34 (1) Every licensee of a long-term care home shall ensure that no resident of the home is: 1. Restrained, in any way, for the convenience of the licensee or staff. 2. Restrained, in any way, as a disciplinary measure. 3. Restrained by the use of a physical device, other than in accordance with section 35 or under the common law duty referred to in section 39. 4. Restrained by the administration of a drug to control the resident, other than under the common law duty referred to in section 39. 5. Restrained, by the use of barriers, locks or other devices or controls, from leaving a room or any part of a home, including the grounds of the home, or entering parts of the home generally accessible to other residents, other than under the common law duty referred to in section 39. Devices that resident can release (2) The use of a physical device from which a resident is both physically and cognitively able to release themself is not a restraining of the resident. Use of PASD to assist resident (3) The use of a personal assistance services device (“PASD”), within the meaning of subsection 36 (2), to assist a resident with a routine activity of living is not a restraining of the resident. Administration of drugs, etc., as treatment (4) The administration of a drug to a resident as a treatment set out in the resident’s plan of care is not a restraining of the resident. Perimeter barriers, etc., of home, grounds (5) The use of barriers, locks or other devices or controls at entrances and exits to the home or the grounds of the home is not a restraining of a resident unless the resident is prevented from leaving. Safety measures at stairways (6) The use of barriers, locks or other devices or controls at stairways as a safety measure is not a restraining of a resident. Note: On a day to be named by proclamation of the Lieutenant Governor, section 34 of the Act is repealed and the following substituted: (See: 2021, c. 39, Sched. 1, s. 203 (8)) Protection from restraining and confining 34 (1) Every licensee of a long-term care home shall ensure that no resident of the home is: 1. Restrained or confined, in any way, for the convenience of the licensee or staff. 2. Restrained or confined, in any way, as a disciplinary measure. 3. Restrained by the use of a physical device, other than in accordance with section 35 or under the common law duty referred to in section 39. 4. Restrained by the administration of a drug to control the resident, other than under the common law duty referred to in section 39. 5. Confined, other than in accordance with section 34.1 or under the common law duty referred to in section 39. 2021, c. 39, Sched. 1, s. 203 (8). Devices that resident can release (2) The use of a physical device from which a resident is both physically and cognitively able to release themself is not a restraining of the resident. 2021, c. 39, Sched. 1, s. 203 (8). Use of PASD to assist resident (3) The use of a personal assistance services device (“PASD”), within the meaning of subsection 36 (2), to assist a resident with a routine activity of living is not a restraining of the resident. 2021, c. 39, Sched. 1, s. 203 (8). Administration of drugs, etc., as treatment (4) The administration of a drug to a resident as a treatment set out in the resident’s plan of care is not a restraining of the resident. 2021, c. 39, Sched. 1, s. 203 (8). Section Amendments with date in force (d/m/y) 2021, c. 39, Sched. 1, s. 203 (8) - not in force Confining of resident 34.1 (1) A resident may be confined as described in paragraph 5 of subsection 34 (1) if the confining of the resident is included in the resident’s plan of care. 2021, c. 39, Sched. 1, s. 203 (8). Provision in plan of care (2) The confining of a resident may be included in a resident’s plan of care only if all of the following are satisfied: 1. There is a significant risk that the resident or another person would suffer serious bodily harm if the resident were not confined. 2. 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. 3. 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. 4. A physician, registered nurse or other person provided for in the regulations has recommended the confining. 5. 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. 6. The plan of care provides for everything required under subsection (3). 2021, c. 39, Sched. 1, s. 203 (8). Requirements if resident is confined (3) If a resident is being confined under subsection (1), the licensee shall ensure that, (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 in paragraph 1 of subsection (2); (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 referred to in paragraph 1 of subsection (2): (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; and (d) any other requirements provided for in the regulations are satisfied. 2021, c. 39, Sched. 1, s. 203 (8). Notice and advice if substitute consent to confining (4) The following apply if the substitute decision-maker of a resident has given consent on the resident’s behalf to the confining of the resident: 1. The licensee of the home shall, i. ensure that the resident is promptly given a written notice that complies with subsection (6), ii. ensure that the resident is promptly provided with a verbal explanation of the written notice, the verbal explanation complies with the requirements, if any, provided for in the regulations and the resident is asked whether they wish to meet with a rights adviser, and iii. ensure that, if the resident wishes to meet with a rights adviser or expresses disagreement with the confining, a rights adviser is promptly notified and the notification is provided in accordance with the requirements, if any, provided for in the regulations. 2. The rights adviser notified under subparagraph 1 iii shall promptly meet with the resident and explain, i. the right of the resident or any person acting on their behalf to apply to the Consent and Capacity Board, under section 54.18 of the Health Care Consent Act, 1996, for a determination as to whether the substitute decision-maker complied with section 54.7 of that Act, and ii. any other matters that may be provided for in the regulations. 3. At the resident’s request, the rights adviser shall assist him or her in making an application to the Consent and Capacity Board and in obtaining legal services. 4. The rights adviser shall comply with the regulations, if any, providing for how the rights adviser satisfies the requirements of paragraphs 2 and 3. 5. Paragraphs 2 and 3 do not apply if the resident refuses to meet with the rights adviser. 6. The licensee shall ensure that the resident is not confined until after, i. the requirements of paragraph 1 have been satisfied, ii. the requirements of paragraph 2, if applicable, have been satisfied or the licensee is advised by the rights adviser that the resident refuses to meet with the rights adviser, and iii. the requirements, if any, provided for in the regulations have been satisfied. 7. For greater certainty, paragraph 6 does not affect any further restrictions on the licensee under Part III.1 of the Health Care Consent Act, 1996. 2021, c. 39, Sched. 1, s. 203 (8). Rights adviser to notify licensee (5) The rights adviser shall promptly notify the licensee, and shall do so in accordance with the requirements, if any, provided for in the regulations, (a) that the meeting with the resident has occurred, or that the resident refused to meet with the rights adviser, as the case may be; and (b) if the rights adviser is aware that the resident or any person acting on the resident’s behalf intends to make an application to the Consent and Capacity Board referred to in section 54.10 of the Health Care Consent Act, 1996
or that another person intends to apply to the Consent and Capacity Board to be appointed as the representative to give or refuse consent to the confining on the resident’s behalf. 2021, c. 39, Sched. 1, s. 203 (8). Contents of notice to resident (6) The written notice given to the resident under subparagraph 1 i of subsection (4) shall be in accordance with the requirements, if any, provided for in the regulations and shall inform the resident, (a) of the reasons for the confining; (b) that the resident has the right to meet with a rights adviser, together with the contact information for the rights adviser; (c) that the resident, or any person acting on their behalf, is entitled to apply to the Consent and Capacity Board, under section 54.18 of the Health Care Consent Act, 1996, for a determination as to whether the substitute decision-maker complied with section 54.7 of that Act; (d) that the resident has the right to retain and instruct counsel without delay; and (e) of any other matters provided for in the regulations. 2021, c. 39, Sched. 1, s. 203 (8). Placement co-ordinator recommendation (7) If the placement co-ordinator has, under subsection 51 (2.1), recommended that a resident be confined in the home, the licensee, (a) shall consider the recommendation; and (b) in considering the recommendation shall comply with the requirements provided for in the regulations, if any. 2021, c. 39, Sched. 1, s. 203 (8). Elements of consent for confining (8) Section 52 applies, with necessary modifications, with respect to consent to the confining of a resident in a home. When obtaining consent to confining, the licensee shall ensure that the resident or substitute decision-maker is informed that consent may be withdrawn at any time. 2021, c. 39, Sched. 1, s. 203 (8). Requirements under this section (9) The licensee of the home shall ensure that the requirements under this section are satisfied, (a) when a resident is initially confined under subsection (1); and (b) at any other times and under any other circumstances provided for in the regulations. 2021, c. 39, Sched. 1, s. 203 (8). Section Amendments with date in force (d/m/y) 2021, c. 39, Sched. 1, s. 203 (8) - not in force