next day, Mr Wyatt deplores Terry Reeves' treatment as "unacceptable in this day and age" and announces that the Department of Health will "prepare regulations that will protect senior Australians within residential care". The regulations, he says, will be ready "within weeks".

The following day, January 18, the minister orders a meeting with "critical friends", including three of the most powerful industry lobby groups: the Aged Care Guild, Aged Care and Community Services and Leading Age Services Australia. The industry has previously argued against any further regulation on restraint, saying it is already well-regulated.

There's one consumer representative amongst the "critical friends" group — Ian Yates from Council on the Ageing (COTA).

The minister's tight deadline to introduce regulation is noted by one senior bureaucrat — "nothing like a roller coaster!"

Minister Wyatt wants immediate action and he believes that can be achieved through amending the new Charter of Aged Care Rights, a crucial document being negotiated with industry and consumer groups right now in time for release on July 1.

Ken Wyatt pushed for reforms to restraint management in aged care. ( ABC News: Mitchell Woolnough )

The Charter has 14 principles and is designed to protect people in nursing homes, guaranteeing their right to safe care, dignity, respect and the right to live without abuse and neglect.

Minister Wyatt wants new clauses: the right to live without inappropriate physical and chemical restraint and informed consent for any restraint.

On February 7, 2019, one bureaucrat appears to try to persuade the minister that this would already be captured in the charter and there is no need to include specific references.

The next day, February 8, the minister's chief of staff, Nick Hartland, makes it clear: the minister's "strong preference" is for "a version that includes explicit references" to physical and chemical restraint and informed consent.

But it appears the department is not keen to consult more groups about the charter.

On February 13, some bureaucrats discuss amongst themselves how they've already negotiated with aged care providers and consumers.

"We have come a long way and arrived at an agreed position with this group," an email between senior bureaucrats says.

"Consulting with a whole new group may open up more debate on the amendments and the consequent risk that our agreed position is compromised.

"I don't think we need to consult clinical experts as we are not developing a clinical framework — it's purely administrative".

But a clinical group is established, led by the department's top doctor, chief medical officer Professor Brendan Murphy.

Their findings and suggestions will go to another group dominated by the industry: six aged care providers and lobbyists, one union and one consumer group.

On February 19, a month after Ken Wyatt announced his tough stance, Professor Murphy sets out the disturbing issues around drugs in aged care: they are overprescribed; they are mostly ineffective except in about 10 per cent of cases; there's a high risk of morbidity; and, crucially, doctors are being pressured by aged care staff to prescribe the drugs because of "perceived or real workload issues".

There's also a discussion about "informed consent" — a crucial issue for the minister.

"Informed consent" means telling the family or guardian about the morbidity dangers, side effects and general ineffectiveness of the drugs. The best study in Australia shows that informed consent is sought in only 6 per cent of cases.

To alleviate this, it has been suggested that nursing home staff should be able to seek consent from the families, rather than the GP doing so.

But on March 8, Professor Murphy raises the alarm: this is a "major issue that needs to be resolved".

In an email to senior bureaucrats, he argues that aged care staff should not have to seek "informed consent" to administer the medication because that's the GP's role.

If they did so, it would be an "intrusion into the doctor-patient relationship" and he believes that "may well not be supported by the doctor groups".

Instead, Professor Murphy says, the committee came up with a practical solution: the staff can simply notify the family or guardian about the prescription of the drugs "as soon as practicable" afterwards "while we work with the doctors to improve their consenting practice".

That's different to what minister Wyatt wants and means aged care staff could still give residents with dementia powerful drugs without "informed consent" from families. His request to amend the Charter of Aged Care Rights to include the "right to live without inappropriate physical and chemical restraint" also isn't adopted.

We don't know what happened because the emails do not reveal it. We asked the department why it wasn't included in the charter.

"The parties agreed that regulating the use of restraints in a specific, stand-alone responsibility inserted into the Quality of Care Principles 2014 would enable greater detail and nuance than permitted in the context of the new charter," a department spokesperson said.

It's now nine weeks since Ken Wyatt first promised his crackdown. We don't have the emails showing how the changes to the Quality of Care Principles were negotiated.

But an email entitled "workshop outcomes on regulation of physical and chemical restraints" goes to the stakeholder group on March 21.

Ian Yates, from consumer group COTA, can't attend the meeting to discuss them but he responds strongly: the documentation reads as if "it's mostly OK but we need to remind people of the rules".

"The prevalence of restraint is such that it is NOT OK in the sector at present and strong action is needed to swing it to being OK."

A week later, on March 29, there's an urgent email from Christina Bolger, the second in command at the Aged Care Quality and Safety Commission, to the department. The Commission's role is to audit nursing homes and check on their use of restraints.

At 3.23PM, Ms Bolger tells the department she is concerned about the current draft legislation.

She wants there to be more safeguards to make it clear that the legislation is about "eliminating" the use of restraints; she wants there to be a time limit "determined at the outset" before a physical restraint is used; and she wants staff to regularly review the restraint and test alternative treatments.

None of those suggestions is taken up.

Two hours later, the Office of Best Practice Regulation in the Office of the Prime Minister and Cabinet emails department officials — who want to know if they need an impact statement for the new regulations coming into place.

Its assessment: no need for a statement as "we assess the proposal as having no more than minor impacts".

The next day, Minister Ken Wyatt is out in front of the media, announcing strengthened regulations on restraints which must "only be used as a last resort".

What changed?

The amendments do have many more references to physical and chemical restraint. They say that any restraint has to be approved by a doctor or a nurse and alternatives have to be considered.

But the devil is in the detail.

While "informed consent" from the family or guardian is necessary when physically restraining someone, there's no time limit on how long a person can be restrained.

With chemical restraint there's no such provision for aged care staff to seek "informed consent", just a requirement to "inform" the family or guardian afterwards.

With a myriad of human rights issues around restraining people with dementia, we asked the department why there appears to be no expert lawyer involved in the consultations. The department said it "does not comment on the circumstances in which it may seek legal advice".

Ken Wyatt shifted from aged care to the Indigenous Australians portfolio when the Government was re-elected in May, his replacement is Senator Richard Colbeck.

We asked Senator Colbeck about the criticisms of the new regulations and were told: "The new system was consulted on widely including with experts" and that "it is always easy to get someone who will criticise a new system before it even commences".

The system 'relies' on chemical restraint

The family of Terry Reeves say their hopes have been dashed — not only for their father, who they say never recovered from the administering of antipsychotics — but for 50 to 70 per cent of people in nursing homes with dementia.

Lillian Reeves' husband Terry was chemically and physically restrained in a nursing home. ( ABC News: Dave Maguire )

Despite the new regulations, it seems what happened to Mr Reeves in 2018 could happen again. There are still no time limits on the periods of use of physical restraints and still no obligation for aged care staff to seek family consent to give powerful antipsychotics.

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"For Terry, the antipsychotics just scrambled his brains completely. He just came out a whole different person," his wife Lillian said.

"And if there's no time limit on a physical restraint, that still means you can restrain them for 10 hours if you want. If you have very low staffing you can just tie five people up for 10 hours.

"It's not right. But I can see that it's easy for them."

The head of clinical services at Hammond Care's Dementia Centre, Associate Professor Stephen Macfarlane, is also concerned. He believes the regulations could simply legitimise antipsychotic use and lead to even more prescription of antipsychotics — and all without the consent of families and guardians.

"Well, a doctor can't get informed consent over the phone when they're contacted by a staff member from an aged care facility," he said.

"There's no opportunity to have a discussion with the patients or their next of kin or nominated guardian to obtain informed consent for the prescription."

Associate Professor Stephen Macfarlane says the aged care industry relies on chemical restraint. ( ABC News: Dave Maguire )

Associate Professor Macfarlane believes the industry wouldn't survive with tougher regulations on chemical restraint.

"If the inappropriate prescription of psychotropic medications were stamped out, the providers would be unable to cope with the results of that because their current staff do not have the skills in dementia behaviour management to more appropriately manage those behaviours," he said.

Eighty per cent of staff in aged care are personal care assistants who are not required to have any education in dementia care.

It seems that tackling inappropriate restraint comes back to the key focus of the royal commission: a lack of trained staff in aged care.