Consent to Chemical Restraints in Long-Term Care
24 February 2020
By Sara Pon
This blog will outline the current laws on consent to chemical restraints in long-term care. Chemical restraints were addressed in the CCEL’s Conversations About Care: The Law and Practice of Health Care Consent for People Living with Dementia in British Columbia report published in 2019. This blog will describe what a chemical restraint is, outline the laws governing consent to medication and restraint use, and describe the Conversations about Care report’s recommendations to improve restraint law and practice.
What is a Chemical Restraint?
The Residential Care Regulation states that restraint “means any chemical, electronic, mechanical, physical or other means of controlling or restricting a person in care’s freedom of movement in a community care facility, including accommodating the person in care in a secure unit[.]”
Chemical restraints are not defined in the legislation. Conversations about Care reviewed definitions of chemical restraints in Canada and elsewhere. The common aspects of this definition are that a medication (usually an anti-psychotic) is being used to restrict a person’s movement, reduce a behaviour, or sedate a person beyond any therapeutic purpose.
Legislative Framework in BC
Two pieces of legislation work together to govern the use of chemical restraints in long-term care. Consent to health care, including medication, is governed by the Health Care (Consent) and Care Facility (Admission) Act [HCCFA]. The use of restraints in long-term care facilities is governed by the Residential Care Regulation [RCR] under the Community Care and Assisted Living Act.
The HCCFA health care consent laws provide the base consent requirements for any medication. When the medication is being used as a form of restraint, the RCR restraint regulations impose additional requirements.
Consent to Health Care
The HCCFA lays out the guidelines for health care consent.
- All capable adults have the right to consent to or refuse health care treatment, which includes anti-psychotic medications (s 4).
- For consent to be valid, the adult must get all of the information a reasonable person would need to make this decision and the consent must be voluntary (s 6).
- In obtaining consent, the health care provider “must communicate with the adult in a manner appropriate to the adult’s skills and abilities…” and the adult must be allowed a supporter to help them make this decision (s 8).
- If the adult is not capable to make the specific health care decision, the personal guardian, or representative must give consent, if the adult has one in place (s 11).
- If an adult who is not capable does not have a personal guardian or representative, a temporary substitute decision-maker (TSDM) must consent. Section 16 contains a ranked list of who can provide substitute consent: spouse, child, parent, sibling, grandparent, grandchild, anyone related by birth or adoption, a close friend, a person immediately related by marriage, or the Public Guardian and Trustee (s 16).
- In an emergency, if the adult is not capable and a personal guardian, representative, or TSDM cannot be located to give consent, medical treatment can be given without consent (s 12).
If consent is by the TSDM, this person has some responsibilities that impact consent. A TSDM must:
- Consult with the adult as much as possible (s 19); and
- Make a decision based on what the adult would want and what would be in their best interests, which includes the degree of risk or harm, and whether there is a less-restrictive option (s 19).
Consent to Restraints
The RCR sets out the general requirements for when restraints can be used.
- Restraints can only be used if they are needed to protect the adult or others from imminent harm, and not for discipline or convenience of staff (s 74).
- Restraints must be as minimal as possible (s 73).
- Other options must have been tried before restraints can be used (s 73).
- The adult being restrained must be monitored to protect “the safety and physical and emotional dignity of the person…” (s 73(1)(b)).
If restraints are used in a non-emergency situation, RCR section 74 sets out that prior agreement must be obtained.
- The adult must agree to the restraint use.
- If the adult is incapable of making the decision about restraint use, their substitute decision-maker must agree. The substitute is the representative or relative who is closest to the adult.
- The PGT cannot provide substitute consent for restraint use. There is no ranked list of substitute decision-makers, unlike consent for health care.
- The adult’s doctor or nurse practitioner must agree.
- The agreement must be in writing.
If restraints are used in an emergency the RCR states.
- Prior agreement is not required if the adult or others are at imminent risk of harm (s 74).
- After the restraint has been used, the facility must “provide, in a manner appropriate to the person’s skills and abilities, information and advice in respect of the use of the restraint to”
- The adult;
- Anyone who witnessed the restraint use; and
- Any employees involved in the restraint use.
- Restraint use must be documented in the care plan (s 73).
During restraint use, the RCR sets out that periodic reassessments are required.
- The need for the restraint must be reassessed within the first 24 hours of the first use of a restraint (s 75).
- If the restraint is used in an emergency and restraint use continues for more than 24 hours, agreement must be obtained from the adult/substitute decision-maker, and the adult’s doctor or nurse practitioner (s 75).
- If the restraint is used with prior consent, reassessment must occur based on what is listed in the care plan or when the adult/substitute decision-maker has specified, whichever is earlier (s 75).
The Conversations about Care report was developed after consulting with health care professionals, family caregivers, people living with dementia, and others to investigate knowledge about anti-psychotics and their use in long-term care. We found that:
- Many of the doctors did not find a distinction between the use of anti-psychotics as health care treatment and as a restraint.
- Most of the health care providers were not aware of the RCR requirements for agreement to restraint use, although all knew about long-term care facility least-restraint policies.
- The Public Guardian and Trustee can only consent to health care, not restraint use. They stated that if there is no perceived health benefit to the use of restraint, it would not be considered health care, and so they could not provide consent.
- Many family caregivers reported their family member were being given medications without consent of the adult or their substitute, and requests to stop using the medications were met with great resistance.
- Some family members were concerned their relatives were being over-medicated because they were inappropriately being labelled as aggressive due to communication barriers.
- Some long-term care residents who are not capable of consenting to medication, and do not have family members available and appropriate to provide consent, are provided medication without anyone consenting.
- The Seniors Abuse and Information Line (run by Seniors First BC) reported receiving calls from family members who are concerned their relative was being given anti-psychotics inappropriately and without consent.
Recommendations to Improve Restraint Laws
Based on research and consultation findings, Conversations about Care made five recommendations to improve the law and practice of chemical restraints in long-term care:
- Recommendation 8: the restraint regulations should require in non-emergency situations that agreement requirements match the consent to health care requirements, including the presumption of capacity, the requirement for informed consent, and the hierarchy of substitute decision-makers.
- Recommendation 9: the restraint regulations should require consent for the emergency use of restraints beyond 24 hours and recognize the right to revoke consent to restraint use.
- Recommendation 10: the restraint regulations should require the substitute decision-maker be informed about restraint use as soon as possible.
- Recommendation 11: legislation should include a definition of chemical restraints.
- Recommendation 12: the restraint regulations should require long-term care homes to have policies on the use of restraints and consent to restraint use in both emergency and non-emergency contexts.
The full Conversations about Care report is available on the CCEL’s website, along with a 12 page Summary Report. In March the CCEL will be releasing new tools on the legal rights of people living with dementia to participate in health care decision-making.