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Rights Restrictions & Due Process

Guideline:

The organization does not limit or restrict rights without due process and only in response to a health or safety concern.

What does this look like?

The organization has a policy that prohibits or limits restrictive practices and rights restrictions except under strict conditions. This policy must define restrictive practices and rights restrictions, require due process for any rights restrictions, ensure that such restrictions are time limited, have a reduction plan and what process must be followed and by whom. The policy clearly identifies those practices that would be prohibited completely, regardless of circumstances. Some practices that restrict people’s rights or personal freedoms are completely prohibited. Others should only be temporary strategies in partnership with a positive behaviour support plan.

People served and their support network (paid staff and family/friends) are taught about what constitutes rights restrictions, restrictive practices and what process needs to occur when they are occurring or are being proposed. People are as involved as they can be in agreeing and reviewing any restriction to their independence, control and choice.

Positive Behaviour Support is provided before restrictions are implemented. Continued support and teaching continues even if restrictions are being utilized in order to reduce the need for these interventions in the future.

Due process is provided to the person when their rights restrictions are occurring or being proposed. Ideally, this would include a review of the proposed restriction, the justification and the plan for reduction by a third party or at minimum someone who is removed from direct service delivery. The person, their decision maker and others, if they wish, can participate in this review and validation process.

Restrictions are temporary and are proposed after all other less restrictive strategies have been tried. There must be a plan for reduction. Restrictions must be ended if no longer needed or ineffective to manage the risk (serious risk to their safety or welfare).

While restrictions may be utilized in the case of emergency in response to an immediate and urgent health or safety risk, these should not be used repetitively without following the rights restriction process including due process.

Where external regulation, systems or requirements impact on rights, the organization advocates and provides information (with the person) to the restricting authority to encourage relief from or changes to specific requirement. Should this not be successful, strategies to reduce the impact on the person should be utilized and ongoing advocacy continued.

Any measure taken by staff that impact what a person may wish to do provides for appropriate and effective safeguards to prevent abuse and respect the rights, will and preferences of the person with a disability. Any such measures taken by staff are free of any conflict of interest and undue influence, are proportional and tailored to each person’s circumstances, apply for the shortest time possible, and are subject to regular review.

Restrictions are recorded in the person’s personal plan and each use is monitored on an ongoing basis.

Staff are trained in the use of restrictive procedures and only use approved and agreed techniques.

Staff are trained in conciliation and de-escalation to reduce the likelihood of violence and the need for restrictive procedures.

Persons for whom medication has been prescribed for behaviour support have a Behaviour Support Plan in place that addresses the same behaviour for which the medication is given. Data is collected on behaviours for which medication is given and is regularly analyzed to assess the benefit of the medication.

How would you know this is happening? (Evidence)

What you see in systems:

Written policy and process on rights restrictions and how they are identified and reviewed.

Information about the process for identifying, reducing, restricting and reviewing rights restrictions is available, is clearly stated in ways in which people can understand, and is discussed regularly.

Documentation of the rights restrictions that have been reviewed and either approved or declined is available. This includes documentation related to least restrictive alternatives that have been attempted and evidence that the restriction has been put in place for a temporary period, as a last resort and there is a plan to reduce them.

Training and/or information is being delivered to staff/caregivers about how to identify, report and review and reduce rights restrictions.

What you see in actions:

People and their support network are knowledgeable or aware of rights restrictions in general and more specifically have experienced due process when their rights have been restricted.

Staff have a comprehensive understanding of what may constitute a rights violation and what to do when either learning about or planning to restrict people’s rights.

Resources to support achieving guideline:

UN Declaration – Convention of the Rights of Persons with Disabilities https://www.ohchr.org/EN/HRBodies/CRPD/Pages/ConventionRightsPersonsWithDisabilities.aspx

Canadian Charter of Rights & Freedoms – https://www.canada.ca/en/canadian-heritage/services/how-rights-protected/guide-canadian-charter-rights-freedoms.html

Canadian Human Rights Act – http://laws-lois.justice.gc.ca/eng/acts/h-6/

Manitoba Vulnerable Persons Act – https://www.gov.mb.ca/fs/pwd/what_is_vpa.html

Sample Rights Restriction Policy & Process – [To be added soon]

Related Guidelines:

Rights Protection & Promotion

Privacy

Complaints, Grievances & Appeals

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