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Bill 160 could make it harder for families to protect loved ones with dementia

The Ontario government introduced a new bill (“Bill 160, Strengthening Quality and Accountability for Patients Act, 2017″) that, if passed, would create a variety of changes within our health care system. A few changes may be of particular interest to families who have a loved one with dementia.

The bill would amend the law regarding “secure units” in long-term care homes. Secure units are areas within a long-term care home that are often used to keep people with dementia safe. They will frequently have locked doors to prevent wandering and alarms on exit doors in case a resident leaves. Sections of the Long-Term Care Homes Act dealing with “secure units” were previously drafted but never brought into force, meaning those sections are not actually law. This bill proposes to fill that gap by legislating what would be called “confinement” and introducing due process for residents being detained. After all, other than imprisoning convicted criminals there are few situations in which the government permits people to be detained against their will.

The proposed law states that residents of long-term care facilities could not be restrained or confined for staff convenience or as a disciplinary measure. The bill introduces specific criteria that would have to be met in order to confine a resident (please see bottom of this blog for complete list of criteria).  Consent would be required of the patient, if mentally capable of making the decision, and otherwise a substitute decision-maker (usually a relative).

If the substitute decision-maker consents to a resident being confined, the home would have additional responsibilities to the resident such as giving the resident written notice, verbally explaining the notice, and providing an opportunity to meet a rights adviser.  The rights adviser would have to tell the resident that he or she has a legal right to disagree with being confined and apply to a tribunal called the Consent and Capacity Board for a hearing. The resident could then fight for the right not to be confined.

Interestingly, a substitute decision-maker would have to give or refuse consent to the confinement in accordance with the rules that currently guide how substitute decision-makers must make treatment decisions. This means that it is possible a resident may, at an earlier time, have expressed a clear wish not to be confined in long-term care and a substitute decision-maker would be required to follow that wish.

What is unique here is that a resident who has a prior capable wish to refuse a particular medical treatment risks harming only himself (for example, a person may have a prior capable wish never to be treated with a blood transfusion, even if that is what is required to save his life). But here, respecting a prior capable wish not to be confined in long-term care could introduce a risk of harm to others, as some people with dementia are not only confused but aggressive. This will prove very difficult for families who want their loved ones on locked units due to legitimate safety concerns, including a risk of harm to other vulnerable residents in the facility.

Fortunately, a substitute decision-maker would have the right to apply to the Consent and Capacity Board for a hearing for permission to deviate from the prior capable wish and consent to confinement. Such permission might be granted if the Board is persuaded that the resident “if capable, would probably give consent because the likely result of the confining is significantly better than would have been anticipated in comparable circumstances at the time the wish was expressed.”

While it is logical to offer legal protections to persons being involuntarily detained, mirroring the existing legislation will likely introduce some practical issues and could put some long-term care home residents at risk. Hopefully the government will seek feedback from stakeholders to refine the bill and ensure it strikes an appropriate balance of resident liberty and protection of vulnerable persons.

 

 Criteria for Confinement of Residents in Long-Term Care

There is a significant risk that the resident or another person would suffer serious bodily harm if the resident were not confined.Alternatives to confining the resident have been considered, and tried where appropriate, but would not be, or have not been, effective to address the risk referred to in paragraph 1.The method and degree of confining are reasonable, in light of the resident’s physical and mental condition and personal history, and the method and degree are the least restrictive of the reasonable methods and degrees that would be effective to address the risk referred to in paragraph 1.A physician, registered nurse or other person provided for in the regulations has recommended the confining.The confining of the resident has been consented to by the resident or, if the resident is incapable, by a substitute decision-maker of the resident with authority to give that consent.The plan of care provides for the following:

(a)  the resident’s condition is reassessed and the effectiveness of the confining evaluated, in accordance with the requirements provided for in the regulations;

(b)  the resident is confined only for as long as is necessary to address the risk referred to above in paragraph 1

(c)  the confining is discontinued if, as a result of the reassessment of the resident’s condition, one of the following is identified that would address the risk:

(i)  an alternative to confining, or

(ii)  a less restrictive method of confining or a less restrictive degree of confining that  would be reasonable in light of the resident’s physical and mental condition and personal history

 

UPDATE: BILL 160 BECAME LAW IN ONTARIO ON DECEMBER 12, 2017.

It is noteworthy that Bill 160 will also permit confinement of residents in retirement homes. This is very concerning for a variety of reasons, including the potential for residents to be confined and then not adequately supervised (as retirement homes may not have sufficient resources); the potential for residents to be confined because they are a disruption to others or difficult for staff; and the fact that at this time the term “confinement” has not been defined in the legislation. It appears Bill 160 is attempting to treat retirement homes like long-term care homes, despite the fact that retirement homes are private institutions and frequently not equipped to provide appropriate care for high-needs residents.

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