LONG-TERM CARE RIGHTS PROTECTION:
A Submission Regarding Bill 140 –
An Act Respecting Long-Term Care Homes
PRESENTATION - HANSARD
Legislative Assembly of Ontario
Second Session, 38th Parliament
SP-39 ISSN 1710-9477
STANDING COMMITTEE ON
SOCIAL POLICY
COMITÉ PERMANENT DE
LA POLITIQUE SOCIALE
Tuesday 16 January 2007 Mardi 16 janvier 2007
LONG-TERM CARE HOMES ACT, 2007
LOI DE 2007 SUR LES FOYERS DE SOINS DE LONGUE DURÉE
Consideration of Bill 140, An Act respecting long-term care homes / Projet de loi 140, Loi concernant les foyers de soins de longue durée.
PSYCHIATRIC PATIENT
ADVOCATE OFFICE
The Acting Chair: Our first deputation this morning is Mr. Bernard Maheu. Is Mr. Maheu here? Oh, I beg your pardon. My error. The first deputation would be the Psychiatric Patient Advocate Office, David Simpson and Lisa Romano. Unfamiliar formatting here.
Good morning and welcome. You'll have 15 minutes to do your deputation. If you leave any time remaining, it will be divided among the parties for questions. Please begin by introducing yourself for Hansard and then proceed.
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Ms. Lisa Romano: Good morning. My name is Lisa Romano. I'm legal counsel to the Psychiatric Patient Advocate Office. With me is David Simpson, acting director of the PPAO. We would like to thank the committee for this opportunity to share our recommendations with you in the hopes that they will be adopted to strengthen Bill 140.
Due to time constraints, we will not discuss all the topics contained in our submission, but we trust that you will consider the submission in its entirety. Today we will be primarily focusing on the issues of rights advice and restraint.
For the past 20 years, the PPAO has been providing rights advice in the mental health sector. Presently we deliver the majority of rights advice in the province. In 2005, our rights advisers met with individuals on over 25,000 occasions, in 48 different languages.
Rights advice is a process by which patients in psychiatric facilities and persons being considered for community treatment orders and their substitute decision-makers, if any, are informed of their rights when their legal status has changed. For example, if a person is found to be treatment-incapable, then he or she is unable to make decisions about treatment and another person, the substitute decision-maker, is able to consent to treatment decisions affecting the person's bodily integrity.
The role of the rights adviser is to explain the significance of the legal situation to the affected individual and to discuss some of their options. The rights adviser will also assist the individual, if they so choose, to apply for a hearing before an administrative tribunal called the Consent and Capacity Board to challenge this change in legal status. They will also assist the person to obtain a lawyer and to apply for financial assistance. Thus, rights advice is an integral check and balance that serves to protect the rights of the individual in the system.
Now I'm going to briefly discuss admission or transfer to a secure unit in a long-term-care home, which can be found on page 7 of our submission.
Bill 140 requires the provision of rights advice to residents who are found incapable of consenting to their admission or transfer to a secure unit where substitute consent has been provided. Residents are prevented from leaving secure units. Individuals are able to challenge their admission or transfer to the board, to determine whether the substitute decision-maker has complied with the principles of giving or refusing consent.
As the admission or transfer to a secure unit is effectively an involuntary admission within a long-term-care home, the liberty interests of the individual must be protected. Therefore, the PPAO believes that every person being admitted or transferred to a secure unit should receive rights advice in order to understand the implications of being detained on a secure unit.
The PPAO believes that Bill 140 lacks a framework to protect residents who remain on a secure unit for an indeterminate amount of time. Timelines should be enacted for both the regular provision of rights advice and the review of decisions to keep residents on secure units in order to safeguard their liberty interests and maintain accountability. With this in mind, the PPAO recommends that residents detained on a secure unit be required to obtain mandatory rights advice every six months. Moreover, the Consent and Capacity Board should hold a deemed review once per year in cases of continued admission on a secure unit.
The proposed legislation also needs to provide for the written confirmation of rights advice and the creation of a regulated form similar to the current form 50 that exists for mandatory rights advice situations under the Mental Health Act. This form should provide clear information as to whether rights advice has been provided and whether the person has applied to the board.
I am going to speak now for a few minutes about expanding rights advice situations. This can be found on page 6 of our submission.
While the PPAO commends Bill 140 for requiring the provision of rights advice for transfers and admissions to secure units in long-term-care homes, we believe that enhanced rights protections should be extended in four additional scenarios. I will briefly discuss each of these situations.
First, where a health care provider finds a person incapable of consenting to admission to a long-term-care home, the person is not entitled to rights advice. The health care provider is only obliged to provide the person with rights information. We submit that rights advisers are better able to assist individuals in this regard due to their experience and impartiality. For example, some individuals may feel awkward or uncomfortable asking the person who found them incapable for additional information in order to challenge that finding. Therefore, the PPAO recommends that rights advice be provided to all incapable individuals facing admission to a long-term-care home.
The second situation occurs where an individual is a patient in a psychiatric facility and has been found incapable of managing his or her property. Prior to discharge from the psychiatric facility, a notice of continuance of inability to manage property, which is referred to as a form 24 under the Mental Health Act, must be completed by a physician. A rights adviser is then to meet promptly with the person to explain this finding to them and to explain to them their rights. If patients have not submitted an application to the board prior to discharge, they are precluded from having this decision reviewed once they're in the community. Unfortunately, individuals are often discharged after receiving the form 24 but before receiving rights advice, and some patients are discharged shortly after receiving rights advice but before they have the opportunity to apply to the board. These situations are especially true of those being admitted to long-term-care homes due to the risk of losing a bed if the admission does not take place quickly. Once individuals are at the hospital, if they wish to challenge the finding before the board, they must undergo another capacity assessment at their own expense. This kind of assessment usually costs hundreds of dollars.
To remedy this situation, the PPAO recommends that residents receive rights advice when a form 24 is issued but where rights advice did not take place prior to the admission to a long-term-care home and that the existing legislation be amended to allow the board to accept these applications. Also, rights advice should be mandatory within a long-term-care home where a capacity assessor finds a resident to be financially incapable.
Finally, under existing law, if patients of a psychiatric facility are found to be incapable of making a decision about their treatment for a mental disorder, rights advice is mandatory. However, residents of long-term-care homes are not afforded the same right, despite the fact that residents are also members of a vulnerable population. Due to this loss of personal autonomy, the PPAO recommends that the legislation stipulate that rights advice must be provided to residents of long-term-care homes.
Mr. Simpson will now continue with the remainder of our submission.
Mr. David Simpson: Good morning. I would like to spend the next few minutes addressing the issue of restraint and the implications for individuals in the long-term-care sector, as well as some of the myths and misconceptions about the use of restraint. In our submission you'll find our comments and recommendations beginning on page 8.
In 2001, our office conducted a study on the use of seclusion and restraint in provincial psychiatric hospitals, and we made 23 best-practice recommendations on the basis of our findings. Some of the results were troubling, particularly the frequency of the use of seclusion and restraint and what was perceived by health care providers as an environment that was permissive and tolerant of the use of restraint. Consequently, we have advocated for the mental health sector to move towards becoming a hands-free, restraint-free environment. Our report has been used by many hospitals in the development of their policies, and we believe that many of the best-practice recommendations are applicable to the long-term-care sector.
Bill 140 falls short of protecting residents' rights by including restraint in the plan of care. Restraint seriously limits individual autonomy and is associated with significant physical and psychological risks. The benefits of restraint may be difficult to ascertain, while risks of morbidity and mortality are well documented.
I would now like to address some of the myths and misconceptions about the use of restraint. There are some who believe that a resident in restraints is safer and requires less supervision. On the contrary: Such residents are at an increased risk due to health complications if the restraint is inadequately monitored and supervised. Restrained residents are unable to protect themselves from aggressive co-patients. Also, if the restraint is misapplied, it can cause life-threatening injuries or even deaths. The results can be tragic. Although some staff members view restraints as safety and protective devices, they are often misused, overused and inappropriately used as a way to manage difficult clients: those who wander or who would otherwise require higher levels of supervision.
As a rights protection organization, we are concerned that this legislation fails to even define "restraint." There are many different types of restraint, including physical, chemical and environmental. Without a clear and concise definition included in the law, its usage is open to uncertainty and, potentially, abuse.
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The legislation also permits care providers to include restraint in the resident's plan of care. By definition, "care" includes all dimensions of treatment and intervention. Bill 140 says that restraint can be used when a resident is incapable, but it does not articulate the nature of the incapacity: Is it referring to incapacity to consent to treatment decisions, incapacity to consent to the plan of care or incapacity to consent to the restraint itself? Thus, it is unclear in Bill 140 whether restraint is considered to be a treatment as defined in the Health Care Consent Act, because there is no definition of "treatment." If it is treatment, then there must be a determination by a health care provider of the person's capacity to give consent to restraint.
For persons found to be incapable, consent must then be given by a substitute decision-maker. If restraint is not considered treatment, but still requires consent for inclusion in the plan of care, then how and under what authority would capacity be determined? Also, under what authority would a substitute decision-maker consent to the use of restraint outside of the context of treatment? What would be the resident's right of review, if any, before the Consent and Capacity Board?
It is our position that restraint is not treatment and we would recommend that it be clearly defined from treatment. Therefore, the PPAO recommends:
-- the inclusion of a clear and comprehensive definition of "restraint" for physical, chemical and environmental methods;
-- the omission of restraint from the plan of care;
-- that "restraint" be clearly distinguished from "treatment";
-- that it be considered a means of managing emergent situation where the risk of serious bodily harm to the resident or others is imminent;
-- the inclusion of crisis intervention plans in the plan of care with consent and the involvement of both the resident and their substitute decision-maker, if any; and
-- the establishment of a written documentation standard within the proposed statute or its regulations, requiring a detailed account of regular, relevant occurrences, interventions and outcomes.
Documentation and reporting standards are essential if residents of long-term-care homes are to be protected from abuse. Staff in long-term-care homes should be trained and certified in crisis prevention and crisis intervention techniques.
Although we don't have time today to address all of our concerns, we would like to draw your attention to other recommendations, such as on page 11, the need to appoint an independent seniors' advocate to protect the legal and civil rights of seniors residing in long-term-care facilities; on page 14, the importance of appointing a seniors' ombudsman to report on the state of long-term care in Ontario and to receive complaints from all stakeholders, including the independent seniors' advocate; the benefit of strengthening resident and family councils by providing adequate funding and autonomy with funding and reporting relationships; and the provision of legal sanctions to hold every person who contravenes any provision of this legislation accountable for their actions.
Bill 140 will affect the quality of care and life of all residents in long-term-care homes for this and future generations to come. It's for this reason that we must get it right. Our challenge is to work together to strengthen rights protections for Ontario seniors and address issues related to quality of care and life. Adopting our recommendations is the first step in making the system both responsible and accountable to the people it serves.
The Vice-Chair (Mr. Khalil Ramal): Thank you for your presentation. We don't have any time left. Thank you very much.
