Simon's Megalomaniacal Legal Resources

Retirement Homes (Ontario)
Legal Guide

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Chapter 5 - Confinement and Restraint

1. Generally
   
2. Emergencies: The Common Law and Modifications
   (a) Restraint (Battery)
   (b) Confinement
   (c) The RHA Qualifications
   (d) Drugs as a Common Law Restraint
   (e) Devices as a Common Law Restraint
   
3. 'Normal' Restraint and Confinement
   (a) Restraints: Personal Assistance Service Devices [PASDs] and Incidental Care Plan Drug Effect Allowed
   (b) Conclusion on Confinement
   (c) Unnecessory Device Prohibitions [except PASDs]

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1. Generally

The basics of restraint and confinement law are those of the common law (ie. judge-made case law). The RHA does not mean to unduly restrict the ability of licensees, staff or others to act when necessary "to prevent serious bodily harm to the person or to others" (ie. emergencies), and therefore it does not unduly restrict the common law duty "of a caregiver to restrain or confine a person when immediate action is necessary" [RHA 71(1)]. This common law can be stated roughly as 'as much force as necessary to prevent harm, but no more', and I'll call it the 'common law paramountcy', and it can be thought of as for emergencies only.

But this emergency 'common law paramountcy' is not unfettered, even it is subject to statutory codification. The RHA regime over confinement and restraint splits it's addressing into two situations: the 'emergency' common law situation and the non-emergency (or 'normal') situation. For the emergency situation it adopts a modified common law approach, setting the common law of false imprisonment (confinement) and battery (restraint) as the basis, modified by some provisions of the RHA and it's Regulation. For the 'normal' situation it is all codified under the RHA regime.

Note: I have found the RHA provisions regarding restraint and confinement to be awkward and - frankly - poorly-drafted. There are several, even many, legal dead-ends where the statute calls for a regulation, but there are no regulations enacted. Also, the regime is just plain awkwardly-written, as in hard-to-decipher.

2. Emergencies: The Common Law and Modifications

(a) Restraint (Battery)

Restraint legally falls under the tort of battery. Battery ranges from assault to medical malpractice and more. In Figueiras v. Toronto (Police Services Board) (Ont CA, 2015) the Court of Appeal commented briefly on the elements of the tort of battery as follows:

[142] The tort of battery is committed whenever someone intentionally applies unlawful force to the body of another (Norberg v. Wynrib, 1992 CanLII 65 (SCC), [1992] 2 S.C.R. 226, at p. 246). There is no requirement to prove fault or negligence (Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24 (CanLII), [2000] 1 S.C.R. 551, at paras. 8-10). Nor is there a requirement to prove damage or injury (Norberg, at p. 263). Relatively simple acts can constitute a battery, such as restraining a person by grabbing their arm (Collins v. Willock, [1984] 1 W.L.R. 1172 (Eng. Div. Ct.), at p. 1180), or maliciously grabbing someone’s nose (Stewart v. Stonehouse, 1926 CanLII 114 (SK CA), [1926] 2 D.L.R. 683 (Sask. C.A.), cited in Scalera, at para. 16).

[143] However, not every act of physical contact is a battery. As the Supreme Court has put it, battery requires “contact ‘plus’ something else” (Scalera, at para. 16). That is, there must be something about the contact that renders that contact either physically harmful or offensive to a person’s reasonable sense of dignity (Malette v. Shulman (1990), 1990 CanLII 6868 (ON CA), 72 O.R. (2d) 417 (C.A.), at p. 423).

[144] The classic example of non-actionable conduct is tapping someone on the shoulder to get that person’s attention, or the regular jostling that occurs in any crowded area. Something more than that is required to constitute a battery.

(b) Confinement

Most confinement legal issues involve the tort of 'false imprisonment'. False imprisonment need not occur only in a law enforcement context, for if the imprisonment is 'false', it's law enforcement status is usually voided. Any 'false imprisonment', be it from an attempted arrest by a police officer, a citizen's arrest (eg. by a security guard) or an attempt to confine someone who is a danger to others deals in the same law.

The vast majority of 'false imprisonment' cases involve law enforcement, and understandably there are not many involving private 'false imprisonment' or 'confinement', but this criminal case [R v Gratton (Ont CA, 1985)] has a workable definition in it:

It was argued that the foregoing definition of confinement omitted a number of essential attributes of that term. Reliance was placed upon R. v. Dollan and Newstead (1980), 53 C.C.C. (2d) 146 at p. 154, where DuPont J. stated:

Without attempting to define the interpretative limits of the term, I have concluded that a total physical restraint, contrary to the wishes of the person restrained, but to which the victim submits unwillingly, thereby depriving the person of his or her liberty to move from one place to another, is required in order to constitute forcible or unlawful confinement. Such confinement need not be by way of physical application of bindings.

This definition of confinement is excellent with one reservation. In my view, the word "total" should be deleted, for there is nothing in s. 247(2) which would require the total physical restraint of the victim in order to constitute the offence.

There is a precautionary legal measure in the RHA dealing with confinement, addressing the situation where something qualifies as a confinement [under RHA 68(2) or 70 (RHA 70 is not in force)] but may also meet the definition of a restraint. It holds that in that case, it's not - by definition - a restraint [RHA 50(2)4]. The line between confinement and restraint is not that clear.

Note: RHA 2(1) defines “confine, except with respect to the common law duty of a caregiver to confine a person as mentioned in section 71, has the meaning provided in the regulations". However, there are no Regulations to that effect, therefore the ordinary and grammatical meaning of the term will be useful.

(c) The RHA Qualifications

However immediately after the adoption of the common law standard [in RHA 71(1), above] the RHA qualifies it with the following statutory conditions for whenever a resident is being restrained or confined "pursuant to the common law duty":

• Drugs
  
  When "a resident of the home [is] restrained by the administration of a drug", the "drug is used in accordance with any applicable regulations" and "that its administration was ordered by a legally qualified medical practitioner or another person belonging to a prescribed class" [RHA 71(3)] [see (d) below].
  
  "Drugs" means a drug as defined in the Drug and Pharmacies Regulation Act [Reg 4(1)].
  
  
• Devices
  
  "(T)he use of a physical device from which a resident is both physically and cognitively able to release oneself" cannot legally be a restraint [RHA 50(2)1].
  
  When "a resident of the home [is] restrained by a physical device", the device must be "used in accordance with any applicable regulations" [RHA 71(2)] [there are Regs for 'physical devices' but they are stated as being under RHA 71(1), not 71(2); in any event, see (e) below].
  
  
• Generally
  
  Generally, that "that the confinement is done in accordance with the prescribed requirements, if any" [RHA 71(3.1)] [there are no Regs under 71(3.1)].

The licensee shall keep records of any use of the common law restraint or confinement of residents [RHA 71(4)].

(d) Drugs as a Common Law Restraint

As above, drugs are allowed for a common law emergency situation (ie. "when immediate action is necessary to prevent serious bodily harm to the resident or to others") restraint if their use complies with the following [Reg 54]:

• they must be "ordered by a registered nurse in the extended class" [Reg 54(1)];
  
  
• documentation of every administration [Reg 54(2)], including details of [Reg 54(2)]:
  
  . circumstances precipitating the administration of the drug;
  
  . the person who made the order, what drug was administered, the dosage given, by what means the drug was administered, the times when the drug was administered and the person who administered the drug;
  
  . the resident’s response to the drug;
  
  . all assessments, reassessments and monitoring of the resident;
  
  . discussions with the resident or, if the resident is incapable, the resident’s substitute decision-makers, after the administration of the drug to explain the reasons for the use of the drug.
  
  “Incapable” means unable to understand the information that is relevant to making a decision concerning the subject matter or unable to appreciate the reasonably foreseeable consequences of a decision or a lack of decision [RHA 2(1)].
  
  
• use of the drugs used in the emergency ceases when the emergency passes [Reg 54(3)].

The licensee shall develop and implement policies to ensure that the documentation and cessation of drugs requirements (above) are met and "shall ensure that staff receive annual training in the policies" [Reg 54(4)].

(e) Devices as a Common Law Restraint [Reg 53]

As above, devices are allowed for a common law emergency situation (ie. "when immediate action is necessary to prevent serious bodily harm to the resident or to others") restraint if their use complies with the following [Reg 53]:

• generally [Reg 53(1)]:
  
  . they must be ordered by a qualified doctor or nurse;
  
  . the device must be applied "in accordance with the manufacturer’s instructions";
  
  . the device is well maintained;
  
  . the device is not altered except for routine adjustments in accordance with the manufacturer’s instructions, if any.
  
  
• the licensee shall ensure that [Reg 53(2)]:
  
  . the resident is monitored or supervised on an ongoing basis and released from the device and repositioned when necessary based on the resident’s condition or circumstances; and
  
  . the resident’s condition is reassessed only by a qualified doctor or nurse at least every 15 minutes and at any other time when reassessment is necessary based on the resident’s condition or circumstances.
  
  
• the licensee shall explain to the resident, or the resident’s substitute decision-makers if the resident is incapable, the reason for the use of the device [Reg 53(3)];
  
  “Incapable” means unable to understand the information that is relevant to making a decision concerning the subject matter or unable to appreciate the reasonably foreseeable consequences of a decision or a lack of decision [RHA 2(1)].
  
  
• if the resident is released from the device or the use of the device is being discontinued, the licensee shall ensure that appropriate post-restraining care is provided to ensure the safety and comfort of the resident [Reg 53(4)];
  
  
• documentation shall be kept of [Reg 53(5)]:
  
  . the circumstances precipitating the application of the device;
  
  . the person who made the order, what device was ordered, and any instructions relating to the order;
  
  . the person who applied the device and the time of application;
  
  . all assessments, reassessments and monitoring of the resident, including the resident’s response;
  
  . every release of the device and all repositioning;
  
  . the removal or discontinuance of the device, including the time of removal or discontinuance of the device and the post-restraining care of the resident.

3. 'Normal' Restraint and Confinement

(a) Restraints: Personal Assistance Service Devices [PASDs] and Incidental Care Plan Drug Effect Allowed

. Restraint Generally

The basic 'normal' (non-emergency) rule for restraint is that no licensee or external care providers who provide "care services" in the home shall restrain a resident at all [RHA 68(1): ie. "No licensee of a retirement home and no external care providers who provide care services in the home shall restrain a resident of the home in any way ..."].

Note:
For clarity's sake, this RHA 68(1) passage is immediately followed by "including by the use of a physical device or by the administration of a drug except as permitted by section 71" [SS: ie. emergencies] - but this s.71 ["Common law duties re restraint and confinement"] reference should be read as only applying to emergency, common law situations.

. Personal Assistance Services Device (PASDs) Exception

However, the statutory definition of "personal assistance services device" [PASDs] makes it clear that they are 'devices', and that they are not (normally) for emergency use [RHA 50(1)]:

“personal assistance services device” means a device that is intended to assist a resident with a routine activity of living if the device has the effect of limiting or inhibiting the resident’s freedom of movement and the resident is not able, either physically or cognitively to release oneself from the device.

As well, we see that by virtue of the legal definition of PASDs as not being capable of causing 'restraint' [RHA 50(2)2], PASDs are effectively allowed in normal retirement home situations insofar as they meet the legislative requirements below. Thus PASDs are an exception to the normal 'no devices' rule [another example of strange and awkward RHA statutory wording].

PASDs may be permitted by a licensee who provide care services "only for the purpose of assisting the resident with a routine activity of living" [RHA 69(1)]. In a plain effort to make PASDs a 'least drastic means' alternative, they may only be used when [RHA 69(2)]:

• the licensee has considered or tried alternatives to the use of the device but has found that the alternatives have not been, or considers that they would not be, effective to assist the resident with a routine activity of living;
  
  
• the use of the device is reasonable, in light of the resident’s physical and mental condition and personal history, and is the least restrictive of such devices that would be effective to assist the resident with a routine activity of living;
  
  
• when either a qualified doctor, nurse, occupational therapist or physiotherapist have approved the use of the device;
  
  
• the resident or, if the resident is incapable, the resident’s substitute decision-maker, has consented to the use of the device; and
  
  “Incapable” means unable to understand the information that is relevant to making a decision concerning the subject matter or unable to appreciate the reasonably foreseeable consequences of a decision or a lack of decision [RHA 2(1)].
  
  
• the use of the device is included in the resident’s plan of care.

Also, the licensee shall ensure that the PASD is [Reg 52(2)]:

. well maintained;

. applied by staff of the home in accordance with the manufacturer’s instructions, if any;

. used in accordance with evidence-based practices and, if there are none, in accordance with prevailing practices;

. not altered except for routine adjustments in accordance with the manufacturer’s instructions, if any;

. removed as soon as it is no longer required to assist a resident with a routine activity of living, unless the resident requests that it be retained; and

. removed as soon as a resident has altered skin integrity or is at risk of altered skin integrity related to the use of the device.

"Altered skin integrity” means potential or actual disruption of epidermal or dermal tissue, including skin breakdown, pressure ulcers and skin tears or wounds [Reg 4(1)].

Lastly, PASDs require a written retirement home policy for their use [RHA 68(3)]. That policy must [Reg 52(1)] deal with:

• the duties and responsibilities of staff, including,
  
  . who has the authority to apply a personal assistance services device to a resident or to release a resident from a personal assistance services device, and
  
  . ensuring that all appropriate staff are aware at all times of when the licensee has permitted the use of a personal assistance services device for a resident;
  
  
• "the prohibition on restraining a resident in any way under subsection 68 (1) of the Act except when restraining under the common law duty described in subsection 71 (1) of the Act when immediate action is necessary to prevent serious bodily harm to the person or others"; [this is the discussion in s.2(c) above]
  
  
• the types of personal assistance services devices permitted to be used;
  
  
• how consent to the use of personal assistance services devices is to be obtained and documented;
  
  
• alternatives to the use of personal assistance services devices, including how the alternatives are planned, developed and implemented, using an interdisciplinary approach; and
  
  
• how the use of personal assistance services devices in the home will be evaluated to ensure that all necessary use of a personal assistance services device is done in accordance with the Act and this Regulation.

. Incidental Care Plan Drug Effect

In a bit of a fussy provision, which can be viewed as the only 'drug' exception to the no-drug 'normal' rules. It allows the 'incidental' calming effect of a drug already in the residents care plan. It allows the 'incidental' calming effect of a drug already in the resident's care plan as not legally being a restraint [RHA 50(2)3].

Otherwise drugs used for normal non-emergency situations are not allowed for restraint or confinement.

(b) Conclusion on Confinement

With respect to 'confinement' [RHA 68(2)] this situation is clear. No licensee or external care provider who provide "services" in the home shall confine a resident [RHA 68(2)], subject to the defined exceptions. However the exceptions set out in s.70 of the RHA are not in force at the date of writing - and neither are the RHA 71(3.1) ["general"] regulations either - so it seems that no confinement is allowed under non-emergency situations.

Note:
Again, it doesn't help matters for clarity when RHA 2(1) refers to the meaning of 'confinement' as having "the meaning provided by the regulations", when there are no regulations passed to that effect.

(c) Unnecessory Device Prohibitions [except PASDs]

Perhaps legally unnecessary in light of my earlier conclusion in s.2(a) [above, that only PASDs are allowed], the law further provides that "(a) licensee of a retirement home shall ensure that no device prohibited for use in any applicable regulations is used to restrain or confine a resident of the home." [RHA 71.1] [excepting of course PASDs, in (c) above]

This regulation power is used here [though oddly under the RHA 60(3) 'safety standards', not the RHA 71.1 authority], and the following devices are prohibited [Reg 51]:

• a roller bar on wheelchairs, commodes or toilets.
  
• any device used to restrain a person to a commode or toilet.
  
• vest or jacket restraints.
  
• any device with locks that can only be released by a separate device, such as a key or magnet.
  
• four point extremity restraints.
  
• any device that cannot be immediately released by staff.
  
• sheets, wraps, tensors or other types of strips or bandages used other than for a therapeutic purpose.